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A Foundational Approach to Faith-Based Legal Exceptionalism

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A Foundational Approach to Faith-Based Legal Exceptionalism PEACE, ORDER & GOOD GOVERNMENT: A FOUNDATIONAL APPROACH TO FAITH-BASED LEGAL EXCEPTIONALISM IN ENGLAND, CANADA & THE UNITED STATES by TAMARA R. REID-MCINTOSH A thesis submitted to the University of Birmingham for the degree of DOCTOR OF PHILOSOPHY Department of International & Comparative Law College of Arts and Law Birmingham Law School University of Birmingham January 2020 University of Birmingham Research Archive e-theses repository This unpublished thesis/dissertation is copyright of the author and/or third parties. The intellectual property rights of the author or third parties in respect of this work are as defined by The Copyright Designs and Patents Act 1988 or as modified by any successor legislation. Any use made of information contained in this thesis/dissertation must be in accordance with that legislation and must be properly acknowledged. Further distribution or reproduction in any format is prohibited without the permission of the copyright holder. ABSTRACT This study analyzes the connection between the Peace, Order & Good Government doctrine (‘POGG’) and responses to requests for faith-based legal exceptionalism in England, Canada, and the United States. By assessing certain aspects of the three nations’ imperial/colonial heritage, the study demonstrates that POGG acts as the catalyst for their disparate approaches to constitutionalism (i.e., church-state arrangements). The connection is significant since the concept of multiculturalism has seemingly become the basis for justifying extraordinary accommodation requests that include not only non- democratic political ideologies but also constitutionally-challenging religious choice of law preferences. The prevalence of requests for accommodation has been more recently linked to migrants from nations where religion and government are inextricably bound. As such, this study demonstrates the imprudence of relying on multiculturalism when responding to constitutional inquiries that necessitate a return to foundational principles. By revisiting more recent requests for Islamic law exceptionalism, this study assesses POGG’s foundational connection to the national rejoinders of England and Canada. This study then advocates for the United States to return to foundational principles to frame a prudent rejoinder to similar requests, which will likely prevent an unprecedented enlargement of the 1st Amendment to the U.S. Constitution. [ii] DEDICATION I dedicate this project to Him! “Lord, turn my heart and my mind toward You and toward the role You have chosen for me to live out. Help me to put Your will and Your purpose ahead of my own. I humbly bow before You and ask for Your direction and guidance, as well as Your courage to live out the calling I’ve been given ‘for such a time as this’. In Your Son’s Mighty Name I Pray, Amen.”1 1 Tony Evans, ‘Devotional: For Such a Time as This’ (Proverbs 31 Ministries, 2019) <https://www.proverbs31.org/read/devotions/full-post/2019/01/14/for-such-a-time-as-this>. [iii] ACKNOWLEDGMENTS I am profoundly thankful to my Family for understanding why I wanted to take this leap of faith and relocate to England to attempt a PhD. Nothing compares to their Support. Knowing that You wanted this for me as much as I wanted it…made all the difference. I thank my Mom for being my Best Friend on this journey; I am so proud to be her Daughter. You became more tech savvy in order to keep the lines of communication open and literally wore two watches to remain abreast of the time difference to support my research and writing schedule. Mom—I love you to the Moon and Back! Likewise, I could not have finished this without the support and prayers of my family in Christ: they are Home…and there’s no place like Home. I am also profoundly indebted to my two Mentors, Prof. Jackson and Prof. Walters. Both consistently answered, not only the questions I knew to ask, but also the ones I did not. That’s called exceptional mentoring: ‘Iron sharpens Iron’. I don’t know what I did to deserve either of You, but I am eternally grateful. And to ‘My People’...and You know who You are…your Love, Support, and unwavering Friendship is absolutely Everything. Lastly, I am so appreciative of the opportunity provided by the University of Birmingham Law School to see my research project to fruition. It has been an absolute Honor to hash, rehash, revise, and finalize this project under the critical eye of Dr. Hakeem Yusuf. His extensive work in the area of ‘Peace, Order and Good Government’ laid the foundation for substantiating discernible colonial and post-colonial connections between POGG and the constitutional perspectives in England, Canada, and the United States. I could not have asked for more in the way of responsiveness, forthrightness, and guidance. I do not believe in chance…only Divine providence. Therefore, I have no doubt that Dr. Yusuf’s role as my primary supervisor was a prayer answered to compel me to be the best version of myself and rise to the challenge of completing this study. For that, You have my deepest gratitude…this entire experience has been ‘the bee's knees’! [iv] TABLE OF CONTENTS Introduction ......................................................................................................................... 01 Chapter 1: Methodology: Relevant Concepts & Theories .................................................. 04 1.1 Muslim Immigration & Islamic Law in the Post-9/11 Context .......................................... 06 1.2 Distinguishing between Islamic Law Exceptionalism & Multiculturalism ......................... 07 1.3 Contextualizing the Question of Islamic Law Exceptionalism ........................................... 12 1.4 The Imperativeness of Constitutionalism in an Era of Human Rights Debate ................. 16 1.5 Differentiating Constitutionalism in England, Canada & the United States ..................... 20 1.6 Contextualizing the Concept of Peace, Order & Good Government ................................. 24 1.7 Distinguishing ‘Originalism’ & its Connection to Foundational History ............................ 27 1.8 A Theoretical Framework for Evaluating Religious Plurality & Secularism ....................... 32 Chapter 2: The Conception of POGG: England’s Established Church Regime ................... 37 2.1 ‘The Mea Culpa’: Obligatory Accommodation of Faith-Based Legal Exceptionalism? ..... 37 2.2 The King’s Peace & the Genesis of the POGG Doctrine .................................................... 45 2.3 The ‘Henrician’ Reformation: Framing England’s Approach to Establishment ................ 52 2.4 The Crown & the Anglican Church in ‘Post-Christian’ England ......................................... 56 2.5 A Theory on the Illusion of Religious Equilibrium in England ............................................ 60 2.6 The Islamic Law Inquiry & Recurring Imperial Commitments ........................................... 68 2.7 The Socio-Legal Consequences of Attempting to Regulate Exceptionalism .................... 71 2.8 Conclusion ............................................................................................................................ 75 Chapter 3: The Rejection of POGG: America’s Approach to Disestablishment .................. 77 3.1 Mainland Britain: Foreshadowing the Effects of POGG in North America ........................ 77 3.2 POGG in British-America: The Impetus for Disestablishment in the U.S. ......................... 83 3.3 The Principal Imperative: Religiosity Clauses in American Colonial Charters .................. 87 3.3.1 The Colony of Massachusetts—A Sign of Divine Consent? ...................................... 92 3.3.2 Safe Haven Colonies—Maryland & Connecticut ....................................................... 94 3.3.3 A Charter Notwithstanding!—The Duke of York’s Land Grant ................................. 96 3.3.4 The Last British-American Colony—Georgia’s Latent Religiosity Clause ................. 97 3.4 The Political & Legal Imperatives: ‘Civil Order’ and ‘Settled & Quiet Government’ ....... 102 3.4.1 The Colony of Virginia—Colonial America’s Bastion of POGG? .............................. 105 3.4.2 The Colony of New Jersey—A Bumper-Crop of Constituting Documents .............. 110 3.5 The Rejection of POGG for ‘Life, Liberty & the Pursuit of Happiness’ ............................ 120 3.6 Conclusion .......................................................................................................................... 123 Chapter 4: The Bastion of POGG: Canada’s Approach to Disestablishment .................. 125 4.1 When Freedom Finally Rings: Proclaiming Disestablishment in Canada ....................... 126 4.2 British-Canadian Compliance & Embracing the POGG Doctrine ..................................... 129 4.3 ‘Le Pays des Canadas’: Substitution of Colonizers & Enforcement of Belief................. 133 4.4 The Canadian Colonial Paradigm: Conquest under the 1763 Treaty of Paris ............... 137 4.4.1 Nova Scotian Expulsion—The First Iteration of POGG in British-Canada .............. 139 4.4.2 Treaty of 1763—Not a Game-Changer for the Quebecois ..................................... 141 4.4.3 The Quebec Act of 1774—The Carrot/Stick Stratagem? ...................................... 142 4.4.4 The Prospect of Canadian Independence & the Practicality of Aid....................... 148 [v] TABLE OF CONTENTS (CONT’D) 4.5 POGG versus LLPH: The Importance of Remaining British ............................................. 153 4.6 The Antithesis to The King’s Peace: Canada’s
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