The Forum in the Law Reviews

One interesting development in legal scholarship over the last 10 years or so is the increasing importance and prominence of legal blogs as a source of academic commentary. And one measure (a minor one, to be sure, but an interesting one) of the success of legal blogs in affecting legal academic commentary and discussion is the growing frequency of their citations in traditional law reviews. I am surely not the first to make these observations, and doubtless other legal blogs have been cited in law reviews more times than has our relatively young Center for Law and Religion Forum, which is 3 years old. Still, here are the Forum’s citations in the law reviews over its life:

1. Andrew Koppelman, “Freedom of the Church” and the Authority of the State, 21 J. Contemp. Legal Issues 145 (2013).

  • FN 95: “Steven D. Smith, How Important is Public Support for Religious Freedom?, Center for Law and Religion Forum, July 16, 2012, how-important-is-public-support-for-religious-freedom-2-2/).”

2. Jed Glickstein, Should the Ministerial Exception Apply to Functions, Not Persons?, 122 Yale L.J. 1964 (2013).

3. Marie A. Failinger, Twenty-Five Years of Law and Religion Scholarship: Some Reflections, 30 Touro L. Rev. 9 (2014).

4. Elizabeth A. Clark, Liberalism in Decline: Legislative Trends Limiting Religious Freedom in Russia and Central Asia, 22 Transnat’l L. & Contemp. Probs. 297 (2013).

  • FN 95: “Mark L. Movsesian, Copycats, Ctr. for L. & Religion Forum (Aug. 25, 2012), (noting arrest of copycat protesters who interrupted service in cathedral in Cologne, Germany).”

5. Michael A. Helfand, Religion’s Footnote Four: Church Autonomy As Arbitration, 97 Minn. L. Rev. 1891 (2013).

  • FN 134: “Michael Helfand, The New Footnote Four?, Center for L. & Religion (May 25, 2012), (arguing that footnote four of Hosanna-Tabor undermines the jurisdictional approach to the religious clauses)”

6. Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 344 (2014).

7. Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon L. Rev. 37 (2014).

8. Perry Dane, Natural Law, Equality and Same-Sex Marriage, 62 Buff. L. Rev. 291 (2014).

Tocqueville’s Faith

To begin with, I would like to express my gratitude to Marc DeGirolami and Mark Movsesian for inviting me to write this month for the Center for Law and Religion Forum.

What I propose to do over the course of the month is to post a series of short essays dealing with the great French nineteenth century thinker Alexis de Tocqueville.  Specifically, I shall aim to discuss a set of questions arising from his work that concern the relationships between Church and State in the United States and France.  These are well-studied subjects, to be sure. But I hope to have some new things to say.   Moreover, although my primary interest here will be historical and exegetical, I will also consider the application of Tocqueville’s ideas to contemporary matters.

I need hardly stress that Tocqueville remains a thinker of lasting influence and importance.  He plays a prominent role, e.g., in the Harvard historian Niall Ferguson’s recent book, The Great Degeneration:  How Institutions Decay and Economies Die (2013).  Other significant works on contemporary society and culture bear the impress of Tocqueville’s thought, including Robert Putnam’s Bowling Alone:  The Collapse and Revival of American Community (2001) and Habits of the Heart:  Individualism and Commitment in American Life (original edition 1985) by Robert N. Bellah (whose death Mark Movsesian noted in this forum this week) and Bellah’s associates.   (Indeed, the title of the last of these books encapsulates a phrase of Tocqueville’s.)   But however valuable Tocqueville remains as a student of culture and society, his thinking pivots on religion and its varied relationships to political regimes.  He was, he wrote, “convinced . . . that man’s true grandeur lies only in the harmony of the liberal sentiment and religious sentiment, both working simultaneously to animate and restrain souls,” and he noted that he had worked “for thirty years . . . to bring about this harmony.”  (Letter to Claude-François de Corcelle, September 17, 1853, in Alexis de Tocqueville, Selected Letters on Politics and Society 295 (Roger Boesche (ed.) 1985)).   The power, depth and complexity of Tocqueville’s analyses of the relationships between the “liberal” and the “religious” sentiments repay close and repeated study.

Tocqueville was the intellectual heir to both the Enlightenment and Christianity.  In a sense, his entire work can be understood as a dialogue between these two traditions in his mind.  In a letter of October 10, 1836 to his life-long friend Count Louis de Kergolay, he writes that he is passing part of each day reading “three men, Pascal, Montesquieu and Rousseau.”   The choice of these three writers is revealing:  Tocqueville’s interest in Pascal reflects the Christian (and Jansenist) side of his mind; Rousseau and Montesquieu speak for the Enlightenment side.  No less revealing is the fact that Tocqueville does not name any figures from the radical French Enlightenment, such as Diderot or D’Holbach.  He appears to have had little acquaintance with or interest in their ideas.  Rather, he turns to Montesquieu, the leading figure in the moderate Enlightenment, and Rousseau who, though a revolutionary figure, can be considered to represent the counter-Enlightenment.  (For the distinction between “radical” and moderate” Enlightenments, see Jonathan Israel, A Revolution of the Mind:  Radical Enlightenment and the Origins of Modern Democracy (2011)).

Tocqueville’s Deconversion

Before turning to the particular questions that will concern us in later posts, it will be useful to consider Tocqueville’s personal religious beliefs.  These rarely appear in his published works.  But we can infer them from his manner of living and from his extensive Read more

Thanks to Anna Su and Welcome to Mike Helfand

Thanks very much to Anna Su, who has been blogging with us for the month of April. We enjoyed having you with us, Anna, and hope you’ll come back soon.

And welcome to our next guest blogger, Mike Helfand, who will be posting with us in May. Mike joins us from Pepperdine, where he is Associate Professor of Law and Associate Director of the Diane and Guilford Glazer Institute for Jewish Studies. He writes in law and religion, arbitration, and constitutional law; his most recent piece, Litigating Religion, will appear in the Boston University Law Review. Welcome, Mike!

Welcome to Ashley Berner!

CLR Forum is delighted to welcome Ashley Berner as our very first guest for the month of February.  Ashley is a faculty fellow at the University of Virginia’s Institute for Advanced Studies in Culture, directed by James Davison Hunter.   She is the Co-Director, with Hunter, of the Institute’s Moral Foundations of Education Project, which explores modern American educational philosophy and practice.  Ashley holds a D. Phil. degree from Oxford in Modern History and her areas of research include nineteenth-century intellectual history, educational philosophy, and comparative educational systems.  Her current book project explores educational pluralism in the American context.

Please join us in welcoming Ashley to CLR Forum!