As Paul was kind enough to mention, Notre Dame Law School hosted a roundtable conference last week dedicated to Volume II of Kent Greenawalt’s “Religion and the Constitution.” (I really like this format, by the way: No need to worry about having an audience for the various panels — especially the dreaded last one — and less of a problem of presentations passing like ships in the night.)
Anyway, my own contribution (we all did short, 3-5 page “admission ticket” reflections on the book) was inspired (I think) by a mix of Thayer, Waldron, Fallon, Berman, and others. In a nutshell, my reaction to “Kent’s accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject” was, among other things, to wonder if we shouldn’t just give up on judicial enforcement of the no-establishment norm, outside the heartland “coercion” cases (which, I would think, Free Exercise can take care of anyway) and entanglement and church-autonomy disputes. (ed. Who says that’s the “heartland”? rg: Me, I guess.) We could come up with some clear rules — going, in other words, in the opposite direction Kent takes us — and even err on the side, perhaps, of over-enforcement in this heartland, where individual and institutional liberties are clearly at stake, and then leave — as, I suppose, Noah Feldman has suggested — most of the endorsement and even secular-purpose fights to the political process.
This admittedly tentative suggestion — I reserve the right to retreat, sniffling, in defeat — is prompted not so much by a strong view that only the endorsement and secular-purpose fights don’t implicate non-establishment values and traditions, but instead by a sense that, in a world where we cannot all be Greenawalts, why should judges bother trying to enforce the full extent of the Clause’s meaning — or, more pointedly, why should we let them decide? Not an original thought, of course, but it’s the one I was turning over most during the conference. See, by the way, Jeremy Waldron’s “Core of the Case Against Judicial Review”, here.
Posted by Rick Garnett on October 16, 2008 at 12:03 AM
Comments
Great question, (of course) Marty — *the* question, I suppose. So, I *do* think it is likely, given our culture, to think that the legislatures would be sensitive, to non-establishment values, even in the absence of maximal judicial enforcement. I’m not sure what would count as “evidence”, though. Suggestions?
Posted by: Rick Garnett | Oct 16, 2008 7:56:57 PM
Rick: I’m very intrigued by your suggestion. Why no (or limited) judicial review here, as opposed to w/r/t other constitutional norms? Is there, for instance, any reason to think the political branches, in the absence of judicial review, would be at all sensitive to EC limits? I haven’t seen any evidence of that.
Posted by: Marty Lederman | Oct 16, 2008 2:07:10 AM