Posted on by Marc O. DeGirolami · 4 Comments

Classic Revisited: Amar’s The Bill of Rights

Today’s classic revisited is Akhil Reed Amar’s The Bill of Rights: Creation and Reconstruction (1998).  Obviously the book contains more than simply a discussion of the religion clauses, but I’ll focus on one of the book’s virtues in respect of that specific subject: Amar’s explanation of the Establishment Clause’s incorporation through the Reconstruction Amendments.  There is a near-universal consensus that the Establishment Clause as originally adopted did not apply to the states: states were free to retain their establishments (or, indeed, to create new ones).  The very purpose of the Establishment Clause was, according to Amar, to leave this issue to the states.  That underlying assumption, if accepted, fits extremely awkwardly with the issue of incorporation.  Moreover, unlike many of the other provisions of the Bill of Rights, which  announce restrictions on the exercise of federal power (“prohibiting” free exercise; “abridging” the freedom of speech; “violating” the security of persons against unreasonable searches and seizures, and so on), the Establishment Clause uses the more passive phrase “respecting” an establishment.  That language is far less clear about the sense in which establishments were thought to be problematic per se.  How then, to argue that incorporation as to the Establishment Clause was appropriate? 

Amar does not just assume the viability of incorporation, as did the Everson Court (with, somewhat suprisingly, not a single dissenting Justice).  Instead, he crafts an argument based in part on the approach of the national government to the federal territories, many of which were eventually to become states.  As an initial matter, the Establishment Clause was to apply to the territories (though Article IV grants Congress plenary power over the territories).  And what Congress could not do, the territorial agent could not do.  But, as Amar says, “to say that, for example, the Iowa territorial legislature ‘shall make no law respecting an establishment of religion’ was rhetorically to say something rather different than that Congress should make no such law.”  (249)  With time, as some of the territories became states, what had begun as a federalism provision took on more substantive content as a general anti-establishment principle applicable to all of government.  — MOD

Posted on by Mark Movsesian

The Personhood Amendment and Pragmatism

From the New York Times, a report on a proposed constitutional amendment in Mississippi that would declare a fertilized human egg to be a legal person. As the Times points out, the Personhood Amendment would effectively make abortion, as well as contraceptive methods like the morning-after pill that prevent the uterine implantation of a fertilized egg, a form of murder under state law. According to the Times, the amendment’s supporters speak in frankly religious terms. One is quoted as saying that the Amendment is “an opportunity for people to say that we’re made in the image of God.”

A couple of points. First, notwithstanding the Rawlsian critique, theological arguments like this are actually fairly rare in American politics, for understandable reasons. As a practical matter, if you want to persuade people in a pluralistic society, you’ve got to make arguments that appeal to different religious and ideological commitments; you’ve got to speak in an idiom that includes rather than excludes. (This may not be the case in Mississippi, concededly, where the amendment is popular and has the support of both the Democratic and Republican gubernatorial candidates). This explains why the right-to-life movement in America tends not to speak in strictly theological terms, but to rely on arguments from reason and, lately, embryonic Read more

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Brandes on Human Dignity and Constitutional Rights Jurisprudence in Israel

Tamar Hostovsky Brandes (Ono Academic College – Faculty of Law) has posted Human Dignity as a Central Pillar in Constitutional Rights Jurisprudence in Israel: Definitions and Parameters. The abstract follows.  –JKH

This paper examines the role the concept of Human Dignity has played in constitutional rights jurisprudence in Israel since the enactment of Basic Law: Human Dignity and Liberty, in particular with regard to the recognition of rights not explicitly included in the Basic Law.

The right to Human Dignity has served as the primary source of recognition of unenumerated rights in Israel. This paper examines the methods employed by the Supreme Court in determining which unenumerated rights fall within the scope of the Basic Law. It examines the theories of interpretation applied by the Court when recognizing unenumerated rights and the judicial rhetoric used throughout the years to justify recognition of unenumerated rights.

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Van der Vyver on The Contours of Religious Liberty in South Africa

Johan D. van der Vyver (Emory University School of Law) has posted The Contours of Religious Liberty in South Africa. The abstract follows. – ARH

As far as religion and religious diversity are concerned, the South African Constitution can be described as one of profound toleration and accommodation. The Constitutional Court has on several occasions emphasized the importance of religion for the State. South Africa is therefore not a secular State but can best be described as a religiously neutral State.

The constitutional principle of non-discrimination applies not only to discrimination by the State, but also to discrimination by private individual and non-State institutions, including religious institutions. The Promotion of Equality and Prevention of Discrimination Act of 2000 amplified the constitutional proscription of discriminatory practices. When applying the non-discrimination decree to religious institutions, State courts will not unduly interfere in the internal sphere sovereignty of such institutions.  Read more

Posted on by Marc O. DeGirolami

Transcript of Oral Argument in H-T, and Some Questions/Reactions

For those who may be interested, here is the transcript of the oral argument in H-T.  After the jump, some thoughts and/or questions.

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Posted on by Marc O. DeGirolami

Drakeman’s “Church, State, and Original Intent”

Over the years, the Establishment Clause has become encrusted with various sorts of new meanings and applications.  I do not say this as a criticism (though I do think that some applications are regrettable) but merely as a description of the evolution of constitutional law as time has passed.  Those who are interested in a thorough and superb treatment of the original meaning of the Establishment Clause (and the original intentions of the framers, which is a different issue than the original meaning) will very much enjoy Donald L. Drakeman’s excellent Church, State, and Original Intent (CUP 2009), in which Drakeman uncovers evidence that the Establishment Clause was meant originally to do nothing more than forbid the establishment of a national church (as in England).  The publisher’s description follows.  — MOD

This provocative book shows how the United States Supreme Court has used constitutional history in church-state cases. Donald L. Drakeman describes the ways in which the justices have portrayed the Framers’ actions in a light favoring their own views about how church and state should be separated. He then marshals the historical evidence, leading to a surprising conclusion about the original meaning of the First Amendment’s establishment clause: the framers originally intended the establishment clause only as a prohibition against a single national church. In showing how conventional interpretations have gone astray, he casts light on the close relationship between religion and government in America and brings to life a fascinating parade of church-state constitutional controversies from the Founding Era to the present.

Posted on by Marc O. DeGirolami

Classic Revisited: Stokes’s “Church and State in the United States”

Studies of the constitutional law and history of the religion clauses often seem to be largely a late twentieth century phenomenon (this is not too surprising, since things began to heat up in earnest in the mid-’40s), but there are many notable predecessors.  One of these is Anson Phelps Stokes’s gargantuan effort, Church and State in the United States, first published in 1950 in three volumes.  It contains many historical details that are well worth savoring and which don’t seem to have made it to subsequent treatments (particularly church/state episodes in early America).  The three volumes were later condensed into one volume by the brilliant Leo Pfeffer, with some slightly polemical editing by Pfeffer as well (as committed a 1960s-70s-style separationist as one could find). 

As I could not find an image of the original Stokes volumes, I’ve attached an image of the 1964 Pfeffer abridgement.  But a few years back I looked through Volume I of the original — if you can get your hands on it, it’s well worth it.  — MOD

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Horwitz on the Ministerial Exception

Paul Horwitz (University of Alabama School of Law) has posted Act III of the Ministerial Exception. The abstract follows. –JKH

On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called “ministerial exception”: the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by “ministerial” employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case.

Posted on by Marc O. DeGirolami

Lecture: Levinson on Constitutional Faith at Touro

On October 10, Professor Sanford Levinson will deliver the inaugural lecture in what looks like a wonderful lecture series at the Jewish Law Institute at Touro Law Center, directed by my friend, Sam Levine.  Professor Levinson will speak about his well-known book, Constitutional Faith, which has been reissued with a new afterword by Levinson, as noted here.  — MOD

Posted on by Marc O. DeGirolami

McConnell Reviews 2010 at the Court

Professor Michael McConnell (Stanford) has a comprehensive and incisive review of the Supreme Court’s 2010 decisions at First Things.  He says that as a whole, last year was comparatively calm when one takes a peek at the cases on for 2011.  I got pretty excited about some of the decisions that McConnell discusses (and I found it very interesting that he would have signed on to Justice Alito’s concurrence in Brown v. EMA, the violent video games decision) but I agree with him about this term.  A must read!!  — MOD [x-posted MOJ]