All this month, the Law and Religion Forum hosts an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In this post, Gerard V. Bradley (Notre Dame) responds to Muñoz’s arguments. For other posts in the series, please click here.
One need not be a hide-bound originalist to delight in Phillip Munoz’ attentiveness to the letter of the Constitution. He is quite right to say that the First Amendment enacts “an absolute ban” on something, that its character is “categorical”; after all, “Congress shall make no law.” Munoz is right again to count this character as probative evidence of the “jurisdictional” understanding of the Free Exercise Clause which he defends. He is right also to see that any such “categorical” liberty has to be limited to a set of specific acts, such as worship and confessions of faith, lest letting the spirit roam where it wills (recall: no law!) does not produce anarchy, even as it limits government in favor of each individual’s direction of his or her religious life.
Munoz is also right about the Smith case and thus the original understanding of the Free Exercise Clause. The Court in Smith spent most of its time arguing against the “exemptionist” (Munoz’ term) interpretation of Free Exercise, minted 27 years earlier in Sherbert v. Verner. But without quite identifying it as such, the Court hit upon the meaning of Free Exercise apprehended by the ratifiers:
[A]ssembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation . . . [A] state would be “prohibiting the free exercise [of religion]” if it sought to ban such acts . . . only when they are engaged in for religious reasons, or only because of the religious belief that they display.
The decisive feature of Free Exercise, then, is not exemptionism’s idealized “neutrality of effect,” but rather what might be called “neutrality of reasons.” John Locke provided a Read more
This month, Penguin Random House Press releases Black Earth: The Holocaust as History and Warning, by Timothy Snyder (Yale). The publisher’s description follows:
In this epic history of extermination and survival, Timothy Snyder presents a new explanation of the great atrocity of the twentieth century, and reveals the risks that we face in the twenty-first. Based on new sources from eastern Europe and forgotten testimonies from Jewish survivors, Black Earth recounts the mass murder of the Jews as an event that is still close to us, more comprehensible than we would like to think, and thus all the more terrifying.
The Holocaust began in a dark but accessible place, in Hitler’s mind, with the thought that the elimination of Jews would restore balance to the planet and allow Germans to win the resources they desperately needed. Such a worldview could be realized only if Germany destroyed other states, so Hitler’s aim was a colonial war in Europe itself. In the zones of statelessness, almost all Jews died. A few people, the righteous few, aided them, without support from institutions. Much of the new research in this book is devoted to understanding these extraordinary individuals. The almost insurmountable difficulties they faced only confirm the dangers of state destruction and ecological panic. These men and women should be emulated, but in similar circumstances few of us would do so.
By overlooking the lessons of the Holocaust, Snyder concludes, we have misunderstood modernity and endangered the future. The early twenty-first century is coming to resemble the early twentieth, as growing preoccupations with food and water accompany ideological challenges to global order. Our world is closer to Hitler’s than we like to admit, and saving it requires us to see the Holocaust as it was — and ourselves as we are. Groundbreaking, authoritative, and utterly absorbing, Black Earth reveals a Holocaust that is not only history but warning.
In November, Edinburgh University Press will release Muslim Cosmopolitanism: Southeast Asian Islam in Comparative Perspective by Khairudin Aljunied (National University of Singapore). The publisher’s description follows:
Cosmopolitan ideals and pluralist tendencies have been employed creatively and adapted carefully by Muslim individuals, societies and institutions in modern Southeast Asia to produce the necessary contexts for mutual tolerance and shared respect between and within different groups in society. Organised around six key themes that interweave the connected histories of three countries in Southeast Asia – Singapore, Malaysia and Indonesia – this book shows the ways in which historical actors have promoted better understanding between Muslims and non-Muslims in the region. Case studies from across these countries of the Malay world take in the rise of the network society in the region in the 1970s up until the early 21st century, providing a panoramic view of Muslim cosmopolitan practices, outlook and visions in the region.