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.]