Today and tomorrow, Mark and I are at the Scalia Law School at George Mason University, hosted by the Center for the Study of the Administrative State under the capable directorship of Adam White.

We will be presenting and discussing our respective new draft papers (more soon about this work) as part of the Center’s research roundtable on “Religion and the Administrative State.”

Around the Web

Here are some important law-and-religion news stories from around the web:

Mason, “Uncivil Agreement”

It is not particularly controversial to observe that American politics is highly polarized, though there are interesting disagreements about whether it only feels this way because we have lost sight of the political battles of the American past. But if it is true that the American political present is particularly polarized, one should want an explanation. Perhaps part of the issue concerns the totalizing quality of politics in contemporary America–politics’ tendency today to swallow up all other features of life (including religion), features that in prior periods were able to hold their own relatively separate from the political sphere.

So seems to argue, at least in part, this new book, Uncivil Agreement: How Politics Became Our Identity (University of Chicago Press) by political scientist Lilliana Mason.

Political polarization in America is at an all-time high, and the conflict has movedUncivil beyond disagreements about matters of policy. For the first time in more than twenty years, research has shown that members of both parties hold strongly unfavorable views of their opponents. This is polarization rooted in social identity, and it is growing. The campaign and election of Donald Trump laid bare this fact of the American electorate, its successful rhetoric of “us versus them” tapping into a powerful current of anger and resentment.

With Uncivil Agreement, Lilliana Mason looks at the growing social gulf across racial, religious, and cultural lines, which have recently come to divide neatly between the two major political parties. She argues that group identifications have changed the way we think and feel about ourselves and our opponents. Even when Democrats and Republicans can agree on policy outcomes, they tend to view one other with distrust and to work for party victory over all else. Although the polarizing effects of social divisions have simplified our electoral choices and increased political engagement, they have not been a force that is, on balance, helpful for American democracy. Bringing together theory from political science and social psychology, Uncivil Agreement clearly describes this increasingly “social” type of polarization in American politics and will add much to our understanding of contemporary politics.

Delgado & Stefancic, “Must We Defend Nazis?”

If only because I am right now working on an article cataloguing new arguments (most Nazi.jpgof which come from the academy, though this is changing) for restriction on the freedom of speech (and many of which mirror arguments for new limitation on rights of religious liberty), this new book caught my eye, Must We Defend Nazis? Why The First Amendment Should Not Protect Hate Speech and White Supremacy (NYU Press) by law professors and noted critical race theorists Richard Delgado and Jean Stefancic. This looks like a new edition (with a new subtitle) of a book that first was published in 1997 by the same title.

Swirling in the midst of the resurgence of neo-Nazi demonstrations, hate speech, and acts of domestic terrorism are uncomfortable questions about the limits of free speech. The United States stands apart from many other countries in that citizens have the power to say virtually anything without legal repercussions.  But, in the case of white supremacy, does the First Amendment demand that we defend Nazis?

In Must We Defend Nazis?, legal experts Richard Delgado and Jean Stefancic argue that it should not. Updated to consider the white supremacy demonstrations and counter-protests in Charlottesville and debates about hate speech on campus and on the internet, the book offers a concise argument against total, unchecked freedom of speech.

Delgado and Stefancic instead call for a system of free speech that takes into account the harms that hate speech can inflict upon disempowered, marginalized people. They examine the prevailing arguments against regulating speech, and show that they all have answers.  They also show how limiting free speech would work in a legal framework and offer suggestions for activist lawyers and judges interested in approaching the hate speech controversy intelligently.

As citizens are confronting free speech in contention with equal dignity, access, and respect, Must We Defend Nazis? puts aside clichés that clutter First Amendment thinking, and presents a nuanced position that recognizes the needs of our increasingly diverse society.

Winkler, “We the Corporations”

Corporate rights are an important idea in the law of free speech and religious liberty, constitutional and otherwise. But there is nothing particularly novel about them from a historical perspective. For example, some scholars believe that individual religious liberty proceeds from a much older idea of ecclesiastical freedom, or libertas ecclesiae. The foundational right, in this view, is corporate rather than individual. Others disagree, of course.

Here is a new book that discusses the arrival of corporate rights on the American legal Winklerscene in the late 20th century, albeit from a rather negative point of view , We the Corporations: How American Businesses Won Their Civil Rights (Norton), by UCLA law professor Adam Winkler.

We the Corporations chronicles the revelatory story of one of the most successful, yet least known, “civil rights movements” in American history.

We the Corporations chronicles the astonishing story of one of the most successful yet least well-known “civil rights movements” in American history. Hardly oppressed like women and minorities, business corporations, too, have fought since the nation’s earliest days to gain equal rights under the Constitution—and today have nearly all the same rights as ordinary people.

Exposing the historical origins of Citizens United and Hobby Lobby, Adam Winkler explains how those controversial Supreme Court decisions extending free speech and religious liberty to corporations were the capstone of a centuries-long struggle over corporate personhood and constitutional protections for business. Beginning his account in the colonial era, Winkler reveals the profound influence corporations had on the birth of democracy and on the shape of the Constitution itself. Once the Constitution was ratified, corporations quickly sought to gain the rights it guaranteed. The first Supreme Court case on the rights of corporations was decided in 1809, a half-century before the first comparable cases on the rights of African Americans or women. Ever since, corporations have waged a persistent and remarkably fruitful campaign to win an ever-greater share of individual rights.

Although corporations never marched on Washington, they employed many of the same strategies of more familiar civil rights struggles: civil disobedience, test cases, and novel legal claims made in a purposeful effort to reshape the law. Indeed, corporations have often been unheralded innovators in constitutional law, and several of the individual rights Americans hold most dear were first secured in lawsuits brought by businesses.

Winkler enlivens his narrative with a flair for storytelling and a colorful cast of characters: among others, Daniel Webster, America’s greatest advocate, who argued some of the earliest corporate rights cases on behalf of his business clients; Roger Taney, the reviled Chief Justice, who surprisingly fought to limit protections for corporations—in part to protect slavery; and Roscoe Conkling, a renowned politician who deceived the Supreme Court in a brazen effort to win for corporations the rights added to the Constitution for the freed slaves. Alexander Hamilton, Teddy Roosevelt, Huey Long, Ralph Nader, Louis Brandeis, and even Thurgood Marshall all played starring roles in the story of the corporate rights movement.

In this heated political age, nothing can be timelier than Winkler’s tour de force, which shows how America’s most powerful corporations won our most fundamental rights and turned the Constitution into a weapon to impede the regulation of big business.

Around the Web

Here are some important law-and-religion news stories from around the web:

McCall, “The Architecture of Law”

“Does law belong to reason?…I answer that law is a rule and measure of acts that induces persons to act or to refrain from acting. For law (lex) is derived from binding (ligare) because law obliges persons to act. And the rule and measure of human acts is reason….For it belongs to reason to order us to our end….And so we conclude that law belongs to reason.”

So begins the part of the Summa Theologica of Thomas Aquinas commonly called “The Treatise on Law” (ST I-II, Question 90), one of the great masterpieces of the philosophy ofArchitecture of Law law. And in this new book, The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame Press), Brian McCall intervenes in questions about the nature of law, drawing substantially from the natural law tradition of Aquinas.

What is law? How should law be made? Using St. Thomas Aquinas’s analogy of God as an architect, Brian McCall argues that classical natural law jurisprudence provides an answer to these questions far superior to those provided by legal positivism or the “new” natural law theories.

The Architecture of Law explores the metaphor of law as an architectural building project, with eternal law as the foundation, natural law as the frame, divine law as the guidance provided by the architect, and human law as the provider of the defining details and ornamentation. Classical jurisprudence is presented as a synthesis of the work of the greatest minds of antiquity and the medieval period, including Cicero, Aristotle, Gratian, Augustine, and Aquinas; the significant texts of each receive detailed exposition in these pages.

Along with McCall’s development of the architectural image, he raises a question that becomes a running theme throughout the book: To what extent does one need to know God to accept and understand natural law jurisprudence, given its foundational premise that all authority comes from God? The separation of the study of law from knowledge of theology and morality, McCall argues, only results in the impoverishment of our understanding of law. He concludes that they must be reunited in order for jurisprudence to flourish. This book will appeal to academics, students in law, philosophy, and theology, and to all those interested in legal or political philosophy.

“The Future of Mainline Protestantism in America” (Hudnut-Beumler & Silk, eds.)


We close the week with an interesting-looking new book from Columbia University Press on one of the most noteworthy changes in American religious culture in recent decades: the collapse of the mainline churches. Once the dominant group in American religious life, mainline Protestant churches experienced a dramatic decline in the last generation. Why has this occurred? The new book, The Future of Mainline Protestantism in America, edited by historian James Hudnut-Beumler (Vanderbilt) and religion scholar Mark Silk (Trinity College) attempts to explain. Unlike most treatments, this volume apparently is optimistic, in a way, about the mainline’s future. Here’s the description from the Columbia website:

As recently as the 1960s, more than half of all American adults belonged to just a handful of mainline Protestant denominations—Presbyterian, UCC, Disciples of Christ, Episcopal, Lutheran, Methodist, and American Baptist. Presidents, congressmen, judges, business leaders, and other members of the elite overwhelmingly came from such backgrounds. But by 2010, fewer than 13 percent of adults belonged to a mainline Protestant church. What does the twenty-first century hold for this once-hegemonic religious group?

In this volume, experts in American religious history and the sociology of religion examine the extraordinary decline of mainline Protestantism over the past half century and assess its future. Contributors discuss the demographics of mainline Protestants; their beliefs, practices, and modes of worship; their political views and partisan affiliations; and the social and moral questions that unite and divide Protestant communities. Other chapters examine Protestant institutions, including providers of health care and education; analyze churches’ public voice; and probe what will come from a diminished role relative to other groups in society, especially the ascendant evangelicals. Far from going extinct, the book argues, the mainline Protestant movement will continue to be a vital remnant in an American religious culture torn between the contending forces of secularism and evangelicalism.

Around the Web

Here are some important law-and-religion news stories from around the web:

Strobel and Crisp, “Jonathan Edwards”


American religious culture is a somewhat odd combination of Evangelical Christianity and the Enlightenment. Somehow, we have convinced ourselves that a transcendent order and personal liberty are wholly compatible. This was one of the things that most perplexed Tocqueville, when he visited America in the 1820s. “Americans so completely confuse Christianity and freedom in their minds that it is almost impossible to have them conceive of the one without the other.”

Here, from Eerdman’s, is a new book on someone who definitely combined Evangelicalism and the Enlightenment, the 18th Century theologian and preacher, Jonathan Edwards: Jonathan Edwards: An Introduction to His Thought, by scholars Kyle C. Strobel (Biola University) and Oliver D. Crisp (Fuller Theological Seminary). Most Americans probably think of Edwards as a fire-and-brimstone, Puritan revivalist of the First Great Awakening. His sermon, “Sinners in the Hands of an Angry God,” is a staple of American literature classes, or was, anyway. But he was also a polymath who became, at the end of his life, the president of the College of New Jersey, now called Princeton University. The book looks very interesting. Here’s the description from the publisher’s website:

Jonathan Edwards (1703–1758) has long been recognized as one of the preeminent thinkers in the early Enlightenment and a major figure in the history of American Christianity.

In this accessible one-volume text, leading Edwards experts Oliver Crisp and Kyle Strobel introduce readers to the formi­dable mind of Jonathan Edwards as they survey key theological and philosophical themes in his thought, including his doctrine of the Trinity, his philosophical theology of God and creation, and his understanding of the atonement and salvation.

More than two centuries after his death, theologians and historians alike are finding the larger-than-life Edwards more interesting than ever. Crisp and Strobel’s concise yet comprehensive guide will help students of this influential eighteenth-century revivalist preacher to understand why.

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