Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould, lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,” generates “an often contrived and opaque veil of historical inquiry” that provides “an ideal smokescreen behind which judges may pursue their personal, moral, political, or economic goals with relative impunity.” Nontextual theories, for their part, “permit selective manipulation of constitutional doctrine in order to advance narrow political goals” and allow judges “to insert their own values in place of democratically sanctioned choices.” Modern constitutional theory, proclaims Professor Redish, is therefore caught between the Scylla of “an often fruitless and strategically manipulative straightjacket of originalism’s supposedly rigid historical inquiry on the one hand”7 and the Charybdis of “the linguistic chaos and epistemological arrogance of nontextualist inquiry, on the other.” As an alternative, Professor Redish proposes a methodology that uses the contemporary linguistic meaning of constitutional provisions to set outer boundaries for adjudication, supplemented by “use of principled normative inquiry, informed and controlled by a transparent, candid explication of a constitutional provision’s underlying meaning based on the intellectual normative framework chosen to be employed by the jurist.”
How persistent are cultural traits? Using data on anti-Semitism in Germany, we find local continuity over 600 years. Jews were often blamed when the Black Death killed at least a third of Europe’s population during 1348–50. We use plague-era pogroms as an indicator for medieval anti-Semitism. They reliably predict violence against Jews in the 1920s, votes for the Nazi Party, deportations after 1933, attacks on synagogues, and letters to Der Stürmer. We also identify areas where persistence was lower: cities with high levels of trade or immigration. Finally, we show that our results are not driven by political extremism or by different attitudes toward violence.
The U.S. federal government responded to the financial crisis and recession that began in 2007–08 with unprecedented fiscal stimulus. Passed in February of 2009, the American Recovery and Reinvestment Act (ARRA) came with a price tag of $831 billion. Yet the economy has not returned to a path of robust economic growth and unemployment has stubbornly remained high; only in September of 2012 did it dip (barely) below 8 percent. This has not stopped the Obama administration from pushing for further fiscal stimulus.
Whether or not fiscal spending stimulus is effective hinges critically on the size of the spending multiplier, which is dependent on several factors. In particular, if individuals anticipate the future tax liabilities associated with deficit spending and/or are “crowded out” by the deficit spending, then the multiplier is likely to be less than one; that is, each dollar of stimulus increases total spending in the economy by less than one dollar. Ultimately, whether the government spending multiplier is less than or greater than one is an empirical question.
While no one seriously debates the long-run costs associated with exploding public debt, the evidence suggesting significant short-run benefits of stimulus spending is weak. Studies suggesting that stimulus spending is effective assume that current economic activity does not affect fiscal policy. This assumption is questionable and, most important, the studies’ results are very sensitive to it.
Alternatively, studies using a narrative approach based on historical and contemporary accounts of U.S. military buildups to identify government spending shocks find that the short-run effects of stimulus spending are small. These latter studies are grounded in historical reality and are thus more compelling.
“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition (and who thus had the same belief about the nature of the protest) disagreed sharply on key “facts” – including whether the protesters obstructed and threatened pedestrians. Subjects also disagreed sharply with those who shared their cultural outlooks but who were assigned to the opposing experimental condition (and hence had a different belief about the nature of the protest). These results supported the study hypotheses about how cultural cognition would affect perceptions pertinent to the “speech”-“conduct” distinction. We discuss the significance of the results for constitutional law and liberal principles of self-governance generally.
The strengths and weaknesses of federalism have been debated for centuries. But one major possible advantage of building decentralization and limited government into a constitution has been largely ignored in the debate so far: its potential for reducing the costs of widespread political ignorance. The argument of this paper is simple, but has potentially important implications: Constitutional federalism enables citizens to “vote with their feet,” and foot voters have much stronger incentives to make well-informed decisions than more conventional ballot box voters. The informational advantage of foot voting over ballot box voting suggests that decentralized federalism can increase citizen welfare and democratic accountability relative to policymaking in a centralized unitary state.
Ballot box voters have strong incentives to be “rationally ignorant” about the candidates and policies they vote on because the chance that any one vote will have a decisive impact on an electoral outcome is vanishingly small. For the same reason, they also have little or no incentive to logically evaluate the information they do know. By contrast, “foot voters” choosing a jurisdiction in which to reside have much stronger incentives to acquire information and use it rationally; the decisions they make are individually decisive.
Political ignorance is far from the only factor that needs to be considered in determining the degree of centralization in political systems. But it deserves greater attention than it has received so far.
This paper, which was first prepared for a symposium on originalist constitutional theory hosted by the Public Law and Legal Philosophy Research Group at the University of Western Ontario, Faculty of Law in 2008, examines the standard reading of the reasons for judgment of both the Supreme Court of Canada (as originalist) and the Privy Council (as “living tree”), and asks whether contemporary scholarship in constitutional interpretation can provide fresh insight into these two sets of reasons. It is hoped that the analysis will illuminate both our understanding of the Persons Case, and our understanding of the various points of agreement and disagreement among originalist and living constitutional interpretation. It should help to help narrow and sharpen our focus on those aspects of constitutional interpretation where there is genuine incompatability among the competing schools.
I argue that the theories of Randy Barnett, Jack Balkin, and Lawrence Solum represent a fundamental rejection of what originalism has been through much of its history and what it ought to be if it is to make a meaningful contribution to legal thought. The fact that originalists have by and large welcomed these three theorists into the originalism tent is therefore deeply troubling because the meaning of the word “originalism” has been stretched beyond recognition. There is now a crisis of indeterminacy within originalist scholarship. In this essay, I will attempt to recover the core concepts that comprise a sound originalist theory in order to reestablish the perimeter of originalism. I will argue that Barnett, Balkin, and Solum constitute a separate scholarly movement, what I call “post-originalism.” The paper has obvious implications for originalist theory, but it is equally important for nonoriginalists who require a clear conception of what originalism is in order to meaningfully engage its proponents in scholarly discourse. At its heart, then, the paper is an effort to reintroduce theoretical boundaries so that scholars do not talk past one another and so that originalism can continue to have influence in American law and politics.
The U.S. Supreme Court and other courts, aided by the media in suppressing critical information about case facts and case law, have all but abolished capital punishment, turning what's left into a costly and agonizing farce. While pretending to superlative morality, dishonesty, especially half-truth, is central to their cause. An egregious example was Roger Coleman, widely but with knowing falsity portrayed as a choir boy executed because heartless judges impatiently refused to hear evidence of his innocence. Going further, in myriad cases, death sentences are reversed or banned when guilt is not even disputed. This is achieved by focusing upon the alleged plight of brutal murderers, while callously withholding compassion, information and even thought about the massive suffering they inflict upon innocent law-abiding victims.
Yet, the public still supports the death penalty with little understanding of the true reasons why it is so rarely enforced. Abolition would fail if the people were well informed of case facts and arrogantly imposed disingenuous legal absurdities, not the least of which is a Supreme Court majority's ipse dixit that the Constitution gives them the right and power to decide if democratically determined criminal penalties are unacceptable and to reject them. Other absurdities, wholly unrelated to innocence, concocted by judges who aver lack of confidence in decent jurors and the superiority of their own independent judgment include:
A murderer should have a serious chance to succeed with the argument that he would not pose a future threat to society if sentenced to life without parole because he was only dangerous to old ladies. A man can be mentally retarded, yet carefully plan rape and murder calculated to avoid return to prison. Because it is indecent and uncivilized to expect a nearly 18-year-old person to appreciate the wrongfulness of premeditated torture-murder and joyfully boasting about it, he must be allowed to attain a mature understanding of his own humanity. A murderer under 18 is a juvenile, a boy, but a victim of 16 is an adult woman. When a 300-pound man rapes an 8-year-old girl, requiring surgery, this is inadequate moral depravity; so his dignity must be respected to allow him to understand the enormity of his offense, one not enormous enough to justify execution. It is not clear that a rapist really intends to kill a victim he stabs 53 times, including 18 in the genital area. One cannot be expected to foresee new murders when he merely smuggles a gun-filled chest into a prison to help two convicted murderers escape, one serving a life sentence for murdering a guard during a prior escape. In aggregate, the depraved should be rewarded with reduced punishment because their numbers have increased. For individuals, increased depravity qualifies one for a court-created purported constitutional right to commit more without punishment. Rape under threat of death, three weeks after giving birth, is not harmful. Trial judges must mislead juries to save the lives of convicted murderers.
All this is the result of unelected justices imposing, less than honestly, their own unpopular moral values upon the citizenry, raising doubt whether the Supreme Court merits continued respect and legitimacy. This is not a matter solely for legal experts. The death penalty debate should confront the public with critical facts and questions to decide if foes deserve the high ground they claim in what they deem a moral issue.
Political theorists have long debated whether liberal democratic norms of public political debate should constrain political arguments grounded in religious beliefs or similar conscientious commitments. In this Article, Professor Magarian contends that normative insights from free speech theory have salience for this controversy and should ultimately lead us to reject any normative constraint on religious argument. On the restrictive side of the debate stand prominent liberal theorists, led by John Rawls, who maintain that arguments grounded in religion and other comprehensive commitments threaten liberal democracy by offering illegitimate grounds for government action and destabilizing democratic politics. On the permissive side stand leading advocates for religious liberty, who deny that religious arguments pose any threat to liberal democracy and insist that normative constraints on religious argument deny religious believers’ political autonomy. Both sides proceed from their premises about whether religious argument threatens liberal democracy to their conclusions about whether norms of public political debate should constrain religious argument. Professor Magarian agrees with the restrictive premise that religious argument poses a meaningful threat to liberal democracy, and he accordingly rejects the logic of the permissive position. He finds deeper fault, however, with the restrictive theorists’ move from consciousness of danger to advocacy of normative
constraint. Drawing upon two prominent free speech controversies – the debates over First Amendment protection for Communist advocacy and the First Amendment’s proper role in balancing values of political dynamism and political stability – Professor Magarian derives normative lessons that counsel against constraints on religious argument. Based on the Communist speech controversy, he contends that even political advocacy that existentially threatens liberal democracy adds distinctive value to liberal democratic political discourse. Based on the stability-dynamism controversy, he contends that political conditions in the contemporary United States and the nature of religious advocacy make religious argument, at the margin, more beneficial than threatening to our political culture. As a corollary to his rejection of normative constraints on religious argument, Professor Magarian contends that our norms of public political debate should also freely permit substantive political criticism of religious arguments and doctrines.
This paper is concerned with the work of Leo Strauss, specifically his two essays on liberal education. Strauss is often claimed to be a founding thinker of neoconservatism and while much scholarship has been produced analyzing his work, very little discusses his essays on liberal education and how these fit within his larger project. This essay begins to fill that void by outlining the two essays and discussing their relation to his projects of critiquing both modernity and Western liberal democracy. The essay further draws out some tentative connections between these essays of Strauss’s and the larger landscape of neoconservative thinkers currently in favor within the United States government.
This essay explains the principles of the American founding. It shows how those principles gave rise to constitutional government and a free society, and how freedom was extended to all Americans after the Civil War. It will also show how the Founders’ principles were opposed by a new theory that arose in the Progressive Era; how that new theory finally came to dominate American politics in the 1960s; and how that theory has changed our government and our society, and threatens our liberty.
Compassionate is not the first word that comes to mind when reflecting on the Republican party before the presidency of George W. Bush. Compassion was seen by most conservatives as a private virtue, insufferably woolly-headed as a guide to public action. To be conservative was to oppose the goals of liberalism — to point out the limits of government in narrowing inequality, to remind the country of the necessity of constitutional bounds, and to show that, after decades of expansion, the welfare state had already pushed well past them, with disastrous results. Conservatives held out hope that this burgeoning modern welfare state would collapse of its own weight, or that another dose of electoral support would give conservative Republicans the power to reverse its trajectory.
Higher education has been near the center of the American culture wars since the 1950s. However, since the terrorist attacks on Sept. 11, 2001, the attacks on the academy have escalated well beyond a vigorous back-and-forth about the curriculum and the “canon” into a full-scale assault on the credibility of U.S. colleges and universities. Led by David Horowitz and institutions like the American Council of Trustees and Alumni, conservative culture warriors have attempted to take advantage of a period of general cultural malaise in order to shape higher education in their own ideological image.
Freedom of expression is looking less and less like a settled issue. Challenges to it have lately arisen from the right, from the left, from Muslim perspectives, and even in the name of protecting children online. These challenges seem to share an
underlying concern, namely that we must balance free expression against the psychic hurt that some expressions will provoke. Often these critiques are couched in language that draws or appears to draw, on the law and economics movement. Yet the cost-benefit analyses advanced to support restrictions on expression are incomplete, subjective, and self-contradictory.
Flemming Rose’s decision to run twelve cartoons of the Prophet Mohammed triggered an international controversy. In defending his decision, Rose relies on two arguments: (1) the cartoons were a necessary response to a growing atmosphere of self-censorship imposed by a totalitarian radical Islam and (2) the cartoons—far from being insulting—were actually a way to include Danish Muslims into a national “tradition of satire.” On examination both arguments are problematic. The fear of totalitarian censorship—if even it applies to Muslims—fits poorly with an American free speech discourse that counsels patience, not action in the face of totalitarian threats. Rose’s reference to a “tradition of satire” is rooted in the Danish practices of social informality (hygge) and teasing, But this argument is undercut by Rose’s own anti-immigrant rhetoric as well as the larger anti-immigrant mood in Denmark and Europe.
In recent times, much has been written about faith-based politics in the United States, and religious activists are typically at the center of such stories. Activists are literally where the action is in politics—the people who write checks, stuff envelopes, knock on doors, blog, and demonstrate on behalf of causes deeply rooted in their religious values.
Conservative religious activists, sometimes referred to as the “religious right” or the “Christian conservative movement,” are better known. They have become a staple of national politics in the last three decades, opposing same-sex marriage and abortion, and seeking to protect traditional moral values. These activists represent a long history of political action, dating back to the prohibition and anti-evolution movements in the early 20th Century.
More recently, progressive religious activists, sometimes referred to as the “religious left” or the “progressive religious movement,” have received renewed attention. They have become more visible and organized in the last several years, working for social justice and peace, and seeking to protect the environment. These activists also represent a long history of faith-based political activism, including playing integral roles in the civil rights and labor movements.
This report provides a unique look at contemporary progressive and conservative religious activists in the United States based on a 2009 mail survey of some 3,000 activists (for details on survey methodology, see Appendix A). The report covers the religious and demographic characteristics of these activists as well as issue priorities, issue positions, theological orientations, and level and type of political engagement. The first part of the report compares progressive and conservative activists to each other, and then turns to more in-depth profiles of each group.
With First Amendment freedoms, the courts act as guardians, protectors from whatever social and cultural attitudes might threaten those freedoms. In the area of religion, however, the courts have not been so steadfast. According to a recent
study completed by legal scholars from the University of Virginia, political attitudes and conflicts have shaped the Supreme Court’s Establishment Clause opinions more than have original intent or constitutional precedent. Indeed, liberal justices find Establishment violations more often and readily than do any other justices.
Overall, the Court has been far more hospitable to free speech cases than to cases involving religious expression or exercise. In the speech area, the courts have taken a somewhat monolithic approach: protecting the speech no matter what the argument for censorship is. Everything from sexually explicit speech to hateful insults to flag-burning to offensive art to profanity is protected, all under the theory that the marketplace of ideas requires the most speech possible. Almost never do the courts look into what discomfort or antagonism the speech might cause, nor into how valuable the speech is for a democratic society. And yet, in Establishment Clause cases, judges justify their restricting of religious expression on any number of grounds, many of which relate to perceptions of the social divisiveness or alienation that religion might cause. But if fear of social strife were sufficient to counteract expressional or associational freedoms, then clearly racial speech and affirmative action programs could be censored or prohibited. As Alan Schwarz has written, “if avoidance of strife were an independent constitutional value, no legislation could be adopted on any subject which aroused strong and divided feelings.”
We moderns face a dilemma. On the one hand stands the grandeur of enlightenment rationalism, claiming that humans are capable of achieving certain knowledge of universal truths by virtue of the rational minds with which we are endowed. On the other hand stand the so-called postmodernists, who deny any form of epistemological foundationalism and hold that truth is nothing but the construction of a particular society; thus, all truth claims are necessarily local in nature, and aspirations to universal, objective truth represent mistakes at best and intellectual imperialism at worst. In this essay, I want to explore the nature of this dilemma and suggest a third alternative, an alternative that does not succumb to the aspiration of a God’s eye-view, as does the enlightenment rationalist, or retreat into the misshapen hovel of relativism with its attendant subjectivism, as do the post-modernists. In essence, the alternative I will suggest overcomes the problem of modernity by pushing beyond it while at the same time reaching back to recover a pre-modern insight that was jettisoned by those committed to the modern project. Two thinkers who represent the temporal nodes of this third way are the much neglected twentieth-century thinker Michael Polanyi and the great fourth-century father St. Augustine.
Pivotal authoritarian regimes have adapted and modernized their repressive methods and are undermining democracy in updated, sophisticated, and well funded ways. The result is a disruptive and serious new challenge to the emergence of an international system based on the rule of law, human rights, and open expression. Freedom House, Radio Free Europe/Radio Liberty and Radio Free Asia convened experts for a series of workshops over the course of 2008 and 2009 to analyze the ways in which five influential countries—China, Iran, Pakistan, Russia, and Venezuela—are impeding democratic development both within and beyond their borders. These countries were selected because of their fundamental geopolitical importance. They are integrated into broader economic, political and security networks and exert influence on international policy at the regional and global levels.
Since the heyday of the Enlightenment, there have been concerted efforts in many parts of the West to get religion out of politics, presumably on the grounds that religion is bad for politics. Whatever the merits of these efforts, and to whatever extent they may be justifiable, what has not, perhaps, been so widely considered is whether or not it might also be a good idea to separate religion from politics because politics is bad for religion! I argue that politics, understood as the institution and operation of the state, is a deeply flawed project and hence that religion’s association with it is necessarily damaging to religion. The time for divorce has finally arrived.
In baseball, fans of different teams can agree on general issues concerning rules, umpiring, and performance evaluation because such matters are separable from support for a specific team. In academia, however, we find that rules and standards for performance are not separable from support for specific beliefs. Ideological sensibilities and commitments in academia tend to be bound up with notions of the whole academic enterprise. Thus, one’s positions on how performance should be umpired or evaluated and one’s support for a certain “team” are not separable.
We think that discussion of ideology in academia is itself bound to be ideological and that good scholarship calls on us to declare that our principal motivation for the present investigation is our belief that, by and large, professors in the humanities and social sciences are weak in certain sensibilities that we ourselves hold. In particular, classical liberalism has few adherents among academics. In policy terms, classical liberalism favors domestic reform generally in the direction of significantly decontrolling markets and personal choices, reducing the welfare state, and depoliticizing society. A further policy feature of classical liberalism, in our view, is a strong disposition against military entanglements abroad. The current label closest to classical liberal is libertarian, although classical-liberal beliefs are properly understood as somewhat looser and more pragmatic; we also prefer the label classical liberal because it reminds us of liberalism’s historical arc.
When the New Left emerged in the 1960s, something else was born that would mark American elites for decades thereafter: the notion that social-democratic Western Europe was far superior to the capitalist United States. Pity the poor American professor whose every junket to a European academic conference was marred by his continental colleagues’ sneering over cocktails about his nation’s shame du jour—Vietnam, Watergate, Iraq—or about American racism, capital punishment, or health care. For much of the American Left, Western Europe was nothing less than an abstract symbol of progressive utopia.
Originalism is often thought, by both its advocates and its critics, to be inconsistent with precedent. But if originalism cannot employ precedent, it would appear to be a seriously defective theory because it would ignore precedent even when doing so has enormous costs.
This Article challenges this common view of originalism and argues that nothing in the Constitution forbids judges from following precedent. Rather, the Constitution allows for precedent in two ways. First, the Constitution as a matter of judicial power incorporates a minimal notion of precedent. While this minimal incorporation has important theoretical implications—because it indicates a “no precedent position” is unconstitutional—it is so minimal that it does not have significant practical consequences for current judicial disputes about precedent. Second, the Constitution treats precedent as a matter of federal common law that it is revisable by congressional statute. Thus, the courts in the first instance and Congress ultimately
have significant discretion over what precedent rules should be adopted. The Constitution thereby allows either extremely weak or extremely strong precedent.
Originalism—the idea that the Constitution should be interpreted according to its original meaning—has engendered intense debate in modern times. There are those who believe that originalism is the only true method by which to interpret the Constitution; and those who believe that it a spurious philosophy that distorts constitutional interpretation. In 2008, the Supreme Court decided District of Columbia v. Heller, marking the first time that a majority of the Court agreed to an opinion decidedly originalist in its methodology. While Heller may be considered the triumph of originalism, it may in time prove to be its downfall by revealing the failings of originalist philosophy.
The resurgence of the new “originalism” among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called “family resemblance ideas.” This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what “cruel punishment” means linguistically are those choices, X, selected from an array of options, any combination of which bears a family resemblance to each other, had they been X. When generations make these choices to assemble their cruel-punishment “products,” they are making “protocol choices.” The central mistake of the new originalism is that it equates the protocol choices made by the framing generation with the meaning of the words in the constitution that necessitated the protocol election in the first place. This is a language fallacy. The meaning of language is always its use within the language culture, not the election of its cluster protocol. Hence, all that the framing generation ever gives us by way of their specific policy choices are illustrations of constitutional ideas. They do not give us the meaning of those words. Therefore, any generation that implements a legal rule containing a family-resemblance idea can only provide subsequent generations with suggestive guidance on how to carry out the rule. The new generation is always free to construct its own family protocol, so long as what it chooses belongs linguistically to the word’s family-resemblance. What this means is that more than one culture across time can follow the same law differently, with each being obedient to its “original meaning.” Also, unless law specifically says so, it never enacts any generation’s cultural protocol. This is because the purpose of law is to regulate culture, not to sanctify it. Hence, culture is free to evolve and create new protocol that does not violate the grammar of the constitution.
In this Article, we defend an interpretive approach that we call “original methods originalism.” Under this approach, the Constitution should be interpreted using the interpretive methods that the constitutional enactors would have deemed applicable to it. Thus, many of the key questions that arise about constitutional interpretation—such as whether intent or text should be its focus, whether legislative history should be considered, and whether words should be understood statically or dynamically—are answered based on the content of the interpretive rules in place when the Constitution was enacted.
This short essay analyzes the failures of the Bush's administration legal strategy in the war on terror. The many mistakes had common roots. The first was an ideological focus on bolstering executive power and a consequent lack of pragmatic flexibility in choosing tactics that would maximize the chances of gaining public and judicial acceptance of its framework for detention, interrogation and trial of terrorists as well as surveillance of individuals resident in America. The administration repeatedly failed to recognize that reliance on executive authority alone entailed a high risk of defeat at the hands of the Court.
Second, the administration radically underestimated the magnitude of the risk that the Court would curb the President's discretion, because it misunderstood the changed legal environment for litigation in the twenty-first century. Every aspect of American life has been increasingly subject to court made rules. As a result of this trend even discretion in the war on terror would likely be seen through the prism of legalism that applies to domestic criminal law.
The third systematic error was a failure to recognize that all administrations tend to lose power as they age, and wars run a high risk of exacerbating that loss as they become progressively less popular. Of course, the scandals at Abu Ghrab and the more general lack of success in Iraq could not have been predicted. But an administration's legal high command must choose strategies that take account of the worst possible outcomes.
As a result, the administration would have been well advised to take every step to bolster its legal position as early as practicable. It could have secured from Congress framework legislation for detention, military tribunals, surveillance, and even interrogation. Because citizens are generally most supportive of an administration at the beginning of a conflict, the terms of trade of the administration with Congress would have been likely favorable. This strategy would have avoided delays in war crimes trials. Perhaps more importantly, it would have avoided the appearance of lawlessness which has sapped support at home and abroad for the administration's reasonable objectives in its war against terrorists.
Federalism, when it has not been ignored altogether in normative political theory, has typically been analyzed in terms that fail to match the institution as it exists in the world. Federations are made up of provinces that are too few, too large, too rigid, too constitutionally entrenched, and too tied to ethnocultural identity to match theories based on competitive federalism, Tiebout sorting, democratic self-government, or subsidiarity. A relatively neglected tradition in liberal thought, based on a separation of loyalties and identifiable in Montesquieu, Publius, Constant, Tocqueville, and Acton, however, holds more promise. If the purpose of federalism is to compensate for worrisome tendencies toward centralization, then it is desirable that the provinces large enough to have political power, be stable and entrenched, and be able to engender loyalty from their citizens, such as the loyalty felt to ethnoculturally specific provinces. Separation of loyalty theories, and the bulwark theories of which they are a subset, match up with federalism as it exists in the world.
The Institute for Jewish & Community Research’s study of American college faculty offers the reader a unique portrait of today’s academy. It illustrates the existence of a dominant political ideology on campus that encompasses views of American foreign, domestic, and trade policies. The majority of faculty are bound by a set of beliefs that could compromise the core mission of the academy to provide unbiased teaching and scholarship.
“The Political Beliefs and Behavior of College Faculty” is an invaluable addition to the literature about higher education. The authors of this volume assert themselves as defenders of higher education, concerned less with the liberal bias on campus than with the existence of any ideology that diminishes the ability of the university to provide the highest caliber teaching and scholarship.
The authors call for the academy to embrace its own values and tenets. They urge all stakeholders in higher education to ensure that the truest purposes of the university are protected against the paralysis of an entrenched political monoculture.
This monograph is intended for anyone concerned with the future of higher education: students, faculty, parents, trustees, alumni, taxpayers and government. It is the first of three volumes and will be followed by reports on the religious beliefs of college faculty and faculty attitudes about Israel and the Middle East.
Much of the confusion over the original meaning of the Establishment Clause has arisen because courts and commentators have been looking in the wrong places. The true meaning of the Clause can be found in the religion terms of the 1788 Gentleman's Agreement by which the Constitution was ratified in exchange for a promise of early amendment. Additional clues to the meaning of the Clause can be gathered from the state of the pre-existing common law (especially the law that would govern the Constitution's oaths of office) and from contemporaneous usage of the term establishment of religion.
Professor Natelson concludes that the principal purpose of the Establishment Clause was to ensure equal federal treatment of all theists. The historical record is clear, however, that the Clause did not protect atheism or agnosticism. Thus, under the original meaning of the Clause, the federal government, while acting under its express or implied powers, may assist theism in general - so long as the government's treatment of different religions is evenhanded.
The place of religion in the public square has generated great controversy. In essence, the debate centers on one fundamental question: in a religiously pluralistic country with a policy of separation between religion and the state, what place should religion have in a forum in which state action is debated, shaped, and, to some extent, implemented? That is to say, if we accept that the state should not adopt or implement religious positions or policies, to what extent should religious language, concepts or beliefs be used to publicly justify, support or oppose government actions or policies? How do we distinguish between religious advocacy in the public square and state implementation (if that occurs)?
Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive[ly] - and, therefore, unconstitutionally – entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten[t] animating the First Amendment, he proceeded on the assumption that the Constitution authorizes those charged with its interpretation to protect our normal political process from a particular kind of strife and to purge a particular kind of disagreement from politics and public conversations about how best to achieve the common good.
This Article provides a close and critical examination of the argument that observations or predictions of political division along religious lines should supply the content, or inform the interpretation and application, of the Religion Clause. The examination is timely, not only because of the sharp polarization that is said to characterize contemporary politics, but also because of the increasing prominence of this political division argument.
The inquiry and analysis that follow have empirical, doctrinal, and normative components: What, exactly, is religiously based social conflict - or, as the Court put it in Lemon, political . . . divisiveness on religious lines? What, exactly, is the relevance of such conflict to the wisdom, morality, or constitutionality of state action? How plausible, and how normatively attractive, are the political-divisiveness argument and the principle it is intended to vindicate? How well do this argument and this principle cohere with the relevant text, history, traditions, and values? And what does the recent resurfacing of this argument in the Religion Clause context reveal and portend about the state and trajectory of First Amendment theory and doctrine more generally?
Working through these questions, I am mindful of John Courtney Murray's warning that we should cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity, and also of his observations that pluralism [is] the native condition of American society and the unity toward which Americans have aspired is a unity of a limited order. Those who crafted our Constitution believed that both authentic freedom and effective government could be secured through checks and balances, rather than standardization, and by harnessing, rather than homogenizing, the messiness of democracy. It is both misguided and quixotic, then, to employ the First Amendment to smooth out the bumps and divisions that are an unavoidable part of the political life of a diverse and free people.
John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.
In 1639, a group of New England Puritans drafted a constitution affirming their faith in God and their intention to organize a Christian Nation. Delegates from the towns of Windsor, Hartford, and Wethersfield drew up the Fundamental Orders of Connecticut, which made clear that their government rested on divine authority and pursued godly purposes.The opening lines express the framers’ trust in God and their dependence
on his guidance: "Forasmuch as it hath pleased the All-mighty God by the wise disposition of his divyne providence so to Order and dispose of things, . . . [and] well knowing where a people are gathered togather the word of God requires that to mayntayne the peace and vnion of such a people there should be an orderly and decent Government established according to God, to order and dispose of the affayres of the people." Moreover, the aim of the government so instituted was religious: "to mayntayne and presearue the liberty and purity of the gospell of our Lord Jesus which we now professe, as also the disciplyne of the Churches, which according to the truth of the said gospell is now practised amongst vs." Like their neighbors in Massachusetts Bay, the Connecticut Puritans determined to plant a "Christian Common-wealth," what Governor John Winthrop hoped would become a "City upon a Hill" that would inspire believers everywhere as a model Christian Nation.
American politics is now as acrimonious as it has perhaps ever been. This may be puzzling to some as there are seemingly no longer any deep divisions within the polity. Most Americans, after all, are internationalists and free marketers of some kind, who disagree only within those parameters.
But there are deep and growing divisions. What is being played out now, acrimoniously, are the final implications of the agenda of the modernist movement, and of the liberalism it transformed in the 1960s, the final working out of ideas that were present from the beginning in the late 1700s but for a long time remained only half-recognized. This movement has made every political disagreement a dispute over fundamental beliefs, and indeed over the nature of reality: matters over which people will fight with particular ferocity.
Modernism in this sense is not the historical reality of modernization. It is an almost religious commitment to radical change, a fevered sense of the past as oppressive, a determination to move ruthlessly into the future no matter what the cost, an urge to shock traditional sensibilities. (Like all movements, I should note, modernism can be defined in a variety of ways, and not all self-conscious modernists espouse its entire agenda.)
It is inherently nihilistic, at its core nothing less than the systematic negation of every established belief and institution, the denial that any ultimate truth underlies culture, the often demonic conviction that destruction is the necessary preliminary to creation. It has touched deep and sinister springs in the human psyche: the love of negation and annihilation for their own sakes. Gratuitous, anarchical terrorism is in a sense modernism’s ultimate expression.
New originalist theories of judicial review and constitutional interpretation that have emerged since the 1980s can be distinguished from an older set of theories that were predominant in the 1970s and 1980s. This article distinguishes these older and newer versions of originalism and places them within their intellectual and political contexts. Whereas the old originalism developed largely to serve as the basis for criticizing the constitutional doctrine developed by the Warren and early Burger Courts, the new originalism has developed with the Rehnquist Court in mind and is less concerned with criticizing judicial review than with guiding it.
Contemporary Supreme Court interpretations suggest that the religion clauses are primarily rooted in the value of equality. In interpreting the Free Exercise clause the United States Supreme Court has argued that in the absence of discrimination against religion or in the presence of other constitutional values, there is no violation of the Constitution when a statute inadvertently burdens religion. Similarly, equality values have played a strong role in the Court's Establishment Clause jurisprudence. Many distinguished commentators have pointed to the equality focus and have argued that it gives insufficient attention to the value of religious liberty. Professor Shiffrin argues that these commentators are right in contending that an equality emphasis misses much of importance in religion clause jurisprudence, but their emphasis on liberty or equal liberty is too narrow. Instead, he suggests an understanding of the proper place of equality in religion clause jurisprudence requires an appreciation of a wider range of values.
Professor Shiffrin recognizes that the equality value is important, but shows that many deviations from religious equality are deeply embedded in the framework of government operations. It will not work to maintain that our Constitution regards religion and non-religion as equal. Indeed, the religion clauses are best interpreted to protect religion not just because of values like autonomy, equality, community, and religious peace, but because religion is regarded as important. This, he suggests, is a regrettable interpretation. It obviously is a bitter pill for religious skeptics to swallow, and it should even be a source of regret for most religious believers. Nonetheless, it is the best reading of our evolving Constitution. The foundational view that religion is important, however, does not flirt with theocracy. Far from it. The Constitution forbids coercion and, with exceptions, the favoring of one religion over another. Even more important, with some exceptions, the Constitution is best interpreted to curb government intervention to favor religion, not because religion is a constitutional stepchild, but because the seductions of governmental dependence are great and because government is not to be trusted.
In applying his analysis, Professor Shiffrin explores many examples including (1) the ingestion of peyote; (2) animal sacrifice; (3) the government's use of religious symbols; (4) government's involvement with monotheistic prayer, including the Pledge of Allegiance; (5) the teaching of evolution in the public schools; (6) government protection of conscientious objectors and those who refuse to work on the Sabbath; and (7) voucher programs together with government support for religion within the public schools. Given the pluralistic character of the values underlying the religion clauses and the variety of contexts in which questions about the legal status of religion arise, he concludes, that equality can best be seen as one important value in a rich and evolving tradition.
This tradition, he argues, is misunderstood by both the secular left and the religious right. The secular left does not understand the importance of religion in our constitutional tradition, and the religious right does not understand that government harms religion when it tries to help. Neither the secular left, nor the religious right understands the complex dimensions of religious equality.
Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation "under Zeus," or a nation "under no god," this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the "public secularism" principle, the "neutrality" principle, and the "nonsectarian principle." The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.
This Article juxtaposes the theories of religious liberty developed by Thomas Jefferson and John Adams. It argues that Jefferson's notion of a "wall of separation between church and state" was a minority view in his day, and in the century to follow. More commonplace was Adams' view that balanced the freedom of all peaceable private religions with the "mild and equitable establishment" of one public religion. Adam's model of religious liberty dominated much of nineteenth-century law and culture, Jefferson's model a good bit of twentieth-century law and culture. In its most recent cases, the U.S. Supreme Court seems to be developing a new model of religious liberty that draws on the insights of both Jefferson and Adams, but rejects their respective calls for the privatization or the establishment of religion. The Court's formula is that both private and public forms of religion deserve constitutional freedom and support, though neither may be given preferential treatment.
Let me begin by presenting and destroying a number of very pervasive and pernicious myths, long regarded by millions as guideposts in American
life, as bright stars in the constellation of our highest national ideals:
1. Most of the people who left the Old World to come to the New World did so to enjoy religious freedom;
2. The Founding Fathers were God-fearing good Christian men;
3. Religious freedom is that which reflects the will of the majority, democratically expressed and codified law;
4. Religious toleration is to be cultivated and practiced by all.
Liberty and the truth which makes men free go hand in hand in the political and religious discourse of the American founding era. There was general agreement that political and religious truth are vitally intertwined: "Year after year the preacher reaffirmed from his high pulpit that both revelation and reason pointed to a single set of principles which outlined the best form of government." Nor was this merely a Puritan or New England affair, as recent scholarship attests. Robert M. Calhoon stated in 1994 that "Evangelical political thought, discipline, and use of the Bible - among other expressions of its activity and vision - formed a coherent whole and functioned as a persuasion in the early South. It was an eclectic, improvised mixture of intellectual assumptions, behavioral norms, and Scottish common-sense teachings about the interconnectedness of all knowledge and revelation."
The old interpretation is, with refinements, now becoming the new interpretation of scholars. Religion gave birth to America, Tocqueville long ago observed. On the eve of revolution, in his last ditch attempt to stave off impending catastrophe, Edmund Burke reminded the House of Commons of the inseparable alliance between liberty and religion among Englishmen in America. A recent student has echoed Tocqueville in dubbing America the nation with the soul of a church. Another has elevated the political sermon considered as jeremiad to the rank of primary symbolic form of the American mind. Yet another has exclaimed of the Americans on the eve of the Revolution, "Who can deny that for them the very core of existence was their relation to God?"
The eighteenth-century American founders distinguished six principles of religious liberty - liberty of conscience, freedom of exercise, equality of faiths, plurality of confessions, disestablishment of religion, and separation of church and state. They "incorporated" these six principles into the original state constitutions, though with different emphases and applications. They also "incorporated" these six principles into the First Amendment religion clauses. The free exercise clause outlawed government proscriptions of religion-actions that unduly burdened the conscience, restricted religious expression, discriminated
against religion, or invaded the autonomy of churches and other religious bodies. The disestablishment clause outlawed government prescriptions of religion-actions that coerced the conscience, mandated forms of religious expression, discriminated in favor of religion, or improperly allied the state with churches or other religious bodies. Both the free exercise and the disestablishment clauses thereby provided complementary protections to the first principles of the American experiment in religious liberty.
Against the contemporary view which portrays the roots of modern political philosophy as fundamentally areligious, Peddle's essay shows how Puritanism and Enlightenment converge in the U.S. Constitution. In light of reflections on the logic of this convergence, an interpretation of the religious clauses of the first amendment is advanced.