Via Larry Solum, I see that Dan Kahan has posted a draft of the Harvard Law Review Foreword for the fall, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law.  Readers here will know that neutrality is a currently favored family of approaches to religious liberty, and Professor Kahan even quotes a tract from the McCreary County case as one of the piece’s epigraphs.  I say family of approaches because there are all kinds of theories of neutrality, substantive and formal, and I know that there will be new and quite sophisticated theories of neutrality in the offing soon enough.  Neutrality of one kind seems to be the position demanded by Employment Division v. Smith; neutrality of another represents the current position of the Court on establishment issues of school funding.  Neutrality of yet another kind characterizes the position of the European Court of Human Rights in various cases involving issues of religious liberty (one in which proselytism figures prominently).  And neutrality, of course, has its keen critics

Professor Kahan is critical of neutrality talk.  He believes that it is actually counterproductive to the Court’s perceived legitimacy (and that perceived legitimacy seems to be a very important concern for Kahan in the piece).  He says that neutrality talk exacerbates the sense in which we engage in and perceive others to be engaging in “motivated reasoning” — “the tendency of people to unconsciously process information — including logical and empirical arguments, oral advocacy, and even their own sense impressions — to promote goals or interests extrinsic to the decisionmaking at hand.”  (6)

I have not read the whole piece yet, but it seems to me that it should be interesting to people who think about the religion clauses.  I did read the following statements in the introduction, though:

  • “Members of these [culturally diverse] groups actually agree about policy ends: the promotion of the health, safety, and prosperity of themselves and their communities.  What they disagree about are empirical facts — the magnitude of various risks, the efficacy of policies for mitigating them, and the like—evidence of which they are unconsciously impelled to fit to their group commitments.”  (6-7)
  • There is broad societal consensus in support of the liberal principles that animate constitutional rights. Citizens’ perceptions of what outcomes these principles should yield in particular cases, however, are subject to motivated cognition just as their perceptions of risk and other policy-relevant facts are.  (7)
  • The neutrality crisis is tractable.  The way to resolve it, however, is not to construct a better constitutional theory; it is to equip constitutional practice with a more psychologically sophisticated understanding of how cultural meanings influence diverse citizens’ perceptions and how to communicate neutrality consistent with them.  (8)

As I said, I haven’t yet read through the piece, and so I do not have the benefit of important parts of Professor Kahan’s argument.  Moreover, there are portions of even these statements that I might agree with as is.  But I have the sense that Professor Kahan and I may disagree about the extent to which disputes about neutrality — at least in religion clause law — are only about empirical facts rather than about underlying values and ideas about what is the right and/or good relationship of the church and the state.  And to the extent that neutrality talk is not about empirical facts, but about values and principles, I wonder whether the psychological sophistication that this paper champions is actually capable of doing the resuscitative work that Professor Kahan claims it is.  At all events, a paper worth checking out in full, as I hope to later on.  — MOD (x-posted MOJ)

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