Category Archives: Marc O. DeGirolami

Coke on the Virtues of Obedience to the Common Law

Sir Edward Coke was a lawyer, an MP, Attorney General, and Chief Justice of the Court of Common Pleas of the King’s Bench. He is widely considered one of the fathers of the common law. Here is a fragment of the preface to Part Two of his Reports. I was struck by the terms in which he discusses the common law:

To the learned Reader

There are (sayeth Euripides) three Virtues worthy [of] our meditation; To honor God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honor to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speak of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt [MOD trans.: But there are some disdainful types who hate every high calling with which they are unfamiliar, I know not for what reason]. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speak of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England….

Their example [that of the "Sages of the Law"] and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any many of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.

If you observe any diversities of opinion amongst the professors of the Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis [MOD trans.: the vice of man, not of the profession].

New Bill of Rights App!

From the National Archives comes this cool new app, Congress Creates the Bill BoR Appof Rights, for the iPad (h/t Don Drakeman). Pretty neat for learning all kinds of things about the history of the drafting of the Bill of Rights, with markups and other fun stuff. Here’s a description:

Explore the proposals, debates, and revisions that shaped the first ten amendments to the U.S. Constitution. Why did the U.S. need a Bill of Rights? How did Congress produce the Bill of Rights? What would it be like to participate in the process? Dive into these questions and more with this app from the U.S. National Archives.

Center Announces New Student Fellows

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L-R: Prof. Marc DeGirolami, Stephanie Cipolla ’16, John Boersma ’15, Prof. Mark Movsesian

As the academic year begins, we’re delighted to announce the appointment of our student fellows for 2014-2015, John Boersma ’15 and Stephanie Cipolla ’16. John and Stephanie have already been helping with the daily Scholarship Roundup posts, but they’ll be taking on other responsibilities as well. We’re glad to have them with us and look forward to the year ahead.

For more information about the new fellows, please click here.

A Little Political Theology Courtesy of Benjamin Franklin

From his “Petition of the Pennsylvania Society for Promoting the Abolition of Slavery,” presented in the House of Representatives on February 12, 1790:

The memorial respectfully showeth,

That from a regard for the happiness of mankind, as association was formed several years since in this State, by a number of her citizens, of various religious denominations, for promoting the abolition of slavery, and for the relief of those unlawfully held in bondage. A just and acute conception of the true principles of liberty, as it spread through the land, produced accessions to their numbers, many friends to their cause, and a Legislative cooperation with their views, which, by the blessing of Divine Providence, have been successfully directed to the relieving from bondage a large number of their fellow-creatures of the African race. They have also the satisfaction to observe, that in consequence of that spirit of philanthropy and genuine liberty which is generally diffusing its beneficial influence, similar institutions are forming at home and abroad.

That mankind are all formed by the same Almighty Being, alike objects of his care, and equally designed for the enjoyment of happiness, the Christian religion teaches us to believe, and the political creed of Americans fully coincides with the position.

“Foundational Texts in Modern Criminal Law” (available for pre-order)

Foundational Texts in Modern Criminal LawI am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I’ve listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.

Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.

Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

White Reviews The Tragedy of Religious Freedom

very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don’t disagree with anything in it!

And for something rather different (and speaking of Holmes), here’s a column from Reason (whose tagline is “Free Minds and Free Markets”) about tradition whose conclusion is that “We treasure the customs and practices passed down from our ancestors. And we change them anytime we want.” Judge Posner is quoted as saying, “How can tradition be a reason for anything?”

“Creedal Discrimination is Still Discrimination”

A very interesting essay in Christianity Today on the author’s experience at Vanderbilt with its “all comers” policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. Readers may remember that another policy like this was the subject of the complaint in CLS v. Martinez some years ago. The terrible problem that these policies seek to remedy seems to be that people have distinctive beliefs. The policy’s aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:

In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an “all comers policy,” which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)

Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.

In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn’t need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn’t prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.

Law and Religion Moot Court Competition at Touro

From Professor Samuel Levine of Touro Law School comes some information about the impressive looking 2nd Annual Moot Court Competition in Law and Religion at Touro Law School. Details follow.

Touro Law Center is pleased to announce our 2nd Annual National Moot Court Competition in Law and Religion. The semi-final and final rounds of the competition will take place at the Alfonse D’Amato Federal Courthouse, located directly across the street from Touro Law Center in Central Islip, NY. Awards will be presented to individuals and teams for first and second place, for top three best briefs, and top six best oralists. Accommodations will be available within walking distance of the law school and the courthouse. Touro Law is located within an hour of New York City and the metropolitan airports. 
 
United States District Court Judges and Magistrate Judges of the Eastern District of New York in Central Islip will be judging the semi-final rounds. The finals bench will include:
 
Hon. Harris L Hartz, United States Court of Appeals for the Tenth Circuit
Hon. Loretta A. Preska, Chief Judge, U.S. District Court, Southern District of NY
Hon. Kenneth Starr, President and Chancellor of Baylor University, U.S. Circuit Judge for the D.C. Circuit (1983-1989), Solicitor General of the United States (1989-1993)
 
Law Schools interested in participating should contact Jason Prince, Editor-in-Chief at mootcourt@tourolaw.edu<mailto:mootcourt@tourolaw.edu> or by phone at (631) 761-7173 or Associate Dean Myra Berman at mberman@tourolaw.edu<mailto:mberman@tourolaw.edu>.

Conference on International Religious Freedom Photo Gallery

This summer, the Center for Law and Religion co-hosted a conference in Rome, “International Religious Freedom and the Global Clash of Values,” with the St. John’s Center for International and Comparative Law and LUMSA University. We were honored that Pope Francis offered some remarks on religious freedom to kick off the conference. Pictures of various conference-related events can be found below.