Revelation and Legal Personhood

This paper confronts the relation between law and revelation. What happens when “reasonable minds differ” has been a question for me for a long time, but that question assumed that the differing minds were both reasonable. The problem of what to do when the intersubjective reason of the law confronts the “absolute truth” of divine revelation takes that problem to a new crisis point, one that has contributed to what President Obama recently referred to as an "epistemological crisis" in American politics. The paper builds on a previous article in which I took a deep dive into the doctrine of deific decree insanity cases: cases in which a defendant claims that they committed a murder because God told them to do so. One of the most troubling cases that I highlight in this essay involves a murder by leaders of a group calling themselves the Gatekeepers, in which two men believed they had both received a message from God telling them to kill a wayward former acolyte. The case is troubling because these men followed traditional religious approaches to assessing their revelation, and because they seemed in other respects free of mental illness. As I confronted these cases, I didn’t want to take the easy way out of declaring that everything “unreasonable” is insanity, which deprives defendants of personhood and demeans their faith. On the other hand, I did not want to give up on the reason of law entirely, which would, I think, result in solipsism and the failure of intersubjectivity. The very long rabbit-hole I went down, in the 88 printed pages and 347 footnotes of the earlier paper, Unreasonable Revelations, left me with an approach to these cases which would acknowledge the possibility of religious revelation, but declare it beyond law’s jurisdiction, and therefore a factor that could not, by itself, excuse a serious crime (though mercy would remain an option). For lesser crimes, American law already has a principle of religious accommodation in the Religious Freedom and Restoration Act that treats religious faith with “judicial shyness.” In this article, I relate these deific decree cases, weirdly, to constitutional originalism. As I read about the deific decree cases and their legal history, I fell headlong into the history of the Reformation in England. Part of the question for U.S. Constitutional law about how to deal with religious differences stems from the experience of religious persecution during that period, when people were hung or beheaded for either believing in transubstantiation or not, depending on which monarch was currently reigning. It struck me that the Puritan effort to overturn Catholic tradition (and corruption) in favor of a “purification” and return to the original Biblical text (Sola Scriptura) had an analogy to constitutional originalism’s attempt to purify American constitutional tradition by returning to an ur-text or framing moment. This seemed a bit crazy until I very belatedly discovered Sanford Levinson’s book, Constitutional Faith, which makes the same point more elegantly. It seemed to me that originalism’s response to our current American epistemological crisis is to double-down on certainty. Originalism seems to be one response to the crisis which pretends to find a “value free” approach to questions of constitutional values by turning outside law to history. I argue that this quest for certainty, like the Protestant reformation, does not promote unity or rehabilitate legal reason, but the reverse: it collapses itself into schism and individual solipsism. This happens because both movements (Puritanism and Originalism) reach outside the “humble law” of human tradition and institutions to claim an absolute truth. They destroy “humble law,” but in the process are left chasing an absolute truth that cannot provide what they seek, because all human truth ends up being incompletely intersubjective and temporal and customary and “institutional.” This general insight is not at all interesting or unique. Wittgenstein said rule-following was dependent upon a “form of life;” Nietzsche noted this progression in “how the real world became a myth”; Heidegger said it about the nihilism of metaphysics; Levinas said it when he argued that ethics comes before ontology, etc. So, just as law cannot judge “divine decrees,” law cannot judge “absolute truths.” Law is incomplete, temporal, and has no ur-source. It is simply our way of getting along and trying to treat like cases alike over time, as best we can, together, see to do so. One point I wish I had made more clearly: I don’t think that history is just solipsism, though some of the passages in this paper suggest that account. Historians have customs about doing history that provide intersubjectivity within the practice of history. The problem is not that history is solipsism, but that law is not history. History looks for hidden truths. Good history reveals something about the past we did not know before. Law looks for founding principles for a just and fair society. Part of what makes for a just and fair society is treating like cases alike. But historians don’t look at history to find moral exemplars (these days) or to find continuities only. They could care less whether the founders were well-intentioned or just wanted to get rich on the slave trade. They don’t look at history to find ideals, or patterns of treating like cases alike, but to find discontinuities with prior histories -- new and different perspectives that have not yet been discovered. So when law starts looking to history for absolute truths about founding values, it ties its wagon to bad intentions and discontinuities too, depending on what historians uncover, rather than only on enduring principles of fairness that can establish a just society. The Second Amendment could be read historically as promoting the genocide of Iroquois as easily as promoting a right to self-defense in the home. (Here, the picture differs from Puritanism, which, after all, assumes that the Bible is the product of infallible divine revelation. The Founders, however, were far from infallible and divine). So, when law starts looking to history, its own custom is to put on rose-colored glasses, to assume the best intentions of the framers or framing generation, just as courts are required to assume that statutes are constitutional and rational and enacted for the good of the whole. Law looking at history necessarily begins picking and choosing just the bits that seem good and valuable – which is not a value-free enterprise of finding absolute truth, but the same old incremental search for reasonableness that it ever is, only now under a false cloak of objectivity. This picking and choosing of bits of history comes to look like solipsism, if the customs and institutions of legal precedent have been discarded as insufficiently grounded, because now the intersubjective "humble law" reason embedded in the institutions no longer grounds the search for “good bits.” In the end, though, originalist history pretends at objectivity, but ends up finding the institutional norms it took with it into the historical investigation, norms that are grounded in institutional custom and case law, not historical fact -- and are indeed the very sources it pretends to eschew.