Classic Revisited: Shiffrin, “The First Amendment, Democracy, and Romance”

For some work I am now doing, I recently read a wonderful book by Steven H. Shiffrin (Cornell), The First Amendment, Democracy, and Romance (Harvard UP 1990) and thought it would be a very good choice as a classic revisited.  Though the book focuses primarily on free speech rather than the religion clauses (Steve of course is deeply learned in both and has more recently written about the religion clauses extensively), and while I enjoyed (and agreed with!) much of the book, there is one portion which resonated especially deeply with me.  It is Chapter 4: “The First Amendment and Method.”  And Steve’s “romantic” pluralistic preferences, which shine through in this and later chapters, represent an original, provocative, and deeply appealing approach to constitutional interpretation.  Here’s a bit from Chapter 4 (110-112), in which Steve contrasts “eclecticism” and (what he calls) “Kantianism” in First Amendment methodology:

A first amendment case cannot be resolved without a method to resolve it.  Many commentators insist, however, that the method to resolve first amendment cases has been ad hoc and subjective.  The implication is that an improvement of method could significantly improve not only the decision-making process, but also the quality of decisions produced . . . . By contrast, I maintain that the problem with first amendment decision-making is for the most part not with the method employed but with the values held by decision-makers . . . .

The method employed in first amendment decision-making, however, has importance that transcends its capacity to determine results in individual cases . . . . If the first amendment is to serve as an important cultural symbol, the modes of justification we use to persuade ourselves and others of its value and importance are themselves of special importance.  Our modes of justification themselves exhibit features of our character and appeal to features of our personality . . . .

Indeed, my view is that the commitment to a particular type of method can be a major part of an individual’s intellectual identity.

Mootz on Fundamentalist Rhetoric

Francis Joseph Mootz III has posted Right Rhetoric: What Lawyers May Learn from the Study of Rhetoric, on SSRN. The abstract follows.

This paper was written for a Festschrift honoring Guy Haarscher of the Free University of Brussels. It addresses Haarscher’s analysis of the rhetorical efforts by religious fundamentalists to limit the scope of rhetorical exchanges, and particularly their use of psuedo-argument. I commend Haarscher’s analysis, but question his conclusions about the famous Scopes trial. William Jennings Bryan was justifiably offended by the racist eugenics in the biology book being used by Scopes, and so we should not be too quick to brand the Christian perspective as unsuitable to contemporary rhetorical exchange. Haarscher is correct that rhetorical argumentation must have integrity and rise above sophism, a thesis that he demonstrates clearly in challenging the politically correct rhetoric of some on the left. I conclude that Haarscher’s balanced and thoughtful approach to public discourse is precisely what contemporary society requires.

Aziz on Terror(izing) the Muslim Veil

Sahar F. Aziz (Texas Wesleyan University School of Law) has posted Terror(izing) the Muslim Veil. The abstract follows.

The September 11th terrorist attacks transformed the meaning of the Muslim headscarf. No longer is the crux of the debate whether the “veil” is used to oppress women by controlling their sexuality, and by extension, their personal freedoms and life choices. Rather, a Muslim headscarf “marks” her as a representative of the suspicious, inherently violent, and forever foreign “Terrorist other” in our midst.

In the post-9/11 era, Muslim women donning a headscarf find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties Read more

The Supreme Court and the Field of Religious Studies

This is an essay by journalist Nathan Schneider with some interesting observations, but also some parts that I think are mistaken.  The point of the piece is to explain why religious studies is an important and useful field for the problems of our day.  The strangest and most anachronistic argument in it is that religious studies came into its own as an academic discipline pretty much as of 1963 with the US Supreme Court’s decision in Abington v. SchemppRead more

Nawi on Family Mediation in Malaysian Muslim Society

Nor Fadzlina Nawi (La Trobe University) has posted Family Mediation in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia. The abstract follows.

Malaysia’s justice system is exceptional in that it reflects the country’s multi-racial and multi-religious culture. Malaysia has a two-tier legal system, including family law. Family law matters relating to Muslims are administered separately from those of non-Muslims. Muslims are dealt with under the jurisdiction of the Syariah courts, while non-Muslims are dealt with under the jurisdiction of the civil courts. It is significant to note that, since 2002 there has been a mandatory family mediation service also known as Sulh for Muslims but a similar service is yet to be established under the civil legal system for the non-Muslims in Malaysia. The Sulh process is reported to be successful in dealing with the backlog of cases in the Syariah Courts. It is claimed that the benefits of making mediation mandatory generally prevail over the potential harms for families, even when violence is an issue, provided that its design and realizations are carefully thought of. Hence, it could be argued that it is only fair and equitable that an equivalent form of process be made available to non-Muslims in the civil family law system.

Thus, the current paper is not concerned with whether or not mediation should be made mandatory in family disputes, but rather the best way in approaching its application and implementation in the civil legal system Malaysia. Considering that the Islamic family law system has already been progressively establishing a form of mandatory mediation for Muslims in Malaysia, the paper briefly describes and reflects on the development and implementation of the Sulh program and highlights some of the lessons for the civil legal system towards establishing a mandatory family mediation program for non-Muslims in Malaysia.

Delahunty on Trade and Islamist Terrorism

In attempting to come to grips with Islamist terrorism, some observers, particularly in the West, have suggested that poverty provides the ultimate explanation. Islamist terrorism thrives, the argument goes, because Muslim societies are poor; if Muslim societies experienced economic growth – through trade with the outside world, for example – terrorism would be much less a problem. In an excellent new paper, Terrorism and Trade: A Reply to Professor Bhala, Robert Delahunty (St. Thomas – Minnesota) debunks this argument. He notes that studies repeatedly fail to show a significant empirical link between terrorism and poverty, particularly the poverty which results from a lack of trade with the outside world. In fact, Islamist terrorism in the twenty-first century, like communist terrorism in the nineteenth century, is principally a middle-class phenomenon. Both the leadership and ranks of jihadist movements are made up of educated, upwardly-mobile professionals with ties to the global economy. Like other economic explanations, Delahunty suggests at the end of his paper, the “counter-terrorism through trade” argument may be a way for secular-minded Westerners to avoid coming to terms with the ultimate explanation for religious and ideological terrorism, namely, that its motivations are primarily religious and ideological. There is much more in the paper which, as usual with Delahunty, is remarkably erudite and lucid.