At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
I have recently read two books that shed considerable doubt
on scientific assumptions that the supernatural does not exist. The first is by
Kyriacos C. Markides, The Mountain of
Silence: A Search for Orthodox Spirituality (2001). The book explores the
beliefs and practices of Orthodox monasterial life as practiced by monks and
hermits. In particular, he follows a remarkable larger-than-life priest named
Maximos to the island of Cyprus and reports on his actions, his views, and his
spiritual practice. Most important for this post, he reports on numerous
phenomena that can only be called miracles.
I read this book in a reading group. One of our members
knows the author and vouches for his integrity. After reading the book, I
became convinced that scientific materialism could not possibly explain the
events reported, and I very much doubt that the events were concocted, were
dreams, or were otherwise fictitious. That said, I think the theology embraced
by these monks, though sometimes qualified, too often seems to subtly denigrate
those who care for and act in this world whether it is action for social
justice or caring for children. I resist the suggestion that one has to be a
monk to lead a fulfilling religious life though there is an impressive spiritual
intimacy in monasterial life and, in fairness, the monks would not explicitly denigrate
those who choose a life engaged in the world. I am reacting to a tone and a
usually unspoken attitude.
Another book explicitly challenging scientific materialism
currently sits atop the New York Times
non-fiction bestseller list: Proof of
Heaven: A Neurosurgeon’s Journey into the Afterlife (2012) by Eben
Alexander. Although the book is somewhat repetitious, the story is riveting.
Alexander, an academic neurosurgeon was struck by a sudden illness and was in a
coma for seven days. He had previously thought that near death experiences felt
real but were fantasies produced by the brain under severe stress. His case was unique because the experience he
had during his coma in his view could not have been produced by the brain
because the part of the brain that produces thought and emotion was not
functioning during his coma. His recovery from the illness was unprecedented.
But his near death experience was even more impressive. Alexander richly
details what he experienced and he has since learned that his experience is
similar to those who also have had near death experiences. His experience has
led him to the conviction that heaven and God are real. Proof of Heaven is a powerful book that will strengthen the faith
of believers and might give second thoughts to those who think belief in the supernatural
is simply nonsense.
After posting the reply I had written to Judge Bork's request for my thoughts on the meaning of the Ninth Amendment, I received a note from MoJ reader Professor Kurt Lash of the University of Illinois Law School, author of The Lost History of the Ninth Amendment (Oxford University Press, 2009). Professor Lash reports on the basis of his research that what I had inferred from the Founders' theory of government finds confirmation in the historical record. Here is his note, which I post with his kind permission:
Dear Robert,
I am a regular reader of the Mirror of Justice website and noticed your post today on the late Robert Bork and the Ninth Amendment. Having read your linked essay of reply to Judge Bork, you should be encouraged to know your reading of the Ninth Amendment is powerfully supported by the historical evidence. The founding generation understood the Ninth and Tenth Amendment as declaring and preserving the people's retained rights of local self-government. The rights would be protected in every case where federal power was properly limited, and violated every time federal power was unjustifiably expanded. Nor did this change at the time of the Fourteenth Amendment (contra Randy Barnett). In fact, this is how both amendments were broadly understood, and cited, for the next century or so. All of this evidence is laid out in my book "The Lost History of the Ninth Amendment" (Oxford Press, 2009).
I always felt that Judge Bork had been wrongly maligned for the "ink blot" statement--he was entirely right to reject the Clause as a source of federal judicial power to constrain the states. And he was right to treat the clause as unenforceable absent sufficient evidence of original meaning. Even worse, when Philip Kurland testified against Bork in part because of the judge's views on the Ninth Amendment, Kurland knew of historical evidence that supported Judge Bork's view--evidence that Kurland excluded from the Founders' Constitution (but can be found in his original files at the University of Chicago). Happily, I got to defend the Judge on this matter in person while he was still with us, as part of a conference in honor of the Judge back in 2008. See Lash, Of Inkblots and Originalism: Historical Ambiguity and the Ninth Amendment, 31 Harv.J.L. and Pub. Pol'y 467 (2008).
The Ninth is not an inkblot. It is, sadly, too often misunderstood. Your essay is a wonderful antidote.
Sincerely,
Kurt Lash
Alumni Distinguished Professor of Law
Director, Program on Constitutional Theory, History and Law
University of Illinois College of Law
Thursday, January 10, 2013
My reply to a request from Judge Bork (may he rest in peace) for thoughts on the meaning of the Ninth Amendment:
http://www.nationalreview.com/corner/337262/robert-p-george-ninth-amendment-ramesh-ponnuru
Wednesday, January 9, 2013
Yesterday was the fourth anniversary of the death of Richard John Neuhaus. Those who knew him intimately and those who knew him only through his writings share the pain of his loss. Since he was irreplaceable, it is scarcely a surprise that no one has taken his place in American intellectual and public life. Here is the tribute to him that I published at First Things shortly after his death:
http://www.firstthings.com/onthesquare/2009/03/he-threw-it-all-away
