Great Christian Jurists in American History Transcript

Speaker 1 (00:01):
Ladies and gentlemen, welcome to our program, Great Christian Jurists in American History. Please welcome Cully Stimson, Deputy Director of the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies.

Cully Stimson (00:16):
Well, good afternoon everybody, and welcome to the Heritage Foundation. We are delighted to partner with Catholic University Law School’s project on constitutional originalism, and the Catholic intellectual tradition for today’s program on Great Christian Jurists in American history. Before turning the podium over to our two speakers, let me give them a brief introduction. First, we will hear from Dr. Mark David Hall. Dr. Hall teaches at the Robertson School of Government at Regent University. He’s one of the foremost scholars of early America, whose works have highlighted the importance of Christianity in the flourishing of America’s experiment in ordered liberty, Dr. Hall earned a BA in political science from Wheaton College in Illinois, and his PhD in government from the University of Virginia.

Dr. Hall has written, edited, or co-edited a dozen books, and has written over 150 book chapters, journal entries, reviews, and other scholarly articles. After Dr Hall’s remarks, he will then engage in a discussion with our good friend, Judge Kyle Duncan. Judge Duncan sits on the Fifth Circuit Court of Appeals, having been appointed by President Donald Trump in 2018. Judge Duncan has a distinguished career, as you would expect, prior to joining the bench, having served as a law clerk to Judge John Malcolm Duhe Jr, as general counsel of the Beckett Fund for Religious Liberty, as appellate chief for Louisiana’s Attorney General’s office, and as a founding partner at Schaerr Duncan. Now, after their discussion, I will moderate questions from you. Please join me in welcoming Dr. Mark David Hall to the stage.

Mark David Hall (02:32):
Thank you very much, Cully. It’s great to be here. I love the Heritage Foundation. I’ve done a number of things here over the years, and it’s always great to come back, and I’m very grateful to the Catholic University Law School, and Joel Alicea specifically, who invited me, or at least contacted me about this event. So, this book, Great Christian Jurists in American History is a part of a series. A series edited, the general editor, by John Woody of Emory University. And there are a whole bunch of books in the series. Great Christian Jurists of France, Great Christian Jurists of England, Great Christian Jurists of Belgium, and on and on you go. And so, Daniel Dreisbach and I of American University were honored when he contacted us and said, “Would you like to do the America volume?” And we jumped at the chance.

So the idea was to profile 19 or 20 or so great Christian jurists in American history. And Daniel and I know something about jurist throughout American history, we’re real good on the Founding era, but we certainly don’t know all of American history. And so we decided that the most prudent thing to do would be to do a survey. And so we identified something like 50 conservative academics of faith, Protestants and Catholics primarily, and we surveyed them, and we said, “Okay, could you name for us the four or so greatest Christian jurist in each century, in the 17th century, 18th, 19th, and 20th to the present day?”

And so we got a lot of suggestions, a lot of overlap, and then we sorted through them, to come up with our final list. And then we went out and identified the very best people we could think of to profile each of these jurists. And so, again, I know the Founding era tolerably, well, early America better, 19th century, not so much, but we’ve got some excellent legal academics to profile people like Joseph Story, and Brewer, and others.

All right, so I should perhaps begin by noting what we mean by jurist, because I think when I heard jurist initially, I initially think judge, and it certainly would include a judge, but we mean something really quite broader than that. We mean men and women who have had an important influence on the creation, application, and slash or interpretation of constitutional, case, and statutory law, or the philosophy of law. So this broad definition, it certainly includes jurist, but also legislators, and legal academics, and practitioners, and you’ll find a wide collection within our volume.

In terms of Christian, we didn’t attempt to judge anyone’s faith, but we were interested in people who are generally viewed as Christians, whose faith had something to do with their jurisprudence. That is usually they’re viewed in this sort of way. And so, we were not attempting to have a narrow definition. We included jurists like Joseph Story, who’s a Unitarian, who from the perspective of traditional Christian teaching might not be an Orthodox Christian, but again, widely regarded as an important Christian jurist in the 19th century, so we included him.

All right, let’s see. Ah, there we go. I was pushing the wrong button there. What I thought I would do, just real briefly, because almost no one can afford… I don’t mean to be critical of Cambridge University Press, but this is like a $140 book. It’s almost no one buys it, right? So to give you an overview, just to give you a sense of who we profiled, and you can see the author, I won’t mention the author, but you can see each author here. So, we began with John Cotton, and Roger Williams. Sometimes we cheated by pushing two jurists in the same chapter. John Winthrop, two Quakers, Jane Calvert doesn’t really believe Dickinson is a Quaker, but most people consider him to be such. William Penn, Roger Sherman, and Oliver Ellsworth, John Jay, James Wilson, Joseph Story, Simon Greenleaf, John Marshall Harlan the Elder, David Brewer.

And then we get to the modern jurists, John Noonan, Harold Berman, Antonin Scalia, Mary Ann Glendon, Michael McConnell, and Robert George. I’ll note both Daniel and I are Protestants, and we didn’t go out seeking for Catholics, but since Catholic University Law School is sponsoring this, I’ll note that we don’t have a Catholic jurist until the mid 20th century, but once we hit the mid 20th century, four of the six jurists we profile our Catholics. So it’s about two thirds of the jurists, despite the fact that Catholics are only about 25% of the population. So, overrepresented, so to speak. But again, we weren’t really trying to get so many Protestants, so many Catholics, these are just in names that kept coming up, and we felt we had to include them in our profile.

So overall 19, and what I thought I would do is just begin by talking about some Puritan jurists and their contributions. If we have time, I’ll maybe profile at least one founder, and then we can pick up the conversation there, maybe a little more founding era stuff, then we can progress towards the present. And of course there’ll be time left at the end of the presentation. I’ll only go about 20 minutes or so total. And so, there’ll be time for you all to engage and ask, “What about this? What about that?” Let me do say that both Daniel and I are very humble. We do not pretend that we have identified the 19 greatest Christian jurists. You might be thinking someone else should be there, and someone should be taken off, and we’re completely open to that. What I can say is that we did receive a lot of overlap from the various feedback we got.

All right, so I want to begin with the Puritans, and we profile two, arguably three Puritans, John Cotton, John Winthrop, and Roger Williams. And if you know anything about Williams, he’s kind of all over the place, kind of a Puritan, but then not really kind of a Puritan. But, rather than look at very specific contributions, I’m going to look a bit more broadly of the Puritan jurist contributions.

Now, if you know anything about the Protestant Reformation, I assume you all do, you know that two of the greatest battle cries, well one anyway, would be, “Sola scriptura,” Scripture alone. And when you tie this with the doctrine of the priesthood of all believers, you get some really extraordinary results. Now, these results don’t have to involve government. It could be that me as a Christian father will make a priority to teach my children how to read. But when the Puritans came to Massachusetts Bay, they did not leave it up to families. They passed laws having to do with this sort of doctrine, the Old Deluder Satan Act, which requires basically every town to have some sort of school master, to ensure that every child knows how to read, and larger towns have to have a grammar school.

And back then a grammar school meant a school that you would go to learn Greek, and Latin grammar, to prepare you to go to Harvard, or later Yale, or Princeton, where you had to be able to read, tolerably well, Latin or Greek in order to get in. And these of course were sponsored by the state as well, subsidized by the state. And so you had government passing laws requiring literacy, and subsidizing education because again, we want every Christian to be able to read the Bible for him or herself.

One of my favorite statutes comes a few decades later, it’s from Connecticut. And I like it because it sounds kind of like the Miranda Doctrine. Basically, it says, “Select men of each town will ensure that each family has a Bible, and an Orthodox catechism, and if the family cannot afford one, one will be provided for the family.” So you have the state providing a Bible, and an Orthodox catechism to families who cannot afford them. All right, so again, this strikes me as a clear instance where these jurists are drawing from their very Protestant commitments to inform the laws in Massachusetts Bay.

I want to talk about a kind of broad notion and then we’ll get a bit more specific. Let’s see. Yeah, I don’t know if you’ve read this wonderful book by Eric Nelson, the Hebrew Republic. Basically, he argues as these reformers are getting going in Europe, they are recommitted to the idea that Christian leaders, that ministers should be reading the Bible in the original tongues, in the Hebrew and the Greek primarily, right? And as they did this, they started reading these rabbinical commentaries on the Old Testament, the Hebrew Scriptures. And one of the things they found as a remarkable argument in 1 Samuel 8, that in effect, the sin of Israel was not desiring a ruler other than God. It was desiring a king. A king is an inappropriate form of government. They should have asked for a Republican form of government. This is the only God ordained type of government.

Now whether you think that’s good exegesis or not, this is a doctrine that Calvinists pulled from the rabbinical commentaries, and brought to New England. And what we see in New England is some of the most Republican forms in government the world had ever seen, directly informed by their understanding of the Hebrew Scriptures. Widespread suffrage, very regular elections, incredibly Republican. Now, not 21st century Democrats, and I’m not arguing that they were, but again, compared to anything else the world had ever seen, robustly democratic.

Let me turn to legal reforms a bit more proper. Now, these Calvinists in New England are crystal clear about what they want to do. This comes from Connecticut, a 1672 declaration. “We have endeavored not only to ground our capital laws upon the Word of God, but also all other laws upon the justice, and equity held forth in that Word, which is the most perfect rule.” So we’re looking to the Bible to establish our legal code. Now, if you’ve spent any time in this era, you’re undoubtedly familiar with these capital laws, and this can leave a very bad taste in one’s mouth, because in England persons were not punished by death if they were adulterers, or if they committed incest, or if they were incurable juvenile delinquents.

And yet, the Puritans looking to the Hebrew Scriptures said, “Look, Exodus 21:17, Leviticus 29, and so forth, we have to punish incorrigible juvenile delinquents with death.” Now you look at that and you say, “Wow, that seems awfully harsh.” And of course it’s pretty evident where they’re getting this idea. But I would remind you that the Puritan were human. You have the Spirit of the law, and the letter of the law. We have no record of anyone ever being put to death for being an incorrigible juvenile delinquent. There were only three people put together… Put to death throughout all of New England history for adultery, and I can assure you, as much as I like the Puritans, there were more than three cases of adultery. So I think you have the Spirit of the law versus the letter of the law.

Let me turn to a more positive series of reforms. So, in England, you could be put to death for circumstantial evidence. The Puritans would have nothing to do with this. Looking to Leviticus, I’m sorry, Deuteronomy 19:15, they read, “One witness shall not rise up against demand for any iniquity, or for any sin, and any sin that he sinneth at the mouth of two witnesses.” And so the Puritans said, “Well gosh, it sounds like circumstantial evidence isn’t enough to put someone to death.” We need… We are going to require two witnesses to the same act before someone can be put to death, a procedural protection that gave people a great deal more protection in Puritan New England than you had in England.

Speaking of death, you could be put to death for literally hundreds of crimes in England, stealing a few shillings, taking a deer in the king’s forest, and that sort of thing. The Puritans, again, revised so many, and although they had capital laws which do seem a bit harsh, they got rid of most penalties, most crimes that could be punishable by death. For instance, with respect to stealing, they read Exodus 22:4. “If the theft is certainly found alive in his hands, whether it is an ox, or a donkey, or sheep, he shall restore it double.” Restitution is the appropriate penalty for theft, not death. So, on balance, I would contend that when we look at these Puritan legal reforms, drawing from the Bible, that they are progressive in the best sense of the word.

I want to get past the Puritans, but I’ll mention one more thing. As we know, Judge Duncan and I were talking, Puritans are known for the doctrine of total depravity. And all Christians recognize that humans are sinful, and even Christians struggle with the old man within, right? But I think the Puritans had an appreciation of this, that was maybe greater than Christians in other communities. And so, they’re very skeptical of concentrated power, and they were very insistent upon the rule of law. And so, they passed legal codes, the Massachusetts Body of Liberty, 1641, which contains a number of protections that later made its way into the American Bill of Rights.

The book of the General Laws and liberties Concerning the Inhabitants of Massachusetts was the first printed legal code in the Western world. And the idea here is we need a clear rule of law. We want to know exactly what the law is, so the magistrate doesn’t have the freedom to kind of make things up as he goes along. And I would suggest this is driven by this… It’s biblical, but it’s also theological, right? A view that humans are sinful, and that we can’t trust them.

Let me conclude this part with a quote from Michael Winship, one of my favorite students of this era, another fellow, David Hall. I was going to talk about witches, but I won’t. Of David D. Hall, no relation of Harvard Divinity School, Michael Winship of University of Georgia. He writes, “In New England, the colonists created legal systems that were simple, equitable, inexpensive, speedy, transparent, and grounded in law codes crafted to protect colonists’ rights against overwhelming local rulers.”

All right, so thus far we’ve seen a very Protestant approach to Christian jurists drawing from their faith and applying it to law and public policy. It doesn’t have to be that, though. And I’ll jump and I will conclude by chatting about James Wilson, the founding father, subject to my doctoral dissertation, and first book. One of the reasons I, like Hadley Arkes, is drawn to James Wilson, is when you read him, you’ll be excused for thinking of reading St. Thomas Aquinas. I should say a word about Wilson. He immigrated over here from Scotland in 1765, read [inaudible 00:17:01] John Dickinson, who was also profiled in our volume. We profiled James Wilson as well. He rose very rapidly. He had a very good education from the University of St. Andrew’s, a signer of the Declaration, a chief crafter of the US Constitution, and early Supreme Court justice, particularly useful for our purposes, he gave a series of law lectures at the College of Philadelphia, now the University of Pennsylvania from 1790 to 1792.

And when you read these, here’s where you could be excused for thinking you’re reading St. Thomas Aquinas. Really, he gets his Aquinas through Richard Hooker, but he makes distinctions like this. “There are four species of divine law, God’s eternal law, the celestial law, natural moral laws, and natural physical laws, and natural moral laws. Human law must be based on the natural moral laws if it is to be legitimate, if we were to accept it. If a law goes against a natural law, it is no law at all.” Paraphrasing Saint Augustine. And so when you read through this, I think what you can see throughout these law lectures is Wilson is spinning out the implications of this.

Wilson occasionally alludes to Scripture, but really this is at a much deeper theological level, where he’s really appealing to this deep tradition of Christian natural law thinking. Now for a while, some mid 20th century scholars said, “Well these Protestants, because of sola scriptura, they just rejected the natural law tradition.” I think David VanDrunen and others have shown that this definitely is not the case. Yeah, sola scriptura, this is a clear guide to faith and practice, but the natural law is still there. Calvin talks about it. All the reformers talk about it. Someone like James Wilson talks about it in spades.

All right, so what are some of the implications of this? Well, Wilson, and this is a quote we’re talking about Chisholm versus Georgia, in Chisholm versus Georgia, Wilson Paraphrases Psalm 139. “Man, fearfully and wonderfully made, is a workmanship of his all perfect Creator.” What follows from this? Well, among other things, life with consistency, beautiful, and undeviating, human life from its commencement to its close is protected by the common law. In the contemplation of the law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and in some cases, from every degree of danger.”

Now, he’s referring to the common law there, but for Wilson, as for Story, as for almost everyone in this era except for Thomas Jefferson, Christianity is a part of the common law. There is no great distinction between these. And we know from our faith that what is in the womb of a woman is a human being. Now he is relying upon the common law standard of life, quickening. I think it’s fair to say if Wilson and other founders knew what we know now about gestation, they would say, “No. From conception to its natural end, life must be protected.”

He brings the same logic to bear when he talks about suicide. Today, when suicide comes up, people ask the question as if it’s a knockout question. “Whose life is it with?” With the understanding that, “Well, it’s my life, I get to do whatever I want.” Not so for James Wilson. “It was not by his own voluntary act that man made his appearance upon the theater of life. He cannot therefore plead the right of a nation by his own voluntary act to make his exit. He did not make, therefore, he has no right to destroy himself. He alone, whose gift in the state of existence has a right to say when and how it shall receive its termination.” God gave life, only God can take life.

So, I could keep talking. My whole first book attempts to trace out Wilson’s jurisprudence, and its impact on his political philosophy. I’ll just mention two last things, and I’ll be done within my time limit. I think sometimes Americans get a little confused when they look at the American founders, and see this wonderful language about civil liberty, but then they see other things that seem that… Too, from a mid 20th to 21st century perspective, to be illiberal for want of a better word.

Well, in the 18th century, there was a clear conception. Almost everyone had it, maybe even a Thomas Jefferson, and Thomas Payne, maybe not those two, but certainly a Wilson, a Sherman, a Henry, a Jay, everyone else. Wilson actually begins his law lectures with this little epigraph. “Law without liberty is tyranny. Liberty without law is licentiousness.” Every founder distinguished between liberty and license. You don’t have a right to do what is wrong. And the law that’s restraining the liberty here is the moral law, right? So, you don’t have a right to go to the American founders and say, “Well, I guess there’s this First Amendment, so I have a right to print pornography.” They would say, “What are you talking about? No, you don’t. You don’t have a right to do something wrong like that.”

The very last thing I’ll mention, because this is sponsored by Catholic University, and my friend Joel Alicea, and I know he is very interested in the natural law and how that might apply or not apply within our system of constitutional law, and that’s a huge debate, and I tend to be pretty Scalia like in my view of this. But, for the American founders, every single justice, prior to John Marshall, with the exception of James Iredell, is clearly on record saying, “The US Supreme Court could strike down an Act of Congress if it violated the natural law.” Now that is quite a claim, right? This is before Harvey v. Madison. It’s not a claim about the constitution. If a law, and really it would be of any legislature goes against a natural law, it would be appropriate for a judge to strike that down. Again, I’m not saying this is a good doctrine, I think it’s problematic in some ways, but I think it’s important. It gives a sense of how important this Christian natural law tradition was to America’s founders. And so with that, I will stop, and…

Cully Stimson (23:11):
Judge, come on up. Take a seat in the middle. Floor is yours, judge.

Kyle Duncan (23:19):
Thank you, Cully, glad to be here. I really appreciate the invitation from CUA law school and from the Heritage Foundation. I want to congratulate you, professor Hall, on your book first of all, because I’ve read a lot. I used to kind of dabble in this area when I was a law professor. I think I’ve got one of your books in my chambers still, actually. But it’s a wonderful book. So much of this literature from my perspective, spends a great deal of time in the founding era, understandably. But it’s unusual to have a book that extends out into even to the present, to people who are still living, people who we know, to talk about the influence of their Christianity, their particular Christian beliefs on their work in the law, or as a judge, or as a law professor, as a public intellectual.

So it’s a wonderful book just to get the sweep of that. The other thing that occurred to me, as I read through these chapters, is the variety of Christian beliefs that are on display here. Someone, a secularist, somebody who’s sort of skeptical about the role of Christianity and the law might say, “Well, the Christians, they’re just all about this particular view of sex, or this particular view of whatever,” pornography you mentioned. And yet when you look at the breadth of beliefs, and philosophies that they brought to bear on the law, it sort of defies that stereotype.

And so, it’s a very useful book. I think what I’d like to do this, assuming we have time, we’ll try to make the best use of our time. I’d like to spend a little time with you, staying with the founding era just a little bit. And then I’d like to try to move forward into the present and talk… Or the recent past, and talk about Justice Scalia, since he’s such a prominent part of our lives in the law. And then to go forward to some living Christian jurists, and try to touch a little bit on Michael McConnell, and Robbie George.

So, let’s spend a little bit more time in the founding era. You mentioned you’ve written extensively about Wilson, and also about Roger Sherman. And so, as I read those two chapters, and we’ve talked about this already, the contrast between those two founding era jurists is really quite striking. And I wonder if you could sort of talk about that contrast, and try to trace it back to… We don’t want to reduce these men to their Christian beliefs. One believed this, one believed that, therefore they did this or the other. But if you could try to trace their different views of say, national versus Federalist power, or a unified government, or a unified national government versus a government with separated powers, if you could try to trace that to some of their own Christian commitments, I think that’d be very interesting.

Mark David Hall (26:24):
Yeah, sure. Well, thank you for that question. So, I was drawn to James Wilson because he was so explicit, and systematic in his discussion of the natural law. And so, from someone… And it was also a great dissertation topic, if any of you are looking for one, you don’t want to write a dissertation on George Washington, or Thomas Jefferson, or John Adams. They’ve been so overworked. Someone like a James Wilson, you had three or four decent books, a few obscure books. So, it was an area that was kind of wide open, and I had a take on him, take his natural law teaching seriously, that the few scholars that had written on him did not. So I was attracted to him for that purpose, but from my perspective, he had way too optimistic of a view of human nature. So, he was raised at Presbyterian. By the end of his life, he was worshiping in a Church of England church. Nothing against that, I’m ACNA Anglican myself.

Kyle Duncan (27:18):
I thought it was interesting, the chapter couldn’t even really specify whether he was a Presbyterian or Episcopalian.

Mark David Hall (27:23):
Yeah. So he sort of shifts throughout his life. I think by the end of his life, he definitely is there. His son becomes one of the first Anglican bishops in North America. And so, when you look at what he proposes in the National Convention, it is really scary. He really has a lot of faith in the people, direct popular election of members of the House of Representatives, direct popular election of US senators, direct popular election of the president. And he would give the president a great deal of power, and absolute veto, and this sort of thing.

Roger Sherman shows up a few days late to the constitutional convention. The Virginia Plan had been tentatively approved. Madison, for all his skepticism of human nature. The Virginia plan, if you recall, in effect, gives a national government a plenary grant of power. Sherman shows up, and I’m paraphrasing it, but he says, “You’ve got to be kidding me. We can’t give the national government a plenary grant to power.”

Kyle Duncan (28:20):
“Haven’t you ever heard of TULIP?”

Mark David Hall (28:21):
Yeah, TULIP, that’s right. And Sherman, I should say a few words, he’s a Calvinist’s Calvinist. He’s a congregationalist. His pastor is Jonathan Edwards Jr. He purchased every volume of Jonathan Edwards Sr., as his son was producing it. He wrote sermons. He debated John Witherspoon of Princeton as to when a divorce is appropriate in a Christian family. So, this is a very serious Calvinist. And so, he said right away to the Virginia Plan, “No way, this is ridiculous.” And proposes early on what became Article I, Section 8, an enumerated grant of powers to the national government.

He opposed concentrated power in the executive every time he got a chance, and he really would’ve had a very constrained executive. He would have an executive selected by Congress every year. Every year. So this would basically be an actor of the legislature, because he was so afraid of that much concentrated power. Now, Sherman lost a lot of those debates, and obviously we have a stronger executive than he would’ve liked, but a far weaker one than Hamilton, or Wilson would’ve liked. And I think this is one of the reasons the convention was so successful. You had a variety of views, within certain boundaries, and no one got whatever they wanted.

The Virginia Plan was changed in radical ways. Alexander Hamilton’s proposal never really went anywhere, but they kind of scared people. The New Jersey plan, you had people like Sherman. There was an article in the American Political Science Review a few years ago, looking at those instances where Sherman and Madison disagreed in the convention. And guess what? Sherman won a lot more of those battles than he lost. And so, Jack [inaudible 00:29:57] and others have said, “The reason the constitutional convention was successful was because of this melding of views between,” he said specifically Madison and Sherman, but you could put others in there. So yeah, view of human nature, Sherman, a very Calvinistic view, over and against those that had a less Calvinistic view, and I think ended up giving us a constitution that has worked fairly well for the last 250 some years.

Kyle Duncan (30:21):
I mean, it’s my own ignorance, no doubt, but I was struck by this sentence from Sydney Ahlstrom, whose book on Survey of American Religious Traditions, I have as well in my chambers. This sentence that says, “Sydney Ahlstrom estimates that the reformed tradition was, ‘The religious heritage of three fourths of the American people in 1776.’” That was really eyeopening to me, and it struck me that that view of human nature, whether you agree with it or not, therefore certainly had to work its way into how do we set up this new government, where the emphasis was so much on dividing power.

A sort of deep… I don’t know if total depravity is really the right way to say that. I think that’s a somewhat misunderstood term, but a deep mistrust about concentrated power. And you see that in a founder like Sherman. You do see that in some of Madison’s writings, even though it turned out he was much more congenial to a national government than someone like Sherman. I think that’s an interesting… Because when I read that, I thought immediately Federalist 51, talking about we’re not… If we were governed by angels, we wouldn’t need separated powers, but we’re not, we’re men.

Mark David Hall (31:32):
Right. And Madison, of course, a product of the College of New Jersey now known as Princeton, where he attended with Witherspoon, arguably stayed a little bit extra, perhaps contemplating the ministry, definitely impacted by this tradition. Now after he leaves Princeton, he is so private about his religious views. Anyone who claims Madison was a deist, or Orthodox Christian, or a Calvinist, show me your evidence. And there really is precious little. And so we shouldn’t read too much into that, but you’re absolutely right, a very realistic view of human nature, I think it’s fair to say.

Kyle Duncan (32:07):
Let’s sort of speed ahead a couple of centuries, or 150 years or so, because of our limited time, and talk about Justice Scalia, because I was most interested to read this chapter, which is by Thomas Berg, who’s a very good scholar, whose work is very good on the religion clauses. Antonin Scalia, Devout Christian; Worldly Judge? My first question when I started reading this chapter is, would Justice Scalia, may he rest in peace, even have wanted to be included in this book? Because it seems like I recall him saying, “There’s no such thing as a Catholic judge.” I would say. Would he say there’s no such thing as a Christian jurist? What do you think?

Mark David Hall (32:55):
I think he may very well have said that. Daniel and I struggled with that with respect to Scalia. The reason-

Kyle Duncan (33:00):
I’m glad you included him in the book, don’t get me wrong. I’m just wondering from his perspective.

Mark David Hall (33:04):
Yeah, yeah. The reason we did include him is he was well known as a pious, sincere Catholic. Everyone knew that. And then he was often accused by people on the left of reading his Catholic views on abortion, or things like that into his jurisprudence. So again, someone regarded as a Christian jurist, even if he would’ve rejected that label. I think Tom Berg does an excellent job of showing that no, Scalia had a very well-thought-out approach to constitutional interpretation, and he applied that rigorously. And I think he even said, if he thought there was a constitutional right to an abortion, he might have to resign from the bench. But he was absolutely convinced that there was no constitutional right to have an abortion. And so, he could easily rule on those matters. He believed that the matter should be left up to the states and it was clear what sort of legislation he would like, but he’s not about to use his power as a Supreme Court justice to bring about that policy outcome.

Kyle Duncan (34:02):
Well, the view that Justice Scalia was somehow transmitting his pre Vatican II Catholic views into the Constitution always struck me as absurd. Even… And I haven’t been a Catholic all my life, I’m kind of a revert to the faith, but well before I was in the Catholic Church, it occurred to me that that’s exactly contrary to what he said his jurisprudential philosophy was. And there’s some great quotes in here. You can’t talk about Justice Scalia without just quoting the man, but here’s a great quote. “The only article in faith that plays any part in my judging is the commandment, ‘Thou shalt not lie.’” And I don’t know the context of that, but I take it to mean that he’s not going to lie by swearing an oath to uphold the Constitution, and then secretly smuggle in the Council of Trent into the First Amendment. I take that’s what he means.

Mark David Hall (34:52):
Yeah, no, I think that’s absolutely right.

Kyle Duncan (34:54):
And yet, at the same time, he spoke clearly, openly, passionately, and I would say persuasively about the role of faith in his own life. And we have the quote in here where he’s talking about embracing the label fools for Christ, pray for the courage to endure the scorn of the sophisticated world. And then my favorite sort of theological discourse was when Justice Scalia was being interviewed by New York Magazine in 2013, and I think really scandalized the interviewer by asking him if he really didn’t believe in the devil.

Mark David Hall (35:28):
That’s right. I can’t quote it. I think you have it there. But basically he says, “Of course, I believe in the devil. Christians for 2000 years have believed in the devil. All Christians believe in the devil. Where have you been?” And it’s a good point, right? Yeah. In the faculty clubs at Harvard, or the Columbia Journalism School, nobody believes in the devil, but most real life American Christians do. It’s basic standard Christian doctrine. Yeah, it’s a great little dialogue there.

Kyle Duncan (35:56):
So, Justice Scalia, because he was so explicit, and was willing to speak in public… We’re seeing that more these days with some of the justices, they’re willing to speak out in public as they’re being attacked. With Justice Scalia, I just think, I don’t know, it seemed like he liked to talk, he liked to debate. I recall reading the debate in First Things magazine, where he was talking about the death penalty, and I forget who was his sort of debate interlocutor on that, if it was Cardinal Dulles, or if it was or Robbie George or whoever. But talking about his… I mean, the quote that leaps to mind was, “Look,” and I paraphrase part of it, he says, “I don’t think the Catholic Church teaches that a federal judge can have no part in sort of the machinery of the death penalty.”

And then he says, and I quote, let me get the quote. 250. This is a great quote because it’s so honest. He says… Sorry. He says, “I’m glad I came to that conclusion about the death penalty, because I like my job, and I don’t want to have to resign my job.” That’s just an unusual level of candor about the role of faith, that it plays in his life, saying, look, “If the church was teaching that, I’d resign, I couldn’t have any role in any part of it.” And I think he said, “Not even affirming a habeas corpus judgment that would send somebody to death.” I think that’s refreshing. It’s a little bit unusual, obviously opens him up to criticism, both from the left, and I think from the right. But just… So, as I think about it more, I think including him in this volume is absolutely justified, even though he himself might’ve said, “Well, I’m not a Catholic judge.”

Mark David Hall (37:51):
Yeah, no, that’s right. So, Tom Berg, and you’ve already alluded to this, he does make an argument that I think it’s worth considering, and that is that even though Scalia was crystal clear, “I’m not a Catholic judge, I’m not drawing from my Catholic faith,” Thomas Berg argues that in fact his commitment to text history and tradition were informed by his pre Vatican II education, and as well that his view of original sin, and that all of us are fallen, and infallible people maybe help chastened his proclivity to be a judicial activist. So, we’ve talked a little bit about this.

Kyle Duncan (38:29):
I have to say, whenever I read that argument, I just laugh.

Mark David Hall (38:31):

Kyle Duncan (38:31):
Because both before and after Vatican II, we still believe in words, and we still believe in sin.

Mark David Hall (38:36):

Kyle Duncan (38:37):
Us Catholics, just speaking for the entire church, myself here, and I’m pretty sure that hasn’t changed. So, the idea of tracing these beliefs back to some dusty corner of Trientine, maybe… Maybe he heard it in the Latin mass or something, I think is a little silly.

Mark David Hall (38:54):

Kyle Duncan (38:54):
But that’s just my opinion. In our five minutes left, let’s move to someone who is still alive and very much working productively in the law, and who’s been both a very prominent academic, a prominent supreme court practitioner, and a prominent federal judge. And that’s Michael McConnell, somebody who I know and admire greatly. I thought this chapter by Nathan Chapman taught me a great deal about Michael that I didn’t know. I know Michael. He’s obviously a Christian. He obviously writes very persuasively, and influential about the religion clauses, but I think of him as just an excellent originalist scholar. So, in whatever area he’s writing about, whether it’s presidential power, whether it’s the original meaning of the 14th amendment, or the religion clauses, but this idea that Nathan is developing here, that he has his own political theory of, “Reformed liberalism,” that really does draw on specific doctrines, beliefs, traditions from the formed tradition, and that’s informing his own political philosophy. I thought it was very interesting, and I’d be grateful if you’d talk about that a little.

Mark David Hall (40:08):
Yeah. And his arguments there resonate with me a great deal. In my book, Roger Sherman, and the Creation of the American Republic, one of the things I argue is so many political theorists kind of think that throughout Christendom you have this oppressive theocracy, and then John Locke comes along and invents liberalism, and off we are to the races. One of the things he recognizes, and I argue this as well, and others do as well, is that really a lot of what we associate with political liberalism develops within the Protestant, or Reformed tradition of political reflection. So the idea of individuals as bearing subjective natural rights, government by the consent of the governed, the right to resist tyrannical authority, these things are all live and well within reformed communities, and I think McConnell recognizes this, and sees their origins in these reformed communities, and then you can see John Locke as the sort of… John Locke, the son of a Puritan, as a natural continuation of this.

Now political theorists have killed a lot of trees arguing the extent to which John Locke’s political teachings are in agreement with orthodox Christianity or a vast departure from them, and I don’t want to get into that debate, other than to say some of us think you can view them as very compatible, and therefore both having a synergistic impact on the American founding, and our constitutional tradition. So, I take that to be his position. I take it to be my own position, and I think it helps explain a heck of a lot.

Let me just briefly, because I can relate to part of what he’s doing here. A judge is severely limited in ways that a professor is not. So as a professor, you get to choose what you’re going to research and work on. And at least for me, I’m profoundly committed to religious liberty, and profoundly committed to a proper understanding of church state relations, that one that would allow families to receive vouchers to send their children to private religious schools, for instance. And so a lot of my research has been guided by these commitments, and then I do the best historical work I can. That’s part of what it means to be a Christian scholar in my estimation. But I’m motivated by that. I can’t help but think that maybe Michael McConnell was motivated… He’s profoundly concerned about religious liberty, so he is done this wonderful work on the original understanding of the free exercise clause, and many other areas, of course, but-

Kyle Duncan (42:22):
Kind of single-handedly shaped the debate on the free exercise clause, in particular in response to the Smith decision, which ironically was written by the person we were just talking about, last Justice, Scalia.

Mark David Hall (42:37):
Yeah, no, that’s exactly right. And there’s… Or I presume Scalia is just applying his constitutional theory as he sees fit, and he goes out of his way to say, “Of course, Oregon could craft an exemption to protect the Native American, but it’s not required by the Constitution, and so therefore I have to honestly say it’s not.” Even if we disagree with them, I think he clearly believed that he was correct.

Kyle Duncan (43:00):
Well, there’s so much more we could say, and I’d hope to talk about Robbie George, but we don’t have time for that. In our last few seconds before we have some questions, may I ask you, and I didn’t tell you I was going to ask you this, will there be a volume two on this? Because you said there are so many people, I can imagine there were many people you wanted to include in this, but you couldn’t do that.

Mark David Hall (43:21):
We are not planning on a volume two, but we do say in the introduction, we confess that there are other really great people that could have been included here. And one of the things we hope is that this volume might spur additional scholarship.

Kyle Duncan (43:34):
Well, I hope so. Well, you are to be congratulated on this. This is a really wonderful work, and it was a pleasure to read it.

Mark David Hall (43:42):
Well, thank you very much.

Kyle Duncan (43:43):
Thank you.

Cully Stimson (43:46):
Well, now is your chance to ask questions, and I just have two admonitions. One is, ask a question with a question mark at the end, and please give us the pleasure of knowing who you are by introducing yourself quickly. And also understand that as a sitting federal judge, obviously Judge Duncan won’t be commenting on anything that could potentially come before the court. So, direct your questions to Dr. Hall, or philosophically to Judge Duncan. In the front here. Let’s wait for the microphone, please.

Speaker 11 (44:17):
Hold the mic.

Michael Maibach (44:20):
Yes, ma’am. Michael Maibach with James Wilson Institute. Thanks for doing this. Mark, you mentioned that before Justice Marshall came on the court, there was an awful lot of natural law reasoning. What happened there? Was that incremental or did Mr. Marshall really bring in a different mindset?

Mark David Hall (44:39):
Yeah. Thank you. That’s a great question. What you see, and a good place to find this, I was part of a volume with the excellent title, Seriatim, which has profiles of each of the Supreme Court justices prior to John Marshall. And as you read through that, you’ll find these examples, and [inaudible 00:44:59] saying, “No.” I think what you see, and Judge Duncan might be in a better position to answer this, because once I get into the 19th century, I start getting a little bit fuzzy. But I think you began to get this codification movement that really picks up steam, which is in some ways it’s a good movement. The idea is that we want to limit, and constrain justices, and judges, and what they do. So we want to have written laws, and cutting back on the common law jurisprudence, and equity jurisprudence and that sort of thing.

I do think you continue to have natural law reasoning working its way into courts, in some of the famous fugitive slave cases, you’ll have justice judges freeing a slave, even though clearly they’re required to send a slave back to his owner, and that sort of thing. And I suspect some of this goes by a different name. It’s my understanding that Earl Warren, after listening to long arguments about the technicalities of the law, will say something like, “But is it fair? Or is it just?” Which is maybe a way of smuggling in natural law type thinking, but definitely it’s constrained, it’s limited. No justice will say, “This is what I do.” Clarence Thomas kind of famously, long before he became a justice, published on the use of natural law by judges, and then he was grilled in the Senate Confirmation Committee hearings. He said, “Well, of course I want to do that as a Supreme Court judge.” Yeah, so definitely faded. Judge Duncan, I wonder if you have a better explanation than I do?

Kyle Duncan (46:21):
I don’t. I mean, that’s a huge subject. I mean, as a law student and as a young lawyer, I was so influenced by Justice Scalia’s views, that would say, “Well, the judge is not,” as Justice Scalia says, somewhere in this book, “I was appointed to apply the positive law. God applies the natural law.” I’m not sure I agree with that in all of its ramifications, but I have grown up in a, and been shaped by a tradition that views with some skepticism, the notion that a judge is applying the natural law. That doesn’t mean to say that… And I’ve read, and my good friend Hadley Arkes, I’ve read many of his books, and I know that he takes a slightly different view of that, although I think it’s a nuanced view.

I still am mistrustful of this Earl Warren kind of idea. “Well, we just have to do fairness.” As if judges have this sort of special faculty of fairness or justice that they just have to bring to bear. And I’m thinking of in the modern day, of certain politicians who would say that, “I’m looking for judges who are empathetic.” And I’ve never understood that. Of course, I’m empathetic. All of my colleagues are empathetic. We try to empathize with everyone.

Just last week I heard an immigration case that had me tied up in knots inside because the facts were so awful. And I was very, very empathetic towards the person who was seeking asylum, as you can… If you listen to the oral argument, you can hear me grilling the federal government’s lawyer. And yet, part of judging is, I then take a step back from that empathy no matter where it might go, and say, “What is my duty here? What is my responsibility?” And it’s not to enact my empathy into the law, as, I guess hardhearted as that sounds, it’s just my understanding of what my role as a judge is. So, but to answer your question, I don’t know.

Cully Stimson (48:28):
Next question. Here in the front. Please wait for the mic.

Emmanuel (48:37):
Hey, my name’s Emmanuel. I’m with the WAAA. My biggest question is what is the difference really between natural law, and celestial law, which you brought up earlier when discussing Wilson?

Mark David Hall (48:50):
Yeah, so the eternal law is like God’s grand plan for the universe. Celestial law is a law basically governing, as I understand it, angels and demons. The kind of high level of spiritual stuff. Natural physical law, gravity, natural moral law. That’s what you and I are concerned with, right? Do not kill, do not steal, and that sort of thing.

Kyle Duncan (49:12):
Celestial law is in I think Title XVIII.

Mark David Hall (49:15):
All right.

Kyle Duncan (49:16):
That’s just a bad joke.

Cully Stimson (49:18):
Having practiced criminal law, I don’t think it’s there. I never found it there, judge. But, while we’re waiting for the next question, Dr. Hall, you mentioned confirmation hearings, and I don’t know, because I haven’t had the privilege of reading this book yet, but what thoughts do you have, if any, with respect to the development of these confirmation hearings, let’s say post bork? And the degree to which questions about religion, or the religious underpinnings of a potential nominee’s past comes into play, and whether that’s a good or bad thing?

Mark David Hall (49:58):
Yeah, I think in some cases that I can think of, and I imagine you might be thinking of they come perilously close to being a religious test for office. “Do you have these religious views that I find problematic? If so, you can’t hold federal office.” And I think that’s completely inappropriate. It’s entirely inappropriate to ask, “What is your view of a judge? What’s your approach to constitutional interpretation? Do you think it’s appropriate to draw from your religious views into your jurisprudence?” Those might be appropriate, but to actually grill about one’s religious commitments, or dogma, perhaps, inappropriate completely, in my humble opinion.

Cully Stimson (50:34):
Yeah, I thought that might be your answer.

Kyle Duncan (50:36):
I forget if this is touched on here, or maybe in the introduction in the book that today, of course, we’re all originalists, and we’re all textualists, and that’s a relief to hear, that we’re… And I am waiting for the grand convergence of the Supreme Court, and we just have 9-0 opinions in all the controversial cases, because we’re all originalists. But for a time there, it was the sort of more conservative, or restrained judges who were saying, “Look, my views about the angels, or original sin, or the Council of Trent don’t play any view in how I interpret the tax laws. So you can ask me all you want about this stuff, and I’m just going to say the same thing.”

But it was a little bit one… It wasn’t equal, because you had people on the other side who were saying, “Oh sure, judges do justice, judges do fairness.” And it’s so easy to smuggle into your view of fairness, or your view of justice, your own moral views, your own religious views. And so, the playing field was not level there. You had one side saying, “I don’t consider that.” You had the other side effectively saying, “Oh sure, I do that.” Now it’s interesting in confirmation hearings, I guess we’ve all agreed that we’re all originalists now, so don’t… None of our prior moral commitments can possibly influence. So I mean, to answer your question more directly, I don’t think that those kinds of exchanges in confirmation hearings are really worthwhile or helpful at all, and I wonder why we even do them anymore.

Cully Stimson (52:13):
I think there’s a question over here, here on the… If you can wait for the microphone, please, sir.

Stone Washington (52:22):
Thank you. My name is Stone Washington. I’m a research fellow at the Competitive Enterprise Institute. My question to you is, do you believe that there are certain portions of the Constitution, specifically beyond the Bill of Rights, that incorporate a tenet of natural law, or some understanding of natural law? And I ask this because I’m currently finishing up a law review article, it’s going to be published in the Washburn Law Journal, and it deals with how the Contracts Clause of Article I is inspired, in my view, of the natural law, or the natural right to freely contract without government intrusion. And so I just wanted to ask, even thinking about the Contracts Clause or any other portion of the Constitution, what your view of that is?

Mark David Hall (53:14):
That’s great. Do you have a thought on that?

Kyle Duncan (53:19):
Well, the answer is yes and no. How do you like that? The yes part of it is, natural law concepts of, say, fairness, or just basic logic are obviously in parts of the Constitution, like the Due Process Clause, or the Contracts Clause, or the Confrontation Clause. It’s the idea that the natural law is operating at a certain level of generality, and then needs to be, I hate to say the word instantiated, because it’s so pointy headed, but boiled down into actual legal provisions. So, in that sense, yes, absolutely.

But the no sense is to say that because that’s the case, therefore judges have the authority to apply the natural law in a given case, and I don’t think that. And I don’t think the constitution authorizes judges to do that. And I think even a passing understanding of what a constitution is in our history would show you that. The idea that the framers who were concerned about this new federal government, and the powers in the executive, and the powers, and were very concerned about the powers in the Congress, so therefore we have to have bicameralism, and we have to have enumerated powers. Oh, and by the way, this branch over here, Article III, which Alexander Hamilton described as the least dangerous branch, oh, by the way, they have the authority to apply the natural law. I don’t think that would’ve flown. So, I think it’s a highly implausible view, not that it’s your view, but that’s what I think.

Mark David Hall (54:59):
Let me give a two part answer real quickly. There’s a wonderful essay by John Witty Jr. on Harold Berman, the great legal academic. And he’s talking to a group of law students in China, and they ask him, “Do you need to believe in God in order to believe in law?” In essence. And he said, “Well, no, but it helps. And if you don’t, then think about what just comes naturally, intuitively, through your conscience.” I’m quoting here, “Every child in the world will say, ‘That’s my toy.’ That’s property law. Every child would say, ‘But you promised me.’ That’s contract law. Every child will say, ‘It’s not my fault. He hit me first.’ That’s tort law, and so forth.” And so I think the idea there is that there are ways in which law is informed by these moral ideas that may or may not relate to God.

Far more broadly, let me suggest that when we think of America’s constitutional order, I think we do well not to begin with the US Constitution, but to begin with the Declaration of Independence. And these majestic… Especially the second paragraph, “We hold these truths to be self-evident, that all men are created equal, that they’re endowed by their Creator with certain unalienable rights, among which are life, liberty, and the pursuit of happiness.”

A few years ago, I wrote a little chapter where I went through every reference by US Supreme Court justices and judicial opinions to the Declaration. They’ve never held it to be judicable, and I don’t think it is, and I don’t think justices should be making decisions based on these magnificent words. And yet I think we can understand our constitutional experiment is being dedicated to them. And so, as we make progress, and I do think there’s progress here, the 13th, 14th, and 15th Amendments make a great stride towards recognizing these majestic promises. And so, I think it’s fair to say they’re informed by natural law, but they become part of the Constitution because it went through the amending process, not because the judge just went back and plucked out this idea from the Declaration.

Cully Stimson (57:00):
In our remaining two minutes, I want to just turn the podium back to both of you to see if you have any concluding remarks. And since you’re the author who we’re featuring today, I’ll start with Judge Duncan and leave you with the last word.

Mark David Hall (57:14):
All right.

Kyle Duncan (57:15):
Reading this great book just reminded me how much there is still to learn about these topics. It’s really inexhaustible, topics like this. I ask myself all the time, “What is my role? I am a Christian, I’m a Catholic. How does that impact what I do as a judge?” And it’s really great to be in the presence of all of these great thinkers, and to see what they thought about it. And it helps me think of what the right answer is for me as well. So, I again, congratulate you on this excellent work.

Mark David Hall (57:50):
Well, thank you. And I think I’ll build off that, as a Christian who wants my faith to impact every part of my life. I find it real useful to look at a number of exemplars, including exemplars that go in a direction that I think is wrong, but at least to seriously consider why they went this way, what I can learn from it. And then maybe I’ll find someone, I’m not a judge of course, but thinking broadly about jurisprudence, people I want to emulate, and follow. So, I love projects this, and I’m very grateful. My colleague, Daniel Dreisbach and I edited this together, and then we had a great constellation of contributors that really taught us a lot.

Kyle Duncan (57:50):
You sure did,

Mark David Hall (58:23):
A lot more… I could never have written this book on my own, and so it was a great cooperative exercise.

Kyle Duncan (58:29):
Yeah. Thank you.

Cully Stimson (58:30):
Well, please join me in thanking our panel. And we are adjourned. Thank you.

Kyle Duncan (58:40):
All right. Thank you.

Mark David Hall (58:41):
[inaudible 00:58:41].

Kyle Duncan (58:41):
Thank you. Enjoyed it. Thank

Mark David Hall (58:42):
Thank you. Yes. Great fun.

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