Some thoughts on Greenawalt, judicial review, and underenforcement

As Paul was kind enough to mention, Notre Dame Law School hosted a roundtable conference last week dedicated to Volume II of Kent Greenawalt's "Religion and the Constitution."  (I really like this format, by the way:  No need to worry about having an audience for the various panels -- especially the dreaded last one -- and less of a problem of presentations passing like ships in the night.)

Anyway, my own contribution (we all did short, 3-5 page "admission ticket" reflections on the book) was inspired (I think) by a mix of Thayer, Waldron, Fallon, Berman, and others.  In a nutshell, my reaction to "Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject" was, among other things, to wonder if we shouldn't just give up on judicial enforcement of the no-establishment norm, outside the heartland "coercion" cases (which, I would think, Free Exercise can take care of anyway) and entanglement and church-autonomy disputes.  (ed.  Who says that's the "heartland"?  rg:  Me, I guess.)  We could come up with some clear rules -- going, in other words, in the opposite direction Kent takes us -- and even err on the side, perhaps, of over-enforcement in this heartland, where individual and institutional liberties are clearly at stake, and then leave -- as, I suppose, Noah Feldman has suggested -- most of the endorsement and even secular-purpose fights to the political process.

This admittedly tentative suggestion -- I reserve the right to retreat, sniffling, in defeat -- is prompted not so much by a strong view that only the endorsement and secular-purpose fights don't implicate non-establishment values and traditions, but instead by a sense that, in a world where we cannot all be Greenawalts, why should judges bother trying to enforce the full extent of the Clause's meaning -- or, more pointedly, why should we let them decide?  Not an original thought, of course, but it's the one I was turning over most during the conference.  See, by the way, Jeremy Waldron's "Core of the Case Against Judicial Review", here.