Huleatt (SJU Law ’02) Reviews Goodrich

I want to call a little notice to John Huleatt’s review of Luke Goodrich’s new book, Free to Believe: The Battle Over Religious Liberty in America. It’s a thorough, thoughtful, and positive review, and I’m especially pleased to record that Mr. Huleatt is a St. John’s Law graduate, class of 2002.

A Bit More Restraint

The University of Kansas press has long punched above its weight. Lately, it has been publishing books concerning the “political” (that is, non-judicial) Constitution by political scientists, political theorists, and constitutional theorists. Many of these are part of a sort of judicial restraint revanchism, which is itself largely out of vogue among many constitutional theorists. Here’s another book that fits into this general category: Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (Kansas Press), by Louis Fisher.

“Federal judges, legal scholars, pundits, and reporters frequently describe the Supreme Court as the final word on the meaning of the Constitution. The historical record presents an entirely different picture. A close and revealing reading of that record, from 1789 to the present day, Reconsidering Judicial Finality reminds us of the “unalterable fact,” as Chief Justice Rehnquist once remarked, “that our judicial system, like the human beings who administer it, is fallible.” And a Court inevitably prone to miscalculation and error, as this book clearly demonstrates, cannot have the incontrovertible last word on constitutional questions.

In this deeply researched, sharply reasoned work of legal myth-busting, constitutional scholar Louis Fisher explains how constitutional disputes are settled by all three branches of government, and by the general public, with the Supreme Court often playing a secondary role. The Court’s decisions have, of course, been challenged and reversed in numerous cases—involving slavery, civil rights, child labor legislation, Japanese internment during World War II, abortion, and religious liberty. What Fisher shows us on a case-by-case basis is how the elected branches, scholars, and American public regularly press policies contrary to Court rulings—and regularly prevail, although the process might sometimes take decades. From the common misreading of Marbury v. Madison, to the mistaken understanding of the Supreme Court as the trusted guardian of individual rights, to the questionable assumptions of the Courts decision in Citizens United, Fisher’s work charts the distance and the difference between the Court as the ultimate arbiter in constitutional matters and the judgment of history.

The verdict of Reconsidering Judicial Finality is clear: to treat the Supreme Court’s nine justices as democracy’s last hope or as dangerous activists undermining democracy is to vest them with undue significance. The Constitution belongs to all three branches of government—and, finally, to the American people.”

What Can the Government Say?

An area of law and religion that has gotten a bit of attention relatively recently is the so-called “government speech” doctrine, which concerns the fairly liberal (in the non-political sense) rules about what the government may express about religion. So, for example, Summum v. Pleasant Grove City, in which a municipality rejected a privately donated monument by a religious group for display in a public park alongside several other monuments, including a Ten Commandments monument, was decided in favor of the municipality on the basis that the government has considerable latitude in deciding how to speak.

Here is an interesting new book that focuses on the doctrine of government speech in the law and religion context and elsewhere: The Government’s Speech and the Constitution (Cambridge University Press), by Helen Norton.

“When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In The Government’s Speech and the Constitution, Professor Helen Norton investigates the variety and abundance of the government’s speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age. This enables us to understand how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention, and at times our concern.”

Not Too Happy With the Roberts Court

Here’s a new book by Slate magazine writer Mark Joseph Stern about the Roberts Court. He seems to have some criticisms, and I have no doubt that some of them concern the Court’s religion clause jurisprudence. The book is American Justice 2019: The Roberts Court Arrives (University of Pennsylvania Press).

“Following the retirement of Justice Anthony Kennedy and the controversial confirmation of Justice Brett Kavanaugh, the Supreme Court plunged into a contentious term that featured divisive cases involving abortion, immigration, capital punishment, and voting rights on the court’s docket. In American Justice 2019, Mark Joseph Stern examines the term’s most controversial opinions and highlights the consequences of Chief Justice John Roberts stepping into a new role as the court’s swing vote.

No longer bound by Kennedy’s erratic moderation, Roberts has begun doling out victories to both Democrats and Republicans, albeit with a clear rightward tilt. Early in the term, Roberts delivered a public rebuke to Trump’s attacks on the judiciary, foreshadowing his refusal to tolerate some of the president’s most extreme contortions of the law. Stern tracks the chief justice’s evolution from staunch conservative to part-time centrist. Along the way, he details the term’s blockbusters and surprises, including an unlikely alliance between Justices Neil Gorsuch and Sonia Sotomayor on criminal justice, and an especially radical ruling on the death penalty that overturned decades of precedent. Stern’s account depicts a court sharply divided over its role in American democracy, with the man at its center striving to stay above the political fray without abandoning his conservative instincts.”

Legal Spirits Episode 013: A New Supreme Court Case From Montana Concerning the “Blaine Amendment”

Section 6. AID PROHIBITED TO SECTARIAN SCHOOLS. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination

In this podcast, we discuss a new case that the Supreme Court has agreed to hear, Espinoza v. Montana Department of Revenue, concerning a Montana law that created a tax credit scholarship program whose proceeds were directed, in part, to religious schools. The Montana Supreme Court held that the law violated Montana’s Constitution, which has a provision barring any aid to “sectarian” educational institutions. We discuss the historical background to the controversy, the Montana opinion, and the cert. petition. We consider some of the operative metaphors the Supreme Court has used to discuss these kinds of cases (“play in the joints”) and underlying federal constitutional issues and tensions involving neutrality and equality. Listen in!

A Point of Personal Privilege

I’m delighted to announce the publication of this new volume of collected essays on the history, political theory, and law of religious freedom, co-edited by my friend Michael Breidenbach and Owen Anderson: The Cambridge Companion to the First Amendment and Religious Liberty (Cambridge University Press). It won’t be out for a few more months, and I’ll mention it again closer to the date of release. But it’s loaded with interesting pieces by the likes of John Finnis, Steve Smith, Don Drakeman, Zoë Robinson, Phillip Muñoz, Jonathan Den Hartog, and many others. I’ve got a piece in there as well.

“This book is an interdisciplinary guide to the religion clauses of the First Amendment with a focus on its philosophical foundations, historical developments, and legal and political implications. The volume begins with fundamental questions about God, the nature of belief and worship, conscience, freedom, and their intersections with law. It then traces the history of religious liberty and church-state relations in America through a diverse set of religious and non-religious voices from the seventeenth century to the most recent Supreme Court decisions. The Companion will conclude by addressing legal and political questions concerning the First Amendment and the court cases and controversies surrounding religious liberty today, including the separation of church and state, corporate religious liberty, and constitutional interpretation. This scholarly yet accessible book will introduce students and scholars alike to the main issues concerning the First Amendment and religious liberty, along with offering incisive new insights into one of the most important topics in American culture.”

Happy Labor Day!

Ora et labora!! And for your law and religion fix for the day, have a look at the city seal of Toledo, Ohio.

Judicial Restraint Revindicated

Here’s an entry that is not centrally about religion, but about constitutional theory, though it would have important implications for the interpretation of the Religion Clauses. Judicial restraint once was one of the chief objectives of interpretive theories like originalism. But new scholars of originalism tend to downplay judicial restraint, if not to reject it altogether as a justification for originalism. Some, in fact, embrace what has been called “judicial engagement”–the interpretation of the Constitution to serve distinctively political ends drawn from libertarian political theory.

This new book, however, defends judicial restraint as a constitutional virtue: The Political Constitution: The Case Against Judicial Supremacy (University of Kansas Press), by Greg Weiner. (I’m looking forward to reviewing this book for the Liberty Fund)

“Who should decide what is constitutional? The Supreme Court, of course, both liberal and conservative voices say—but in a bracing critique of the “judicial engagement” that is ascendant on the legal right, Greg Weiner makes a cogent case to the contrary. His book, The Political Constitution, is an eloquent political argument for the restraint of judicial authority and the return of the proper portion of constitutional authority to the people and their elected representatives. What Weiner calls for, in short, is a reconstitution of the political commons upon which a republic stands.

At the root of the word “republic” is what Romans called the res publica, or the public thing. And it is precisely this—the sense of a political community engaging in decisions about common things as a coherent whole—that Weiner fears is lost when all constitutional authority is ceded to the judiciary. His book calls instead for a form of republican constitutionalism that rests on an understanding that arguments about constitutional meaning are, ultimately, political arguments. What this requires is an enlargement of the res publica, the space allocated to political conversation and a shared pursuit of common things. Tracing the political and judicial history through which this critical political space has been impoverished, The Political Constitution seeks to recover the sense of political community on which the health of the republic, and the true working meaning of the Constitution, depends.”

A Critique of Religion as Conversation Stopper

Richard Rorty was a famous and influential American philosopher of pragmatism some of whose ideas were adopted and applied by prominent pragmatic legal thinkers like Richard Posner. One of the phrases for which Rorty is known is that religion is a “conversation stopper”–the sort of appeal to authority for any social or moral question that ends rational discussion and should therefore itself be abandoned.

Here is a new book that considers Rorty’s thought about religion in specific and offers a criticism of it: Rorty, Religion, and Metaphysics (Rowman & Littlefield, Lexington Books), by John Owens.

“Believing that humanity would be better off if it simply dropped its traditional religious and metaphysical beliefs, Richard Rorty proposes an alternative approach, drawn from the American pragmatist tradition, where things get their significance against a background of broad human interests, and knowledge is regarded as part of the active pursuit of a better world. Rorty, Religion, and Metaphysics argues that while Rorty’s case is clearly and robustly made, it is fundamentally challenged by the phenomenon of human recognition, the relationship that arises between people when they talk to one another. John Owens demonstrates that recognition, so central to human life, cannot be accommodated within Rorty’s proposals, given that it precisely attributes a reality to others that goes beyond anything a pragmatist framework can offer. It follows that there is more to human interaction than can be explained by Rorty’s pragmatism.”

A Catholic-Enlightenment Hybrid

Francois Fénelon is a very interesting figure of the late 17th and early 18th centuries marking the transition between Catholic and Enlightenment world views in Europe. Fénelon was at one time Archbishop of Cambrai, and so in a position of high authority in the Church. And yet his writing, particularly as respects the French monarchy (as in his Adventures of Telemachus), offer a kind of proto-Enlightenment critique.

Here is a new book translating some of Fénelon’s major work into English and discussing the thought of this important hybrid figure: Fénelon: Moral and Political Writings (Oxford University Press), by Ryan Patrick Hanley.

“Fénelon is arguably one of the most neglected major philosophers of early modernity. His political masterwork was the most-read book in eighteenth-century France after the Bible, and yet today even specialists rarely engage his work directly. This problem is particularly acute in the Anglophone world, where only a small fraction of Fénelon’s vast and influential corpus has appeared in modern English translation.

This collection of new translations of Fénelon’s moral and political writings renders one of the leading voices of early modern philosophy accessible to English-language audiences. Reflecting the impressive breadth of Fenelon’s thought, the volume includes work on topics ranging from education to literature to religion and statecraft. In the realm of political philosophy and ethics, Fénelon was an uncompromising critic of Louis XIV and absolutism, committed to reforming France’s social, political and economic institutions. In the Enlightenment, he came to be celebrated as a pioneering theorist of education and rhetoric, a prescient student of economics and international relations, and a key voice in the philosophical debates among the heirs of Descartes – not to mention his fame as one of the seventeenth-century’s most preeminent theologians and spiritualists and masters of French prose. With an extensive introduction to Fénelon’s life and work, this volume is a critical resource for students and scholars of French history, political philosophy, economics, education, literature, and religion.”

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