Judges Making the Law (With a Blasphemy Discussion)

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  1. Avatar James K
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    Good to see you post here Jon.Report

  2. Avatar Chris
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    Hey Jon, long time no see.Report

  3. Avatar Jon Rowe
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    Hi Everyone: Nice to see you all again.Report

  4. Avatar Jaybird
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    I would probably argue more that America is based more in Enlightenment Values than Christian Values. They certainly don’t map 1:1 but the founders were pleased to conflate them because it’s a great way to get Christians to hop onto the whole “Enlightenment” thing.

    I worry that moving to a Post-Christian attitude will conflate Christian values with Enlightenment ones. This doesn’t worry me so much. It’s the post-post- versions of both that have me freaking out.Report

  5. Avatar Tod Kelly
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    @jon-rowe If possible, I’d ask you to flesh out a bit more in the comments (or another guess post!!!) the bit about prosecutions for blasphemy being secular and not religious (assuming I am understanding that correctly). It seems counter-intuitive enough that it’s not quite sinking into my brain why or how this would be the case.Report

    • Avatar Gabriel Conroy in reply to Tod Kelly
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      I don’t know the answer, but I *think* what he means is that in the early republic, each state could choose to adopt an official religion (whether a sect of Christianity, or “mohametan” or other religion) and once it did, issues of religious conformity (e.g., what is and is not “blasphemy”) becomes a matter of public (read: secular) policy and not a matter of how to save your soul. It’s about respecting the wishes of “the people of Delaware” (for example) and not about

      But then I could be grokking it all wrong, too.Report

    • Avatar Jon Rowe in reply to Tod Kelly
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      I first learned about the blasphemy prosecutions in 2005 with when I first read Berns’ “Making Patriots.” I don’t like to point out my errors; but in the 2007 post I linked to above I made an error and accused Berns of not quite getting his analysis of blasphemy in America right. That’s because I confused Chandler with Ruggles. What made it easy for me to so do was the defendants in both cases said the same thing about Jesus (which I won’t repeat here) that got them in trouble.

      Anyway this is what Berns’ wrote in “Making Patriots” that describes the secular blasphemy rationale, where Church & State are separated and governments’ concerns are consigned to the Earthly realm:

      Liberty of conscience was widely accepted at the time of the Founding, but this did not prevent some jurists and legislatures from insisting, at least for a while (and given our principles it could be only for a while), that Christianity was part of the law, meaning the common law. So it had been in England, and so, it was assumed by some (but not Jefferson), it would continue to be in America. But there was no disagreement about the place of the common law. Indeed one of the first things done by the states after independence was to declare (here in the words of the New Jersey constitution of 1776) that “the common law of England, as well as so much of the statute law, as have been heretofore practiced in this Colony, shall remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter [or constitution].”

      But if the “rights and privileges” contained in the various state charters or constitutions included the right of liberty of conscience, and if, in turn, this right required, in Madison’s words, “a perfect separation between ecclesiastical and civil matters,” what did it mean to say that Christianity was part of the common law? Very little, as it turned out; and it turned out as it had to turn out. Consider, for example, the case of blasphemy in America…. pp. 32-33.

      Berns then notes how blasphemy laws remained on the books, but in post-Founding America, the judges, in maintaining their consistency with the rights of conscience, had to “redefine the offense” to include utterances against any religion that would tend to cause a breach of the peace. In other words, the policy behind the offense was now to protect the peace, not the Christian or any religion. These state courts had effectively “stripped blasphemy of its religious character.” Leading Berns to ask, rhetorically, “who can quarrel over a blasphemy law that protects one and all [religions] alike”?

      The “old school” understanding of blasphemy law was that it protected the “honor” of the Christian religion. The modern, secular understanding was that it protected the civil order. The Ruggles case from NY was more of an old school understanding with Chancellor Kent calling non-Christian religious founders “imposters.”

      One thing I get from Berns and the other East Coast Straussians is that America was founded on radical principles, not unlike France; but we made the best out of them with checks and balances and a slow implementation of them (why our society didn’t go into convulsions). Disestablishment, separation of church and state, secularization, occurred in America in a slow, evolved pace, as it should have.

      I spend so much time on the 18th Century I’ve neglected how those principles evolved in the 19th Century. Kurt Lash has a nice discussion of the evolution of those principles in that Century in the article below (which I’m still digesting).

      http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1133615Report

      • Avatar Murali in reply to Jon Rowe
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        Jon, that paper is a whopping 71 pages long. And I thought philosophers had it bad. Scientists have it easy with research papers usually being about 5 pages.Report

        • Avatar Kim in reply to Murali
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          Depends. Last research paper I read was a cool 31 page survey of 1800’s through 2035 innovation. Long, long read, though.Report

          • Avatar Murali in reply to Kim
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            Then wouldn’t it be a review paper instead?Report

            • Avatar Kim in reply to Murali
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              No, the actual research was in the 2015-2035 stuff… the rest was just “prior history.” I don’t think this actually ran in a journal (they have pagelimits), it was more like a long thesis or something.

              Besides, most of the science papers are so short because they don’t put their code in the paper (good thing too! models are complicated)Report

        • Avatar Chris in reply to Murali
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          Scientists have it easy with research papers usually being about 5 pages.

          Nope. Depending on the discipline, and the journal, papers can range from 3 pages to over 100. And that’s not just review papers: many papers contain multiple studies or detailed descriptions of computational/mathematical models.

          What the sciences have that the humanities generally do not are some pretty strict rules about structure (intro, methods, results, discussion, rinse and repeat) that allows for some amount of skimming or skipping (I generally don’t read intros unless it’s a topic I’m generally unfamiliar with, and I usually don’t care what the authors conclude, so I skim the discussion).Report

      • Avatar Tod Kelly in reply to Jon Rowe
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        @jon-rowe Got it. That makes sense.

        Thanks.Report

  6. Avatar ACIS
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    Rule #1: Easy cases make bad law.
    Corollary #1 to Rule #1: Hard cases make bad law.Report

  7. Avatar DavidTC
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    That section of Berns’ book also discusses the notion that “Christianity” is part of the “common law.” Jefferson didn’t agree; but some other Founders did.

    As far as I can tell, all states mentioned *something* about religion in their constitution already. I mean, yes, most of the time it was explicitly Christian, but almost all of them (most colonies having some history of religious dissents) let people worship the Christian God however they wanted.

    England, let us remember, used their laws about blasphemy mainly *against other Christians*, which is often what drove people the colonies in the first place, so that ended up being exactly what every state constitution specifically disallowed.

    So I’m having trouble seeing any sort of argument that states inherited any blasphemy laws. Those laws, pretty specifically, seemed to be what parts of the state constitution like ‘That all denominations of Christian Protestants in this State, demeaning themselves peaceably and faithfully, shall enjoy equal religious and civil privileges.’ and ‘Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience and reason; and no person shall be hurt, molested, or restrained in is person, liberty, or estate for worshipping God in the manner most agreeable to the dictates of his own conscience, or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.’ were disputing.

    This would seem to be exactly ‘altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter’.

    This is, of course, pretending that courts would ignore the ‘as have been heretofore practiced in this Colony’ part of that law. Even *though* blasphemy laws were on the books of England, and, hence, in theory, applied in England, they basically were not enforced. And some states actually had exceptions to them…New York, for example, had the rights of the Dutch Reformed Church honored when bought from the Dutch.

    There might be a state or two where blasphemy laws logically ended up as part of common law, but it would be the exception instead of the rule.

    Incidentally, http://undergod.procon.org/view.resource.php?resourceID=69 makes for some interesting reading. While the US was not a Christian nation, despite what idiots say, but the *states* were, themselves, very Christian. (Although it’s worth pointing out that most of them got rid of that *before* the 14th amendment made it dead letter.)Report

    • Avatar DavidTC in reply to DavidTC
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      Even *though* blasphemy laws were on the books of England, and, hence, in theory, applied in England, they basically were not enforced

      Obviously I meant ‘…in theory, applied in the colonies…’.Report

  8. Avatar Burt Likko
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    A couple of thoughts, which are somewhat interdependent. And regrets that I didn’t get to this over the weekend when it was posted.

    I was a student of Catherine Fisk when she taught at my law school; at the time she had just become involved with Erwin Chemerinsky, who is now the dean of UC Irvine’s law school. Dean Chemerinsky, in turn, is a leading legal analyst in both academic and popular media, with an unabashedly liberal perspective. It’s entirely appropriate to contrast Chemerinsky to Scalia in that respect, although as a footnote it’s worth noting that the Chemerisnky-Fisk article linked above is from 2005 and was published in the popular press (USA Today) and was not intended to be a particularly sophisticated analysis. Both Chemerinsky and Fisk are more than capable of the kind of deeper intellectual analysis that Justice Scalia offers in his book review.

    But to associate “the common law” with contemporary American liberalism would be a grave, grave mistake. I fear that the structure of Jon’s post associates the means by which judges contribute to the law with ideas and notions on the present-day left in a manner that is easily confusing, particularly to those who do follow politics in the news but are not deeply immersed in the law.

    Nor is the notion of “common law” necessarily an outgrowth of the school of philosophy identified as “natural law,” and “natural law” in turn is not necessarily (although often is) associated with the notion of a divine lawgiver. Rather, it is based on the idea that there is an unchanging, transcendent core to the law, a core that is inextricably intertwined with concepts of morality. So one might base a natural law philosophy upon a Kantian categorical imperative, for instance. And a natural lawyer might eschew the notion that precedents set by past judges are binding upon future decisions, because future cases may present different permutations of the intent of the parties and the effects of the ruling in ways that the past case did not consider. A positivist or a realist, meanwhile, might readily adhere to the notion of binding precedent; the positivist awaiting instruction from the sovereign to change the law before making a ruling contrary to precedent and the realist determining that predictability of the legal system is of greater importance to its users than effecting a fair outcome in the individual case.

    Antonin Scalia himself occupies, and to a large degree personifies, the hybrid of textualism and originalism associated with “conservative” jurisprudence in the contemporary legal world. Recall that for him, the judicial act of interpreting the law and applying it to a particular case sometimes involves a search for the generally-accepted meaning of a word at the time that a law was written. It’s interesting that he delves down into semiotics in the article, as he doesn’t usually get quite that abstract in his casting-about for an exposition on language and communication.

    But this originalist-textualist position is at once vulnerable to two criticisms: first, it can be wielded in an example every bit as subjectively and preferentially as the “natural law” Scalia criticizes — the doctrine of searching for an original meaning of words as an interpretative aid seems to only be invoked in cases where there is a claim that the present-day meaning of the words in the law deviate from the perceived prior understanding of those words, and when the result of a contemporary plain-text analysis is pleasing to the judge, it is easy to say the plain text is sufficient to understand the law and not undergo the often-futile search through history to verify that the meaning of a word as used in 1932 or 1868 or 1794 is indeed functionally the same as it is today. So one would only undertake such an analysis when one wishes to search for a way to rule contrary to the apparent plain meaning of a term — and thus, the doctrine only surfaces when the judge has undertaken that effort in as a result of a preference to reach a particular result.

    Second, Scalia’s claim of “interpreting” the words of the law by way of understanding the meanings of its words and phrases as they were generally understood at the time they were written rather suspiciously mirrors the very natural-law “discovery” which he claims to criticize. A common-law judge with a natural law intellectual background will believe that a search of statutes and past cases will reveal legislators and judges struggling to discern and apply eternal, non-malleable principles of justice, and undertake her own search through the archives to discern those principles for herself as they relate to the matter before her. A Scalian-style judge will believe that a similar sort of academic review of the law will uncover maybe not a glimpse of Holmes’ brooding omnipresence, but rather an expression of some sort of collective political will: the intent of the democracy, the will of the voters, the desires of the people. Different than combing the common law in a search for principles of justice, but it is still the distillation of an idea from the accumulation of academic evidence, and thus it depends greatly upon the academic performing the analysis.

    We also must not forget that even were we to apply the originalist-textualist position Scalia advocates, we are back in the world of natural law, precisely because the authors of our foundational laws during the late Enlightenment were deeply steeped in the notion of natural law as a fundamental aspect of existence. To them, it was “self-evident” that all humans were naturally “endowed” with inherent rights, in much the same way they were endowed with arms and toenails. The theologically-grounded version of natural law which Justice Scalia urges Professor Davis to come out and boldly announce, and persuasively argues that Davis dances around to conform to academic fashion, was a popular but not necessarily exclusive intellectual vision of what the law is and what the law does that existed at the time of the American Revolution and the Federal Era. I say it was not exclusive, because there were other important political and legal thinkers active at the time whose religious beliefs were decidedly unorthodox and in many cases malleable throughout their lives: men like Thomas Paine, Benjamin Franklin, and Thomas Jefferson. Their personal religious identities are important insofar as we may understand their roles as authors and intellectual contributors to the great events of our political, cultural and legal history — although the intellectual battle for various tribes to claim them is, in my opinion, simplistic and driven by a desire to cultivate hero-worship rather than understanding, and ultimately of little legal importance to the extent that we eschew interpretive models such as Scalia’s (which we might very well do were we to adopt morality-driven models like the intensely religious flavors of natural law, which Scalia seems to admire even if he does not quite adopt them).

    Finally, Scalia’s article, and by extension and adoption Jon’s post here, suggests that judges have little opportunity to craft new law through the process of the common law. I’m quite skeptical of this proposition, perhaps because I see the accretion of common law as a constantly-iterative process and view nearly each and every case that judges publish as such a contribution. It’s hard, especially with modern electronic legal research tools, not to see how a concept from one case propagates into successor cases, and how the notions within those cases populate the caselaw — much as the way that a parent has children who resemble her and act like her, but are not her, and those children leave the home and populate their communities. As I see it, judges are engaged in the continued development of the common law every day, whether those judges sit on the Supreme Court of the United States or on a small claims court in Moosepiss, Montana. The intellectual contribution to the development and refinement of the law in a smaller case that stays well within precedent may well be small to the point of being trivial. But it is not nonexistent.

    TL/DR: common law does not mean natural law and neither of those phrases should be associated with either the contemporary political left or right; Scalia’s originalism is congruent with but not the same thing as a theologically-based natural law; and I say that judges nearly everywhere create law nearly every day, and that it’s an undramatic and incremental process which, unless it is done very poorly, is not at all cause for concern to pretty much anyone.Report

    • Avatar Tod Kelly in reply to Burt Likko
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      This was a tremendous comment.Report

    • Avatar zic in reply to Burt Likko
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      Burt Likko:
      A couple of thoughts, which are somewhat interdependent. And regrets that I didn’t get to this over the weekend when it was posted.

      But this originalist-textualist position is at once vulnerable to two criticisms: first, it can be wielded in an example every bit as subjectively and preferentially as the “natural law” Scalia criticizes — the doctrine of searching for an original meaning of words as an interpretative aid seems to only be invoked in cases where there is a claim that the present-day meaning of the words in the law deviate from the perceived prior understanding of those words, and when the result of a contemporary plain-text analysis is pleasing to the judge, it is easy to say the plain text is sufficient to understand the law and not undergo the often-futile search through history to verify that the meaning of a word as used in 1932 or 1868 or 1794 is indeed functionally the same as it is today. So one would only undertake such an analysis when one wishes to search for a way to rule contrary to the apparent plain meaning of a term — and thus, the doctrine only surfaces when the judge has undertaken that effort in as a result of a preference to reach a particular result.

      There is some good reason for this; as meanings do change, and failure to understand that can also be used manipulatively. I ran into that reporting here in Maine, with the term ‘assess,’ as in to assess property taxes. Our state constitution directs each town’s tax assessors to perform an assessment once every ten hears. Today, that’s often used by some town leaders as reason to hire an professional assessor and redo the town’s tax base. (Over time, I’ve noticed that this typically happens at the peak of a local real estate boom, when newer buyers think they’re overpaying, fwiw.) But that’s not the legal structure to compel a revaluation in a town; rather, it’s state revenue sharing, which drops when 75% of property valuations are not a ball-park value; and the formula for decreases in state revenue drive down a town’s amount of revenue sharing as that imbalance grows. That’s actually a pretty good tool; it works well at keeping taxes and property values in line.

      The original instruction to ‘assess’ meant to make sure the property actually got registered on the tax rolls; once every ten years, you had to make sure each plot of land was contributing it’s fair share to the common weal. Laws, since that time, require more timely registration of property deeds on the town and county books, so the mandate to assess is somewhat outdated. But I’ve repeatedly heard (and once, mistakenly wrote,) that it meant towns had to go through the reappraisal process ever decade, and this is not so. But that, by modern usage, is what our constitution tells us to do.Report

      • Avatar Burt Likko in reply to zic
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        My goodness, this is a marvelous example of precisely what I was writing about! I notice that the Assessor must reappraise the property once per decade by operation of law and not merely by custom — notwithstanding the evolution in the generally-understood meaning of the word “assess.” Nor is this the result of common law (what a critic would call “judicial fiat”) or a proclamation that a deep principle of justice has been “found,” but rather the result of the practical day-to-day discharge of governmental function.Report

        • Avatar Jon Rowe in reply to Burt Likko
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          Because this is about “theory” the issue may not be resolvable, but my post was meant to be more of a descriptive teach the controversy piece than a prescriptive one. The controversy was alive in 2005 and is alive today.

          (This piece actually recycles some of my blog material from 2005 when the articles were current.)

          Prescriptively, I’m closer to Randy Barnett and I suppose Prof. Smith than to either Scalia or Berns. The more traditional natural lawyers (for instance, folks sympathetic to Thomism) take issue with Randy Barnett’s lack of metaphysics in his understanding of the natural law.

          However, his philosophical notion of “consent” after Lysander Spooner … that’s what convinces me. The dead hand of the past is a legal fiction I can’t endorse (I suppose in the sense that those who don’t believe in natural law or natural rights can’t or won’t endorse such as a legal fiction).Report

    • Avatar Jon Rowe in reply to Burt Likko
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      Is the title of your blog taken from Posner’s classic article that responds to Berns’ classic?Report

    • Avatar Jon Rowe in reply to Burt Likko
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      “Finally, Scalia’s article, and by extension and adoption Jon’s post here, suggests that judges have little opportunity to craft new law through the process of the common law.”

      Whether they should have the opportunity is perhaps what is debatable. Though, I agree that they do currently have the ability in the sense that legislatures write codes in various degrees of generality that serves to kick the can to judges to fill the gaps in. I think in Scalia’s first best world the way he would constrain judges would serve as disincentive for legislatures to do this.Report

  9. Avatar CK MacLeod
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    One question I ask: According to Scalia’s theory, was there ever a “golden age” in America where judges weren’t improperly making the law? Scalia seems to concede that prior to Erie, when judges more often “made law” under the auspices of the “common law,” judges engaged in something whose justificatory foundation was as solid as that of “Divine Right of Kings.” And of course, we know that the 20th Century is the hallmark of “judicial activism.”

    Seems Scalia is saying just the opposite as quoted: That “judge-made law” disappeared with the advent of “modernity,” completed by around 1939 in this rendering. Not his usual position, or not the type of position usually attributed to him, but makes sense in relation to his theory of the law as I understand it. In other words, that “golden age” is “now,” or the present era after 1939, when the process of maturation of legal practice, as the replacement of arbitrary realism by a realized legal idealism, had been sufficiently elaborated. What robs our golden age of its potential luster would, in this theory, especially be the efforts of nominal liberals to smuggle “activist-made law” into the ideal-legal system.Report

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