Wilson & Drakeman’s Church-State Reader

I’m delighted to notice this new church-state reader put together by John F. Wilson (Princeton, emeritus) and our longtime friend and center board member, Donald L. Drakeman, Church and State in American History: Key Documents, Decisions, and Commentary from Five Centuries (4th edition, Routledge). Don kindly informs me that what is new about this edition of the reader is a greatly expanded historical section before the American founding, beginning with the Biblical texts and proceeding through the early Christian and medieval era. It also has the American context, the big Supreme Court cases, and so on.

Every time I teach a church-state course of any kind, I cobble together material from a number of different sources as a kind of rapid introduction for students to this area of the law. This book looks like a handy solution. And I’m sure it’s written with Don’s typical flair and panache.

Here is the description from Routledge:

Church and State in American History illuminates the complex relationships among the political and religious authority structures of American society, and illustrates why church-state issues have remained controversial since our nation’s founding. It has been in classroom use for over 50 years.

John Wilson and Donald Drakeman explore the notion of America as “One Nation Under God” by examining the ongoing debate over the relationship of church and state in the United States. Prayers and religious symbols in schools and other public spaces, school vouchers and tax support for faith-based social initiatives continue to be controversial, as are arguments among advocates of pro-choice and pro-life positions. The updated 4th edition includes selections from colonial charters, Supreme Court decisions, and federal legislation, along with contemporary commentary and incisive interpretations by modern scholars. Figures as divergent as John Winthrop, Anne Hutchinson, James Madison, John F. Kennedy, and Sandra Day O’Connor speak from these pages, as do Robert Bellah, Clarence Thomas, and Ruth Bader Ginsberg.

The continuing public and scholarly interest in this field, as well as a significant evolution in the Supreme Court’s church-state jurisprudence, renders this timely re-edition as essential reading for students of law, American History, Religion, and Politics.

On Blue Laws

Here is something interesting from a book I’m reviewing now by Professor Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy, which takes Justice Felix Frankfurter’s later views of constitutional jurisprudence as in some respects a model for today. Here, Weiner discusses Frankfurter’s view of the Blue Laws, which forbade a wide range of commercial activities on Sunday in order to recognize the sabbath day for Christians, in a famous case called McGowan v. Maryland (1961). The Court upheld these laws for a rather peculiar reason: that “the record is barren” of reasons to *disprove* that forbidding the sales of certain products on Sunday does not contribute to the rationalized well-being of the citizenry.

Justice Frankfurter concurred. Here is a bit from the book with some material from the Frankfurter opinion quoted:

The effect of the law was to set Sundays apart as ‘a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous values for life.’ Perhaps most important, rather than seeing the case as one pitting lone objectors against the state, Frankfurter recognized the individual’s situation in the context of a political community whose ‘spirit…expresses in goodly measure the heritage which links it to its past’ and which could reasonably decide to create an ‘atmosphere of general repose’ that would be disrupted by exempting individuals from the law.

In other words, the majority of the community was entitled to impose regulations that created what it regarded as conditions for living a good life, which included leisure, community interaction, and, yes, a particular convenience for members of the dominant religion….The religious heritage of blue laws was part of the traditions of a community, which could not regard itself as existing simply in the here and now. (97-98)

I’ll have more to say about the book, and claims like the one above, soon.

The Religion of Prison Abolition

A stirp of liberation theology, as it were. A new book discussing religious features or religious phenomena attending the movement from the far left to abolish all prisons. The book is Break Every Yoke: Religion, Justice, and the Abolition of Prisons (Oxford), by “activist-scholars” Joshua Dubler and Vincent Lloyd.

“Changes in the American religious landscape enabled the rise of mass incarceration. Religious ideas and practices also offer a key for ending mass incarceration. These are the bold claims advanced by Break Every Yoke, the joint work of two activist-scholars of American religion. Once, in an era not too long past, Americans, both incarcerated and free, spoke a language of social liberation animated by religion. In the era of mass incarceration, we have largely forgotten how to dream-and organize-this way. To end mass incarceration we must reclaim this lost tradition. Properly conceived, the movement we need must demand not prison reform but prison abolition.

Break Every Yoke weaves religion into the stories about race, politics, and economics that conventionally account for America’s grotesque prison expansion of the last half century, and in so doing it sheds new light on one of our era’s biggest human catastrophes. By foregrounding the role of religion in the way political elites, religious institutions, and incarcerated activists talk about incarceration, Break Every Yoke is an effort to stretch the American moral imagination and contribute resources toward envisioning alternative ways of doing justice. By looking back to nineteenth century abolitionism, and by turning to today’s grassroots activists, it argues for reclaiming the abolition “spirit.””

International Moot Court Competition in Law & Religion: Rome, March 2020

International Moot Court Competition in Law & Religion: Rome, March 2020

Law students: mark your calendars this spring for a remarkable opportunity in the Eternal City.

The European Academy of Religion is hosting the third International Moot Court Competition in Law and Religion. The competition will take place in Rome from March 5th to March 7th, 2020 and is open to law students in both American and European schools.

Student teams will argue a hypothetical case before two courts, the European Court of Human Rights and the U.S. Supreme Court. Scholars and actual judges from both jurisdictions will serve as judges. After a verdict, a roundtable discussion will debate the varying argumentative skills used and highlight the different cultural points of view of the two Courts.

The program is a wonderful chance for students to build advocacy skills, learn about international legal systems, and engage in legal analysis at the intersection of law and religion. The competition case this year involves a state hospital policy prohibiting employees from wearing visible religious signs in public, and the question of what appropriate accommodations are required by statute.

For more details, as well as entry information, please click here.

A Defense of Religious Freedom from the Human Rights Perspective

At our 2014 conference in Rome with LUMSA on international religious freedom and the global clash of values, we were delighted to meet Professor Heiner Bielefeldt, then the United Nation’s Special Rapporteur on Freedom of Religion or Belief. He gave an impassioned talk at the conference.

Professor Bielefeldt, who teaches at the University of Erlangen-Nuremberg, has a new co-authored book: Religious Freedom Under Scrutiny (University of Pennsylvania Press), together with Michael Wiener.

“Freedom of religion or belief is deeply entrenched in international human rights conventions and constitutional traditions around the world. Article 18 of the Universal Declaration of Human Rights enshrines the right to freedom of thought, conscience, and religion as does the International Covenant on Civil and Political Rights, which the United Nations General Assembly adopted in 1966. A rich jurisprudence on freedom of religion or belief is based on the European Convention on Human Rights, drafted in 1950 by the Council of Europe. Similar regional guarantees exist in the framework of the Organization of American States as well as within the African Union. Freedom of religion or belief has found recognition in numerous national constitutions, and some governments have shown a particularly strong commitment to the international promotion of this right.

As Heiner Bielefeldt and Michael Wiener observe, however, freedom of religion or belief remains a source of political conflict, legal controversy, and intellectual debate. In Religious Freedom Under Scrutiny, Bielefeldt and Wiener explore various critiques leveled at this right. For example, does freedom of religion contribute to the spread of Western neoliberal values to the detriment of religious and cultural diversity? Can religious freedom serve as the entry point for antifeminist agendas within the human rights framework? Drawing on their considerable experience in the field, Bielefeldt and Wiener provide a typological overview and analysis of violations around the world that illustrate the underlying principles as well as the relationship between freedom of religion or belief and other human rights.

Religious Freedom Under Scrutiny argues that without freedom of religion or belief, human rights cannot fully address our complex needs, yearnings, and vulnerabilities as human beings. Furthermore, ignoring or marginalizing freedom of religion or belief would weaken the plausibility, attractiveness, and legitimacy of the entire system of human rights.”

On the Hospital

Here is an extremely interesting book on the rise of the hospital in the twelfth and thirteenth century, and how it owes its origins to Christian commitments and medieval political economy. The book is The Medieval Economy of Salvation: Charity, Commerce, and the Rise of the Hospital (Cornell University Press), by Adam J. Davis.

“In The Medieval Economy of Salvation, Adam J. Davis shows how the burgeoning commercial economy of western Europe in the twelfth and thirteenth centuries, alongside an emerging culture of Christian charity, led to the establishment of hundreds of hospitals and leper houses. Focusing on the county of Champagne, he looks at the ways in which charitable organizations and individuals—townspeople, merchants, aristocrats, and ecclesiastics—saw in these new institutions a means of infusing charitable giving and service with new social significance and heightened expectations of spiritual rewards.

Hospitals served as visible symbols of piety and, as a result, were popular objects of benefaction. They also presented lay women and men with new penitential opportunities to personally perform the works of mercy, which many embraced as a way to earn salvation. At the same time, these establishments served a variety of functions beyond caring for the sick and the poor; as benefactors donated lands and money to them, hospitals became increasingly central to local economies, supplying loans, distributing food, and acting as landlords. In tracing the rise of the medieval hospital during a period of intense urbanization and the transition from a gift economy to a commercial one, Davis makes clear how embedded this charitable institution was in the wider social, cultural, religious, and economic fabric of medieval life.”

Against Federalism

Federalism, the enduring political and legal arrangement that government in the United States is an affair divided between the states and the nation–and, indeed, the broader idea that decentralization, diffusion of power, and local experimentation are positive political goods–sometimes seems to come and go into and out of favor depending upon the political trade-winds. It is invoked as an instrument of resistance by states when the national policy is for some substantive reason thought objectionable; it is decried as an instrument of obstruction when the national policy is for some substantive reason thought attractive. These pragmatic considerations in favor of and against federalism often rear their heads in the law and religion context (think, e.g., sanctuary cities now, decisions about religious displays and legislative prayer, and so many others, at other times). Of course there are some committed theoretical types that champion federalism systematically, one reason for which is to lower the national blood pressure on very contentious issues in the face of increasing political polarization.

But some people seem to want to go the other way for the sake of various substantive objectives, and it is not too surprising to see “equality” as one of these. This new book against federalism is The Divided States of America: Why Federalism Doesn’t Work (Princeton University Press), by Donald F. Kettl.

“Federalism was James Madison’s great invention. An innovative system of power sharing that balanced national and state interests, federalism was the pragmatic compromise that brought the colonies together to form the United States. Yet, even beyond the question of slavery, inequality was built into the system because federalism by its very nature meant that many aspects of an American’s life depended on where they lived. Over time, these inequalities have created vast divisions between the states and made federalism fundamentally unstable. In The Divided States of America, Donald Kettl chronicles the history of a political system that once united the nation—and now threatens to break it apart.

Exploring the full sweep of federalism from the founding to today, Kettl focuses on pivotal moments when power has shifted between state and national governments—from the violent rebalancing of the Civil War, when the nation almost split in two, to the era of civil rights a century later, when there was apparent agreement that inequality was a threat to liberty and the federal government should set policies for states to enact. Despite this consensus, inequality between states has only deepened since that moment. From health care and infrastructure to education and the environment, the quality of public services is ever more uneven. Having revealed the shortcomings of Madison’s marvel, Kettl points to possible solutions in the writings of another founder: Alexander Hamilton.

Making an urgent case for reforming federalism, The Divided States of America shows why we must—and how we can—address the crisis of American inequality.”

If God did not exist, it would be necessary to invent him

So spoke Voltaire, and Maximilien Robespierre agreed, for he recognized the need that the new world brought on by the French Revolution would have for an alternative godhead now that Catholicism had been deposed. From that insight sprang the “Cult of the Supreme Being” whose principal tenets concerned a kind of rationalist faith and republican civil religion. The Cult itself did not last too long before Napoleon did away with it. But its effects have been…long-lasting.

Here is a new history of the French Revolution that is sure to touch on these and many other matters concerning religion in the 18th century French world order: A New World Begins: A History of the French Revolution (Basic Books), by Jeremy Popkin.

“The principles of the French Revolution remain the only possible basis for a just society — even if, after more than two hundred years, they are more contested than ever before. In A New World Begins, Jeremy D. Popkin offers a riveting account of the revolution that puts the reader in the thick of the debates and the violence that led to the overthrow of the monarchy and the establishment of a new society. We meet Mirabeau, Robespierre, and Danton, in all of their brilliance and vengefulness; we witness the failed escape and execution of Louis XVI; we see women demanding equal rights and black slaves wresting freedom from revolutionaries who hesitated to act on their own principles; and we follow the rise of Napoleon out of the ashes of the Reign of Terror.

Based on decades of scholarship, A New World Begins will stand as the definitive treatment of the French Revolution.”

A Critique of Human Rights

Here is an interesting-looking book from Princeton University Press that critiques the concept of universal human rights: Rights as Weapons: Instruments of Conflict, Tools of Power, by political scientist Clifford Bob of Duquesne University. (Full disclosure: Professor Bob was a participant in a conference our Tradition Project co-sponsored in June 2017, on the differing conceptions of tradition in American and Russian politics, at the Bruno Kessler Foundation in Trento, Italy). Here’s the description of the book from the Princeton website:

Rights are usually viewed as defensive concepts representing mankind’s highest aspirations to protect the vulnerable and uplift the downtrodden. But since the Enlightenment, political combatants have also used rights belligerently, to batter despised communities, demolish existing institutions, and smash opposing ideas. Delving into a range of historical and contemporary conflicts from all areas of the globe, Rights as Weapons focuses on the underexamined ways in which the powerful wield rights as aggressive weapons against the weak.

Clifford Bob looks at how political forces use rights as rallying cries: naturalizing novel claims as rights inherent in humanity, absolutizing them as trumps over rival interests or community concerns, universalizing them as transcultural and transhistorical, and depoliticizing them as concepts beyond debate. He shows how powerful proponents employ rights as camouflage to cover ulterior motives, as crowbars to break rival coalitions, as blockades to suppress subordinate groups, as spears to puncture discrete policies, and as dynamite to explode whole societies. And he demonstrates how the targets of rights campaigns repulse such assaults, using their own rights-like weapons: denying the abuses they are accused of, constructing rival rights to protect themselves, portraying themselves as victims rather than violators, and repudiating authoritative decisions against them. This sophisticated framework is applied to a diverse range of examples, including nineteenth-century voting rights movements; the American civil rights movement; nationalist, populist, and religious movements in today’s Europe; and internationalized conflicts related to Palestinian self-determination, animal rights, gay rights, and transgender rights.

Comparing key episodes in the deployment of rights, Rights as Weapons opens new perspectives on an idea that is central to legal and political conflicts.

What is the Muslim Brotherhood?

From Harvard University Press, here is a forthcoming book on the history of the relationship between the Muslim Brotherhood and the West, The Muslim Brotherhood and the West: A History of Enmity and Engagement, by historian Martyn Frampton (Queen Mary University of London):

The Muslim Brotherhood and the West is the first comprehensive history of the relationship between the world’s largest Islamist movement and the Western powers that have dominated the Middle East for the past century: Britain and the United States.

In the decades since the Brotherhood emerged in Egypt in the 1920s, the movement’s notion of “the West” has remained central to its worldview and a key driver of its behavior. From its founding, the Brotherhood stood opposed to the British Empire and Western cultural influence more broadly. As British power gave way to American, the Brotherhood’s leaders, committed to a vision of more authentic Islamic societies, oscillated between anxiety or paranoia about the West and the need to engage with it. Western officials, for their part, struggled to understand the Brotherhood, unsure whether to shun the movement as one of dangerous “fanatics” or to embrace it as a moderate and inevitable part of the region’s political scene. Too often, diplomats failed to view the movement on its own terms, preferring to impose their own external agendas and obsessions.

Martyn Frampton reveals the history of this complex and charged relationship down to the eve of the Arab Spring. Drawing on extensive archival research in London and Washington and the Brotherhood’s writings in Arabic and English, he provides the most authoritative assessment to date of a relationship that is both vital in itself and crucial to navigating one of the world’s most turbulent regions.

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