No Future Without (Personal) Forgiveness: Re-Examining the Role of Forgiveness in Transitional Justice

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness, and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness. These assertions lead to two further observations. First, because the state has a normative role in its (limited) capacity to forgive on its own behalf and a practical role in its ability to spread and to transmit a shared narrative framework, the state has an important place in political forgiveness. Second, because the primary historical example of political forgiveness in transitional justice is the South African Truth and Reconciliation Commission that unfolded within an explicitly Christian theological framework, it may be that the shared narrative framework need be religious or even Christian in nature

Between Liberalism and Theocracy

Our symposium conveners have focused us on “the relationship between liberalism and Christianity and their influence on American constitutionalism.” My objective is to complicate the relationship and reorient the influence. The focus of my inquiry is the liberty of conscience and its implications for the relationship between church and state. By approaching these issues through the lens of political theology (as distinct from either political or constitutional theory), hope to show that some of the most significant embodiments of conscience in the American colonies can neither be squared with an individualistic liberalism (as some on the left are prone to do) nor appropriated in the service of arguments that collapse the distinction between church and state (as some on the right are prone to do).I have in mind the political practices of Roger Williams and William Penn. Both are important figures in American political thought, both were known to many of the Founders, and both have drawn increased attention in recent scholarship. Both were also deeply theological thinkers—and their political practices cannot be given sense outside of the theological narratives within which those practices arose. My engagement with Williams and Penn is not confined to their arguments. Both men lived out their political practices in an era much different than our own. For this reason, identifying the theological context of Williams and Penn is only a first step. An equally important objective of this essay is to frame the ongoing relevance of their contributions. To this end, I link the theological politics of Williams and Penn to two contemporary theologians, John Howard Yoder and Stanley Hauerwas. I then suggest a way to connect the theological insights of Yoder and Hauerwas back to Williams and Penn through the work of constitutional scholar H. Jefferson Powell. This essay sketches these connections as a roadmap to future work. It is offered as an opening round of what I hope will evolve into an extended discussion about the contribution of these five theological thinkers to our understanding of religious freedom and the intersection of theology, political theory, and law

The Forgotten Freedom of Assembly

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women\u27s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called \u27the right of the people peaceably to assemble\u27 part of \u27the Constitutional substitute for revolution\u27. In 1939, the popular press heralded it as one of the \u27four freedoms\u27 at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the \u27basic liberties\u27. But in the past thirty years, assembly has been reduced to a historical footnote in American law and political theory. Why has assembly so utterly disappeared from our democratic fabric? This article explores the history of the freedom of assembly and what we may have lost in losing sight of that history

Making Sense of Schaumburg: Seeking Coherence in First Amendment Charitable Solicitation Law

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear understanding of the value of charitable solicitation. It has also left lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been \u27unclear\u27 about the appropriate standard. I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My approach is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy

The Purpose (and Limits) of the University

Scholars of the university have produced volumes about growing pressures on the coherence and purpose of institutions of higher education. Meanwhile, legal scholars’ writing about the university has typically focused on its First Amendment dimensions. This Article links insights from these two groups of scholars to explore the purpose of the university and defend it against increasing technological, ideological, and cultural pressures. It argues that a better understanding of the relationship between the First Amendment and the university can help strengthen the coherence of the university’s purpose against these pressures. The connection between the First Amendment and institutional purpose is in some ways unsurprising. Limits on expressive liberties have always set the boundaries of expression for political communities, and the university is a kind of political community. These boundaries reflect something about a community’s goals, values, and—ultimately—its purpose. Part I sets forth a normative framework for the university as what the philosopher Alasdair MacIntyre terms a “place of constrained disagreement.” The paradigmatic university under this framework reflects three characteristics: it is dialogical, it is democratic, and it is residential. Part II builds upon this understanding of the university by considering its intersection with five contemporary First Amendment issues: academic freedom, public employee speech, public forums, safe spaces, and religious pluralism

Holmes, Humility, and How Not to Kill Each Other

Justice Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In that opinion, Holmes sets out two core aspects of his free speech jurisprudence: his pragmatic concern about majoritarian control and his quasi-libertarian preference for the “competition of the market.” In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed—some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes, at times, gestured toward a foundationless relativism. But even if his larger corpus hints toward that direction, his Abrams dissent can be read to sketch a less skeptical approach rooted in a kind of epistemic humility. This interpretation enlists Holmes as an advocate for more charitable discourse across deep differences. In today’s pluralistic society, acknowledging our lack of certainty can help us move toward better dialogue with one another. At a time when we too often sacralize our own views and condemn our opponents, epistemic humility could help our society avoid escalating from weaponized words to actual weapons. This is no small matter. Holmes knew firsthand the reality of violence, having watched friends die in the Civil War and having himself been wounded three times in battle. We are nowhere close to that kind of violence, but we should not think it unimaginable. As philosopher Alasdair MacIntyre has quipped, “[m]odern politics is civil war carried on by other means.” The less we are able to maintain civil dialogue across deep disagreement, the more we may glimpse the possibility of actual violence. This Article suggests that the kind of epistemic humility we can find in Holmes’s Abrams dissent provides an important resource for preserving a stable political order. Part I offers a reading of the famous dissent that focuses on the humility underlying Holmes’s epistemic claims and explains the implications of this humility for discourse norms. Part II distinguishes epistemic humility from more skeptical views. Part III then applies a lens of epistemic humility to three kinds of truth claims in contemporary discourse: claims whose certainty is not provable (focusing on the example of religious claims), claims whose practical certainty is not yet proven (focusing on the example of medical treatments of transgender children), and claims that are certain to be false (focusing on the example of demonstrable lies)

COVID-19, Churches, and Culture Wars

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to stop the spread of a deadly virus, a public health interest of the highest order. These already high constitutional stakes were further heightened by a rapidly changing pandemic, a heated presidential election, and Justice Amy Coney Barrett’s Supreme Court appointment, all of which fueled the fire of the culture wars. This article explores the free exercise implications of the Court’s resolution of challenges to the COVID-19 shutdown orders through these constitutional and cultural lenses