Category Archives: Marc O. DeGirolami

Originalist Fusionism

Here’s something not right down the law and religion fairway, but certainly somewhere in the first cut. The success of original meaning in displacing original intent as the basis for originalist jurisprudence is well known. Original meaning is widely thought to avoid some of the methodological difficulties associated with original intention. And several theorists believe that original meaning is both more politically legitimate and truer to the activity of legal interpretation than original intention.

Yet recently, something of an intentionalist revival has come on the scene. Note that the revival is almost always inclusive of original meaning: the claim is not the mirror image of the new originalist claim–i.e., that original meaning should displace original intention completely. Instead, it is that the exclusion of original intention entirely either leaves originalism incomplete or has had some other ill effects on originalism. The new intentionalism therefore could be plausibly described as a fusionist project–bringing together considerations of original meaning and original intent as both relevant.

Exhibit A: Donald Drakeman’s and Joel Alicea’s work on the limits of the new originalism. What happens when originalist materials point to two or more equally persuasive original public meanings?  The authors discuss a case from 1796 — Hylton v. United States — which involved the constitutionality of a federal tax on carriages. The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South. The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.”  The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems, ratification materials, congressional debates, and so on. Hamilton won the day, arguing that Adam Smith’s definition of a tax in The Wealth of Nations “was probably contemplated . . . by [the] Convention.”  The authors note this as an example of original intentions, and they also emphasize that the three opinions in the case all focused to varying degrees on framers’ intentions.  The reason for this focus is best summarized by Justice Paterson: “the natural and common, or technical and appropriate, meaning of the words, duty or excise, is not easy to ascertain.”  And the authors go on to argue that recourse to original intent is a perfectly reasonable move when original meaning yields equally plausible but conflicting understandings.  The authors call it original intent as tiebreaker: “when the meaning must be sought outside the corners of the constitutional text, why not opt for answering the question ‘What were the framers actually trying to accomplish in using this language?’ rather than letting Samuel Johnson . . . or Hans-Georg Gadamer . . . make the final determination?” And it might be quite common that originalist materials would point to two or more plausible meanings of a particular clause. See, for example, the Establishment Clause.

Exhibit B: Steve Smith’s new post at the Liberty Law blog on the shortcomings of the new originalism. Smith focuses on the new originalism’s complete dissociation of original meaning and original expected applications, which he argues has had the effect of depriving originalism of some of its central political virtue. He writes:

At bottom, after all, the basic idea was, and is—or should be—that “We the People” are entitled to govern ourselves. And for that to happen, we need a process in which we can intelligently decide whether or not to enact a constitutional provision on the basis of an understanding of what the provision will and will not do—of what its consequences will be. To be sure, the People can’t reasonably expect to foresee every little contingency and every specific application of our enactments. But if a constitutional provision ends up having far-reaching consequences that its enactors never intended—that they might have found shocking, that if foreseen might have led them not to enact the provision at all—then not only democracy but also basic rationality are thereby betrayed.

We are then being governed, in the name of the Constitution, by something that “We the People” didn’t think we were approving and perhaps never would have approved. Adopting a constitutional provision becomes less like intelligent, rational self-governance and more like throwing darts in the dark: we adopt a constitutional provision, but it’s anybody’s guess what the provision may turn out to mean.

Smith suggests at the end of the piece that it might be good for “some new movement to emerge devoted to the true criterion for constitutional interpretation,” and he refers to an unpublished paper of his dealing with a “maker-meaning nexus.” I haven’t read the piece, but it sounds very much like a kind of originalist fusionism. One might even say that something like original expected applications (drawn from intentionalist sources) could be used as a side-constraint on original meaning. That side-constraint could operate only in cases of ambiguity (a la Alicea/Drakeman) or as a general restraint on it.

I could list other exhibits, and there are other important intentionalist champions out there, probably none more interesting that Richard Ekins (though my tentative sense, subject I hope to reader correction, is that Professor Ekins’s writing has not taken a position on intentionalism in the originalism debates). But I wonder whether originalist fusionism (or originalist fusionisms of various kinds) might be on the way.

Liberty Fund Comments on Hobby Lobby

I have a comment on the Hobby Lobby case over at the Liberty Fund’s blog in which I offer some speculations about the case (I do not know that they are “deeper meaning” speculations; they’re just some thoughts). There you will also see other good comments on the case by former CLR Forum guest Steve Smith, John McGinnis, Peter Lawler (with whom I strongly agree about judicial minimalism), and Hadley Arkes.

Podcast on Hobby Lobby

In our latest podcast, Mark and I discuss yesterday’s decision in Burwell v. Hobby Lobby Stores, Inc., the contraception mandate case. We summarize and explain the background, the holding, and the reasoning of the case. We also consider possible implications for future religious freedom challenges.

Nelson, “The Royalist Revolution: Monarchy and the American Founding”

Here’s one I will be sure to pick up–Eric Nelson’s (Harvard University) The The Royalist RevolutionRoyalist Revolution: Monarchy and the American Founding published by Harvard University Press later this year. Perhaps not straight down the law and religion fairway, but this fascinating looking book may shed a little ambient light on such issues as the framers’  intent as to the meaning of the religion clauses. The publisher’s description follows.

Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our “founding fathers” saw themselves as rebels against the British Parliament, not the Crown. The Royalist Revolution interprets the patriot campaign of the 1770s as an insurrection in favor of royal power—driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.

Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority—John Adams, Alexander Hamilton, James Wilson, and their allies—returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings.

Schull, “Prisons in the Late Ottoman Empire”

In May, Oxford University Press published a very interesting looking book at the Prisons in the Late Ottoman Empireintersection of religion and criminal law, Prisons in the Late Ottoman Empire: Microcosms of Modernity, by Kent F. Schull (Binghamton University). The publisher’s description follows.

Contrary to the stereotypical images of torture, narcotics and brutal sexual behaviour traditionally associated with Ottoman (or ‘Turkish’) prisons, Kent F. Schull argues that these places were sites of immense reform and contestation during the 19th century. He shows that they were key components for Ottoman nation-state construction and acted as ‘microcosms of modernity’ for broader imperial transformation. It was within the walls of these prisons that many of the pressing questions of Ottoman modernity were worked out, such as administrative centralisation, the rationalisation of Islamic criminal law and punishment, issues of gender and childhood, prisoner rehabilitation, bureaucratic professionalisation, identity and social engineering.

Juxtaposing state-mandated reform with the reality of prison life, the author investigates how these reforms affected the lives of local prison officials and inmates, and shows how these individuals actively conformed, contested and manipulated new penal policies and practices for their own benefit.

Pope Francis’s Remarks on Religious Freedom for Our Conference (DeGirolami trans.)

I took a shot at translating Pope Francis’s remarks on religious freedom, which he addressed to the participants at our conference on international religious freedom. I have tried to be faithful to the text, sacrificing a bit of readability. I have done this in part because some partial translations I’ve seen are not true enough to the original, even if the resulting translation here still leaves some open spaces in meaning (which, at any rate, should not be filled by the translator). Here is the original in Italian. I’ve also got a few comments at the end of the translation.

I welcome you on the occasion of your international conference, dear brothers and sisters. I thank Professor Giuseppe Dalla Torre for his courteous words. 

Recently the debate about religious freedom has become very intense, asking questions of both governments and religious denominations. The Catholic Church, in this respect, refers to the Declaration Dignitatis Humanae, one of the most important documents of the Ecumenical Council Vatican II.

In effect, every human being is a “seeker” of truth about his own origins and his own destiny. In his mind and in his heart arise questions and thoughts that cannot be repressed or suffocated, inasmuch as they emerge from the deeps and are by nature connected with the intimate essence of the person. These are religious questions and they demand religious freedom to manifest themselves fully. These questions seek to shed light on the authentic meaning of existence, on the ties that connect it to the cosmos and to history, and they mean to pierce the darkness by which the human condition would be surrounded if such questions were not asked or if they remained answerless. The Psalmist says: “When I see your heavens, work of your fingers/ the moon and the stars that you have fixed, / what then is man that you would remember him, / a son of man that you would care for him?” Psalms 8: 3-4.

Reason recognizes in religious freedom a fundamental right of man that reflects his highest dignity, that of the capacity to seek the truth and to adhere to it, and recognizes in that right an indispensable condition in order to deploy his own potentialities. Religious freedom is not only the freedom of a thought or of a private sect. It is freedom to live according to ethical principles consequent to discovered truth, whether privately or publicly. This is a great challenge in the globalized world, where weak thought—which is like a disease—lowers the general ethical level, and in the name of a false notion of tolerance ends by persecuting those who defend the truth about man and that truth’s ethical consequences.

Legal regimes, national or international, are called to recognize, guarantee, and protect religious freedom, which is a right that inheres intrinsically in the nature of man, in his dignity as a free being, and is also an indicator of a healthy democracy and one of the principal fonts of the legitimacy of the state.

Religious freedom, implemented in constitutions and in laws and translated into coherent behaviors, favors the development of relationships of mutual respect among the different faiths and their healthful collaboration with the state and political society, without confusion of roles and without antagonisms. In place of the global conflict of values, coming from a nucleus of universally shared values, a global collaboration in view of the common good becomes possible. 

By the light of the acquisitions of reason, confirmed and perfected by revelation, and of the civil progress of peoples, it is incomprehensible and worrisome that, even today, in the world there remain discriminations and restrictions of rights for the sole reason of belonging to and professing publicly a certain faith. It is unacceptable that true and actual persecutions exist for reasons of religious membership! And wars too! This wounds reason, attacks peace, and humiliates the dignity of man.

It is a motive of great pain for me to observe that Christians in the world suffer the largest number of such discriminations. Persecution against Christians today is even more powerful than in the first centuries of the Church, and there are more Christian martyrs than in that era. This is happening more than 1700 years after the edict of Constantine, which granted freedom to Christians to profess their faith publicly.

I hope profoundly that your conference illustrates with depth and scientific rigor the reasons that today oblige the legal order to respect and defend religious freedom. I thank you for this contribution. I ask you to pray for me. From my heart I wish you the best and I ask God to bless you. Thank you.

Some brief thoughts:

1. A note on the fourth paragraph with Patrick Brennan’s good questions in mind. According to my translation, the Pope did not say that “every person has a right to seek the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.” The full paragraph fragment in Italian is:

La ragione riconosce nella libertà religiosa un diritto fondamentale dell’uomo che riflette la sua più alta dignità, quella di poter cercare la verità e di aderirvi, e riconosce in essa una condizione indispensabile per poter dispiegare tutta la propria potenzialità. La libertà religiosa non è solo quella di un pensiero o di un culto privato. E’ libertà di vivere secondo i principi etici conseguenti alla verità trovata, sia privatamente che pubblicamente.

The phrase in question, as well as the entire paragraph fragment, is more faithfully translated as “discovered truth” rather than “the truth that one has found” ; “discovered truth” refers back to the same truth that is being sought for in the previous section of this paragraph.

2. Note the reference to the “global clash of values” in paragraph six–a specific comment on our conference–and the Pope’s statement that such a clash can be overcome. That struck me as relevant to the discussion that Tom Berg and I have been having here, here, and here.

3. Nevertheless, in spite of his optimism about the prospects for religious freedom, the Pope expresses great distress about the plight of Christians in the world today, as can be seen in the paragraphs toward the close of the speech.

Reflections on “International Religious Freedom and the Global Clash of Values”

Mark has noted the important and interesting talk that Pope Francis gave about the condition of religious freedom around the world–a very fitting address inaugurating our conference in Rome, “International Religious Freedom and the Global Clash of Values.” It really was quite special and memorable to have the Pope give remarks on a subject that we study here at the Center, at an audience we attended, for a conference that we organized. I thought to add a few thoughts about some of the themes that emerged from the conference presentations.

The keynote address was delivered by the Berkley Center’s Tom Farr, whose primary claim was that in order for international religious freedom to thrive as a human right, we need a deeper grounding–both principled and pragmatic–of the importance of the right of religious freedom as both an anthropological reality and as a practical necessity. I had the honor of moderating Tom’s talk and asked him whether in this particular climate what was needed was a thicker account of religious freedom or instead an (even) thinner account. He gave a thoughtful answer reflecting both the need for deep structures of justification and the difficulty of achieving consensus about them.

The first panel concerned the politics of international religious freedom and included the United States Ambassador to the Holy See, Ken Hackett, the United Nations Special Rapporteur on Freedom of Religion or Belief, Heiner Bielefeldt, and Pasquale Annicchino of the European University Institute. It was in Dr. Bielefeldt’s talk that a useful tension began to emerge among some of the speakers–between those who were bullish or optimistic about the prospect that international law can effectively promote religious freedom and those who were a little more skeptical. Dr. Bielefeldt falls into the more optimistic camp–a good thing indeed, given his position. He emphasized the difference between the promotion of religious freedom in order to advance civic peace, on the one hand, and its promotion in order to vindicate a basic human right, on the other. Here I was reminded of the controversial “civic peace” justification in the American law of religious freedom.

The second panel dealt with comparative perspectives on international religious freedom. The perspectives compared included those of the member states of the Council of Europe and of Italy specifically. Here I was particularly interested in Marco Ventura’s lucid presentation about the difference between divergent and convergent approaches to religious freedom among and across European member states. Professor Ventura described the move toward convergence and argued for even greater convergence than has already been achieved. I had some questions about this coming from a country that has also struggled with the issue of convergence and divergence in the constitutional law of religious freedom. Here again, the tension between globalism and regionalism was in evidence in a slightly different way.

The third panel concerned Islamic and Christian perspectives on international religious freedom, and included presentations by Abdullahi Ahmed An-Na’im, Olivier Roy, and Nina Shea. Here the primary point of tension involved the causes or roots of religious persecution of these two major religious groups. And here, too, there was skepticism, principally from Professor An-Na’im, about the efficacy of human rights regimes to protect religious freedom. “There was a world before international human rights, and there will be a world after international human rights,” he said.

In all, a very rewarding set of presentations.

Drakeman, “What’s the Point of Originalism?”

A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism–three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).

While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.

First, the titular question. The idea here is that “the point”–or at least one point–of originalism is to persuade the public of the court’s decisions, and more generally of the court’s legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.

Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don’t. Opinions are not constitutionally mandated. The Constitution speaks in terms of “the judicial power” and judicial “offices.” But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation–devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).

Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. He is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism’s value. I think that sort of account of originalism’s worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.

Was Madison Right? Shiffrin on DeGirolami on Roy

The eminent First Amendment scholar (and my friend) Steve Shiffrin has a smart post disagreeing with my own criticisms of Olivier Roy’s column a few days ago concerning the European political right and its nominal association, but substantive dissociation, with the major Christian churches of Europe. Actually there is not much to disagree with in Steve’s post: insofar as my post suggests that the problems that attend church state associations simply have no application in Europe, surely Steve is right to object. Here are just a few additional ruminations in response:

First, I take Steve’s post to be in some measure a friendly amendment to my own. The  principal point I wanted to make about Professor Roy’s column is that to the extent that church-state association or connection is a problem in Europe, that is nothing new and has little to do with today’s particular political trade winds. So that while the contemporary political right makes for a fat target, Professor Roy’s real objection is to the larger model of church-state relations that has predominated in Europe (for good and, as Madison had it, for ill) for the hundreds of years that preceded the last handful. Steve’s post is, I think, consistent with this criticism.

Second, Steve’s post is also a reminder to me that the strength or vigor of a religious tradition is itself a contested concept. A highly Protestant or Evangelical view of religion’s core or essence will see weakness in associational or public institutional characteristics and strength in individual commitment and the purity of interior zeal (I note that Steve cites Stanley Hauerwas!). Here’s some of what I wrote a few months ago (in response to George Will) about the claim that separationism must always and necessarily strengthen religion, much of which seems applicable here too:

The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris)…. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”

Notice also the individualistic current on which the claim [of religious strength's source in separationism] rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment…. The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations….

But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable….about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.

I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.

If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.

I take all of these points to be consistent with Steve’s final paragraph, in which he writes: “The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful.” Quite so.

Finally, a friend wrote to me indicating that he was dubious that “separationist” was a proper description of Professor Roy’s own views. That’s an interesting observation as well. I made the association because separationism has a long and rich history in this country. It is a view that proceeds in part from the position that the mingling of church and state is a corrupting force for both and it maintains that the cultural and identitarian features of religion which can permeate the political sphere are not a positive thing for either religion or government. I found this latter theme to be very much emphasized in Professor Roy’s piece; indeed, I found it to be crucial to the claims he makes. But separationism is an American phenomenon. And it may be difficult to transplant the flora of particular, culturally contingent church state arrangements to exotic soils and expect them to blossom in quite the same ways.

From the files of Secretary of Transportation S. Panza

Administrative law at its best.

No Tilting