The Volokh Conspiracy
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New Churches, New Movements
Further thoughts on the outcome of Dobbs
Steve closed his post on Dobbs with a hypothetical:
if Roe survives, it'd be despite a 6-3 Catholic majority on the Court. Would it make sense for a Catholic to pick a new religion, just because of what some of the six Catholic Justices do in Dobbs? That'd seem really strange to me; so would picking new views on the content of the law.
I propose a different analogy. Imagine that you are a longtime member of a church. The church professes to hold certain beliefs that hew closely to the written word of the scripture. During the selection process, new members of the clergy all espouse such orthodox views. Yet, once in power, those members of the clergy depart from scripture to factor in the demands of modernity. And those clergy keep takings actions that are inconsistent with the orthodoxies of the faith. As a general matter, it is difficult to remove clergy. Thus, a member may decide to leave that church, and find a different church that adheres to traditional doctrines of faith. Eventually, if enough people leave the church, the clergy will be preaching to empty pews. And, if those departure are consistent, a schism may form within the faith. These changes do not occur overnight, but there is a slow, gradual process towards separation.
I don't think these departing members would say they are switching to a new religion. Rather, they would say that the current clergy are not being faithful to the traditional doctrine of the faith--even though they professed such adherence during the selection process.
Now, this analogy breaks down for umpteen reasons. I don't think the analogy between originalism and religion is a good one--though critics of originalism likely will see it that way. I, personally, also would be really hesitant to leave a house of worship; my preference would be to reform it from the inside. But I think this analogy illustrates why some--including those who have corresponded with me--would be willing to look elsewhere to find more traditional practices of originalism.
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This is...certainly a telling analogy to choose when talking about originalism.
It's revealing, yes. What Prof. Blackman is saying is that conservatives chose originalism not because they thought originalism was the correct approach to interpretation, but because they hated abortion and thought that originalism would get them there. And if it doesn't, they'll just shrug, say, "Oh well, originalism must not be the right way to interpret the constitution," and pick an entirely different interpretative approach.
But the analogy he makes above to religion is bizarre. In religion do people start with the doctrine they want and then pick the church that issues that doctrine? (Don't answer that.) It would be like saying, "I don't like gay people, so I'll be a Methodist¹ because they teach that the Bible condemns gay people… wait, Methodists no longer interpret the Bible that way, so I'm going to go become a Muslim¹ because they interpret the Koran that way."
¹No hate responses; it's a hypothetical. I don't know which goyim believe what.
"In religion do people start with the doctrine they want and then pick the church that issues that doctrine? "
Not exactly, but people have historically separated from one church and founded their own because of disagreements with the church's doctrine. That's why Christianity today is divided into a dozen or more denominations instead of one united church.
The first schism goes all the way back to the first millennium, the division between the eastern Orthodox Church and Rome in the West.
Sure, but that wasn't my analogy. Here they're not forming a new church that has the beliefs and rules they want; they're joining an existing church with entirely different beliefs than their old church just because the church has a teaching that they like.
If you start with "I don't like gays; I want a church that preaches against them, and I don't care how it gets there, whether it cites the NT, the Koran, or the Bhagavad Gita, as long as it says "Gays are bad," that would be weird.
I agree that specifically would be weird, particularly with it hyperfocused on a single issue.. However leaving one church because you disagree with their doctrine more generally and joining another church whose doctrine is more in-line with your personal beliefs is quite normal.
But what motivates such a switch is an underlying conviction that one's personal beliefs are the correct ones. The beliefs do not change.
The whole appeal of originalism was supposed to be the fact that, using it, we could fix the meaning of the law in an objective fashion. We might debate over the relevant evidence as to the original public meaning, but ultimately there would be agreement about how to resolve that debate and come to a conclusion. If that's true of originalism, then there's no reason why a 6-3 Court upholding Roe in some form should alter one's conviction that originalism is the best approach to statutory and constitutional interpretation. It just means that the initiative needs better representatives - better originalists.
But that's not what Josh is threatening.
Well, sure, you need better originalists.
But, it's not like the lay public can manufacture better originalists itself, and then install them itself. The legal community is a self-perpetuating and self-selecting guild, and who ends up on the Supreme court is controlled by a combination of the guild and politicians, both of whom not only have control, but much more direct knowledge of the people they're putting on the Court than the public could ever have.
So, suppose you think you need better originalists, and that the system as it is currently set up guarantees that you will never get them?
What do you do then? Maybe you give up on originalism, and set out to bring the system as it's currently set up down in flames.
Honestly, everyone chooses their preferred judicial philosophy in part because it gets cases they care about right. And I don't think that's even a particularly big indictment- don't you want to get cases right? Don't we all? I always found the pride Scalia took in coming to absolutely outrageous conclusions, like the Constitution not prohibiting the execution of the innocent, to be both ridiculous and malevolent. You want to get cases right, not take pride in horrible results. Yes, sometimes horrible results are called for, but you should feel bad about having to reach them, not good.
But having said that, there's a big difference between that and beating liberals up for years claiming that we are a bunch of unprincipled hacks for not agreeing with originalism, only to behave like a bunch of unprincipled hacks if originalism doesn't get them the abortion jurisprudence they want.
I recall hearing the word "apostate" in connection with a schism in a congregation during the culture wars of 10-15 years ago, said by the leavers about the remainers. The question, "what would Jesus think about [contemporary American moral dispute]" reminds me of a statement of a court applying choice of law rules, which went more or less "we are asked to decide what the highest court of New York would think the highest court of California would think about an issue of which neither one has thought." (If you remember the citation and proper wording, please post it.)
Choose reason. Every time.
Choose reason. Especially over sacred ignorance or dogmatic intolerance.
Choose reason. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, bigotry, backwardness, and ignorance. By adulthood -- this includes ostensible adulthood -- it is no excuse, not even in the most desolate backwater one can find.
Choose reason. Every time. And education, modernity, tolerance, science, freedom, inclusiveness, and progress. Avoid ignorance, insularity, backwardness, superstition, bigotry, authoritarianism, dogma, and pining for "good old days" that never existed. Not 75 years ago. Not 175 years ago. Not 2,000 years ago. Not ever.
Choose reason. Be an adult.
Or, at least, please try.
Thank you.
There's a wonderful line that if the 12 apostles came back from the dead and went to church, the only thing they would still recognize would be the preacher's jokes. Religion, like any other organism, evolves over time and dies out if it doesn't.
There is so much wrong with Prof. Blackman's post that it is difficult to begin. But try we must.
The context of Mr. Blackman's position is that Supreme Court Justices should vote their religion, not the law. This is so contrary to the founding of America that such a position disqualifies him as a legitimate legal scholar of the Constitution. Well almost.
The idea that Catholics should abolish/abandon their religion because of the actions of a few Justices is absurd.
The idea of an independent judiciary, which is a foundation of our legal system is lost on Prof. Blackman.
Apparently Prof. Blackman did not listen when the Justices, as nominees stated that did not have a fixed position on repeal of Roe. And so he castigates them for not sticking to their non-position. Of course, nobody really believed them so maybe it is ok for Prof. Blackman to consider them legal traitors.
Well, we could go on couldn't we.
But everyone should understand that the repeal of Roe, which will happen as the fix is in, will not end the abortion rights battle. The day after Roe is repealed those opposed to abortion rights will abandon their position that abortion rights should be decided by the states and starting working for a nation wide law that bans abortion rights everywhere. Only then will they be satisfied, and probably not even then as they will then move to impose their religious beliefs on everyone (see Flynn, Michael and the lack of outrage, condemnation or even disagreement by the pseudo conservative class)
Which issue will be the most important precipitate with respect to enlargement of the Supreme Court?
___ Abortion
___ Guns
___ Voting rights
___ Pandemic management
___ Bigotry (racism, homophobia, xenophobia, misogyny)
___ Partisanship/gridlock/election results
___ Special privilege for religion
Only then will they be satisfied, and probably not even then as they will then move to impose their religious beliefs on everyone (see Flynn, Michael and the lack of outrage, condemnation or even disagreement by the pseudo conservative class)
Yes. This should be a real wake up call. As many will say, they are telling us who they are. We should believe them.
Neither Josh nor Mr. Sachs, one guesses, is Catholic. If they were they would know that most Catholics are in favor of keeping Roe.
"most Catholics are in favor of keeping Roe."
Issue polls are trash, without exception.
Is this just a roundabout way of answering Profs. Sachs and Kerr by saying that you were using "originalism" as synecdoche for the Federalist Society?
I think that a Supreme Court decision will have less to people leaving religions that that the fact that those religions no longer have any real value to sell to their customers. We see the rise of the NONES, the non religious. People who see themselves as spiritual but no longer in need of a church to belong. In the past people felt like the cost of belonging yielded a value to them. But no more.
As for abortion, do Catholic women really have less abortions than women of other faiths? Statistics suggest this is not the case. The fact is that Catholics mostly ignore the Churches rules they don't care for. They likely leave Catholicism for other reasons.
Among members of my fraternity, no other party guest was nearly so popular as one sent to Catholic schools by her parents.
Maybe there is a future for some Catholicism in modern America. The social teachings concerning loving the least among us, for example, could be a good part of a foreseeable America.
For the shrinking fringe of Opus Dei-Moral Majority right-wingers who can't stand modern society, however, and for those who want organized religion to be a powerful influence in modern America, there seems little reason for hope.
The Catholic Church has been revealed as a low-quality, selfish, organization and is shedding members, consolidating schools, and losing influence at a severe pace. Currently, organized religion is known mostly for flouting a virus, multifaceted bigotry, fleecing the gullible, and freeloading, especially among young Americans.
Six Catholics on the Court will be known as Peak Catholicism, taught in history classes addressing rise of reason in America.
The point Dobbs made is that the Justices are no more the arbiters of Originalism than they are the arbiters of Catholicism. Disagreeing with the Justices is not the same as disagreeing with Originalism or Catholicism.
Blackman seems to have missed that. And this post is a complete non sequitur.
The problem here is that a lot of originalists take disagreeing with them as not just wrong, but illegitimate.
Plus there is that 3L with the revealing position that if the Justices have it wrong on originalism, what's the point in reforming it - time to jump ship!
And then there is originalism as article of faith. Which...yeah.
Look, if somebody disagrees with me about what makes a search unreasonable, I may think they're wrong, (Obviously people tend to think they themselves are right, so people who disagree must be wrong.) but if somebody disagrees with me about "all" criminal prosecutions meaning "all", or $20 defined in SOME way being relevant to whether you're entitled to a jury trial in a civil case, or whether Congress is entitled to pass laws with 40% of the chamber present? Yeah, I'm going to think that's illegitimate, because the words actually are there and have meanings.
This makes zero sense to me.
Blackman seems to think of originalism as a sort of political party, and not a method of interpretation. If your political party starts doing things you disagree with you might sensibly abandon it. But if judges you thought shared your views about interpretation make decisions you think are wrong, why would you change your thinking about method?
Of course, this is quite revealing. I think he screwed up and admitted that, yes, it really is just a political movement. The policy objectives are what matter, not the claimed principle. If being an originalist doesn't get him the desired results he'll go join some other group.
Originalism is both a method of interpretation, and a movement. Believing that the movement has abandoned the method doesn't imply that you abandon the method yourself, but rather, the movement.
But, you have to consider that the originalism movement was all about restoring the rule of law. As understood by originalists, the original meaning of the law IS "the law" that is supposed to rule. If it doesn't, you're only pretending to have the rule of law.
Now, suppose you're successfully convinced that the rule of law is dead. I guess you'd abandon originalism, and go do something else.
Shorter Brett: "Yes, I fully acknowledge that originalism never meant anything real, your point?"
you have to consider that the originalism movement was all about restoring the rule of law.
Actually, I don't have to consider that at all, since I don't agree that the rule of law needed to be restored. To me originalism looks like a jumble of not-very-coherent ideas about interpreting the Constitution whose main objective is to get certain results, with a secondary goal of sounding pretentious.
I also think that, for some, the term is just branding. Back in the day the segregationists used to talk about "strict construction." That phrase got a bad odor from the association, so it was duly changed to "originalism," much as "States Rights" became "federalism."
The rule of law as understood by originalists. Not, obviously, as understood by people who think judges are morally entitled to pull meanings out of their asses and insist we all agree how obviously true they are.
" If being an originalist doesn't get him the desired results he'll go join some other group."
I don't read Blckman's recent articles as saying anything like that. Rather he is talking about other people who have told him that.
You may be right, but he certainly doesn't seem to disapprove of the sentiment.
He doesn't explicitly condone it either.
"Many people are saying"
You didn't explain what "elsewhere" means, but you're changing your argument. Your point—the point Prof. Sachs and Prof. Kerr were responding to—was that originalists should stop being originalists if the case comes out the wrong way. I take it from this thst you're abandoning that position?
I don't think that was ever Blackman's point. He reported that others had made that point to him,
He is not just reporting the facts - he is saying 'originalists change your ways or there will be consequences.'
As long as a school of interpretation respects the amendment process - by which the constitution is changed only with the approval of 3/4 of the states (after Congress or a special convention propose amendments), then I would be happy to listen to the advocates of that school, whatever it wants to call itself.
Any school which would have the government itself - the creation of the Constitution - make amendments to the Constitution without the approval of 3/4 of the states, then I know that school is wrong. The people wielded their sovereignty to create a government and specify how the government's powers would be reduced or increased.
In the words of a guy without whom we might not have a Constitution, or even a country:
"If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield."
https://www.ourdocuments.gov/doc.php?flash=false&doc=15&page=transcript
Who could've guessed that Blackman is an unprincipled hack?
As long as we're casually throwing around accusations of bad faith...
Say someone is genuinely concerned with the courts' misbehavior and lawlessness. Then up comes Professor Snerd with his Dr. Snerd's Originalism Elixir, which will "cleanse your body politic of judicial imperialism! Take this elixir and get originalist judges on the bench who will disavow the bad behavior of their predecessors!"
So the person buys the elixir, and the result is a bunch of judges, professors, etc. calling themselves originalists...but what's this? An "originalist" article about "Abortion and Original Meaning"
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558
...declaring that "there are actually two rights to abortion instead of one."
Then the leading originalist judge affirms Wickard v. Fillburn because the usurpation has lasted so long (decades!) that it's too late to restore the Constitution now.
...and now we're waiting for the Originalist Case for Keeping Parts of Roe v. Wade.
And he looked from living-constitutionalist to originalist, and from originalist to living-constitutionalist, and from living-constitutionalist to originalist again; but already it was impossible to say which was which.
Prof. Snerd proclaims that the elixir isn't working because of the user's lack of faith, but the sadder-but-wiser dupe pours the elixir into the sewer because he no longer believes this stuff.
“Now, this analogy breaks down for umpteen reasons. I don't think the analogy between originalism and religion is a good one… But I think this analogy illustrates…”
My favorite part.
Not to pile on but...I think I'll pile on.
Here's a response to Sachs' post. The author sounds like some kind of liberal, because he supports the administrative state, criticizes originalism, and cites Rawls favorably. (just kidding about the liberalism, by the way)
https://iusetiustitium.com/gnostic-constitutional-theory/#more-1250
Josh, this analogy would hold if your critique of the "originalists" on the Court meant that the Federalist Society would just go looking for different "originalists" to support, presumably those who would not change their mind to meet the "demands of modernity," as you put it in your analogy. But that's not what you've been claiming. You've been claiming that the failure by conservative activists to achieve desired outcomes by putting so-called "originalists" on the Court means that the conservative activists must cast about for some other school of jurisprudence entirely in order to achieve those same desired outcomes.
So, to correct your analogy, you would have to consider the Christian who begins attending a particular church because, he believes, the church will follow Scripture's mandate that all homosexuals ought to be stoned to death. After joining the church, he finds that leadership is disinclined to fully embrace this position, and indeed moderates their statements on homosexuality, in order to ingratiate themselves to the community. Enraged, the Christian leaves the church and converts to Islam and joins a mosque down the street, whose imams he feels will be more likely to hold to the mandate that all homosexuals ought to be stoned to death (albeit by way of an entirely different set of religious principles). That is what you and that sycophantic little 3L are proposing to do.
Put another way, your analogy completely fails to address the core of the critique, which is that for decades originalists have claimed to have a superior method of constitutional and statutory interpretation. The same would hold for any given religious dogma - if you are a Catholic because you believe Catholicism best captures the key to salvation, you are not going to abandon Catholicism or its dogma just because you feel that Pope Francis has not been a good shepherd for the Church. That would be inconsistent with your belief that Catholicism is the best path towards salvation. Or, if you do, you'd reveal that your commitment to the faith was never that substantial in the first place.
Flim-flam artists sold Uncle Sam a Miracle Originalism Elixir to flush judicial tyranny and oppression out of the body politic. Uncle Sam now realizes that the elixir doesn't have the effects promised.
Yes, Uncle Sam was gullible, but he was sincerely trying to deal with judicial misbehavior. Now he's sadder but wiser as he looks around for other ways to deal with the problem.
Speaking of a new church, how about we take Michael Flynn up on his plan to make us all believe in one religion?
Une fois, une loi, un roi
Depends on how broadly you define "for the most part." To my knowledge, most Catholics, including the hierarchy, no longer believe that Jews are going to hell. Or that burning people at the stake is an acceptable way to gain converts. The doctrines of papal infallibility and the assumption are relatively new; St. Augustine would have greeted both with skepticism. The role of women and the laity have both expanded, and the priest no longer turns his back to the people when he elevates the host. And, I'd like to think no Medici could be elected pope. I would consider most of those to be significant differences.
While major christian beliefs have been *reasonably* fixed since the 4th century, it's really not true that earlier Christianity would necessarily find much in common with modern Christianity. Especially not the first generations (before there were any gospels).
I mean, there weren't even originally just twelve apostles. ('The Twelve' in Paul is not exhaustive of apostles, as he elsewhere refers to an apostle, by name even, who wasn't part of 'the Twelve', nor was Paul part of 'the Twelve').
Christianity had a huge variety of beliefs in the first several hundred years, many of which are poorly known because they were ruthlessly supressed (and what we do know of them is mostly from their critics). And aside from Paul's letters (and maybe one or two other epistles not by paul), we have nothing else even written by the first generation of Christians. Nor are many of the canonical interpretations of Paul certain, since they tend to interpret Paul in the light of the gospels, even though Paul wouldn't have known the (written) gospels (we have) at all.
Besides all the (now) condemned heresies, a big difference between early Christianity and later is that early Christianity was a millenial movement - they thought the end was coming soon.
The nature of Christ as all God all man took 300 years to figure out.
Originalism didn't/doesn't have a "purpose." It was just decided that it was correct.
And that wasn’t determined officially until 325.
How do you know what was 'always' a heresy? Christian documents from the first century of Christianity are really sparse.
You're mostly quibbling over words; the very fact that there is no longer an office of the holy inquisition that tortures heretics shows that the church is not the same institution it was in the middle ages. Some core doctrines are the same as they've always been; others are not, but the fact that you can now be a good Catholic and have a hamburger (made from a sacred cow) on Friday shows that it changes with the times. At the risk of sounding like Arthur, an educated population is not going to buy all the superstition of an earlier age. Today, any pope who tried selling indulgences to build a new basilica ("when a coin into the coffer flings, a soul from purgatory springs" -- yeah, right) would be laughed off the stage by his own followers. And that's even before we get to how many of the people in the pews take seriously the church's views on contraception and birth control.
Ditto Zoroastrianism and Hinduism. I've read accounts of how they were practiced in the middle ages and earlier, and there have been significant changes over time.
"Nobody though burning people at the stake was an acceptable way to gain converts, but they did think it was an acceptable way to treat heretics."
No, it was a way of gaining converts. Threatened with being set ablaze, most of us will agree to whatever the guy with the match wants us to say.
The priesthood is strongly anti-Roe, at least insofar as they admit it. The laity is pro. That's why the analogy is backwards.
OK, Luthor - what Constitutional doctrine do you want the US to end up with?
" The problem comes from about 100 years or so of living constitutionalism squatters in the precedent house. "
Yes, that's precisely the problem. So many precedents contrary to originalism have accumulated at this point that most legal professionals look at the pile, and just throw up their hands. Some originalists try to find some way to accommodate them, but all that does is break originalism.
Something that adherents of religion and originalism have in common is a fondness, or perhaps a need, for the sacred. Some texts or stories are deemed sacred, figuratively etched in stone.
The theory is that going forward, all that is needed to be done is to refer to the stone. And maybe also what some people said or wrote about the stone at the time it was deemed etched.
But there is always the intervening time between the stone having been deemed etched, and the current reference to the stone. It's easy to refer to the actual stone, but contemporary understanding of what people said or wrote about the stone is always going to be perilous. Texts or stones can be fixed in time, but there is no stopping the evolution of the lens used. It will never ever be the same lens used at the etching.
And it could have gone the other way quite easily.
"Nicene christology" gives the game away. The Council of Nicea was called to decide issues that were actively disputed at the time, centuries after the death of Jesus. Since none of the contending positions made any damn sense or had much in the way of scriptural warrant (In none of the Synoptic gospels, for example, does Jesus claim to be God, or otherwise divine; he is more the special messenger of God, much as Muhammad claimed to be the special messenger of Allah.), someone had to impose a solution then and there. Or so they thought, anyway. Why they needed to come to a decision on irreconcilable, even incomprehensible, issues of the sort with no practical importance is far from clear, but they squabbled, voted, and suppressed the losers. Long after whatever alleged facts there were on the matter.
How do you know which belief was pre-existent and which wasn't? Heresies didn't arise out of nothing and get consigned back to nothing with some sort of mainstream variant that never changed. Early christianity appears to be hugely diverse - modern doctrine is at best a winnowing, with little way to say which came first.
The winners did their best to erase the losers from history, so it's likely unknowable. But the 'winners' doctrinal writings don't even appear until the 2nd or even 3rd century AD, so you can't claim those beliefs even go back into the 1st century with any certainty.
I don't recall mentioning wifi; I have listed several fairly important issues on which the church is not the same church it used to be. If you're asking me to come up with something like renouncing the doctrine of the trinity or the virgin birth (each of which has origins in ancient Babylon that predate the church), then you would be right, but I think that's a pretty cramped view.
Especially in the Boston area. The Church as distinct from its members used to have outsized influence on some issues. I remember they successfully opposed a bill to repeal some unenforced and unenforceable laws because one of them mentioned abortion. Recall Texas' position that abortion is still illegal under state statutes, but the law is taking a court-ordered nap. It was the same here. The symbolism of repealing a law that was never going to be enforced was too much.
captcrisis, I'm not sure that's true. Any priest or (God forbid) bishop who came out in favor of legal abortion would not be a priest for very long. So we don't actually know what the priesthood thinks about it. It may genuinely be anti-abortion, or it may contain many priests who are pro-choice but can't say so. We know how well the priesthood complied with the celibacy requirement; who is to say that privately they don't consider abortion in the same light.
Also, there wasn't originally a latin mass. The original language of Christianity was Greek.
That’s why I said “insofar as they admit it”. Privately is a different matter.