Wednesday, September 24, 2003

New Law Review Articles

Thanks to Lawrence Solum, I see that my good friends Rick and Nicole Garnett of Notre Dame Law School have a couple of new articles in progress.

Nicole's article is titled "Property Regulation and the Public Order," and is available here (Word format). In it, she examines the usefulness of property regulations in maintaining public order. I was particularly intrigued by the section on "Jane Jacobs and the New Urbanism," which discusses the effects of architecture on crime control, etc. Definitely worth a read.

Rick's article is titled "Religion, Division, and the First Amendment," and the introductory section is available here (Word format). He takes a critical look at the oft-heard claim that separation of church and state must be strictly observed in order to prevent divisiveness. This also promises to be a good read.

Having mentioned divisiveness, I might as well quote the observations of Philip Johnson in this regard:
Justification of an active judicial role overseeing state involvement with religion on the basis of a policy of avoiding divisive entanglements rests upon two problematic factual assumptions. One is that religious disputes and religious people are particularly contentious, so that state involvement in religious matters is more likely to breed bitter conflicts than state involvement in such matters as the distribution of wealth or civil rights. Undoubtedly, religious conflicts have led to wars and persecutions, as have conflicts over secular ideologies like fascism and communism. What is problematic is whether, in conditions of contemporary American society, matters such as school prayers, legislative chaplains, and Christmas displays are more hotly disputed than many secular matters with which state legislatures deal routinely.

The second problematic assumption is that courts alleviate divisiveness when they take an issue away from the voters and legislators and decide it on the basis of a constitutional principle. This is a most implausible idea, and such evidence as exists seems to be against it. Many of us find it easier to accept being outvoted by a majority of our fellow citizens or their representatives than by a handful of judges. Legislative battles over the issue of legalized abortion seem to have become more bitter and divisive since the Supreme Court attempted to preempt the issue in Roe v. Wade. The very act of deciding a dispute on the basis of some abstract legal principle rather than on the give-and-take of legislative compromise tends to identify more clearly one side as the winner and the other side as the loser, with the result of increasing the bitterness of the loser.

One sure way to encourage conflict on any subject is to encourage people to think that what seem to be minor irritations are in reality violations of some sacred principle for which they have a duty to fight. The Supreme Court's decision in Lynch v. Donnelly, involving the constitutionality of a community's tradition of including a creche or nativity scene in its otherwise secular Christmas display, illustrates the tendency of expansive judicial remedies to generate conflict that might not otherwise occur. The creche had been part of the annual display for at least forty years. The district court found that no controversy existed over it, until local members of the American Civil Liberties Union brought a lawsuit to enjoin its display. Nonetheless, the district court, and the dissenting opinion in the Supreme Court by Justice Brennan, found the divisiveness engendered by the lawsuit itself to be evidence that the Christmas display posed a danger of divisive entanglement, noting that the calm that had prevailed prior to the lawsuit might merely have reflected a feeling on the part of dissatified individuals that it would be futile to oppose the majority.

No doubt a sense of futility is a possible explanation for the absence of recorded complaint, but that fact also demonstrates that, by encouraging persons who are easily offended by religious symbolism to believe that the courts stand open to remedy their complaints, the courts foster divisive conflicts over religion. Similarly, by encouraging citizens and legislators to believe that aid to regilious schools is a matter to be decided on the basis of abstract constitutional principles rather than by compromise and accommodation, the Supreme Court may well have made such disputes more bitter than they otherwise would be. That consideration does not necessarily mean that the Court has acted wrongly because justice, not domestic peace, is the primary aim of constitutional adjudication. American society might be more peaceful if the Supreme Court stopped enforcing constitutional rights altogether.

Phillip E. Johnson, Concepts and Compromise in First Amendment Religious Doctrine, 72 Cal. L. Rev. 817, 830 (1984) (footnotes omitted)


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