Liberty Law Talk

Long-time contributor to Law & Liberty, James Patterson, discusses his new book, Religion in the Public Square. Richard Reinsch: Today we’re talking with James Patterson about his new book, Religion in the Public Square: Sheen, King, Falwell. James Patterson teaches politics at Ave Maria University and I’m delighted to say, is a frequent contributor to Law & Liberty. James, glad to have you on the program. James Patterson:  It’s good to be with you, Richard. Richard Reinsch:  Congratulations on your new book just out with Penn Press. I thoroughly enjoyed reading it this week and preparing for this interview. Before we get to that, though, James, maybe introduce yourself more to our audience. You’ve been writing some for Law & Liberty. You teach at Ave Maria, located- James Patterson:  That’s right. Richard Reinsch:  in South Florida, a new university outside of Naples, Florida, I’m told. I’ve never been there. I’ve been to Naples, not to your university. I need to come sometime. If you follow James Patterson on social media you can frequently be treated to scenes from his family running across the state of Florida in the family auto, I should say motoring, as they escape oncoming hurricanes with great commentary from James about their adventures. James Patterson:  Yes. That’s the next book project. It’s the travel log from Irma and other such events. Richard Reinsch:  You really make it fun. One was about, the great thing about fleeing a hurricane in Florida is all the great scenery, but it was you surrounded by parking lots. James Patterson:  That’s right. When fleeing Irma, we drove an unbroken trip west and most of the time, when I had time to take pictures, it was in parking lots of Panera’s. My daughter, at one point, is delusional in one of the photographs. I was very proud of her for holding it together, considering she had no expectation that that afternoon that she was just going to get trucked to Texas. Richard Reinsch:  Also Ave Maria, I’m told, a new university built on or near a swamp … Frequently encountering wildlife, I’m told, is part of the job description at Ave Maria. James Patterson: That’s correct. I live in a neighborhood where there’s considerable controversy over the placement of garbage cans too late at night, or overnight. As a result, the bears come to our neighborhood relatively frequently, now during the day. They just come up and down the street. Richard Reinsch:  They’re fun black bears, right? James Patterson:  These are just, yeah, they’re very sweet … No, I’m just kidding. They’re black bears, but it’s terrifying when you see someone’s very large dog has apparently escaped. Then you’re like, “Oh, no, that’s-” Richard Reinsch: That’s just a bear. James Patterson: “That’s a bear.” With the sheer volume of small children at this very Catholic university it’s funny, but then it gets kind of scary because you don’t want the kids to come running outside to pet the dog. Richard Reinsch: Now, you do find time to write. You’ve written this book, Religion in the Public Square. That title, though, raises a lot of questions. What’s going on in this book? James Patterson: Religion in the Public Square: Sheen, King, Falwell is about three cases in which we find political, sorry, public policy influenced by major religious leaders. The cases are listed in the subtitle. Soon to be Blessed Fulton J. Sheen, Doctor Martin Luther King, Jr., and Reverend Jerry Falwell. The public square, here, is understood in many cases as a media space, although all three figures obviously also engaged in real public square debates, such as Sheen giving public addresses, King marching through Birmingham, and Falwell giving public addresses in such places as Cambridge, Massachusetts. There’s a media story in that public square. The funny thing about those stories is that they’re all very different. Fulton Sheen was able to be ahead of the curve when it came to mass media. Richard Reinsch: Maybe a lot of our listeners have heard the name Fulton Sheen. Maybe place him for us and give us some context. Maybe we can do that a little bit more in depth in the interview. Before we talk about these three figures, you have a wonderful chapter introducing the both prevalent and difficult and complicated presence of religion in American political life and in our public philosophy. You introduce us to Alexis de Tocqueville and the way he writes about religion. You quote his famous phrase, “The spirit of religion and the spirit of liberty.” Maybe talk about that. James Patterson: Yeah, that’s true. I start there. So, Alexis de Tocqueville observes that in America, unlike in France, the spirit of religion and the spirit of liberty were friends and formed a common religious dogma that served as a political foundation for public discourse, which isn’t to say that American public discourse is always very pious or even necessarily very ethical. But at least it had a sense of limits that were placed on a common understanding of the human person, the nature and purpose of government and the obligations that individuals have to each other and their communities and to their broader political organizations. The achievement of this alliance was as a result of the disestablishment of churches from the federal government and in some cases, most cases at the time but not all of them, from the state government. And what this enabled, was the congregations and clergy to be dedicated to their own spiritual welfare. The clergy were no longer dependent on the state for the collection of tithes to support parsonages. The people were no longer scandalized by corrupt relationships between state and church after. And so, the state was then free to pursue whatever ends it was responsible for, whether at the national level that we study, through trade policy, or at the state level that the … managing contracts or setting regulations on businesses, building bridges and the like. This kind of relationship was very profitable for the United States in terms of producing as much political liberty for a republican government as possible, as well as empowering the states of the various people to be relatively unmolested, and, the entire outcome was quite a contrast to the way things were going in France at the time. Richard Reinsch: The disestablishment, being a part of American thinking, although certain states had established churches, I think the last one was 1833. Thinking about that, how does religion shape democracy in America, and how does democracy in America end up shaping religion in America? James Patterson: So, religion becomes a kind of common language that people use in order to speak to each other about all things in their lives, especially with respect to politics. And, this need for a common dogma is one Tocqueville routinely observes. As an example from a book that I relied on by Alan Kahan, Tocqueville, Democracy and Religion, out from Oxford a couple of years ago, has this great example of dogma being something like the study in what colors of light mean when you enter an intersection, with individuals free to determine what the light colors mean on their own, then you have a lot of traffic accidents, because some people think red means go, some people will think yellow means go and some people think green means go. And, what religion does, is it sets what those things really are in our public discourse, and it also orients individuals away from material life and teaching those dogmas. So, the Christian church dedicates individuals pursuing a kind of spiritual happiness. It places as secondary importance on material happiness, and Tocqueville is extremely concerned about this, because American democracy shows on the seams, on the limits, there are these examples of a hunger for material wellbeing. And so, religion is very necessary to prevent people from succumbing to temptation pursuing unvarnished wealth. One final thing is that religion provides a kind of softening of the mores. It provides a discourse that is productive of better manners among individuals in their daily lives, instead of a kind of coarseness that emerges, and this is partly because religion brings people out of the home and civilizes them to engage in ordinary life, which is absolutely essential if you’re going to have a free people engaged in a self government. So, there’s a lot that religion does for democracy. As for what democracy does to religion, the general idea is that it provides for the defense of the individual conscience. In this respect, there’s a fear that if the individual conscience is left on it’s own, then it may not be properly formed to pursue the spiritual goals of whichever church denomination you belong to. But in fact, what that means is that churches then have the liberty to go out and seek people and bring them into the faith. So, there’s actually a lot of good that democracy does merely by getting out of the way of the good ministration of a clergy. Richard Reinsch: The spirit of religion and spirit of liberty, Tocqueville says, and you talk about this in your book, “Religion and liberty aren’t seen at loggerheads in the American tradition,” although we can talk about how that’s changed now. Maybe we’ll do that later in the interview. But, the spirit of religion, and the spirit of liberty reinforce one another. James Patterson: That’s right, provided that the institutions are kept in the balance that he finds them in, and it was a rather spectacular experience of no clergy in America appearing to want to belong to government. That’s the thing that really startles Tocqueville, especially when talking to the Catholic priests. Richard Reinsch: So you write about the progression from Protestant hegemony to Judeo-Christian consensus, so the Protestant hegemony being America, part of the 19th century, going into the 20th century, we can talk about the things that challenge that, and you write about Archbishop Fulton Sheen who … the Protestant hegemony was not open to Jews and not open to Catholics. Sheen opens that up, but then also the Judeo-Christian consensus, you argue, as it will receive another enlargement under Martin Luther King Jr. will then close. Curiously, you argue it’s either caused or correlated with Reverend Jerry Falwell, and so, maybe we can just move through that, but thinking about Archbishop Fulton Sheen, how does he challenge the Protestant hegemony and what does he bring? James Patterson: So, just to set some terms, Protestant hegemony, these terms I get from Darryl Hart. It refers to the period in which the United States experienced a mass evangelization in the United States known as the Second Great Awakening during the 1830’s. In fact, part of what so impressed Tocqueville about American religiosity was that he was here when this was going on, and could very easily credit the fact that there was no established church as one of the key institutional factors that led to this evangelization. And, hegemony really continued through the Civil War, into the beginning of the 20th century, and that hegemony expressed itself frequently when it came up against groups it didn’t like. So, one of the examples of this would be essentially the harrowing of the members of the Church of Jesus Christ of Latter Day Saints or what we call Mormons from northern New York all the way out to the canyon lands. We forget that we actually declared war on Mormons for a while, in 1858, I think it was. And so- Richard Reinsch: An extermination order was issued against the Mormons, I think. James Patterson: Yeah, I guess there was a lot going on in 1858, so there’s a lot of headlines that we have to … and, at the same time that’s going on, you have a lot of nativist opposition to the Catholics, especially Irish Catholics who were perceived as foreign agents who would undermine republican liberty rooted in the English Reformation, and that language was very common and frequently used for political purposes. I told this nice story from Tocqueville earlier. I don’t mean to leave out these rather unpleasant historical moments, and so, Protestant hegemony is more or less in place until itself experiences a kind of internal rift that sends two sides of Protestantism in America in two different directions, begins with the advancement of historical criticism of the Bible that became known as modernist or liberal Protestantism, and then fundamentalist people who wanted to insist on traditional Protestant dogmas, differed over the direction that this theology was taking different Protestant in our nation. You have that famous split that occurs over a period of 10 years between what I mention we call the fundamentalists and the mainline or liberal Protestants. And, once the fundamentalists go their separate ways, starting their own institutions, in some cases, denominations, that left mainline Protestants able to reach out to other organizations that maybe they shared cities with or they shared common interests with. A lot of history is told in a book by Kevin Schultz call Tri-Faith America, which ends right around the same time that I’m picking up my cases. So, I just want to set that’s what Protestant hegemony means, and these folks, these mainline Protestants that reach out to Jews and Catholics during this period are doing so because of paramilitary violence by the Ku Klux Klan. There is a real urgency to this in the 1920s, and the ironic outcome is no sooner do mainline Protestants began this kind of outreach to American Catholics and Jews, is that the leadership of the Judeo-Christian consensus is immediately under contest. So, one of the first people who really is able to marshal a kind of national audience that could describe themselves as Jews, Protestants and Catholics was not a mainline Protestant minister, but rather, Monseigneur Fulton J. Sheen in the 1930’s who would later be made a bishop in 1951. What Sheen was able to accomplish was in two stages, that proves that American Catholics were patriots, that they loved their country, and to do that required both illustrating that the common enemy that Protestants identified that is the Catholic church, was actually a friend, and at the same time, that there was an actual common enemy to all people, and that enemy was Communism. Sheen began this effort, under direct instruction from Pope Pius XI, and for those of you who don’t know Fulton Sheen was from outside Peoria Illinois, El Paso Illinois and from an Irish Catholic family. He was born in 1890, I forget the exact year, and was always a star student. He ended up just finishing his graduate work at the University of Louvain, where he received a degree of the highest honors. He was one of the most accomplished academic theologians ever in the history of the church up to that point. When he took to the airwaves in 1930, he was bringing with him the kind of full force of this neo-Thomistic revival that Louvain had been leading, and was bringing it to of all places, the living rooms of the American people all with their radios on. Richard Reinsch: So, what did Sheen want to bring to the public square? James Patterson:  So, it’s no coincidence that when he was going to the public, it was 1930, be the Catholic church in America was still smarting from the vociferous anti-Catholicism of the 1928 presidential debate, in which the first Catholic nominee, Al Smith, had run for president. And so, Sheen saw that it was necessary for him to go on the air and explain Catholicism. He did so on the radio show called the Catholic hour. And, the argument that he made was that the common good in the United States was spiritual happiness. So, everybody is pursuing some kind of spiritual growth and a necessary condition for that pursuit is political liberty. And for the establishment of political liberty, you had to revere the elements of the American regime that were most responsible for it. So, he was adamant in defending the United States Constitution and the Declaration of Independence as instruments of liberties for the pursuit of spiritual happiness. And, he calls it Americanism, which is a fraught term for American Catholicism, and it was strange is that he went for that term. He could’ve chosen a lot of different terms. I get into this in the chapter Americanism with selected Protestant hegemony called the true message of the American Constitution, which repudiated Catholicism, and it was also a term that has been more or less condemned by Pope Leo XIII in the practices of some churches in the United States. Sheen goes right for this term. It was absolutely no punishment, instead, tremendous support from the Vatican in the process of using it, and the idea here is that when you look at the way that the church operates in America, it is constantly operating in a way that affirms the need for spiritual happiness and the liberty to pursue it. There’s this not this conspiracy from Rome to undermine republican institutions, rather, there is an overwhelming support for those institutions. And, the real target for American opposition should be Communist countries that are responsible for the closure of all different kinds of religious institutions and the persecution of believers because Communism was, in his regard, what he called the mystical body of the anti-Christ that had its own Scriptures. It had its own saints, and he would make fun of the fact that Lenin had to be embalmed in order to look like he had immortality or eternal life. So, these were all hideous simulacra is another term he uses. It revealed the true evil in the heart of Communism that all Jews, Protestants and Catholics could agree, was truly evil and needed to be opposed. Richard Reinsch: Well, the Americanism he wants to correct is a Protestant use of that term against Catholics and against other dissenting groups as they see them. He wants to use Americanism because the Vatican has condemned it, without full information and he wants ultimately to vindicate maybe a deeper understanding of liberty, but run it through the American Constitution, through the foundations of constitutional order in this country and defend liberty in that manner. James Patterson:  Yeah, that’s exactly right. And, the consequence of this was overwhelmingly successful, not just owing to the message, but also the messenger. Fulton Sheen was a man of incredible oratorical gifts. Richard Reinsch: He hosted a national television show in the early 1950s, you write about that in the book, that was widely lauded, which still is worth thinking about. I think the episodes are available on YouTube. And, he does this Americanism on the show and frequently takes on a current issue, and found a way … you talk about also, he could bring a lot of people into the discussion that say, didn’t subscribe to his faith. James Patterson:  The show was called Life is Worth Living. It won an Emmy, I want to say in 1952, and he won an Emmy against Frank Sinatra and Milton Berle, which is pretty good. One of my favorite stories about this is that a friend of mine who’s Baptist, his father was a minister, a Baptist minister, talked about how his father would watch Life is Worth Living, despite the fact that there was this spate of priests on the television, not supposed to watch this as a Baptist. But, he would write down some of the best lines of the show and use them in his own sermon. Yeah, he did have this ability to draw in audiences and that made him have a pretty strong platform to speak to public figures as well. He was showing up at the Eisenhower White House somewhat frequently, for example. Richard Reinsch: We started off and you started off in your book talking about Tocqueville and the particular place, important place religion has in America and as a public philosophy. And then, we talked about the problems with that, the challenges, the violence, the refusals, at first to admit certain groups. How do you see Sheen and how do you see his Catholic intervention into Protestant hegemony. Is that working out Tocqueville, or does that challenge what Tocqueville says? James Patterson:  This is tough for Sheen. When he’s getting started in the ’30s, he’s actually getting it in the ear from Social Gospel Protestants, like G. Bromley Oxnam who was a Methodist bishop. Richard Reinsch: Social Gospel Protestants being those who perhaps, say downplayed traditional Christian beliefs in favor of social democratic or progressive uplift and heavy focus on politics. James Patterson:  Precisely, sort of the development of American states where it’s a public welfare, in which the church would be an advocate about it, and the state would be the dispenser. And so, the reason why Sheen had to deal with this was also because of the prevailing anti-Catholicism among many of the American Protestants, despite the kind of efforts of some mainline Protestants to start a new consensus, a new Judeo-Christian consensus. And, the way that he was able to affirm to the contrary, was constantly to talk about America in these terms that established constitutional democracy as a regime, that not only Catholics could tolerate what internalized as part of belonging to their country that they followed themselves. And so, these individual points, especially early in his career, were the kinds of examples where he had to make the rubber meet the road. He has this great message. How is he going to prove that he actually means it. And, another way that he often did this, was in the form of conversion, so he was responsible for bringing Communists into the Roman Catholic church. There’s this pattern that emerges with Fulton Sheen, that as he brings Communists either … some of them were actually former Catholics, to bring them into the church or they would return to the church. And then, no sooner would they make this conversion and they would enter into the church, he would immediately send them to the FBI for debriefing or the CIA for debriefing where they would then be given some degree of federal protection. So, you actually see in the process of Sheen’s conversions of these people, it moved them from this bad stuff that’s bad for America, it’s bad for people of conscience, and reconstituting them as good citizens. Richard Reinsch:  This part of the book is interesting for me, having written on Whittaker Chambers, because I was not aware of Sheen’s role in converting some of the people who had been in Chambers’ network. One of which was the blond spy queen, Elizabeth Bentley, and also Louis Budenz, who worked with Chambers, and Chambers refers to him several times in Witness. I wondered if Sheen or Chambers ever interacted. They had to have at some level, I would think, but- James Patterson:  They had to have. Richard Reinsch: Maybe we will leap from Sheen in the 1950s, maybe there’s a bridge on Sheen and civil rights. You don’t write that much about Sheen and civil rights. James Patterson: Sheen on civil rights, he was strongly in favor of civil rights, but by the time he was speaking on this, he was on television shows that were not getting renewed and he was more or less becoming a marginal figure in political life. Richard Reinsch: As opposed to meeting with presidents in the White House. James Patterson: Yeah, at that point, he was living in a one bedroom apartment in New York, because he was on the outs with Cardinal Spellman, but read the book if you want to know more about that. There’s Thomas Reed’s book on Sheen that’s really good on this too. Richard Reinsch: Martin Luther King on the Judeo-Christian consensus. Tell us about King’s approach through his theological idea of the beloved community. James Patterson: King’s fascinating on this, because no sooner do you start to see … the point at which Sheen is really at his pinnacle of influence over this Judeo-Christian consensus, is in the middle of the 1950s, and it’s no sooner is he at that pinnacle, then you start to see someone else who might also have a claim to preaching to this coalition of religious believers, the consensus of religious believers, and mobilizing them towards some other end. James Patterson: And, King actually makes some references to Sheen early in his career. He actually criticizes one of his books, Peace of Soul as being insufficiently concerned with the ordinary lives of suffering in African Americans in the segregated south. So, there are these odd connections we find between the three cases. That’s one of them. King actually used the term Hebraic Christians, the tradition or Hebraic Christian consensus or, it’s a bit different, but it means the same thing. And, his understanding was that these are all people of conscience who should not be adjusted, a term he likes to use. They should not be adjusted to segregation. And, the reason that they are not is that they have domesticated churches, churches that have lost the prophetic voice, and if they were to regain that prophetic voice, the one that he’s trying to use to speak to the American people, what they would uncover is, that there is actually in the United States, this capacity for individuals to open themselves up to God’s love, and this is something he gets from people like Paul Tillich in reference to love as agape or sacrificial love, the love of Christ on the cross, and this sacrificial love in which a person sacrifices their own personal interests or wellbeing for the purpose of elevating the broader community, when done by everyone in that community, generates a tremendous amount of love for one another that will lead to changes in law. And, this is one of the things about King’s foundational view of love, which is that the conversion comes first. You have to convert yourself to this change in the heart. Turn towards the cross and see that white supremacists need to surrender the unearned privilege they have in the segregation code, and in order for that to happen, African Americans and also whites, sympathetic white activists, have to demonstrate their willingness to love them, these segregationists, these white supremacists, by putting their bodies on the line to save their souls. The hope was that this would draw in attention and propagate a movement in which this openness to the cross would lead to a purification of racial hatred in the form of internal conversion among the enemies of King, and would ultimately introduce them into that same beloved community that he wishes to realize. At the core of this … oh go ahead. Richard Reinsch: Talk about King and what he thinks is the proper foundation of constitutionalism in America. James Patterson: At the core of it, it’s the church. The church is supposed to bear witness and give this prophetic voice, but that tradition he has is one that he ties to the Jewish prophet, the famous line about let justice roll down like a mighty stream, comes from the book of Amos, and he would also speak to specific faith traditions when speaking to them. This is all forms of recognition. He would quote Aquinas and then maybe he might quote John Bunyan. And so, you’ve got your Jewish, Catholic and Protestant position and then he would draw them together. Normally, those two figures he would single out are Thomas Jefferson, author of the Declaration of Independence, and co author Abraham Lincoln. Abraham Lincoln served as a kind of martyr to the political implementation of the Hebraic Christian tradition in the form of freeing the slaves. But also, they’re very significant figures, especially later in King’s life, because they’re reluctant, and they’re imperfect. And so, they don’t have to become these pure defenders of the Hebraic Christian tradition, who have never thought a racist thought. What they just had to be is they had to be good enough as statesmen to know what the right choice is, and open themselves to constant improvement in the experience of God’s love in their lives. So, he gets harder and harder on them over the course of his life as it gets harder and harder for him to push forth anymore racial justice. But, that’s still the connection that’s there. You have the person who gives the Declaration of Independence and the person who defends it while defending the Constitution. They’re seen as coextensive to Jewish, Catholic and Protestant religious faith in a way that’s absolutely vital to King, right up until his assassination. Richard Reinsch: Maybe I’ve grown too familiar with his arguments there. You talk about this, that the non-violent resistance, if one were to be violent, and who does he rule out? He rules out anyone in the KKK, but he also rules out black nationalism, black militant groups as well, as a part of his group. And, he wants non-violent resistance to be the only way to forge a new public bond. If it’s violent, there’s a practical problem, the sympathy from other white Americans, and from crucially white moderates won’t be there, but also, forgiveness itself is the only way to forge a new bond. That’s worth thinking about. James Patterson: He’s inspired by Mahatma Gandhi in passive resistance in the removal of British imperialism from India. So, he has this funny line, he refers to, Jesus provides the message and Gandhi provided the method. And, the idea is that at this moment, the proper strategy for implementing the best of the Hebraic Christian tradition, is in the form of non-violent direct action in which the hope was that not only were the people who were persecuting the activists would take stock of themselves and what they were doing—they were firing high pressure hoses on small children and bombing churches—but also that everyone in the United States will bear witness to this fact and have to reckon with themselves where they stand on the matter. I mentioned earlier there are these media stories, like Sheen is able to get his own radio station and his own television show. There’s a kind of funny reason for that, but he gets it. And, King does not have that option for a number of reasons. So, he has to bring the media to him, so there’s a secondary factor here where he’s trying to build the beloved community by demonstrating the willingness of activists to put their bodies on the line, but also to draw immediate attention to show exactly what’s going on because he has this concern that the black nationalists on the margins of the civil rights movement will grow strength increasingly, if his non-violent direct action does not succeed. And, he actually, the fear that he has becomes increasingly realized as black nationalism gets greater purchase towards the end of King’s life, and it’s very upsetting to him about that. Richard Reinsch: The Letter from a Birmingham jail, What’s the essence there? He’s been put in jail for violating segregation laws … James Patterson: So, there’s a lot of really great scholarship on the history behind this. One example that I really like is a book by S. Jonathan Bass called Blessed are the Peacemakers, And, there’s a funny moment in the book when Bull Connor decides to use violence against protestors where there’s actually a lot of excitement. They’ve been waiting for the violence, and they knew that if Bull Connor would give into the temptation to violence, that they would ultimately have on full display, at this critical moment … King hasn’t had a big win in desegregation in a while, and the memories of Montgomery are really fading in people’s minds. And so, once Connor, for his own political reason, caves to this, there’s a kind of call from seven, I think it’s seven different clergymen, white clergy men in Birmingham. One’s a rabbi, there’s a Catholic priest, and Baptist, Methodist, Presbyterian and Episcopalian clergy, all write this letter asking for King to calm down. And, they make an amazing foil for King because here’s- Richard Reinsch: And, also, that they also say, why is a pastor getting involved in politics? James Patterson: That’s right. There’s this kind of … in the South especially, there’s this kind of don’t get involved in politics attitude in the church, because that inevitably means opening up this very question. Richard Reinsch: Funny how that argument gets used in a lot of different contexts. We don’t really want to deal with you. You just shouldn’t be speaking. That’s interesting. Go ahead. James Patterson: Yeah, you can imagine how they were in that Birmingham office, the SCL, these guys are doing exactly what we thought they would do. Everything is coming according to plan, so at this moment, this critical moment for King, he has got to get this right. He has got to get this letter right. And so, not only is he addressing the clergymen in the letter … something that gets overlooked is that he’s actually writing to them. Of course, he doesn’t send them the letter by themselves, it gets into every newspaper they can possibly get to print it, but also he’s addressing the congregation. He’s addressing Americans as people of faith, and as well as clergymen to justify this stance on ignoring the plight of African Americans and the pictures that you see of the water hoses and dogs that emerge from this, really have a galvanizing effect on the broader country to respond. As I mentioned in the book, and there’s a lot of really great work on this, but the one person that doesn’t move is John F. Kennedy, who’s obviously dealing with a lot of things in the White House, but after Birmingham, King becomes this force that cannot be ignored and really cannot be stopped. And, the Letter from a Birmingham Jail is crafted in jail and with people in his office taking drafts back and forth and at this critical moment in history, they got it exactly right, so it’s this deservedly lauded piece of English rhetoric that should be studied and read by everyone as far as I’m concerned. Richard Reinsch: I agree. Okay, Jerry Falwell took the line, not necessarily a racist line, but the line that pastors like King should stay out of politics. That’s your next figure here. We asked this question about all three figures, why you chose them, but why specifically did you choose Jerry Falwell to be a part of this book? James Patterson: That’s good. I wanted to take Sheen and I wasn’t sure actually … I ended up picking up Sheen because my mom encouraged me to do so. Originally, I had … and that’s because my mom was converted to Catholicism in part by Fulton Sheen by watching his show. So, thanks mom. But, he’s also under studied. Usually people … and I blame the prominence of Jesuit education in this country. I’m kidding. But, they tend to go for John Courtney Murray, but Sheen actually had much more of a presence in the Unites States than Murray did. King, I think, is pretty obvious, but Falwell is a bit more contentious. In fact, Jon Shields, at Claremont McKenna, likes to, at least about 10 years ago, published a book downplaying Falwell, and the reason for downplaying Falwell was both because Falwell was at that stage 10 or 15 years ago, was at the end of his life, at the end of his political power, but also, American Protestants wanted to get past this … they wanted to get past the Moral Majority and renew a message. And, the reason that was given in scholarly terms was that Falwell seemed to have less of an influence in the Moral Majority than observers in the 1970s and ’80s thought he did. And, my argument in the book is that if you go by social science methods, it’s sort of true that he didn’t have as much of an influence, but that’s partly because the social science at the time is trying to pull people back from thinking that Jerry Falwell is the real president behind Ronald Reagan, sort of a textual problem there, when we go back and look at this literature, but also because the most significant thing that Falwell did is he broke the taboo. He was the one who decided that the separatism of independent and Southern Baptist churches was no longer doing good for the country. Baptists were part of that fundamentalist exile from politics, an exile that’s kind of been overstated. Richard Reinsch: Conventionally seeing the start with the end of the Scopes trial, and a pull back from that point forward. James Patterson: That’s right. And also the disaffection from the failure of Prohibition and so they have a skepticism about participation in government because what it seems to do is corrupt the church and they would rather the United States go into the inevitable decline that all states do when they cease to adhere to the Gospel, provided that they can save enough souls in the meantime. And, Falwell’s big break on this is, we can’t save souls if America splits up. And so, he explains that it is necessary to preserve the regime if the church is going to save souls before the end times, or the Apocalypse in Revelations. So, this is the last full measure of the church. Richard Reinsch: You also said the Judeo-Christian consensus ends with Falwell. Talk about that. James Patterson: Yeah. So, what happens during the period between King, when he’s assassinated in ’68 and the rise of Falwell is an interval of 10 years, and some folks will say, “Well, that was a big 10 years.” That was after ’68, you have the student revolt that gives rise to the new Left and the advancement of a secular politics, especially more aggressively socialist politics, which King was experimented with, especially towards the end of life. And, the response that could have been made then would be for reckonings the churches would make with that. But instead, with Falwell, what you get is an effort to repurpose the Judeo-Christian consensus from a shared consensus under context from this secular world view, and instead, there’s this effort especially with people who supported this in the formation of the Moral Majority, to move that Judeo-Christian consensus into a constituency for the Republican party. And, that’s effectively what the Moral Majority was for. When you look at Sheen, and when he meets the public figures, he’s meeting with Nixon and he’s meeting with Fiorello LaGuardia. He’s meeting with all different kinds of people. King was careful. He liked to meet with sympathetic Republicans and Democrats, although he would weigh in a little bit more, especially during the ’64 campaign between Johnson and Goldwater, but he was always open to anyone who was willing to sponsor civil rights legislation, because he needed all the help he could get. And Falwell was a bit more regimented in what he was willing to accept. He defined himself as a conservative, associated himself with the new conservative movement, and was trying to bring as many people from within these churches as possible into the Republican party, as constituents who would be mobilized as a voter base, that would overwhelmingly turn out to vote and produce a Republican majority, rollback the 10 years that had elapsed between ’68 to ’78, ’78 being the year that Falwell really becomes part of politics. Richard Reinsch: So we think about this Tocquevillean notion or norm that we started with, spirit of religion, spirit of liberty working together, strengthening one another, enlarging one another, and in the book, and maybe I read it wrong, is that it’s been challenged, the religion and liberty are in profound tension. Falwell is seen, because of the way in which he focused in a very partisan way of putting religion both in the service of conservatism and in service to the Republican party, signals the end of that and then, I guess that opens the question though, where are we now with regard to religion in the public square? James Patterson:Yeah, so, I don’t know how you could’ve read it wrong. There’s this line here, rather than find a new way to speak to all Americans, indirectly the clergy found themselves speaking to a shrinking number of stakeholders, campaign staffers and elected officials, interested less in the Gospel or Torah, and more towards the nation, voter registration and campaign volunteers. I don’t think you read that wrong. Richard Reinsch: I remember that line clearly. Now, did you find it interesting in the 2016 campaign that Liberty University and Jerry Falwell Jr., seemed to be legitimating influences for Donald Trump within religious conservatism? The irony there was rich, I thought, right down to posing with Trump in front of a Playboy frame. James Patterson: The Playboy magazine. So, I plant this flag a little bit at the end of the Falwell chapter. I didn’t want to be too Trump focused in the book, especially since much of this book was put together without ever thinking that he would go down that fateful staircase or escalator, I guess it was. But, I do have this paragraph where I mention that the Nehemiad, which is a big part of Falwell’s message, I should mention this, the Nehemiad refers to taking the narrative of the pious Governor, that is Nehemiah in the Bible, and applying it to public figures. It’s actually a very old idea. It’s one that stems all the way back from the Puritan founding. There’s the whole concept of the American Nehemiad. Originally that was John Winthrop. The title gets applied to George Washington. And, I actually learned about this by looking at Falwell’s sermons in which he talks endlessly about Nehemiad and normally when people talk about American Protestant narratives, they talk about the Jeremiad and Falwell uses it, but not really as a centerpiece. When he’s talking instead about the rise of a pious Governor, and this is a pious president who will rebuild the walls, essentially bring back the ethical guards that America needs in order to preserve its fate against the end times. And, the person who returns to that image is Robert Jeffress, who is the pastor that gave the sermon right before Trump’s inauguration- Richard Reinsch:Baptist pastor from Dallas, Texas. Who many listeners have probably seen on TV. James Patterson: I actually, there’s only a little paragraph that raises this but I wanted to say more about it, but it didn’t fit in the book, so I put that in a piece to Law & Liberty, which they can actually … which you took, so you can see an extended discussion of that. The Nehemiad is very much part of this and Trump’s attachment to this whole Falwellian Nehemiad is part of this legacy of decreasing constituencies that are part of what we could call the Judeo-Christian consensus. Richard Reinsch: Now, we know in this moment we’re in, we had the Obama administration. One thinks of the Hosanna Tabor case where the Obama administration seemed to argue against there even being a ministerial exception to civil rights law, thus the federal government would be able to pick your pastor, theoretically, if that argument had prevailed at the Supreme Court. It was slammed nine to nothing. Also, the thing about the contraceptive mandate and … there’s a lot of flashpoints. And then also, we all get the picture now of a pretty strident opposition in this country, and it’s very partisan, on behalf of what religious liberty is and what’s going to be defined and when we hear … Hillary Clinton, Barack Obama, also will defend, they say, freedom of worship, which is very constrictive. That’s just what you do inside your church or your synagogue. We still have this position out there that’s defended primarily by conservatives, by Republicans, conservative lawyers, and that’s where we are now with regards to religious liberty. One group that you’ve written about, and we’ve published a number of pieces on Law & Liberty, associated in certain ways with First Things, which itself is ironic. Certain writers there have repudiated or said the defense of religious liberty itself is no longer valid, even though it was prominently put forward by say, Father Richard Neuhaus, George Weigel, others in the pages of First Things. This no longer really works, we’re told. Our religious freedom doesn’t really exist. It can’t really be defended. What could be done is something called integralism, we’re told. Adrian Vermuele, endowed chair at Harvard Law School prominently defended this, Gladden Pappen as well. Talk about that and how you see that playing out, making an impact. James Patterson: Well, so, I’m very grateful you have not stated my Twitter handle at this point, because what integralism amounts to is, and I wrote about this in Law & Liberty, is that there’s a kind of despairing of the liberal democratic order. Deneen was the first step in this, Patrick Deneen spoke why liberalism fails, explaining how liberalism is fundamentally incompatible with Catholicism. Richard Reinsch: Let me read, just for our listeners, I want to read this and get your comment. You say early in the book, and you’re referring to Patrick Deneen’s book Why Liberalism Failed. “Liberalism,” you say, “is not the cause of the problems Deneen observes, since ideas lack agency. Rather, one of the most important defenses against the accesses of American liberalism, religious institutions failed to remain independent of politics. In short, liberalism did not fail the church. The church failed liberalism.” James Patterson: I guess if I were to pivot to talk about that quotation it would be that with the decline of the Judeo-Christian consensus from a generally shared set of values across a broad population, to a diminished constituency of the Republican party, what you saw with it was the compromise of the idea of the church as an authority that did not participate in politics, but instead, indirectly supported democratic regimes by instilling in people a sense of a shared dogma, the need for virtue, and ultimately to prioritize spiritual salvation over material goods. And, that is what the role of religion was always supposed to be in a regime like the United States. So, what you end up with at the end of this neo-Christian consensus, are weak churches. You get weak churches, clergy who are unable to speak to a faithful that see clergy as either reactionaries or politically compromised or partisan. You have sorting in churches. There are churches that will have different people with different kinds of beliefs and they won’t go to another church, or they won’t go to another denomination, and so the extension of politics into the church led to the rivalry in the United States, between the party of liberty the Democratic party, what critics will call the party of license, or the party of religion, which critics will call the party of reactionary medievalists. And, integralists have adopted that kind of way of thinking, which is let’s be reactionaries. Let’s actually establish a church in the United States and impose its moral standards directly since churches themselves are too weak. And, that imposition will be productive of virtue. There’s this need to bring people into correction. And, in some way, integralists want to do away with the separation of church and state in the United States, because it was productive of this secularizing regime and instead, ease control of the administrative state for the purposes of the church and this is what Adrian Vermeule, you mentioned earlier, refers to as rally them all, or essentially this Catholic equivalent of the march across the institutions. And, that is definitely not a position that I ever expected to encounter in my adult life. Richard Reinsch: It would seem in just thinking about this, you say the church failed liberalism and thinking about the rise of say, integralism. Liberalism itself never made churches in America reduce themselves, or create as many problems as they have created for themselves. In particular, thinking about the Catholic church, you and I are both Catholic, looking at the sex abuse crisis, which we don’t even realize the fallout from that yet. And here we are 2019, first big news of this was in 2002. So, I guess in a way, liberalism itself is not the problem. James Patterson: The introduction of the book actually talks about the specific scholarly problems with this discussion of liberalism, and Sam Goldman wrote a review of Why Liberalism Failed, it is just perfect in isolating how liberalism serves as a kind of agent. And, that’s what I mean in that quotation about ideas do not do things. People do. There are historical contingencies. This is an argument that I actually drew from Goldman’s review, and so the idea that ideas are agents of political change on their own, this disembodied Geist, or what Goldman calls the Geist from treating this as a theory, is that liberalism becomes a demiurge. It’s this evil spirit and in order to deal with it, we have to summon the good spirit of integralism. So, they have this weird existential fight that leads to people saying, sometimes ironically, that in the future integralist state, this problem or that problem will not exist, because somehow it’ll be destroyed by some sort of spiritual entity that will defeat liberalism, the cause for all of our problems. And, that speaks to the problem of a weak church, where people do not think the church speaks to them or deals with our moral problems in a prophetic way. It also speaks to a kind of isolation that they cannot account for why things are the way they are in their lives and so they look to these kinds of gnostic battles between lightness and darkness. And, that kind of isolation is something that would surface in the United States in the absence of strong churches bringing people together in communities. Richard Reinsch: And, families and communities, yeah exactly. James Patterson: Exactly. Richard Reinsch: Yeah, my approach is not an integralist approach, it’s to say, “Well, how do we find ways to rearticulate why we have a limited government in the first place,” and why did we want robust communities in the first place, and it wasn’t just choice for the sake of choice. You’re going to define yourself however you want, but to draw on something Sheen said, and we talked about it in this interview, the attempt to know the truth about yourself, and it seems to me those things have to be rearticulated. James Patterson, thank you so much for joining us and discussing your new book, Religion in the Public Square.

This edition of Liberty Law Talk features a discussion with Lee Strang about his new book, Originalism’s Promise.   Richard Reinsch: Our guest today is Lee Strang, author of Originalism’s Promise: A Natural Law Account of the American Constitution. Lee, what do you Originalists want? Lee Strang: What do Originalists want? I think it’s changed in some ways over the decades of modern Originalism’s revivals and through the 1970s, but some things have changed, some have remained the same. Some of the things that have changed is the end state towards which Originalists argue that Originalism leads. There’s been a flourishing of scholarship, especially since the late ’90s. Professor Barnett’s book coming out in the early 2000s about providing for the protection and establishment of natural rights. More recently, John McGinnis and Mike Rappaport’s book argues that Originalism leads towards good consequences. I think one of the things that you see in all of these different moves, all of these different normative accounts is that a reason or the reason why Originalism leads to these different state of affairs, and this is the consistent part over the years, is because it provides on balance and overall and systemically, a relatively determinate way to access the Constitution’s legal meaning and then to implement it over time. That has the kind of corollary that many Originalists, although not all, identify, which is that judges are able to identify and then follow, and then be criticized for not following the Constitution’s original meaning. I think there’s been some change over time, but I think the key insight that Originalism offers is that it allows Americans, and especially judicial officers, to see the Constitution as a legal document that’s judicially enforceable in a principled manner. Richard Reinsch: Let’s think more about the change within Originalism. When I was an undergraduate, when I was in law school, not that long ago and for some years after, I thought I knew pretty clearly what Originalism was, and I thought I knew pretty clearly who my opponents were. They were the living Constitutionalists, they were the Progressives, they were those for whom the text was an occasion for invention or construction for the development of new rights or the diminution of things clearly in the text. I thought, “Those are the people that I’m trying to defeat with an original meaning.” We could have a discussion and a debate amongst Originalists about what the meaning was of provisions and clauses in the text, but we all knew we were in the same enterprise. I no longer think that when I think about Originalists. Now in fact, and I don’t think I’m unique in that regard, it seems to me there are many camps and philosophies within Originalism. You write about those in your book. You write about even a Progressive Originalist at Yale Law School, Jack Balkin, and his school of Originalism jurisprudence, which is giving voice in some way to popular Constitutional movements. I mean, that’s a succinct description, but you can elaborate more on that. How do you see it? When I think about the Libertarian Originalists, and then of course, there’s original meaning, original intent. There seems to be always, though, politics lurking here. Even though Originalism claims, or I always took it to be a claim that we’re not about politics or an end. We’re about understanding the Constitution itself. Lee Strang: Yeah. Richard, that’s a great question. It’s one that I’ve been thinking about, especially since reading a chapter by Steve Smith, maybe four or five years ago in a collection that was called The Challenge of Originalism. Steve had a chapter in there titled, I think it was “Give Me That Old Time Originalism.” It had lots of theological and religious connotations and references in it as well. Basically, what he said was something similar to what you’re saying, that there’s the old-time Originalism, which was simple. Which had the connotation of being pure and consistent, relatively easy to identify, relatively easy to implement. Then now you have today, where you have a cacophony of people claiming the mantle of Originalism, but seeming to do things and have commitments that don’t seem to be consistent with each other. I think it’s a live issue with Originalism, to what extent is Originalism a coherent phenomenon, in a way that it at least appeared to be earlier? I guess I’ll tell you my current thoughts on that are, and I had to think this through as I working on the book. That the thing that has helped me evaluate the extent to which Originalism is a coherent phenomenon is both there’s a theoretical and then a practical part. The theoretical part comes from the concept of a focal case, which I take from John Finnis, inparticular, the beginning of his seminal book, Natural Law and Natural Rights. Then the other theoretical component is from Larry Solum, who’s identified what he describes as a number of core theses of Originalism. Finnis and the focal case idea is that both in the natural world and in the theoretical world, there are ways to describe phenomenon that are examples of the phenomenon, that in their most healthy, most excellent version. Then there’s marginal versions of that phenomenon. One example would be an oak tree. There’s hale, hearty, old acorn versions of oak trees, and then there’s the kind of scrawny marginal versions of it. That, I think, is a lot of what you’re describing, what I’m seeing as well. Then in the sense with what Larry has been describing, where Larry’s claim, which I think is accurate, maybe with one possible exception that I haven’t worked through yet, is that Originalists are united around two core theses. One is the fixation thesis and one is the contribution thesis. The fixation thesis is that Originalists argue that the Constitution’s meaning was fixed when the text was ratified. Then second, Originalists argue that officers implementing, following the Constitution, have to identify, have to follow the original meaning, and it has to contribute to the outcome of those lawmakers’ decisions. For judges, it has to contribute to the whole case. When you combine those two things together, I think what it suggests is that there continues to be a focal case of Originalism. When you think of the different versions of Originalism that are out there … You mentioned some. Original meaning, original method, original intent. All those folks are committed to both of those propositions. In practice, when you scan through the list of people who are self-described and widely recognized as Originalists … We talked about Randy Barnett and John McGinnis and Mike Rappaport. They also are committed to that second proposition, that the original meaning contributes to the outcome of judicial decisions. In fact, one of the things that makes Originalism so potentially challenging to non-Originalists and to American legal practice is, that for the most part, Originalists pretty robustly embrace the contribution thesis. Because, for example, Professor Barnett famously, or depending on other people’s perspective, infamously has argued that the Constitution’s original meaning should trump all non-Originalist precedent, and which could have, critics argue, a dramatic destabilizing effect. I think there is a lot of debate in Originalism. The debate is, typically, around what the focal case means, and how it plays out, outside the focal case, but it’s not about, whether there is… Richard Reinsch:  A lot of people will say, “Focal case.” Be more concrete there. Lee Strang: The focal case is the fixation thesis and the contribution thesis, or I think Larry calls it hypothesis. For example, regardless of one’s stripe of Originalism, when you’re trying to decide, “How should NFIB vs Sibelius be decided?” Or, “How should Wickard vs Filburn have been decided under the Commerce Clause, Federal Commerce Clause power?” That all Originalists are committed to, “We follow the meaning as adopted in 1789, and then judges should follow that when they’re deciding Wickard or NFIB vs Sibellius.” That’s an example of focal case. Then there’s, I guess things outside the focal case or a debate about what or shouldn’t be in the focal case. For example, Originalists disagree about how we understand the fixed Constitutional meaning. Original intent people argue, “We look to the intended meaning, original meaning, look for the public meaning.” In original methods, you look for the contemporary modes or methods of interpretation to identify the meaning when the text was ratified. There’s debate about how we understand the fixed-ness or the fixed meaning, but everybody agrees that there is fixed meaning and that we should apply it in concrete cases. Richard Reinsch: You talk about the construction zone of many Originalists. This is, of course, a widespread criticism of Originalism, that protects itself as under-determined. It doesn’t speak, the law runs out, to use a phrase, the Constitution runs out and a doctrine has to be constructed to make it coherent with all these cases and challenges that are brought. Does not the inherent need for a construction zone lessen the power of Originalism? This is something that a lot of Originalists contend is necessary. What do you say? Lee Strang:  Yes. I’m kind of two minds about this, and maybe that’s just my disposition, where I kind of end up in the middle on a lot of these issues. On the one hand, it seems clear to me when I look around at other related human phenomenon like literature or communication, generally, or law inparticular, that I see situations of under-determinacy. It would be surprising to me if one area of human endeavor that was exempt from under-determinacy, where the phenomenon doesn’t give us one right answer, would be constitutional interpretation. Prima facie, I’m skeptical that there wouldn’t be a construction zone. On the other hand, I share what you identified as a concern or criticism of Originalists who have adopted a robust construction zone. You mentioned earlier Professor Balkin from Yale as being an example of that. Because that, I’m confident, becomes a situation where the kind of a minnow of construction swallows the whale of Originalism’s commitment to fix constitutional meaning. What I try to do is identify what I think is the reasonable insight for Originalists who believe in a construction zone which, as I described earlier, I think it’s a fact of human life that many of our endeavors don’t cash-out in determinant answers, and law is one of them, and the Constitution is also one of them. I try to give some examples and reasons to think that that’s the case. Like for example, the vagueness of language, generally, of legal terms in-particular. Then I also try to identify ways in which I think that the construction zone is modest in scope. Here, I rely a lot on the work, which I think is just really excellent, of John McGinnis and Mike Rappaport, talking about contemporary rules of interpretation.  I would call them rules of interpretation, which I think existed at the time the original Constitution was adopted and ratified. Also later, for example, with the 14th Amendment. I try to identify what I think are three key closure rules. Rules of interpretation that narrow what would otherwise be a prima facie, broad category of construction. Just one example, this is one I borrowed from McGinnis and Rappaport, is that if a judge is faced with what he or she perceives as under-determined original meaning, in other words, it doesn’t seem to give him enough information to answer the legal issue before the judge, what the judge should do is rely on the best available evidence. There’s two parties before the judge. One is arguing the original meaning is x, one is arguing that it’s y. What the judge should do is, like judges always do, take the argument that is supported by the most, what I call, legal evidence. The most argument and historical evidence combined. When you do that, that means that a large number of cases that would otherwise be under-determined, because you don’t have maybe a 95% degree of confidence or 100% degree of confidence, become closed, become answered because you have a degree of confidence that one party’s arguments are more weighty than the other party’s arguments. To summarize, I think there is a construction zone, but I think Originalism has built within it rules of interpretation that narrow it in a way that makes it, acknowledges the under-determinacy of the Constitution’s original meaning, while it doesn’t undermine Originalism overall. Richard Reinsch: George Will was just on this program to talk about his new book, The Conservative Sensibility. In that book, he has a chapter called “The Judicial Supervision of Democracy,” where he contends for something pretty similar to this idea of judicial engagement, that one of the scholars you cite in the book, Randy Barnett, advocates. George Will argues that really, when we think about the Constitution, outside of the Declaration of Independence, second paragraph of natural rights, it really comes unbound and means nothing if it doesn’t have that content anchoring it. Judges should interpret the Constitution in light of those natural rights. The title of that chapter, “Judicial Supervision of Democracy,” does Originalism point in that direction? I guess another way to ask my question, where do “We the people,” in the Republic and the accountable branches of government, fit into Originalism? Lee Strang: That’s a good, complex question. On one point, Richard, what I would say is, first describe how I would answer these two questions. The answer to both your related questions, one of which is, to what extent are judges authorized to protect natural rights through Constitutional interpretation and their judicial power? Then relatedly, to what extent is popular democracy or the role of the American people play a role within their own self-governance, are empirical questions within Originalism, that it depends on what the Constitution’s original meaning is, how it cashes-out. Does it authorize, in fact, judges, in the exercise of judicial power, to utilize robust interpretations of natural rights? You mentioned Professor Barnett. I think Professor Barnett has the strongest argument in the scholarship out there, that the Constitution’s original meaning is strongly rights protective, and my own … I even investigated that historical claim fully, but to the extent that I have, I think that it’s most robust vis-a-vis the federal government, and that it’s less powerful regarding the ability of state governments to govern their people. On the flip side, what role do the American people have? I think Originalism provides a really robust and certainly, a relatively more robust role for the American people in their own self-government than most versions of non-Originalism. One exception I’m thinking of is Eric Segall and his version of living Constitutionalism. How does Originalism do that? It does that through a number of mechanisms. One, of course is, and I think Professors McGinnis and Rappaport do a good job of making this argument that a revivified culture of Originalism would help Americans exercise their civic muscles and return to the practice, which I think is salutatory and although contentious, of doing Article Five Amendments. Second, a properly interpreted Constitution, I think, leads to lots of questions, lots of legal questions, lots of social questions that the Constitution doesn’t answer. For example, abortion. I think what the Constitution says is that abortion is a state’s right issue within its area, and then slightly a federal issue on inter-state issues. Those would be areas where the American people, either through their state or national representatives, express their policy views regarding abortion. Then third, I think what Originalism does is it creates a culture where Americans redevelop a habit of engaging with their fellow citizens on answering, either legislatively or not, or just leaving the issue alone, fundamental issues. What I have in mind here is the issue of assisted suicide, which in the early 1990s, it looked like the issue of assisted suicide was going to follow the same route as abortion, where people were going to the Supreme Court, asking for the Court to constitutionalize their right to assisted suicide. The Supreme Court, in Glucksberg vs Washington, famously turned that back. It was 1995. Since then, it’s not that the issue has dropped off, it’s that the issue has become a state-focused issue. Some states have embraced assisted suicide, euthanasia, and many and most states have not, but Americans have exercised their civic muscles in making those questions. I think it’s an empirical question for natural rights and/or American people’s self-government. To the extent that I’ve looked into it, I think that Originalism, on the state level especially, emphasizes the ability of Americans to govern themselves. Richard Reinsch: You make a claim in the book that Originalism, with regard to constitutional interpretation, is our tradition. That’s an interesting claim. Maybe talk about that some more. Lee Strang: There’s a lot of debate over to what extent our Originalist claims today, in other words, the claim that we should follow the Constitution’s original meaning in cases or controversies, is that consistent with the practice in the early republic? I think where this arises is a misplaced criticism by living constitutionalists that if Originalism wasn’t the practice in the early republic, that would mean that Originalism today was fundamentally and internally incoherent. I don’t think that’s true. For example, it could certainly be the case that even if the framers or ratifiers didn’t recognize the value of Originalism, if we today have sound reasons to recognize it, we should follow Originalism. That’s not the move that I make, but I think that’s where this issue comes from. There has developed a rich, secondary literature talking about early interpretive practices. The people that have been most persuasive to me are Christopher Wolfe, who’s now at the University of Dallas, and Jonathan O’Neill, who I believe is at Georgia State, who have gone through the history of interpretation beginning with pre-constitutional times. Like for example, in English Colonial times, up to today. Their claim, which is supported by copious citations and examples from the text and practices of the time, is that even though they wouldn’t use the label Originalism at the time, and even though it wouldn’t be as sophisticated as people argue today, both the goal and the tools of interpretation in the early republic and continuing up until the early to mid-20th century, were clearly Originalist practices. I think Professor McGinnis and Rappaport’s more recent work on original methods is contributing to that. It’s providing an additional analytical tool to show that in 1787 or 1789, for example, if there was debate about what the Constitution meant, one of the common moves among interpreters was to resort to these conventional rules of interpretation. In fact, in a previous article, I went back to the debate in the first Congress over chartering a national bank, which was the biggest constitutional issue in the Early Republic. What I saw was people, prima facie, disagreeing over whether the Necessary and Proper Clause authorized Congress to charter the first bank of the U.S., but all of them concluding after using rules of interpretation that they all seemed to agree on, that the Constitution did give a determinant answer to that question. Richard Reinsch: What do you think, so you read the First Congress debate over the Bill of Rights. It’s pretty sparse, and yet the Bill of Rights has emerged. The meaning, the text of the Bill of Rights, particularly, say the First Amendment, What would you do with that? You have pretty thin material to work with in terms of whatever you want to call it, original intent, original meaning. How would you sort of work through that? Lee Strang: I’ve actually, to the extent that I’ve reviewed the original meaning, for example, of the Free Speech Clause of the First Amendment, I found it to be challenging, in part, for reasons that you gave, Richard. Let me step back and just talk a little bit about how one would go about trying to ascertain the original meaning of the Free Speech Clause or Free Exercise Clause. One thing you would do, of course, would be you’d look to see, how did contemporaries describe the meaning of those clauses? Originalism would also look to try and find the public meaning of the words, and then the component phrases there. The area that I’ve done, actually, kind of the most research on the First Amendment has been the Free Exercise Clause. I’m actually pretty confident that there’s a right answer to both what the components mean. What does free exercise mean? What does religion mean? Then what does the clause, overall, mean? It’s not because of the robust debates in the First Congress, although I think they provide some evidence on that point. Or the debates in the state ratification conventions, which we have very little evidence of. It’s more the background public meaning taken from state constitutions, state laws and the public meaning of the words themselves. I think the First Amendment is a relatively more challenging one than let’s say Commerce. The Commerce Clause, I think that meaning has been clearly liquidated by Originalists both in the early republic, but also today. The Free Speech Clause, I think, is more challenging than the Free Exercise Clause. It reminds me of one additional point. Richard Reinsch: You used the word “liquidate” just then. What do you make of James Madison’s position, where he clearly thinks it’s unconstitutional on the text to have a bank. He loses policy-wise. He loses in the court of public opinion, and he comes back later in his presidency and acknowledges the constitutionality of the bank, not necessarily because he has been convinced, but because the people had liquidated the meaning and had determined that it was, in fact … On that basis, the acceptance of the people, and over the course of elections, a judicial decision, that somehow, this could now be reconciled with the Constitution. How does that fit in within Originalism analysis? Lee Strang: So I think it depends on what we mean by liquidation. Richard Reinsch: Well, the way Madison used it is the Constitution was liquidated through republican practice. Not necessarily through the techniques of academics using Originalism. I’m familiar with some of the liquidation scholarship, like Will Baude or others but I’m not sure it’s the way the Founders meant it, particularly in the Federalist Papers. Lee Strang: So I guess my view is on liquidation, that it was widely accepted as a phenomenon. I think, and this is what we mean by liquidation. That it presupposed that there was under-determinacy over the thing being liquidated. I think we may be disagreeing over what Madison’s views were about the robustness of the determinacy of the Necessary and Proper Clause not allowing Congress to charter a national bank. Richard Reinsch: Yeah, no. He never changed his mind. He thought the Constitution didn’t allow it, yet he relented on his view because he thought the people had chosen to accept it. Over time, that republican process had not changed the meaning of the Constitution necessarily, but now allowed it to be acceptable in some ways. It’s sort of a tricky description, how he walks his way through it. Lee Strang: I think that most people at the time would have described liquidation as … I think this is still what Madison’s description was of the phenomemon, that there was disagreement over the meaning of the Necessary and Proper Clause. He had one view, he was confident in that judgment. Other people were equally as confident in their judgment, so it seemed like that was a situation, from Madison’s perspective, of under-determinacy that allowed the practices, so adoption through Congress, approval by the courts, to quote, liquidate that meaning. I think it’s a closer question, although I’m not sure. I don’t have a firm view on this, of what if the Constitution had determinably said x and the meaning had been, quote, liquidated to not x? That, I don’t see evidence for or as much evidence for in the non-judicial branches. The research that I’ve seen so far suggests that the ability of a federal official to follow something different than the original meaning was limited to them exercising powers that authorized them to do that. Judicial power, I’m confident, allowed federal judges to follow non-Originalist interpretations in some situations, but I haven’t seen similar evidence that it would allow congressmen or presidents to follow non-Originalist meanings, as a determinatively non-Originalist meaning. I think there’s liquidation. I don’t think its bounds extend … tentatively, I don’t think its bounds extend to determine original meaning. Richard Reinsch: The book is Greg Weiner’s book, Madison’s Metronome, where he kind of walks through this analysis that Madison had just recognized his constitutional understanding had been sort of dismissed through a public contest. Back on this point, we were talking about Originalism is our tradition and yet, Robert Bork, Scalia, other thinkers, other judges and legal thinkers are seen as almost counter-revolutionary type figures. That sort of sparks the question, okay, if it was our tradition, when did it go into eclipse and why? Lee Strang: The story that I tell is one that I think fits most of the scholarship on this point, which is that in the late 19th, early 20th century, for a variety of reasons, Originalism came to not be the practice, or at least not the rhetorical practice, in many ways, the substantive practice of the Supreme Court. I give a number of reasons for that. One area that I’m most familiar with, just because of my teaching has been administrative law. Of course, the administrative state started to grow in the late 19th century with the Interstate Commerce Commission being the first modern administrative agency. Then continuing in the Progressive Era, then really flowering under the New Deal. The administrative state contained, was motivated by a number of political, ideological and jurisprudential views, and it necessitated a non-Originalist view of the Constitution. Because you got to make the claim that you can’t have modern administrative agencies that are consistent with the Constitution’s original meaning. My argument is that by 1945, 1947, that Originalism, certainly rhetorically and in many ways substantively, had ceased to be the practice of the Supreme Court and most of American legal culture. It became exotic to make Originalist arguments, and at the same time, the political landscape, the practice of Americans and certain fundamental practices of the Supreme Court didn’t change. For example, to my knowledge, there’s not a case where the Supreme Court has said, “The Constitution’s original meaning is x and we’re following not x today.” That the Supreme Court consistently, at least rhetorically, says it’s following the Constitution and its original meaning. Or, “We still follow this written document in the National Archives,” which by non-Originalist lights doesn’t make much sense. It may be, in fact, wicked to do so because of negative provisions and unjust provisions in it, and yet, all federal officers take an oath to that document, and identify that document as having come from a specific set of humans at a specific period of time. My argument is that the written-ness of the Constitution, the provenance of the Constitution show fundamentally that the underlying practice hadn’t changed, and so that on the surface, there’s been a lot of Originalist overlay, but deeply there continue to be fundamental Originalist commitments of our practice. Richard Reinsch: What about say the sociological jurisprudence of the Progressives, most prominently in Brown vs Board of Education? Do you find that to be an opinion where … I mean, it seems to me, yeah, there’s the text, but what they’re really concerned about is explaining to you just how bad unequal schools are. I get that but the reasoning there is, as many people have pointed out, not entirely satisfactory. Lee Strang: I love teaching Brown for a variety of reasons. It’s a very important opinion, of course, substantively. One of the reasons I like teaching it is that, I think it’s an example, I don’t even have to comment on it. My students are underwhelmed when they read the arguments. They expect some magnificent edifice of legal reasoning and they’re just … It’s kind of like the same response I get when the students read Roe vs Wade. It’s even if they like the result, they’re just really underwhelmed. I think one of the key points of the reasoning that supports my claim in Brown is that the Court first had to dispose of the original meaning of the Equal Protection Clause. It didn’t do it by saying they were reaching an opposite result. What the Court said was that the original meaning was indeterminate on this point, because the phenomenon of public education and racially segregated public education was new, and something the Framers hadn’t envisioned. Now, putting aside whether those claims are right or wrong, what that showed was that the Court was claiming the original meaning was indeterminate, and therefore gave it rein to utilize, in its view, these other tools of legal analysis. I think Brown is consistent with, on that fundamental level, Originalism. I also think the outcome as well. That fundamental … Even though the rhetoric is not as you were pointing out, Richard. Richard Reinsch: In this connection with tradition and Originalism, you argue in the book, you take on arguments in the book that Originalism would lead to unjust outcomes. That’s the argument of many opponents and/or, there are sins, widely regarded in the American past, and Originalism couldn’t resolve those in a way that public opinion would accept, and that’s a mark against Originalism. Prominently right now, we’ve just had The New York Times, in its 1619 Project, argue that our country is built on slavery, basically. This would be one of them, and of course, we see a Progressive jurisprudence of Progressive scholarship. There’s this move to tie more and more provisions of the Constitution to protecting slavery. How would you respond to all of that? Lee Strang: So I think there’s certainly some truth to the claim. In some cases, a lot of truth to the claim, that at different points in time, the Constitution’s original meaning had been and led to and perpetuated unjust relationships between human beings, and slavery is the kind of keystone example for that. If you were to ask me, in 1862 for example, whether we should follow the Constitution’s original meaning, what I would say is, “We can ascertain it. If you take an oath to uphold the Constitution, you’re obligated to do it,” but at the same time, I would question whether one should enter into federal office and take on that obligation because of the perpetuation of that institution of slavery. That’s not today, right? Instead, my argument is that the Constitution’s original meaning today creates a basically just legal system. Not perfectly just. Certainly, not by my own lights either. There are a lot of things that I would like to be, to have changed in the Constitution’s original meaning. More fundamentally, what I argue, Richard, is that the argument that one should judge an interpretive methodology by the policy results or substantive results that it cashes-out is a misplaced view. I certainly don’t teach my law students to view law and the legal process and the judicial process as being solely, or entirely, or even mostly about the substantive result. What I try to do is tie a picture of law coordinating Americans, and then tie that to the Constitution. Just like the broader American legal system, or the legal system of Ohio where I’m at, creates a basically just legal system. Therefore, officers who are members of that legal system and swear an oath to that legal system, should follow it because of the benefits that Ohio’s legal system provides. Similarly, because the benefits that the American legal system, fundamentally resting on the Constitution provide, that judicial officers have sound reasons to continue that basically just legal system. I’m acknowledging, certainly historical and even current injustices in the original meaning, but that’s not our standard for judging interpretive methodologies. Instead, what we say is that in interpretive methodology, the interpreters have sound reasons to perpetuate the basically just legal system that their interpretations are a part of. Richard Reinsch:  Many would argue, cynically perhaps, Originalism, though, always has to find a way to accommodate hard cases like Brown, which Raoul Berger, an early originalist, said was wrongly decided under Originalism. Then came the famous Law Review article by Michael McConnell which helped Originalists get Brown right. Isn’t Originalism, though, going to have to do the same thing with Obergefell vs Hodges? Lee Strang: I’m not actually aware of any attacks on the Originalist bona fides or lack there of, of Obergefell. There’s scholarship, for example, by Steven Calabresi that suggests that Obergefell is consistent with the Constitution’s original meaning, although I frankly just don’t find those arguments persuasive at all. Richard Reinsch:  Calabresi is one of the founders of the Federalist Society. He’s an Originalist. Lee Strang: Yeah. An Originalist for a long time. Richard Reinsch: I can think of some Originalists, a lot of The Volokh Conspiracy writers love the result. They criticized it in various ways. It seems to me, it’s inherently the political thing that comes out, and Originalism has to find a way to accommodate it. How do you see that? Lee Strang:  So on the one hand, when I think, so what’s a legal system’s purpose? A legal system’s purpose is provide a mechanism for people to live together as well as possible. Legal systems are run by human beings who make mistakes, sometimes unintentionally, sometimes intentionally. Justice Kennedy authored Obergefell. I think it’s inconsistent with the original meaning and I don’t know, intentional, unintentional, whatever. I don’t even know if he cared about what the original meaning was. Any viable legal system that’s trying to help people live together is going to have built into it a mechanism to account for mistakes. Originalism has that mechanism, primarily through a theory of non-Originalist precedent. I push against the premise of your constructive criticism that if Originalism is able to accommodate non-Originalist decisions, or it seems like it does all the time, if that’s somehow a flaw, I think it’s only a flaw if the accommodation undermines Originalism’s fundamental commitments. Because otherwise, I think that Originalism actually is virtuous for having accommodated some non-Originalist precedents. In fact, one of the reasonable criticisms of Professor Barnett’s view of Originalism is that his view would lead to dramatic destabilization of the American legal system because of so many decisions being overruled in such a short period of time. In fact, he recognizes that, right? In some of his scholarship, Professor Barnett has argued that judges should slowly overrule the non-Originalist precedents using their equitable powers, but that argument there is under-justified. I think even people within Originalism who would be sympathetic to your view, which is that Originalism gets co-opted over time or has to fit with political or policy views, recognize that to be a functioning interpretive theory for a functioning legal system, it has to be able to account for mistakes, and I think Originalism does. At the same time, it has to have a mechanism that it doesn’t accept everything, right? Because then it becomes what you said, which is just another political manifestation. What I’ve argued is that judges have an analysis, it’s not determinative. In other words, reasonable people could disagree. That takes into account three factors. One is to what extent is a decision, Obergefell, Brown, Roe, whatever, Wickard, inconsistent with the original meaning? Second, to what extent would overruling the decision harm rule of law values? Then third, and this is maybe the most provocative part of the analysis. To what extent does the decision under consideration reach normatively attractive results? Of course, people are going to disagree on that third point. Richard Reinsch: That’s justice, right. The good. Lee Strang: Does Brown, does Roe, does Obergefell create just relationships between Americans, or does it detract from it? Richard Reinsch:  Switching gears here, you also write a lot about Aristotle in this book, which I find interesting and a lot of others will find interesting. Does Aristotle help us think or bolster our thinking about Originalism? Lee Strang: There’s lots of different individuals that I could have relied on. What I try to claim is that this way of approaching philosophy, this Aristotelian philosophical tradition, starting with Aristotle. I think Thomas Aquinas was the great synthesizer. Then there are modern exponents, John Finnis, Robert George and other people, so I try to look at this body of thought set in motion by Aristotle. For the most part, being faithful to Aristotle’s description of humans and human society. Would Aristotle have something to say about Originalism? The answer, I think, is clearly, “Yes.” Because he has something to say about humans living together, in both parts, right? He has something to say about what it means to be fully human. He describes the ways in which, for example, justice is both an internal virtue but also a norm that humans should follow in their lives and in their interactions with each other. I translate that over into a conception of the common good that the American Constitution’s original meaning is the key mechanism to help American’s today pursue. Aristotle’s got a lot to say about Originalism. Richard Reinsch:  Well, I like that. Lee Strang, thank you so much for joining us today to talk about your new book, Originalism’s Promise: A Natural Law Account of the American Constitution. This has been lovely. I appreciate it.

Contributing editor Greg Weiner discusses his new book The Political Constitution: The Case against Judicial Supremacy.

Presidential scholar Stephen Knott talks with us about his new book The Lost Soul of the American Presidency.

The award-winning American historian Bill McClay returns to Liberty Law Talk to discuss his latest book, Land of Hope: An Invitation to the Great American Story.

Brexit commentator, Helen Dale, discusses the current status of Brexit, Boris Johnson's negotiated deal, the Irish backstop, the impact of the EU on British elites, and the challenges posed to the traditional political landscape.

Eric Kaufmann discusses his new book Whiteshift: Populism, Immigration, and the Future of White Majorities.

David Davenport, coauthor with Gordon Lloyd of How Public Policy Became War, discusses how we lost “the cool, deliberate sense of the community” in making public policy and instead turned to the metaphor of war as the basis for political action.

Nicole Mellow discusses her new coauthored book with Jeffrey Tulis, Legacies of Losing in American Politics.

Andy Smarick joins us to discuss how Friedrich Hayek’s scholarship on the evolved nature of liberty and the principle of subsidiarity can undergird political decentralization and produce human flourishing.