Emory Report

November 29, 1999

 Volume 52, No. 13

Hamilton looks beyond the obvious on legal issues

Marci Hamilton, a visiting professor this fall at the law school, has a beef with the media. "They're guilty of hoarding information," she said of reporters who write about the machinations on Capitol Hill. "They don't cover legislation until it's a done deal, and by then it's too late for the people to make a difference."

Hamilton, a nationally recognized expert on constitutional and copyright law from Yeshiva University's Cardozo School of Law, is making a difference in the legislative process. She was lead counsel for the city of Boerne, Texas, in Boerne v. Flores, the U.S. Supreme Court case that ultimately invalidated the 1993 federal Religious Freedom Restoration Act.

Now she's the leading constitutional law scholar criticizing the latest congressional attempt to pass a new version of the bill, the Religious Liberty Protection Act, which already has been passed by the House of Representatives and may be heading for a Senate vote any day. Hamilton, who testified before a House subcommitee and submitted written testimony to the Senate, says the bill is "a blank check for religion."

Lest anyone misunderstand, Hamilton is not anti-religion, but she is arguing that the bill would allow people to violate a variety of laws on religious grounds. "Because the bill originates from religious entities, its focus is on providing as much protection for religious conduct that violates the law as is humanly imaginable," she said, ranging from making it easier for church-run homeless shelters to violate safety and zoning laws, to providing a defense for those responsible for child abuse and neglect.

Hamilton has made a career of looking beyond the obvious. She's watching closely the Brooklyn Art Museum case; she submitted a brief on behalf of 13 artists' groups that provided part of the basis of a court decision to enjoin New York Mayor Rudolph Giuliani's attempt to shut down the museum and unseat its board of directors.

At a conference at Duke in September, Hamilton scrutinized religion and law in the Clinton era in a speech to be published in the Journal of Law and Contemporary Problems. She argued that the president, at the behest of various religious groups, has pushed free exercise of religion and religious interests to the limit, and perhaps beyond.

Her forthcoming book, Copyright and the Constitution, examines the historical and philosophical underpinnings of copyright law and asserts that the American "copyright regime" is grounded in Calvinism, resulting in a philosophy that favors the product over the producer.

Calvinism? Hamilton's interest in the intersection of Calvinist theology and political philosophy emerged early in her career when she began reading the work of leading constitutional law scholars. She was puzzled by their "theme of a system of self-rule." "They talked about it as if it were in existence," she said. "My gut reaction was that direct democracy and self-rule are a myth that doesn't really exist."

What Hamilton found was that a "deep and abiding distrust of human motives that permeates Calvinist theology also permeates the Constitution." Her investigation of that issue has led to another forthcoming book, tentatively titled The Reformed Constitution: What the Framers Meant by Representation.

That our country's form of government is a republic instead of a pure democracy is no accident, according to Hamilton. The constitutional framers "expressly rejected direct democracy. Instead, the Constitution constructs a representative system of government that places all ruling power in the hands of elected officials."

And the people? Their power is limited to the voting booth and communication with their elected representatives, she said. "The Constitution is not built on faith in the people, but rather on distrust of all social entities, including the people."

Hamilton found that some form of Calvinism played a role in the lives of at least 23 of the 55 constitutional framers, and that six were Presbyterian (the reform movement founded by John Calvin). Two of the most important framers, James Wilson and James Madison, were steeped in Presbyterian precepts.

It is Calvinism, Hamilton argued, that "more than any other Protestant theology, brings together the seeming paradox that man's will is corrupt by nature but also capable of doing good." In other words, Calvinism holds that "we can hope for the best but expect the worst from each other and from the social institutions humans devise."

"Neither Calvin nor the framers stop at distrust, however," Hamilton said. "They also embrace an extraordinary theology of hope. The framers, like Calvin, were reformers."

-Elaine Justice

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