Law Commons^™

American Religious Liberty Without (Much) Theory: A Review Of Religion And The American Constitutional Experiment, 5th Edition, Nathan S. Chapman

Scholarly Works

Book review of Religion and the American Constitutional Experiment, 5th ed. By John Witte Jr., Joel A. Nichols, and Richard W. Garnett. Oxford: Oxford University Press, 2022. Pp. 464. $150.00 (cloth); $39.95 (paper); $26.99 (digital). ISBN: 9780197587614.

Forbidden Forests: Negotiating Censorship In Children's And Young Adult Literature During A New Era Of Conservatism In 2022 And Beyond, Avila Hendricks

Title III Professional Development Reports

Harambee! In Swahili, “Harambee” means “All pull together!” The impetus for this report grew out of a unifying discussion with other 2022 Children's Literature Association (ChLA) conference attendees.These discussions led to the decision to “pull together” against the rise of “extreme” conservatism and the increase of banned books across the United States.

This report offers insight into some of the issues surrounding the increase in censorship in children's and young adult literature. It includes a brief review of the recently scrutinized book, Dear Martin by Nic Stone, and it concludes with some recommendations for negotiating censorship in conservative communities.

Public Policy And Religion In The Pandemic: U.S. Constitution And The First Amendment, Stephen Covell, Diane Riggs, Cameron Borg

Modules for Teaching Pandemic Response and Religion in the USA

The following teaching module is designed for high school and college level instructors who seek to teach a lesson on the impact the COVID-19 pandemic had on the relationship between church and state. The teaching module features a lesson plan, case studies, and assignments that can be incorporated as the instructor sees fit. This teaching module was created by Western Michigan University's Department of Comparative Religion.

Back To The Sources? What’S Clear And Not So Clear About The Original Intent Of The First Amendment, John Witte Jr.

Faculty Articles

This Article peels through these layers of founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V …

The Corporation As Trinity, David A. Skeel Jr.

All Faculty Scholarship

In “Corporate Capitalism and ‘The City of God,’” Adolf Berle references Augustine’s theological classic The City of God in service of his contention that corporate managers have a social responsibility. In this Article, I turn to another work by Augustine, The Trinity, for insights into another feature the corporation, corporate personhood. The Trinity explicates the Christian belief that God is both three and one. I argue that corporations have analogously Trinitarian qualities. Much as theologically orthodox Christians understand God to be both one and three, I argue that corporations are best seen as both a single entity and through …

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …

Texas Indian Holocaust And Survival: Mcallen Grace Brethren Church V. Salazar, Milo Colton

The Scholar: St. Mary's Law Review on Race and Social Justice

When the first Europeans entered the land that would one day be called Texas, they found a place that contained more Indian tribes than any other would-be American state at the time. At the turn of the twentieth century, the federal government documented that American Indians in Texas were nearly extinct, decreasing in number from 708 people in 1890 to 470 in 1900. A century later, the U.S. census recorded an explosion in the American Indian population living in Texas at 215,599 people. By 2010, that population jumped to 315,264 people.

Part One of this Article chronicles the forces contributing …

"The Thought That We Hate": Regulating Race-Related Speech On College Campuses, Michael Mcgowan

USF Tampa Graduate Theses and Dissertations

In this essay I explore efforts at regulating race-related speech on publicly funded colleges and universities. In the first section, I present the scope of the current debate about the topic: what speech is, contexts in which it is found, etc. In the second section, I present the case for unrestricted speech on campuses for the advancement of knowledge and social progress. The third section addresses standard problem cases for free speech like the non-scientific nature of racist epithets, existential threats to the university, and involuntary exposure to racist speech. The fourth section explores arguments for regulating speech coming from …

Whose Market Is It Anyway? A Philosophy And Law Critique Of The Supreme Court’S Free-Speech Absolutism, Spencer Bradley

Dickinson Law Review (2017-Present)

In the wake of Charlottesville, the rise of the alt-right, and campus controversies, the First Amendment has fallen into public scrutiny. Historically, the First Amendment’s “marketplace of ideas” has been a driving source of American political identity; since Brandenburg v. Ohio, the First Amendment protects all speech from government interference unless it causes incitement. The marketplace of ideas allows for the good and the bad ideas to enter American society and ultimately allows the people to decide their own course.

Yet, is the First Amendment truly a tool of social progress? Initially, the First Amendment curtailed war-time dissidents and …

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

All Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry

Educational Studies Dissertations

The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on the …

The Tension Between Equal Protection And Religious Freedom, John M. Greabe

Law Faculty Scholarship

[Excerpt] "The Constitution did not become our basic law at a single point in time. We ratified its first seven articles in 1788 but have since amended it 27 times. Many of these amendments memorialize fundamental shifts in values. Thus, it should come as no surprise to learn that the Constitution is not an internally consistent document."

…

"Other constitutional provisions -- even provisions that were simultaneously enacted -- protect freedoms that can come into conflict with one another. The First Amendment, for example, promises both freedom from governmental endorsement of religion and freedom from governmental interference with religious practice. …

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Georgetown Law Faculty Publications and Other Works

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

An Examination Of University Speech Codes’ Constitutionality And Their Impact On High-Level Discourse, Benjamin Welch

College of Journalism and Mass Communications: Theses

The First Amendment – which guarantees the right to freedom of religion, of the press, to assemble, and petition to the government for redress of grievances – is under attack at institutions of higher learning in the United States of America. Beginning in the late 1980s, universities have crafted “speech codes” or “codes of conduct” that prohibit on campus certain forms of expression that would otherwise be constitutionally guaranteed. Examples of such polices could include prohibiting “telling a joke that conveys sexism,” or “content that may negatively affect an individual’s self-esteem.” Despite the alarming number of institutions that employ such …

Brown V. Entertainment Merchants Association: "Modern Warfare" On First Amendment Protection Of Violent Video Games, Jessica Fisher

Journal of Business & Technology Law

No abstract provided.

Disclosure's Effects: Wikileaks And Transparency, Mark Fenster

Mark Fenster

How Much Does A Belief Cost?: Revisiting The Marketplace Of Ideas, Gregory Brazeal

Gregory Brazeal

Justice Oliver Wendell Holmes, Jr. is often credited with creating the metaphor of “the marketplace of ideas,” though he did not use the exact phrase and his argument for free speech was not based on distinctively economic reasoning. Truly economic investigations of the marketplace of ideas have progressed in step with developments and trends in the law and economics literature. These investigations have tended to be one-sided, with writers focusing primarily either on the production of ideas (for example, Posner) or their consumption (for example, behavioral law and economics), without considering in depth how producers and consumers interact. This may …

The First Amendment’S Religion Clauses: The Calvinist Document That Interprets Them Both, Leah Farish Esq.

College of Arts and Cultural Studies Faculty Research and Scholarship

This paper suggests that the Westminster Confession of Faith's provisions about church and state, revised in Philadelphia at the start of the Constitution's ratifying convention, furnished much of the syntax and vocabulary for the First Amendment's religion clauses. Recognizing the cultural links between the new American government and the Presbyterian Church, the author argues that it was natural for the founders to look to how the new Westminster Confession situated church and state. The author argues that Fisher Ames's proposed wording for the First Amendment won immediate adoption because it resonated with the Confession, standing as it did in that …

Too Much To Bare? A Comparative Analysis Of The Headscarf In France, Turkey, And The United States, Hera Hashmi

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Eruv And Establishment, Lorin Geitner

Lorin C. Geitner

An examination of how the Orthodox Jewish practice known as an "eruv", based in Jewish religious law, can help illustrate the tension between the Establishment and Free Exercise clauses of the First Amendment.

Jewish Women Under Siege: The Fight For Survival On The Front Lines Of Love And The Law, Adam H. Koblenz

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Constitution Day, 2008, Robert Berry

Librarian Publications

Robert Berry, the research librarian for the social sciences at the Sacred Heart University Library, has written an essay about the United States Constitution and the freedom of speech and expression. The essay was written for the occasion of Constitution Day 2008 at Sacred Heart University.

A Cross To Bear: The Need To Weigh Context In Determining The Constitutionality Of Religious Symbols On Public Land, Catherine Ansello

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Twentieth Century Approaches To Defining Religion: Clifford Geertz And The First Amendment, Barbara Barnett

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

Linda L. Berger

No abstract provided.

Accommodating Religion And Law In The Twenty-First Century, Andrew J. King

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Does Cutter V. Wilkinson Change The Analysis Of Mandated Dui Treatment Programs?: A Critical Response, Eric L. Sherbine

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.