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Monday, October 13, 2008
On Greenawalt on Religion
I'm back from a weekend jaunt to South Bend -- the "gateway to Mishawaka," as Rick Garnett once described it to me -- and I'm happy to say that the Dome is doing as well as ever and that the Law School is flourishing.
The occasion was a roundtable discussion on Kent Greenawalt's Religion and the Constitution: Establishment and Fairness, the second in his comprehensive and magisterial two-volume "treatise" on law and religion. The discussants included Larry Alexander and Steve Smith of San Diego, Steve Smith of Virginia, Robert Audi, Kathleen Brady, John Finnis, Frederick Mark Gedicks, Cathleen Kaveny, Andrew Koppelman, Mark Noll, Robert Rodes, Winnifred Fallers Sullivan, Nelson Tebbe, Rick Garnett (the host), and the author himself.
The discussion itself was a treat. At the risk of boiling down a day's discussion, everyone agreed about the magnitude of Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject. The broader question was whether Kent's promise to build the Religion Clauses "from the bottom up" can be accomplished in the absence of a stronger overarching and organizing theory that allows one to reconcile the many competing values that contend for inclusion in thinking about the Religion Clauses.
I can think of better things for my confidence than being the junior member of a very distinguished conference, but I can't think of much that would have been more enjoyable and educational. Thanks, Rick and everyone else, for a wonderful conference and a great education.
Posted by Paul Horwitz on October 13, 2008 at 12:00 PM in Paul Horwitz | Permalink
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Comments
Rick, you were a great host. In answer to your question, I came away from the conference impressed by Kent's own justification for his approach, and struck by how many potential meanings "bottom-up" has in the context of jurisprudence. (Indeed, I am now thinking an article on what bottom-up reasoning is and whether it is possible would be a fun project.) But I'm not sure my bottom line changed. To the extent that you're addressing courts, lawyers, or law and religion scholars, I'm not sure it's enough to identify a variety of "Religion Clause values" without also making a stronger effort to come up with fairly clear guides of some sort to their application, and to offer a general justification for those guides. In that sense, yes, I think you need a "theory" to do bottom-up work. As my short contribution to the roundtable noted, it's sort of like reasoning from analogy: on a day to day basis we can all do it as lawyers, but at the end of the day it requires some sense of why some analogies are pertinent and others aren't. Whether that sense is articulated or not, it's a theory, and the practice is impossible without it.
Posted by: Paul Horwitz | Oct 15, 2008 12:14:11 PM
Thanks, Paul. I agree -- it was a really good time. So, what do you think? *Can* "Kent's promise to build the Religion Clauses 'from the bottom up' . . . be accomplished in the absence of a stronger overarching and organizing theory that allows one to reconcile the many competing values that contend for inclusion in thinking about the Religion Clauses"?
Posted by: Rick Garnett | Oct 14, 2008 9:23:39 AM
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