Thursday, April 11, 2013
Judge Posner on exclaustration and the Constitution
Over at The Volokh Conspiracy, Eugene Volokh has the story about the Seventh Circuit's recent and fascinating decision about the alleged defamation involved in calling someone a "fake nun." Here's a bit from the (I think correct, for reasons I wrote about here) decision:
A secular court may not take sides on issues of religious doctrine. The district judge in this case has ruled that a federal jury shall decide whether Patricia Fuller is a member of a Roman Catholic religious order, though if the jury decides that she is it will be rejecting the contrary ruling of the religious body (the Holy See) authorized by the Church to decide such matters.
A secular court must be allowed to decide, however, whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.... But once the court has satisfied itself that the authorized religious body has resolved the religious issue, the court may not question the resolution....
I wonder, though, if my friend Michael Helfand (Pepperdine) has a different view? See his great paper, "Litigating Religion," here.
Friday, April 05, 2013
Two bald guys figure out the Establishment Clause in 30 secondsHere's a short clip from an upcoming PBS documentary, "Constitution USA with Peter Sagal", in which I very . . . efficiently explain (what I think is) the "right way to understand" the separation of church and state. (Another way to describe the video, I suppose, would be to say that it presents "two very bald guys wandering around a courtyard.")
Sunday, March 03, 2013
A symposium on Fleming & McClain's "Ordered Liberty"
Over at Concurring Opinions, there is a very interesting "symposium" going on about Linda McClain and Jim Fleming's important new book, Ordered Liberty. My own first contribution, called "Mutual Adjustment as Merely Congruence Delayed" is here. Among other things, I wrote:
At the end of the day, and at the end of the book, I suppose there’s no avoiding the fact that I continue to have doubts about “constitutional liberalism” as Jim and Linda present and defend it; I continue to think that the Constitution is best regarded primarily, and more prosaically, as a mechanism for (limited-purpose and limited-reach) lawmaking, the operation of which is constrained by “negative” rights-protections; I think that the claims of families, associations, and churches to remain out-of-sync with current political majorities, or with liberalism more generally, are even stronger than Jim and Linda acknowledge; and I think that those scholars who “are preoccupied with the limited institutional capacities of courts” are, well, probably right to be so. But, it probably does not add much to this symposium simply to report my hard-headedness or general reservations.
So, a more focused thought on a particular part of the book: In Chapter 6 (“Conflicts between Liberty and Equality”), Linda and Jim use four familiar cases (Roberts, Dale, Bob Jones, and Christian Legal Society) to “illustrate the struggles between the formative projects of civil society and government and between competing visions of diversity and pluralism.” Fair enough — these case do indeed illustrate these struggles. But, at the end of the chapter, and at the end of book, I didn’t feel like I had been given or had found what I thought was promised, i.e., “a framework for resolving clashes of rights so as to promote ordered liberty and equality citizenship for all.” That is, despite the use of the term “mutual adjustment”, it did not appear to me that what was presented in the concluding pages and paragraphs of the chapter was so much a “framework” for resolving the described clashes through pluralism-appreciating “adjustment” as it was a declaration that the ultimate and to-be-desired resolution of these clashes in favor of the “liberal” position will often be facilitated by “prudential” “interim” strategies like religious exemptions. To be told by the liberal-constitutional state that — not to worry — it is willing to go slow in bringing dissenting or just different associations into congruence will not, I imagine, be very comforting to those who wonder why that state assumes it has the legitimate authority to insist on congruence now or later.
- See more at: http://www.concurringopinions.com/archives/2013/03/mutual-adjustment-as-merely-congruence-delayed.html#sthash.MbEEWvpx.dpuf
Jim and Linda respond to me, here. Time to get to work on a reply!
Friday, February 22, 2013
"Is religion special?" comes to NPR
My friend and mentor John Witte and I did a bit yesterday, on "Talk of the Nation", about religious exemptions -- their history, rationale(s), importance, and frequency. If you are interested, check it out. If there was a consistent theme in the callers' questions, it was "is religion special?" (Cf., e.g., Micah Schwartzman, "What if religion isn't special?") In response, John and I both suggested that the answer is (still) "yes."
Wednesday, February 20, 2013
Disagreement, contempt, and the "merriment of heaven"
Prof. Robert Miller (Iowa) has a nice post up at First Things, called "Thanatopsis for Ronald Dworkin." The last few paragraphs really stood out for me. After noting his frequent and deep disgreements with Prof. Dworkin, Miller writes:
Especially with people whom we do not know personally, it is easy to pass from thinking that a person holds bad ideas to thinking that the person who holds such ideas is a bad person—to move from disagreeing with a person to contemning him. This is a moral lapse, of course, because we should love everyone and contemn no one, even people who really are bad, but it is a mistake in another way as well, for it usually involves us in a simple factual error.
In my experience (and as a religious and political conservative in academia, I have a lot of experience of this kind), when we get to know the people with whom we disagree deeply, it usually turns out that they are very good people—people who love their spouses and children, who work hard at their jobs, who have overcome serious hardships and obstacles in life, who are kind to strangers, who are truly upstanding and morally admirable people. Rather than despising them, we end up liking and admiring them.
With people we never meet, however, we do not have this opportunity to see more of them than their ideas. Seeing just the ideas and thinking these are wrong, we too often dismiss the person with the ideas, and people we dismiss we easily come to hate. Reflect for a moment on your feelings for your least favorite politician currently in office. Allowing ourselves to have such feelings, however, reduces us as human beings because the final end of human nature requires that we will the good of all human beings, and it also has deleterious consequences, for it erodes social capital. It makes it harder for us to trust those with whom we disagree, to discuss matters reasonably with them, and to find common ground where such ground can be found in order to work together despite persisting disagreements. . . .
I never met Ronald Dworkin, which is too bad for me, because I am sure I would have enjoyed questioning him about his ideas and perhaps being questioned by him in turn. This, however, is but a minor misfortune. I still hope to meet him in the merriment of heaven.
Tuesday, February 05, 2013
Mitch Daniels's "Open Letter to the People of Purdue"
Former Indiana governor Mitch Daniels, after disregarding my telepathic requests that he run for President, decided to take on the challenge of serving as President of Purdue University, a first-rate land-grant research university in lovely Indiana. Here is his recent "Open Letter to the People of Purdue." For those of us (which is, I imagine, here at Prawfsblawg, "all of us") who have been thinking (and worrying) about the state and future of higher education and the burdens on and opportunities for our students, the letter is a worthwhile read. This is not to say that he says anything we have not heard before, but the "state of things" is presented in a candid and sober way.
The part that jumped out at me, for what it's worth, was this bit, near the end, as he was listing some "observations and . . . suggestions for our collective attention at the outset of [his] service":
Common purpose – A priceless asset of any great university is the independence of its faculty and the frequent individual breakthroughs, in both teaching and research, that it produces. Again and again, as I have moved through the colleges and gatherings of faculty, I heard the phrase "independent contractors" used to describe the working relationship between the school and its professors.
Similarly, I was struck forcefully by the separation among our eleven colleges. A newcomer quickly notices that we are less a "university" than a federation. Obviously, specialization and intellectual autonomy enable the excellence we seek. But, for instance, the widespread duplication of identical functions can work against the common goal we must have of affordability and liberating resources for new investments in faculty and facilities. As so often in life, the phrase "Fine, up to a point" applies.
I hope to find, and perhaps here and there to foster, a somewhat stronger sense of common purpose as we work through the decisions presented to us by a changed environment. Without knowing what they will be or when we will make them, many choices will necessitate a communitarian outlook that consciously places the interests of the overall university first.
This "communitarian outlook" has, as Daniels suggests, at least two dimensions: First, a determination by faculty-scholars to overcome independent-contractor thinking and to connect their own vocations with their institutions' missions; and second, for academic units (like law schools?) to connect the challenges they and their students are facing with those being faced by the universities more generally.
Thoughts? My own sense is that law faculty might be less likely than faculty in some other units to have this "independent-contractor" mindset, but -- again -- that's just a sense.
Thursday, January 31, 2013
Justice Sotomayor wants you . . . to celebrate National School Choice Week
As The New York Times, reports here, Justice Sotomayor is "heartbroken" over the closing of Blessed Sacrament School in the Bronx. The school is, of course, one of nearly 2000 urban-area Catholic schools that have closed in the last decade alone. The Justice said:
“You know how important those eight years were? It’s symbolic of what it means for all our families, like my mother, who were dirt-poor. She watched what happened to my cousins in public school and worried if we went there, we might not get out. So she scrimped and saved. It was a road of opportunity for kids with no other alternative.”
Tuesday, January 22, 2013
Roe v. Wade at 40
Today is the 40th anniversary of Roe v. Wade. For me (but not, I realize, for most of my friends and colleagues in the legal academy), it is a sad day and the fact that it follows on the heels of our celebration of the life and work of Dr. King is dissonance-creating. I realize that many regard the ruling as a welcome step in the direction of equality-under-law-and-in-fact for women (and perhaps also as a needed correction to an excessive influence on law of religious morality), and I'm not (I promise!) looking for a fight but, for me, the decision was a badly reasoned overreach, marked a set-back for human equality, and has had negative effects on our politics, on the judicial-nominations process, and on our constitutional doctrine. We could have done, and can do, better.
In any event, several hundred students from Notre Dame are leaving this afternoon (snowstorm notwithstanding) for the March for Life in Washington, D.C. They'll be joined by tens of thousands of others and, I imagine, ignored by the national media. But, I wish them the best. And, I still think John Hart Ely was right.
Monday, January 14, 2013
"A Theory of Justice": The Musical
This should be great. Much better than Cats. Coming soon to Oxford's Keble O'Reilly Theatre:
AN ALL-SINGING, ALL-DANCING ROMP THROUGH 2,500 YEARS OF POLITICAL PHILOSOPHY
A new musical by Eylon Aslan-Levy, Ramin Sabi & Tommy Peto
In order to draw inspiration for his magnum opus, John Rawls travels back through time to converse (in song) with a selection of political philosophers, including Plato, Locke, Rousseau and Mill. But the journey is not as smooth as he hoped: for as he pursues his love interest, the beautiful student Fairness, through history, he must escape the evil designs of his libertarian arch-nemesis, Robert Nozick, and his objectivist lover, Ayn Rand.. Will he achieve his goal of defining Justice as Fairness?
The world’s first feature-length musical about political philosophy will showcase a script steeped in drama, humour and romance - with a musical score that covers everything from rap battles to power ballads. "A Theory of Justice: The Musical!" will be a light-hearted, tongue-in-cheek, camp and intellectually profound addition to the musical theatre canon.
More information is available here.
Friday, January 11, 2013
The "Freedom of the Church" at AALS
At the recent Annual Meeting of the AALS in New Orleans, the Law and Religion Section -- so ably chaired by Paul Horwitz this past year -- put on a first-rate panel on "The Freedom of the Church." (About which more here.) Michael Moreland, Michael McConnell, Sarah Gordon, and Paul Horwitz each gave excellent presentations, and Jessie Hill moderated expertly.
Paul helpfully "set up" the issue, noting that the issue is timely in part because of events and controversies like the Hosanna-Tabor decision and the HHS-mandate litigation. He then presented, and reflected briefly on, the criticisms of "religious institutionalism" that have been developed by Micah Schwartzman and Rich Schragger (in this paper).
Sarah Gordon reminded the audience that, the First Amendment's free-exercise and no-establishment clauses notwithstanding, religious institutions and (especially) their property were pervasively and closely regulated in many places during the 19th century, and suggested that this fact complicates arguments that the founders and ratifiers constitutionalized a strong "freedom of the church" principle.
Michael Moreland's very thoughtful presentation noted, among other things, that the debate in the public square and in the legal academy about religious freedom generally, and the "freedom of the church" principle specifically, is shaped -- and perhaps distorted -- by the (contingent) fact that the principle so often is in play in debates about, well, "sex." As he reminded us, the conversation needs to be about "God" and "law," too.
Finally, Michael McConnell reflected on the (he thinks) strange fact that the Free Exercise, in Smith, was held to provide almost no protection to individuals, while Hosanna-Tabor, drawing on a principle of church-autonomy that might seem less textually grounded than individual "free exercise", provided strong protections to religious institutions. (In the Q & A, it was suggested that a number of the Court's decisions -- including Kedroff (more on that case here) -- and also the original meaning of the term "establishment" provide substantial support for the principle applied, and the result reached, in Hosanna-Tabor.
Anyway, thanks very much to the organizers, presenters, and moderators for a really good AALS program.
Wednesday, January 09, 2013
Continuing the discussion: Koppelman's "Defending American Religious Neutrality"
A few weeks ago, Paul kicked off a discussion about Andy Koppelman's new book, Defending American Religious Neutrality, and posted Andy's introduction. (Readers might also be interested in this short essay, The Many Paths to Neutrality, which Andy and I wrote, and which serves as the Introduction to our First Amendment Stories.)
I had a chance to "workshop" Andy's book when it was in draft, and have re-read it after its publication. I admire it, and Andy, a lot.
For starters, I appreciate his reminder that, maybe, things are not so bad. Yes, it is true that the Court often makes a mess of things, certain Justices are prone to cringe-inducing displays of unwarranted self-confidence, and the threats to religious freedom, at home and abroad, are real. Still, we have, as Koppelman notes, “been unusually successful in dealing with religious diversity” and, despite the fair and ample criticism directed at our First Amendment caselaw, it strikes me that our courts are “muddling through” reasonably well.
In addition, there are many points, claims, and observations in Andy’s book that strike me as sound and welcome. He correctly criticizes and refutes those “radical secularists” who regard religion as “toxic and valueless” and who seem bent on its “eradication . . . from public life.” He is right that the Constitution does permit – indeed, it invites – the accommodation of religion. He helpfully amends John Rawls’s call for “civic friendship” with the reminder that the “path to actual civic friendship”
is not, in the real world, aided by rules-of-engagement that require the bracketing or translating of “comprehensive views”; the better way, instead, is to “tell each other what we [really] think and talk about it.” He is wise to urge readers not to overstate
or obsess the difficulties involved in “defining” religion, because there is no single definition. And, I think he is right that First Amendment doctrine, to the extent it contains a judicially enforceable “secular purpose” requirement, should focus on legislative outputs – that is, on what officials actually do and say – rather than on inputs, or on the supposed motives of legislators or religious commitments of voters.
Koppelman’s primary thesis is that “American religious neutrality is coherent and attractive.” One question we might ask is whether the regime he describes is actually “neutral,” or is actually either the American regime or the “American ideal.” My own impression is that the coherence and attractiveness of the regime Koppelman proposes and defends depends substantially on its not being – at least, not entirely – “neutral.” This regime is one of neutrality “properly understood” or, it turns out, of non-neutrality. The government is not required, by Koppelman’s “proper” understanding of neutrality to be religion-blind or indifferent to religion, and it is certainly not required to be leery of or hostile to it. Instead, “American religious neutrality” permits governments and officials to regard religion – at a high level of generality – as a good thing, and to act accordingly. The state is to be “silent about religious truth” but this silence may be accompanied or complemented by policies – like religion-based accommodations from generally applicable laws – that both reflect and communicate the view that “religion as such . . . [is] valuable”.
Maybe one way to put the matter is to say that the American religious-liberty regime aims to be “neutral” with respect to the truth of (most) religious claims precisely because it is not “neutral” – it does not aim to be neutral, it should not be neutral – regarding the good of religious freedom. Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing.
So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
Monday, January 07, 2013
Mandatory public education
At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."
In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.
Today's most important post
Thursday, December 13, 2012
"A sad sign for higher education"I agree that the (hopelessly lame) new University of California logo is one. "Let there be light" strikes me as a motto that, well, aims a bit higher.
Tuesday, December 04, 2012
Bonus! I've received, in recent days, real-world, dead-tree copies of three books which I am looking forward to re-reading and marking up: Paul Horwitz's First Amendment Institutions (natch); Andy Koppelman's Defending American Religious Neutrality; and Brian Leiter's Why Tolerate Religion? I had the chance to workshop each of these books, in one way or another, and it's a real treat to have them in hand. Those long airplane flights over Christmas are already looking less-unpleasant . . . .
Congrats to Paul, Brian, and Andy!
Monday, November 19, 2012
Let us praise the BCSOr not. Whatever. I'm sure the playoff will be better. But today, the BCS computers have Notre Dame at No. 1 (and Paul Horwitz's Tide at No. 2). Go Irish! Beat condoms! And, if you have a few minutes, check out this short piece (video) about ND's star linebacker, Manti Te'o, who is by all accounts a wonderful guy.
Friday, October 26, 2012
Jacques Barzun, R.I.P."Cultural Critic Saw the Sun Setting on the West." More here. And, you can buy his Dawn to Decadence here.
Thursday, October 25, 2012
Vischer selected as new dean at St. Thomas
I am delighted to report that Prawfs-guest, and my Mirror of Justice colleague, Rob Vischer, has been selected to take over as the new dean of the University of St. Thomas School of Law. Tom Berg has the announcement, here. Rob does great work in law-and-religion and legal ethics, and he will, I have no doubt, building on the record of success that St. Thomas, in just a few years, has already put together. (See, e.g., the scholarly-impact statistics in this piece.)
Congrats to Rob, on this, and on his new book, Martin Luther King, Jr. and the Morality of Legal Practice: Lessons in Love and Justice.
Tuesday, October 23, 2012
A review of Jenkins, "The Partisan: The Life of William Rehnquist"
This weekend, the WSJ ran my review of John Jenkins' "The Partisan: The Life of William Rehnquist." It is a pretty tough review of (what should be seen, whether or not one shares my high opinion of the former Chief, as) a very bad book. That said, it struck me -- apart from the (minimal) merits of this particular book, that the genre is a tricky one:
It is true that gripping judicial biographies are difficult to write. The story
of the Supreme Court is compelling and dramatic, but the justices' own stories
are usually prosaic: They are, for the most part, gifted and well-credentialed
lawyers, not unlike many thousands of others, who work in relative privacy on
fairly technical questions and are, from time to time, hauled into the headlines
by virtue of a close vote in an abortion-regulation or affirmative-action case. . . .
Friday, October 19, 2012
"The Freedom of the Church in the Modern Era"
Last weekend, I participated (along with Paul Horwitz and GuestPrawfVets Caroline Corbin, Rob Vischer, Nelson Tebbe, Michael Helfand, and others) in what was, I think, the most rewarding academic conference I've experienced: "The Freedom of the Church in the Modern Era." Thanks and congrats to Larry Alexander and Steve Smith, of the University of San Diego, and their new Institute for Law and Religion, for organizing and hosting. Here's the conference blurb:
The Western commitment to freedom of religion, reflected in the United States Constitution and in a variety of international human rights documents, arguably descends from the medieval campaign for libertas ecclesiae—“freedom of the church.” In modern times, though, it seems that the progeny (freedom of religion) has largely displaced—and forgotten—the parent (freedom of the church). Jurists and scholars debate whether there is any constitutional commitment to freedom of the church, or church autonomy, or institutional free exercise. And they often suppose that such commitment, if there is one, must be derivative from a more fundamental commitment to freedom of religion.
The issue of freedom of the church has become urgent in recent years. Claimants sue churches in secular courts for what they perceive as abuse or discrimination. Government agencies act to compel religiously-affiliated institutions to provide goods or services such as contraceptives or abortion. In 2011 the Supreme Court considered for the first time a case raising the issue of the so-called “ministerial exemption” for churches from some federal regulatory laws. Opposing the position taken by numerous lower courts, the Obama Administration argued in that case that the Supreme Court should reject the exemption.
This conference will accordingly consider issues related to freedom of the church . . .
Micah Schwartzman and Rich Schragger presented their paper, "Against Religious Institutionalism" (discussed earlier here on Prawfs); Steve and Paul added to the body of important work they've done on the institutional dimension of religious freedom and the First Amendment more generally; I tried to update and expand my defense of "the freedom of the church" as a still important (i.e., not anachronistic) idea; and a number of us did an interpretive dance-reenactment of the Canossa meeting between Pope Gregory VII and Emperor Henry IV. Lots of other interesting papers were presented, and they should be out this Spring in the San Diego Law Review. Stay tuned!
Monday, October 15, 2012
Confusion about Separation
This blog post, "Of Babies and Beans," by Adam Gopnik, at The New Yorker, is mainly about abortion (and about what Paul Ryan said during the vice-presidential debate on the subject) but it also included some sharp -- but I think misguided -- criticism of what Ryan said about the role of religious faith in citizens' "public" lives. Gopnik characterizes as "disturbing and scary" what struck me as Ryan's (to me)unremarkable observation that “I don’t see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do.” Here's Gopnik:
That’s a shocking answer—a mullah’s answer, what those scary Iranian “Ayatollahs” he kept referring to when talking about Iran would say as well. Ryan was rejecting secularism itself, casually insisting, as the Roman Catholic Andrew Sullivan put it, that “the usual necessary distinction between politics and religion, between state and church, cannot and should not exist.” . . .
. . . Our faith should not inform us in everything we do, or there would be no end to the religious warfare that our tolerant founders feared.
Now, I believe strongly -- in part for "religious" reasons -- in the separation of church and state, properly understood. But Ryan did not say that the "distinction between politics and religion" or the distinction between "church and state" (which is a different distinction) "should not exist"; and there is nothing mullah-ish about the statement that faith "informs" people's lives -- public and private -- comprehensively. He didn't say that the positive law should enforce religious teachings or require religious practices, and there's nothing contrary to "secularism" (properly understood) in his statement.
Which reminds me . . . I participated this past weekend, along with a number of Prawfs-bloggers and friends, in a really stimulating and fun roundtable conference at the University of San Diego's new Institute for Law and Religion, on "The Freedom of the Church in the Modern Era." Our own Paul Horwitz's work on the subject was, of course, at center-stage! More on this later (I hope!).
Wednesday, October 10, 2012
Inazu on "The Four Freedoms"
Last Friday, we welcomed to Notre Dame my friend Prof. John Inazu (Wash. U.), to workshop his paper, "The Four Freedoms." Here's the abstract:
The First Amendment’s rights of speech, press, religion, and assembly were once
“interwoven” but distinct. Together, these freedoms advanced a pluralist
skepticism of state orthodoxy that protected religious and other forms of
liberty. The connections among these rights were evident at the Framing. They
were also prominent during the 1930s and 1940s, when legal and political
rhetoric recognized the “preferred position” of the “Four Freedoms.” We have
lost sight of the Four Freedoms, supplanting their unified distinctiveness with
an undifferentiated free speech framework driven by unsatisfying concepts like
content neutrality and public forum analysis. It did not have to be this way,
and it may not be too late to change course. This Article seeks to renew the
pluralist emphasis once represented by the Four Freedoms.
The consequences of losing the pluralist vision are nowhere more evident than in the
diminishing constitutional protections for religious groups, which are
paradigmatic of the expressive, dissenting, and culture-forming groups of civil
society. The Four Freedoms remind us that the boundaries of religious liberty
have never rested solely in the First Amendment’s free exercise clause —
religious liberty is best strengthened by ensuring robust protections of more
general forms of liberty. But the normative effort to reclaim pluralism is not
without costs, and it confronts powerful objections from anti-discrimination
norms pertaining to race, gender, and sexual orientation — objections that
cannot go unanswered.
Among other things, the John's paper -- in the course of a discussion about the Bob Jones case -- engages and criticizes parts of this paper of mine, "Religious Freedom and the Nondiscrimination Norm." Fun was had by all.
Monday, October 01, 2012
Schragger and Schwartzman, "Against Religious Institutionalism"
Rich Schragger and Micah Schwartzman have posted their new paper, "Against Religious Institutionalism", at SSRN. Here's the abstract:
The idea that religious institutions should play a central role in understanding
the First Amendment has become increasingly prominent in recent years. Litigation over the application of civil rights laws to ministers and the requirement that religious employers provide contraception coverage to their employees have elicited calls for a doctrine of church sovereignty based on an institutional conception of the Religion Clauses. In this Article, we present grounds for skepticism about this new religious institutionalism, especially the concept of “freedom of the church,” which we distinguish from the seemingly related but importantly distinct idea of church autonomy. We further explain why individual rights of conscience are sufficient to protect the free exercise and anti-establishment values of the First Amendment. Our argument, contrary to some recent scholarship, is that religious institutions do not give rise to a special set of rights, autonomy, or sovereignty, and that what might be called institutional or church autonomy is ultimately derived from individual rights of conscience. Indeed, for purposes of understanding religious liberty, we contend that any notion of institutional autonomy — to the extent it exists — can come from nowhere else.
I'm really excited about this paper, and not only because it closely engages my own work, and that of better scholars -- Paul Horwitz, Steve Smith, Fred Schauer, Perry Dane, Doug Laycock, and many others -- who are also interested in an institutional approach to questions of religious freedom, church-state relations, and the First Amendment generally. I'm working on a paper / chapter that will respond adequately to Rich and Micah, but suffice it to say (for now) that, while I think "religious institutionalism" stands up to their criticisms, I also think that their contribution to the conversation is important and welcome.
If readers are interested in some of the papers of mine that Rich and Micah address, here is "Do Churches Matter? Towards an Institutional Understanding of the Religion Clauses," and here is "The Freedom of the Church." Here is the abstract for the former:
In recent years, several prominent scholars have called attention to the importance and role of
"First Amendment institutions" and there is a growing body of work informed by
an appreciation for what Professor Balkin calls the "infrastructure of free
expression." The freedom of expression, he suggests, requires "more than mere
absence of government censorship or prohibition to thrive; [it] also require[s]
institutions, practices and technological structures that foster and promote
[it]." The intuition animating this scholarship, then, is that the freedom of
expression is not only enjoyed by and through, but also depends on the existence
and flourishing of, certain institutions, newspapers, political parties,
interest groups, libraries, expressive associations, universities and so on.
These "First Amendment institutions" are free-speech actors, but they also play
a structural - or, again, an "infrastructural" role in clearing out and
protecting the civil-society space within which the freedom of speech can be
well exercised. These institutions are not only conduits for expression, they
are also "the scaffolding around which civil society is constructed, in which
personal freedoms are exercised, in which loyalties are formed and transmitted,
and in which individuals flourish.
Similar "infrastructural" claims can and should be proposed with respect to the freedom of religion. Like the freedom of speech, religious freedom has and requires an infrastructure. Like free
expression, it is not exercised only by individuals; like free expression, its
exercise requires more than an individual with something to say; like free
expression, it involves more than protecting a solitary conscience. The freedom
of religion is not only lived and experienced through institutions, it is also
protected and nourished by them. Accordingly, the theories and doctrines we use
to understand, apply and enforce the First Amendment's religious-freedom
provisions should reflect and respect this fact. If we want to understand well
the content and implications of our constitutional commitment to religious
liberty, we need to ask, as Professors Lupu and Tuttle have put it, whether
"religious entities occupy a distinctive place in our constitutional order[.]"
And, of course, remember to buy Paul Horwitz's First Amendment Institutions for all the neo-pluralists on your holiday-shopping lists.
Pojanowski reviews Smith's "Disenchantment of Secular Discourse"
This review essay considers Stephen D. Smith’s most recent book, The Disenchantment of Secular Discourse. Rather than focusing on the book’s argument about the practices and pathologies of the public square, this essay uses Smith’s chapter on scientific thought as a platform for exploring connections between Disenchantment and Smith’s prior work in legal theory. The catalyst for these reflections is Scandinavian legal realism. Considering these elements together sheds light on both the limits and virtues of central ideas about legal
obligation and authority in contemporary jurisprudence. Such perspective points
to a broader argument that jurisprudential debates about methodology and
concepts may be as much about how we read the universe as they are about how we understand law.
As Legal Theory-king Larry Solum would say, "highly recommended".
Thursday, September 27, 2012
"The Many Paths to Neutrality"
This essay introduces a volume, First Amendment Stories, which the authors edited and to
which a number of distinguished scholars contributed. The authors reflect on the
tendency of First Amendment law to abstract away from specifics, and note that
free-speech and religious-liberty law and doctrines generally aim for a certain
kind of “neutrality”; in the interest of hitting that target, some
considerations that are salient to ordinary common sense are deemed not to
count. But, how is this neutrality possible? How does it ever happen that people
embrace it? What specific contexts lead courts to abstract away from both
specificity and context, to adopt positions that are neutral toward, say,
theological truth and the viewpoint of speech? Is this move – this striving –
toward neutrality justified, or justifiable? This question, the authors believe,
runs through this volume and its chapters.
It turns out that, like “equality,” neutrality has a conventional meaning, one that, in many ways, can
obscure the term’s contested, complicated, and multiple meanings. When it is not
used merely to suggest a kind of serene nonjudgmentalism, the invocation of
neutrality in conversations about law and politics is typically a shorthand
gesture toward the generally understood value of removing some issues from
political consideration, together with the arguments in favor of this removal.
Such linguistic conventions are useful. The vague term “neutrality” may either
introduce substantive argument or serve as a meaningful slogan in the many
contexts in which it is difficult to develop arguments in a careful, systematic
way. “Neutrality,” though, is a fluid term, as this volume’s several stories
illustrate. It must take its shape from its container, the specific arguments in
favor of withdrawing this or that substantive issue from politics.
Friday, September 21, 2012
"Keep America Weird": One way to think about the HHS mandate . . .
William Mattox writes, in USA Today, that for reasons similar to those that (rightly) make Austin residents eager to "Keep Austin Weird", we should oppose policies like the HHS mandate that have the effect, even if not the aim, of standardizing and homogenizing the sometimes-"weird" institutions and associations of civil society:
I worry that Obama's health care plan is doing to Catholics what those cookie-cutter national chains were threatening to do to Austin's bohemians: Rob them of their distinctive identity. Of their unique character. Of their freedom to be authentic.
Yes, I know Obama's contraception mandate provides an exception for Catholic churches. But it offers no such relief to those running Catholic schools, hospitals and charities who want to live out their faith (and follow their church's teachings) on more than just Sundays. In essence, the Obama administration's message to these Catholics, despite a cosmetic compromise, is akin to telling Austin's bohemians that they can dress like hipsters on the weekends so long as they behave like corporate shills Monday through Friday. . . .
Well, my thirteen-year-old daughter certainly thinks I'm weird . . . I guess there are worse things!
Tuesday, September 18, 2012
It seems to me that we should be more bothered than we seem to be
by this ("Man Linked to Film in Protests is Questioned", NYT Sept. 15, 2012):
One of the men behind the anti-Muslim film trailer on YouTube that has set off violent protests at Western embassies across the Middle East was taken in for questioning by federal probation officers early Saturday morning, law enforcement officials said. . .
I am not making (only) the skunk-in-the-garden-party observation that the blogs of and read by law professors would be reacting differently to this picture if John Ashcroft were the Attorney General or George Bush were the President (though, I feel confident, they would be). That is what it is. That said, I think that the impulse to focus law-enforcement resources on this "film"-maker, and arguments like these, in The Los Angeles Times ("Does 'Innocence of Muslims' Meet the Free Speech Test"), could reveal a troubling wobbliness.
To be clear: I am open to arguments that recent decisions about crush videos, offensive funeral protests, violent video games, and lying about medals illustrate a free-speech regime that is perhaps in need of some re-calibration, and I agree with those who say that, sometimes, that regime discounts or undercounts the real harms that result from offensive speech. I agree also that it is an abuse of the freedom of speech to gratuitously insult (as opposed to thoughtfully criticize) the religious beliefs of others.
Still . . . a violent heckler's veto is still a heckler's veto, and I am inclined to think that there is little, if any, room for such a veto in the approach that a constitutional democracy takes to the regulation of even offensive and ignorant "politcal" expression. Thoughts?
Monday, September 17, 2012
Solve fiscal woes by taxing the Church?
Paul Caron calls attention to a WaPo article suggesting that some are considering the Roman Catholic Church -- you know, the one with all the fancy art and deep "coffers" (See Garnett & Carr, "Drop Coffers," in The Green Bag) -- as a source of funds in fiscal-cliff times. I have my doubts about the Post writer's characterization of the Church as "one of the last untouched sources of wealth" (the Dissolution of the Monasteries, anyone?), but it's an interesting and timely question. If governments need money, why should they (a) spend money (through various subsidies and supports) on Church matters and (b) forego extracting money from (i.e., extend exeptions to) the Church?
We could think about this, I guess, just in terms of the overall costs and benefits to the relevant political community from current subsidies-and-exemptions practices. Or, we could ask, at a more theoretical level, whether there are good reasons (having to do with things other than budgets) for changing those practices.
At First Things, Leroy Huizinga has some thoughts about the story. He writes:
. . . Why shouldn’t churches be taxed, in general? One reason has to do with preserving a healthy separation of Church and State. If Churches can be taxed, then the government can get into the business of running them (or crushing them) through tax policy, like it does most everything else. Another reason is that private institutions like churches contribute to the common good both as charitable institutions directly serving people through its various programs and also as space as a community mediating between individual and the State. A third reason is more practical: Churches generally do a better job administering social programs than government does (which, one suspects, grates government functionaries). A fourth reason applicable to Europe in particular: The reason most people bother visiting Europe and spending significant tourist dollars there is the legacy of beauty produced by Europe’s Christian heritage. . . .
Of course, one knows why government wishes to control religion, going back at least to Hobbes. Religious institutions have often been the only entities effective in challenging State power, reminding rulers that there is a higher law than their whims and will, that they too stand under the judgment of God and nature. . . .
This last point is, for me, a powerful one, but it does invite this response: Perhaps (as many Americans have thought over the years) churches' ability to effective "challeng[e] state power" is undermined by subsidies and Erastian co-option? (I tend to think exemptions raise different questions, and that "separation" points toward, rather than away from, at least some exemptions.)
In the United States, it strikes me that private institutions of higher education might prove, to some, an analogously attractive source of fiscal relief? We'll see. . .
Tuesday, September 11, 2012
Going through 11-year-old e-mails . . .
I kept, in a folder -- never thinking, I'm sure, that e-mail would still be around in 11 years -- some correspondence among friends exchanged as Sept. 11, 2001 unfolded. Yeats and Auden made multiple appearances, as did this one, in particular:
I sit in one of the dives
On Fifty-second Street
Uncertain and afraid
As the clever hopes expire
Of a low dishonest decade;
Waves of anger and fear
Circulate over the bright
And darkened lands of the earth,
Obsessing our private lives;
The unmentionable odour of death
Offends the September night
W. H. Auden, September 1, 1939.
That afternoon -- I'll never forget how amazed I was that it all came together so quickly, and smoothly -- about 6,000 members of the Notre Dame community celebrated Mass on the South Quad.
It's strange, for me, to remember what a beautiful day that awful day was.
Thursday, September 06, 2012
Religiously Affiliated Law Schools reception at the AALS hiring conference
For all those going to the hiring conference next month:
Touro Law Center will be hosting the annual reception of Religiously Affiliated Law Schools at the AALS Faculty Recruitment Conference in Washington, DC. This year’s reception will be held on Thursday, October 11, 2012, from 7:30 to 9:00, in the Hoover Room of the Washington Marriott Wardman Park Hotel. All faculty candidates are invited to attend.
Thanks to Sam Levine (Touro) for the reminder!
Wednesday, September 05, 2012
Crime, Chicago, and Catholic Schools
This op-ed has a nice shout-out for recent and ongoing work, in the Journal of Empirical Legal Studies and the U. of Chicago L. Rev., by Nicole Stelle Garnett and her co-author, Margaret Brinig, on the social-capital and neighborhood-health effects of Catholic schools (and Catholic-school closings). A bit from the op-ed:
A series of research articles by University of Notre Dame Professors Margaret Brinig and Nicole Garnet have laid out the case. In a paper summarizing their findings, "Catholic Schools, Urban Neighborhoods, and Education Reform" Brinig and Garnet used three decades of data from the Project on Human Development in Chicago Neighborhoods to evaluate the effect of a Catholic school closure on its neighborhood. They found -- even after controlling for other demographic variables that might predict decline -- that neighborhood social cohesion decreases and disorder increases in neighborhoods that have had a Catholic elementary school close. Last month an article about Brinig and Garnet's research, "Catholic Schools and Broken Windows," was published in the Journal of Empirical Legal Studies. This research demonstrated that during a time of overall decline in crime, Catholic school closures slowed the rate of decline of crime as compared to beats without a Catholic school closure.
There remain many questions not answered by this research as to why inner-city Catholic schools might have this effect. However, the authors conclude that "...Catholic school closures are strongly linked with increased disorder, reduced neighborhood social cohesion, and eventually, serious crime." . . .
Tuesday, September 04, 2012
I have a short piece in the new issue of Commonweal, called "Executive Overreach." It was solicited as part of a "what's important to think about, as the election approaches" series that the magazine -- a liberal-Catholic-(or Catholic-liberal)-leaning journal of opinion -- is running. Here's a bit:
. . . Constitutionalism is about more than our particular charter’s text, the Supreme Court’s various decisions, or pieties about shared values and fundamental rights. It is an attachment to the enterprise of protecting human freedom and promoting the common good by structuring, separating, and limiting power in entrenched and enforceable ways. It is a mechanism for conferring power and authorizing action, a vehicle for governing and getting things done, but it’s also an embrace of constraints, processes, and forms, and a willingness to accept delays, inefficiencies, and frustrations as unavoidable costs, perhaps even benefits. In constitutional
government, how and by whom things are done is at least as important as what is
done and when, or how quickly. And this is why it is troubling, rather than
inspiring, to hear the president keep saying, “We can’t wait.”
This is not a partisan concern. Both parties have been guilty of overreach . . . .
This is not a Tea Party point, even if the Tea Party sometimes makes it. It is certainly not an endorsement of the constitutional provisions that once entrenched slavery or a denial that some others are anachronistic. Nor is it a defense of the various congressionally created, non-constitutional rules that sometimes make a mockery of the idea of structured deliberation by setting up a maze of holdouts, vetoes, and hostage taking.
Electoral majorities will sometimes reward those whose proclaimed or perceived energy and vision are too big for the rules and who promise to ignore or abolish procedures that—especially during times of deep political divisions—seem to deliver only delay and dead ends. And yet, as Chief Justice Warren Burger observed almost thirty years ago, “With all the obvious flaws of delay, untidiness, and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefully crafted restraints spelled out in the Constitution.” Those who designed the Constitution understood that political liberties are best served through competition and cooperation among plural authorities and jurisdictions, and through mechanisms that check, diffuse, and divide power. . . .
Friday, August 24, 2012
A pronunciation guide to the Supreme Court's caselawHere, thanks to Gene Fidell and several others (and The Green Bag), is a great resource: A "Pronouncing Dictionary of the Supreme Court of the United States." (I've been pronouncing "Kiryas Joel" wrong for years, it appears. Dang.) No more stumbling in class over Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue or Compagnie Internationale de Produits Alimentaires v. Miller!
Tuesday, August 21, 2012
"In retrospect, I guess we might have resorted to cannibalism a bit early"
Once again, I used "The Case of the Speluncean Explorers" in the first week of Criminal Law, as a way of "putting on the table" some of the big and interesting questions the course presents (in addition to "who brings dice on a caving trip?") -- questions about statutory interpretation, state-of-mind, clemency, justification-and-excuse, and the sanctity of human life.
And, doing this reminded me of one of my all-time favorite pieces from The Onion:
. . . When the six of us got into the elevator on that fateful day, we had no idea what was going to happen. We thought we were just going to take a little ride from the 12th floor to the lobby, just like every other day. Do you think we knew that elevator was going to get stuck between floors? Do you think we got into the elevator saying, "Hey, you know, we should eat our good old pal Jerry Weinhoff from Accounts Payable"? Of course not. . . .
Tuesday, July 24, 2012
The death penalty for Holmes, and "consultation" with victims
It's in the news (and not surprising, I suppose) that the Arapahoe County District Attorney is considering seeking the death penalty for the accused, James Holmes, in the Aurora movie-theater killings. It has also been reported widely (here's one clip) that the D.A. plans to come do a decision in "consultation with the victims' families."
I oppose capital punishment, so I guess my views about such consultation, or about the related matter of "victim impact evidence" at sentencing, can fairly be discounted. And, I am also sensitive to the fact that I have not been teaching or writing about these questions for several years. That said, my strong sense continues to be that we -- that is, the political community that punishes -- need to be very careful about this consultation, and about what its purposes should (and should not) be.
For example, it seems to me that the important question whether the death penalty is "deserved" (and no punishment should be imposed that is not deserved) is not one that should depend much on what the victims' families' preferences are regarding punishment, and it should not depend at all on whether the consultation/investigation uncovers facts that suggest that these particular victims were especially "valuable to society" or high-achieving or praiseworthy, or that their families were, for one reason or another, harmed more than usual by the loss. (I am inclined to think, though, that a prosecutor could appropriately take into account facts uncovered during consultation with the victims' families having to do with the ease, or difficulty, of securing a (just) conviction efficiently.)
Again, I'm not an expert and others here at Prawfs know a lot more about punishment theory than I do! Thoughts?
Wednesday, July 11, 2012
The "If ___ means anything, it surely means ____" argument
We've all encountered this argument, I imagine: "If ___ means anything, it surely means _____." See, e.g., Central Hudson Gas & Elec. Corp. v. Public Service Comm'n, 447 U.S. 557, 575 (1980) (Brennan, J., concurring) ("If the First Amendment guarantee means anything, it means that, absent clear and present danger, government has no power to restrict expression because of the effect its message is likely to have on the public"). This is more of a move than a "modality," I suppose, but it's a common one. (It evokes, in a way, Phil Hartman's "unfrozen caveman lawyer" tactics.) Is there a name for it? I'm sure there's a technical fallacy involved in the move, so maybe it has a cool Latin name?
Why yes, I am avoiding something I'm supposed to be doing . . .
Tuesday, July 10, 2012
Steve Smith guest-blogging at the CLR Forum
A special summer treat for law-and-religion folks: Steve Smith (San Diego) is guest-blogging over at the Center for Law and Religion's blog. In this post, "Religious Freedom and the Social Contract," Steve responds to the increasingly prevalent view that special protections for religious liberty -- of the kind afforded by our First Amendment -- depend for their justification on "theistic premises that are no longer admissible in a liberal political order." So . . . what next?
Steve suggests that "special protection for religious freedom is a central part of the social contract, and that it would be both unjust and imprudent for government to violate that contract":
We all participate (or decline to participate) in our political and social order based on some understanding of what its terms are– what government can expect of us, what we can expect of government, what we can expect government not to do. These terms form a sort of “social contract,” but they are not derived from any thought experiment based on a fictional “state of nature” or “pre-political condition” or “original position.” Rather, they are real terms, partly written but largely unwritten, that we perceive in our law, traditions, and practices. The terms are subject to interpretation, of course, and no doubt they may change over time– occasionally through deliberately enacted law, more often through gradual and almost imperceptible cultural evolution. Nonetheless, at any given time we have some sense of the terms of this implicit but quite real “social contract.”
So long as government honors the terms, we may feel some obligation to render our support and allegiance. Conversely, if government disregards or violates the terms of the “contract,” our loyalty is betrayed and our commitment compromised.
Check out the whole thing, and also Steve's several other thoughtful posts.
Tuesday, July 03, 2012
Chief Justice Roberts and the ACA cases
Now that I have the benefit of a long time's reflection about, and critical distance from, Thursday's decision (insert appropriate emoticon here, to signal that I'm aware of the funny-absurdity of four days being a "long time" in blog-world), a few thoughts about the ACA cases, and the Chief Justice's opinion in particular, are starting to come together.
First, I am surprised and (maybe naively) disappointed by the almost-Orwellian "two minute hate" (which, I suppose, could go on longer) that has erupted in the world of talk-radio and in sectors of the right-leaning blogosphere towards the Chief. One would think he'd suddenly become an amalgam of Bill Douglas (or maybe David Souter) and Bill Ayers, this former law clerk to Justice Rehnquist and lawyer for Ronald Reagan. (I heard a radio guy say, "I knew it all along, this guy is no conservative!" But this, of course, is insane.) All this because he didn't vote to strike down a law that (a) remains repealable, if it's so bad, and that (b) most people -- including some who are committed to judicial enforcement of the Constitution's structural features -- thought until recently was, even if seriously wrongheaded, probably constitutional under the relevant precedents? And, apparently, the fact that he somehow got two "liberal" justices to sign on to what I think is the first decision since Dole to put any teeth in the "there are limits to the federal government's ability to regulate-by-spending" idea (an idea that is, as I've argued, essential to any meaningful "federalism revolution") seems, in these quarters, to count for nothing.
Second, it is pretty much universally believed (see, for example, Jessie's recent post), so far as I can tell, that the Chief Justice's argument that the mandate may be regarded, for constitutional purposes, as a "tax" -- not because it obviously is one but in order to save a major statute enacted by the Congress and signed by the President -- is glaringly unconvincing, and that the Chief embraced this argument for "political" reasons. I'll go out on a limb, and say that, in my view, what the Chief actually says -- e.g., that it is possible to regard the mandate, given all the circumstances, as, functionally speaking, enough like a tax to justify taking the avoidance-canon route and upholding what would otherwise be an unconstitutional law -- doesn't strike me as notably less convincing than a lot of things that the Court has done and that many law professors have welcomed. I have not thought enough about the question, I admit, but it does not seem like we're talking "Yoder was about hybrid rights"-unconvincing here. And, the very existence of this route -- the idea that unelected federal judges should try, if it's possible, within reason, to interpret federal statutes in ways that keep their existence and merits in the political arena -- is "political," isn't it?
Third, I certainly hope it is not true -- I am confident that it is not -- that the Chief changed his vote merely because some critics were (lamely, I think) anticipatorily complaining that it would be activist, illegitimate, etc., etc., for the Court to strike down the law. (High dudgeon about how shocking it would be for the Court to strike down the ACA, coming from folks who, I suspect, think it was Wise and Good to invalidate, say, the death-penalty or abortion-related laws in dozens of states is a bit hard for me to take seriously, as is disingenuous praise from former-and-future critics of the Chief for his "statesmanship" here.) But, here's another possibility. I know, I know, it sounds naive, but: Perhaps the Chief Justice really did come to believe, during the Spring, that -- especially in circumstances like the ones surrounding the ACA cases, which were decided months before a presidential election, and which involved the President's primary legislative accomplishment, and which were vigorously debate (even if unedifyingly enacted) -- it would be a bad thing -- not for him, or his "legacy", and not even just for the Court itself -- for the Court to strike down the mandate by a 5-4 vote, on a theory that is, even if sound, certainly debatable among reasonable and informed people. And so, having come to believe this -- having changed his mind -- he took the "out" that the "it's permissible to regard this as a tax" argument offered. It's not as if (contra, e.g., Roe) he put a bad policy beyond the reach of correction, or voted to remove a deeply contested and inescapably moral question from the political process and to constitutionally entrench what many regard as the wrong answer to that question; to the extent he constitutionalized anything, it would seem to be a pretty hard-core Madisonian approach to the Commerce Clause, the Necessary and Proper Clause, and the Spending Power.
And, of course, he wrote Hosanna-Tabor. Yay, Chief!
Thursday, June 28, 2012
The ACA cases, conditional spending, and coercion
I'm not (nearly) as far along as the other Rick is in figuring out what I think of today's ACA cases. I'm glad my friend and teacher Akhil Amar will be okay, and -- unlike Ethan -- I'm inclined to think the Chief did what he did because he thinks, all things considered, it's a pretty-much-right way to go, consistent with his Lopez-esque discussion, early in the opinion, about enumerated powers, federalism, and judicial review. I also still have the view that the efforts, during the lead-up to today's decisions, to anticipatorily establish that a ruling against the Act would be illegitimate, etc., were lame.
Once upon a time, I had a strong interest, and maybe even something approaching expertise, in the conditional spending / regulation-by-contract / South Dakota v. Dole business, and its place in the so-called "New Federalism" (Read this, please). And so, I'm very interested in the question whether language like this, in the Chief's opinion, will have any Congress-disciplining or judge-emboldening effects: "Respecting this limitation [on conditional spending] is critical to ensuringthat Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system." And, later, he connects the Dole / conditional-spending doctrine (if that's what it is) with the Printz and New York "commandeering" themes.
Wednesday, June 27, 2012
"Just and Unjust Peace"
I just received my copy of my friend and colleague (in Political Science) Dan Philpott's new book, Just and Unjust Peace. I think this book will be of interest to a broad range of people -- not only international-relations and transitional-justice folks -- including criminal-law scholars engaged with punishment-theory and restorative-justice questions. Here is the O.U.P. blurb:
In the wake of massive injustice, how can justice be achieved and peace restored? Is it possible to find a universal standard that will work for people of diverse and often conflicting religious, cultural, and philosophical backgrounds?
In Just and Unjust Peace, Daniel Philpott offers an innovative and hopeful response to these questions. He challenges the approach to peace-building that dominates the United Nations, western governments, and the human rights community. While he shares their commitments to human rights and democracy, Philpott argues that these values alone cannot redress the wounds caused by war, genocide, and dictatorship. Both justice and the effective restoration of political order call for a more holistic, restorative approach. Philpott answers that call by proposing a form of political reconciliation that is deeply rooted in three religious traditions--Christianity, Islam, and Judaism--as well as the restorative justice movement. These traditions offer the fullest expressions of the core concepts of justice, mercy, and peace. By adapting these ancient concepts to modern constitutional democracy and international norms, Philpott crafts an ethic that has widespread appeal and offers real hope for the restoration of justice in fractured communities. . . .
I also really liked this bit, from The New Republic: "Just and Unjust Peace is a book of optimism, of hope, of insistently seeing the glass as half full. Humane but not fatuous or sappy, it is the exit ramp off Apocalypse Highway." Nice.
Happy 10th birthday to Zelman v. Simmons-Harris
I know that the whole world is focused on the upcoming Affordable Care Act decisions, but, ten years ago today, the Supreme Court decided -- the Court's opinion was authored by Chief Justice Rehnquist -- Zelman v. Simmons-Harris, which upheld the Cleveland school-choice program and, in my view, correctly said that the First Amendment does not disable governments from experimenting meaningfully (i.e., in a way that includes religious schools) with "vouchers", tax credits, scholarships, etc. For more, see my "The Right Questions about School Choice: Education, Religious Freedom, and the Common Good" (here).
Although the progress has been slow, and the political "headwinds" are still strong, my sense is that various states (including my own Indiana) are starting to try the kinds of programs and policies that Zelman allowed. More, please.
Monday, June 25, 2012
Religious Freedom and the Nondiscrimination Norm
Returning to a Prawfsblawg hobby-horse of mine . . . here's a paper of mine, finally in shape for SSRN posting, from a really fun conference (more here and here) that Austin Sarat and Paul Horwitz organized down at Alabama last year. And, here's the first bit of the abstract:
“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may
regulate or discourage it even when it is. Some wrongs are beyond the
authorized reach of government policy; some are too difficult or costly to
identify, let alone regulate; others are none of the government’s business.
When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited
powers to do so. To label a decision or action “discrimination” is simply to
note that one factor or another was or will be taken into account in the course
of a decision; it is to invite, but not at all to answer, the questions whether
that decision or action was or would be wrong, and whether the public authority
may or should forbid or discourage it.
Tuesday, June 19, 2012
"Failing Law Schools": Two Quick Thoughts
Like many others, I just finished reading Brian Tamanaha's Failing Law Schools. I'm not sure I "enjoyed" it -- it's sobering, indicting, discomfiting stuff -- but I respect and admire it, and know that I'll be thinking a lot about it, and recommending it to others. Two quick thoughts:
First, a point that Brian emphasizes several times is that we are seeing, at the same time, (i) a difficult job-market for law-school graduates, most of whom are carrying large debt-loads, which are made possible to a large extent by the availability of a lot of student-loan funding, and (ii) a situation where poor people regularly lack legal services in contexts where those services, most of us would think, are needed.
This point raised, for me, the question whether, as a policy matter, we (that is, the larger community, not law professors) would be better off if a substantial portion of the public funds that are currently (as Brian tells it) being funneled, via loan-receiving students, from taxpayers to law schools were instead re-tasked to subsidizing legal services for the poor (that is, if the money was moved from the production of lawyers to the delivery of legal services)? I realize, of course, that this is not in principle an either-or, that there are political barriers to increasing funding for such services, etc. "Access" is in play, it seems to me, under both options, i.e., "access" for would-be law students, or "access" for would-be low-income clients), but after reading Brian's book, I was not sure that the former is actually being very well served by current lending policies (because tuition simply goes up to capture the available loan-funding and because the schools don't have enough incentive to worry about whether students will be able to pay back the debts they are incurring).
Second, it appears that a few -- but only a few -- law schools really can and could do what they want -- or, what they think is really right -- without worrying about U.S. News, the ABA, or the AALS will "say." (If U.S. News decided to rank Harvard at #15, I assume it would hurt U.S. News more than Harvard.) So, after reading Failing Law Schools, what big steps could, or should, the faculty and administration at these schools do? What could they do to lead, that might have ripple / cascade effects? Or, do even these schools have to simply wait, either for the cliff or for the regulators and rankers to demand changes?
Tuesday, May 22, 2012
"Neutrality and the Good of Religious Freedom: An Appreciative Response to Prof. Koppelman"
A little while ago, Bob Cochran and the crew at Pepperdine hosted a great conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?” (Here, here, and here are some earlier posts, from the "Mirror of Justice" blog, on the conference.) I was honored to be asked to respond to Prof. Koppelman's invited lecture (which is based on his forthcoming book, Defending American Religious Neutrality), but the festering miasma of evil that is contemporary air travel delayed my arrival so that I was too late to share my response with the conference. So, thanks to SSRN, several months later, here it is:
This paper is a short response to an address, “And I Don’t Care What It Is: Religious Neutrality in American Law,” delivered by Prof. Andrew Koppelman at a conference, “The Competing Claims of Law and Religion: Who Should Influence Whom?”, which was held at Pepperdine University in February of 2012. In this response, it is suggested – among other things – that “American religious neutrality” is, as Koppelman argues, “coherent and attractive” because and to the extent that it is not neutral with respect to the goal and good of religious freedom.
Religious freedom, in the American tradition, is not what results from the operationalization in law of hostility toward religion. It is not (only) what results from a program of conflict-avoidance or division-dampening. It is not merely the product of those compromises that were necessary to secure the ratification of the original Constitution. It is, instead, a valuable and necessary feature of any attractive legal regime, because it reflects, promotes, and helps to constitute human flourishing. So, and again, the state should remain “neutral” with respect to most religious questions – primarily because the resolution of such questions is outside the jurisdiction, and not just the competence, of civil authorities – but it may and should affirm enthusiastically that religious freedom is a good thing that should be protected and nurtured in law and policy.
Saturday, May 19, 2012
Pithy graduation exhortation
This morning, at the graduation-day prayer service organized by the Notre Dame Law School Class of 2012, one of the readings was from Micah: "[D]o justice and  love goodness, and to walk humbly with your God."
Best wishes and congratulations to all the new law-school graduates!
Tuesday, April 24, 2012
Skyscrapers in D.C.
When I was a kid, in Anchorage, I was giddy with excitement and flush with pride when we got (what seemed like) two bona fide skyscrapers -- big glass boxes, each more than 20 (!!) stories high.
When arcane baseball stats just weren't enough, I would memorize lists of "the ___ tallest buildings in _____," and I once did a school presentation of some kind on Philadelphia's (then) practice of not allowing buildings taller than the William Penn statue. Goofy, I know . . .
Anyway, all this might explain why this piece, in Slate, caught my eye. If the (non-church) skyscraper is a kind of American invention -- a hallmark of great cities like Chicago and New York -- then Washington, D.C., is kind of an American anomaly, no? I guess that, despite my youthful skyscraper geekery, I have always liked the way D.C. looks (and not because I have any ideologically motivated desire to somehow elevate government buildings over commercial ones). But, the piece makes me wonder if I'm wrong. If D.C.'s somewhat "parisian" look increases businesses' rents and tourists' hotel expenses, is it worth it? How would we know?
Friday, March 30, 2012
"In the Whirlwind"
I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind. I'm really looking forward to it. Here's some blurb-age:
God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
On teaching Criminal Law again . . . and getting stoked
It's probably not on par with finding one's long-lost "rad-ass hoodie" (warning: This Onion News Network clip has some bad words), but pushing my way back into the rotation for teaching first-year Criminal Law next year has me stoked. Although I don't write in the area, I have always found teaching the subject to students in their first year (at Notre Dame, their first semester) of law school incredibly rewarding and fun.
Anyway, here's a bleg for Prawfs readers and bloggers: I would welcome thoughts and suggestions for changing, or even re-working, the traditional first-year Criminal Law class, based on your experiences in recent years, involving new books, teaching cases, outside readings and materials, films and clips, subjects, etc. (An example: Because I have used Joshua Dressler's book, I've always spent a lot of time on necessity, on justification and excuse, etc., and current events certainly put these questions at center-stage. Another: I worry that I have not "done enough," in my class, to get students thinking about "criminology" and "criminal justice," as opposed to "criminal law." What do you all do?)
Thursday, March 29, 2012
The mandate, conditioning the environment, and "The Myth of Judicial Activism"
As I read today's (to me) depressingly predictable op-ed by E.J. Dionne, in which -- in what seems to me a pretty obvious attempt to "condition the environment," and pre-fab some outrage, by invoking Bush v. Gore, Citizens United, etc. -- he anticipatorily accuses the Court's "conservatives" of "activism" for seeming to consider invalidating the insurance-mandate aspect of the Affordable Care Act, I was reminded of Kim Roosevelt's book, from a few years ago, The Myth of Judicial Activism. (Kim and I discussed his book, and the "activism" charge, here, at the PENNumbra site.)
I genuinely don't know what the Court will do with the mandate, and I'm not sure what I think the right answer is to the question, "Does the Constitution, correctly understood, authorize Congress to enact it?" (I do think the question is interesting and important and hard, and I am sure that Dahlia Lithwick is wrong in thinking that the question's answer is obvious and that only low politics and hackery could explain a Court ruling that the answer is "no.") I also think that not many people -- not E.J. Dionne and not most other critics of the Court's "conservatives" -- really oppose "judicial activism," and so I can only sigh at his concluding charge that "a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws. " (Is Dionne a big fan of stricter standing doctrines? Did he lament Boudmediene, or Roper?)
I know there are some principled and consistent Thayerians out there -- some write for this blog -- but they do not seem thick on the ground. It seems to me that what most of us (for better or worse) want and praise is a Court that strikes down government actions we think are bad and upholds ones that we think are good; that what we lawyers probably should want and praise is a Court that invalidates laws that are actually (and pretty clearly) unconstitutional (good or bad) and reasonably applies the rest (good or bad); and that complaints about "activism" are more often political-rhetoric moves than the conclusions of arguments. If the Constitution gives Congress the power to impose the mandate, then of course the Justices should "defer to those elected to make [that] law"; but if it (pretty clearly) doesn't, then they should not. No?
Friday, March 23, 2012
Religious Freedom and (and in) Institutions
Here is a short chapter, called "Religious Freedom and (and in) Institutions," which I contributed to a just-published volume, Challenges to Religious Liberty in the Twenty-First Century" (Cambridge 2012), edited by my colleague Gerard Bradley:
This paper is a contribution to a volume of essays dealing with a range of contemporary challenges – challenges posed by new questions, and by new forces -- to religious liberty. It considers the role that religious communities, groups, and associations play – and the role that they should they play – in our thinking and conversations about religious freedom and church-state relations. And, its primary claim is that the values and goods that the First Amendment’s Religion Clauses embody and protect are well served by a civil-society landscape that is thick with churches (and mediating institutions and associations of all kinds) and by legal rules that reflect their importance. These institutions contribute in distinctive ways to the reality of religious freedom under law.
Much more interesting is the fact that Kent Greenawalt and Steven Smith also contributed chapters. Check it out!