Clark on Religions on Sovereigns

Elizabeth A. Clark (J. Reuben Clark Law School) has posted Religions as Sovereigns: Why Religion is “Special” The abstract follows.

Commentators increasingly challenge religion’s privileged legal status, arguing that it is not “special” or distinct from other associations or philosophical or conscientious claims. I propose that religion is “special” because it functions metaphorically as a legal sovereign, asserting supreme authority over a realm of human life. Under a religion-as-sovereign theory, religious freedom can be understood as at least partial deference to a religious sovereign in a system of shared or overlapping sovereignty. This Article suggests that federalism, which also involves shared sovereignty, can provide a useful heuristic device for examining religious freedom. Specifically, the Article examines a range of federalism theories and the values of (and concerns about) federalism that they identify and draws strong parallels with a range of theories of religious freedom, highlighting its similar values and potential weaknesses. This comparative endeavor highlights the powerful resonance of sovereignty talk in the religion and law field and suggests that sovereignty is part of the deep structure of our understanding of religious liberty.

McGinnis on Berman

Over at the Liberty Law Blog, John McGinnis (Northwestern) is doing a very interesting series on Harold Berman’s seminal two-volume history of Western law, Law and Revolution. In Law and Revolution, Berman argued that the existence of competing jurisdictions, each with a valid claim on people’s loyalties, has played an essential role in Western law, going all the way back to the 11th-century investiture crisis, which dealt in part with the competing jurisdictions of canon and royal courts. In this post, McGinnis argues that legal polycentrism of the sort Berman describes can promote liberty by preventing governmental monopolies. Classical American federalism, for example, promotes liberty by dividing power between state and federal sovereigns. McGinnis wonders, though, whether federalism can do the job today, now that states claim relatively little loyalty from their citizens. Check out the whole series.

Amar on the Establishment Clause as a Westphalian Resolution

Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:

The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally.  (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.) 

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998).  Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking.  — MOD