descriptive scholarly accounts of religious identity and judicialbehav...

[hamilton02 at aol.com]

Rick-- For the framing generation, there could be too much liberty.  When there was too much liberty, it was called "licentiousness".  Those acts were never intended to be protected.  They included illicit sex, polygamy, and even financial fraud.  In other words, limiting liberty was built into the concept.
Barring licentiousness makes for good government and a better society
So I take as a given that claims to liberty may properly be rejected in line with the First Amendment
But your posting is not clear to me.   Are you saying that there is no right to have the govt post the Ten Commandments and so an establishment clause holding it is unconstitutional does not limit liberty?

Marci



Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: Rick Garnett <rgarnett at nd.edu>
Date: Sat, 24 Apr 2010 19:09:33 
To: Rick Garnett<rgarnett at nd.edu>; Hamilton02 at aol.com<Hamilton02 at aol.com>; VOLOKH at law.ucla.edu<VOLOKH at law.ucla.edu>; conlawprof at lists.ucla.edu<conlawprof at lists.ucla.edu>
Subject: descriptive scholarly accounts of religious identity and judicial
 behav...

________________________________
From: Rick Garnett
Sent: Friday, April 23, 2010 5:59 PM
To: Hamilton02 at aol.com; VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...

Dear Marci,

We agree, I think, that the Constitution’s no-establishment rule is best regarded as something like a separation-of-powers principle (though I realize that we disagree, in some cases, about the implications of this principle).  Does it follow, though, that it is the *Establishment Clause* that is (as you put it) “restrict[ing] liberty” when, say, it is interpreted (correctly or not) to forbid the posting in public space by the government of the Ten Commandments?

I guess I don’t see whatever it is that's being restricted as “religious liberty”.  Maybe I'm getting caught up in word-play, but I don’t think of the constraints that are imposed, by the principle, on government as constraints on “liberty.”  The no-establishment rule, as I (and you) see it, is a structural principle -- as such, it’s a principle that, in application, protects religious liberty (individual and corporate).  It also (I suspect we agree) makes for good government.  This liberty sometimes, as we all know, is burdened – and justifiably – by government, but (in my view) the no-establishment rule limits, in some cases, the form those burdens can take.

So, if you have the time, I’m just curious to hear more about your view that it is the *establishment clause* -- itself -- that, sometimes, “constricts religious entities”, and their religious freedom?  When does this happen?  (To be clear, albeit probably pedantic:  I regard this question as different from the question whether religious entities may, sometimes, be “constrict[ed].”  I assume that they may be, just as we all -- sometimes -- may be.)

Best wishes,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

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From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Hamilton02 at aol.com
Sent: Friday, April 23, 2010 5:34 PM
To: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject: Re: FW: descriptive scholarly accounts of religious identityandjudicial behav...

The constitutional evil under the Establishment Clause is that the government has embraced a religion as a religion, with all of the potential consequences Madison outlined in Memorial and Remonstrance...right up to the Inquisition, which he names.  The Establishment Clause is a separation of powers principle (bet church and state), not an individual right.  Now, individuals can be harmed by Establishment Clause violations, e.g., the non-evangelical prisoners in the God Pod case in Iowa, but not always. Sometimes the harm is a structural harm.  That is why taxpayer standing makes more sense in this particular arena than in any other.

It is this shift toward thinking of it as an individual right that has fueled the misguided arguments, in my view, that the Establishment Clause is really only about protecting religious liberty.  The reasoning then goes that if it is just about protecting the religious believer, the Establishment Clause should never restrict religious liberty.  It can expand options for believers, but never restrict.  Then the next step in this reasoning is that when courts do constrict religious entities through the Establishment Clause (e.g., Ten Commandments posting or Texas v. Bulloch), it is because the culture is secularist or the religious group is being persecuted.  That is absurd.

Marci

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