Showing papers by "William P. Marshall published in 2001"

The Culture Of Belief And The Politics Of Religion

Abstract: Religion stood at the center of the American stage during the years of the Clinton presidency. The Congress passed, and the President signed, the Religious Freedom Restoration Act ("RFRA") - the most dramatic and extensive piece of legislation addressing freedom of religion issues in our nation's history. In a dramatic upset, the Republican Party took over Congress in 1994, fueled in large part by the mobilization of Christian conservatives. The House of Representatives voted on a prayer-in-the-schools amendment for the first time in almost thirty years. Governments began experimenting with providing social services through faith-based organizations because of dissatisfaction with the success rate of secular-based efforts. Instances of school violence that had captured national attention were ascribed by some to the absence of religion from public education. Religiously defined hate groups and militias proliferated. The most controversial and inflammatory law enforcement event of the decade involved the efforts of the federal government to arrest the leader of a religious cult in Waco, Texas. Congress passed the International Religious Freedom Act, which established the fight against religious persecution as an international relations priority and established an office in the State Department to promote international religious freedom. The United States intervened in a war in Europe that had been stoked by religious hatred and division. The list goes on. Against this background, Professors Randy Lee and Marci Hamilton offer diametrically opposed normative and descriptive assessments of the role of religion in politics. Normatively, Lee believes that in our constitutional system, religion should be an active player in political affairs. Hamilton contends that the role of religion should be more circumscribed. Descriptively, Lee believes that religion has been inappropriately marginalized in American political life. Hamilton asserts that, if anything, religion has been too active a participant in the political scene. Lee and Hamilton, however, share one common point of agreement. Lee, explicitly, and Hamilton, implicitly, both recognize that religion can be, and often is, a potent political force. Part II of this comment will address and support the point explicitly offered by Professor Lee - the claim that religion is political. This section will argue, however, that the political manifestation of religion is not confined to the instances when religion becomes involved in express political activity, such as lobbying or partisan politics. Rather, religion must be understood as a pervasive social force that has an inevitable political effect. Part III will address whether religion has been inappropriately marginalized in the public culture. It will show that the purported marginalization is more a matter of perception than reality. While it is true that there is a popular perception that religion has been inappropriately marginalized in American life, the reality is that religion has retained its power as a social and political force. Part III will also attempt to explain the discrepancy between the reality and the perception of the marginalization claim. Part IV will address the normative debate regarding the role of religion and politics, and suggest that there are legitimate reasons why the overt involvement of religion in politics should be treated with some caution. Finally, Part V will use the example of school prayer as an example of why the mix of religion and politics can be harmful to the interests of both politics and religion.

The Supreme Court, Bush v. Gore, and Rough Justice

Abstract: Bush v. Gore is not defensible doctrinally. The opinion is unsound on a number of grounds, including equal protection, standing, political question, and remedies. Indeed, the lack of doctrinal foundation in the opinion is so transparent that even the case's few defenders tend to rest on the grounds offered by the concurrence rather than the majority.Bush v. Gore also does not neatly fit within the Court's traditional approach to constitutional principles of federalism and separation of powers. The opinion gives little or no regard to the state court's construction of its own law and little or no deference to the constitutional provisions that delegate the resolution of electoral disputes of the type at issue in the case to the Congress and not to the courts.These doctrinal and theoretical weaknesses have led numerous observers to roundly condemn the opinion. These academic attacks, even if accurate, however, may fundamentally misconceive what the case was truly about. Bush v. Gore cannot be understood as about legal doctrine. Rather, it is a case that tests the limits of the Court's ability to go beyond traditional legal analysis to achieve what it deems to be a just result — a case that attempts to achieve what others have dubbed “rough justice.” Seen in this light, the fact that the Court did not follow traditional analysis in order to reach its decision is not, taken alone, fatal. Nor is it unprecedented. As this essays shows, the Supreme Court, prior to Bush v Gore, had decided cases with little or no reference to established legal principle in order to achieve “rough justice.” Indeed, in all likelihood, the Supreme Court will continue to exercise this power to act when circumstances so dictate.The question of whether Bush v. Gore was based on sound legal principle thus does not end the inquiry. Even if the decision was not doctrinally or theoretically sound, there remains the question of whether the Court nevertheless acted illegitimately. This inquiry may then be broken down into two sub-parts: 1) Was the Court justified in intervening in this case to attempt to achieve rough justice? 2) If intervention was appropriate, did the Court reach the right result?This essay addresses these issues. Part I of the paper discusses whether Supreme Court intervention to accomplish rough justice in this case was warranted. Part II of the paper then addresses the question of whether, if judicial intervention was appropriate, the Court exercised the power correctly in this case. As will subsequently become clear, I conclude that although the Court's intervention was indeed appropriate, it ultimately reached the wrong result in its decision.

The Supreme Court, Bush v. Gore, and Rough Justice

Abstract: I. BUSH V. GORE AND ROUGH JUSTICE 789 A. Bush v. Gore’s Pursuit of Rough Justice Was Not Unprecedented 791 1. New York Times Co. v. Sullivan 791 2. Henry v. Mississippi 794 B. Supreme Court Intervention in Bush v. Gore Was Appropriate 796 II. DID THE COURT REACH THE RIGHT RESULT? 800 A. The Ruling for Bush Was Necessary to Avoid a Constitutional Crisis ...... 800 B. The Gore Forces Were Manipulating the Recount 804 C. The Florida Court’s Decision Required Reversal 805 CONCLUSION 808