Thursday, September 11, 2014
I am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I've listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of and from within the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.
Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.
Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.
Thursday, September 4, 2014
I've posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here's the abstract:
This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.
First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly.
Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.
Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.
Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.
Comments are welcome!
Wednesday, September 3, 2014
I have posted several videos of the presentations at the conference in Rome this summer co-sponsored by the Center for Law and Religion at St. John's. The title of the conference was "International Religious Freedom and the Global Clash of Values." Tom Farr delivered the keynote address, and we had panels on The Politics of International Religious Freedom (Pasquale Annicchino, Heiner Bielefeldt, and Ambassador Ken Hackett), Comparative Perspectives on International Religious Freedom (Francisca Pérez-Madrid, Marco Ventura, and Roberto Zaccaria), and Christian and Muslim Perspectives on International Religious Freedom (Abdullahi Ahmed An-Na'im, Olivier Roy, and Nina Shea).
Tuesday, September 2, 2014
A very generous review of the book in Commentary Magazine by Adam White. With the exception of the kindly words about Justice Holmes, I don't disagree with anything in it!
And for something rather different (and speaking of Holmes), here's a column from Reason (whose tagline is "Free Minds and Free Markets") about tradition whose conclusion is that "We treasure the customs and practices passed down from our ancestors. And we change them anytime we want." Judge Posner is quoted as saying, "How can tradition be a reason for anything?"
Friday, August 29, 2014
A very interesting essay in Christianity Today on the author's experience at Vanderbilt with its "all comers" policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. The terrible problem seems to be that people have distinctive beliefs. The policy's aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:
In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an "all comers policy," which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)
Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.
In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn't need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn't prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.
Monday, August 11, 2014
My colleague Mark Movsesian has a good post on the subject. A bit:
But Mideast Christians are often an afterthought for the United States, and it seems they are in this situation again. A Wall Street Journal report, which quotes unnamed members of the Obama administration, indicates the threat of genocide against Yazidis was the primary factor in the American decision to intervene. “This was qualitatively different from even the awful things that we’ve confronted in different parts of the region because of the targeted nature of it, the scale of it, the fact that this is a whole people,” the official said.
That is a rather myopic view of the situation. We’re offering assistance to 40,000 Yazidi refugees whom ISIS has driven from their homes and threatened to slaughter. Great—we should. But in the weeks before ISIS turned on the Yazidis, it had displaced more than 100,000 Christians from their homes and driven them into the desert. ISIS eliminated major Christian communities in Mosul and Qaraqosh, and the US responded only with a concerned statement from its UN ambassador. And this is to say nothing of the hundreds of thousands of Christians who have become refugees since the invasion of Iraq in 2003. If genocide correctly describes what threatens the Yazidis, it also describes what’s happening to Iraqi Christians. Indeed, many of these Christians are the descendents of people who suffered genocide at the beginning of the 20th century.
There are reasons why America tends to treat Mideast Christians as an afterthought. Mideast Christians lack a natural constituency in American public life. They are, as one commentator observed, too foreign for the Right and too Christian for the Left. Most of our foreign policy elites have a blind spot about them. And I don’t mean to single out the Obama administration. Nina Shea of the Hudson Institute has recounted her attempts to get the Bush administration to focus on the plight of Iraq’s Christians, only to be told by Condoleezza Rice that assistance for Christians would make the United States appear sectarian.
To draw attention to the plight of Iraq’s Christians is not special pleading. The US should not concern itself only with Christians; other religious minorities deserve our attention, too. But, in the Middle East and around the world, Christians are often targeted for persecution in particularly severe ways, and the human rights community often seems not to notice.
Sunday, August 10, 2014
Perhaps not right down the Catholic Legal Theory fairway (but maybe somewhere in the rough), but I'm teaching a seminar in constitutional theory this fall here at St. John's for the first time, and I thought to ask the good readership and writership at MOJ about suggestions. I'm using the terrific reader by Gehardt, Griffin, Rowe, and Solum as my basic text, though I am supplementing it with a number of other materials. I've organized the course to be a little bit interpretation-heavy, and doutbless there are points of emphasis that are slightly particular to my interests (constitutional theory skepticism and the role of history and tradition may figure somewhat more prominently than they otherwise might). But please write to me with recommendations for changes, additions, deletions, etc. The tentative syllabus is after the break.
Tuesday, July 29, 2014
Yesterday was the centenary anniversary of the beginning of World War I. On July 28, 1914, one month after Archduke Franz Ferdinand of Austria was assassinated, the Austro-Hungarian empire made its first moves against Serbia. The Great War would end more than four years later.
This weekend, I visited the Museum of Fine Arts in Boston, which was hosting a very fine exhibit of American World War I posters. I was struck by the powerful imagery of civil religion in many of them. Here are two exhorting the purchase of war bonds that stood out to me as particularly representative of the genre:
And this afternoon, to remember the War, Mark Movsesian and I visited Flag Pole Green in Queens, New York, which has this lovely memorial to the men of Queens who died in the War:
Just a few fragments of civil religion–that perennial American socio-political coagulant–in memory of the war to end war.
Thursday, July 24, 2014
The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?
The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger's key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to "balance" the right against rival interests.
That particular "more-is-less" claim depends on the scope given to a protected right. A related "more-is-less" claim focuses on the expansion of the number of protected rights. That's the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven't seen it, Steve Smith is writing up a storm over there). Steve writes:
[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.
Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights...“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)....
Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.
Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are "substantial" trigger the law's protection. A religious burden isn't enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we've now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of "substantiality" and we talk about the shifting of burdens and the balancing of interests because we've watered down the basic right so much that we don't even really know what it is that counts as the right in the first place any longer.
But there is another side to the story. That side is admirably represented by John Inazu in this paper--More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of "rights confinement" as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest--that is, in what government ought to be interested in at all.
Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen.
If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right's prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right's strength and ambit, but evolving cultural perceptions of the strength and ambit of the state's proper power.
Monday, July 21, 2014
I've got a review of Steve's book over at The University Bookman. A bit from the beginning:
In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.
This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.