"The Conjurer"

Blewett Lee, The Conjurer, 7 Va. L. Rev. 370 (1920-21)

My new research project is on what I call "freedom of religion at the margins": fortune-telling, witchcraft, and New Age beliefs.  I've had an enjoyable time reading the secondary legal literature on these topics, and one of the most prolific writers in the area was Blewett Lee.

In The Conjurer, Lee begins by discussing the historical distinction between "conjuration" (where a mortal compels the devil to obey his or her wishes by invoking the name of God) and "witchcraft" (where a mortal has a friendly relationship with the devil or a demonic familiar in order to carry out selfish wishes).  "The conjurer has really fared much better than the witch," Lee says, "who was considered from the start to be in voluntary league with the evil one."  (p. 372)

Lee goes on to discuss some medieval and English common law statutes and cases dealing with conjuration and witchcraft, some of which respect the distinction and others that do not.  Some note is made of American cases dealing with faith-healing.

The major thrust of the article, however, is whether and how mostly forgotten laws dealing with such topics apply to the then-burgeoning fascination with spiritualism (especially the practice of spiritual mediums conversing with the dead through seances).  As Lee writes, "The only thing that is left to us of the primitive magician is the spirit medium.  He has not only survived but thrived, while the witch, whose association with the powers of darkness was supposed to be friendly at all times, has entirely disappeared, at least where our law prevails." (p. 373-74)

Lee discusses how popular spiritualism is at the time, but makes an argument which I plan to question in my article:  "If spiritualism should be ultimately proved to have a real basis, the result would be simply that we would have to say that life is longer than we supposed.  There is nothing religious about this conclusion.  Indeed, it is a great mistake to treat spiritualism as a religion at all.  It should be regarded as simply a question of scientific fact."  (p. 376)

Now Published: "A Polemic Against the Standing Requirement in Constitutional Cases"

My article A Polemic Against the Standing Requirement in Constitutional Cases has now been published by the Capital University Law Review.  You can find the final version for free download on SSRN.

"Transnational Nonestablishment"

Claudia E. Haupt, Transnational Nonestablishment, 80 George Wash. L. Rev. 991 (2012)

This article is set in the context of the widespread entrenchment in international law of the right to freedom of religion without the concomitant (to many American eyes) entrenchment of a principle of nonestablishment.  Haupt intriguingly argues that a recent trend towards nonestablishment might be gleaned from a review of European Court of Human Rights cases dealing with religious freedom.  Haupt says:

"Under the [European Convention on Human Rights], we may be observing an emerging trend toward nonestablishment.  A number of recent [European Court of Human Rights] decisions addressing the relationship between religion and the state in democratic societies seem to implicitly assume a nonestablishment principle.  This trend is normatively supported by developments on the EU level and in individual European countries." (p. 1004)

Haupt argues that the "textual anchor" for this trend towards nonestablishment is actually contained in a clause in the Convention that serves as a limitation on the right to freedom of religion: Article 9(2).  She goes on to discuss several cases that she argues demonstrates the existence of this trend (pages 1008-1012), but also discusses an arguable counter-example, Lautsi.  She also concedes that many individual European countries have various forms of establishment domestically.

I'm not familiar enough with the Convention or the decisions that Haupt cites to evaluate how persuasive the claim of an emerging trend is.  I can say that the article is thorough, well-researched, and balanced.  The treatment of the nonestablishment principle in international law is an important topic, and well-worth watching closely.

Proposal to Remove Blasphemy Provision from Ireland Constitution

As The Volokh Conspiracy discusses, the present Irish Constitutional Convention has recommended a referendum to remove the document's provision on blasphemy.  The Irish Constitution presently exempts blasphemous statements from its general guarantee of free speech.  After Ireland's highest court determined that blasphemy was not illegal in the absence of a statutory ban, the Irish national parliament made blasphemy a crime in 2009.