Freedom of, Freedom for, and Freedom from Religion: The Contested Character of Religious Freedom in America

A statue of Thomas Jefferson includes this figure holding a tablet bearing several names that different belief systems have for a higher power, titled “Religious Freedom, 1786.”

Americans are discussing the topic of “religious freedom” quite a lot these days, which might give us the impression that religious freedom is one fixed thing. Or perhaps some would say it used to be one thing but has become something else since the time of the Founding. This Liberty Forum essay will argue that the situation, both historically and today, is more complex than either view. I want to argue that there is indeed a core or center to the idea of religious freedom in America but that this core or center is at the intersection of, or overlap among,…

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Responses

Religious Liberty After John Locke

The central point of Michael Zuckert’s Liberty Forum essay is that contemporary disputes about religious liberty should not come as a surprise, since they are the result of three contrary, though sometimes overlapping, understandings of religious liberty that have been found in the body politic in differing degrees since the American Founding. He classifies these…

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The Paradox of Jefferson’s “Establishment of Religious Liberty” and the Problem of the Administrative State

Michael Zuckert’s Liberty Forum essay is a great introduction to religious liberty as it is discussed in America today, and provides a useful analytical framework to understand the tensions and controversies we face with regard to religious liberty, and perhaps liberty more generally. He strikes me as on the mark in his conclusion that religious…

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Religious Freedom Can Now Mean Only: Freedom for Religion

Michael Zuckert’s Liberty Forum essay does an excellent job of bringing to light ambiguities and tensions that have always been present in the notion of religious freedom. He is certainly right that there is no Pure Theory of Religious Freedom, which, if only we can grasp it and make it universally accepted, would resolve all…

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Ten Ways for the Next President to Promote the Rule of Law

Declaration of Independence Artice Grunge Background

After eight years of President Obama’s administration, conservatives are much more likely to see executive power as a threat to the rule of law than a tool in service of it. Indeed, after 16 years of Presidents Bush and Obama, we are all well accustomed to hearing critics comparing modern Presidents to King George III. (They don’t mean it as a compliment.) But it is a mistake to believe that presidential power is inherently and categorically a threat to the rule of law—quite the contrary. While it is true that presidential power unchecked by Congress, the courts, or the states can…

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Responses

Wishing for a Goat, Not a Hero

Adam White’s Liberty Forum essay offers 10 ways for our 45th President to promote the rule of law, many of which I find appealing. But I fear he could offer a thousand such ideas without much effect, and in the end he concedes that he, too, doubts that Presidents will restrain themselves or their governments…

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Understanding Why and How the Obama Administration Has Flouted the Rule of Law

It is very difficult to take issue with the pessimistic tone of Adam White’s sensible advice to the next President on 10 ways to promote the rule of law. All of the topics that he mentions are understood as serious, systemic weaknesses. When it comes to administrative law, President Obama has a penchant for excessive…

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Coherence in the Executive

I can only applaud the excellent “to do list” in Adam White’s Liberty Forum essay, even as I scan the absentee ballot that I received in September wondering whether any of the leading candidates would have the good sense to give the list the attention it deserves. But we are giving advice here, not forecasting…

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A (Long) Path to Reforming Our Administrative State

When Law and Liberty invited me to write on 10 things that a new president could do to promote the rule of law, I was struck by how counterintuitive the question was. After years upon years of debate over presidents pushing the boundaries of the constitutional powers (and not just during the most recent administration,…

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Commandeering Federalism: The Rise of the Activist State Attorneys General

New York Attorney General Eric Schneiderman (C) speaks as Massachusetts Attorney General Maura Healey (2nd from R) looks on during a press conference at the office of the New York Attorney General, July 19, 2016 in New York City. They announced lawsuits against Volkswagen AG and its affiliates Audi AG and Porsche AG. (Photo by Drew Angerer/Getty Images)

One of the most important developments in American politics and governance is that the attorneys general of the 50 states have become major players in national policy. Once relatively obscure stepping-stone positions focused mainly on small-bore issues, state AGs make their presence known today in area after area, be it health care, environmental regulation, guns, immigration, or cultural issues. The lawsuits they bring against federal agencies and the legal settlements they reach with corporations have led to stronger horizontal relationships among the AGs, and to any given AG’s working with—or against—his or her counterparts in other states as part of…

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Responses

They’re Not the Main Culprit

State attorneys general aren’t ruining federalism. It was already ruined, as Michael Greve’s 2012 classic The Upside Down Constitution chronicles. It is tempting to blame them, given how badly many state attorneys general behave. Some use their office to enrich themselves or their lawyer pals, or to pursue vendettas against adversaries. The attorney general of Pennsylvania,…

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State Attorneys General Didn’t Start the Fire

The American form of government, in the classic formulation of Justice Salmon Chase, contemplates “an indestructible Union composed of indestructible States.”[1] The Constitution, apart from assigning specific functions to the federal government, and prohibiting the states from exercising certain powers, largely leaves the determination of public policy to the 50 states. As numerous jurists, statesmen,…

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Federalism and State Attorneys General

There are many challenges in designing a federalist system of government. Perhaps the most daunting is how to create incentives for government officials to preserve a regime of state-by-state decisionmaking—especially when constituent pressures, partisan allegiance, or ideological beliefs tug in other directions. The U.S. Constitution tries to preserve state prerogatives by enumerating the powers of the…

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State Attorneys General Remain Unsteady Allies for Federalism

My thanks to Hans Bader, Michael Toth, and Jonathan F. Mitchell for their thoughtful responses to my essay concerning state attorneys general (AGs) and contemporary American federalism. Each raises good points about the AGs’ various roles in the era of executive federalism that has rapidly expanded during the Obama years. As all three authors note,…

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The Unforgettable Fire: Tradition and the Shape of the Law

Columns at the U.S. Supreme Court

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is wildly unfashionable—even disreputable. When tradition’s influence on law is considered, responses ordinarily fall somewhere along a predictably confined range—from dismissal and disdain to something like revulsion. A fairly recent Slate article on Khloé Kardashian’s checkered and rather perplexing spiritual practices concisely sums up the general view:…

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Responses

The Courts and Tradition: A Begrudging Respect

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

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American Tradition in Theory and Practice

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

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Legal Realism, Legal Revolution

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

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Law and Tradition in America: Marc DeGirolami Replies

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law and tradition. Of course, it will not be possible to reply to each point. But it may be simplest to consider the arguments of Professors Bernstein and Stoner together, before more particularly addressing Professor Levinson’s. Bernstein…

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Extending Bankruptcy Law to States: Is It Constitutional?

Illinois State Legislature

Puerto Rico cannot pay its debts. A significant number of states—with Illinois leading the way—teeter on the brink of fiscal disaster. Expenditures exceed revenues; debt service is a rising percentage of budgets; pension liabilities are woefully underfunded; credit ratings plummet; time is running out. If these states were private corporations, and even if they were cities, they could voluntarily file for bankruptcy protection under federal law. That would enable them to negotiate with their creditors to restructure their debts, and to renegotiate contractual obligations such as pay, retirement, pensions, and health care. Often these future obligations are untouchable as a matter of…

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Responses

Sovereignty and Orderly Defaults

In his illuminating and timely Liberty Forum essay on the constitutional impediments to a state-level bankruptcy procedure, Michael McConnell emphasizes the importance of the sovereignty of the states in the framework of American federalism. Unlike Detroit and San Bernardino, and perhaps unlike Puerto Rico, the states are considered fully sovereign with respect to taxation, expenditures,…

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State Bankruptcy and the Federal Order

While a federal bankruptcy law for states might be a desirable policy, its constitutionality is doubtful. Now, I am not a constitutional lawyer and cannot speak to the details of United States case law, but I do study fiscal federalism in comparative context: its conditions, operations, and consequences. Accordingly, I will analyze how a federal…

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In What Circumstances Would the Threat of State Bankruptcy Be Credible?

Michael McConnell’s Liberty Forum essay does an excellent job of outlining the legal case that enabling states to declare bankruptcy is not necessarily inconsistent with constitutional principles or with existing case law. From the perspective of a public choice economist, however, there is another salient issue. What those who study the outcomes of institutional arrangements and…

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A State Bankruptcy Policy and the Constitution: Michael McConnell Responds

I am grateful to Jonathan Rodden, Jason Sorens, and Steve Slivinski for their thoughtful responses to my essay, entitled Extending Bankruptcy Law to States: Is It Constitutional? I am particularly grateful because they addressed the many public policy issues about state bankruptcy, which I did not. I confined my essay to the legal/constitutional questions. But the…

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The Case for More Money in Politics

Hands raising money - United States dollar (USD) banknotes

Should a democracy, in the name of combatting political corruption, and in the name of equal participation in politics, regulate the formation of political opinions—or should it be guided by the principle of the free formation of opinion that emerges spontaneously in society? The phrase “campaign-finance reform” assumes a premise: that the way American political campaigns are run needs reform. Specifically, it assumes that the problems in our political discourse are principally ones about who pays for campaigns. These problems are alluded to, in breathless tones, as “money in politics,” or “dark money,” or, most glibly, “Citizens United.” Consider, though, that there…

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Responses

Campaign-Finance Law, the State of Nature, and the Nirvana Fallacy

One cannot fault Professor Derek Muller, whose work I admire and respect, for taking a hard libertarian line against campaign-finance regulation in his Liberty Forum essay. After all, that misguided approach is built into the prompt of the question posed by Law and Liberty’s editors: “Should a democracy through concerns about corruption in politics and equality…

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A Natural Right with Naturally Unequal Consequences

I am in strong agreement with the Derek Muller’s opposition to Progressive ideas to reform laws relating to campaign speech. He is particularly eloquent on why the Framers believed that limiting government was the best route to eliminating political corruption—the opposite of the Progressive agenda, which seeks to expand the state. We can build on his…

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The End of the Great Compromise

Constitutions are more than struggles over meaning or changing social values as interpreted by judges. Constitutions are part of larger political struggles and reflect that conflicts and compromises in those larger fights. The conflicts of the New Deal ended with a compromise—one that promised an open political process in lieu of constitutional protections for the…

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Speech Equality’s Crushing Weight: Derek Muller Replies

It was a privilege to participate in this month’s Liberty Law Forum. I am deeply grateful for the opportunity to contribute the lead essay, “The Case for More Money in Politics,” and I am humbled at the thoughtful commentary provided by Professors Rick Hasen and John McGinnis, and by John Samples, all of whose opinions…

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Twenty Years after Welfare Reform: The Welfare System Remains in Place

Clinton_prwora

It was 20 years ago that leaders of both major political parties gathered in the Rose Garden of the White House to watch President Clinton sign the Personal Responsibility and Work Opportunity Reconciliation Act. The bill that Clinton signed into law on August 22, 1996, despite its obscure title (and unpronounceable acronym, PRWORA—hereafter we will simply call it “the Act”), represented the most extensive revision of federal welfare policy in more than a generation. There were smiles all around that day in the Rose Garden, and an uncommon political harmony as Democrats and Republicans basked together in the warm afterglow of…

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Responses

Welfare Reform’s Success and the War on Immobility

There is much with which to agree in Michael Tanner’s Liberty Forum essay summarizing the post-1996 history of welfare reform, its successes and failures, and where to go from here. However, I view the Personal Responsibility and Work Opportunity Reconciliation Act as having succeeded to a greater extent than Tanner believes. Indeed, as I have argued…

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Tailoring the Help to Those Who Need It

Michael Tanner’s Liberty Forum essay provides a characteristically insightful and level-headed overview of the 1996 welfare reform and its consequences. He admirably clears away the rhetorical fog that still envelopes our debates regarding welfare, and does not let either side get away with much. “Welfare reform was neither the disaster that its critics feared nor…

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We Can’t Stand Welfare, and Can’t Stand Welfare Reform

The 1996 welfare reform law seemed, at the time, like a very big deal. Critics denounced it as a savage assault on those Americans whose lives were already precarious. Supporters hailed it as the first reversal since 1932 of a relentless trend: individual government welfare programs grew more numerous, while each one spent more money…

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Twenty Years after Welfare Reform: Michael Tanner’s Response

Scott Winship, Yuval Levin, and William Voegeli offer insightful critiques of my Liberty Forum essay on the 20th anniversary of welfare reform. Actually, I use the term “critique” advisedly, because there may not actually be that much daylight between our positions. Still, there are quibbles, if not major differences. Scott Winship clearly feels the 1996 reform…

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Saving Originalism from the Originalists

Law Books

For decades, adherents of “judicial restraint,” led by Justice Antonin Scalia, have railed against “judicial activism.”[1] Activist judges, they charge, have repeatedly overstepped the bounds of their authority by striking down acts of the democratically accountable branches of government on grounds having no proper basis in the Constitution. In the view of many who favor more restrained use of the power of judicial review, “originalism”—the notion that the Constitution should be interpreted in accordance with the intent of the Framers—is not only the sole defensible method of constitutional interpretation, but the last, best hope of ending misadventures in judicial activism. As…

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Responses

Constitutional Theory As Game Theory

Stephen F. Smith begins his Liberty Forum essay by quoting from Justice Antonin Scalia’s “Originalism: The Lesser Evil” speech from 1988. There Scalia announces that the Constitution, though it has an effect superior to other laws, is in its nature a sort of ‘law’ that is the business of the courts—an enactment that has a fixed…

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Promoting Originalism: Through Strategy or Principle?

Stephen Smith’s Liberty Forum essay concerns an important question for originalism: How can originalists provide nonoriginalists with an incentive to follow the Constitution’s original meaning? Smith identifies what he regards as a serious problem with originalism: “In a world in which many judges reject original intention as a binding constraint, originalism cannot achieve its goal of…

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Reactivists We Have Known and Loved (Just One, Actually)

Kudos to Stephen Smith, and kudos to the man behind the curtain (Richard Reinsch) for inviting his essay. What a breath of fresh air. In the current environment, constitutionalism seems unlikely to regain real-world traction any time soon. Surely, though, that must remain the long-term objective. To that end originalism must liberate itself from its…

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Saving Originalism: A Reply by Stephen F. Smith

It was an honor for me to contribute my initial essay, “Saving Originalism from the Originalists,” to the Liberty Law Forum, and now I am doubly honored to have had my work reviewed by constitutional scholars as widely respected as Professors Michael Greve, Gordon Lloyd, and Mike Rappaport. I am grateful to each of them…

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Reimagining Religion’s Distinctiveness in American Law

A row of Church pews

Historically we have understood our tradition of religious liberty to entail distinctive treatment for religion. We have interpreted the Free Exercise and Establishment Clauses of the First Amendment to afford special protections for religious exercise and to place special limitations on government involvement with religion. The religion clauses, we have said, protect religious belief and practice from the dangers of state intrusion; protect the state and its institutions from the dangers of sectarian control; and operate to prevent the domination of religious minorities by majorities. Equality of treatment between religion and nonreligion has also always been a part of our tradition…

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Responses

Who Threatens Whom? Which Religion Needs Protection?

Many of my undergraduate students have trouble understanding the threat that religion might pose to the state. Often when teaching the Investiture Controversy, the 11th century contest between Pope Gregory VII and King Henry IV, the Holy Roman Emperor, over the appointment of bishops, I put to them the anachronistic question of whether the Pope has…

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The Clashes of Values that Leviathan Foments

Kathleen Brady’s book The Distinctiveness of American Religion in Law: Rethinking Religion Clause Jurisprudence is a fascinating exposition of the changing role that religion plays in a rapidly secularizing society. What’s so special about religion? Why should courts treat it differently from non-religious belief systems? Why do we still mostly speak of religious free exercise…

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Reimagining Religion’s Distinctiveness: Kathleen Brady Replies to Her Critics

I would like to thank D.G. Hart and Ilya Shapiro for their thoughtful comments on my essay. Together their observations provide me with the opportunity to clarify some aspects of my account of religion’s distinctiveness and the implications of this distinctiveness for our understanding of the First Amendment’s religion clauses and other constitutional liberties. Professor Hart…

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A Modest Proposal for Reforming the Administrative State

Wooden Judges Gavel And Old Law Books On Wooden Background

The problem of administrative government in the United States is well known to the readers of Law and Liberty. Congress delegates broad legislative power to agencies, sacrificing something of our republican character. An agency thus exercises not only executive power as part of that department of government, but also legislative power delegated to it by the Congress. Independently, agencies often exercise judicial power as well, adjudicating not only public rights cases but also cases involving common-law private rights traditionally reserved for Article III courts. We have sacrificed not only some part of our republicanism, then, but also a much greater…

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Responses

(Incrementally) Toward a More Libertarian Bureaucracy

The ambitious proposal reconsidering the foundations of the modern regulatory state that Ilan Wurman outlines in his thoughtful Liberty Forum essay is not an outlier. There seems to be a growing call—primarily among conservatives and libertarians—to return to first principles and rein in the administrative state. And I’m not just referring to Philip Hamburger’s condemnation…

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An Administrative Fairy Tale

Most everyone is familiar with the Hans Christian Andersen tale in which only a child is willing to pronounce what everyone knows: The emperor’s clothes are no clothes at all. As the emperor marches through town, he is as naked as the day he was born. His magnificent new outfit is a fiction, but a…

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Congress-ification of Agency Rulemaking

In his provocative Liberty Forum essay, Ilan Wurman proposes a novel solution to the explosive growth of the administrative state. Constitutional conservatives, rather than pursuing their dream remedy (that is, the Supreme Court overturning or severely limiting its prior holdings on the non-delegation doctrine), should accept that agencies will inevitably exercise a blend of executive,…

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Ilan Wurman Replies to His Critics

I would very much like to thank professors Chris Walker, Jonathan Adler, and Andy Grewal for their thoughtful and incisive responses to my “modest” (or perhaps not so modest) proposal for reforming the administrative state. Much of their criticisms, I think, will be addressed in the forthcoming, fuller accounts of this idea, but much of…

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