Constitutional Commentary

Faculty-edited law journal provides articles, review essays and book reviews on constitutional law and history.

Articles from Vol. 25, No. 2, Summer

A Better Path for Constitutional Tort Law
There is a fundamental contradiction at the heart of constitutional tort law. On the one hand, the Supreme Court has repeatedly said that the federal statute under which most constitutional tort claims are brought, 42 U.S.C. [section] 1983, (1) is...
Christendom without Establishment: A Brief Look at History
Perhaps the most important thing I can contribute to this very interesting discussion is to suggest the possibility of an alternative starting place. Rather than asking what religious institutions or religious manifestations are consistent with the...
Discrimination between Religions: Some Thoughts on Reading Greenawalt's "Religion and the Constitution: Establishment and Fairness"
Suppose the core teachings of a religion with a significant number of followers inside and outside the United States entail that significant parts of the United States Constitution, including the free exercise and establishment clauses of the First...
Eclecticism
Kent Greenawalt has produced an impressive two-volume work in which he argues that a coherent, sensible approach to the religion clauses is not impossible--just irreducibly intricate. (1) That is a meaningful difference. In the place of skepticism,...
Establishment and Judicial Administrability
In Establishment and Fairness, Kent Greenawalt provides a rich account of the establishment clause, eschewing reliance on a single categorical test or overarching value. His method is "to develop a sensible, nuanced approach to the religion clauses,...
Indeterminacy and the Establishment Clause
Since Professor Greenawalt criticizes my own approach to the religion clauses (pp. 434-39), (1) I will focus my comments there. Professor Greenawalt fairly summarizes my position as follows: Professor Gedicks's main thesis is that the Supreme Court's...
Introduction
On October 10, 2008, a diverse group of scholars gathered at Notre Dame Law School for a roundtable conference devoted to Kent Greenawalt's then-new book, Religion and the Constitution: Establishment and Fairness. I had the pleasure of organizing the...
Judicial Enforcement of the Establishment Clause
There is--no surprise!--nothing doctrinaire, rigid, or formulaic about Kent Greenawalt's study of the establishment clause. He works with principles and values, not "rules" or "tests" (although he finds more to admire in the "Lemon test" than many...
Kent Greenawalt and the Difficulty (Impossibility?) of Religion Clause Theory
When I see a book or article about the establishment clause, there are several things I want to know in order to assess it. First, what kind of approach does it take toward its subject matter? Does it purport to tell us how the framers and ratifiers...
Kent Greenawalt's Elusive Constitution
In his magisterial opus which culminates with Religion and the Constitution: Establishment and Fairness, (1) Kent Greenawalt makes claims--many of them--about what "the Constitution" forbids, permits, and demands. But what conception of "the Constitution,"...
Religious Establishment and Autonomy
In Volume I of Religion and the Constitution, Kent Greenawalt explains the rationale for non-establishment of religion, in part, by claiming that "personal autonomy is most fully recognized and the flourishing of religion itself is best served if the...
Religious Reasons and the Liberty of Citizens: The Integration of the Religious and the Secular in Kent Greenawalt's "Religion and the Constitution"
Kent Greenawalt's Religion and the Constitution is rich and wide-ranging, edifying and well argued. This short discussion will simply bring out some problems needing further reflection. This is done with the hope that it will lead to clarifications...
Requiem for the Establishment Clause
In his two volumes, Religion and the Constitution, Kent Greenawalt has obligingly laid out for us the fruit of a long career of careful consideration of the significance and practicality of the religion clauses of the First Amendment to the United...
The Philosopher's Brief
I One of Kent Greenawalt's signal virtues is his eminent reasonableness and his ability to listen. In the classroom and in print, he offers a fair hearing to the contending viewpoints on law and religion, and offers thoughtful views of his own....
The Wisdom of Soft Judicial Power: Mr. Justice Powell, Concurring
President Theodore Roosevelt believed in talking softly while carrying a big stick. (1) Justice Lewis F. Powell, Jr., who served on the Court from 1972 to 1987 after a distinguished career in private practice, also talked softy but wielded a great...
Was Bush V. Gore a Human Rights Case?
In a contested election, the state's highest court unexpectedly concludes, in light of the principles of its own constitution, that the officially certified result should be set aside and recalculated because it employed a restrictive method that impaired...