Originalism and Witchcraft

Mark Graber

This squip is cross-posted at Quoth the Raven, the new University of Maryland Law Faculty blog

Whether states may constitutionally punish witchcraft is an issue that should receive more legal attention. The Supreme Court has cited Blackstone as a legal authority in 22 cases over the past three years. This week, both Justice Scalia and Justice Kennedy referred to Blackstone when discussing judicial takings in Stop the Beach Renourishment v. Florida Department of Environmental Protection. Blackstone on witchcraft is quite clear. His Commentaries on the Law of England defends state power to prevent persons from using the occult to harm others. “A SIXTH species of offences against God and religion,” he declared, “is . . . the offence of witchcraft. . . . To deny the possibility, nay, actual existence, of witchcraft and sorcery, is at once flatly to contradict the revealed word of God.” Blackstone then indicates such prosecutions are a bad idea. Nevertheless, as Felix Frankfurter repeatedly reminded Americans, lots of bad policies are constitutionally permitted.

Consider some fairly standard rhetorical moves that might be made to justify a state law punishing by death the sorcerers among us. To begin with, perhaps the word of Blackstone should be sufficient. To the best of my knowledge, no one in the eighteenth century claimed that state constitutional provisions on freedom of conscience and establishment barred prosecutions for witchcraft. Following Justice Thomas, if we are prepared to overrule 200 years of precedent contrary to original intentions, we ought to seriously getting rid of those unfortunate precedents that might prevent law enforcement officials from shutting down the Wicked Witch of the West.



Bans on witchcraft also survive some common understandings of free exercise doctrine. States may restrict the exercise of religious freedoms when doing so is a necessary means for a compelling government end. The witches and warlocks among us are threatening severe harms. Blackstone observed that there spells might prove fatal and the protection of human life is a compelling interest. Of course, most of us do not believe that witchcraft is effective. That is an empirical question that is traditionally thought to be the prerogative of the legislature. If elected officials wish to burn witches, surely they will be able to provide empirical evidence at least as good as the evidence for creation “science” or the evidence Justice Kennedy in Carhart v. Gonzales thought proved women often regret abortions.

The establishment clause does not present insuperable problems. Justice Scalia and Thomas insisted in McCreary County v. American Civil Liberties Union of Ky. (2005) that states could favor traditional monotheistic religions. One arguable feature of traditional monotheistic religions is a belief in the Devil as well as in a Divine Being. Certainly this was true of much Christianity in the 18th century, which is all that seems to matter for much constitutional interpretation.

The Constitution, this squib suggests, provides no protection for suspected witches and warlocks. Culture protects people. We do not prosecute people for witchcraft because we do not believe in witchcraft. Change the culture and constitutional protections may fail. Imagine that people for various reasons decided witches existed among us. Could lawyers in good faith make the above arguments when defending statutes punishing witchcraft? Might justices committed to Scalian originalism be committed to upholding those statutes on Blackstone’s authority?
Posted 5:30 PM by Mark Graber [link]