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Abstract:
On several occasions during the last eighty years states have attempted to either prohibit the teaching of evolution in public school science classes or counter the teaching of evolution with mandatory references to the religious doctrine of creationism. The Supreme Court struck down examples of the first two generations of these statutes, holding that they violated the Establishment Clause of the First Amendment. A third generation of creationist legislation is now being proposed. Under this new generation of creationism legislation, science teachers would present so-called intelligent design theory as an alternative to evolution. Intelligent design theory asserts that a supernatural intelligence intervened in the natural world to dictate the nature and ordering of all biological species, which do not evolve from lower- to higher-order beings. This article considers whether these intelligent design creationism proposals can survive constitutional scrutiny. The authors analyze the religious, philosophical, and scientific details of intelligent design theory, and assess these details in light of the constitutional doctrine developed by the Court in its previous creationism decisions. The article discusses several factors that pose problems for intelligent design theory, including the absence of objective scientific support for intelligent design, evidence of strong links between intelligent design and religious doctrine, the use of intelligent design to limit the dissemination of scientific theories that are perceived as contradicting religious teachings, and the fact that the irreducible core of intelligent design theory is what the Court has called the manifestly religious concept of a God or Supreme Being. Based on these details, the authors conclude that intelligent design theory cannot survive scrutiny under the constitutional framework used by the Court to invalidate earlier creationism mandates.

Abstract:
This Article reviews three different aspects of the constitutional protection of state sovereignty. The first section will introduce the issues arising from disputes over state sovereignty by reviewing the Supreme Court's application of state sovereignty concepts leading up to the constitutional crisis of 1933-36. The second section will discuss the abstract concept of sovereignty and its application in the system of American federalism. The third section of the Article will examine the Court's recent state sovereignty decisions in light of this abstract conception of sovereignty. The third section will place particular emphasis on the logical inconsistencies of the Court's new state sovereignty decisions. These decisions
are justified by rationales that seem to incorporate the same broad conceptions of sovereignty described in section two, but in the end the modern Court has stopped short of providing states with the power to adopt and enforce policies that are exclusive and final in the sense that a coherent concept of sovereignty requires. The third section will conclude with a discussion of the implications presented by this anomaly.

Abstract:
Inspired by the burgeoning empirical literature on the judiciary, the editors of the Florida State University Law Review have solicited some papers from leading scholars and federal courts of appeals judges, asking them to address the topic of empirical measures of judicial performance. The papers in this "Symposium on Empirical Measures of Judicial Performance" address empirical measures of judicial performance from a variety of methodological perspectives, but as this Foreword suggests, they can roughly be organized around three basic themes. First, many of the papers critique the empirical enterprise itself and especially the tournament strategy for evaluating judges, although these papers also raise important issues for future empirical study of judges. Second, many of the papers in the Symposium propose new ways of operationalizing the empirical study of judicial performance or present fresh new empirical evidence about judges and courts. Third, some of the papers focus on the behavioral and institutional implications or empirical studies of judges and courts. As the papers in the Symposium would indicate, the empirical tournament has inspired some important advances in the discourse about measurement of performance in the context of the judiciary and its relevance to the selection of judges and the judicial process. While efforts to measure judicial performance empirically simultaneously revive many old controversies and presents new issues, its debates will be certain to continue as long as we have data, judges, and courts.

Abstract:
This article is a brief consideration of the ways in which the development of the Internet challenges existing categories of First Amendment free speech jurisprudence. The new avenues for speech made possible by the Internet call into question many of these conflicting doctrines that define modern First Amendment free speech jurisprudence. Speech in cyberspace casts doubt upon the content and viewpoint-protective First Amendment doctrines, because to many government regulators (though not yet many judges) the broad and unfiltered access to "bad" speech over the Internet creates a much greater risk that speech can facilitate antisocial, and even illegal, conduct in ways that would not have been possible even a decade ago. Conversely, the ethereal nature of the Internet - which is both everywhere and nowhere - renders obsolete many of the Court's old rationales for regulating speech. Concepts of speech regulation that are premised on the need to protect a local community's moral atmosphere seem like relics of a bygone age in a time when everyone with a telephone line has immediate access to the latest artistic, political, scientific, social, and sexual attitudes and expression. Likewise, concepts of speech regulation that are premised on the need to protect public spaces from noise, litter, or unruly crowds have very little logical application to a medium that by design does not occupy a firmly situated physical space. This article discusses the application of some of these doctrines in cyberspace and considers whether the further development of the new medium will likely lead to more or less speech-protective First Amendment doctrine.

Abstract:
This article addresses the often difficult relationship between the speech and religion clauses of the First Amendment. The article challenges the routine assumption that religious speech should always be treated the same as other types of speech under the First Amendment. This challenge is based on the conclusion that the presence of the Establishment Clause in the First Amendment requires courts to treat religious speech differently than other types of controversial speech when that speech occurs on government property or in some other context that associates the religious speech with the government. In other words, the First Amendment itself limits the extension of free speech protection to religious speech whenever that protection would undercut the separation of church and state required by the Establishment Clause. Although this premise may initially seem both unusual and hostile to the central First Amendment goal of protecting religious liberty, in reality the Court itself has recognized that religious speech poses special dangers for a pluralist democracy. This recognition has often motivated the Court to permit greater restrictions on religious speech than on speech pertaining to nonreligious matters. The paradox is that these restrictions are necessary precisely to preserve the essential conditions in which religious liberty may flourish. This article explains that paradox and attempts to define its scope.

Abstract:
A panel of the United States Court of Appeals for the Ninth Circuit created a furor recently when it ruled that the inclusion of the words "under God" in the official Pledge of Allegiance violates the Establishment Clause of the First Amendment. Responses to this ruling by politicians, the press, and legal academics were overwhelmingly critical. The unifying theme of many of these responses is that the claim against the "under God" language in the Pledge is trivial and therefore not the proper basis for an Establishment Clause ruling. This Article uses the Pledge controversy as a vehicle for investigating the concept of constitutional trivia in the Establishment Clause context. There are two variations on the argument that the "under God" controversy is trivial. The first variation asserts that the religious component of the Pledge has so little religious significance that it does not rise to the level of an Establishment Clause violation. The second variation acknowledges the religious significance of the "under God" language, but asserts that trivial religious exercises should be considered permissible exceptions. to the normal First Amendment rules. The problem is that neither variation on the triviality defense of the Pledge can be reconciled with a plausible reading of the factual background of the Pledge statute, or with the overwhelming thrust of the Supreme Court's Establishment Clause precedents. The triviality defense of the Pledge is therefore difficult to accept at face value. This defense should be viewed instead as a distorted reflection of the growing conflict over the most basic principle of Establishment Clause jurisprudence: Does the Constitution continue to mandate a secular government, or has the subtle sectarian dominance of government become an accepted constitutional fact?

Abstract:
The last decade has witnessed an explosion of religious activity in the public sphere. Political candidates of both parties loudly pronounce their individual faith and link. that faith directly to their political values. Candidates use religious gatherings as political podiums and confidently assert that their God and His teachings define the country's very nature. Meanwhile, activities conducted by religious groups in public schools have become both more numerous and more prominent in the last decade. These activities include public prayer sessions at graduation ceremonies and extracurricular events, meetings by religious organizations on public school properly, prayer sessions around flagpoles outside public school buildings, and religious assemblies on school property, sometimes during the school day. Religious activities by groups of adults in public spaces other than schools have also multiplied. Religious groups conduct large-scale religious ceremonies in public parks, erect religious displays inside and outside public buildings, and even build permanent religious structures on public land.

Abstract:
In February 1999, a federal jury in Oregon awarded Planned Parenthood and several other plaintiffs a civil judgment of $107 million against individuals and groups that published two anti-abortion posters and provided information for an anti-abortion website known as The Nuremberg Files. The posters and website included the usual range of anti-abortion expression: immoderate statements opposing the procedure; pictures of bloody fetuses allegedly produced by abortions; references to the satanic impulses of abortion providers; and grandiose statements about the need to prepare for eventual Nuremberg-style trials of all those who provide abortion services or otherwise participate in what the defendants consider the equivalent of mass murder. By now much of this is standard fare in the acrimonious debate over abortion rights. The posters and the Nuremberg Files website went beyond the incendiary rhetoric that characterizes typical anti-abortion militancy, however, by listing the names of individuals who provide support for abortion services-including doctors, clinic workers, police officials, politicians, and judges. Additional personal information was included for some of the individuals, such as their home addresses and telephone numbers. Most notoriously, the operators of the website drew a line through the names of abortion providers who were murdered because of their professional activities. The Oregon jury concluded that the combination of ominous rhetoric and specific identification of individuals constituted a threat to the named individuals, in violation of the federal Freedom of Access to Clinic Entrances Act (FACE).

Abstract:
This article is a critique of the Court's new category of "intimidating" speech and how that new category of speech fits into the series of ongoing judicial attempts to undermine basic First Amendment protections of radical political speech and dissent. Section one describes in more detail the many inconsistent themes of Virginia v. Black. Section two addresses the contradictions between settled doctrine regarding content and viewpoint discrimination, and the Court's willingness to uphold such discrimination against cross burners. Section three discusses yet another doctrine mangled by the Court's decision in Virginia v. Black: the overbreadth doctrine. Section four addresses the relationship of intimidating speech and the concept of the "true threat," focusing on the Supreme Court's consistent refusal to define the latter category and the continuing efforts in the lower courts to define a "true threat" in the face of the Supreme Court's silence. Section five addresses the heart of the matter: How can "intimidating" speech be denied First Amendment protection in light of the fact that several major First Amendment free speech cases decided during the last century dealt with speech that contained overtones of intimidation indistinguishable from those in Virginia v. Black?

Abstract:
Once it is conceded that a political structure defined by religious principles will exclude those who do not choose to adopt those principles, then there is little left in the search for religious unity. If cultural and political unity is a desirable goal, therefore, we must search for a secular alternative to the religious unity model. I sketch the outlines of two such secular options in this essay. One, which I will term the affirmative case for constitutional secularism, takes as its starting point the essential functions of a democracy, and uses those essential functions as the lodestar for political unity. The second, darker model, which I will term the negative case for constitutional secularism, is based on the indisputable recognition that the very factors that make religion exclusive and disunifying are also the factors that can lead diverse groups of religious adherents to give up their quest for unity through dominance in exchange for a guarantee of survival. After exploring in a bit more detail the nature of religious exclusivity, I turn to the a fuller explanation of the two options for achieving real - i.e., secular - national unity.

Abstract:
In contrast to other countries, in the United States the nearly absolute protection of political speech under the First Amendment prevents the government from imposing similar punishments on Holocaust deniers. Recognizing the fact that First Amendment doctrine leads to this result is uncontroversial; discerning the reason why the First Amendment doctrine leads to this result is much more problematic. The problem is that the usual explanations for why the First Amendment protects the expression of radical ideas do not easily explain why the First Amendment should protect the public assertion of facts that are both socially worthless (or worse - socially harmful) and demonstrably untrue. I will suggest in this Article that the source of this problem is our persistent reliance on an individual-rights conception of the First Amendment. I will also suggest that it is easier to explain the First Amendment’s protection of speakers who disseminate socially worthless untruths with an appeal to the structural function of the First Amendment within a broader concept of constitutional democracy. Under this conception, the First Amendment is not, in the end, primarily about protecting the individual’s right to speak; rather, the First Amendment is primarily about constraining the collective authority of temporary political majorities to exercise their power by determining for everyone what is true and false, as well as what is right and wrong.

Abstract:
This article addresses the fracturing of modern First Amendment law into multiple different sets of rules and rationales for the protection of speech, depending on what kind of speech is an issue. It is no longer accurate to say that there is one universal First Amendment jurisprudence; indeed, it is no longer accurate to say that there is one First Amendment. Today there are many different - often very different - First Amendments for different types of speech. On a practical level, this fracturing of First Amendment law creates difficulties only in that it requires litigators and judges addressing First Amendment issues to identify the category or categories into which a particular example of speech fits. But on a theoretical level, the fracturing of First Amendment jurisprudence is much more problematic. These theoretical problems arise because First Amendment jurisprudence is not just a collection of narrow rules and doctrines. These rules and doctrines are based on series of presuppositions about the nature of individuals, the proper relationship between the government and its citizens, the extent to which society should accept risks posed by dangerous or antisocial ideas, and the liability of speakers for the consequences of their speech. The problem is that the courts make one set of assumptions when dealing with one area of expression and very different (and often contradictory) assumptions when dealing with other areas of expression.

The article starts by describing the baseline for all free speech jurisprudence - the jurisprudence that applies to political advocacy. It then distills from the Court's major political speech cases a set of principles that will be called "the Brandenburg paradigm." The remainder of the article discusses whether the theoretical assumptions made in the Brandenburg paradigm should also be applied to areas of speech other than political advocacy. Several areas of expression are addressed specifically, including threats, obscenity, "teaching speech," and student speech in public schools. An assessment of these different speech categories indicates that there is no good reason to ignore the Brandenburg paradigm outside the political advocacy category. Indeed, there is one very good reason to apply the Brandenburg paradigm to the entire range of First Amendment issues: The assumptions that underlie Brandenburg - for example, that citizens control the government rather than vice versa, that citizens should develop their own value systems free of government coercion, and that the government should suppress ideas it dislikes only in the face of serious, concrete harms stemming from that expression - should not be regarded solely as artifacts of the First Amendment, but rather as indispensable elements of constitutional democracy itself.

Abstract:
Despite current differences over a certain war in the Middle East, France and the United States share a common heritage of personal liberty that infuses the legal culture in both countries. Americans may not be quite as enthusiastic as their French brethren about the collectivist ideal of fraternitý, but the more individualistic principles of libertý and ýgalitý form the core of American conceptions of personal freedom and provide the central justification for constitutional limits on the exercise of governmental power. One particularly striking manifestation of the similarity between French and American conceptions of personal liberty is the approach to the relationship between government and religion adopted by both countries. Separation of church and state is the ostensible constitutional norm in both countries. In the United States, this approach is codified in the Establishment Clause of the First Amendment, which the U.S. Supreme Court has interpreted as requiring all government actions to reflect both a secular purpose and a secular effect.4 In France, this principle is codified in the constitutional declaration that "France shall be an indivisible, secular, democratic and social Republic."

Abstract:
For several years the Supreme Court has been systematically erecting obstacles to the litigation of constitutional claims in federal court. These obstacles take several forms, including restrictions on standing, restrictions on raising facial challenges to unconstitutional statutes, and an increasingly unwillingness to allow federal courts to infer remedies when necessary to enforce federal statutory or constitutional claims. Although this trend toward limiting federal court authority affects all types of constitutional claims, including those involving traditional individual constitutional rights, the most serious effect is on what can be called "structural rights." The term "structural rights" describes constitutional provisions that are designed to protect the basic nature of democratic government. These provisions constrain the power of the elected branches of government, preserve citizen autonomy, and otherwise ensure that those who use the democratic process to achieve immediate political power do not perpetuate that power in ways that undermine the democratic structure of government in the long term. The negative effects on structural rights of the Court's recent limitations on judicial authority is important because the usual justification the Court gives for these limitations involves the need for judicial restraint and deference to the elected branches of government. This is essentially a claim that the exercise of judicial authority in these circumstances is antidemocratic. The central thesis of this article is that judicial restraint in the face of structural rights claims has exactly the opposite characteristic because in a case raising structural rights claims the current government is disempowered from doing certain things precisely to preserve the democratic structure of government. Deference to the elected branches of government in the name of democracy is therefore uncalled for if the elected branches of government are violating structural rights because those violations actually undermine democracy. Thus, the article concludes somewhat paradoxically that courts must be given the authority to enforce structural rights against the violations of those rights by the elected branches not in spite of democracy, but rather because of it.

Abstract:
It is an uncontroversial fact of political life that the government sometimes must communicate with the public. For several years, however, the Supreme Court has used this uncontroversial fact as a justification for developing a First Amendment doctrine of government speech. This new doctrine does more than simply recognize the government's authority to speak out on matters of public policy; as envisioned by the Supreme Court, the doctrine also allows the government to silence or coerce the speech of those in the private sector who wish to speak out against the government. In much the same way that private speakers have long been given a First Amendment right to fend off government control of their speech, the government now has been afforded a First Amendment "right" to free speech as well. The question is whether this new "right" is necessary. Both the facts and theory of the Court's new government speech cases suggest that the answer to this question is no. For the most part, the cases in which the Court has resorted to its new government speech doctrine involve situations in which the government's ability to communicate with the public would not have been inhibited in any way if such a doctrine did not exist. The Court has even relied on its new government speech doctrine in several cases in which the government either was communicating ambiguously or not at all. It is a mystery why the government should be allowed to employ a First Amendment "right" to government speech against private speakers when the government has nothing to say. This Article addresses the Court's new government speech doctrine. After reviewing the cases in which the Court develops this doctrine, the Article concludes that these cases do not support the Court's increasingly expansive conception of government speech. These cases indicate instead that all of the legitimate purposes of government speech would be served just as effectively by a much more truncated conception of the government speech doctrine than by the broader version being developed by the Court. The Article concludes by proposing, in the alternative, that the government speech doctrine could be eliminated entirely without harming a single one of the government's legitimate objectives. It may be, in other words, that from a First Amendment perspective, the best government speech doctrine is no doctrine at all.

Abstract:
In the short time since the November 2000 presidential election, it has become commonplace in both academic and popular forums to deride the Supreme Court's decisions in Bush v. Palm Beach County Canvassing Board and as - to put it bluntly - intellectually corrupt. The common theme of these attacks on the Court's abrupt resolution of the 2000 presidential election is that the decisions were crassly political efforts to decide the election on behalf of the party favored by the five Justices who formed the Bush v. Gore majority. There is ample justification for this derisive response, in light of the way in which the Court aggressively reached out to decide a case that was by most measures unripe for Supreme Court review, and also in light of the weak constitutional doctrines relied upon by the majority.

Abstract:
Daniel Farber's contribution to this Symposium suggests that some aspects of constitutional jurisprudence can be best understood by treating constitutional rights as default rules. Specifically, he attempts to use the concept of default rules to clarify the hopelessly confused doctrine of unconstitutional conditions. Professor Farber's starting point is incontestable. Virtually everyone agrees that the unconstitutional conditions doctrine is a mess. To borrow Farber's description, the doctrine is a quagmire: there is no generally accepted explanation for how the doctrine is supposed to work, what limits exist on the application of the doctrine, or even what purpose it is supposed to serve. Various prominent academic commentators have offered different suggestions to clarify these issues, but these commentaries explain the doctrine in very different ways and tend to propose different (and even inconsistent) solutions to reconcile the problems posed by the doctrine.

Abstract:
The jurisprudence of the First Amendment's religion clauses is one of the most history-laden of any area of constitutional law. From the beginning of the modern era in the Court's church-state jurisprudence, nearly every discussion of note regarding the meaning of the Establishment and Free Exercise Clauses has revolved around the country's religious history.

Abstract:
It is hard being a constitutional textualist. On one hand, the theorist who argues in favor of absolute fidelity to the literal meaning of the constitutional text is fighting a losing battle against the long Anglo-American tradition of common-law adjudication. In this tradition texts are not mere templates. The common understanding of the legal process is that the words used in legal texts should not be interpreted literally, but rather should be read in context. Textualists generally define the context of a legal document by the overall structure of the relevant legal document, past judicial interpretations, social and legal traditions, and changing social mores and understandings. On the other hand, textualists are sometimes hoisted on their own petard by a text whose unmistakable meaning leads them where they do not want to go. Interpretive textualism tends to be associated with political conservatism. However, politically conservative textualists are occasionally confronted with legal texts that directly contradict the conservative policy objectives that tend to motivate proposals for literalist readings of constitutional texts. In such cases, textualists must ultimately resort to the same subjective and contextual interpretations of language that they claim to eschew.