Jay Wexler has posted an interesting piece on the endorsement test, Government Disapproval of Religion. Jay is a supporter of the endorsement test (one can see this in some of his past work as well as in this piece), but here he argues that the test can be used to invalidate not only government endorsements but also government disapprovals. The latter, he writes, have become more common as of roughly 2009. The piece is insightful, loaded with interesting examples, and (as often happens with Jay) funny too (have a look at the transition between paragraphs 2 and 3 on page 7).
Jay argues for an "explicitly negative reference" approach to evaluating government disapprovals. "[S]tatements, displays, symbols, and other messages that do explicitly refer to and condemn religion" can be invalidated by the obverse of the endorsement test. (4). I find this approach to endorsement appealing, but if we are to have explicit negative references as the standard, why not restrict endorsement analysis to explicitly positive references? At present, the endorsement test does not operate on these assumptions; that is, an explicit positive reference is not required for courts to find a violation of the endorsement test. I think Jay may disagree with me, as he writes that "framing the test in this way creates a fair parallel with the Court's current endorsement analysis[.]" (10). Alternatively, Jay might argue (he does at some points in the piece) that government cannot operate without some implicit disapproval of religion, but it can operate just fine without any explicit or implicit endorsement.
On the first point, I am doubtful that the endorsement test requires "explicit" positive expression. I assume that in order for the endorsement to be "explicit," it likely will need to be express, and therefore (often) expressed, in some way. This is the gist of many of the examples that Jay uses to illustrate disapproval, at least. Yet in most of the cases I'm familiar with, that has not been the way the test has been applied. On the second point, I wonder whether the debate is really about whether the government can operate at all, as compared with whether (and how best) it can operate well.
At all events, check out Jay's good piece.
Monday, July 11, 2011
I've got a little review at The New Republic on-line of Paul Horwitz's delightful book, The Agnostic Age: Law, Religion, and the Constitution.
As an aside, while you are over there, there is a formidable old piece by Rebecca West, The Duty of Harsh Criticism. What a pearl of powerful writing -- truly a master.
Saturday, July 9, 2011
Not quite sure about this one. The author, a self-described non-scholar and "agnostic Protestant" (that seems intended as oxymoron but it comes across more as swellingly proud redundancy) takes a drag race through 2000 years of Church history, coming around full circle to report, as the reviewer tells it, that "the popes who achieved greatness . . . were outnumbered by the corrupt, the inept, the venal, the lecherous, the ruthless, the mediocre and those who didn’t last long enough to make a mark." This finding is preceded by the reviewer's warning that "[i]f you were raised Catholic, you may find it disconcerting to see an institution you were taught to think of as the repository of the faith so thoroughly deconsecrated." I don't feel especially disconcerted or deconsecrated, but I haven't read the book. But I suppose the reviewer must believe in earnest that this book is really doing a great service by explaining the papacy to Catholics -- notoriously innocent as we are of both history and culture [eliminated, since there seemed to be confusion about whether I think Catholics don't know a lot about history and culture]. I'm reminded of Bernard-Henri Lévy's anthropological expedition through the American south; he, too, thought that America was best explained to Americans through the medium of realist popular zoology.
Thursday, July 7, 2011
I did not follow the Casey Anthony trial closely as it proceeded but I have (sort of) followed the reaction to her acquittal of the murder of her two-year old daughter. In truth, and like most people who have not been involved with the case, I have no idea what the state of the evidence was like, though my untutored general impression is that the prosecution relied on powerful-seeming (again, to an external viewer) circumstantial evidence of guilt, but that it had little direct evidence. The jury did not believe that the evidence met the standard of guilt beyond a reasonable doubt; the general public (which was not privy to the evidence) seems to believe that it did; and the result is that Ms. Anthony was acquitted, to much consternation.
One piece of the reaction that hasn't gotten a lot of commentary is the legal experts' view of the broader disapproval of the acquittal. The assessment in some quarters seems to be that the disconnect between the jury's finding and the public's reaction may be explained by the fact that the general public simply doesn't understand the nature of proof beyond a reasonable doubt, and that it is for this reason that its reaction has been so intemperate. If the general public only really understood what guilt beyond a reasonable doubt demands, it would be more likely to accept the jury's finding.
I am dubious about that. It may well be that the general public does not understand BARD very well, but I doubt that these or other jurors understand it either. Indeed, I wonder whether law professors understand it well -- really understand what it demands in terms of proof, and are able to explain it in a way that would achieve broad consensus about the nature of the proof required to satisfy it.
Continue reading
That's what a panel of the Second Circuit held yesterday in Alliance for Open Society Int'l, Inc. v. U.S. Agency for Int'l Development. The issue was whether the government can require assorted NGOs engaged in the fight against various diseases including HIV/AIDS to have a policy opposing prostitution and sex trafficking as a condition of receiving federal funds for their causes. By a 2-1 vote, the panel held that it cannot and upheld the injunction against that portion of the "Leadership Act."
The case has an involved procedural history, but the upshot seems to be that, in the majority opinion's view, the provision is not salvaged by Congress's broad spending powers because it imposes an unconstitutional condition on the receipt of funds (the majority distinguished Rust v. Sullivan). "Compelling speech as a condition of receiving government funds cannot be squared with the First Amendment." (majority opinion, at 23). Note, though, that cases like Barnette are distinguishable from this context, since those dealt with existing benefits, while this one involves a putative funding program.
But setting aside the doctrine for a moment, and in light of Michael's smart post below about the jurisdictional quality of the First Amendment, a question arises for me about this. Even if one views the First Amendment as jurisdictional, can it be right to say that asking organizations which make a claim on the government's money to have a policy against sex trafficking or prostitution is outside the government's proper ken, especially when those precise activities threaten the aims of the very reason to provide the funding in the first place? Here Congress found specifically that as part of its effort to combat the spread of the HIV/AIDS epidemic, it ought to be helping to eliminate prostitution and the sexual exploitation of women and children. So what sense does it make to say that it is unconstitutional for the government to demand that organizations which accept funds for the exact purpose of combating these diseases concomitantly affirm a commitment to fighting prostitution and sex trafficking? Maybe there is a distinction to be drawn between sex trafficking and prostitution here?
Thoughts from those more knowledgeable than I about free speech? Mike?
Wednesday, July 6, 2011
Please excuse two self-promotional posts in a row, but in case it might be of interest, I wanted to flag a paper I just posted about the relationship of punishment theory and the intellectual history of punishment. The paper explores and reconstructs the ideas of Sir James Fitzjames Stephen, a prominent judge and public intellectual in the late Victorian period, and uses that reconstruction to make some methodological criticisms about the way that punishment theory gets done today. For those that may not know Stephen, may I strongly recommend that you have a look at this powerful and rewarding writer -- in fact, I can think of little that is better beach reading than Liberty, Equality, Fraternity (a critique of Mill's On Liberty, with resonances for many contemporary issues -- this edition has a useful foreword by Richard Posner) or Essays by a Barrister.
Comments on the article are welcome. [Painting of Stephen by Watts]
Tuesday, July 5, 2011
Here's an interview that I did with Il Sussidiario with the kind help of Dario Chiesa about subjects that we batted around a little at MOJ some time back.
