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Marc DeGirolami Subscribe

Marc O. DeGirolami is Cary Fields Professor of Law and Co-Director, Center for Law and Religion, St. John’s Law School.

January 13, 2020|Greg Weiner, judicial engagement, Judicial Restraint, Judicial Review, The Political Constitution

Wanted: A republican Judiciary

by Marc DeGirolami|

Chambers of the U.S. Supreme Court (Erik Cox Photography / Shutterstock.com).
What we require is not judicial restraint, but a different sort of judicial engagement that develops the traditions of republican government.

July 19, 2019|

Notes on a New Fusionism

by Marc DeGirolami|

In response to: Is Legal Conservatism as Accomplished as It Thinks It Is?

Leonard Leo, executive vice president of the Federalist Society, with Supreme Court Associate Justice Neil Gorsuch, November 16, 2017. (AP / Sait Serkan Gurbuz)
There are too few legal traditionalists to achieve what Merriam wants; this argues for a restorative project that’s conceptual rather than demographic.

More Responses

Originalism: A Unitarian Church for the Legal Profession?

by Michael S. Greve

The irony: that legal conservatism seems to have triumphed now, at a moment when the political conditions that initially spurred it have ceased to obtain.

Originalism, the U.S. Constitution, and the Continuity of Fusionism

by John O. McGinnis

And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.

Abandoning Originalism Wouldn’t Be Very Conservative

by Mike Rappaport

Some conservatives are unhappy with modern originalism; the best path for them is not to abandon it but to promote a more conservative version. 

Normative Foundations of Originalism

by Michael O' Shea

Libertarian originalism tends to undermine conservative legal positions.

Conservatives and Originalism: Their Relationship, Reconsidered

by Jeffrey Pojanowski

Is there a connection between originalism and conservatism that runs deeper than crude results-orientation?

Legal Conservatism: Jesse Merriam Responds to His Critics

by Jesse Merriam

Conservatives, if they wish to preserve state and local governance, should resume their resistance to the incorporation doctrine.

January 28, 2019|John Marshall, Richard Brookhiser

Jurisprudence as an Expression of Character

by Marc DeGirolami|

The eminently useful personal qualities of John Marshall.

February 7, 2018|legal liberalism, Patrick Deneen, why liberalism failed

The Long Tail of Legal Liberalism

by Marc DeGirolami|

Orhan Cam/Shutterstock
Patrick Deneen has demonstrated that liberalism has serious internal flaws, but legal liberalism least likely to adapt to overcome these difficulties.

October 19, 2016|Church of the Lukumi Babalu Aye v. City of Hialeah, Humane Slaughter Act, Religious Liberty, United Poultry Concerns v. Chabad of Irvine

Meshugas About Chickens

by Marc DeGirolami|

As a society becomes more secular, what happens to religious rituals, customs, and ways of life that cannot be explained or justified in secular terms? When the freedom to engage in such practices is no longer presumed to be a good because of a firm commitment to religion as a social value, little stands in the way of its becoming just one more special interest. Religious freedom is then thrown into the bin of social oddities, to be haggled over and negotiated against whatever other idiosyncratic predilections one happens to find in there..

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October 12, 2016|John Inazu, Natural Rights, Philip Hamburger, Religious Liberty, Vincent Phillip Munoz

How Rights Are Like Taffy

by Marc DeGirolami|

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Over at the Law and Religion Forum, we are hosting an online symposium on a very interesting article by Professor Vincent Phillip Muñoz, “Two Concepts of Religious Liberty: The Natural Rights and Moral Autonomy Approaches to the Free Exercise of Religion.” Muñoz’s basic claim is a historical one about the nature of the Founders’ constitutional commitment to religious freedom: They supported a narrow, but powerful, right of religious free exercise that protected fairly absolutely what were thought to be certain core features of religiosity—such as worship—but that did not protect the panoply of religious “interests” that might be dear to any given constituency.

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September 27, 2016|Christian Legal Society v. Martinez, EEOC v. Abercrombie and Fitch, Free Exercise Clause, Religious Freedom Restoration Act, U.S. Commission on Civil Rights

The U.S. Commission on Abolishing Religious Freedom

by Marc DeGirolami|

The embarrassing U.S. Commission on Civil Rights richly deserves the new name bestowed on it by the above headline. Its recent report to President Obama, “Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties,” contains nothing that is remotely likely to promote either peace or coexistence. To the contrary.

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August 25, 2016|

Law and Tradition in America: Marc DeGirolami Replies

by Marc DeGirolami|

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law and tradition. Of course, it will not be possible to reply to each point. But it may be simplest to consider the arguments of Professors Bernstein and Stoner together, before more particularly addressing Professor Levinson’s. Bernstein and Stoner are positively inclined toward investigating the connection of tradition and American law, though in different degrees. Professor Bernstein argues that though the common law does depend upon custom and tradition, it has been colonized in more recent decades by intellectual movements that are…

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August 2, 2016|

The Unforgettable Fire: Tradition and the Shape of the Law

by Marc DeGirolami|

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable. When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view:…

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Responses

The Courts and Tradition: A Begrudging Respect

by David Bernstein

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

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American Tradition in Theory and Practice

by Sanford Levinson

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

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Legal Realism, Legal Revolution

by James Stoner

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

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July 29, 2016|Conscience, Harvey Mansfield, Religious Establishment, Religious Liberty

Divine Rights and Human Rights

by Marc DeGirolami|

The eminent political theorist Harvey Mansfield once wrote that the “religious question” is the crucial one for the modern age, because it concerns the ultimate repository of authority and control. Is it human or is it divine?

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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Recent Posts

  • The Just Restraint of the Vicious

    For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
    by Gerard T. Mundy

  • Too Immature to be Punished?

    When I look back on my own life, I think I knew by the age of ten that one should not strangle old ladies in their beds.
    by Theodore Dalrymple

  • A Badge of Discrimination

    The British National Health Service has spoken: Wear the badge or declare yourself to be a bigot.
    by Theodore Dalrymple

  • A Judicial Takeover of Asylum Policy?

    Thuraissigiam threatens to make both the law and the facts in every petition for asylum—and there are thousands of them—a matter for the courts.
    by Thomas Ascik

  • The Environmental Uncertainty Principle

    By engaging in such flagrant projection, the Times has highlighted once again the problem with groupthink in the climate discussion.
    by Paul Schwennesen

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