Wednesday, May 15, 2013

Our Divine Constitution

It wasn't the first academic piece I had accepted for publication (that would be "When Separation Doesn't Work: The Religion Clause as an Anti-Subordination Principle, which came out in the Dartmouth Law Journal when I was still at Carleton).

It wasn't the first piece of academic scholarship I published in a true law review (that would be my law review comment, The Price of Victory: Political Triumphs and Judicial Protection in the Gay Rights Movement). Nor was it the first piece I published as a professor (The Perils and Promise of the Holder Memo), or even the first full-length piece I had accepted for publication (Sticky Slopes, which I believe is scheduled to come out this October).

But nonetheless it is a milestone, and I am pleased to announce the publication of my first full-length law review article to actually hit the presses: Our Divine Constitution, 44 Loy. U. Chi. L.J. 1201 (2013). An abstract is below (I realized that I never actually wrote an abstract for this piece, so I whipped this up in the last 20 minutes).
The presumption that God is omnibenevolent — inherently just, wise, kind, and merciful — is so pervasive as to be almost a tautology. Were God not just, God would not be God. And the United States Constitution, often analogized to a religious document, has regularly been spoken of in the same way. While we accept that the Constitution can tolerate injustice, we are highly resistant to the notion that it can actively command it. When that appears to occur, we are torn between our intuition that the Constitution must allow for justice, and our instinct that our sense of justice cannot deviate from the dictates of the Constitution. We reject either that the contested point is the true command of the Constitution, or the true requirement of justice. Moreover, because Western political thought predicates the legitimacy of constitutional law on its consistency with prefigured conceptions of justice, if we cannot adopt either of these apologias, the only remaining move seems to be rejection of the Constitution itself.

In this review of Robert A. Burt’s book "In the Whirlwind: God and Humanity in Conflict," I address this tension both in terms of theology and legal philosophy. Borrowing from the literature on "protest theology", I argue that neither our faith in the Constitution nor our faith in God is or can be predicated on the idea that these sovereigns are always behaving in a perfectly just manner. But I also reject the notion that injustice is an inherent part of these entities or that our relationship with them is unrelated to our desire for them to help instantiate justice. Our commitment to God and the Constitution is not dependent on their supposed perfection. It exists because it is a relationship we find meaningful even in spite of continual, mutual failings. It persists in spite of those shortcomings not because either God or the Constitution is "truly" or "essentially" just, but because we think it is a relationship worth preserving, and that each can at least be appealed to in the language in justice.
As always, I'd love you feedback.

It's been a really hard year this year, and it did not go the way I had hoped (to put it mildly). But I can do this, and this article will be the first of many.


Thekat said...

So I left a long comment and it got deleted because I'm an idiot. Anyways, I said that I'm not an expert, but I was wondering why you compare the constitution to God and not to the bible or some other religious document. I agree that many people treat the constitution like it's a religious document, and that it is not perfect, but it seems to be that it should be compared to an actual religious document, rather than God Himself. God could be (and should be if He's all-powerful) perfect while Man's interpretation of Him is imperfect because he is beyond our comprehension.

You can still have a commitment to religion despite the failings of organized religion and/or religious belief in general. But I always thought that Christian/Jewish/Muslim God was perfect by definition. I mean he's all powerful, so He gets to decide what perfect is after all.

And while you could certainly question that, I think questioning God in this manner and saying our faith shouldn't rely on His perfection would be more logically compared to the ideals that inspired the constitution, and not the constitution itself.

If the constitution is a religious document, then the writers of the constitution are analogous to God, and their philosophy is the so-called perfection that one could compare to God.

The constitution itself is an imperfect attempt to put their philosophical perfection into law, just like the Bible is an imperfect attempt to put God's word on paper. If you're going to say God and the constitution are comparable, I think it needs more justification than I read in the abstract.

That said, I only read the abstract, and it's very very possible that I completely missed the point (and I already recognize that I'm quibbling about something that's not the main point of your paper). Also, I don't think I'm very good at expressing my thoughts in writing.

Thekat said...

So I posted this and then afterwards read your comment policy, so now I'm scared I'll get banned for poor reading comprehension <3

your comment policies are scary you know.

This is Evan by the way I have no clue why it says my name is Thekat.

PG said...

Are you going to revise Sticky Slopes to reflect the latest changes (e.g. doubling of the number of states in which SSM is legal)?