Wednesday, April 26, 2017

The Revolution Revised: Gay, Black, Female, Marxist

Edward Rothstein, critic-at-large of the WSJ, reviews America's first museum of the Revolution. O'Sullivan's Law continues unabated.




Philadelphia—

Opening on April 19, the anniversary of the 1775 Battles of Lexington and Concord, the museum’s building, designed by Robert A.M. Stern Architects (RAMSA), encompasses 118,000 square feet, with 32,000 square feet devoted to exhibition and theater space offering artifacts (flints used to fire muskets at British troops, the first newsprint Declaration of Independence) along with interactive touch screens, life-size sculpted figures arranged in historical tableaux, and children’s exhibits. The American Revolution has been given a state-of-the-art home blocks from Independence Hall and other museums chronicling the American experience.





But why has a museological debut taken so long?

Adding to complications, the Revolution has an almost sacral status associated with exceptionalism: The U.S. is the first nation created around a set of ideas. But in recent years this status has come under attack. How can the Revolution claim symbolic power when the early republic systematically overlooked half the human race by gender, and counted the enslaved as worth—in the Constitution—but three-fifths of a free man?
Such is the political landscape in which the new museum has come into being, its content overseen by its vice president of collections, exhibitions and programming, the historian R. Scott Stephenson, with Philip C. Mead as director of curatorial affairs and chief historian. The result is provocative, at times compelling—but also often skewed by contemporary tensions.

At first the account might seem traditional. At the climax of one cinematic program, the lighting shifts and the screen turns translucent, revealing the headquarters tent in which George Washington spent the war from mid-1778 until 1783. It had been in the Valley Forge Historical Society’s collection (which was entirely donated to the museum) and is now meticulously restored in this tribute to Revolutionary heroism.
But historical scholarship has become vastly more inclusive. So we are also reminded here not just of higher principles but of how they fell short for those who were enslaved—some 400,000 in 1776 growing to nearly four million by 1860—or for those who preceded the colonists, American Indians. Those histories—along with accounts of women’s roles—are part of this chronological narrative. One tableau shows an African-American redcoat—freed by serving in the British army—speaking with a slave who has not yet decided whom to support. A gallery devoted to New York’s Oneida includes life-size figures, voices in dialogue and a film evoking the tribe’s debate over allegiance (Washington said the Oneida “manifested the strongest Attachment to us”).
This accompanies an attempt to de-sacralize the Revolution. It is no longer portrayed as a struggle between colonists who were either far-seeing patriots or traitorous “loyalists.” The Stamp Tax is portrayed as unexceptional. Examples are given of “propaganda” from both sides. This Revolution poses dilemmas, not doctrinal clarity.
This strengthens the history but weakens the event’s symbolic power. And though much is still excellent (including a map tracing the war’s New Jersey battles in the winter of 1776-7, the armies’ movements represented by moving lights), a price is paid. What scenes, for example, are dramatized by tableaux? The Oneida debate, the African-American conversation about loyalty, a fight among Washington’s soldiers, Loyalist cavalry battling for the British—images having less to do with the war’s significance than with today’s preoccupations with identity-based tensions.
Inclusiveness can also create strange proportions. Why do we learn far more about Baroness von Riedesel—“one of perhaps a thousand women” who followed the British army—however impressive she was during the Saratoga Campaign, than we do about Gen. John Burgoyne, whose defeat in the that campaign upset British hopes? Why is Mercy Otis Warren, “perhaps the leading female political writer of the colonial resistance,” whose writings are said to have “galvanized American colonial protests,” given more attention than the Federalist Papers, with their fundamental arguments about the future design of the republic by Alexander Hamilton, James Madison and John Jay ?
The Revolutionary era encompassed some amazing innovations: “the first written constitution in the history of the world” in 1776 and, in 1775, the first anti-slavery society in history, founded in Philadelphia. But such details remain isolated. The exhibition tells us more about how the Revolution fell short than about how it transformed possibilities (the historian Alan Taylor might be happier here than Gordon S. Wood even though Mr. Wood is a member of the board). In one instance, curatorial taste turns truly bizarre: A display about “laboring men” seeking equality shows us a farmer’s sickle and a shoemaker’s hammer forming the icon of the old Soviet Communist Party.
There is, in fact, a recurring tilt leftward here. Thus, while the closing film properly treats the Revolution as a continuing project, finding extensions in civil-rights movements for African-Americans, gay people and women (and less properly in associating “Occupy Wall Street” demonstrations with “the fire of the Revolution’s promise”), it doesn’t recognize other aspects of that tradition: the importance of individual liberties, the inevitable messiness of the democratic process, and the exceptionalism that yet remains.

—Mr. Rothstein is the Journal’s Critic at Large. Appeared in the Apr. 13, 2017, print edition.

Sunday, April 23, 2017

‘Harvard Crimson: parchment MS of Declaration found in U.K.’

     
From The Harvard Crimson:

Two Harvard researchers have uncovered a second parchment manuscript of the Declaration of Independence—the only additional manuscript of its type ever to be found.

University Professor Danielle Allen and Emily Sneff, research manager of the Declaration Resources Project found the document, which Allen says dates to the 1780s and was likely produced for the Constitutional Convention. “No one has ever been aware of its existence,” she said. “From the point of view of thinking about American history, it's significant.”

According to a press release, the parchment, designated as “The Sussex Declaration,” is housed at the West Sussex Record Office in the United Kingdom and likely once belonged to the Third Duke of Richmond, who supported the colonists who rebelled against Britain.

Allen and her team believe the “leading possibility” for the parchment’s origin is that it was commissioned by Continental Congress delegate—and later Supreme Court Justice—James Wilson or one of his allies in order to advocate for the Constitution.

Sneff said that she uncovered the parchment in August 2015, after seeing a catalogue entry in the United Kingdom's National Archives for a manuscript of the Declaration on parchment. She and Allen soon realized its unique character.

Allen said the parchment “sheds light” on Wilson, who was “more important than people have realized.”

Most significantly, the parchment’s signatures are not grouped by states, as they are in the original parchment manuscript.

“The team hypothesizes that this detail supported efforts, made by Wilson and his allies during the Constitutional Convention and ratification process, to argue that the authority of the Declaration rested on a unitary national people, and not on a federation of states,” the press release said.

Additionally, the phrase “pursuit of happiness” is followed by a dash only, without a period.

Allen, a scholar of political theory and classics, established the Declaration Resources Project after writing her 2014 book “Our Declaration: A Reading of the Declaration of Independence in Defense of Equality.”

According to its website, its mission is to “create innovative and informative resources about the Declaration of Independence.”

“There are still questions to be answered about the text itself, the signers, and even how news of the Declaration spread around the new United States and eventually the world,” the website says.

Allen and Sneff are presenting their paper on the parchment at a conference at Yale University today.


Links added to the Crimson story by the blogger.
     

Sunday, April 16, 2017

When Historians Attack: Mark Noll, Part Deux

Mark A. Noll, who started as a professor at conservative evangelical gold standard Wheaton College and achieved his largest notoriety for his acidic takedown of his co-religionists, The Scandal of the Evangelical Mind [“The scandal of the evangelical mind is that there is not much of an evangelical mind”], has now become ensconced as the gold standard on early American religious history on his throne at putatively Catholic University of Notre Dame.

I registered my own objection to Noll's approach here, that he may conflate his historian hat with his theological one--with his left-liberal sentiments coloring both--but this broadside on similar grounds from one Glenn Moots of tiny Northwood University makes me look like a pussycat.



In the Beginning was the Word: The Bible in American Public Life, 1492-1783 by Mark A. Noll, Oxford University Press, 448 pages, $29.95
Notre Dame historian Mark Noll recently released the first of three promised volumes chronicling the use of the Bible in American public life. In the Beginning Was the WordThe Bible in American Public Life, 1492-1783 follows cultural and theological movement over three centuries: from the “Bible under Christendom,” to the “Bible over Christendom,” and finally to the “Bible against Christendom.” Unfortunately, Noll’s reliance on a reductive caricature of Protestant political theology causes him to give a false impression of how most colonial American Protestants deployed sacred and secular sources in their political thought. The result is a work of history whose questionable methods and underlying assumptions are every bit as telling—perhaps more so—than the historical chronicle itself.
...
But more pertinent to Noll’s charge against Allen, Biblical exegesis in favor of resistance and republicanism existed in America and Britain long before supposedly corrupting influences of “Whiggism” or “the Enlightenment” came on the scene. British Protestant arguments for resistance and revolution were advanced first by Marian exiles (who took some cues from the Lutheran Torgau and Magdeburg Declarations) and then by Noll’s ideal biblicists—the Puritans! (It must also be noted that all Protestant political arguments owed a debt to medieval precedent, too.)

When Massachusetts Bay colonists faced invasion from England in 1634, an invasion they feared was intent on taking their charter and imposing an Anglican establishment, their justification for armed resistance included both scriptural and legal arguments. There was not yet an “Enlightenment” to corrupt the supposedly “proper” reading of Romans 13 as unconditional obedience—just as there had been no Enlightenment to inspire the Roman Catholic conciliarists, the Marian exiles, or Cromwell’s New Model Army. Why, therefore, does Noll so readily charge these “Whigs” or “patriots” with using “Scripture to clothe what opposition politics created”? Noll’s insistence on the American Revolution as a departure from Protestant biblicism also implies a preference for pacifism. Noll writes, “Among the authors who did seek direct biblical guidance, Christian pacifists stood out by invoking the sacred page to defend positions that had been derived originally from Scripture.” However, wasn’t classical just war theory largely owed to Christendom?
We want Professor Noll to keep his historical studies coming, but one wonders how he can insist on dividing wheat from chaff in the Bible’s proper use. Will Noll cast abolitionists as biblicists, given that many of their polemics resemble the politicized ravings of the Revolution’s patriot ministers, whom Noll scorns? Will every war be condemned if its proponents used the Bible to justify it? What will Noll make of the civil rights era? Shouldn’t its wedding of political ideology (the Declaration of Independence or nonviolent direct-action) to the Bible—particularly in the work of Martin Luther King, for example—be due the same criticism he levels at the Whigs of the mid-eighteenth century who defended British rights and liberties?
Ideally, Noll will settle into simply telling this long and difficult story of America’s relationship with the Bible, and not seek to impose ahistorical categories on its use in public life.

Saturday, April 15, 2017

She's BAAACK!!!!

Chris Rodda that is. Doing what she does best. See here. A taste:
The problem with Barton’s so-called Jefferson quote? Well, Jefferson wasn’t talking about immigrants. He wasn’t even talking about ships coming to America from other countries. He was talking about the exact opposite — ships that were sailing from America to Europe!

The quote that Barton butchers so completely to make it say the exact opposite of what Jefferson was actually talking about comes from Jefferson’s 1805 message to Congress (what we today call the State of the Union address).
At the time there was an intense fear of yellow fever in Europe, with recent yellow fever epidemics, particularly devastating in Spain, having killed thousands of people. The obsessive fear of the disease among Europeans, which was causing ships sailing into European ports to be quarantined and their crews and passengers to be subjected to absurd medical tests, was described by Washington Irving in his Notes and journal of travel in Europe, 1804-1805, in which he recounted what he experienced upon his arrival at the Sicilian port of Messina in early 1805:

....

Thursday, April 13, 2017

On the Corruption of the Social Sciences

Writer James DC Walker limns the current crisis in his recent essay Conservatives Aren’t the Only Voices Silenced by Academia’s Intellectual Orthodoxy--it's not just that ideologically conservative voices are being suppressed by the scholarly academy [although that's certainly true]. No, it's the hermeneutics that are the problem. It's one thing that the prevailing conclusions may be ideologically biased, quite another that the method of pursuing them makes it impossible to come to any other conclusions.

The new way of "doing history" isn't just questionable in the validity of its new horizons, its biggest crime is that it closes off all the other ones.

This revolution has been political. Entire disciplines—Literature, Anthropology, Sociology, and the various interdisciplinary programs that end in the word “Studies” – have all become more strongly associated with a particular species of left-wing interpretation that now influences the broader discourse in journalism and on social media. In some departments, the social categories of analysis—race, class, and gender—have attained complete hegemony. The most recent convention of the Modern Language Association, the most prominent organization associated with the study of language and literature, hosted three times as many panels on post-colonialism as it did on Shakespeare. Like so many other areas of study, a consensus has been reached in English and Comparative Literature that the aims of one’s research should be about more than a body of knowledge or a disciplinary canon. Critique, as it is understood, is ultimately a criticism of the society (not the author) that produced a given text; all literary criticism reduces to social criticism. The contemporary literature professor need not even be an expert on any particular author or literary figure, but can be expected to be a master at applying a particular interpretive lens such as Queer Theory or Critical Race Theory.
The reality that the humanities and social sciences seem to be increasingly attracting one particular kind of person with one, very distinct, understanding of the world can be seen in other disciplines as well. Entire fields and subfields such as Diplomatic History and Military History are on the precipice of extinction, as more and more current and aspiring historians ignore or abandon these fields for the sexier (and more explicitly ideological) fields in Cultural and Social History.
What has happened in Literature and History departments as well as in other disciplines draws attention to something rarely considered in discussions concerning intellectual diversity in higher education. Conservatives will point to statistics such as the imbalance in the ratio between registered Democrats and Republicans as evidence of a political imbalance. Students it is argued are only getting one side of the story. While this sentiment is certainly understandable, it ignores an element of the current phenomena that might be even more deleterious to student learning and thus all the more intractable. The problem isn’t simply one of political imbalance, an absence of parity between Left and Right voices, but the extent to which humanities departments have become politicized.
The possibility that one might read a manuscript or approach a cultural or philosophical question from a perspective that isn’t explicitly political is now often dismissed as either naive or not worthwhile. In this way, the humanities have constructed a sort of ideological prison house for themselves. One of the most compelling features of humanistic study is the inexhaustibility of interpretations—the capacity to engage a text, a cultural practice, or an age-old philosophical question and derive new meanings and new possibilities from it. As the humanities have become subsumed into a larger political project, the possible interpretations that one may entertain have become narrowed to explicitly politicized readings. An education in the humanities risks becoming nothing more than a political education—that is to say, an education that isn’t worth pursuing for anyone other than the already-converted activist.

Louis Sirico: "Benjamin Franklin, Prayer, and the Constitutional Convention: History as Narrative"

Apparently an entire law review/legal writing article was written on the Ben Franklin, prayer myth. See here. A taste:
This is an article about history and false history and how both shape our laws and our cultural traditions. The article illustrates its point by focusing on a single event at the Constitutional Convention of 1787: a failed proposal by Benjamin Franklin that the Convention hire a chaplain and begin each day with a prayer.

The story of Franklin’s proposal lives on in popular and political history. ...

Tuesday, April 11, 2017

“The Convention, except three or four persons, thought Prayers unnecessary.”

I put that quotation from Ben Franklin in the title. Franklin's words explaining what happened after he made a call to prayer at the Constitutional Convention.

See Warren Throckmorton for the latest Christian Nationalist misstep on it.

Saturday, April 8, 2017

Religious Tests for State Office Did Not Violate the First Amendment

Another from the "Protestant Nation" chronicles per federalism—over at my other groupblog, the New Reform Club, the estimable constitutional scholar Seth Barrett Tillman tells an interesting legal story of Founding-era America:
________________________________

Like many of the post-revolutionary constitutions of the newly independent states, the 1776 Constitution of North Carolina limited eligibility in regard to (some) positions in the state government. Only Protestants were eligible. Specifically, Article XXXII provided:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

In 1809, while the 1776 North Carolina Constitution was still in force, Jacob Henry was elected (actually reelected) to the House of Commons, i.e., the lower house of the North Carolina legislature. Henry was Jewish. His qualifications were contested, and the members of the Commons acted as judges of the election. A celebrated debate about religious freedom was to take place. “Mr. Henry boldly and successfully defended his rights, though a most curious construction of Article XXXII was adopted in order to enable him to retain his seat.”

Interestingly, there is no record (of which I am aware) indicating that wide ranging concerns about religious freedom or religious establishments swung the members. It appears that what interested the members was not abstract norms, fairness, or even the purposes of Article XXXII; rather, what swung the members’ decision was their understanding of the state constitution’s actual language. As Professor Orth has explained: “The house…refused to exclude him, apparently on the ground that a seat in the General Assembly was not an ‘Office…of Trust or Profit’ within the meaning of the North Carolina Constitution ….” To put it another way:

Despite all this, however, the victory [for freedom of religion in North Carolina] was one in form only, not in substance. As a matter of fact, the [Article XXXII Religious] [T]est was more firmly implanted than ever. The House of Commons in permitting Henry to retain his seat…emphasized rather than weakened its prohibition. The decision was based on the fact that the Constitution prohibited non-Protestants from holding office in any civil department of the State. This was interpreted not to exclude such persons from serving in the legislature. The legislative office, it was said, was above all civil offices.


For the rest, and to see how this is relevant to the current Foreign Emoluments Clause controversy being visited on President Trump, see Seth's full essay at NRC.

Friday, April 7, 2017

George Sarris on Universalism

I've done much study on both theological unitarianism and universalism as it relates to the era of the American Founding. Notable divines, both unitarian and trinitarian, influenced notable American Founders, again both unitarian and trinitarian. As the trinitarian Benjamin Rush put it:
At Dr. Finley’s school, I was more fully instructed in those principles by means of the Westminster catechism. I retained them without any affection for them until about the year 1780. I then read for the first time Fletcher’s controversy with the Calvinists, in favor of the universality of the atonement. This prepared my mind to admit the doctrine of universal salvation, which was then preached in our city by the Rev. Mr. Winchester. It embraced and reconciled my ancient Calvinistical and my newly adopted Arminian principles. From that time I have never doubted upon the subject of the salvation of all men. My conviction of the truth of this doctrine was derived from reading the works of Stonehouse, Seigvolk, White, Chauncey and Winchester, and afterwards from an attentive perusal of the Scriptures. I always admitted with each of those authors future punishment, and of long duration.
Rush listed most of the "big names" who influenced the universalism of the American Founding, but left one big one out: John Murray.

Today, George Sarris operates in that tradition. He has a book out on the matter entitled "Heaven's Doors: Wider Than You Ever Believed!" Theologians come to the universalist conclusion by using a combination of reason and revelation. What's distinguished about the more traditional universalism is the extent to which it takes the Bible seriously and seeks to justify its claims with biblical texts. We see this in Rush's above quotation.

Likewise, Sarris both believes in the inerrancy of scripture (in its original languages) and is a convinced universalist. And he can answer every single claim that is brought against him.

Something else that distinguishes the classical universalists is their belief in the seriousness of future punishment. The idea is there is a future state of rewards and punishments. And for the unsaved, they may be punished for ages before they are restored.

See the clip of the interview below with Eric Metaxas, who seems to have a great deal of respect for Sarris and his position. Listen till the end, whereas Sarris is a convinced universalist, Metaxas is hopeful that it is true. He even says he thinks all Christians hope this is true. I suspect most of them do. The decent ones. The ones who don't -- Pastors Sam Anderson, Fred Phelps -- make the religion seem like something not worth believing in. (In my opinion.)


Thursday, April 6, 2017

Gienapp Strikes Back

At Randy Barnett that is. From Jonathan Gienapp here. A taste:
For even if he thinks I get originalism right, Professor Barnett otherwise finds most of my essay’s claims mistaken, particularly those centered on the relationship between originalist method and historical interpretation. In my initial post, I primarily sought to acquaint historians with the current state of originalism and to explain why they ought to care about these debates. Accordingly, my discussion of historical method was relatively brief, in part, because I hoped historians would already grasp a good bit of what I was suggesting, but also since I had already plotted out much of the methodological relationship between historical practice and Originalism 2.0 in a prior published article in the Fordham Law Review, one to which I directed interested readers in the footnotes.[2] In order to answer Professor Barnett’s critiques, however, I will need to change course—from explaining to historians what originalists do, to explaining to originalists what historians do. For it is plain that this is the primary area of confusion: much of what Professor Barnett thinks I was getting at in describing what historians do was not in fact what I was getting at. (Accordingly, much of what follows draws upon my aforementioned Fordham article and readers interested in a more detailed sketch of some of the arguments presented here are encouraged to consult it.)

To move forward, then, it is helpful to return to the core claim of my initial essay: that historians’ methods are needed every bit as much to discover the original public meaning of the Constitution (the target of Originalism 2.0) as to discover any other kind of original constitutional meaning (the various targets of Originalism 1.0). I have no doubt that certain kinds of original meaning are unknowable. I grasp that many parts of the Constitution are open textured and thus not easily subject to historical analysis. And I appreciate that Originalism 2.0’s favored figure—the so-called average Founding-era reader—is a highly problematic construct, one that Jack Rakove has skillfully critiqued in “Joe the Ploughman Reads the Constitution.”[3] ...

Monday, April 3, 2017

Was America Founded as a Protestant Nation?

Perhaps the better question. From Jody Bottum's essential essay from a few years back, The Death of Protestant America: A Political Theory of the Protestant Mainline:
IN
In truth, all the talk, from the eighteenth century on, of the United States as a religious nation was really just a make-nice way of saying it was a Christian nation—and even to call it a Christian nation was usually just a soft and ecumenical attempt to gloss over the obvious fact that the United States was, at its root, a Protestant nation. Catholics and Jews were tolerated, off and on, but “the destiny of America,” as Alexis de Tocqueville observed in 1835, was “embodied in the first Puritan who landed on those shores, just as the whole human race was represented by the first man.”
Even America’s much vaunted religious liberty was essentially a Protestant idea. However deistical and enlightened some of the Founding Fathers may have been, Deism and the Enlightenment provided little of the religious liberty they put in the Bill of Rights. The real cause was the rivalry of the Protestant churches: No denomination achieved victory as the nation’s legally established church, mostly because the Baptists fought it where they feared it would be the Episcopalians, and the Episcopalians fought it where they feared it would be the Congregationalists. The oddity of American religion produced the oddity of American religious ­freedom.
The greatest oddity, however, may be the fact that the United States nonetheless ended up with something very similar to the establishment of religion in the public life of the nation. The effect often proved little more than an agreement about morals: The endlessly proliferating American churches, Tocqueville concluded, “all differ in respect to the worship which is due to the Creator; but they all agree in respect to the duties which are due from man to man.” The agreement was sometimes merely an establishment of manners: “The clergy of all the different sects hold the same language,” he added. “Their opinions are in agreement with the laws, and the human mind flows onward, so to speak, in one undivided current.”
Morals and manners, however, count for a great deal in the public square, and, beyond all their differences, the diverse Protestant churches merged to give a general form and a general tone to the culture. Protestantism helped define the nation, operating as simultaneously the happy enabler and the unhappy conscience of the American republic—a single source for both national comfort and national unease.

Sunday, April 2, 2017

Was Justice Scalia an Originalist?

I think Scalia would consider himself one. But as I understand his theory, "originalism" was more of a third rung in his list of priorities. The higher two rungs were "textualism" and "democratic theory."

And certain things about the way in which courts operated during the time of the American Founding were arguably inconsistent with such. There is huge debate among originalists on the doctrine of natural rights, unenumerated rights, the Declaration of Independence receiving status as "law" for the purpose of constitutional interpretation. Scalia was with the legal positivists in this respect.

One thing American courts did from the time of the American Founding -- even though the dicta in Erie v. Tompkins almost shattered the metaphysical justification for such -- is look to the "brooding omnipresence in the sky" as they decided cases and controversies. State courts deciding common law matters did this more explicitly according to the theory than the Supreme Court has done.

But arguably all courts did this.

Yes the Supreme Court has arguably always exercised a sort of "common law" power of establishing rules of law as they decide cases and controversies and then following those rules under the doctrine of stare decisis. See this article by a notable law professor for more detail. Whether they call it "living constitutionalism" or looking to the "brooding omnipresence in the sky" and then "discovering" the answer, the results are the same.

I think Scalia's response was, for the Supreme Court to do such is illegitimate in the age of "democratic theory." But again, it's not some new practice. Though post-Erie, the legal positivists who think it proper for judges to continue to do this needed new grounds to justify the practice. Hence "living constitution" as opposed to "brooding omnipresence."

But where would Justice Scalia's theory take us?

I think Scalia has gotten a bad rap by his left of center critics when they argue he was a results oriented justice who believed in imposing his personal preferences on the court. Certain biting and sarcastic statements taken out of context from his dicta support such charges. Also Scalia didn't always perfectly live up to his principles. In Boy Scouts v. Dale he supported the "penumbral" reasoning of the case to avoid a "bad" result.

But on abortion, an issue dear to the hearts of doctrinaire socially conservative Roman Catholics (what Scalia was personally) he made it clear if the states want to permit abortion on demand, they could do such. It's state legislatures who should be deciding this. On the issue of a woman's right to have an abortion as a "constitutional right," analogize it to freedom of speech.  Such is explicitly in the text of the Constitution. The right to abortion is not. If it were, presumably Scalia would hold there is a "constitutional right" to have an abortion, as there is with freedom of speech.

One reason why Scalia may not have been perfectly consistent in the way in which he applied his theory is that in the absence of nine Justice Scalia clones on the Court, you have to get other justices to join your opinion (and vice versa). Always demanding ideological purity from one's peers would mean always writing dissenting, concurring or plurality opinions (at least on those hot button politicized cases that grab our attention).

But the ironic results of Scalia's judicial utopia would have American courts look more European. It's ironic because Scalia has taken a position against the citing of non-American law, except of course the British common law. But such would render American courts to look more like the non-British common law European nations. In these "code law," that is non-common law nations (France, Spain, Germany, Italy, etc.) it's clear courts play a subservient role to the legislatures. There is no stare decisis in such systems. They have a democratically enacted text and if the texts aren't clear enough such that courts have to "fill in a gap," such has no precedential value as a "rule of law."

There is a position further seemingly more extreme than Scalia's held by law professor Lino Graglia that argues Marbury v. Madison was the first "activist" court decision. Therefore, the power of judicial review should be taken away from American courts. I'm not sure where Scalia exactly stood on this. A law professor of mine told me (hearsay) that at some regalia, Scalia told the group he would likewise overrule Marbury. On the other hand, he may have been convinced by the scholarship of Philip Hamburger that demonstrates Marbury's originalist bona fides.

But just how "conservative" is Graglia's position? It's the identical position of left of center law professor Jeremy Waldron, who supports hate speech laws. (Canada, Australia and most of Europe have them.) And as noted, it would render America's judicial system into something that looks closer to the current European "civil law" nations.

Jonathan Gienapp on History and Originalism

Check it out here. A taste:
1. Originalism 1.0: Doing History

Originalists’ retreat from history was not pre-ordained. Indeed, initially, to do originalism was to know history—at least in theory. Originalism first emerged in the 1970s and 1980s as a conservative response to the perceived activism and abuses of the progressive Warren and Burger Supreme Courts. Those on the political right complained that, under the auspices of a “living Constitution,” judges were substituting their own progressive preferences in place of what the Constitution actually licensed. In so doing, judges, rather than dutifully following the Constitution, were authoring it anew, an activity that subverted the foundational relationship of constitutionalism—that those in power are subject to the Constitution and not the other way around. If justices were to be constrained from legislating from the bench, then they had to be stripped of their interpretive license. And the only way to do that, the thinking went, was to undermine the living Constitution. The document’s meaning could not evolve with the times; barring formal amendments emanating from the sovereign people, its meaning had to remain fixed and constant over time. Combined, these theoretical presuppositions thus mandated that the Constitution’s operative meaning had to be its original meaning. And those who endorsed this constitutional vision began calling themselves originalists.[3]

Privileging original meaning was, thus, at its inception, driven by presentist aims. The theory’s main agenda was to recalibrate how judges, lawyers, and citizens related to the Constitution in the present. But no matter the primary goals, the theory necessarily required a methodological corollary; it was one thing to defend the notion that original meaning ought to constrain contemporary judicial behavior, it was quite another to explain how a committed interpreter might locate such meaning in the first place. Only in identifying original meaning credibly could originalists advance the second and altogether more important aspect of their agenda, one that directly implicated historical practice. For, on its face, recovering something like original constitutional meaning would seemingly require doing history.

Thursday, March 30, 2017

Blog Commentary From a Regular Reader of American Creation

Indeed, a long time reader. It's a bit off the wall. Check it out here. A taste:
In light of the systematized Christian system described by Calvin, the founding fathers had an excellent blueprint to establish a nation. The founders clearly made some mistakes in forming this country; one being the way they setup freedom of conscience. ... Unchecked belief in idolatry like the founders allowed in this country was suicide and today is the proof of their error. 
One of the main founders was James Madison. His understanding of religion and the state was different and he rejected Reformation principles on the subject. Madison's Notes preparing his Memorial and Remonstrance is filled with incoherency. 

[...]

An unbeliever could make the case Madison was no Christian at all with perfidious statements like these. Another founding father, John Adams was a definite Unitarian, who denied parts of the bible, and was ignorant about the canon of scripture. Today, Adams would be a liberal bigot, which is most of the [D]emocratic party. However, for Madison to even bring these ideas up is troubling. At least Bishop Meade believed he was a real Christian. I'm not entirely convinced to take his word for it.
Note: Links to Madison's Notes on the Memorial and Remonstrance added by me. 

Wednesday, March 29, 2017

The Original Originalist on Originalism

Randy Barnett: "Challenging the Priesthood of Professional Historians"

The always incisive and provocative law prof Randy Barnett echoes my criticism of academic historians asserting an authority outside the bounds of their actual expertise [my case in point: one Andrew Shankman, an Associate Professor of History at Rutgers University-Camden, who absurdly claims Alexander Hamilton was a "living constitutionalist"].

Randy Barnett


But the converse problem with this claim is that some historians seem to think they can investigate the meaning of legal terms and concepts in the past without any legal training. For this it helps to be a lawyer. True, some of the best legal historians do have legal training, but not all who opine on the “meaning” of the Constitution do.

If this does not seem immediately plausible, consider this: do historians think they can understand the philosophical arguments of thinkers in the past with no training in philosophy? Or, to be more specific, how well can a modern reader who thinks natural rights are “nonsense on stilts” truly understand the Founders references to and disquisitions on natural rights? For this, it helps to have philosophical training. Indeed, it also helps to believe in natural rights in the way the Founders did–to actually be a natural rights theorist–to appreciate the substance of their natural rights arguments. But, though I suspect most historians realize that they cannot fully appreciate philosophical arguments “by taking up residence with the natives,” some apparently believe that they, and they alone, can recover the meaning of a law enacted in the Eighteenth Century when they would not be able to understand the meaning of a law enacted in the Twenty-First. That’s either hubris or chutzpah.

Perhaps, in part for this reason, historians who opine on constitutional “meaning” or political argumentation (without legal or philosophical training) tend to avoid the substance or merits of legal or philosophical arguments made by their historical subjects and choose instead to focus on the hopes, fears, ends, objectives, agenda, and expected applications of historical figures, groups and movements. If all you have is an hammer, then everything is a nail. If all you have is the historical method–as defined by Professor Gienapp–then the meaning of “meaning” must be reduced to the import or purpose of a constitutional provision, not the communicative content of what it said.

As always, read the whole thing.

Why I Remain Unimpressed by Getting Published by Reputable Academic Presses

A Rutgers assistant prof gets published by the Oxford University Press with a claim that Hamilton was a "living constitutionalist," a judicial philosophy not developed for another 150 years.


On a related note, hot off the Duke University Press:


They Look Back

The Animalization and Self-Articulation of Trans Genitalia




Duke University Press is "peer-reviewed," whatever that means in this day and age. One academic fraud gives another the thumbs up.

Buyer beware. Bigly.

Saturday, March 25, 2017

Geoff Stone, Sexing the Constitution at Volokh

Geoff Stone has in a five part series blogged about his new book at the Volokh Conspiracy. This is the introduction by Eugene Volokh followed by parts One, Two, Three, Four and Five. Below is an excerpt from Eugene's introduction that reproduces the publisher's summary:
University of Chicago Professor Geoffrey Stone — one of the nation’s leading liberal constitutional scholars — is guest-blogging this week about his new book, “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.” Here’s an excerpt from the publisher’s summary:
Beginning his volume in the ancient and medieval worlds, Geoffrey R. Stone demonstrates how the Founding Fathers, deeply influenced by their philosophical forebears, saw traditional Christianity as an impediment to the pursuit of happiness and to the quest for human progress. Acutely aware of the need to separate politics from the divisive forces of religion, the Founding Fathers crafted a constitution that expressed the fundamental values of the Enlightenment.

Although the Second Great Awakening later came to define America through the lens of evangelical Christianity, nineteenth-century Americans continued to view sex as a matter of private concern, so much so that sexual expression and information about contraception circulated freely, abortions before “quickening” remained legal, and prosecutions for sodomy were almost nonexistent.
The late nineteenth and early twentieth centuries reversed such tolerance, however, as charismatic spiritual leaders and barnstorming politicians rejected the values of our nation’s founders. Spurred on by Anthony Comstock, America’s most feared enforcer of morality, new laws were enacted banning pornography, contraception, and abortion, with Comstock proposing that the word “unclean” be branded on the foreheads of homosexuals. Women increasingly lost control of their bodies, and birth control advocates, like Margaret Sanger, were imprisoned for advocating their beliefs. In this new world, abortions were for the first time relegated to dank and dangerous back rooms.
There are a lot of interesting things to learn from Professor Stone. Though, he does engage in a great deal of "law office" history. He's a lawyer after all. 

Friday, March 24, 2017

Andrew Shankman: "What Would the Founding Fathers Make of Originalism? Not much."

Check it out here. A taste:
Andrew Shankman is Associate Professor of History at Rutgers University-Camden. His book Original Intents: Hamilton, Jefferson, Madison, and the American Founding is being published by Oxford University Press in March 2017. [...]
Hamilton had a top-down and elitist conception of an open-ended and living Constitution. Statesmen and lawmakers would draw connections between desired policies and enumerated powers. Once a connection was plausibly established, they could take an action not expressly permitted by the Constitution if the Constitution did not expressly forbid it. Initially, Madison seemed to be arguing for a fixed and rarely changing Constitution. But in 1791 and 1792, as he continued to challenge Hamilton’s policies, his constitutional thinking evolved. He developed a bottom-up and democratic conception of an open-ended and living Constitution.

Tuesday, March 21, 2017

Kidd's Book on Ben Franklin's Religion

Professor Thomas Kidd has a new book out on Ben Franklin's religion. Read about it here. A taste:
Kidd (History and Religious Studies/Baylor Univ.; American Colonial History: Clashing Cultures and Faiths, 2016, etc.) admirably plies the writings of Franklin to discover the Founding Father’s evolving views on the divine throughout the course of his long life. Such a book matters because of Franklin’s ties to the Enlightenment, his effect on nearly all literate Americans of the mid- to late-18th century, and his life’s undeniable imprint on American politics and society. As the author argues, “Franklin…was a pioneer of…doctrineless, moralized Christianity,” This form of the faith was divorced from orthodoxy, steeped in reason, and geared toward the good conduct of moral citizens.
Yes, I think this gets it about right and is more accurate than saying "Franklin was a Deist."