We the People: What the Public Thinks About Originalism

The following is a post by Center friend and supporter Don Drakeman.

As part of a lively debate about originalism and same-sex marriage (at the Volokh Conspiracy site between Orin Kerr and Ilya Somin), Larry Solum has suggested that there is “no good empirical data on public beliefs about originalism.”  I can’t add to the substantive debate, but I have some empirical data about what the public believes about originalism.  Readers can decide whether it is good or not.

In 2012, I commissioned a YOUGOV survey of 1000 Americans specifically on the topic of originalism.  Most surveys have simply asked voters to choose between the Constitution’s original meaning and a more modern, living Constitution approach. Over time, the public has generally split about 50-50 on that point, with a majority periodically flipping from  one side to the other.  In my Originalism 2012 Survey, 60% chose the understanding of the Constitution at the time it was originally written, with 40% picking “what the Constitution means in current times.”

But here’s the interesting part. I asked the “current times” respondents what the Supreme Court should do with evidence of the original meaning.”  I expected that most would say that it should be either irrelevant or, or merely historical background.  Yet, only 3% said that the Court should ignore it, 18% opted for it to be used only as historical background, and an impressive 79% said that the Supreme Court should “consider it as one of the various factors that should be considered in making the decision.”  So, all in, over 90% of Americans think that the original meaning is at least relevant to the Supreme Court’s decision, with half or more considering it determinative.

That strikes me is as a pretty powerful reason for us to think hard about what the original meaning really is. Many of the debates among originalists center on exactly where we should be looking for that meaning.  I asked the public that question. Offered a series of possible sources, a majority of the public said “yes” or “maybe” to all of these four possibilities: Dictionary definitions; how average voters at the time of ratification understood it; how hypothetical, well-informed ratifiers would have understood it; and the understanding of the framers.  When asked which of these is the most important in the event of a conflict, 66% picked “what the Constitution’s framers intended it to mean.”

Whether the public’s views are important is an interesting question for debate. (For what it’s worth, I believe that they are.) For today, however, I simply wanted to point out that we do have some empirical data, and it speaks pretty clearly.

Details of the Originalism 2012 Survey (along with why I think it is important) can be found here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448431

Around the Web This Week

Some interesting law and religion news stories from around the web this week:

Afrianty, “Women and Sharia Law in Northern Indonesia”

This March, Routledge Press will release “Women and Sharia Law in Northern Indonesia: Local Women’s NGOs and the Reform of Islamic Law in Aceh” by Dina Afrianty (Australian Catholic University).  The publisher’s description follows:

This book examines the life of women in the Indonesian province of Aceh, where Islamic law was introduced in 1999. It outlines how women have had to face the formalisation of conservative understandings of sharia law in regulations and new state institutions over the last decade or so, how they have responded to this, forming non-governmental organisations (NGOs) that have shaped local discourse on women’s rights, equality and status in Islam, and how these NGOs have strategised, demanded reform, and enabled Acehnese women to take active roles in influencing the processes of democratisation and Islamisation that are shaping the province. The book shows that although the formal introduction of Islamic law in Aceh has placed restrictions on women’s freedom, paradoxically it has not prevented them from engaging in public life. It argues that the democratisation of Indonesia, which allowed Islamisation to occur, continues to act as an important factor shaping Islamisation’s current trajectory; that the introduction of Islamic law has motivated women’s NGOs and other elements of civil society to become more involved in wider discussions about the future of sharia in Aceh; and that Indonesia’s recent decentralisation policy and growing local Islamism have enabled the emergence of different religious and local adat practices, which do not necessarily correspond to overall national trends.

Bretherton, “Resurrecting Democracy”

In December, Cambridge University Press released “Resurrecting Democracy: Faith, Citizenship, and the Politics of a Common Life” by Luke Bretherton (Duke University).  The publisher’s description follows:

Resurrecting DemocracyThrough a case study of community organizing in the global city of London and an examination of the legacy of Saul Alinsky around the world, this book develops a constructive account of the relationship between religious diversity, democratic citizenship, and economic and political accountability. Based on an in-depth, ethnographic study, Part I identifies and depicts a consociational, populist and post-secular vision of democratic citizenship by reflecting on the different strands of thought and practice that feed into and help constitute community organizing. Particular attention is given to how organizing mediates the relationship between Christianity, Islam and Judaism and those without a religious commitment in order to forge a common life. Part II then unpacks the implications of this vision for how we respond to the spheres in which citizenship is enacted, namely, civil society, the sovereign nation-state, and the globalized economy. Overall, the book outlines a way of re-imagining democracy, developing innovative public policy, and addressing poverty in the contemporary context.

Belkeziz, “The State in Contemporary Islamic Thought: A Historical Survey of the Major Muslim Political Thinkers of the Modern Era”

In March, I.B.Tauris will release “The State in Contemporary Islamic Thought:  A Historical Survey of the Major Muslim Political Thinkers of the Modern Era” by  Abdelillah Belkeziz (Hasan II University, Morocco). The publisher’s description follows:

The debates on ‘Islam and Modernity’ clearly include in their analysis notions of the State. Abdelillah Belkeziz here charts the development of the concept of ‘the state’ (al-dawlah) in Islamic discourse over the last two centuries. The result is a tour de force survey of the most influential Muslim thinkers of the modern era, which encompasses three successive waves: the modernist trends of the early and later reformers like Sayyed Jamal Eddin Al-Afghani; the dogmatism of ideologues like Hasan Al-Bana; and, the rhetoric of revivalists like the Ayatollah Khomeini. Through this analysis, Belkeziz argues that modern Islamic political thought succeeded in producing ideologies, but ultimately failed to produce a unified theory of state. This work is an essential encyclopedic resource for all scholars and researchers of Political Islam and will become a standard work in the field.

Pasieka, “Hierarchy and Pluralism: Living Religious Difference in Catholic Poland”

In March, Palgrave Macmillan will release “Hierarchy and Pluralism: Living Religious Difference in Catholic Poland” by  Agnieszka Pasieka (Polish Academy of Sciences). The publisher’s description follows:

What is the place of pluralism in the context of a dominant religion? How 9781137500526 does the perception of religion as “tradition” and “culture” affect pluralism? Why do minorities’ demands for recognition often transform into exclusion? Through her ethnography of a multi-religious community in rural Poland, Agnieszka Pasieka examines how we can better understand the nature of pluralism by examining how it is lived and experienced within a homogenous society. Painting a vivid picture of everyday interreligious sociability, Pasieka reveals the constant balance of rural inhabitants’ between ideas of sameness and difference, and the manifold ways in which religion informs local cooperation, relations among neighbors and friends, and common attempts to “make pluralism”. The book traces these developments through several decades of the community’s history, unveiling and exposing the paradoxes inscribed into the practice and discourse of pluralism and complex processes of negotiation of social identities.

The Libertas Project: Year Two

I am delighted to post a notice for two workshops this summer that are part of the excellent Libertas Project, spearheaded by my friend Michael Moreland of Villanova Law School and supported generously by the Templeton Foundation. I was pleased to serve as a moderator (together with Zachary Calo) at the workshop on religious freedom last year, and will do so again this July joined by Zak and Rick Garnett. I have posted details below, but please contact me (or any of the conveners) if you have an interest in participating.

Libertas Project

The Libertas Project at Villanova University School of Law is seeking applications for participation in its 2015 summer workshops on religious and economic freedom. The project will seek to bring together concerns about religious freedom and economic freedom in a framework that situates both topics amid a larger conversation about freedom, law, and virtue. The Libertas Project aspires to broaden the academic and public appreciation for religious freedom as a human good, while also bringing the insights of religion to bear on conversations about economic freedom as an essential component of a free society. A more detailed description of the project’s inspiration and goals is below. The Libertas Project is made possible through the support of a grant from the John Templeton Foundation.

To address these issues of religious and economic freedom, the Libertas Project will host a series of summer workshops at Villanova University School of Law. Each workshop will be comprised of approximately 20 participants drawn primarily from law but also welcoming scholars from related fields (philosophy, political science, religion, business, and economics, for example) as well as judges, policymakers, and journalists. The workshops will be structured around a set of common readings on each topic with group discussions, break-out sessions, and meals in order to foster scholarly networks and collaborative projects among the participants.

The dates for the 2015 summer workshops are July 6-8 on religious freedom and July 13-15 on economic freedom. Participants in the workshops will each receive an honorarium of $1500.

The workshop moderators will be Richard Garnett (University of Notre Dame), Marc DeGirolami (St. John’s University), and Zachary Calo (Valparaiso University) on religious freedom and Thomas Smith (Villanova University) and Mary Hirschfeld (Villanova University) on economic freedom.

The workshops will take place at Villanova University School of Law. Villanova is located 12 miles west of Philadelphia, the fifth-largest city in the United States and the second-largest city on the East Coast. The campus is situated on Philadelphia’s suburban Main Line, and Villanova is easily accessible by train, plane, car, or regional public transportation.

Due to limited travel funds, participants are asked to obtain travel funding from their home institutions, but travel scholarships are available.

To apply, please submit a brief statement of interest (and specifying whether you are interested in the workshop on economic freedom or religious freedom) with a current c.v. to the project leader, Michael Moreland, Vice Dean and Professor of Law at Villanova University School of Law (Moreland@law.villanova.edu) by March 1, 2015.

PROJECT DESCRIPTION

The Libertas Project addresses two topics related to freedom in the context of law and religion in American public life: religious freedom and economic freedom.

Religious freedom and economic freedom, though rarely treated together, illustrate both some of the shortcomings and the possibilities of American intellectual life, most especially in American law and legal scholarship. One of the challenges faced in American legal scholarship and political theory on religious freedom is the reduction of religious freedom to constitutional law, with little engagement with theological arguments or empirical research on religion in American public life. The leading casebooks and materials on law and religion – even those most sympathetic to religious views – often contain little engagement with theological sources. The American legal discourse on religious freedom is dominated by an understanding shaped by the constitutional framers and then worked out in U.S. Supreme Court doctrine. While important, such a focus omits what is often genuinely important about religious freedom and why it is worthy of constitutional protection in the first place. In addition to understanding the constitutional tradition, lawyers and policymakers also need to understand religious questions as they arise across theological traditions as well as in the history of political thought and practice.

At the same time, public discourse about economic freedom tends to avoid engagement with religion, resulting in an unnecessarily cramped view of the possibilities for mutual illumination between economic and religious aspirations. In some contemporary schools of thought, human beings are understood solely in terms of narrow economic motives. But if religion can be understood as a school for the cultivation of right desire for the benefit of individuals and the common good, putting religious traditions in conversation with economic theory and practice is critical to the effort to raise the most important questions about the meaning and purpose of economic activity: How does the cultivation of an entrepreneurial spirit liberate human capital for human prosperity in a good society? How does such a society manage risk and reward? How are economic motivations better understood when we place them in theological and social contexts? What is the relationship of the entrepreneurial spirit to the meaning of justice and equality? What resources might religious traditions bring to bear on the meaning of economic freedom?

The Libertas Project seeks to bring together legal, theological, and philosophical approaches in search of innovative answers to difficult legal and policy questions about human freedom, both economic and religious. With law students, legal scholars, and legal practitioners as one of the primary audiences, the insights produced by the project will inspire in current and future lawyers and policymakers a renewed commitment to both moral character development and free markets. The combination of economic freedom and religious freedom promises a society of responsible persons working toward the common good. In sum, the Libertas Project seeks to foster a greater understanding of the ways religious and economic freedom can bring about the development of character that advances the prosperity and health of the good society.

Bowman, “Cosmoipolitan Justice”

This January, Springer Press will release “Cosmoipolitan Justice: The Axial Age, Multiple Modernities, and the Postsecular Turn” by Jonathan Bowman.  The publisher’s description follows:

Cosmoipolitan JusticeThis book assesses the rapid transformation of the political agency of religious groups within transnational civil society under conditions of globalization weakening sovereign nation-states. It offers a synthesis of the resurgence of Jasper’s axial thesis from distinct lines of research initiated by Eisenstadt, Habermas, Taylor, Bellah, and others. It explores the concept of cosmoipolitanism from the combined perspectives of sociology of religion, critical theory, secularization theory, and evolutionary cultural anthropology. At the theoretical level, cosmoipolitanism prescribes how local, national, transnational, global, and virtual spaces ought publically to engage in transcivilizational discourse without presuming the secular assumptions tied to cosmopolitanism. Employing insights of critical theory, this book offers a micro-level analysis of the pragmatics of discourse of each axial tradition contributing to the role of religion within multiple modernities. While circumscribing the particular historical limits of each tradition, the book extends their internal claims to species universality in light of the potential for boundless communication Jaspers saw initiated with the Axial Age.

Ford, “Jesus Master of Law”

This January, Xlibris Publishing released “Jesus Master of Law: A Juridical Science of Christianity and the Law of Equity” by Roderick Ford (The Labor Ministry).  The publisher’s description follows:

Jesus Master of LawHere, Jesus of Nazareth is presented as we have never witnessed him before—as a legal advocate, as a jurist, and as an interpreter of the Law of Moses. This bold book is an original and revolutionary conceptualization of Jesus as not only a profound religious thinker but also as a preeminent legal theorist. Here we find in Jesus’s teachings and parables the analytical and moral reasoning, which is the foundation of Anglo-American common law, Western civilization, and modern, worldwide, and secular jurisprudence. Jesus Master of Law reminds us that laws, both secular and sacred, can be applied to achieve justice only when they are interpreted through the proverbial prism of righteous and moral objectives.

In Turkey, the Clash of Civilizations Continues

In academic and policymaking circles in the West, one hears a great deal about universal human rights. These rights, it is said, apply to everyone, everywhere; they are inherent in human nature. It’s an interesting idea. The problem is, not everyone agrees. That’s putting it mildly. Whole civilizations reject the Western conception of universal human rights, including, principally, freedom of expression and freedom of religion. We can tell ourselves that the conflict is temporary and superficial, that other civilizations are moving inexorably toward our understanding. We have international agreements! But much suggests the clash is profound and perduring.

Events in Turkey over the past weekend provide more evidence. On Saturday, 100,000 people gathered in the city of Diyarbakir to protest the publication of cartoons of the Prophet Muhammad in the French journal, Charlie Hebdo. One hundred thousand people – that’s hardly a fringe phenomenon. According to an account in a Turkish newspaper, speakers condemned the notion that freedom of expression extended to insults against the Prophet. Protesters held up placards with phrases such as “‘Damn those saying “I am Charlie,” and ‘May Charlie’s Devils not defame the Prophet.’”

These sentiments are not limited to the reaches of Anatolia. Prime Minister Ahmet Davutoğlu personally expressed his support for the protesters. At a meeting of the ruling AKP party in Diyarbakir, he sent greetings to the protesters, to “each and every brother who defends the Prophet Muhammad here.” (Ironically, Davutoğlu represented Turkey at the solidarity rally in Paris the weekend after the Charlie Hebdo attacks).  And, on Sunday, a court in Ankara ordered Facebook to block users’ access to pages containing content deemed insulting to the Prophet. According to the New York Times, Facebook immediately complied.

Of course, not everyone in Turkey endorses these actions, but that’s not the point. Throughout the country, and in many other places across the globe, millions disagree, profoundly, with how the West understands things. They are not about to change their minds. We need to pay attention. The clash of civilizations continues.