Proof, tendencies, and patterns
VOLOKH at mail.law.ucla.edu
Tue Jun 6 15:29:22 PDT 2000
I guess I'm a bit uncertain about the standards of "proof"
that the Protestant Empire theory seems to be founded on.
The Protestant Empire thread started with a claim of pattern
or tendency based on one threesome of cases -- Prince and Heffron, which the
claimants lost, and Rosenberger, which the claimant won. The claim was that
these cases could be explained on the grounds that "The group that most
clearly falls within the reach or ambit of the English Reformation, the
student group in Rosenberger, was the only winner of the three." This even
though the post said that the case *should* have been 9-0, which suggests
that for some reason the English Reformationist Rosenberger got *fewer*
votes than he should have deserved. The theory thus claims to derive
support from a supposed pattern or tendency based on three cases.
OK, an interesting little comparison that one might call a
"pattern or tendency." But what about, as the responding message asked, the
following victories for groups pretty far away from "the reach or ambit of
the English Reformation": "U.S. v. Ballard, Fowler v. Rhode Island, Torcaso
v. Watkins, Welsh, Cruz v. Beto, NLRB v. Catholic Bishop, Lukumi Babalu Aye,
five votes in favor of an exemption in Bowen v. Roy, . . . the clearly
foreseeable benefits that orthodox Jews got from the pro-Sabbatarian
decisions in Sherbert "? I'm afraid I don't recall any specific response to
And what about the other 1930s-mid-1950s 1st Am Supreme
Court cases involving the Jehovah's Witnesses -- the group that the earlier
post claimed was being discriminated against by the Protestant Empire, based
on its loss in Prince? Here's my rough tally of the results:
JW losses: Gobitis, Cox v. N.H., Chaplinsky, Prince,
JW victories: Schneider, Cantwell, Largent, Jamison,
Murdock/Busey/Jones, Martin, Taylor, Barnette, Follett, Tucker, Marsh, Saia,
No-one on this list, I think, is asking that a theory
explain the results in "every court case." But if someone points to a
comparison of three cases as evidence for the theory, it seems to me that
the theory should confront the dozens of cases that seem to cut the opposite
I've heard many theories in the past of religious groups
being accused of wielding improper power through the organs of state. Seems
to me that such accusations deserve a bit more supporting evidence than this
one has gotten.
Michael Newsom writes:
> Finally, it would be absurd to suppose that the
> existence or not of the Protestant Empire depends upon the Empire winning
> every court case. If there are patterns or tendencies, there is proof
> enough, it seems to me.
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