Balkinization: The Deep Tension between Divine and Popular Sovereignty in American Constitutionalism

The Deep Tension between Divine and Popular Sovereignty in American Constitutionalism

Sandy Levinson

I have just published on the Canopy Forum on Law and Religion, at the. Emory Law School, an essay "Divine Sovereignty, Popular Sovereignty, and the Dilemma of American Constitutionalism." It is especially appropriate to bring this up on the eve of Rosh Hashanah, the Jewish New Year, which emphasizes not only the general theme of divine sovereignty, but also, more specifically, the presumptive "duty" of Abraham to obey the absolutely indefensible command that he sacrifice his son Isaac, after earlier, Abraham had, also indefensibly, banished his concubine Hagar and her son, Ishmael, because his wife Sarah was jealous. The central point of the essay is that contemporary American constitutionalism is riven by the problem of "dual sovereignty," not between the national government and states, a faux issue, theoretically, because it can be handled by reference to "popular sovereignty," but, rather, the tension between vox populi and claims to be able to hear the divine voice and be guided accordingly. I see no way out of this dilemma other than what Levitsky and Ziblatt call "forbearance," and I see precious little of that right now in our society, as the contending sides wish to stand on their respective legal "rights" or "powers." This is obviously linked, in its own way, to Andy Koppelman's valiant attempt to seek peace with regard to wedding cakes and much else.

[UPDATE: Two of the discussants bring up important notions. From Judaism, there is the maxim "DINA DE-MALKHUTA DINA" "...... the halakhic rule that the law of the country is binding, and, in certain cases, is to be preferred to Jewish law. The problem of dina de-malkhuta dina is similar to – but not identical with – the problem of *conflict of laws in other legal systems." And Christianity, of course, includes the similar maxim about rendering unto Caesar that which is Caesar's, though, in addition, Christianity also includes Romans 13:1 that suggests that Caesar is in effect sent by God to rule, a notion wholly alien to the Jewish tradition with regard to Christian rulers. In any event, it is obvious that in the modern world both maxims fail to capture the extent to which certain members of both the Orthodox Jewish and Christian communities are quite unwilling to accept "the law of the country [as] binding." Israel, in particular, has a significant community of "haredi" (those who "quake before God"), who view the commands of the Torah and Talmud as taking precedence over the commands of the State of Israel; indeed, some of the ultra-Orthodox refuse to recognize the legitimacy of the State, because only the Messiah can refound a genuinely "Jewish state." Moreover, there are Orthodox Jews in New York who, like the Amish, refuse to comply with New York's laws regarding educating the young, much to the detriment of youngsters who are the victims of what outsiders would describe simply as totalitarian brainwashing. See, e.g., the HBO series "Unorthodox" or, even better, the Israeli series "Shtissel," on Netflix. One could obviously go on and on with regard to Christians who refuse to view Caesar as having genuine political legitimacy and who proclaim, like John Ashcroft, their devotion to "King Jesus" And recall that the likely Trumpista nominee to the US Supreme Court, Amy Comey Barrett, told her students at Notre Dame several years ago that they should always recognize that a "legal career is but a means to and an end... and that end is building the Kingdom of God." Perhaps, like Justice Brennan, she is prepared to testify under oath that there is never any conflict between fidelity to the Constitution and fidelity to God, but I think that most of us believe that this is, to put it mildly, a questionable position. At the very least, it deserves careful examination by the Judiciary Committee, but most senators are incapable of serious inquiry on the matter, and Barrett's partisans will immediately charge anyone who asks what she meant of being anti-Catholic. More sign of "constitutional rot," as far as I'm concerned.

I'm afraid that I don't know enough about Islam or other religions know exactly how its central thinkers have approached this dilemma of being faithful to the belief system in a state that is decidedly not committed to the religion. Any knowledgeable postings would be much appreciated. As always, incidentally, the only comments I'm really interested in reading are from people who have actually read my linked essay on Canopy.]

Posted 6:49 PM by Sandy Levinson [link]

Comments:

Nice related article. Unfortunately, the author has ignored (or is unaware at first place) the most important one in Judaism in this regard of "Dual sovereignty" and it is the principle of:

"DINA DE-MALKHUTA DINA" Which means, I quote ( from "Jewish virtual library"):

"...... the halakhic rule that the law of the country is binding, and, in certain cases, is to be preferred to Jewish law. The problem of dina de-malkhuta dina is similar to – but not identical with – the problem of *conflict of laws in other legal systems."

Here:

https://www.jewishvirtuallibrary.org/dina-de-malkhuta-dina

Thanks

# posted by

el roam : 7:42 PM

I have just learned that Justice Ginsburg, died on Friday. Great loss. Here:

https://thehill.com/regulation/court-battles/416004-supreme-court-justice-ruth-bader-ginsburg-dies

# posted by

el roam : 7:52 PM

I'm sorry to hear of her death, though it comes as no shock. I do hope she repented before the end, but I fear she likely didn't.

I thought she should have retired a year or two ago, just on the basis that she was no longer actually up to doing the job. But I guess there was nothing she liked more than being a Supreme court justice to the end.

# posted by

Brett : 8:47 PM

Brett, when are you planning to “repent”? Because cancer is almost certainly coming for you, and unlike Ginsburg, you’re a racist fucking scumbag. Repenting is going to be pretty important for you. Are you planning to wait to the end?

# posted by

Bartbuster : 8:57 PM

I have little doubt that Ginsburg repented of whatever sins she had committed - which likely are not those Brett would like to accuse her of - well before her death.

To be fair to Brett, my understanding is that he has become (or again become)a devout Catholic. As such he presumably confesses such sins as he acknowledges on a regular basis, and seeks absolution.

I am not being sarcastic.

# posted by

byomtov : 9:25 PM

Being a devout catholic means absolutely nothing. Literally thousands of children were abused by devout catholics.

# posted by

Bartbuster : 9:38 PM

Moscow Mitch in 2016

"The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president," McConnell said.

The American people may well elect a President who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy," McConnell said in a Senate floor speech March 16, 2016.

A few days later on Fox News Sunday, McConnell said that Senate Republicans are "following a longstanding tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year."

# posted by

Mista Whiskas : 9:42 PM

Being a devout catholic means absolutely nothing. Literally thousands of children were abused by devout catholics.

Yes, and those are far from from the only sins the Church is guilty of. But those are not Brett's sins, I think.

Of course, it is useful to point out to him that it is not for him, or the church, to judge what Ginsburg should have repented of. He should concern himself with his own soul, not Ginsburg's.

# posted by

byomtov : 9:58 PM

I don't know what signs there were that RBG was not "up to the job" a year or two ago. She seemed "up to the job" this year, while she fought cancer, including asking tough questions from her hospital bed. As to repenting, she is from the Jewish tradition, and she died as the Jewish New Year began. It is partially a time to repent and it would not surprise if she chose to do that. Let her memory be a blessing.

# posted by

Joe : 10:00 PM

# posted by

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# posted by

William Morgan : 10:49 PM

Yes, and those are far from from the only sins the Church is guilty of. But those are not Brett's sins, I think.

# posted by Blogger byomtov : 9:58 PM

My point is that it doesn't matter if he's a catholic. He's a racist fucking piece of shit. The sooner he dies, the better.

# posted by

Bartbuster : 12:06 AM

# posted by

William Morgan : 12:16 AM

"My point is that it doesn't matter if he's a catholic. He's a racist fucking piece of shit. The sooner he dies, the better."

I miss the days when I couldn't understand how the left could keep building gulags when they got into power. Or how people could embrace Marxism knowing its track record.

# posted by

Brett : 8:17 AM

It seems odd for Mark Tushnet to end his post with a series of questions and then close comments. Well, maybe not so odd -- penile enhancement seems an unlikely answer to them.

# posted by

Mark Field : 8:40 AM

I miss the days when I couldn't understand how the left could keep building gulags when they got into power. Or how people could embrace Marxism knowing its track record.
# posted by Blogger Brett : 8:17 AM

I miss the days when I didn’t know that there were racist morons who thought that equal rights was “Marxism”.

# posted by

Bartbuster : 10:46 AM

Clearly, the questions were rhetorical, Mark. Why would they not be?

[Comments to this comment closed.]

# posted by

Joe : 11:21 AM

Heh.

Bartbuster, for conservatives equal rights have always been Marxist. The whole conservative ideology has always been that some people *deserve* to rule over the rest.

# posted by

Mark Field : 11:29 AM

I miss the days when I couldn't understand how the left could keep building gulags when they got into power. Or how people could embrace Marxism knowing its track record.

How many gulags did Obama build?

How many are there in the Western European social democracies?

You're deranged.

My point is that it doesn't matter if he's a catholic. He's a racist fucking piece of shit. The sooner he dies, the better.

My point was not that being Catholic was some sort of excuse for his odious comment. Rather, it was that that's one more reason he has no business talking about whether Ginsburg should repent, or what she should repent of. Of course that doesn't stop him. I mean, this is a guy who thinks he's entitled to decide who is and who is not a "real Jew."

# posted by

byomtov : 11:29 AM

Lindsey Graham, 2016: "I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination."

Ted Cruz, 2016: "It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don't do this in an election year."

Republican after Republican dishonoring themselves. It's what supporting Trump does to a person.

# posted by

Mista Whiskas : 11:30 AM

Mark, penile enhancement ads are actually more logical and germane than some posts we get in here.

# posted by

Mista Whiskas : 11:31 AM

I'll actually defend Bircher Brett (somewhat) on this point. He's an ostensible Christian of the Catholic persuasion, and penance/contrition is a sacrament in that faith tradition, so what he says can be fairly interpreted as 'I hope the person went to heaven (which they can do only following the mandates of my faith tradition).' It's obtuse as heck (not surprising there) but on it's face at least well meaning.

# posted by

Mista Whiskas : 11:34 AM

Sure. And my hope that cancer finishes the job that it started is equally well meaning.

# posted by

Bartbuster : 11:48 AM

I urge everyone to give Levinson's linked essay a read, it's quite brief and I think makes a very interesting point. To a large degree (though how large I'd like to comment on in a minute) our 'culture wars' can be ascribed to the idea that a US citizen feels beholden to follow the mandates of 1. their religion and 2. their State(s) or the law they live under. History affords examples of this conflict reaching heightened results (A Man For All Seasons, for example). Here Quakers might feel compelled by their religion to defy immigration law, Baptists may feel compelled to defy anti-discrimination law. I like that Levinson stresses an aspect of 'forbearance' that I don't hear about much, that is we often talk of the importance of legal forbearance in the form of religious exemptions, but there might also be some duty (to the law or State) on religious people (or not) to forbear in insisting on the full extent of their legal rights in every occasion. As an example, my children's principal often ends his official communications to parents in the name of the school with 'God Bless You.' My wife, an agnostic, has complained to me that she finds this violates the separation of church and state, a 1st Amendment right, and perhaps she should formally write the school board to that effect. I've told her not to on the grounds of, is it worth the strife and conflict (you can bet your bippy that were he to end with 'Allah be praised' or 'Satan Bless you' there'd be so many complaints it would make your head spin, sadly majorities [perceived or otherwise] are full of obtuse privilege]).

In the past it seems to me that one way to avoid this on the side of the state was to say 'your beliefs and defining religious exercises are protected, but your general actions only require that the restrictions not be aimed at your faith.' That's been undercut by the argument, not obviously incorrect to those of us religious (or non-religious but guided by an important ethical ethos), that religious mandates permeate every aspect of our life. The downshot here is there may be no area of forbearance at all. This heightens the culture wars.

I submit that one key to this conundrum is the total abdication, again for not obviously incorrect reasons, for courts to enter the fray about whether any given restriction 'substantially' burdens a plaintiff's religion.

Another way to avoid this, at least from the tradition I'm part of, is the Scriptural commands to 'render unto Caesar,' be 'in the world but not of it,' and 'obey your civil leaders.' On the religious side, at least the Christian part, it might be important for believers to talk about how these argue for more 'forbearance.'

# posted by

Mista Whiskas : 11:56 AM

MW, point taken re the penile enhancement ads.

# posted by

Mark Field : 12:08 PM

I recently read Jack Rakove's new book on the history behind the Free Exercise Clause and what I found particularly interesting was his early discussion on how merely recognizing a basic concept of individual free exercise was a major step.

(Jack Rakove years back won a Pultizer for his book on the original meanings of the U.S. Constitution, viewing things as a historian. He notes in this recent book, part of a series of small books on constitutional topics, that history of course can not by definition tell us how to apply the Constitutions. It can be useful.)

He briefly nears the end touches upon current conflicts, noting basically that many of them basically were not in the minds of the likes of Madison and Jefferson. The felt need to opt out of a birth control requirement or the like is a product of the modern state. Something like not saying "under God" is more traditional, a test oath.

Anyway, the article cited is interesting, including the realistic need of not pressing the envelope all the time. In practice, realistically, that can not be done evenhandedly. It results in religious favoritism really. I think on that front the RFRA is a too blunt instrument, at least as currently applied. When it comes to actions, especially in public locations such as public accommodations, some balance needs to occur.

On the front, I respect the need to accommodate some. But, and not really consistently at that, the conservatives on the Supreme Court now do so in too blunt of a way. The birth control mandate cases underline this, especially when it results in burdens, including of people's moral choices, such as for employees with non-conservative views on the matter.

# posted by

Joe : 12:42 PM