Crosspost from Balkinization
What The Constitution in 2020 calls a “progressive vision of constitutional law in the years ahead” should, I believe, re-discover, incorporate, and emphasize what might seem a not-very-progressive – because very old – idea. Here it is: Constitutionalism generally, and religious freedom more specifically, are well served by the protection and flourishing of an array of self-governing non-state authorities. The Jacobins were wrong. In a nutshell, religious liberty is both nurtured in and protected by – it needs, I think – religious communities, associations, and institutions.
Posted on September 29, 2009 @ 3:12 pm
Crosspost from Balkinization
A particular narrative has, for many years, informed and shaped both our thinking about the meaning and purpose of the First Amendment’s no-establishment-of-religion rule and the construction-by-courts of the doctrines, standards, and tests used to enforce that rule. The narrative goes something like this: Europe suffered through many years of war, persecution, and political turmoil, in large part because of the failure to appropriately separate church and state, religion and politics. As Madison put it, in the Memorial and Remonstrance, “[d]uring almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.” Our Founders learned from this experience, the narrative goes, and so sought to guard against “divisiveness” in politics by privatizing religion.
Posted on September 28, 2009 @ 8:31 pm
In different ways, Noah Feldman and William Marshall critique the received liberal wisdom concerning Establishment Clause jurisprudence. Feldman argues that we should adopt the “no money, no coercion” principle of the Founders. This means the government should reduce religious groups’ access to public funds through faith-based social service or school voucher programs, but become more tolerant of symbolic, non-coercive public endorsements of religion, such as Ten Commandments displays. Meanwhile, after surveying the values and shortcomings of secularism, Marshall concludes that government should allow religious groups to receive funding, under certain conditions, but should be diligent in preventing new public endorsements of religion.
Two important practical questions emerge from these pieces. First, to what extent, if any, should religious groups who perform social services be eligible for public funds? Second, how should we understand the relationship between symbolic endorsement of religion and coercion?
Posted on July 6, 2009 @ 6:14 pm
The Constitution in 2020 is a companion website to The Constitution in 2020 (Oxford University Press 2009). Here you will find ten sample chapters from the book, essays about the future of the U.S. Constitution, discussions of current constitutional issues, a bibliography and resources for further study.
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