Tag Archives: Constitutional Law

Center Sponsors Successful Joint Colloquium with Villanova Law School

Here’s an article, from the St. John’s Law School website, on the inaugural session of the Joint Colloquium in Law and Religion, which the Center hosted with Villanova Law School this semester. The Joint Colloquium, which featured leading law and religion scholars, used innovative “virtual classroom” technology to allow students and faculty at both schools to participate simultaneously through a synchronous video link.

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Joint Colloquium with Michael Walzer

From the article:

Michael Walzer (Institute for Advanced Studies) discussed the ethics of war in classical and contemporary Jewish law. Legal historian Sarah Barringer Gordon (University of Pennsylvania) explained how the availability of the corporate form empowered African-American congregations in the early national period. Kristine Kalanges (Notre Dame University School of Law) explored the relationship between Islamic law and contemporary ideas about constitutionalism and human rights. Kent Greenawalt (Columbia Law School) and Donald L. Drakeman (Cambridge University) both presented papers on Originalism. Greenawalt argued that factors other than the original understanding inevitably will and should play an important role in constitutional interpretation. Drakeman offered a methodological middle ground, one that takes account of both original intent and original meaning. Steven D. Smith (University of San Diego School of Law) critiqued the standard account of American religious freedom, and asked whether religious freedom in America today is suffering a decline.

The virtual classroom enriched the discussions by allowing for a fruitful exchange between participants at the two host schools. After the speakers presented their papers, students had the opportunity to ask questions and present their own insights and opinions on the issues.

This was our first experience with virtual classroom technology, and it was highly successful. You can read more about the joint colloquium, and view a photo gallery, here. Thanks to everyone who made it possible, and see you next time!

 

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Dixon & Ginsburg (eds.), “Comparative Constitutional Law in Asia”

comparative-constitutional-lawThis April, Edward Elgar Publishing will publish Comparative Constitutional Law in Asia edited by Rosalind Dixon (University of New South Wales, Australia) and Tom Ginsburg (University of Chicago). The publisher’s description follows.

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions. The authors – leading comparativists from around the world – illuminate material from Asian jurisdictions on matters such as freedom of religion, constitutional courts, property rights, emergency regimes and the drafting process of constitutions. Together they present a picture of a region that is grappling with complex constitutional issues and is engaged with developments in the rest of the world, while at the same time pursuing distinctive local solutions that deserve close attention. This unique scholarly study will prove an important research tool for Asian scholars, constitutional lawyers within Asia and comparative constitutional scholars around the world.

Hair and Prison in Nineteenth Century Law

Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”

The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.

But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.

Supreme Court Agrees to Hear Muslim Prisoner Beard Case

The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.

The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.

Dreisbach & Hall (eds.), “Faith and the Founders of the American Republic”

9780199843350This April, Oxford University Press will publish Faith and the Founders of the American Republic edited by Daniel L. Dreisbach (American University) and Mark David Hall (George Fox University). The publisher’s description follows.

The role of religion in the founding of America has long been a hotly debated question. Some historians have regarded the views of a few famous founders, such as Benjamin Franklin, Thomas Jefferson, James Madison, and Thomas Paine, as evidence that the founders were deists who advocated the strict separation of church and state. Popular Christian polemicists, on the other hand, have attempted to show that virtually all of the founders were pious Christians in favor of public support for religion.

As the essays in this volume demonstrate, a diverse array of religious traditions informed the political culture of the American founding. Faith and the Founders of the American Republic includes studies both of minority faiths, such as Islam and Judaism, and of major traditions like Calvinism. It also includes nuanced analysis of specific founders-Quaker John Dickinson, prominent Baptists Isaac Backus and John Leland, and Theistic Rationalist Gouverneur Morris, among others-with attention to their personal histories, faiths, constitutional philosophies, and views on the relationship between religion and the state.

This volume will be a crucial resource for anyone interested in the place of faith in the founding of the American constitutional republic, from political, religious, historical, and legal perspectives.

Constitutional Scholars’ Brief in Hobby Lobby

I was pleased to join this amicus brief filed by several constitutional law scholars in the Hobby Lobby/Conestoga Wood litigation (thanks to Nathan Chapman for taking up the pen). The brief argues against the view that the Establishment Clause prohibits an accommodation of the religious claimants. My own views on the matter, reflected in various portions of the brief, are also contained here and here. A post by Kevin Walsh raising an important problem is here. Opposing views may be found here, here, and here. Here is the Introduction and the Summary of the Argument of the amicus brief:

This brief argues that the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (RFRA), properly applied, complies with the Establishment Clause. The brief responds to the recent proposal by several scholars that the Establishment Clause prohibits the government from accommodating “substantial burdens” on religious exercise, as RFRA does, when the accommodation imposes “significant burdens on third parties who do not believe or participate in the accommodated practice.”2 This brief does not address the issues directly before the Court, i.e., whether RFRA protects for-profit corporations like Hobby Lobby and Conestoga Woods, and whether either of those parties has a valid RFRA claim.3

The scholars’ proposed doctrine is contradicted by precedent, would needlessly require courts to analyze three speculative Religion Clause questions in most religious accommodation cases, and would threaten thousands of statutes that protect religious minorities.

First, precedent strongly supports the constitutionality of statutory religious accommodations, like RFRA, that allow courts to weigh the government’s “compelling” interests against claimant’s interests in religious exercise.

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Williams (ed.), “Social Difference and Constitutionalism in Pan-Asia”

Next month, Cambridge will publish Social Difference and Constitutionalism in9781107036277 Pan-Asia, edited by Susan H. Williams (Indiana University). The publisher’s description follows.

In many countries, social differences, such as religion or race and ethnicity, threaten the stability of the social and legal order. This book addresses the role of constitutions and constitutionalism in dealing with the challenge of difference. The book brings together lawyers, political scientists, historians, religious studies scholars, and area studies experts to consider how constitutions address issues of difference across “Pan-Asia,” a wide swath of the world that runs from the Middle East, through Asia, and into Oceania. The book’s multidisciplinary and comparative approach makes it unique. The book is organized into five sections, each devoted to constitutional approaches to a particular type of difference – religion, ethnicity/race, urban/rural divisions, language, and gender and sexual orientation – in two or more countries in Pan Asia. The introduction offers a framework for thinking comprehensively about the many ways constitutionalism interacts with difference.

A Column on Legislative Prayer

I have a short column up at Commonweal on Town of Greece v. Galloway (which the Supreme Court is now considering) and the general question of the constitutionality of legislative prayer.