Originalism and the Future of Religious Freedom

fourteenth amendment

For historians seeking the original meaning of the Fourteenth Amendment, few issues are trickier than the question of national religious liberty. At the time of the Founding, the entire subject of governmental regulation of religion was left to the states. There was no single “principle of religious freedom” beyond widespread agreement that the federal government had no delegated authority over the issue. This left Virginia free to embrace the principles of Jeffersonian separationism and Massachusetts free to embrace the Adams-esque principle of semi-coercive, government-supported religious belief.

Adoption of the Fourteenth Amendment ended this freewheeling religious regulatory federalism and demanded that no state enact or enforce any law abridging the privileges or immunities of national citizenship.

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Dreher’s Benedict and the First Amendment

The Benedict Option, Rod Dreher’s much-discussed book, has largely been portrayed as a way to rethink Christian political and cultural engagement. How, exactly, the rethinking ought to play out has been debated incessantly, albeit often superficially, as only the Internet can ensure. Dreher does attempt to make clear, in any case, that Christians should focus “all the attention they have left for national politics” on expanding religious liberty. Religious liberty is naturally necessary for any religious undertaking and Dreher is right to recognize that without it no one could take his advice to focus on cultivating local politics and community. But…

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Diversity Policies Favoring Minorities and Women Create Less Ideological Diversity

Professors at law schools are overwhelming left-liberal, as I made clear in a 2005 study published in the Georgetown Law Review. Just as it was said in the late nineteenth century that the Anglican Church was the Conservative Party at prayer, our law schools today are the Democratic Party at the podium.  The hard resulting policy question is whether law schools should adopt affirmative action for libertarians and conservatives to foster the debate that should inform legal subjects with a substantial political valence.

While I have not supported preferences of this kind, the strongest arguments in their favor are the existence of preferential policies in favor of race, gender, and ethnicity that are themselves justified as a way of creating a fuller debate. Indeed, one particularly powerful point—rarely if ever made made—is that the widespread intentional discrimination in favor of certain preferred groups in faculty hiring has a disparate impact on conservative and libertarians and reduces their presence at law schools. That is, since minority and female law professors are likely to be even more left-liberal than white males, the routine diversity policies of law schools decrease the number of conservatives and libertarians compared to a baseline of purely merit selection.

A new study of the ideological imbalance in the legal academy,  The Legal Academy’s Ideological Uniformity, provides hard statistical support for this proposition. It shows that minority and female faculty members are  indeed substantially more likely to be left-liberal than white males and be even more left-wing.  Racial and gender diversity does reduce ideological diversity.

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North Korea and the Qaddafi Double Cross

With the Trump Administration engaged in a soft conflict with North Korea, it is worth noting how the actions of the Obama Administration have made it a harder to reach a resolution with North Korea. When a country attempts to secure nuclear weapons, it is of course extremely difficult for the United States and other countries to prevent them from entering the nuclear club.  A country gains a tremendous amount of military power, influence, and prestige from having nuclear weapons.  And so it would be expected that it would be difficult to persuade them not to do so.  Various administrations from…

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The Radical Jefferson: A Conversation with Kevin Gutzman

jefferson-bookIn this edition of Liberty Law Talk historian Kevin Gutzman discusses his latest book, Thomas Jefferson—Revolutionary. We focus on Jefferson's account of federalism, conscience rights, education, and race.

Madison and the Liquid Constitution

Clear blue sky

The conversation Richard Reinsch has sparked on constitutional liquidation is less about constitutional meaning than about the ultimate—note “ultimate”—authority to ascertain it. It is true, as Randy Barnett, among others, notes, that liquidation is a longstanding topic in originalist thought. But Reinsch suggests a new avenue, writing that republican politics bien entendu is the ultimate (see above) expositor of constitutional meaning and that this is true generally, not just in ambiguous or indeterminate cases.

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Liberty, Licentiousness, and the Pursuit of Happiness

Replica of the U.S. Declaration of Independence, closeup

The Declaration of Independence famously affirms inalienable rights to life, liberty, and the pursuit of happiness. As I discussed last week, the heavy lifting of the adjective “unalienable” means that people cannot give or otherwise transfer these rights away. Inalienability is a restriction on rights’ holders. This immediately changes implications of the terms. To wit, today Americans often think of liberty as “autonomy.” Indeed, in the Supreme Court notably defines the Fourteenth Amendment liberty guarantee as a protection of individual autonomy. According to the Declaration, however, inalienable rights to life and the pursuit of happiness exist in tandem with liberty. In the philosophy of the Declaration, “liberty” cannot mean, say, a right to alienate one’s life by committing suicide, assisted or otherwise. So the inalienability of the rights to life and to the pursuit of happiness necessarily structure the meaning of liberty in the Declaration.

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Reducing Our Life Together to Interests, Fears, and Hatreds

classroom

It seems every year we have more proof that American universities are failing to engage in civic education, especially if we understand the concept as requiring meaningful reflection about the nature and purposes of government rather than just an awareness of the mechanisms of our government. There are exceptions, but for the most part, it seems unreasonable to expect much from the cafeteria-style general education curriculum required at most colleges. It is just as often remarked that even the civic education that some college students might encounter does not help, either—at least if you are a U.S. citizen who cares about fostering morally serious debate about the legitimate purposes of government in shaping our lives.

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A Tale of Two Nations and Economic Freedom

The New York Times ran two stories within two days about two very different nations.  One story noted that France was an unhappy place in danger of electing an extremist, Marie Le Pen, as President.  But the author found the plight of the country puzzling, noting that France has wonderful infrastructure compared to the United States and continued to have a culture second to none. He puts its misery down to the French fixation on the losses of past glories.

Another story focuses on the very different mood in New Zealand. People are happy there and many foreigners want to immigrate. The prime reasons given are its isolation from the rest of the troubled world and its social tolerance, as demonstrated by its legalization of same-sex marriage and acceptance of refugees. The photo accompanying the story shows Sikh men in colorful turbans against some pleasant New Zealand scenery.

The two stories show the weaknesses of the analytic powers of our elite media and its indifference to economic freedom.  The best explanation of France’s stagnant misery and New Zealand dynamic happiness can be found in the The Heritage Foundation’s Index of Economic Freedom. New Zealand ranks No. 3 and France No. 72 of the 160 nations surveyed in the economic liberty they permits citizens.  Given that most nations ranked below France are developing nations, New Zealand and France inhabit pretty different economic universes among developed nations.

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The Constitution, Liquidation, and Originalism

Richard Reinsch, editor of this site, has written an interesting piece entitled The Liquid Constitution.  Richard emphasizes that there is a need to liquidate the meaning of unclear constitutional provisions, and notes that James Madison praised this approach.  Richard has some critical things to say about originalism, suggesting that it enthrones the judiciary at the expense of the people. Without engaging with his criticisms of originalism, I do want to note that the role of liquidation is an important issue within originalism, and that originalist scholars have begun to study the matter from an originalist perspective.  One issue is the extent…

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