Witchcraft and Originalism

Mark A. Graber

Whether states may constitutionally punish witchcraft is an issue that should receive more legal attention.  The Supreme Court has cited Blackstone as a legal authority in 22 cases over the past three years.  This week, both Justice Scalia and Justice Kennedy referred to Blackstone when discussing judicial takings in Stop the Beach Renourishment v. Florida Department of Environmental Protection.  Blackstone on witchcraft is quite clear.  His Commentaries on the Law of England defends state power to prevent persons from using the occult to harm others.  “A SIXTH species of offences against God and religion,” he declared, “is . . . the offence of witchcraft. . . . To deny the possibility, nay, actual existence, of witchcraft and sorcery, is at once flatly to contradict the revealed word of God.” Blackstone then indicates such prosecutions are a bad idea.  Nevertheless, as Felix Frankfurter repeatedly reminded Americans, lots of bad policies are constitutionally permitted.

Consider some fairly standard rhetorical moves that might be made to justify a state law punishing by death the sorcerers among us.  To begin with, perhaps the word of Blackstone should be sufficient.  To the best of my knowledge, no one in the eighteenth century claimed that state constitutional provisions on freedom of conscience and establishment barred prosecutions for witchcraft.  Following Justice Thomas, if we are prepared to overrule 200 years of precedent contrary to original intentions, we ought to seriously getting rid of those unfortunate precedents that might prevent law enforcement officials from shutting down the Wicked Witch of the West.

Bans on witchcraft also survive some common understandings of free exercise doctrine.  States may restrict the exercise of religious freedoms when doing so is a necessary means for a compelling government end.  The witches and warlocks among us are threatening severe harms.  Blackstone observed that their spells might prove fatal and the protection of human life is a compelling interest.  Of course, most of us do not believe that witchcraft is effective.  That is an empirical question that is traditionally thought to be the prerogative of the legislature.  If elected officials wish to burn witches, surely they will be able to provide empirical evidence at least as good as the evidence for creation “science” or the evidence Justice Kennedy in Carhart v. Gonzales thought proved women often regret abortions.

The establishment clause does not present insuperable problems.  Justice Scalia and Thomas insisted in McCreary County v. American Civil Liberties Union of Ky. (2005) that states could favor traditional monotheistic religions.  One arguable feature of traditional monotheistic religions is a belief in the Devil as well as in a Divine Being.  Certainly this was true of much Christianity in the 18^th century, which is all that seems to matter for much constitutional interpretation.

The Constitution, this squib suggests, provides no protection for suspected witches and warlocks.  Culture does.  We do not prosecute people for witchcraft because we do not believe in witchcraft. Change the culture and constitutional protections will change. Imagine that people for various reasons decide witches exist among us.  Could lawyers in good faith make the above arguments when defending statutes punishing witchcraft?  Might justices committed to Scalian originalism be committed to upholding those statutes on Blackstone’s authority?

Comments

[phg]

i can see it now....

just taking a cue from "the wizard of oz", an action under the americans with disabilities act on behalf of the munchkins, an action on behalf of the apple trees along the yellowbrick road for an environmental review of the deforestation and illegal picking of apples, an eminent domain action for removal of dorothy's house from kansas, simply to provide for opening scenes of a fictional story beloved by generations....

i'm gearing up my practice now. the heck with non-fiction litigation.

[JohnLopresti]

At prof. Linder's famous trials site, after the witch executions, and subsequent calming of the hysteria; after admissions of fabricated testimony, and public apologies for contributing to the paranoia, there was one individual who had not issued an apology for personal contributions to the public panic and executions.

Here is Linder's perhaps intentionally allegorical dedepiction of the outcome for the unapologetic holdout:

"Stoughton, clearly more to blame than anyone for the tragic episode, refused to apologize or explain himself. He criticized Phips for interfering just when he was about to 'clear the land' of witches. Stoughton became the next governor of Massachusetts."

http://www.law.umkc.edu/faculty/projects/ftrials/salem/SAL_ACCT.HTM

[MobiusKlein]

I do believe you have not considered the 2nd amendment implications of a ban on witchcraft. Per Spelljammer, eldridge weapons can be used in self defense, as part of a well regulated militia. So Congress may be limited in it's ability to regulate witchcraft based arms. - see http://images1.wikia.nocookie.net/starwars/images/thumb/8/83/AscentionGun_negwt.jpg/250px-AscentionGun_negwt.jpg and http://img.photobucket.com/albums/v151/skrittiblak/Elysium/crystal_gun.jpg

[Matthew Happold]

Blackstone's views on witchcraft didn't actually reflect the law in eighteenth century England.

In 1735 the British Parliament enacted “An Act to repeal the Statute made in the First Year of the Reign of King James the First, intituled, An Act against Conjuration, Witchcraft, and dealing with evil and wicked Spirits, except so much thereof as repeals an Act of the Fifth Year of the Reign of Queen Elizabeth, Against Conjurations, Inchantments, and Witchcrafts, and to repeal an Act passed in the Parliament of Scotland in the Ninth Parliament of Queen Mary, intituled, Anentis Witchcrafts, and for punishing such Persons as pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration”. The 1735 Act was premised on Enlightenment beliefs in the non-existence of witchcraft. It provided that, from its coming into force, “no Prosecution, Suit, or Proceeding, shall be commenced or carried on against any Person or Persons for Witchcraft, Sorcery, Inchantment, or Conjuration, or for charging another with any such Offence, in any Court whatsoever in Great Britain.” Instead, “for the more effectual preventing and punishing of any Pretences to such Arts or Powers …, whereby ignorant Persons are frequently deluded and defrauded … any Person [who] shall … pretend to exercise or use any kind of Witchcraft, Sorcery, Inchantment, or Conjuration, or undertake to tell Fortunes, or pretend, from his or her Skill or Knowledge in any occult or crafty Science, to discover where or in what manner any Goods or Chattels, supposed to have been stolen or lost” could be subject to criminal sanction. Possible penalties were imprisonment for up to a year, exposure in the pillory and being required to find sureties for good behaviour, but not (as previously) death. Essentially, persons claiming to have magical powers were to be treated as fraudsters.