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Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun
Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun
Scholarly Articles
Professor Geoffrey Stone’s Essay, The World of the Framers: A Christian Nation?, seeks to state “the truth about . . . what [the Framers] believed, and about what they aspired to when they created this nation.” Doing so will accomplish Professor Stone’s main objective, helping us to understand what “the Constitution allows” on a host of controversial public policy issues. Regrettably, Professor Stone’s effort is unsuccessful. Although he clearly tried to be fair in his historical account, the Essay ultimately presents a misleading view of the Framers’ perspective on the proper relationship between religion and the state.
Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla
Words "Which By Their Very Utterance Inflict Injury": Evolving Treatment Of Inherently Dangerous Speech In Free Speech Law And Theory, Rodney A. Smolla
Scholarly Articles
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No Tears For Creon, Marc O. Degirolami
No Tears For Creon, Marc O. Degirolami
Scholarly Articles
This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect-that "[a]ll citizens have equal rights and deserve equal respect from the government under which they live." Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light …
Response, Frames Of Reference And The "Turn To Remedy" In Facial Challenge Doctrine, Kevin C. Walsh
Response, Frames Of Reference And The "Turn To Remedy" In Facial Challenge Doctrine, Kevin C. Walsh
Scholarly Articles
This Symposium on Facial Challenges in the Roberts Court provides an opportunity to chart a path toward greater doctrinal coherence in light of the Court's most recent uses of the distinction between facial and as-applied challenges. In his contribution to this Symposium, David Faigman makes two claims that I address in this response. The first of Professor Faigman's claims is descriptive: "the debate over facial versus as-applied challenges is merely a subcategory of the pervasive issue concerning defining the proper frame of reference for empirical questions arising under the Constitution.'"' As Professor Faigman uses the term, a "frame of reference" …
Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi
Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi
Scholarly Articles
Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely.