Political scientist Ellis West (University of Richmond – Emeritus) has published The Religion Clauses of the First Amendment: Guarantees of States’ Rights? (Lexington). West argues for an individualist, as opposed to states’ rights, interpretation. A description follows. — MLM
The First Amendment of the U. S. Constitution begins: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Supreme Court has consistently held that these words, usually called the “religion clauses,” were meant to prohibit laws that violate religious freedom or equality. In recent years, however, a growing number of constitutional law and history scholars have contended that the religion clauses were not intended to protect religious freedom, but to reserve the states’ rights to legislate on. If the states’ rights interpretation of the religion clauses were correct and came to be accepted by the Supreme Court, it could profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion. This book carefully, thoroughly, and critically examines all the arguments for such an interpretation and, more importantly, all the available historical evidence. It concludes that the clauses were meant to protect religious freedom and equality of the individuals not the states’ rights.
Noel Villaroman (Monash University) has posted a new piece, The Right to Establish and Maintain Places of Worship: The Development of Its Normative Content Under International Human Rights Law. The abstract follows. — MLM
The aim of this article is to track the evolution of the right to establish and maintain places of worship from its earliest appearance in human rights documents up to its current stature as a distinct human right. The article will draw primarily from the work of the authorities responsible for international human rights standard-setting, particularly with respect to the right to freedom of religion or belief. This article will argue that the right to establish and maintain places of worship, being a separate religious human right, has its own set of constituent elements that collectively make up the right’s normative content.
Alan Brownstein (UC Davis Law) has posted a very thoughtful piece, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens’ Establishment Clause and Free Exercise Jurisprudence (forthcoming Northwestern L. Rev.). I generally tend to see things in this pocket of constitutional law a little differently than did Justice Stevens, and this piece by Alan is a very good intellectual reconstruction suggesting also some unresolved areas about Justice Stevens’s approach that merit further discussion. Well worth reading. The abstract follows. — MOD
This article examines Justice John Paul Stevens’ religion clause jurisprudence from the perspective of a continuing dialogue about the meaning of the Free Exercise Clause and the Establishment Clause. The term continuing dialogue suggests that even for as formidable and long-tenured a jurist as Justice Stevens, important questions remain open and unresolved. The article identifies the values and concerns reflected in the many opinions Justice Stevens authored or joined. Then it moves beyond those writings to discuss unanswered questions about Justice Stevens’ understanding of the two religion clauses. In particular, the article explores potential dissonance between Justice Stevens’ contrasting interpretation of the Establishment Clause and Free Exercise Clause. Read more
Perhaps not directly connected to law, but Moral Dilemmas in Medieval Thought: From Gratian to Aquinas (CUP) by M.V. Dougherty (Ohio Dominican University) looks interesting to me as I’ve written and am writing about moral and legal dilemmas in criminal law and the law of religious liberty. The publisher’s description of this fascinating looking book follows. — MOD
The history of moral dilemma theory often ignores the medieval period, overlooking the sophisticated theorizing by several thinkers who debated the existence of moral dilemmas from 1150 to 1450. In this book Michael V. Dougherty offers a rich and fascinating overview of the debates which were pursued by medieval philosophers, theologians and canon lawyers, illustrating his discussion with a diverse range of examples of the moral dilemmas which they considered. He shows that much of what seems particular to twentieth-century moral theory was well-known long ago – especially the view of some medieval thinkers that some forms of wrongdoing are inescapable, and their emphasis on the principle ‘choose the lesser of two evils’. His book will be valuable not only to advanced students and specialists of medieval thought, but also to those interested in the history of ethics.