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A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine
A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine
Samuel J. Levine
This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article concludes …
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine
Samuel J. Levine
In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
Reflections On The Constitutional Scholarship Of Charles Black: A Look Back And A Look Forward, Samuel J. Levine
Samuel J. Levine
Charles L. Black Jr. has been one of the most important constitutional scholars in the United States for more than four decades. Professor Black's writings have helped shape the debate in a wide variety of constitutional areas, from racial equality and welfare rights to constitutional amendment, impeachment, and the death penalty. In this essay, Levine briefly surveys a number of Professor Black's articles, focusing on two areas of his scholarship: unnamed human rights and racial justice. By analyzing these two topics, which represent, respectively, Black's most recent scholarship and his most significant early work, Levine attempts to show certain principles …
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Samuel J. Levine
In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine
Samuel J. Levine
In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine
Samuel J. Levine
In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Samuel J. Levine
In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …
Religious Symbols And Religious Garb In The Courtroom: Personal Values And Public Judgments, Samuel J. Levine
Religious Symbols And Religious Garb In The Courtroom: Personal Values And Public Judgments, Samuel J. Levine
Samuel J. Levine
As a nation that values and guarantees religious freedom, the United States is often faced with questions regarding the public display of religious symbols. Such questions have arisen in a number of Supreme Court cases, involving both Establishment Clause and Free Exercise Clause issues. Since 1984, the Court has considered the constitutionality of the display of religious symbols such as a creche, a menorah, and a cross in public areas. The Court has also considered the constitutionality of Air Force regulations that prohibited a clinical psychologist from wearing a yarmulke. Parallel to the Supreme Court cases, a number of federal …