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Articles 31 - 47 of 47
Full-Text Articles in Law
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard Garnett
Richard W Garnett
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …
Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett
Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett
Richard W Garnett
The First Amendment’s “Establishment Clause” is widely thought to protect “conscience.” Does it? If so, how? It is proposed in this paper that the no-establishment rule does indeed promote and protect religious liberty, and does safeguard conscience, but not (or, at least, not only) in the way most people think it does, namely, by sparing those who object from the asserted injury to their conscience caused by public funding of religious activity. The Supreme Court’s decision in Hein v. Freedom from Religion Foundation - a case in which the Justices limited taxpayer standing to bring Establishment Clause claims - reminds …
Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett
Whom Should A Catholic University Honor?: "Speaking" With Integrity, Richard W. Garnett
Richard W Garnett
No abstract provided.
Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett
Depravity Thrice Removed: Using The 'Heinous, Cruel, Or Depraved' Factor To Aggravate Convictions Of Nontriggermen Accomplices In Capital Cases, Richard W. Garnett
Richard W Garnett
No abstract provided.
A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett
A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett
Richard W Garnett
The government exempts religious associations front taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not in politics—it tempts both believers and …
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Introduction: Religion, Division, And The Constitution, Richard W. Garnett
Richard W Garnett
No abstract provided.
Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett
Why Informed Consent? Human Experimentation And The Ethics Of Autonomy, Richard W. Garnett
Richard W Garnett
No abstract provided.
Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett
Can There Really Be "Free Speech" In Public Schools?, Richard W. Garnett
Richard W Garnett
The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in More is one that the various Justices who wrote in the case never squarely addressed: What is the "basic education mission" of public schools, and what are the implications of this "mission" for officials' authority and students' free-speech rights. Given what we have come to think the Free Speech clause means, and considering the values it is thought to enshrine and …
Sectarian Reflections On Lawyers' Ethics And Death-Row Volunteers, Richard W. Garnett
Sectarian Reflections On Lawyers' Ethics And Death-Row Volunteers, Richard W. Garnett
Richard W Garnett
What should lawyers think about and respond to death-row volunteers? When a defendant accused of a capital crime attempts to plead guilty, or instructs his lawyer not to present a particular defense; when a convicted killer refuses to permit the introduction of potentially life-saving mitigating evidence - or even urges the jury to impose a death sentence - at the sentencing phase of a death-eligible case; when a condemned inmate refuses to file, or to appeal the denial of, habeas corpus and other post-conviction petitions for relief; when he elects not to object to a particular capital-punishment method, to call …
Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett
Pluralism, Dialogue, And Freedom: Professor Robert Rodes And The Church-State Nexus, Richard W. Garnett
Richard W Garnett
The idea of church-state separation and the image of a wall are at the heart of nearly every citizen's and commentator's thinking about law and religion, and about faith and public life. Unfortunately, the inapt image often causes great confusion about the important idea. What should be regarded as an important feature of religious freedom under constitutionally limited government too often serves simply as a slogan, and is too often employed as a rallying cry, not for the distinctiveness and independence of religious institutions, but for the marginalization and privatization of religious faith.
How, then, should we understand church-state separation? …
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Judicial Review, Local Values, And Pluralism, Richard W. Garnett
Richard W Garnett
At the Federalist Society's 2008 National Student Symposium, a panel of scholars was asked to consider the question, does pervasive judicial review threaten to destroy local identity by homogenizing community norms? The answer to this question is yes, pervasive judicial review certainly does threaten local identity, because such review can homogenize[e] community norms, either by dragging them into conformity with national, constitutional standards or (more controversially) by subordinating them to the reviewers' own commitments. It is important to recall, however, that while it is true that an important feature of our federalism is local variation in laws and values, it …
Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders
Religious Liberties: The International Religious Freedom Act, Richard W. Garnett, Thomas F. Farr, T. Jeremy Gunn, William L. Saunders
Richard W Garnett
No abstract provided.
Church, State, And The Practice Of Love, Richard W. Garnett
Church, State, And The Practice Of Love, Richard W. Garnett
Richard W Garnett
In his first encyclical letter, Deus caritas est, Pope Benedict XVI describes the Church as a community of love. In this letter, he explores the organized practice love by and through the Church, and the relationship between this practice, on the one hand, and the Church's commitment to the just ordering of the State and society, on the other. God is love, he writes. This paper considers the implications of this fact for the inescapably complicated nexus of church-state relations in our constitutional order.
The specific goal for this paper is to draw from Deus caritas est some insight into …
Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett
Religious Freedom, Church Autonomy, And Constitutionalism, Richard W. Garnett
Richard W Garnett
No abstract provided.
Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett
Do Churches Matter? Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett
Richard W Garnett
In recent years, several prominent scholars have called attention to the importance and role of First Amendment institutions and there is a growing body of work informed by an appreciation for what Professor Balkin calls the infrastructure of free expression. The freedom of expression, he suggests, requires more than mere absence of government censorship or prohibition to thrive; [it] also require[s] institutions, practices and technological structures that foster and promote [it]. The intuition animating this scholarship, then, is that the freedom of expression is not only enjoyed by and through, but also depends on the existence and flourishing of, certain …
Judicial Activism And Its Critics, Kermit Roosevelt, Richard W. Garnett
Judicial Activism And Its Critics, Kermit Roosevelt, Richard W. Garnett
Richard W Garnett
"Judicial activism," writes Professor Kermit Roosevelt, of Penn, has been employed as an "excessive and unhelpful" charge--one "essentially empty of content." As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with "much, though not all, of" Roosevelt's position. Ultimately, Garnett suggests "that 'judicial activism' might be salvaged, and used as a way of identifying and criticizing decisions...that fail to demonstrate th[e] virtue" of constitutional "humility."
Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett
Chief Justice Rehnquist's Enduring Democratic Constitution, Richard W. Garnett
Richard W Garnett
William H. Rehnquist's essay, The Notion of a Living Constitution, was delivered as the Will E. Orgain Lecture and then published thirty years ago, back when Rehnquist was still a relatively junior Associate Justice. The piece provides a clear and coherent statement of Rehnquist's judicial philosophy, and the Harvard Journal of Law and Public Policy and the Texas Law Review deserve thanks for their initiative and generosity in reproducing it, in memory of his life and work.
This introduction to Rehnquist's essay highlights his view that the Notion of a Living Constitution was to be resisted, not out of pious …