The Constitution’s Design for Creating Civic Virtue: Part II

This is the second part of a three-part summary of a speech that I gave last weekend at the 2015 National Lawyers Convention of the Federalist Society. The first part focuses on how commerce encourages civic virtue. The second continues by discussing how limited government aids civic culture and how the Constitution helps assure that religion will be helpful rather than harmful to that culture:

Besides encouraging a commercial society, the Constitution also sharply limits government. The federal government is limited by the enumerated powers. The states’ capacity to create large, intrusive, anti-commercial government is circumscribed by the right of citizens to exit. To take just a purely hypothetical example, if my home state of Illinois exacts large taxes in favor of small groups like public sector unions, many of its citizens will leave.

Limited government creates the space and indeed the need for the kind of private associations that Alexis de Tocqueville celebrated.  Varying in size and mission, these associations may concern self-improvement, mutual aid, or social welfare. As the Nobel Prize-winning political scientist Elinor Ostrom showed, these associations can help people develop bonds of social trust and maintain long-term relations of reciprocal goodwill, which can also help sustain a free society.

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Shut up! They Said

tribune speeches room microphone

Leading up to Justice Kennedy’s fateful 5-4 decision, there was plenty of debate on both sides, and the proponents of same-sex marriage emphasized that they just wanted to be treated the same as heterosexual couples.  They even coined the deceptively simple slogan, “Marriage Equality.”  That was then.

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Victory in Spite of Ourselves


David Cortman showed remarkable poise and command last January when he made his first appearance before the Supreme Court. The case was Reed v. Gilbert, and he represented the cause of a small, fledgling church having no fixed site for its services. His masterful performance was recognized this week: victory, with a box score of 9 to 0. Cortman brought to the aid of this small congregation all of the dedication and resources of the Alliance Defending Freedom.

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What’s Dignity for the Goose Is Dignity for the Gander


It was in April, during oral arguments in the collection of cases known as Obergefell v. Hodges that Justice Kennedy publicly fretted over the legal outcome that his jurisprudence has, in effect, created. To the surprise of Court-watchers, Kennedy at one point let out that he had “a word on his mind . . .  and that word is millennia.”

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The Utah Compromise

Legislature Returns

Watching the unnecessary dramas that recently unfolded in Indiana and other states, one thing is clear: the landscape of protecting religious liberty has changed. Permanently.

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Social Change Cuts in Favor of Protecting Religious Freedom

man showing fist to his big boss

How should social change affect how we think about laws on religious freedom?  On Sunday Governor Mike Pence defended his state’s religious freedom  law, noting that the President had voted for a similar law protecting religious freedom twenty years previously when he was an Illinois State Senator. Josh Earnest, the White House spokesman responded: “If you have to go back two decades to justify what you’re doing today, it may raise questions.” It is hard to come up with a more perfect encapsulation of the progressive mindset: even a two decades-old position carries no epistemic weight with the present.

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Higher Education and the Long Arm of the Law, Part II

In my previous post, I laid out the two new principles flowing from the recent decision of the National Labor Relations Board (NLRB) in the matter of labor-union organizing at Pacific Lutheran University. The NLRB may now, as per its December 2014 decision, regulate religiously affiliated colleges and universities heretofore considered outside its jurisdiction. Secondly, the Board has established narrow criteria under which faculty at a religiously affiliated, or in fact any other, college or university can be considered “management.” In so doing, it has facilitated the formation of labor unions in higher education. Full-time faculty have, as I had noted, generally been…

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Higher Education and the Long Arm of the Law, Part I


The National Labor Relations Board (NLRB) handed down a decision in December 2014 that has great import for the relationship of church and state as that relationship plays out through institutions of higher learning.[1]

The decision dealt with the Service Employees International Union’s attempt to organize contingent (part-time and non-tenure track) faculty at Pacific Lutheran University, a religiously affiliated institution. The NLRB, by a vote of 3 to 2, articulated with this decision two new principles: first, regarding labor regulation of religiously affiliated colleges and universities, and second, deciding whether and to what extent faculty are to be considered “management” and hence exempt from the Board’s jurisdiction.

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Assessing the Blowback from Hobby Lobby

Supreme Court Hears Arguments In Case Challenging Affordable Care Act

The Hobby Lobby case, “one of most publicized controversies in decades involving a religious claim,” in the words of Columbia law professor Kent Greenawalt, prevented the Obama administration from mandating under the Affordable Care Act (ACA) that all employers cover all contraceptives approved by the Food and Drug Administration—even those drugs and devices that objecting employers believe “cause the demise of an already conceived but not-yet-attached human embryo.”

The U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) prohibits the government from forcing closely held, family-owned corporations to cover such drugs and devices if a less restrictive means is available. One less restrictive means available to the administration, the Court noted, was to extend to such corporations the significant concessions the Obama administration already made for objecting, religious non-profits. This is a step the administration is now taking.

It was a high-profile win for religious objectors. Nonetheless, the highest percentage of Americans in a decade, according to the Pew Research Center, see religion’s influence as waning. How can this be?

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The Perverse Effects of the “All Comers” Requirement

The recent decision by the California State University system to enforce its “all comers” policy against religious groups on its 23 campuses is the latest in a disturbing and (at least in some cases) unprincipled effort to rid colleges and universities of conservative religious groups with creedal faith statements.

The Supreme Court bears much of the blame. In its 2010 decision in Christian Legal Society v. Martinez, the Court unwisely upheld the nondiscrimination policy of the Hastings College of the Law, a public law school in San Francisco. Its “all comers” policy is that student groups must admit as members and even leaders any student who wants to participate. The Republican club must accept Democrats. The pro-choice club must accept pro-lifers. The Jewish club must accept Christians.

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