Mirror of Justice

Pope Francis's powerful statement on the sanctity of life

Is here (HT:  Robert Imbelli at dotCommonweal).  A bit:

Fidelity to the Gospel of life and respect for life as a gift from God sometimes require choices that are courageous and go against the current, which in particular circumstances, may become points of conscientious objection. And this fidelity entails many social consequences. We are living in a time of experimentation with life. But a bad experiment. Making children rather than accepting them as a gift, as I said. Playing with life. Be careful, because this is a sin against the Creator: against God the Creator, who created things this way. When so many times in my life as a priest I have heard objections: “But tell me, why the Church is opposed to abortion, for example? Is it a religious problem?” No, no. It is not a religious problem. “Is it a philosophical problem?” No, it is not a philosophical problem. It’s a scientific problem, because there is a human life there, and it is not lawful to take out a human life to solve a problem. “But no, modern thought…” But, listen, in ancient thought and modern thought, the word “kill” means the same thing. The same evaluation applies to euthanasia: we all know that with so many old people, in this culture of waste, there is this hidden euthanasia. But there is also the other. And this is to say to God, “No, I will accomplish the end of life, as I will.” A sin against God the Creator! Think hard about this.

John Allen's interview with Cardinal George

Over at Crux, John Allen has a wide-ranging and interesting interview up with Chicago's Cardinal George.  Among other things: 

He spurns the entire left/right dichotomy, calling it “destructive of the Church’s mission and her life.”

“For us, the category that matters is true/false,” he said. “I reject the whole liberal/conservative deformation of the character of our lives. If you’re limited to that … then somehow or other you’ve betrayed your vocation as a bishop and a priest.”

Other highlights of the interview:

• George denies being a culture warrior, and says he “deeply resents” suggestions he’s not as passionate about social justice and the poor as his successor.

In the Spring of 2007, I taught a course on "Catholic Social Thought and the Law," and Cardinal George was generous enough to join the class for a session and for dinner.  He is now, as Allen puts it, "fighting for his life" against cancer, and I hope we all are praying for him.   I was also struck by this:

From my perspective, I’ve seen myself for a long time as engaging culture. Engagement is not warfare. I know that’s less dramatic to say, and people like to have drama, but calling it ‘war’ deforms what I’m about. It really denigrates my motivation, and I resent that. I’m not trying to beat anybody up at all; I’m trying to proclaim the truth of the Gospel, which I have an obligation to do. Maybe there are times I could it more skillfully, or in a way that seems less abrasive. Of course, there are some people who think it’s abrasive as soon as you say, ‘I disagree with you.’ There’s not much I can do about that.

Read the whole thing!

Common Law Constitutionalism: The Meaning of Establishment Circa 1800 in Two State Courts

In this post, I speculated about the possibility that the meaning of "establishment" might be illuminated by the English experience of the term before the Constitution's drafting. The idea would be to understand "establishment" not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.  

Our Center board member and my friend, Don Drakeman, helpfully points me to a different kind of common law evidence--uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

A Deal for Dahlia Lithwick

Dahlia Lithwick has written a column with a very odd fundamental claim:

[H]aving covered the Court for 15 years, I’ve come to believe that what we’re seeing goes beyond ideology. Because ideology alone would not propel the justices to effect such massive shifts upon the constitutional landscape, inventing rights for corporations while gutting protections for women, minorities, and workers. No, the real problem, I think, is that the Court as a whole has gotten too smart for our own good....

The result has been what Professor Akhil Reed Amar of Yale Law School calls the “Judicialization of the Judiciary,” a selection process that discourages political or advocacy experience and reduces the path to the Supreme Court to a funnel: elite schools beget elite judicial clerkships beget elite federal judgeships. Rinse, repeat. All nine sitting justices attended either Yale or Harvard law schools. (Ginsburg started her studies in Cambridge but graduated from Columbia.) Eight once sat on a federal appellate court; five have done stints as full-time law school professors. There is not a single justice “from the heartland,” as Clarence Thomas has complained....

A Supreme Court built this way is going to have blind spots. But right-wing legal and political groups—who are much better at the confirmation game than their equivalents on the left—have added a final criteria that ensures the Court leans strongly in their favor. They have succeeded in setting the definition of the consummate judge: a humble, objective, nearly mechanical umpire who merely calls “balls and strikes,” in Roberts’s insincere but politically deft phrasing. This lets conservatives sell nominees who are far more conservative than liberal nominees are liberal. A Democratic-appointed justice makes the short list by having her heart in the right place, but will be disqualified for heeding it too much.

Lithwick is hardly the first to observe that the Justices all attended elite law schools or that the Court is "cloistered" by comparison with past Supreme Courts. A majority of the members of the current Court--5--were, as Lithwick notes, for a time professors and deans at such law schools. 

I'll make Lithwick a deal: in about 10 years' time (right about the time where we might, perhaps, be getting some retirements, that is), we'll all--left, right and center--make a concerted effort to get some lawyers "from the heartland" nominated by the President and confirmed by the Senate. Or we'll do that for "war veterans," a category of Justice that Lithwick says she'd like to see on the Court. Or perhaps we'll just do it for lawyers from non-elite schools--solid, strong schools like St. John's University School of Law, with the kind of smart and highly capable lawyers whom I am privileged to teach (including in Constitutional  Law!), and who have rich and rewarding lives in legal practice of various kinds. We could call it "the Progressive Court-Packing Plan" or "the Heart-Is-In-The-Right-Place Plan" or "the Real Life Plan." The cardinal rule of the Real Life Plan Deal is: no graduates of elite law schools; and absolutely, positively, never, ever, ever any law school professors.

Unlike Lithwick, I'm quite unsure just what sort of ideological mix we'd get on the Court by following the Real Life Plan. But I'll take that bet.

And Still Another Post on Yates: The Criminal Statute Interpretation Case That Proves to be Bigger on the Inside Than on the Outside (the Tardis Case)

A couple of days ago, Kevin Walsh said that, after listening to the Supreme Court oral argument in Yates v. United States, he was tempering his prediction that the criminal defendant-petitioner in that case would lose unanimously.  At the end of the post, Kevin kindly suggested that Rick Garnett (who participated in an amicus brief in support of the petitioner) and I (who posted about Yates earlier here) might have the better of interpretive prediction this time around.

To tell you the truth, I’m not sure what the final outcome will be in Yates.  And, while I do come down on the petitioner’s side, I also don’t think that Yates on its peculiar facts presents the most important questions about how to read and apply the extraordinarily-broad obstruction of justice statute invoked here.

However it plays out in this case, I share Kevin’s reaction that the exchanges at the oral argument were remarkable.  The uneasiness expressed by several Justices about the breathtaking scope of this criminal statute may foreshadow what will come in later cases.  And those remarks suggest an increasing wariness on the Court toward federal prosecutors and over-charging, as well as growing concern about the proliferation, expansion, and severity of federal criminal statutes.

But I’ve jumped into the middle of the story.  So let me start at the beginning.

Below the fold, I will briefly sketch out the background to and issue presented in the Yates case, which is presently pending before the Supreme Court.

Then I'll explain how the arguably small and simple Yates case became the entry-point to these broader issues at the oral argument.  In the hope that you will keep reading below the fold, I offer here the Tardis teaser about the Yates case being bigger on the inside than the outside.

And once you’ve read some samples of the exchanges at the oral argument in Yates, I believe you’ll be sufficiently intrigued to continue with the discussion of these pressing issues — and to listen to the audio of this rather entertaining oral argument.

Finally, to put the deeper and more troubling issues about this broad obstruction of justice statute into a real-world context, I'll offer a hypothetical about a lawyer and a client who wishes to turn away from a life of sin.

Continue reading

SSM & S5MT -- two objections answered and six federalism scholars questioned

I’ve argued previously that one can reason back from Congress’s lack of power to enact legislation requiring states to provide marriage for same-sex couples to the conclusion that Section 1 of the Fourteenth Amendment does not require states to provide marriage for same-sex couples. The argument is straightforward in form. If Section 1 of the Fourteenth Amendment requires states to provide marriage for same-sex couples, then Section 5 provides Congress with power to enact legislation compelling states to satisfy that requirement. But because Congress lacks such power under Section 5, Section 1 must not impose such a requirement.

 

This is a Section 5 modus tollens argument: If P, then Q; not Q; therefore, not P.

 

This is not a typical form of argument about the meaning of the Fourteenth Amendment. The interdependence of Section 1 and Section 5 is widely recognized, but this modus tollens argument breaks into the circle in an unusual spot. It uses the lack of congressional power to argue for the absence of a constitutional right. The argument usually runs the other way; one takes the presence or absence of a Section 1 right as a premise and uses that to draw a conclusion about the presence or absence of derivative congressional power under Section 5.

 

Is the usual way the only permissible way? Is there something wrong, as a matter of constitutional law, with arguing from the absence of Section 5 power to the absence of Section 1 right?

 

Two potential objections to Section 5 modus tollens come to mind.

 

One is that congressional power under Section 5 to enforce a Section 1 right is contingent on prior judicial recognition of such a right. 

 

This judicial pre-recognition requirement would be odd as a matter of original meaning given the evident congress-empowering function of Section 5. It would also extend beyond the requirements of current doctrine as I understand them. True, Boerne v. Flores requires congruence and proportionality between Section 5 legislation and the requirements of Section 1 as previously set forth by the Supreme Court. And given Baker v. Nelson, federal legislation that required states to provide same-sex marriage might be doomed under Boerne if enacted today. But if the Supreme Court simply had not spoken one way or the other on a constitutional right to same-sex marriage, I’m not aware of a doctrinal requirement that Congress would have to wait for explicit judicial recognition of such a right under Section 1 before enacting legislation to enforce it under Section 5.  The understanding of Section 1 underlying such legislation would be subject to displacement by a contrary judicial understanding of the requirements of Section 1 (something like a hypothetical Baker v. Nelson II (2015)). But the risk of invalidation because Congress predicts incorrectly what the Court would hold should not deprive Congress of the ability to predict. After all, maybe Congress and the Court will agree. If Congress had statutorily required states to provide interracial marriage the year before Loving v. Virginia, for example, that legislation would have and should have been valid even though enacted before the Supreme Court had explicitly confirmed the unconstitutionality of state prohibitions of interracial marriage.

 

A second potential objection to Section 5 modus tollens is that the legal validity of the premise about lack of congressional power simply cannot be known with the requisite legal certainty given legal uncertainty about the existence of a Section 1 right from which the existence of such Section 5 power could be derived. As long as this uncertainty persists, the assertion that “there is no Section 1 right because there is no Section 5 power” can always be met with the counter-assertion that “there is Section 5 power because there is a Section 1 right.”

 

This objection seems mistaken. If Section 1 right and Section 5 power stand or fall together, there is no reason in principle to think that we cannot eliminate legal uncertainty about one through legal certainty about the other. For example, we can know that Congress lacks power to eliminate equal representation of the states in the Senate. From that, we can infer that Section 1 does not provide an individual right to equal personal representation in the United States Senate. And we can be confident about the absence of such a Section 1 right even though one can generate plausible arguments for the existence of such a right from existing constitutional doctrine. 

 

What, if anything, can we know about Section 5 power without knowing one way or the other whether a Section 1 right exists? One place to start may a brief filed by a group of federalism scholars in United States v. Windsor. This brief expressed agnosticism about the existence of a constitutional right to same-sex marriage under the Equal Protection Clause. (I assume the scholars were similarly agnostic about the existence of such a right under the Due Process Clause or the Privileges or Immunities Clause as well, but this is not stated explicitly in the brief.) And the focus of the brief is on Congress’s enumerated powers, by which the scholars meant enumerated in Article I. The statements in the brief should therefore not be taken as assertions about the scope of congressional power under Section 5 of the Fourteenth Amendment. But in considering some of these statements about the absence of congressional power to define marriage, a question for those scholars and their lawyers is: Why not extend these claims to Section 5 as well? 

 

 Here are some statements from their brief about congressional power to define marriage:

 

‘[U]nder the Constitution, the regulation and control of marital and family relationships are reserved to the States.’ Sherrer v. Sherrer, 334 U.S. 343, 354 (1948). … Our claim is not that family law is an exclusive field of state authority, but rather that certain powers within that field—such as the power to define the basic status relationships of parent, child, and spouse—are reserved to the States.
[3-4]

 

The legitimacy of same-sex marriage is a difficult and divisive issue, yet it is one that our federalism has been addressing with considerable success. Congress may regulate in this area to the extent necessary to further its enumerated powers. But it may not simply reject the States’ policy judgments as if it had the same authority to make domestic-relations law as they do.
[5]

 

[T]he federal government lacks constitutional authority to determine marital status in a blanket way.

[7]

 

In divisive social controversies like the debate over same-sex marriage, federalism lets each State and its citizens decide how to proceed, largely free of national pressure.
[9]

 

State-by-state policy diversity also facilitates experimentation, which can help resolve divisive questions reflecting deep-seated individual views about rights.
[10]

 

Only states can confer and define marital status under their police powers.
[26]

 

This Court has frequently, and recently, echoed that determining family status remains a State power.
[27]

 

DOMA … interferes with the States’ exercise of their reserved power to define marriage for their own purposes.
[31]

 

These statements support the claim that Congress lacks authority to require States to adopt a particular definition of marriage, such as one that recognizes same-sex unions as marriages. To be clear, though, the brief cautions: “Any State’s choice remains subject, of course, to the Fourteenth Amendment’s constraints, and we do not argue that state sovereignty provides any reason to narrowly construe the Equal Protection Clause. But unless equal protection requires recognition of same-sex marriage, the Constitution best protects liberty of same-sex marriage’s proponents and opponents by guaranteeing each State the right to decide for itself.” Given this reservation, it would not be inconsistent for one of these scholars to affirm Section 5 power for Congress to require states to provide marriage to same-sex couples. But why not interpret the Equal Protection Clause in light of the Constitution’s reservation of authority to the states to define marriage? 

Big D.C. Circuit loss for religious nonprofits in contraceptives mandate cases

A three-judge panel of the D.C. Circuit unanimously rejected all RFRA, APA, and constitutional challenges to the federal contraceptives mandate brought by a collection of religious nonprofits. Judge Pillard wrote the opinion for the court in Priests for Life v. HHS, in which Judge Rogers and Judge Wilkins joined. 

There is much to consider in the 86-page opinion. But from an initial review, the opinion seems to be the best that the government could have hoped for. On the RFRA claim, for example, the panel not only concludes that the mandate imposes no substantial burden because of the "accommodation" for non-exempt religious nonprofits, but also goes on to conclude that the government's scheme is the least restrictive means of advancing a compelling government interest. The main problem for the government, though, is that the opinion reads much more like Justice Ginsburg's Hobby Lobby dissent and Justice Sotomayor's Wheaton College dissent than Justice Alito's opinion for the Court in Hobby Lobby.  

(Note: Because I serve as counsel in a similar case that remains pending, I have tried to steer clear from getting too deep into blog analysis and criticism. I plan to maintain that course with respect to this opinion as well.) 

Fallon on Justice Breyer's Concurrence in Van Orden v. Perry

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer's opinions. I thought to note one essay as particularly well done: Professor Richard Fallon's discussion of Justice Breyer's decisive concurrence in Van Orden v. Perry--one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas State Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve....

There is more, and it's well-worth reading. I, too, admire Justice Breyer's Van Orden concurrence, but while my reasons are similar to Professor Fallon's, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges' pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present--if they are that which we know, and their memory is that which we have--then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories....

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss. 

The Tragedy of Religious Freedom 123, 144.

Immigration Law Symposium at the University of Oklahoma

Join us tomorrow for a symposium titled Chae Chang Ping v. U.S.: 125 Years of Immigration's Plenary Power Doctrine hosted by the Oklahoma Law Review. The symposium will be held in the Bell Courtroom of the law school from 9:30 to 12:30 on Friday, Nov. 14. CLE credit is available. Speakers include Rose Cuison-Villazor, Kevin Johnson, David Martin, Margaret Taylor, and yours truly. Unfortunately a cancelled flight will keep Victor Romero from joining us.

Witte on "The Shifting Walls of Separation"

Prof. John Witte (Emory) has posted a (natch) excellent essay, "The Shifting Walls of Separation Between Church and State in the United States."  Here's the abstract:

This article analyses five distinct understandings of separation of church and state in the American founding era of 1776-1812 and the continued influence and manifestations of each of these five understandings in current American constitutional law. The last section argues that separation of church and state is a valuable constitutional ideal, so long as it is used prudentially not categorically, and so long as it remains balanced with other founding principles of religious freedom.

One of my very first publications, as a law professor, was a short Green Bag review of what was then (in 2000) Witte's new book, Religion and the American Constitutional Experiment.   I have been learning from him ever since!