Christians AGAINST Christian Nationalism - - or - - Why Constitutionalism is Better Than Church Law

Christians AGAINST Christian Nationalism

or

Why Constitutionalism is Better Than Church Law

by R.E. Slater

August 4, 2022

Sacrilege - "A gross irreverence toward a hallowed person, place, or thing."

Apparently I have more to say on the subject of Christian Nationalism and its blasphemy of Christ, the Church, the Christian faith in general, and God made into its idolatrous image. But instead of preaching or dissenting I will present judicial arguments and observations to its sacrilegious error and theocracy of dominionism meant to demean, pervert, and dehumanize societies of people.

I begin with the following observations:

• The God many Christians worship is a God of love to all people without distinction of gender, sex, race, creed, culture, or ethnic.

• This God is a just God and not a God who is unjust.

• A God whom the Christian faith has grossly distorted over its many histories of inquisitions, crusades, apartheidism, and authoritarian hunger for theocratic control over all men, women, nations, and beliefs (currently known as Christian nationalism).

• Much of the Old Testament - and Jesus' actions against the religion of his day - spoke against a faith in God gone deeply bad. Whose ways, means, views, rites, and shriveled heart defiled God, making him want to puke in the presence of their sacrifices.

To the God who is altogether larger than our imaginations of his loving, holy being, we speak out once again against a church gone bad.

R.E. Slater

August 4, 2022

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Christians Against Christian Nationalism

organization link

As Christians, our faith teaches us everyone is created in God’s image and commands us to love one another. As Americans, we value our system of government and the good that can be accomplished in our constitutional democracy. Today, we are concerned about a persistent threat to both our religious communities and our democracy — Christian nationalism.

Christian nationalism seeks to merge Christian and American identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism demands Christianity be privileged by the State and implies that to be a good American, one must be Christian. It often overlaps with and provides cover for white supremacy and racial subjugation. We reject this damaging political ideology and invite our Christian brothers and sisters to join us in opposing this threat to our faith and to our nation.

As Christians, we are bound to Christ, not by citizenship, but by faith. We believe that:

• People of all faiths and none have the right and responsibility to engage constructively in the public square.

• Patriotism does not require us to minimize our religious convictions.

• One’s religious affiliation, or lack thereof, should be irrelevant to one’s standing in the civic community.

• Government should not prefer one religion over another or religion over nonreligion.

• Religious instruction is best left to our houses of worship, other religious institutions and families.

• America’s historic commitment to religious pluralism enables faith communities to live in civic harmony with one another without sacrificing our theological convictions.

• Conflating religious authority with political authority is idolatrous and often leads to oppression of minority and other marginalized groups as well as the spiritual impoverishment of religion.

• We must stand up to and speak out against Christian nationalism, especially when it inspires acts of violence and intimidation—including vandalism, bomb threats, arson, hate crimes, and attacks on houses of worship—against religious communities at home and abroad.

• Whether we worship at a church, mosque, synagogue, or temple, America has no second-class faiths. All are equal under the U.S. Constitution. As Christians, we must speak in one voice condemning Christian nationalism as a distortion of the gospel of Jesus and a threat to American democracy.

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The Constitution is a progressive document. Both in its day and now in the present. It is a legal document defending and protecting the rights and liberties of all people. It intends to bring freedom and equality to all classes, sexes, genders, faiths, and cultures.

By the Constitution's very nature its is politically progressive and something liberals should be talking up a great deal more in the face of the ever more constrained view from the right speaking originalism, textualism, and faux arguments leading away from an ever expanding and deepening Constitutional society.

Even the Constitution's foundation was, and is, based upon the Declaration of Independence. They together, taken in force, but admit one thing - an expanding narrative of freedom, equality and justice for all at all times and in all places.

Textual (faux)Originalism does not. It moves in the direction of authoritarian control by any political mechanism, most recently, again, by the Church's boundless enthusiasm for legalism, excluding doctrinnaires, obsequious self-love, and self-righteous promotion - if not self-centered condemnations.

All in all, better an equitable and fair civil law than any church theocracy claiming to be of God when its meanness of love and spiteful virtues is anything but of God or God's love.

- R.E. Slater

* * * * * * * * *

The principal difference between conservative justices then and conservative justices now is that the conservatives of 30 years ago were practical. They didn't like abortions, but they understood that no society in history had successfully prevented them. They understood that criminalizing doctors who can perform the procedures safely only leads to unsafe, unregulated procedures. They understood that pregnant people will seek control over their own bodies, whether or not the state or the courts or the church acknowledges their bodily autonomy. But such practical-minded conservative justices were replaced by shameless political ideologues and, more recently, by religious zealots — indoctrinated, vetted and even prepped for perjury by the Federalist Society.

- Salon

* * * * * * * * *

[P]rogressives have not been fighting originalism; we have been fighting fauxriginalism. Fauxriginalism distorts the meaning of the Constitution, often by focusing selectively on some parts of the document, rather than by looking at the text, history, and values of the whole Constitution. Conservatives like to claim that originalism leads them to conservative results, but that's because they too often give a cramped meaning to the Constitution's text and ignore the constitutional history and values that help elucidate what that text means. In truth, conservatives have been a bit like the kid in our grade school class who delivered a book report, but who had only read the first chapters of the book — and didn't even read them that carefully.

- Praveen Fernandes

* * * * * * * * *

As utilized by the so-called conservatives on the current court, textualism and originalism have become ways to muzzle the voice of the Constitution and keep it from rising from its draped featherbed to address the pressing issues of our own time.

- Salon

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The original Christian nationalists were the KKK. Today (White) Christian Nationalism = White Supremacy without a whole lot of difference between the pagan Jesus now to the horrific Jesus then.

As a (Jesus) Christian, all radical Christian nationalists are anathema, acriminous aberrations, and very blasphemy to the "God of Love" we worship in Christ Jesus. The Jesus Christian faith stands apart from this Christianized sectarian gospel of hate and division.

- R.E. Slater

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Christian Nationalism Is On The Rise | Ayman

July 29, 2022

The religious right has been around for a long time. But in recent years, a new kind of public, political expression of religion has grown increasingly common: Christian nationalism. But what do Christian nationalists really stand for and where is the movement headed? Amanda Tyler, lead organizer of Christians Against Christian Nationalism, joins Ayman to discuss.

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Antonin Scalia, Clarence Thomas and Amy Coney Barrett
(Photo illustration by Salon/Getty Images)

How the Supreme Court's "fauxriginalists"

are warping the Constitution

Salon link

Right-wing justices claim they're delving for true meanings

beneath the Constitution. It's another Big Lie

by Kirk Swearingen

July 29, 2022

Maybe you've seen the editorial cartoon by Bruce MacKinnon that depicts Lady Justice being held down and muzzled by well-dressed thugs from the GOP.

It was drawn in response to Brett Kavanaugh's confirmation hearing, during which Republican senators were working hard to brush away the testimony of Christine Blasey Ford about Kavanaugh's character (or lack thereof), but the instantly classic cartoon can easily stand apart from the specific circumstances of its creation — Lady Justice being assaulted by white male members of the Republican Party.

In a recent interview with Ezra Klein for his podcast, legal scholar Larry Kramer discusses how liberals, after a series of progressive decisions by the Supreme Court under Chief Justice Earl Warren, began to rely too much on the courts and too little on politics, while the right methodically mounted a political counterrevolution, one that included redeployment of the judicial review philosophy known as "originalism."

Constitutional textualists — who formerly claimed to be wedded to the letter of the law — became originalists (or was it the other way around?), delving beneath the text itself for deeper meanings, sometimes in search of the founders' intent and sometimes to ascertain (as they claimed) how the text would have been understood by reasonable people at the time it was written. People, say, like the town blacksmith or the chandler chasing a chicken in the street, who would likely have given little thought to, say, the 14th Amendment's guarantee of equal protection under the law, even in terms of the big issues of their time.

The truth is that so-called modern originalists or textualists, like the late Justice Antonin Scalia or his intellectual heirs Clarence Thomas and Amy Coney Barrett, also feel free to roam much farther afield than that, seeking justifications for their favored interpretation in English common law and philosophy.

As utilized by the so-called conservatives on the current court, textualism and originalism have become ways to muzzle the voice of the Constitution and keep it from rising from its draped featherbed to address the pressing issues of our own time (when, you know, our beds are often ordered online because we heard about them on a podcast).

But is the use of the term "originalism" by Scalia and his acolytes itself actually disingenuous?

That's the argument of Praveen Fernandes of the Constitutional Accountability Center, who suggests that a true originalist approach to interpreting the Constitution would not provide conservative results, because the document is, on the whole, remarkably progressive. Instead, Fernandes says, judicial conservatives distorting the meaning of the Constitution by practicing fauxriginalism:

[P]rogressives have not been fighting originalism; we have been fighting fauxriginalism. Fauxriginalism distorts the meaning of the Constitution, often by focusing selectively on some parts of the document, rather than by looking at the text, history, and values of the whole Constitution. Conservatives like to claim that originalism leads them to conservative results, but that's because they too often give a cramped meaning to the Constitution's text and ignore the constitutional history and values that help elucidate what that text means. In truth, conservatives have been a bit like the kid in our grade school class who delivered a book report, but who had only read the first chapters of the book — and didn't even read them that carefully.

I'm reminded that we used to joke about something we called the "scholarly bluff," where you regurgitate a quote from a recognizable (but perhaps not too recognizable) name to end an argument. We laughed about it because it was so simple — and so effective. Your quote might not actually support your argument, and you might not even have gotten it right. But people tended to back down in the face of such seeming erudition.

Given that the overtly anti-federalist Federalist Society was itself disingenuously named, it figures that it would get behind a disingenuous form of originalism. In a recent column for the Nation, Elie Mystal writes that the nature of conservative justices began to change after 1992, when fundamentalist Christians were deeply disappointed by the Planned Parenthood of Southern Pennsylvania v. Casey ruling:

The principal difference between conservative justices then and conservative justices now is that the conservatives of 30 years ago were practical. They didn't like abortions, but they understood that no society in history had successfully prevented them. They understood that criminalizing doctors who can perform the procedures safely only leads to unsafe, unregulated procedures. They understood that pregnant people will seek control over their own bodies, whether or not the state or the courts or the church acknowledges their bodily autonomy.

But such practical-minded conservative justices were replaced by shameless political ideologues and, more recently, by religious zealots — indoctrinated, vetted and even prepped for perjury by the Federalist Society.

Mystal likens the extremists on the current court to an invasive species that was purposely introduced into a local ecosystem to address some specific problem, but then ran amok. Now that they have thoroughly devoured Roe v. Wade, they're eager to turn their attention to other prey, such as the separation of church and state. Mystal says affirmative action is next.

The only solution, he writes, is for Democrats to meet the challenge by changing the nature of the court. "After 1992, Republicans engineered a new breed of conservative justice. The rest of us must create a new kind of Supreme Court before it's too late."

On Klein's podcast, Kramer notes a few ways the court could be changed to reduce the effect of the ideology of individual justices. He also asserts that the Constitution is a progressive document, something liberals should be talking up a great deal more in the face of the ever more constrained view from the right.

As used by so-called conservatives, "textualism" and "originalism" are tools to muzzle the Constitution's true voice, and prevent it from addressing the issues of our time.

How progressive is it really? According to scholar Garry Wills, the Establishment Clause alone was a defining miracle of the U.S. Constitution. As James Madison wrote in his "Memorial and Remonstrance" statement on church and state, disestablishment both protected the free expression of religion and protected all citizens from the use of "Religion as an engine of Civil policy." In a letter to Madison, Thomas Jefferson argued that as the earth belongs to the living, any constitution (not just ours) was a living document, something that needed to be updated frequently as society evolved.

As for the ideological and religious warriors on the current court (who would make Madison shudder), do yourself a favor and listen to the entire podcast. Two quotes from Kramer stood out for me:

"If the founding generation had been originalists, we wouldn't be here," and "The only way you can be an originalist is to be a really, really bad historian."

Unless you believe, that is, that the Constitution is indeed a progressive document and that a truly originalist interpretation demands an expansive view of the founding principles of the framework. As Kramer says, conservatives should never have been allowed to occupy the Constitution and claim it as their totem, the same way they have done for so long with the flag and the concept of patriotism. Supporters of the ongoing Big Lie about the 2020 election and the Jan. 6 insurrection cannot claim patriotism; those who are fine with the Confederate flag being paraded through the Capitol cannot claim allegiance to our nation's actual flag.

It's all been an endless con, since the days of Ronald Reagan, in service to giving more to the wealthy and big corporations while dividing the citizens from one another, mostly over culture-war issues the powerful don't much care about. (Americans used to be proud to mind their own business.)

Now the idea is to "flood the zone" with nonsense in order to keep the public from noticing our nation's astonishing levels of income inequality, to dumb children down further, to install permanent minority rule and to shut down the American experiment once and for all.

As both Mystal and Kramer note, we need to work toward a new kind of Supreme Court, one less dominated by political ideology and religious dogma. That won't be easy, but if we don't, MacKinnon's tragic vision of Lady Liberty will be all too accurate — with the dire human costs afflicting many generations to come.

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Image: Illustration by Mallory Rentsch / Source Images: Cameron Smith /
 Mohammad Aqhib / Unsplash / Reza Estakhrian / Getty Images

What Is Christian Nationalism?

CT link

An explainer on how the belief differs from other forms of 

nationalism, patriotism, and Christianity.

by Paul Miller

February 3, 2021

You’ve probably seen headlines recently about the evils of Christian nationalism, especially since December’s Jericho March in Washington, DC, and since a mob of Trump supporters—many sporting Christian signs, slogans, or symbols—rioted and stormed the US Capitol building on January 6.

What is Christian nationalism, and how is it different from Christianity? How is it different from patriotism? How should Christians think about nations, especially about the United States? If nationalism is bad, does that mean we should reject nationality and national loyalty altogether?

What is patriotism, and is it good?

Patriotism is the love of country. It is different from nationalism, which is an argument about how to define our country. Christians should recognize that patriotism is good because all of God’s creation is good and patriotism helps us appreciate our particular place in it. Our affection and loyalty to a specific part of God’s creation helps us do the good work of cultivating and improving the part we happen to live in. As Christians, we can and should love the United States—which also means working to improve our country by holding it up for critique and working for justice when it errs.

What is nationalism?

There are many definitions of nationalism and an active debate about how best to define it. I reviewed the standard academic literature on nationalism and found several recurring themes. Most scholars agree that nationalism starts with the belief that humanity is divisible into mutually distinct, internally coherent cultural groups defined by shared traits like language, religion, ethnicity, or culture. From there, scholars say, nationalists believe that these groups should each have their own governments; that governments should promote and protect a nation’s cultural identity; and that sovereign national groups provide meaning and purpose for human beings.

What is Christian nationalism?

Christian nationalism is the belief that the American nation is defined by Christianity, and that the government should take active steps to keep it that way. Popularly, Christian nationalists assert that America is and must remain a “Christian nation”—not merely as an observation about American history, but as a prescriptive program for what America must continue to be in the future. Scholars like Samuel Huntington have made a similar argument: that America is defined by its “Anglo-Protestant” past and that we will lose our identity and our freedom if we do not preserve our cultural inheritance.

Christian nationalists do not reject the First Amendment and do not advocate for theocracy, but they do believe that Christianity should enjoy a privileged position in the public square. The term “Christian nationalism,” is relatively new, and its advocates generally do not use it of themselves, but it accurately describes American nationalists who believe American identity is inextricable from Christianity.

What is the problem with nationalism?

Humanity is not easily divisible into mutually distinct cultural units. Cultures overlap and their borders are fuzzy. Since cultural units are fuzzy, they make a poor fit as the foundation for political order. Cultural identities are fluid and hard to draw boundaries around, but political boundaries are hard and semipermanent. Attempting to found political legitimacy on cultural likeness means political order will constantly be in danger of being felt as illegitimate by some group or other. Cultural pluralism is essentially inevitable in every nation.

Is that really a problem, or just an abstract worry?

It is a serious problem. When nationalists go about constructing their nation, they have to define who is, and who is not, part of the nation. But there are always dissidents and minorities who do not or cannot conform to the nationalists’ preferred cultural template. In the absence of moral authority, nationalists can only establish themselves by force. Scholars are almost unanimous that nationalist governments tend to become authoritarian and oppressive in practice. For example, in past generations, to the extent that the United States had a quasi-established official religion of Protestantism, it did not respect true religious freedom. Worse, the United States and many individual states used Christianity as a prop to support slavery and segregation.

What do Christian nationalists want that is different from normal Christian engagement in politics?

Christian nationalists want to define America as a Christian nation and they want the government to promote a specific cultural template as the official culture of the country. Some have advocated for an amendment to the Constitution to recognize America’s Christian heritage, others to reinstitute prayer in public schools. Some work to enshrine a Christian nationalist interpretation of American history in school curricula, including that America has a special relationship with God or has been “chosen” by him to carry out a special mission on earth. Others advocate for immigration restrictions specifically to prevent a change to American religious and ethnic demographics or a change to American culture. Some want to empower the government to take stronger action to circumscribe immoral behavior.

Some—again, like the scholar Samuel Huntington—have argued that the United States government must defend and enshrine its predominant “Anglo-Protestant” culture to ensure the survival of American democracy. And sometimes Christian nationalism is most evident not in its political agenda, but in the sort of attitude with which it is held: an unstated presumption that Christians are entitled to primacy of place in the public square because they are heirs of the true or essential heritage of American culture, that Christians have a presumptive right to define the meaning of the American experiment because they see themselves as America’s architects, first citizens, and guardians.

How is this dangerous for America?

Christian nationalism tends to treat other Americans as second-class citizens. If it were fully implemented, it would not respect the full religious liberty of all Americans. Empowering the state through “morals legislation” to regulate conduct always carries the risk of overreaching, setting a bad precedent, and creating governing powers that could be used later be used against Christians. Additionally, Christian nationalism is an ideology held overwhelmingly by white Americans, and it thus tends to exacerbate racial and ethnic cleavages. In recent years, the movement has grown increasingly characterized by fear and by a belief that Christians are victims of persecution. Some are beginning to argue that American Christians need to prepare to fight, physically, to preserve America’s identity, an argument that played into the January 6 riot.

How is Christian nationalism dangerous to the church?

Christian nationalism takes the name of Christ for a worldly political agenda, proclaiming that its program is the political program for every true believer. That is wrong in principle, no matter what the agenda is, because only the church is authorized to proclaim the name of Jesus and carry his standard into the world. It is even worse with a political movement that champions some causes that are unjust, which is the case with Christian nationalism and its attendant illiberalism. In that case, Christian nationalism is calling evil good and good evil; it is taking the name of Christ as a fig leaf to cover its political program, treating the message of Jesus as a tool of political propaganda and the church as the handmaiden and cheerleader of the state.

How is Christianity different from Christian nationalism?

Christianity is a religion focused on the person and work of Jesus Christ as defined by the Christian Bible and the Apostles’ and Nicene Creeds. It is the gathering of people “from every nation and tribe and people and language,” who worship Jesus (Rev. 7:9), a faith that unites Jews and Greeks, Americans and non-Americans together. Christianity is political, in the sense that its adherents have always understood their faith to challenge, affect, and transcend their worldly loyalties—but there is no single view on what political implications flow from Christian faith other than that we should “fear God, honor the king” (1 Pet. 2:17, NASB), pay our taxes, love our neighbors, and seek justice.

Christian nationalism is, by contrast, a political ideology focused on the national identity of the United States. It includes a specific understanding of American history and American government that are, obviously, extrabiblical—an understanding that is contested by many historians and political scientists. Most importantly, Christian nationalism includes specific policy prescriptions that it claims are biblical but are, at best, extrapolations from biblical principles and, at worst, contradictory to them.

Can Christians be politically engaged without being Christian nationalists?

Yes. American Christians in the past were exemplary in helping establish the American experiment, and many American Christians worked to end slavery and segregation and other evils. They did so because they believed Christianity required them to work for justice. But they worked to advance Christian principles, not Christian power or Christian culture, which is the key distinction between normal Christian political engagement and Christian nationalism. Normal Christian political engagement is humble, loving, and sacrificial; it rejects the idea that Christians are entitled to primacy of place in the public square or that Christians have a presumptive right to continue their historical predominance in American culture. Today, Christians should seek to love their neighbors by pursuing justice in the public square, including by working against abortion, promoting religious liberty, fostering racial justice, protecting the rule of law, and honoring constitutional processes. That agenda is different from promoting Christian culture, Western heritage, or Anglo-Protestant values.

Paul D. Miller is a professor of the practice of international affairs at Georgetown University and a research fellow with the Ethics and Religious Liberty Commission.

UNWANTED: CHURCH LAW over CIVIL LAW

UNWANTED: CHURCH LAW over CIVIL LAW

Sectarian Interpretation of God & Morality

more often Oppresses rather than Liberates

by R.E. Slater

August2, 2022

Judge Alito's reasoning for removing Roe was based upon his belief in GOP-based "Originalism," interpreting the US Constitution on a self-selective micro-reading of it's 1700s creed denying any rights to women (gained 150 yrs later in the 1900s). Those rights have been removed again by Republicans.

Ideology At It's Worst

Much like the TV Series, "The Handmaiden's Tale," Judge Alito chose to neglect the very reason the Constitution is the "supreme law" for America's liberal democracy. A legal document officially declaring the rights of all people - men, women, and children, of any color, faith, or culture. For it is the future of children Roe is most explicit by giving to the birthing mother the right to chose when and where she grants life. Not the Trumpian state, and certainly not the Trumpian church, which say they are pro-life but by their actions have never been.

Let's Not Forget the Declaration of Independence

Secondly, so-called "Originalism" is further rejected in the US Constitution as it is fully based upon the Declaration of Independence for all individuals living in America. That all laws must be fair, equitable, and just.

Thus and thus, in both essential, and pragmatically affective ways, Alito's judgment has been stripped bare of his arguments by showing his willfully ignorant interpretive reading of America's most basic, and foundational, creeds.

The Supreme Court is Supremely Wrong

Lastly, in denying America's national creeds, Judge Alito has set the "Supreme" Court on the paths of theocratic authoritarianism where church beliefs dictate the civil rights of a nation. Not a nation's civil documents meant to avoid unjust compromises under church readings of ethics and morality.

Beliefs which are held in subjective force to a subset of the American population pretending their "moral" judgments are from God. Judgments such as removing the civil rights of North American natives, the indentured rights of white slaves, the civil rights of Black slaves, or Asians, Hispanics, Muslims, etc. Often, Church decrees meant for good end up misusing and abusing the very people they are pretending to protect.

Church Law Often Oppresses

Further, today's evangelical church has given itself over to abhorrent socio-political white Christian nationalism which culture is neither fair nor just. Sectarian laws always oppress civil laws and never encompass all society members.

History has repeatedly shown the error of church based laws meant to honor God but in truth, destroy, persecute, and oppress those under its inquisitions and crusades with its legalisms, falsehoids, lies, and hypocrisies.

Civil Law is Meant for the Greatest Good of All People

We have civil laws for a reason. They are meant for the good and wellbeing of all society members when upheld in love, truth, and equitable observance.

The Supreme Court’s reversal of Roe v. Wade has paved the way for many GOP-led states to ban or severely restrict abortion access across the country, despite around two-thirds of Americans supporting the right to an abortion in some cases. - Anon

Trust in the Supreme Court has never been lower, according to polling earlier this month that found just a quarter of Americans hold confidence in the high court. - Anon

R.E. Slater

August 2, 2022

 

Additional References

• Salon - How the Supreme Court's "fauxriginalists" are warping the Constitution. Right-wing justices claim they're delving for true meanings beneath the Constitution. It's another Big Lie

• "Originalism" is gaslighting us

• The Washington Post - Under right-leaning Supreme Court, the church-state wall is crumbling as the U.S. becomes more religiously diverse and secular, the court has handed victory after victory to religious petitioners seeking more voice, money and access in the public square

• The New Era of Rightwing Judicial Supremacy: The U.S. Supreme Court has entered a legal fantasy world: advancing a regressive political agenda free from democratic accountability.

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Originalism

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Scene at the Signing of the Constitution of the United States, by Howard Chandler Christy

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding "at the time it was adopted". This concept views the Constitution as stable from the time of enactment and that the meaning of its contents can be changed only by the steps set out in Article Five.^[1] This notion stands in contrast to the concept of the Living Constitution, which asserts that the Constitution should be interpreted based on the context of current times and political identities, even if such interpretation is different from the original interpretations of the document.^[2][3] Originalism should not be confused with strict constructionism.^[4]

Proponents of originalism argue that originalism has historically been the primary method of legal interpretation in America from the time of its founding until the time of the New Deal, when competing theories of interpretation grew in prominence.^[5][6][7] Critics of modern originalism argue that it is rooted in conservative political resistance to the Brown v. Board of Education Supreme Court decision, as it was used by proponents of segregation to argue in opposition to civil rights legislation during the 1960s.^[8] Originalism is an umbrella term for interpretative methods that hold to the "fixation thesis", the notion that an utterance's semantic content is fixed at the time it is uttered.^[9] Two alternative understandings about the sources of meaning have been proposed:

• The original intent theory, which holds that interpretation of a written constitution is (or should be) consistent with what those who drafted and ratified it intended the meaning to be. This view has become largely depreciated among 21st century originalists. Alfred Avins and Raoul Berger (author of Government by Judiciary) were proponents of this view.
• The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have understood the ordinary meaning of the text to be. Antonin Scalia was a proponent of this view, as are Clarence Thomas and Amy Coney Barrett.

Such theories share the view that there is an identifiable original intent or original meaning, contemporaneous with the ratification of a constitution or statute, which should govern its subsequent interpretation. The divisions between the theories relate to what exactly that identifiable original intent or original meaning is: the intentions of the authors or the ratifiers, the original meaning of the text, a combination of the two, or the original meaning of the text but not its expected application.

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This Court Has Revealed Conservative Originalism To Be a Hollow Shell

The Supreme Court’s right-wing justices claim to be originalists,

but then they pick and choose the history that fits

their ideological preferences.

by David H. Gans

July 20, 2022

About the author: David H. Gans is the director of the Human Rights, Civil Rights,

& Citizenship program at the Constitutional Accountability Center.

When Justice Amy Coney Barrett joined the Supreme Court in 2020, conservatives celebrated that “there are now four avowed originalists on the Court.” To those on the right, the latest version of the Roberts Court had the potential to be the greatest originalist Court in history. But this term’s biggest decisions show how wrong those conservatives were—even as they got all the results they wanted.

Although conservative originalists have for years been touting their method as restrained, sensible, and tightly tethered to constitutional text and history, this term blew away such pretenses. If this is the great conservative originalism, then those professing it have finally and conclusively revealed it to be what many skeptics already considered it: a hollow edifice designed to hide an ugly and aggressive ideological agenda.

This is a radical Court dominated by conservatives who treat the past practices of state legislatures as determinative of the Constitution’s meaning, warping the broadly worded language that was meant to enshrine fundamental principles of liberty and equality in our national charter. This is a Court that insists it is following history and tradition where they lead, while cherry-picking the history it cares about to reach conservative results. These are damning moves for conservative justices who pride themselves on fidelity to the Constitution’s first principles.

Let’s start with Dobbs v. Jackson Women’s Health Organization, where a five-justice majority overruled Roe v. Wade and, for the first time in history, stripped away a previously announced constitutional right essential to bodily integrity and equal citizenship. Dobbs offers one of the most crabbed views of liberty in Supreme Court history. Justice Samuel Alito’s majority opinion presents liberty as an empty idea. According to Alito, “‘liberty’ is a capacious term” with hundreds of possible meanings. Because it could mean anything, Alito claimed, courts should be extremely loath “to recognize rights that are not mentioned in the Constitution.” Alito’s stingy view of liberty is driven by his fear that courts will inevitably engage in “freewheeling judicial policymaking” in the guise of protecting liberty. The Dobbs majority turned to “history and tradition” to stop courts from safeguarding unenumerated fundamental rights, beginning with the right to abortion.

From the 1969 issue: The right of abortion

Alito’s account of “history and tradition” ignores the most salient aspect of the Fourteenth Amendment’s history: the horrific abuses that led the Framers of the Fourteenth Amendment to push through changes to the Constitution to broadly guarantee the protection of substantive fundamental rights. The through line from the abolitionist critiques of slavery to the debates over the Thirteenth and Fourteenth Amendments was the idea that slavery was built on the denial of bodily integrity, coerced reproduction and the rape of enslaved women, and the tearing apart of Black families. Alito’s sweeping condemnation of unenumerated fundamental rights ignores the fact that the Fourteenth Amendment sought to guarantee rights to bodily integrity and to marry and raise a family, and the right to decide for oneself whether, when, and with whom to form a family.

In short, reproductive freedom is in the Constitution. Alito simply refuses to grapple with the Constitution’s true history.

Instead, Alito relies heavily on state practice, insisting that because abortion was widely prohibited at the time of the Fourteenth Amendment’s ratification in 1868, state bans on abortion are constitutionally permissible. Since Brown v. Board of Education, arguments from state practice have been the go-to argument for those seeking to gut the Fourteenth Amendment’s promises of freedom and equal citizenship. Defenders of school-segregation laws, bans on interracial marriage, bans on abortion, sodomy laws, and bans on same-sex marriage argued that each of these practices was constitutional based on state legislative practice at the time of ratification. Alito draws on similar arguments to justify overruling Roe.

Alito’s state-practice argument is wrong and deeply dangerous: The fundamental rights of Americans do not rise or fall depending on a head count of state practice in 1868. The Fourteenth Amendment changed the Constitution to correct a long history of subordination and suppression of fundamental rights, not freeze into amber state practices of the day. But Alito’s majority opinion shows no interest in understanding the Fourteenth Amendment. His project, despite his denials to the contrary, was to overrule Roe and provide a road map to strip away bedrock rights that the Court has protected for nearly a century, including rights to use contraceptives, enjoy sexual intimacy, and marry the loved one of one’s choice, regardless of sex—protections that Justice Clarence Thomas, in his Dobbs concurrence, indicated he would take away.

In his account of state practice, Alito presents a slanted version of history, ignoring the fact that common law made abortion accessible early in pregnancy and whitewashing the illicit racist and sexist judgments baked into the campaign to prohibit abortion. When states moved to criminalize abortion beginning in the mid-19th century, it was based on the view, shared by the Supreme Court of that era, that a woman’s proper role was to bear and raise children, as well as racist fears that white Protestant women were flouting their maternal duties at a time when immigrant populations were expanding. This is hardly history that a Court concerned with the Fourteenth Amendment’s core commitments would defer to. Rather than grapple with it, Alito blithely dismisses it as irrelevant, allowing the dead hand of an unjust past to trump the majestic language inscribed in the Constitution.

Dobbs deployed selective history to take away a fundamental right; the 6–3 ruling in New York State Rifle & Pistol Association v. Bruen deployed selective history to create one: a radically expansive right to be armed in public. The most jaw-dropping aspect of Bruen is the newly minted test the conservative majority invented to adjudicate future challenges to gun-safety legislation. Instead of using the weighted interest-balancing approach that is the norm in constitutional law, the six conservatives insisted that “the government must affirmatively prove that its firearm regulation is part of a historical tradition that delimits the outer bounds of the right to keep and bear arms.” As guns have proliferated, weapons have become more dangerous, and mass shootings have become an all-too-common occurrence, the 6–3 conservative majority insisted that new approaches to gun safety are constitutionally illegitimate. Going forward, only gun-safety laws that are backed by strong historical precedents are constitutionally permissible.

Bruen never explained why a past tradition of gun-safety regulation—written at a time when firearms were less powerful than modern ones—is hardwired into the Constitution. The Second Amendment may protect an individual right to bear arms, but nothing in its history freezes in place gun-safety regulations of the founding era. The 6–3 Court has invented a harsh test completely out of whack with the rest of constitutional law, which takes into account both rights and government interests. Nowhere else in constitutional law does the Supreme Court employ a test that is so shackled to historical practice.

Justice Thomas’s majority opinion in Bruen devoted virtually no space to canvassing the text and history of the Second Amendment. That is because nothing in history supports the idea that the government cannot enact reasonable gun regulations that respect the right to own a gun, while also protecting public safety. The problem is not the Constitution; it is the fact that the 6–3 conservative Court invented the idea that only gun-safety legislation with a strong historical backing is constitutionally permissible.

The Bruen majority promised that the government need only “identify a well-established and representative historical analogue, not a historical twin,” then spent the bulk of the opinion dismissing every single example of what Justice Stephen Breyer’s dissent called “a 700-year Anglo-American tradition of regulating the public carriage of firearms in general, and concealed or concealable firearms in particular.” The takeaway is that the conservative-majority Court will relentlessly manipulate history to find a way to strike down gun-safety legislation that it dislikes. Bruen is just the beginning.

In this term’s religion cases, Carson v. Makin and Kennedy v. Bremerton School District, the 6–3 conservative majority dramatically expanded the protections of the free-exercise clause, without a whiff of attention to history and tradition, while whittling down the establishment clause in light of historical practice. As Justice Sonia Sotomayor trenchantly put it, “The Court leads us to a place where separation of church and state becomes a constitutional violation.” This emerges most starkly in Kennedy, where the conservative majority played fast and loose with both the factual record and the law to overturn the dismissal of a public-school football coach who was fired for leading students in prayers on the 50-yard line following his team’s games. Dismissing huge swaths of prior establishment-clause doctrine as long “abandoned,” Justice Neil Gorsuch’s majority opinion insisted that “historical practices and understandings” sharply limit separation of church and state principles. On Gorsuch’s account, it was the school district who overstepped its authority, and the idea that Kennedy’s prayers might have coerced nonbelievers can be dismissed.

Adam Laats: The Supreme Court has ushered in a new era of religion at school

It is no coincidence that, in the same term that the 6–3 Court dismantled the right to abortion, it also rejected the notion that the government must act with a secular purpose and may not endorse religion. Where will the Court’s disdain for the establishment clause go next? Kennedy raises the possibility that the conservative majority might allow official teacher-led prayers on the basis of historical practice of state-sanctioned prayers in public schools. Those who care about the religion clauses—both of them—should be gravely worried that the Court might enable state efforts that degrade “from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority”—precisely what James Madison’s famous writings on freedom of conscience and religious equality warned against.

As these examples illustrate, “history and tradition” is the new calling card of a Supreme Court that is willing to upend our constitutional order in the name of traditionalism. Do not label the Roberts Court “originalist,” if that term is to have the methodological meaning its supporters have been advertising for years. It is not. It is a deeply unprincipled conservative Court majority that manipulates both the Constitution and history to reach conservative results, reversing rights it despises and supercharging those it reveres.

David H. Gans is the director of the Human Rights, Civil Rights, & Citizenship program at the Constitutional Accountability Center.

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Christian mosaic

Virgin Mary (centre), Justinian I (left), holding a model of Hagia Sophia, and Constantine I (right), holding a model of the city of Constantinople, detail of a mosaic from Hagia Sophia, 9th century. | © Joel Carillet—iStock/Getty Images

The law of Justinian

Britannica article link

When the Byzantine emperor Justinian I assumed rule in 527 CE, he found the law of the Roman Empire in a state of great confusion. It consisted of two masses that were usually distinguished as old law and new law.

The old law comprised (1) all of the statutes passed under the republic and early empire that had not become obsolete; (2) the decrees of the Senate passed at the end of the republic and during the first two centuries of the empire; and (3) the writings of jurists and, more particularly, of those jurists to whom the emperors had given the right of declaring the law with their authority. These jurists, in their commentaries, had incorporated practically all that was of importance. Of these numerous records and writings of old law, many had become scarce or had been lost altogether, and some were of doubtful authenticity. The entire mass of work was so costly to produce that even the public libraries did not contain complete collections. Moreover, these writings contained many inconsistencies.

The new law, which consisted of the ordinances of the emperors promulgated during the middle and later stages of the empire, was in a similarly disorganized condition. These ordinances or constitutions were extremely numerous and contradictory. Because no complete collection existed (earlier codices were not comprehensive), other ordinances had to be obtained separately. It was thus necessary to collect into a reasonable corpus as much of the law, both new and old, as was regarded as binding and to purge its contradictions and inconsistencies.

Immediately after his accession, Justinian appointed a commission to deal with the imperial constitutions. The 10 commissioners went through all of the constitutions of which copies existed, selected those that had practical value, cut all unnecessary matter, eliminated contradictions by omitting one or the other of the conflicting passages, and adapted all the provisions to the circumstances of Justinian’s own time. The resulting Codex Constitutionum was formally promulgated in 529, and all imperial ordinances not included in it were repealed. This Codex has been lost, but a revised edition of 534 exists as part of the so-called Corpus Juris Civilis.

The success of this first experiment encouraged the emperor to attempt the more difficult enterprise of simplifying and digesting the writings of the jurists. Thus, beginning in 530, a new commission of 16 eminent lawyers set about this task of compiling, clarifying, simplifying, and ordering; the results were published in 533 in 50 books that became known as the Digest (Digesta) or Pandects (Pandectae). After enacting the Digest as a lawbook, Justinian repealed all of the other law contained in the treatises of the jurists and directed that those treatises should never be cited in the future, even by way of illustration; at the same time, he abrogated all of the statutes that had formed a part of the old law. An outline of the elements of Roman law called the Institutes of Justinian (or simply Institutiones) was published at about the same time.

Between 534 and his death in 565, Justinian himself issued a great number of ordinances that dealt with many subjects and seriously altered the law on many points. These ordinances are called, by way of distinction, new constitutions (Novellae Constitutiones Post Codicem); in English they are referred to as the Novels.

All of these books—the revised Codex Constitutionum (the original work was revised four and a half years later), the Digest, the Institutes, and the Novels—are collectively known as the Corpus Juris Civilis. This Corpus Juris of Justinian, with a few additions from the ordinances of succeeding emperors, continued to be the chief lawbook in what remained of the Roman world. In the 9th century a new system known as the Basilica was prepared by the emperor Leo VI the Wise. It was written in Greek and consisted of parts of the Codex and parts of the Digest, joined and often altered in expression, together with some material from the Novels and imperial ordinances subsequent to those of Justinian. In the western provinces, the law as settled by Justinian held its ground.

Categories of Roman law

The law of persons

“The main distinction in the law of persons,” said the 2nd-century jurist Gaius, “is that all men are either free or slaves.” The slave was, in principle, a human chattel who could be owned and dealt with like any other piece of property. As such, he was not only at the mercy of his owner but rightless and (apart from criminal law) dutiless. Even though the slave was in law a thing, he was in fact a man, and this modified the principle. A slave could not be a party to a contract nor own property, but he could be given a de facto patrimony, which could be retained if he were freed; if he made a “commitment,” it could ultimately be enforced against his master. A manumitted slave became, in most instances, not only free but also a citizen.

The definition of citizenship was important for the purposes of private law because certain parts applied only to citizens (jus civile). Noncitizens could be either Latini, inhabitants of Roman settlements that had the rights of members of the original Latin League, or peregrini, who were members of foreign communities or of those territories governed but not absorbed by Rome. The great extension of the citizenship by the emperor Caracalla in 212 CE reduced the importance of this part of the law.

Family

The chief characteristic of the Roman family was the patria potestas (paternal power in the form of absolute authority), which the elder father exercised over his children and over his more remote descendants in the male line, whatever their age might be, as well as over those who were brought into the family by adoption—a common practice at Rome. Originally this meant not only that he had control over his children, even to the right of inflicting capital punishment, but that he alone had any rights in private law. Thus, any acquisitions made by a child under potestas became the property of the father. The father might indeed allow a child (as he might a slave) certain property to treat as his own, but in the eye of the law it continued to belong to the father.

By the 1st century CE there were already modifications of the system: the father’s power of life and death had shrunk to that of light chastisement, and the son could bind his father by contract with a third party within the same strict limits that applied to slaves and their masters. Sons also could keep as their own what they earned as soldiers and even make wills of it. In Justinian’s day, the position regarding property had changed considerably. What the father gave to the son still remained, in law, the father’s property, but the rules concerning the son’s own earnings had been extended to many sorts of professional earnings; and in other acquisitions (such as property inherited from the mother), the father’s rights were reduced to a life interest (usufruct). Normally, patria potestas ceased only with the death of the father; but the father might voluntarily free the child by emancipation, and a daughter ceased to be under her father’s potestas if she came under the manus of her husband.

There were two types of marriage known to the law, one with manus and one without, but the manus type of marriage was rare even in the late republic and had disappeared long before Justinian’s day. Manus was the autocratic power of the husband over the wife, corresponding to patria potestas over the sons.

Marriage without manus was by far the more common in all properly attested periods. It was formed (provided the parties were above the age of puberty and, if under potestas, had their father’s consent) simply by beginning conjugal life with the intention of being married, normally evidenced by the bringing of the bride to the bridegroom’s house. The wife remained under her father’s potestas if he were still alive; if he were dead, she continued (as long as guardianship of women continued) to have the same guardian as before marriage. Both spouses had to be citizens, or if one was not, he or she must have conubium (the right, sometimes given to non-Romans, of contracting a Roman marriage). In marriage without manus, the property of the spouses remained distinct, and even gifts between husband and wife were invalid.

Later, divorce was always possible at the instance of the husband in cases of marriage with manus; in marriage without manus, either party was free to put an end to the relationship. A formal letter was usually given to the spouse, but any manifestation of intention to end the relationship—made clear to the other party and accompanied by actual parting—was all that was legally necessary. The Christian emperors imposed penalties on those who divorced without good reason, including prohibitions on remarriage, but the power of the parties to end the marriage by their own act was not taken away.

Concubinage was recognized in the empire as a “marriage” without a dowry, with a lower status for the woman, and with provisions that the children were not legally the father’s heirs. A man could not have both a wife and a concubine. In the 4th century the emperor Constantine first enacted a law enabling the children of such unions to be legitimated by the subsequent marriage of their parents. Medieval civil law extended this rule to all illegitimate children.

Persons under the age of puberty (14 for males, 12 for females) needed tutores if they were not under patria potestas. Such tutors could be appointed under the will of the father or male head of the household. Failing such an appointment, the guardianship went to certain prescribed relatives; if there were no qualified relations, the magistrates appointed a tutor. Originally, children were considered adults at the age of puberty; but, after a long development, it became usual for those between the ages of puberty and 25 to have guardians who were always magisterially appointed. Originally, all women not under patria potestas or manus also needed tutores, appointed in the same way as those for children. By the early empire, this provision was little more than a burdensome technicality, and it disappeared from Justinian’s law.

Corporations

The Romans did not develop a generalized concept of juristic personality in the sense of an entity that had rights and duties. They had no terms for a corporation or a legal person. But they did endow certain aggregations of persons with particular powers and capacities, and the underlying legal notion hovered between corporate powers, as understood in modern law, and powers enjoyed collectively by a group of individuals. The source of such collective powers, however, was always an act of state.

Four types of corporation were distinguished:

1. Municipia (the citizen body, originally composed of the conquered cities and later of other local communities) possessed a corporateness that was recognized in such matters as having the power to acquire things and to contract. In imperial times, they were accorded the power to manumit slaves, take legacies, and finally—though this became general only in postclassical law—to be instituted as an heir.

2. The populus Romanus, or the “people of Rome,” collectively could acquire property, make contracts, and be appointed heir. Public property included the property of the treasury.

3. Collegia—numerous private associations with specialized functions, such as craft or trade guilds, burial societies, and societies dedicated to special religious worship—seem to have carried on their affairs and to have held property corporately in republican times. The emperors, viewing the collegia with some suspicion, enacted from the beginning that no collegium could be founded without state authority and that their rights of manumitting slaves and taking legacies be closely regulated.

4. Charitable funds became a concern of postclassical law. Property might be donated or willed—normally, but not necessarily, to a church—for some charitable use, and the church would then (or so it appears from the evidence) have the duty of supervising the fund. Imperial legislation controlled the disposition of such funds so that they could not be used illegally. In such cases ownership is thought to have been temporarily vested in the administrators.

The law of property and possession

In Roman law (today as well as in Roman times), both land and movable property could be owned absolutely by individuals. This conception of absolute ownership (dominium) is characteristically Roman, as opposed to the relative idea of ownership as the better right to possession that underlies the Germanic systems and English law.

• Mancipatio, or formal transfer of property, involved a ceremonial conveyance needing for its accomplishment the presence of the transferor and transferee, five witnesses (adult male Roman citizens), a pair of scales, a man to hold them, and an ingot of copper or bronze. The transferee grasped the object being transferred and said, “I assert that this thing is mine by Quiritarian [Roman] law; and let it have been bought by me with this piece of copper and these copper scales.” He then struck the scales with the ingot, which he handed to the transferor “by way of price.”

• In jure cessio was a conveyance in the form of a lawsuit. The transferee claimed before the magistrate that the thing was his, and the transferor, who was the defendant, admitted the claim. The magistrate then adjudged the thing to the transferee. (The sham-lawsuit theory, however, is not acceptable to all modern scholars, principally because the judgment of ownership was valid against any possible private claimant, not merely against the defendant, as in a true lawsuit.)

• Usucapio referred to ownership acquired by length of possession. In early Roman law, two years of continuous possession established title in the case of land, one year in the case of movables. In the developed law, possession must have begun justifiably in good faith, and the thing must not have been stolen (even though the possessor himself may have been innocent of the theft) or acquired by violence.

• In terms of occupatio, ownerless things that were susceptible to private ownership (excluding such things as temples) became the property of the first person to take possession of them. This applied to things such as wild animals and islands arising in the sea. In some views, it also applied to abandoned articles.

• Accessio worked in this manner: if an accessory thing belonging to A was joined to a principal one belonging to B, the ownership in the whole went to B. For example, if A’s purple were used to dye B’s cloth, the dyed cloth belonged wholly to B. By far the most important application of this rule asserted that whatever is built on land becomes part of the land and cannot be separately owned.

• Specificatio was somewhat different. If A made a thing out of material belonging to B, one school of thought held that ownership went to A, and another held that it remained with B. Justinian adopted a “middle opinion”: B retained ownership if reconversion to the original condition was possible (a bronze vase could be melted down); A obtained ownership if it was not (wine cannot be reconverted into grapes).

• According to thesauri inventio, or treasure trove, the final rule was that if something was found by a man on his own land, it went to him; if it was found on the land of another, half went to the finder, half to the landowner.

• Traditio was the simple delivery of possession with the intention of passing ownership and was the method of conveyance of the jus gentium. If A sold and merely delivered a slave to B, under the jus civile, A remained the owner of the slave until a specified length of time had elapsed. The praetors, however, devised procedural methods of protecting B’s possession in such a way that A’s title became valueless, and B was said to own the thing in bonis. This was a remarkable triumph for informality in the granting of title. From the phrase in bonis, later writers coined the expression “bonitary ownership.” Justinian abolished the theoretical distinction between civil and bonitary ownership.

• The ordinary leaseholder had no protection beyond a contractual right against a landlord and could not assign tenancy. But there were certain kinds of tenure that did provide the tenant protection and that were assignable: agricultural and building leases granted for a long term or in perpetuity often enabled leaseholders to enjoy rights hardly distinguishable from ownership.

• There were also servitudes, in which one person enjoyed certain rights in property owned by another. Rights of way and water rights were rustic servitudes; rights to light or to view were urban servitudes. Ususfructus was the right to use and take the fruits (such as crops) of a thing and corresponded to the modern notion of life interest. A more restricted right, likewise not extending beyond the life of the holder, usus permitted merely the use of a thing; thus, a person could live in a house but could not let it, as that would be equivalent to “taking the fruits.”

• Since ownership was absolute, it was sharply distinguished from possession, which the civil law did not protect as such. Any owner wishing to interfere with an existing possessor, however, had to bring legal action to prove his title. If he interfered on his own authority, the praetor would see that the original state of affairs was restored before adjudicating the title.

Delict and contract

Obligations were classified by classical jurists into two main categories, according to whether they arose from delict or contract. Justinian’s law recognized two further classes of obligation, termed quasi-delict and quasi-contract.

As early as the 6th and 5th centuries BCE, Roman law was experiencing a transition from a system of private vengeance to one in which the state insisted that the person wronged accept compensation instead of vengeance. Thus, in the case of assault (injuria), if one man broke another’s limb, talio was still permitted (that is, the person wronged could inflict the same injury as he had received); but in other cases, fixed monetary penalties were set. Theft involved a penalty of twice the value of the thing stolen, unless the thief was caught in the act, in which case he was flogged and “adjudged” to the person wronged.

By the early empire, reforms had substituted a fourfold penalty in the case of a thief who was caught in the act, and the court assessed all penalties for injuria (which by then included defamation and insulting behaviour). The law of damage to property was regulated by statute (the Lex Aquilia), which in turn was much extended by interpretation. Additionally, there were situations in which a person could be held liable for damages even though he was not personally responsible. In Justinian’s Institutes only four delicts were dealt with: theft, robbery with violence, damage to property, and verbal or physical assault.

In the early republic, a law of contract hardly existed. There was, however, an institution called nexum, of which little can be said with certainty except that it was a kind of loan so oppressive in character that it could result in the debtor’s complete subjection to the creditor. It was obsolete long before imperial times. The contracts of classical law were divided into four classes: literal, verbal, real, and consensual. The literal contract was a type of fictitious loan formed by an entry in the creditor’s account book; it was comparatively unimportant and was obsolete by Justinian’s day. The verbal contract required set words or patterns of words to be spoken. The stipulatio was the most important form of verbal contract, for it established a form in which any agreement (provided it was lawful and possible) could be made binding by the simple method of reducing it to question and answer: “Do you promise to pay me 10,000 sesterces?” “I promise.” Originally it was absolutely necessary that the words be spoken, but by Justinian’s day a written memorandum of such a contract would be binding, even though, in fact, nothing at all had been spoken.

If an agreement was not clothed in the form of a stipulation, it must, to be valid, fall under one of the types of real or consensual contracts. A real contract was one requiring that something should be transferred from one party to the other and that the obligation arising should be for the return of that thing. Real contracts included loans of money, loans of goods, deposits, and pledges. Consensual contracts needed nothing except verbal or written agreement between the parties, and though there were only four such contracts known to the law, they were the most important in ordinary life—sale, hire of things or services, partnership, and mandate (acting upon instructions). In Justinian’s day there was a further principle that in any case of reciprocal agreement, such as an agreement for exchange (but not sale), if one party had performed, he could bring an action to enforce performance by the other. In addition to the foregoing contracts, a few other specific agreements were recognized as enforceable, but the general recognition of all serious agreements as binding was never achieved by the Romans.

Quasi-delict covered four types of harm, grouped together by no clearly ascertainable principle. They included the action against an occupier for harm done by things thrown or poured from his house into a public place and the action against a shipowner, innkeeper, or stablekeeper for loss caused to customers on the premises through theft or damage by persons in his service.

Quasi-contract embraced obligations that had no common feature save that they did not properly fall under contract, because there was no agreement, or under delict, because there was no wrongful act. The most noticeable examples were, first, negotiorum gestio, which enabled one who intervened without authority in another’s affairs for the latter’s benefit to claim reimbursement and indemnity, and second, the group of cases in which an action (condictio) was allowed for the recovery by A from B of what would otherwise be an unjustified enrichment of B at A’s expense, such as when A had mistakenly paid B something that was not due (condictio indebiti). This notion of unjust enrichment as a source of legal obligation was one of the most pregnant contributions made by Roman law to legal thought.

The law of succession

The law of succession is one of the most complex areas of Roman law. Any Roman citizen who was of age could make a will, but several very formal requirements had to be met for the will to be valid. The first requirement was the appointment of one or more heirs. An heir, in the Roman sense of the term, was a universal successor; that is, he took over the rights and duties of the deceased (insofar as they were transmissible at all) as a whole. On acceptance, the heir became owner if the deceased was owner, creditor if he was creditor, and debtor if he was debtor, even though the assets were insufficient to pay the debts. It was thus possible for an inheritance to involve the heir in a loss. Until Justinian’s day this consequence could be avoided only by not accepting the inheritance, though certain categories of heirs could not refuse. Justinian made one of his most famous reforms by providing that an heir who made an inventory of the deceased’s assets need not pay out more than he had received. Freedom of testation, furthermore, was not complete: a man was obliged to leave a certain proportion of his property to his children and in some cases to ascendants and brothers and sisters.

With regard to intestate succession, or succession without a will, those first entitled in early times were the deceased’s own heirs—that is, those who were in his potestas or manus when he died and who were freed from that power at his death. Failing these heirs, the nearest agnatic relations (relations in the male line of descent) succeeded, and, if there were no agnates, the members of the gens, or clan, of the deceased succeeded. Later reforms placed children emancipated from potestas on an equal basis with those under potestas and gradually gave the surviving spouse (in marriage without manus) greater rights of succession. By Justinian’s day the system had evolved as follows: descendants had the first claim, and failing these heirs, came a composite class consisting of ascendants, brothers and sisters of full blood, and children of deceased brothers and sisters. Next came brothers and sisters of the half blood and, finally, the nearest cognates (relations in the female line). Husband and wife were not mentioned, but their old rights were kept alive in the absence of any of the preceding categories. Justinian also gave a “poor” widow a right to one-quarter of her husband’s estate unless there were more than three children, in which case she shared equally with them. If, however, the heirs were her own children by the deceased, she received only a ususfructus (life interest) in what she took.

The law of procedure

The earliest law suits (legis actiones) were conducted orally in two stages: a preliminary one before the jurisdictional magistrate, in which the issue was developed; and then the actual presentation of evidence to the judex, or judge. The first stage required that set forms of words be spoken by the parties and, sometimes, by the magistrate. The parties making an assertion of ownership, for instance, would grasp the thing in dispute and lay a wand on it, after which the magistrate would intervene and say, “Let go, both of you.” So formal was the procedure that a plaintiff who made the slightest mistake lost his case. For the second stage, before the judex, there were no formal rules. However, the plaintiff had the burden of proof, was responsible for physically producing the defendant in court and, often, for carrying out the sentence.

Under new procedures developed in the 2nd and 1st centuries BCE, the issue at the magisterial stage was formulated in written instructions to the judex, couched in the form of an alternative: “If it appears that the defendant owes the plaintiff 10,000 sesterces, the judex is to condemn the defendant to pay the plaintiff 10,000 sesterces; if it does not so appear, he is to absolve him.” A draft of these written instructions was probably prepared for the plaintiff before he came into court, but there could be no trial until it was accepted by the defendant, for there was always a contractual element about a lawsuit under both the new and the old systems. Pressure, however, could be exercised by the magistrate on a defendant who refused to accept instructions that the magistrate had approved, just as a plaintiff could be forced to alter instructions that the magistrate had disapproved, by the magistrate’s refusal to otherwise give the order to the judex to decide the case.

In late republican times, still another system developed, first in the provinces, then in Rome. Under the new system the magistrate used his administrative powers, which were always considerable, for the purpose of settling disputes. He could command: thus if one person brought a complaint against another before him, he could investigate the matter and give the order he thought fit. As imperially appointed officers superseded republican magistrates, this administrative process became more common. The result was that the old contractual element in procedure disappeared as did the old two-stage division. Justice was now imposed from above by the state—not, as originally, left to a kind of voluntary arbitration supervised by the state.

Herbert Felix Jolowicz

Raphael Powell

Maurice Alfred Millner

Mary Ann Glendon

Paolo Carozza