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.
Chambers of the U.S. Supreme Court (Erik Cox Photography / Shutterstock.com).Notes on a New Fusionism
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)More Responses
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.
And in any case, Merriam does not identify a theory that would deliver better results than those delivered by originalism.
Some conservatives are unhappy with modern originalism; the best path for them is not to abandon it but to promote a more conservative version.
Libertarian originalism tends to undermine conservative legal positions.
Is there a connection between originalism and conservatism that runs deeper than crude results-orientation?
Conservatives, if they wish to preserve state and local governance, should resume their resistance to the incorporation doctrine.
Jurisprudence as an Expression of Character
The Long Tail of Legal Liberalism
Orhan Cam/ShutterstockMeshugas About Chickens
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..
How Rights Are Like Taffy
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.
The U.S. Commission on Abolishing Religious Freedom
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.
Law and Tradition in America: Marc DeGirolami Replies
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…
The Unforgettable Fire: Tradition and the Shape of the Law
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:…
Responses
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,…
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…
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…
