Tuesday, August 20, 2019
Open Rank Faculty Position in Constitutional Studies
Department of Political Science
University of Notre Dame
The Department of Political Science at the University of Notre Dame invites applications for an open-rank full-time, tenure track/tenured faculty position in Constitutional Studies. The department seeks applications from promising and distinguished scholars with a research focus in American constitutionalism, which includes but is not limited to public law, the history and philosophy of American democracy, and American constitutional development.
The successful candidate will be a member of and offer graduate-level courses in the Department’s Ph.D. subfield in Constitutional Studies and core classes in the University’s undergraduate minor in Constitutional Studies, such as: “American Constitutionalism,” “Constitutional Government & Public Policy,” and “The History and Philosophy of Constitutional Government.”
The successful candidate will also contribute to Notre Dame’s thriving Program in Constitutional Studies, a center of research and teaching devoted to the production of distinguished scholarship and the cultivation of knowledgeable and civically-minded citizens. The Program directs the University’s growing 100+ student minor in Constitutional Studies and sponsors many lectures, seminars, and colloquia each academic year.
All applicants are required to submit a letter of interest, a C.V., three letters of reference, and a teaching statement which includes a summary of any teaching evaluations available.
Apply by October 1, 2019 at https://apply.interfolio.com/66463
Equal Employment Opportunity Statement
This appointment is contingent upon the successful completion of a background check. Applicants will be asked to identify all felony convictions and/or pending felony charges. Felony convictions do not automatically bar an individual from employment. Each case will be examined separately to determine the appropriateness of employment in the particular position. Failure to be forthcoming or dishonesty with respect to felony disclosures can result in the disqualification of a candidate. The full procedure can be viewed at https://facultyhandbook.nd.edu/?id=link-73597.
Equal Opportunity Employment Statement
The University of Notre Dame seeks to attract, develop, and retain the highest quality faculty, staff and administration. The University is an Equal Opportunity Employer, and is committed to building a culturally diverse workplace. We strongly encourage applications from female and minority candidates and those candidates attracted to a university with a Catholic identity. Moreover, Notre Dame prohibits discrimination against veterans or disabled qualified individuals, and requires affirmative action by covered contractors to employ and advance veterans and qualified individuals with disabilities in compliance with 41 CFR 60-741.5(a) and 41 CFR 60-300.5(a).
Monday, August 19, 2019
Monday, August 12, 2019
I have an op-ed in the Indianapolis Star about the recent round of lawsuits that have been filed by former teachers against Catholic high schools and dioceses. Here's a bit:
Every summer, the Supreme Court closes its work-year with a flurry of high-profile opinions dealing with controversial questions. The commentary and headlines about these decisions tends to focus on disagreement, division, and dissent. We should remember, though, that there are important, bedrock principles that unite the Court.
One such principle, the justices unanimously reminded us just a few years ago, is that our country’s constitutional commitment to religious freedom does not allow the government to interfere with a church’s decision about its teachings or its teachers. The Court’s liberals and conservatives agree: If church-state separation means anything, it means this. . . .
If we value real diversity and meaningful pluralism in that sector, it is essential to respect both the freedom of religious schools to be distinctive and the decisions of religious schools about how to carry out, and who should carry out, their mission.
Reasonable people in good faith can and will disagree about particular employment decisions, and it is appropriate to criticize what one regards as unfair, unjust, or uncharitable discrimination. In the United States, though, just as no one is forced to embrace a particular faith, no one is entitled to teach, lead, and minister in a particular religious school. The Constitution protects the right to reject a church’s teachings but does not permit the government to reshape them
Saturday, July 20, 2019
Here is a new-ish (and short!) paper of mine, forthcoming in Studies in Christian Ethics. Here's the abstract:
A crucial, but often overlooked, dimension of the human and constitutional right to religious freedom is the autonomy of religious institutions, associations, and societies with respect to matters of governance, doctrine, formation, and membership. Although the Supreme Court of the United States has affirmed this autonomy in the context of American constitutional law, it is vulnerable, and even under threat, for a variety of reasons, including a general decline in the health of civil society and mediating associations and a crisis of confidence and authority caused by clerical sexual abuse and churches' failure to respond to it.
Sunday, July 14, 2019
Here is a book chapter I did a few years ago, for a NOMOS volume on "American Conservatism", called "The Worms and the Octopus." I admit, I like the title. here is the abstract:
A formidable challenge for an academic lawyer hoping to productively engage and intelligently assess “American Conservative Thought and Politics” is answering the question, “what, exactly, are we talking about?” The question is difficult, the subject is elusive. “American conservatism” has always been protean, liquid, and variegated – more a loosely connected or casually congregating group of conservatisms than a cohesive and coherent worldview or program. There has always been a variety of conservatives and conservatisms – a great many shifting combinations of nationalism and localism, piety and rationalism, energetic entrepreneurism and romanticization of the rural, skepticism and crusading idealism, elitism and populism – in American culture, politics, and law.
That said, no one would doubt the impeccably conservative bona fides of grumbling about the French Revolution and about 1789, “the birth year of modern life.” What Russell Kirk called “[c]onscious conservatism, in the modern sense” first arrived on the scene with Burke’s Reflections on the Revolution in France, and at least its Anglo-American varieties have long been pervasively shaped by his reaction. As John Courtney Murray put it, Burke’s targets included those “French enthusiasts” who tolerated “no autonomous social forms intermediate between the individual and the state” and who aimed to “destroy…all self-governing intermediate social forms with particular ends.” I suggest, then, that to be “conservative” is at least and among other things to join Burke in rejecting Rousseau’s assertions that “a democratic society should be one in which absolutely nothing stands between man and the state” and that non-state authorities and associations should be proscribed. In other words, to be “conservative” is to take up the cause of Hobbes’s “worms in the entrails” and to resist the reach of Kuyper’s “octopus.” At or near the heart of anything called “conservatism” should be an appreciation and respect for the place and role of non-state authorities in promoting both the common good and the flourishing of persons and a commitment to religious freedom for individuals and institutions alike, secured in part through constitutional limits on the powers of political authorities. Accordingly, one appropriate way for an academic lawyer to engage “American Conservative Thought and Politics” is to investigate and discuss the extent to which these apparently necessary features or elements of conservatism are present in American public law. Pluralism and religion, in other words, are topics that should provide extensive access to this volume’s subject.
Friday, June 28, 2019
This could be very big news. For more -- an older, but still worth-reading essay, by me -- on the Blaine Amendment(s), go here. This case gives the Court to embrace what seem to me to be the obvious implications of its recent decision in Trinity Lutheran, e.g., the Constitution neither requires nor permits discrimination in the context of secular-purpose-serving social-welfare programs against religious beneficiaries and institutions.
Saturday, June 22, 2019
Tuesday, May 28, 2019
In his opinion concurring in the Supreme Court's summary reversal of the Seventh Circuit's (clearly incorrect) ruling invalidating an Indiana law requiring appropriate disposal of fetal remains, Justice Clarence Thomas provided an important and timely, even if (for some) uncomfortable and unwelcome reminder about the inescapable connections between Planned Parenthood and the rise of the abortion-rights movement, on the one hand, and eugenics and discrimination, on the other. Scroll down to p. 13 of the Court's order list to read his powerful opinion. He ends with this:
The Court’s decision to allow further percolation should not be interpreted as agreement with the decisions below. Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement. In other contexts, the Court has been zealous in vindicating the rights of people even potentially subjected to race, sex, and disability discrimination. . .
Although the Court declines to wade into these issues today, we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is duty bound to address its scope. In that regard, it is easy to understand why the District Court and the Seventh Circuit looked to Casey to resolve a question it did not address. Where else could they turn? The Constitution itself is silent on abortion.
Thursday, May 23, 2019
Prof. Stephanie Barclay (BYU) has posted a new article called First Amendment Categories of Harms. I recommend it highly (and not just because the author cites me in a few places!); it's an important contribution to, inter alia, the religious-accommodations debate. Here is the abstract:
What role should harm to third parties play in the Government’s ability to protect religious rights? The intuitively appealing harm principle has animated new theories advanced by scholars who argue that religious exemptions are indefensible whenever they result in cognizable harm to third parties. This third-party harm theory is gaining traction in some circles, particularly in the wake of the Supreme Court’s decisions in Masterpiece Cakeshop and Hobby Lobby. While focusing on harm appears at first to provide an appealing simple and neutral principle for avoiding other difficult moral questions, the definition of harm itself operates on top of a deep moral theory about what counts as harm and why. Consequently, multiple scholars advancing iterations of these theories use “harm” as a term of art to mean very different things. This in turn results in scholars talking past each other and trading on a superficially simple idea that turns out to be incredibly complex. For this reason, the harm principle has proven unworkable in other contexts, including criminal and environmental law. This Article highlights the flaws of this approach in the religious context by measuring the theory against its own ends, including the theory’s failure to account for harms this approach would cause for religious minorities and other vulnerable groups.
Refuting the unhelpful fixation on the mere presence of generic harm, this Article makes two important contributions, one descriptive and one normative. First, this Article carefully describes the nuanced ways that courts classify and weigh different types of harm, and it identifies four categories: (1) prohibited harm (meaning a type of harm that is categorically impermissible); (2) presumptive harm (meaning a type of harm that is presumptively, though not dispositively prohibited); (3) relevant harm (meaning harm that courts will assess alongside other important factors, but whose weight is context-specific), and (4) inadmissible harm (meaning harm that is given no weight regardless of how severely or disproportionately it is experienced by third parties). This Article demonstrates how these categories of harm are not limited to religious exemptions, but are in fact common to all First Amendment rights. Further, this descriptive framework sheds light on which sorts of harms matter, and when, and it highlights the competing harms that always arise when any rights are protected. Second, this Article argues that moving beyond a false dichotomy of harm versus no harm allows one to ask much more fruitful normative questions, including whether there is a justifiable tradeoff between the specific harm and the social goods it provides, whether institutions can be modified to mitigate avoidable harm, and whether disproportionate harms can be distributed in more just ways. This Article offers examples of how these necessary normative questions are already woven into the legal framework that governs many sorts of religious exemptions.