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Abstract:
Among the various instruments in the toolbox of liberalism, the so-called "harm principle," presented as the central thesis of John Stuart Mill's classic "On Liberty," has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle's apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal or political content, into which advocates can pour whatever substantive views and values they happen to favor. Perhaps the major problem that results is that advocates are tempted to advance their values and views not on their substantive merits, but rather by promoting the vessel, or the packaging. And like the harm principle itself, that temptation has proven irresistible - not merely to the office party debater or the talk show host, but to sophisticated philosophers as well, notably including the principle's most articulate proponents: J. S. Mill and Joel Feinberg. All in all, the harm principle serves to confuse and distract, and to permit advocates to gain illicit rhetorical advantage without earning their way. Our public deliberations would accordingly be enhanced if the harm principle were retired from duty.

harm principle, liberalism, John Stuart Mill, legal argument

Abstract:
The American Constitution at its founding is often associated with "the Enlightenment," and modern liberal constitutionalism continues to be associated with what Bruce Ackerman refers to as "the spirit of the Enlightenment." This article contrasts the essential features of the classical or historical Enlightenment with those of the modern Enlightenment, as reflected in the thinking of theorists like Rawls, Dworkin, and others and as embodied in a good deal of modern constitutional doctrine. The article argues that the modern Enlightenment is more accurately viewed as an inversion than a continuation of the classical Enlightenment. Moreover, this inversion threatens to undermine the historic constitutional commitments - to freedom of speech, freedom of conscience, individual rights, and equality. Hence, those who are concerned to maintain the historic constitutional commitments might naturally wish for a recovery of the classical Enlightenment. But the prospects for such a recovery are not promising. And the principal obstacle to any such recovery is ... the modern Enlightenment.

constitutional law, U.S. Constitution

Abstract:
Of the various subjects of legal study, jurisprudence is the one in which the most momentous and profound questions about law are addressed, or in which, as Holmes put it, we might hope to "connect . . . with the universe and catch an echo of the infinite." Or so we might suppose . . . but it seems we would be wrong. In recent years, at least, the questions addressed under the headings of "jurisprudence" or "philosophy of law" hold little interest for any but the purest (i.e., the most incorrigibly academic) of theorists. It is hard to resist the impression that the questions are merely semantic, and that some of the most powerful minds in the profession are amusing themselves with word play.

How to account for this peculiar state of affairs? Is jurisprudence a dinosaur that has outlived its time? This essay, written for a general-audience symposium collecting short interpretations of the state of jurisprudence today, reflects on those questions, and suggests that classic jurisprudential claims and questions have been translated into a secular vocabulary and framework that deprive them of their meaning and significance.

Jurisprudence, Legal Philosophy, Secularism, Morality, Natural law, Legal Postivism

Abstract:
Most everyone assumes that impeachment is the only means of removing federal judges and that the Constitution's grant of good behavior tenure is an implicit reference to impeachment. This article challenges these widely shared assumptions. Using evidence from England, the colonies, and the revolutionary state constitutions, the article demonstrates that at the time of the founding good behavior tenure and impeachment had only the most tenuous of relationships. Good behavior, when discussed in the context of the government, consisted of a tenure in office whereby the officer would forfeit her office upon a judicial finding of misbehavior. There would have to be a trial, the hearing of witnesses, and the introduction of evidence, with misbehavior proved by the party seeking to oust the tenured individual. Impeachment, by contrast, referred to a criminal procedure conducted in the legislature that could lead to an array of criminal sanctions. In England and in the colonies, impeachment was never seen as a means of judging whether someone with good behavior tenure had forfeited her office by reason of misbehavior. Most state constitutions did not equate good behavior tenure with impeachment either. Indeed, some distinguished them explicitly. Compared to prior scholarship on good behavior tenure, this article provides a more complete, and therefore more credible, understanding of good behavior tenure. In particular, we demonstrate several propositions for the first time: 1) that the English understanding of good behavior tenure had migrated to her colonies and continued in independent America; 2) that good behavior tenure was not limited to government officials but could be granted to anyone, including tenants in land, licensees, and employees; 3) that the English writ of scire facias was not the only mechanism for ousting those with good behavior tenure; and 4) that the state constitutions generally did not regard impeachment as a means of judging good behavior. Taken together, these propositions devastate the conventional conflation of good behavior tenure with impeachment.

good behavior, impeachment, Act of Settlement, judges, Congress

Abstract:
Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.

constitution, freedom of religion, first amendment, no endorsement prohibition

Abstract:
The martyrdom of Thomas More for refusing to take an oath affirming Henry VIII's marriage to Anne Boleyn and his supremacy over the church has fascinated historians, playwrights, and their readers. Why did More refuse, at such sacrifice to take an oath that nearly everyone in the realm (including More's family and friends) had taken - and that they regarded him as obstinate and absurd for not taking? Why did More refuse to explain the reasons for his refusal, even to close family and friends, beyond saying that they were reasons of "conscience"? And how can More's eloquent affirmation that he would "leave every man to own conscience" and that "every man should leave me to mine" be reconciled with his active persecution and execution of Protestants whose consciences impelled them to embrace what More regarded as heresy? This essay investigates these questions and reflects on their significance for modern commitments to (and difficulties with) the idea of "freedom of conscience."

legal ethics, conscience

Abstract:
An increasingly common view maintains that the legendary wall of separation between church and state has fallen into a state of serious disrepair. There is also a widely voiced opinion about who deserves the blame, or the credit, for this development: the people ostensibly responsible for the wall's decline are religious conservatives, working through and upon the Republican Party and Republican appointees to the federal bench. In this article, I argue that this ascription of responsibility is fundamentally misleading. Complacently offered or accepted, it does a serious disservice to our understanding of the long-term causal influences that have combined to subvert the commitment to church-state separation and also, more generally, to our understanding of the situation we currently occupy and the prospects that may be available to us.

Indeed, from a more detached perspective, the diagnosis ascribing the decay of the wall of separation to religious believers and their political representatives is almost exactly wrong. It would be more accurate, ultimately, to attribute the declining fortunes of the wall - and the principle of separation - to secularists and secular influences (in a modern sense of the term) than to religion.

Part I of the article (Foundations: Separation and the Classical 'Secular') attempts to explain three things: what 'secular' meant in its premodern or classical sense, how the 'secular' in that classical sense gave rise to a jurisdictional question affecting church and state, and how a commitment to 'separation of church and state' and a derivative commitment to freedom of conscience expressed the generally shared classical response to that jurisdictional question. Part II (Dissolution: Separation, Conscience, and the Modern 'Secular') follows the same order, attempting to explain how the concept of the secular was transformed into its modern sense of 'not religious', how the modern sense of the secular dissolved the earlier question of jurisdiction and replaced it with a question of justice, and how this transformation has altered and significantly undermined the classical commitments to separation of church and state and freedom of conscience. Part III (Phasing out the Wall) discusses the stages in which the reduction of the wall - of the commitments to separation of church and state and freedom of conscience - has proceeded in modern American jurisprudence. The Conclusion reflects briefly on the alternatives that may be available to us now.

religious freedom, secularism, separation of church and state, freedom of conscience

Abstract:
If believing is central to what makes us persons, then how do we react when our core beliefs come under serious challenge? The "purest" responses are probably to engage in responsible apologetics, defending our beliefs against the challenges, or else adjustment or relinquishment of our beliefs in accordance with what we come to understand the truth to be. Often, however, we resort to less "pure" responses. We "bend the truth" or "fudge the facts" to deflect challenges to our beliefs. Or, in a response that entails more implicit philosophical sophistication, we deflate our very conceptions of truth and belief: in this case, this essay suggests, we may continue to affirm propositions even though we no longer fully and in good faith believe them.

This essay, presented as part of a lecture series on "Christian Contributions to Contemporary Jurisprudence," argues that this last "declensionist" response produces a kind of hollowness in our personhood. The essay then explores manifestations of such declensionist strategies in modern thinking about the nature of law. It concludes by sketching some possible alternatives that Christian legal thinkers might take in response to such declension.

belief systems, apologetics, truth, contemporary jurisprudence, declensionist response, nature of law, Christian legal thinkers

Abstract:
Religious pluralism is at once the cause of and a substantial impediment to theorizing about religious freedom. The purpose of theorizing in law is typically to impose order on an unruly collection of phenomena - of seemingly conflicting decisions, or doctrines, or legal arguments - and to do so by articulating and elaborating the foundational truths that govern the subject in question. In a condition of religious pluralism, however, theorists typically suppose that it is impermissible to appeal to contested religious beliefs. But these are the very beliefs that would provide the natural foundations for thinking about the proper relation between government and religion (and that at least until relatively recently did provide the foundations for such thinking). This essay, written to provide a succinct "state of the art" review of current approaches, describes and assesses the various ways in which modern theorists of religious freedom have addressed this fundamental difficulty.

religious freedom, religion, freedom, nonestablishment, separation of church and state, free exercise

Abstract:
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience - even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

freedom of religion, freedom of speech, first amendment, constitution, metaethics

Abstract:
This essay defends the ideal of toleration as against familiar criticisms coming from opposing directions. The "illiberal" objection argues that toleration is too permissive. Given the choice, why should we knowingly put up with error? The "ultraliberal" objection, reflected among other places in current free speech and religion clause jurisprudence, complains that "mere" toleration is condescending and illiberal because it declines to treat ideas and persons with equal concern and respect. This essay argues that both sorts of objections are misconceived and that if the valued liberal commitments of the American constitutional tradition are to be maintained, then we will necessarily have to embrace an ideal of toleration. The essay further argues that a renewed commitment to toleration is especially imperative at the present time as we try to cope, internally, with an exhausted ultraliberal discourse reflected in increasingly ineffectual Supreme Court opinions and, externally, with a so-called "clash of civilizations" or cultures that calls upon us to defend our central values rather than complacently pretend to rest in an "overlapping consensus" that needs no more foundational justification.

toleration, dissent, liberal

Abstract:
Using as a point of reference the Ninth Circuit's assertion in Newdow v. United States Congress that "[a] profession that we are a nation 'under God' is identical, for Establishment Clause purposes," to a profession that we are a nation 'under Jesus,' a nation 'under Vishnu,' a nation 'under Zeus,' or a nation 'under no god,' this essay attempts to disentangle three themes that the modern discourse of religious freedom often conflates, with baneful effect. We can call these the public secularism principle, the neutrality principle, and the nonsectarian principle. The essay argues that the first two of these principles have exercised a pernicious influence over First Amendment jurisprudence: but the third, if it could be extracted so that its own distinctive virtues could be appreciated, might provide valuable mooring for what is at present a deeply disoriented discourse.

nonestablishment, nonsectarian, public secularism, First Amendment, religious freedom

Abstract:
In recent years, and especially lately, both the defense and criticism of originalism have become more theoretically sophisticated than they once were, reflecting the influence of philosophy in an analytical vein. But has this sophistication been beneficial? And is it in any case irresistible, so that as Larry Solum suggests, "if philosophical tools make significant contributions to constitutional theory, then constitutional theorists must master them"? This essay questions whether increased philosophical sophistication has benefitted originalism and tentatively concludes that there can be commerce between law and philosophy without colonization.

constitutional law, jurisprudence, originalism, constitutional theory

Abstract:
Throughout the twentieth century, prominent legal thinkers confidently predicted that law as it has been practiced in the West for centuries was archaic and doomed to imminent extinction. Why did they think this, and why were they wrong? And why was "legal indeterminacy" such a source of anxiety to twentieth-century legal thinkers? This essay, given as a lecture at Notre Dame, suggests that the recurring predictions of law's demise and the pervasive angst about indeterminacy were manifestations of debilitating limitations in the philosophical framework within which twentieth-century thinkers understood law (and much else).

Jurisprudence, Legal Philosophy

Abstract:
Hannah Arendt declared that authority has vanished from the modern world. Practically as well as theoretically, we are no longer in a position to know what authority really is. It is a provocative and paradoxical claim. If authority has vanished and we no longer understand what it even is, then how could Arendt be in a position to know that this is so? And how could the rest of us even make sense of what she is asserting, much less make up our minds about whether her assertion is true?

This article approaches these questions by reflecting on an argument that H. L. A. Hart famously made against the jurisprudence of John Austin. Austin had explained law in terms of commands backed by sanctions. Though Hart criticized Austin's account on various grounds, his most decisive objection considered the case of a gunman who demands money from a victim; Hart suggested that even if the subjects of orders backed by sanctions have good reason to comply with those orders, the command-sanction scenario still does not present us with obligation - or with authority.

This article argues that Hart was right, and that his argument applies to much more than command-sanction accounts of authority. Part I suggests that Hart was making what can be viewed as a conceptual or ontological objection that is importantly different from more familiar factual or theoretical objections to accounts of authority. Part II argues that this same kind of conceptual or ontological objection can be made against other familiar accounts of authority as well. Part III proposes that the intellectual framework in which they operate virtually compels modern theorists, even as they attempt to explain authority, to instead explain authority away. The Conclusion asks whether there is anything in this loss of authority that we need to lament.

authority, obligation, jurisprudence, legal theory, divine

Abstract:
Law is of and for persons, and hence legal discourse necessarily operates with some at least implicit conception of what it means to be a person. A good deal of contemporary legal discourse (including First Amendment theorizing, in the areas of both speech and religion) adopts one or more of three currently fashionable conceptions of the person: the person as interest-seeker, the autonomous person, or the person as citizen. But these conceptions are inadequate to account for First Amendment commitments, and modern understandings of free speech and religious freedom have suffered as a result. A better conception for these purposes is that of the person as believer - a conception that would emphasize both the centrality of believing to personhood and the inescapably personal character of "believing." This article discusses this alternative conception and explores its implications for freedom of speech and religion.

Abstract:
Why do law professors continue to produce scholarship even after achieving tenure? This essay, presented as part of a AALS panel discussing "Why We Write?", considers some common and less common responses, and suggests that for at least a few professors, legal scholarship can serve as a way of resisting the overbearing dominance of the "scientific" worldview evident in so much modern thought in favor of a perspective more attentive to the value of persons.

legal education, legal scholarship, law and legal theory

Abstract:
Among the most celebrated statements ever issued in a Supreme Court opinion is Justice Robert Jackson's resounding declaration in Barnette v. West Virginia Board that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." By using the preposition "or" rather than "and," Jackson asserted two constitutional prohibitions: government may not force citizens to confess an orthodoxy, but government may also not prescribe any orthodoxy. Upon reflection, however, the "no prescription" prohibition is manifestly untenable, and neither Justices nor scholars have ever tried to apply it in any consistent way. Nonetheless, this impossible prohibition exerts a powerful and unfortunate rhetorical influence over constitutional discourse: recent examples discussed in the article include work by respected legal scholars including Kent Greenawalt and Michael McConnell and judicial decisions including the recent Newdow decision on the Pledge of Allegiance.

This article first explains why the "no prescription" prohibition could not possibly be taken at face value. The article then considers the various ways in which courts and scholars have tried to qualify or reinterpret that prohibition (such as by limiting the prohibition to religion), and it argues that these efforts do not succeed in avoiding the decisive objections to a "no prescribed orthodoxy" principle. Our constitutional discourse would be more honest and cogent, the article concludes, if Barnette's "no prescription" principle were excised "root and branch."

Constitutional Law, First Amendment

Abstract:
How to ground or support moral commitments and political norms within a naturalistic worldview is a problem that has challenged thinkers at least since the Enlightenment. This essay reviews the delightful account of the philosophes' vain efforts to address the problem offered in Carl Becker's classic, The Heavenly City of the Eighteenth-Century Philosophers. The essay then suggests that more recent thinkers have failed in ways closely similar to those Becker discussed. In particular, Martha Nussbaum's much discussed capabilities approach presents almost precise parallels to the eighteenth-century failures that Becker depicted.

morality, enlightenment

Abstract:
Understandings of constitutional commitments obviously change over time, and those changes are typically accounted for in one of two ways, which might be called the "evolving principle" account and the "it's all just politics" account. This paper develops a third, more Burkean account of constitutional change, in which constitutional commitments are understood as rooted in traditions which reflect ethical commitments that are more than mere "politics" but are not reducible to articulable principles. "Tradition" thus challenges and seeks to dissolve standard polarities between "principle" and "politics," "reason" and "custom," "theory" and "practice," and "top-down" versus "bottom-up." The paper then explores the implications of this more tradition-oriented approach to the constitutional commitment to "separation of church and state," arguing that the best judicial expression of a traditionalist perspective occurs in the much maligned religion clause opinions of Chief Justice Warren Burger.

Abstract:
According to an argument heard a good deal lately, the fact that the Constitution says nothing about God means that we have a "godless Constitution," and that fact in turn entails that government and politics in the United States must be godless or, in the more usual locution, secular. The commitment to secular government in turn precludes governmental sponsorship of religious expressions (such as the national motto - "In God We Trust") or of religious symbols (such as Ten Commandments monuments). In this article, I argue that this interpretation of our "godless" Constitution is importantly correct - but even more importantly mistaken. The Constitution is godless or, more precisely, agnostic. And the fact that the Constitution is agnostic tells us something crucially important about our constitutional order. But the agnosticism of the Constitution does not entail that governments operating under the Constitution must be agnostic, or must refrain from religious expression. On the contrary, paradoxical though this may initially seem, it is precisely the Constitution's agnosticism that permits governments to engage in such expression.

Constitutional Law, Religion, Secularism

Abstract:
Americans are fundamentally divided over the proper relation between government and religion, and that this division manifests itself in increasingly acrimonious disputes over things such as public religious symbols and the teaching of intelligent design in public schools. These differences are unlikely to be resolved by straightforward appeals to constitutional history or precedent, so as scholars we would do well to go deeper and try to understand the underlying differences in presuppositions about religion, law, and pluralism. But what are the fundamental underlying differences in presuppositions that surface in more concrete controversies over crosses and curriculum and the like? Where exactly does the fault line lie, so to speak? This essay suggests that perhaps the most illuminating answer is suggested very early on in an important recent book by Noah Feldman: Americans are "divided by God." The essay goes on to explore, while indulging in some amateur theology and armchair sociology, how basic differences about God might animate the political and legal controversies that we have been observing.

Religion, Belief, Culture Wars, Frist Amendment

Abstract:
Debates about the original meaning of the First Amendment's establishment clause have typically featured opposition between "separationists" and "accommodationists" of various shapes and sizes, but an altogether different interpretation holds that the establishment clause was not intended to constitutionalize any substantive principle of religious freedom at all: rather it was simply intended to affirm that religion would remain within the jurisdiction of the states (where virtually everyone at the time assumed it was and should be) and would not be placed within the jurisdiction of the new national government. In recent years, this jurisdictional interpretation has gained the support (in one or another version) of scholars including Akhil Amar and Philip Hamburger and of Justice Clarence Thomas, but it has been criticized by other scholars including Kent Greenawalt, Douglas Laycock, and Noah Feldman. This article carefully reviews the arguments and evidence, pro and con, and concludes that the jurisdictional interpretation provides the most persuasive account of the original meaning of the establishment clause. At least some of the objections from Greenawalt, Laycock and others reflect an assumed dichotomy between "jurisdictional" and "substantive" constitutional provisions. This article criticizes that assumption and reflects on what it means for a constitutional provision such as the establishment clause to be "purely jurisdictional" in nature.

Establishment Clause, Freedom of Religion, Separation of Church and State, Constitutional Law, Jurisdiciton, First Amendment, Originalism

Abstract:
This essay, presented at a conference on Law and Religion at Princeton in April 2009, argues that Thomas Jefferson was right - the establishment clause was intended to erect a 'wall of separation between church and state' - but that those today (such as Justice Souter) who are wont to invoke Jefferson routinely misconceive this purpose. The establishment clause is best understood as a response to the age-old problem of delineating the separate jurisdictions of church and state, and it effectively disavowed the Erastian power of the state to control the church. For modern interpreters, however, the classical, jurisdictional problem has largely disappeared from view, and they have accordingly seen the clause as a response to a different problem - namely, the problem of secularization. They have accordingly construed the clause as a mandate for the secular state. But this construction not only mistakes the clause’s original purpose; it puts the (misconceived and redirected) clause in tension with much in the American political tradition and culture. Hence the notoriously unsatisfactory state of establishment clause jurisprudence today. The essay urges a recovery of the clause’s original and real purpose.

freedom of religion, constitutional law, separation of church and state

Abstract:
It was often claimed in the founding period - and it is claimed today by jurists like Justice Souter and by scholars like Noah Feldman - that citizens have a right of conscience not to pay taxes that will be used to advance religious teachings which they do not believe. But advocates of this position typically reject the corresponding claim that citizens have a right of conscience not to pay taxes that will be used to advance non-religious (or, in their view, anti-religious) teachings in which they do not believe. Are these positions reconcilable? This essay investigates the question and concludes that they are not. Nor is it a tenable position to hold that conscience is violated by the use of a citizen's tax dollars to promote any beliefs, religious or non-religious, that particular taxpayers reject. So jurists and scholars would do well to drop the selective and opportunistic appeal to the ostensible connection between taxes and conscience.

conscience, taxes, religion

Abstract:
This essay argues that the Western tradition of discourse about church-state separation and freedom of conscience, which began a millennium ago, has reached a point of exhaustion. The tradition arose on the Christian assumption that life has a temporal dimension and a spiritual dimension, each governed by an institutional authority: the 'secular' ruler governed the temporal and the church represented the spiritual domain. Thus, the debate was essentially a theological debate about the providential allocation of jurisdiction between different institutional authorities. The commitment to freedom of conscience arose as, in the post-Reformation period, the individual conscience came to assume the role formerly occupied by the church: thus, especially in Protestant regions, the medieval campaign for 'freedom of the church' evolved into a commitment to 'freedom of conscience.' In the modern context, however, the discourse has been transformed: the theological framework has given way to a secular one, and the debate over jurisdictions has been replaced by a debate over justice. In this context, the classical commitments to church-state separation and freedom of conscience lose their rationales; indeed, it becomes difficult to explain why 'religion' (whatever it is) should be a special legal category at all. The much noted incoherence in the modern jurisprudence of religious freedom is a product of this drastically altered situation.

After developing this diagnosis, this essay uses the diagnosis to assess Kent Greenawalt’s recent book, Religion and the Constitution: Establishment and Fairness. The review argues that on one level, Greenawalt’s book is exemplary; it is a model of careful, fair-minded reason. However, the book conspicuously defaults on the basic level of justification, and this review argues that this default is a faithful reflection of the exhausted condition of the tradition in which Greenawalt is working.

freedom of religion, freedom of conscience, separation of church and state

Abstract:
This article discusses three levels of disagreement in establishment clause discourse - or what may be called the "lawyerly," the "constitutive" (or "culture wars"), and the "philosophical" (or perhaps the "theological") levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface.

The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other way around. So then what determines which conclusions - and hence which premises - lawyers and judges and scholars select? The article suggests that our conclusions are largely dictated by commitments at the second level - commitments to what we take to be the essential meaning of America. Moreover, the historical and interpretive indeterminacy associated with these commitments further suggests that (contrary to liberal wisdom which urges that public or constitutional reasoning be detached from people's various "comprehensive doctrines"), commitments at the second level are in turn influenced to a significant extent by what is believed or at least presupposed at the third level of basic philosophy or theology.

Hence the comparison of our establishment clause discourse to an iceberg: what we see is the most insubstantial part, and the real mass and force are largely out of sight. The article concludes that the valuable work in the area of religious freedom - the work that has a chance to be illuminating and not merely polemical - will be work that probes those deeper connections and presuppositions.

religious freedom, freedom of religion, Establishment Clause, First Amendment, US Constitution

Abstract:
Scholars have resorted to various comparisons in attempting to understand the role and function of the United States Supreme Court: they have compared the Justices to third-branch legislators, scholars, Platonic guardians, prophets, princes, "robed masters," and aristocrats. This essay proposes a different and hopefully illuminating comparison: the Court can profitably be regarded as an (anti-)magisterium. A "magisterium" - a term usually used in Catholic contexts - is the teaching authority in a hierarchical church. This essay describes the Supreme Court as an "(anti-)magisterium" in two senses. First, the Court is a species of magisterium, except that it is an inverted one - a sort of upside-down magisterium; it is thus a particular if peculiar type of magisterium, much in the way that an anti-hero is a type of hero and anti-matter is a type of matter. Second, the Court casts itself as an institution that is opposed to and that protects citizens against magisteria - against institutions that impose orthodoxies.

This comparison is developed in three sections. The first section discusses the ways in which the United States can be thought of as, in Chesterton's description, "a nation with the soul of a church." The second section discusses the historic Catholic/Protestant division over the necessity of a magisterium in a church - a division growing out of the painful choice between an imposed (and sometimes resented) unity and a more freely-arrived at fragmentation; and it shows how this same division arises in the American political community and provides perhaps the most influential justification for judicial review. The third section examines the famous Joint Opinion in Planned Parenthood v. Casey, showing how the opinion comes down squarely on both sides of the Catholic/Protestant divide: the Casey Joint Opinion both aggressively Catholic and radically Protestant in its presentation of itself, the nation-church, and the constitutional orthodoxy. Casey thus nicely exemplifies the Court's effort to serve as an (anti-)magisterium.

constitution, supreme court, religion

Abstract:
The text of the Constitution nowhere mentions God; the document is, as some scholars put it, "godless." What is the significance of that silence? This brief essay, written for a discussion conference on religion, multiculturalism, and citizenship, considers and criticizes two possible responses, which would hold (a) that the Constitution's silence about God has no constitutional implications and (b) that the Constitution's godless qualities entails a general policy of mandatory public secularism. Instead, the Constitution's silence about God reflects a policy of "constitutional agnosticism" that leaves governments free to make affirmations (religious or otherwise) while assuring citizens that these affirmations are not constitutive of the political community. The essay argues that constitutional agnosticism, though misunderstood and subverted by modern Supreme Court doctrine, is a valuable strategy for addressing the challenge of e pluribus unum.

constitutional agnosticism, religious pluralism, problem of community

Abstract:
John Finnis's powerfully and deservedly influential modern classic, "Natural Law and Natural Rights," expounds a theory of law and morality that is based on a picture of "persons" using practical reason to pursue certain "basic goods." While devoting much attention to practical reason and to the goods, however, Finnis says little about the nature of personhood. This relative inattention to what "persons" are creates a risk - one that Finnis himself notices - of assuming or importing an inadequate anthropology. This essay suggests that the "new natural law" developed by Finnis suffers in places from the inadvertent adoption of (or, more likely, acquiescence in) a flawed anthropology - an anthropology under the thrall of modern individualistic commitments. To explain this suspicion, the essay discusses three difficulties (or so they seem to me) in Finnis's natural law theory - difficulties in accounting for the basic good of friendship, for obligations we owe to others, and for legal authority. These difficulties may seem disconnected, but the essay suggests that they may all reflect an inadequate anthropology - one that Finnis does not embrace, exactly (in fact, I suspect that he would reject it) but that is pervasive today and that in places may affect his theorizing.

natural law, goods, personhood, friendship, legal authority, obligation

Abstract:
This brief essay, written by invitation as a comment on an essay by Andrew Koppelman called “Why Jack Balkin is Disgusting,” argues that Koppelman reverses roles in suggesting that originalists are repelled by the idea of a merely human Constitution. In fact, it is non-originalists who have typically expressed disdain for a merely human Constitution. Conversely, in the interest of preserving the ability of humans to make constitutional law, originalism is dedicated to resisting efforts to transform the Constitution into something more transcendent. Despite getting the roles backwards, however, Koppelman is right to note that Jack Balkin’s attempt to dissolve the division between originalism and “living Constitutionalism” poses a threat to originalism. More specifically, Balkin and Koppelman underscore potential of the originalists’ too ready resort to “principles” to undermine the originalist enterprise. If originalism is to be a viable alternative, originalists must resist the temptation to interpret constitutional provisions as repositories of principles, and must instead develop the idea of constitutional provisions as expressing human or conventional categories.

originalism, constitutional interpretation

Abstract:
Ten years down the road, what is the enduring significance of the "assisted suicide" cases, Washington v. Glucksberg and Vacco v. Quill? The cases reflect an unusually earnest, but nonetheless unsuccessful, attempt by the Supreme Court to grapple with a profound moral issue. So, why was the Court unable to provide a more satisfying justification for its conclusions? This essay, written for a symposium on the tenth anniversary of Glucksberg, discusses that question.

Part I examines some of the flaws in reasoning in the Glucksberg and Quill opinions and suggests that these flaws stem from the opinion-writers' inability to recognize and articulate their underlying normative assumptions. More specifically, both the Justices and the lower court judges, on both sides of the issue, evidently attributed normative significance to something like a "natural course of life" (even when they denied doing so), but none were willing or able to make this attribution explicit. Part II discusses the modern separation of moral reasoning from the metaphysical or theological perspectives that might once have endowed "nature" with normative significance, and it suggests that the deficiencies in Glucksberg-Quill are evidence of how that separation renders moral reasoning problematic. The Conclusion wonders whether in this situation, a renewed emphasis on formalism or tradition might make legal reasoning less unacceptable.

morality, constitutional law, assisted suicide, moral reasoning

Abstract:
Schools are expected to prepare students for liberal democracy, but what does that task entail with respect to students' rights to free speech, including their right to engage in religious expression? This essay distinguishes between two versions of liberalism, here called "detachment liberalism" and "classical liberalism." The first version, associated with thinkers like John Rawls and Richard Rorty, supposes that liberalism depends on citizens learning to separate strong beliefs from deliberation on crucial public matters, and this supposition engenders an orientation that views religious expression in schools as undesirable. The second version, reflected in thinkers like John Stuart Mill, sees believing and the search for truth as central to life, personhood, and democracy, and this understanding produces an orientation more congenial to the expression and consideration of belief, including religious convictions, in the schools. The essay then uses this distinction to comment on three papers that were presented in a conference at the UC Davis Law School on the First Amendment in the schools.

religion, constitutional law, education, first amendment, schools

Abstract:
This essay, written for the 2009 John F. Scarpa Conference at Villanova focusing on the work of Professor Joseph Vining, attempts to provide a sympathetic exposition of what might be described, as a translation and with apologies (because Vining would likely be horrified by the description), as Vining’s distinctively personalist methodology, epistemology, and ontology.

jurisprudence, legal philosophy, religion, authority