Legal Commentary

A few weeks ago my friend and co-blogger Rick organized a superb roundtable conference to discuss the second volume of Kent Greenawalt's superb treatise Religion and the Constitution, titled Establishment and Fairness.  Rick has now outdone himself, organizing a collection of responses to Kent's books, stemming from the conference, to be published in Constitutional Commentary.

My contribution is titled The Philosopher's Brief.  In short, I argue that Kent's wonderful books are a work of legal philosophy, but without the philosophy, as it were.  They proceed carefully and in a nuanced fashion with respect to various church-state issues.  But without a clear underlying theory that tells us how to evaluate, rank and reconcile Religion Clause values, we are left somewhat in the dark as to how to evaluate whether the conclusions he draws on particular issues are genuinely "reasonable" ones.  I also argue that a somewhat different "bottom-up" approach to law and religion might focus more on the social and institutional facts implicated by the Religion Clauses and less on abstract philosophical values.

Here's the abstract.  Comments are welcome, as always.  Enjoy.

This is a short commentary on Kent Greenawalt's recent major contribution to law and religion, the two-volume work Religion and the Constitution, stemming from a roundtable discussion of his work at Notre Dame Law School.

This commentary makes two arguments about Religion and the Constitution. First, it questions whether the "bottom-up" approach that Greenawalt advocates for law and religion questions can succeed absent an explicit theory of the Religion Clauses. Greenawalt proceeds in the careful fashion of a legal philosopher, setting out a range of values that underlie the Religion Clauses and offering a sensitive case-by-case examination of various Religion Clause issues. It is a philosopher's brief for the Religion Clauses, as it were. But it lacks a clear philosophy: it does not ultimately tell us how to rank and reconcile competing Religion Clauses values. Such a philosophy may, in fact, ultimately be unattainable. But without it, we are left without clear standards for evaluating the "reasonableness" of Greenawalt's conclusions in particular cases.

Second, it argues that Greenawalt's work may be insufficiently attentive to the institutional nature of religious institutions and their role in the social and constitutional constellation. An alternative "bottom-up" method, rather than attempting to reconcile abstract Religion Clause values, might instead proceed by considering the role, practices, and capacity for self-regulation of various religious entities at an institutional level, and considering the legal implications of such an approach.