Around the Web

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

Left Nationalism?

Most of the new nationalism literature written from a progressive perspective is critical, focusing on the problems with nationalism and its dire threat to liberal values. Perhaps that is beginning to change, though. Yet even in this new book by Harvard historian and The New Yorker staff writer Jill Lepore, which looks like an attempt at addressing nationalism positively from a progressive perspective, attempting to harmonize it with liberal egalitarian values and chart future paths of progressive politics, one still senses great reservations and the overwhelming urge to critique it. The book is This America: The Case for the Nation (Penguin Random House).

“At a time of much despair over the future of liberal democracy, Harvard historian Jill Lepore makes a stirring case for the nation in This America. Since the end of the Cold War, Lepore writes, American historians have largely retreated from the idea of “the nation,” in part because postmodernism has corroded faith in grand narratives, and in part because the rise of political nationalism has rendered it suspect and unpalatable. Bucking this trend, however, Lepore argues forcefully that the nation demands scrutiny. Without an honest reckoning with America’s collective past, we will be at the mercy of unscrupulous demagogues who spin their own version of the national story for their own purposes. “When serious historians abandon the study of the nation,” Lepore tellingly writes, “nationalism doesn’t die. Instead, it eats liberalism.” A trenchant work of political philosophy as well as a reclamation of America’s national history, This America asks us to look our nation’s sovereign past square in the eye to reveal not only a history of contradictions, but a path of promise for the future.”

An Account of the First Amendment in Retreat

Never let it be said that we at the Forum do not post about work that runs seemingly somewhat contrary to our own views. Here’s a new book arguing that, contrary to appearances, the Supreme Court has shrunk the scope of the rights of speech and association in the 20th century: The Disappearing First Amendment (Cambridge University Press), by Ronald J. Krotoszynski. (For a different view, see this paper).

“The standard account of the First Amendment presupposes that the Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. In this illuminating work, Ronald J. Krotoszynski, Jr. acknowledges that the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak but when citizens need the government’s assistance to speak — for example, access to public property for protest — free speech rights have declined. Instead of using open-ended balancing tests, the Roberts and Rehnquist Courts have opted for bright line, categorical rules that minimize judicial discretion. Opportunities for democratic engagement could be enhanced, however, if the federal courts returned to the Warren Court’s balancing approach and vested federal judges with discretionary authority to require government to assist would-be speakers. This book should be read by anyone concerned with free speech and its place in democratic self-government.”