Thursday, July 28, 2011
Here is a link to the chapter, which I contributed to a volume of First Amendment Stories (edited by Andy Koppelman and me), on the Court's decision in Kedroff v. St. Nicholas Cathedral.
This chapter, from Foundation Press’s forthcoming volume First Amendment Stories, examines closely the background, context, and implications of the Supreme Court’s underappreciated but highly significant decision in Kedroff v. St. Nicholas Cathedral. It is suggested that Kedroff – like the Steel Seizure case, which was argued and decided during the same year – reminds us of the importance of the structural devices employed in our Constitution to protect liberties and enhance democracy. These devices include, of course, the separation of powers and federalism, as well as the pluralistic principle of church-state separation, correctly understood. As Mark DeWolfe Howe observed, in a short essay published in the Harvard Law Review soon after the Kedroff decision, the Court in that case, by affirming the constitutional basis of church autonomy, engaged “a classic problem of political theory,” that is, the “pluralistic thesis . . . that government must recognize that it is not the sole possessor of sovereignty,” or, as another writer put it, that “Caesar . . . is only Caesar, [and so should] forswear any attempt to demand what is God’s.”
(My fellow MOJ-er, Tom Berg, also did a chapter, on the school-prayer cases.) Keep your eyes open for the volume, which (if I say so myself) has a lot of really good pieces in it, by smart and interesting people. It's winding its way toward publication in the Fall of 2011. Go ahead and pre-order yours!