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.
The above essay is written by Jacob T. Levy, McGill University.
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 above paper is written by Jacob T. Levy, McGill University.
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.
The authors of the above study are Gary A. Tobin and Aryeh K.Weinbergis.
The neoconservative influence on American foreign policy has not had an enthusiastic response outside the United States. Its failure to bring peace and democracy to Iraq has now resulted in a spate of critiques in America itself, even from within the policy establishment. The highest-level defection has been that of Francis Fukuyama, author of The End of History and the Last Man (1992), the paean to the triumph of capitalism that became a canonical neoconservative text of the 1990s, articulating the transition from the Clinton administration to that of George W. Bush. In his new book, After the Neocons, Fukuyama argues that key neoconservative tenets were systematically violated in making the case for the war in Iraq, and, further, that the broader attempt to combat terror is ill-served not only by the war but also by the neoconservative project of democratic reform in the Middle East. The failure of these projects, he argues, is a phenomenon less of the Middle East than of the disoriented modernity of Muslims in the West – Western Europe particularly. In conclusion, he offers a replacement for neoconservative foreign policy, something that he calls “realistic Wilsonianism”.
The above is a review of Francis Fukuyama's After the Neocons.
For a different take, read this review of British author Douglas Murray's book, NeoConservatism: Why We Need It.
If the Supreme Court overturns Roe v. Wade, it will set off tectonic shifts in the American political landscape not seen since the civil-rights movement - or perhaps even the Civil War.
The above article is written by Jeffrey Rosen, George Washington University. Read an interview with the author here.
In this paper, John J. Mearsheimer of the University of Chicago's Department of Political Science and Stephen M.Walt of Harvard University's Kennedy School of Government contend that the centerpiece of U.S. Middle East policy is its intimate relationship with Israel. The authors argue that although often justified as reflecting shared strategic interests or compelling moral imperatives, the U.S. commitment to Israel is due primarily to the activities of the “Israel Lobby." This paper goes on to describe the various activities that pro-Israel groups have undertaken in order to shift U.S. foreign policy in a pro-Israel direction.
The working paper by Academic Dean and Professor Stephen Walt and Professor John Mearsheimer presents a conspiratorial view of history in which the Israel Lobby has a “stranglehold” on American foreign policy, the American media, think tanks and academia. In his response, Professor Alan Dershowitz demonstrates that the paper contains three types of major errors: quotations are wrenched out of context, important facts are misstated or omitted; and embarrassingly weak logic is employed. One of the authors of this paper has acknowledged that “none of the evidence represents original documentation or is derived from independent interviews.” In light of the paper’s errors, and its admitted lack of originality, Dershowitz asks why these professors would have chosen to publish a paper that does not meet their usual scholarly standards, especially given the risk – that should have been obvious to “realists” - that recycling these charges under their imprimatur of prominent authors would be featured, as they have been, on extremist websites. Dershowitz questions the authors claims that people who support Israel do not want “an open debate on issues involving Israel.” He renews his challenge to debate the issues.
The above paper is written by Alan Dershowitz, Harvard Law School.
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 above paper is written by Robert G. Natelson, Professor of Law, University of Montana.
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)?
This paper reviews the various arguments offered by both sides and suggests that the conflict reflects a deeper political malaise that needs to be addressed.
The above paper is written by David E. Guinn, JD, PhD.
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.
The above article is written by Richard Garnett, Lilly Endowment Associate Professor of Law, Notre Dame Law School.
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.
The above essay is written by John Witte Jr., Emory University - School of Law.
That Americanism is a religion is widely agreed. G.K. Chesterton called America “the nation with the soul of a church.” But Americanism is not (contrary to the views of many people who use these terms loosely) a “secular” or a “civil” religion. No mere secular ideology, no mere philosophical belief, could possibly have inspired the intensities of hatred and devotion that Americanism has. Americanism is in fact a Judeo-Christian religion; a millenarian religion; a biblical religion. Unlike England’s “official” religion, embodied in the Anglican church, America’s has been incorporated into all the Judeo-Christian religions in the nation.
The author of the above article is David Gelernter, professor of computer science at Yale.
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.
The author of the above book Introduction is Frank Lambert, professor of History at Purdue University.
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.
The author of the above article is James Hitchcock, professor of history at St. Louis University.
The New Originalism is an article from Keith E. Whittington, Princeton University.
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.
The above essay is written by Steven Shiffrin, Cornell University - School of Law.
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.
The above essay is written by Steven Douglas Smith, University of San Diego - School of Law
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.
The above essay is written by John Witte Jr., Emory University - School of Law.
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 above essay is written by Ellis Sandoz, professor of political science at Louisiana State University and director of the Eric Voegelin Institute for American Renaissance Studies.
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.
The above essay was written by John Witte Jr., Emory University - School of Law.
Puritanism, Enlightenment and the U.S. Constitution.
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.
The above essay is by David Peddle, Assistant Professor of Philosophy and Chair of Humanities at Sir Wilfred Grenfell College, Memorial University. You can read the essay in either a PDF file or in HTML.
