CNBC Story on the Bladensburg Cross Case

I am quoted in this CNBC story on the Bladensburg Cross case up for oral argument next week. The author, Tucker Higgins, put together a nice piece (one tiny quibble: Town of Greece v. Galloway was not decided on the basis of the coercion approach…that part of the opinion did not command a majority) and was good enough to reference and link to this article of mine on religion and the Roberts Court from a few years ago.

A Critical Study of Jefferson

For a project I’m now working on, I’m reading through the church-state writing of the likes of George Washington, John Adams, and Theophilus Parsons, and it is striking how different it is from what one sees in the writing of Thomas Jefferson. Here is a new critical study of Jefferson, Thomas Jefferson: A Modern Prometheus (Cambridge University Press), by Wilson Jeremiah Moses, part of which involves a comparative evaluation of Jefferson against some of these other statesmen. Looks like a must-read.

“In Thomas Jefferson: A Modern Prometheus, Wilson Jeremiah Moses provides a critical assessment of Thomas Jefferson and the Jeffersonian influence. Scholars of American history have long debated the legacy of Thomas Jefferson. However, Moses deviates from other interpretations by positioning himself within an older, ‘Federalist’ historiographic tradition, offering vigorous and insightful commentary on Jefferson, the man and the myth. Moses specifically focuses on Jefferson’s complexities and contradictions. Measuring Jefferson’s political accomplishments, intellectual contributions, moral character, and other distinguishing traits against contemporaries like George Washington and Benjamin Franklin but also figures like Machiavelli and Frederick the Great, Moses contends that Jefferson fell short of the greatness of others. Yet amid his criticism of Jefferson, Moses paints him as a cunning strategist, an impressive intellectual, and a consummate pragmatist who continually reformulated his ideas in a universe that he accurately recognized to be unstable, capricious, and treacherous.”

Getting Along in a Hateful Society

Here’s what appears to be a generally Rawls-infused account of how to go along and get along amidst our divisions today. The author calls for making distinctions between what belongs to the genuinely political and what doesn’t, and is instead “playful.” Martha Nussbaum has a supporting preface. The book is Living With Hate in American Politics and Religion: How Popular Culture Can Defuse Intractable Differences (Columbia University Press), by Jeffrey Israel.

“In the United States, people are deeply divided along lines of race, class, political party, gender, sexuality, and religion. Many believe that historical grievances must eventually be left behind in the interest of progress toward a more just and unified society. But too much in American history is unforgivable and cannot be forgotten. How then can we imagine a way to live together that does not expect people to let go of their entrenched resentments?

Living with Hate in American Politics and Religion offers an innovative argument for the power of playfulness in popular culture to make our capacity for coexistence imaginable. Jeffrey Israel explores how people from different backgrounds can pursue justice together, even as they play with their divisive grudges, prejudices, and desires in their cultural lives. Israel calls on us to distinguish between what belongs in a raucous “domain of play” and what belongs in the domain of the political. He builds on the thought of John Rawls and Martha Nussbaum to defend the liberal tradition against challenges posed by Frantz Fanon from the left and Leo Strauss from the right. In provocative readings of Lenny Bruce’s stand-up comedy, Philip Roth’s Portnoy’s Complaint, and Norman Lear’s All in the Family, Israel argues that postwar Jewish American popular culture offers potent and fruitful examples of playing with fraught emotions. Living with Hate in American Politics and Religion is a powerful vision of what it means to live with others without forgiving or forgetting.”

On Ecclesiastical Lawyers

From the great Richard Helmholz comes this new book on ecclesiastical lawyers in the medieval and early Renaissance periods before the trouble started (for them, at least) in the Reformation. Looks very interesting. The book is The Profession of Ecclesiastical Lawyers: A Historical Introduction (Cambridge University Press), by R.H. Helmholz.

“Historians of the English legal profession have written comparatively little about the lawyers who served in the courts of the Church. This volume fills a gap; it investigates the law by which they were governed and discusses their careers in legal practice. Using sources drawn from the Roman and canon laws and also from manuscripts found in local archives, R. H. Helmholz brings together previously published work and new evidence about the professional careers of these men. His book covers the careers of many lesser known ecclesiastical lawyers, dealing with their education in law, their reaction to the coming of the Reformation, and their relationship with English common lawyers on the eve of the Civil War. Making connections with the European ius commune, this volume will be of special interest to English and Continental legal historians, as well as to students of the relationship between law and religion.”

“Theoterrorism v. Freedom of Speech”

Here is a new book concerning international incidents in which free speech rights run up against terrorism undertaken in the name of religion. The book is Theoterrorism v. Freedom of Speech: From Incident to Precedent (Amsterdam University Press), by religion scholar Paul Cliteur and author-editor of the very interesting The Fall and Rise of Blasphemy Laws.

“The Rushdie Affair, the Danish Cartoon Affair, the assault on Charlie Hebdo, and the earlier Carrell Affair, are examples of religious fanatics’ extreme reactions to religious satire and criticism. Perpetrators of these actions consider themselves as true believers. This book aims to understand their motives by means of the concept of theoterrorism: terrorism grounded in religious zealotry.”

A History of Prohibition and States’ Rights

“Prohibition,” as I’ve had occasion to observe before, is a law school course that could teach itself. There are regulatory, church-state, jurisprudential, and constitutional dimensions to be explored. Probably others too. Here’s a new book that emphasizes the national-state federalism dimension: Prohibition, the Constitution, and States’ Rights (University of Chicago Press), by Sean Beienburg.

“Colorado’s legalization of marijuana spurred intense debate about the extent to which the Constitution preempts state-enacted laws and statutes. Colorado’s legal cannabis program generated a strange scenario in which many politicians, including many who freely invoke the Tenth Amendment, seemed to be attacking the progressive state for asserting states’ rights. Unusual as this may seem, this has happened before—in the early part of the twentieth century, as America concluded a decades-long struggle over the suppression of alcohol during Prohibition.

Sean Beienburg recovers a largely forgotten constitutional debate, revealing how Prohibition became a battlefield on which skirmishes of American political development, including the debate over federalism and states’ rights, were fought. Beienburg focuses on the massive extension of federal authority involved in Prohibition and the passage of the Eighteenth Amendment, describing the roles and reactions of not just Congress, the presidents, and the Supreme Court but political actors throughout the states, who jockeyed with one another to claim fidelity to the Tenth Amendment while reviling nationalism and nullification alike. The most comprehensive treatment of the constitutional debate over Prohibition to date, the book concludes with a discussion of the parallels and differences between Prohibition in the 1920s and debates about the legalization of marijuana today.”

Chapman on Government Funding of Christian Education for Native Americans (and the meaning of the Establishment Clause)

Pretty neat paper by Nathan Chapman on the history of federal funding of Christian education for Native Americans from the Revolution to Reconstruction, and its implications–if any–for the meaning of the Establishment Clause. Here’s the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of “religious assessments,” or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to “civilize” American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to “persons of good moral character” to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

Biskupic, “The Chief”

Here’s a new one that is not stricu sensu about religion, though of course it concerns law and religion inasmuch as many of the most controversial areas taken up by the Court involve law and religion questions, whether they are about abortion, disestablishment, free exercise, free speech, the rights of sexual freedom, and many others. Biskupic sets up a tension between promoting a “conservative agenda” and “protect[ing] the Court’s…place in history.” Well, that’s one way to say it. Some of us have been suggesting, albeit from a somewhat different perspective, for some time that the Chief Justice may sense himself to be “conflicted” in this way.

The book is The Chief: The Life and Turbulent Times of Chief Justice John Roberts (Basic Books), by the journalist Joan Biskupic.

“John Roberts was named to the Supreme Court in 2005 claiming he would act as a neutral umpire in deciding cases. His critics argue he has been anything but, pointing to his conservative victories on voting rights and campaign finance. Yet he broke from orthodoxy in his decision to preserve Obamacare. How are we to understand the motives of the most powerful judge in the land?

In The Chief, award-winning journalist Joan Biskupic contends that Roberts is torn between two, often divergent, priorities: to carry out a conservative agenda, and to protect the Court’s image and his place in history. Biskupic shows how Roberts’s dual commitments have fostered distrust among his colleagues, with major consequences for the law. Trenchant and authoritative, The Chief reveals the making of a justice and the drama on this nation’s highest court.”

Lacorne, “The Limits of Tolerance”

From the prominent French political theorist (and author of a political history of religion in America) Denis Lacorne comes this new book of intellectual history: The Limits of Tolerance: Enlightenment Values and Religious Fanaticism (Columbia University Press). Lacorne’s thesis seems to be the rather familiar one that tolerance is a distinctively 17th and 18th century idea emergent in the views of such people as Locke and Voltaire (Locke is perhaps a more familiar source on this score than Voltaire, whose writing about toleration is rather more uneven in its commitment). There also seems to be a very practical and how-to side of the book, as the description suggests, applying Enlightenment wisdom to contemporary problems. It would be interesting to put Lacorne in conversation with Robert Wilken, whose recent book on a similar theme offers a very different view.

“The modern notion of tolerance—the welcoming of diversity as a force for the common good—emerged in the Enlightenment in the wake of centuries of religious wars. First elaborated by philosophers such as John Locke and Voltaire, religious tolerance gradually gained ground in Europe and North America. But with the resurgence of fanaticism and terrorism, religious tolerance is increasingly being challenged by frightened publics.

In this book, Denis Lacorne traces the emergence of the modern notion of religious tolerance in order to rethink how we should respond to its contemporary tensions. In a wide-ranging argument that spans the Ottoman Empire, the Venetian republic, and recent controversies such as France’s burqa ban and the white-supremacist rally in Charlottesville, The Limits of Tolerance probes crucial questions: Should we impose limits on freedom of expression in the name of human dignity or decency? Should we accept religious symbols in the public square? Can we tolerate the intolerant? While acknowledging that tolerance can never be entirely without limits, Lacorne defends the Enlightenment concept against recent attempts to circumscribe it, arguing that without it a pluralistic society cannot survive. Awarded the Prix Montyon by the Académie Française, The Limits of Tolerance is a powerful reflection on twenty-first-century democracy’s most fundamental challenges.”

Forsyth, “Common Law and Natural Law in America”

This one is a necessity. The tension between what could be called–very roughly and impressionistically–the “natural law” and “common law” orientations to law is a perennial source of interest. Should we think of law as derived from and guided by certain unchanging moral truths? Or should we instead think of it as a body of wisdom that accretes over time? Principle or experience? Universal or local? Of course both general views about law have played central roles in the history of Anglo-American legal thought.

Here is what looks like a very interesting new study of these age-old questions: Common Law and Natural Law in America: From the Puritans to the Legal Realists (Cambridge University Press), by Andrew Forsyth.

“Speaking to today’s flourishing conversations on both law, morality, and religion, and the religious foundations of law, politics, and society, Common Law and Natural Law in America is an ambitious four-hundred-year narrative and fresh re-assessment of the varied American interactions of ‘common law’, the stuff of courtrooms, and ‘natural law’, a law built on human reason, nature, and the mind or will of God. It offers a counter-narrative to the dominant story of common law and natural law by drawing widely from theological and philosophical accounts of natural law, as well as primary and secondary work in legal and intellectual history. With consequences for today’s natural-law proponents and critics alike, it explores the thought of the Puritans, Revolutionary Americans, and seminal legal figures including William Blackstone, Joseph Story, Christopher Columbus Langdell, Oliver Wendell Holmes, and the legal realists.”

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