The Problem of Religious Learning

The problem of religious learning is that religion—including the teaching about religion—must be separated from liberal public education, but that the two cannot be entirely separated if the aims of liberal public education are to be realized. It is a problem that has gone largely unexamined by courts, constitutional scholars, and other legal theorists. Though the U.S. Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence, and scholars frequently urge policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the problem itself. As a result, discussion about religion\u27s place in public schools often exhibits a haphazard and under-theorized quality. But in an area so fraught with constitutional complexity and high emotion, no edifying policy solutions are likely without a deeper understanding of the relationship between religious learning and liberal public education. This Article aims to fill that gap by giving the problem of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It then draws on that account to develop a unique model of religious learning within liberal learning which takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article\u27s comprehensive examination of the problem of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest reconciliation. Le plus fructueux et naturel exercice de nostre esprit, c\u27est a mon gri la conference.\u2

Faith in the Rule of Law

This is an essay on Brian Z. Tamanaha\u27s Law as a Means to an End: Threat to the Rule of Law (2006). For all but the most unflinching consequentialist, instrumentalism tends to draw mixed reviews. So it does from Brian Tamanaha. His book, Law as a Means to an End: Threat to the Rule of Law, documents with measured diffidence the ascendancy and current reign of legal instrumentalism, so entrenched an understanding of law that it is taken for granted in the United States, almost a part of the air we breathe. Professor Tamanaha shows that in our legal theorizing, our approaches to legal education, our understanding of legal practice, and our perception of judges, legislators, and legal administrators, law is widely believed to be an empty vessel that is open with respect to content and ends. Often, Tamanaha seems to make the stronger claim that noninstrumental views of law strike our modern sensibilities as unreasonable. Should this be of any concern? While Tamanaha intends this book as a warning against the peril that creeping legal instrumentalism poses for the rule of law, his criticism is tempered. On the one hand, he believes that we have already traveled a fair distance toward a purely instrumental view of law and that intellectual developments and the logic of the situation portend a worsening ... nightmarish scenario. He aims to offer a diagnosis of our worrisome time. On the other hand, he cautions the reader not to take his admonitions categorically: Instrumental views of law are often sound, and [m]ore to the point, . . . here to stay —a fixture of the modern condition. Non-instrumental conceptions of law trade on large mythical components that are patently implausible today. Tamanaha concludes on an equivocal note, reaffirming his skepticism about non-instrumental theories and opting for circumspection, if not hopefulness, about the future trajectory of legal instrumentalism. This tension runs throughout and is understandable; after all, one comes across as either unprincipled or insufferably out of touch by weighing in too heavily on either side. But it often leaves the reader wondering what Tamanaha is about in this book. As a work tracing the development of legal instrumentalism in the United States over the past two centuries in 211 pages, the book is readable, nuanced, and persuasive. But the book\u27s remaining thirty-nine pages are less effective in explaining why Tamanaha seems so fretful about the rule of law or what accounts for the seemingly ineliminable impulse to affirm a non-instrumentalist view in the face of the contrary march of history. This Essay speculates about an answer to these questions. It argues that one source of resistance to the inexorable progress of legal instrumentalism lies in the belief that the rules that guide our lives deserve our allegiance because they represent a structure of meaning that transcends our own finitude. Our opposition to legal instrumentalism reflects faith in the rule of law, the belief that the law bestows worth and possibility to its adherents beyond their historical context. Faith in the rule of law exists outside of what Mircea Eliade has called profane time: the evanescent duration of time linked to an individual\u27s own life. Whether the law in fact possesses these spiritual dimensions is unknowable, so there is no way to test this faith. But the value of faith in the rule of law lies in enabling the believer to affirm an ineffable commitment to the law when rational grounds, though often available, are insufficiently powerful to sustain it. This Essay uses Tamanaha\u27s discussion of the rise of legal instrumentalism as well as his earlier treatment of the rule of law as a framework for examining the nature and strength of belief in the rule of law. It explains the significance of what Tamanaha repeatedly emphasizes is the crucial dangerous inability to believe that the law is anything but an instrument—by reinterpreting it as loss of faith in the rule of law. The Essay concludes by considering briefly whether there is inherent value in faith in the rule of law and what that value might be

The Traditions of American Constitutional Law

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future. This Article concludes that when the Court interprets traditionally, it signals the presumptive influence of political and cultural practices of substantial duration for informing constitutional meaning. Traditionalist interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditionalist interpretation’s emphasis on practices that are given tangible form in a people’s lived experiences suggests that it is preferable to speak about politically and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.” This Article identifies traditionalist interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditionalist interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this Article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditionalist interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine

The Sickness Unto Death of the First Amendment

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself. What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it. This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape

Free Exercise by Moonlight

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions. 1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches. 2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed. 3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith. 4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that. In describing these possibilities, the essay considers the cases themselves, various doctrinal developments—focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor—and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points—perhaps with the exception of the second—the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight

Constitutional Contraction: Religion and the Roberts Court

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors — the Rehnquist and Burger Courts — both of which exercised judicial review more regularly. Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases. Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well. Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach — logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene

\u27You\u27d Better Be Good\u27: Congressional Threats of Removal against Federal Judges

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis. I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature political theory to shed light on the frayed relationship between the legislative and judicial branches. Second, I contend that the public’s growing distrust of the judiciary, rooted in a widespread cultural embrace of criticism as an absolute social good, is contributing to the breakdown between the branches. I argue that this ‘culture of criticism’ enables Congress to threaten removal opportunistically and thereby assert its power over the judiciary. Finally, I consider and reject two frequently espoused solutions to this problem – greater public education about the judiciary and more speech – and conclude that there is no feasible prescription to remedy the current state of affairs

Establishment’s Political Priority to Free Exercise

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls “the establishment”—have now, and have always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment’s civil religion—the set of transcendent, church-state propositions that support the political regime’s legitimacy and authority—has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption’s contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court’s Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today’s most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime’s civil religion establishment. Today’s free exercise cases are the latest skirmishes in yesterday’s disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise