Law Commons^™

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Ian C Bartrum

This article was a contribution to the 2010 Religious Legal Theory symposium held at St. John's Law School.

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that “the principles and policies they advocate and vote for can be supported by the political values of public reason.” This so-called “duty of civility” obligates us to cast our votes on “constitutional questions and matters of basic justice” for reasons that we can explain in terms of the public good and the “ideals and principles expressed by society’s conception of political justice.” Rawls contrasts these …

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Ian C Bartrum

This short piece discusses some doctrinal and theoretical implications of the Court's recent decision.

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that might accomplish …

The Political Origins Of Secular Public Education: The New York City School Controversy, 1840-1842, Ian C. Bartrum

Ian C Bartrum

THE ORIGINS OF SECULAR PUBLIC EDUCATION: THE NEW YORK SCHOOL CONTROVERSY, 1840-1842 As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy’s legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes’ objection to nonsectarianism as …

The Constitutional Structure Of Disestablishment, Ian C. Bartrum

Ian C Bartrum

This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural …