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What do the following cases have in common? In Boy Scouts of America v. Dale,2 the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of sexual orientation. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,3 the Court upheld the right of parade organizers to exclude gay-rights banners. In Zelman v. Simmons-Harri4s , the Court permitted government funding of religious schools through vouchers issued to low-income parents. And in Rosenberger v. Rector and Visitors of the University of Virginia, the Court required state funding of the printing costs of a proselytizing religious publication. In each of these cases, a comparatively "conservative" association was pitted against "progressive" ideals. In each of these cases, the Court sided with the association. Do these cases therefore represent a conservative interpretation of the First Amendment? In particular, is a conservative Court overprotecting conservative associations that are intermediate between the family and the state?' I would suggest that labeling these cases as conservative is a mistake. Each can be described in either liberal or conservative terms.7 It is progressive to allow citizens to come together in smaller communities that define their own goals and values, even if-or maybe especially if-those values are at odds with those of the larger polity.8 The state should not be permitted to impose its own values on such communities, whether it does so directly by imposing membership requirements or indirectly by withholding funding. On the other hand, it is conservative to allow individuals to segregate themselves from those they consider inferior or offensive because such segregation diminishes the equal citizenship status of the excluded groups. It is also conservative, in a religiously pluralist society, to use coercively raised monies to fund organizations whose primary mission is the teaching of specific religious doctrine. A better way to ...

Professor Waldron and Professor Michelman have presented us with two interesting, but very different, views on what procedural components might contribute to the integrity of lawmaking. I will focus on a different aspect of legislative integrity: legislation reflection. "Reflection" has two meanings, and in this context they are direct opposites. A legislature can be reflective as a mirror is reflective: It can be a reflection of its constituents and therefore a relatively direct agent of popular sovereignty. But reflective can also mean thoughtful and deliberative; a legislature that is reflective in this sense "reflects" or deliberates to reach its own views of appropriate legislation (although constituent views, of course, can be one factor in the deliberations). The bivalent meanings of reflection lurk beneath the surface of the papers by Professors Waldron and Michelman. Professor Waldron, for example, describes a truly deliberative legislature, and suggests that it can provide a model for the United States Congress. Professor Michelman is less certain that deliberation can ever produce consensus, or that legislative integrity can ensure legitimacy. Although neither directly discusses the question, it seems that both scholars would agree with me that only a deliberative legislature, and not a mirror-like one, affords sufficient protection of rights within an otherwise purely majoritarian regime. Where they differ, perhaps, is in their assessment of the capability of legislatures-or at least the Congress-to behave in a deliberative fashion.

Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived from common law methods, or do we look instead to the federal legislature for an instant global solution? This Article endorses the judicial approach, suggesting that Congress is particularly likely to err when rapidly changing technology creates a perceived crisis, and when the strongest reasons for not legislating are abstract and inchoate. The Article examines three legal questions raised by computer technology, two the subject of recently enacted federal statutes and the third dealt with solely by the judiciary. The author concludes that both of the factors that maximize the potential for legislative error are present in most cyberlaw questions, and that the judiciary has therefore been more successful than Congress at responding to the legal problems arising from this new technology.

Speed is an asset in computer technology, but not necessarily in law. The new technologies of the twentieth and twenty-first centuries have inevitably raised new legal questions; all too often, the response to these new legal challenges is a hastily enacted federal statute. If the Internet allows children access to pornography, we enact the Communications Decency Act ("CDA"). Commercial concerns about cyber-authenticity prompt the Electronic Signatures in Global and National Commerce Act ("E-SIGN"). Are cybersquatters creating domain name problems? We've got a law for that, too. These are just a few of the quick fixes driven by a perceived need to address new legal problems arising from new technologies. But many of these perceived "crises" could actually have been resolved by previously established law. The common law and judicial interpretation of existing statutes were working towards a solution--or had reached one-when the new statute threw a monkey wrench into the works. Each of these federal statutes has serious flaws, some of which arise because the statute short-circuited the common law's traditional method of dealing with new problems. The Communications Decency Act has already fallen; in its haste, Congress failed to appreciate the statute's constitutional implications. This Article argues that both E-SIGN and the Anticybersquatting Consumer Protection Act (ACPA), while not unconstitutional, are similarly shortsighted. More broadly, I suggest that, at least in the context of new computer technology, allowing time for incremental judicial responses is often superior to instant legislative solutions of a global nature.

As Robert Bennett's article illustrates, the "counter-majoritarian difficulty" remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, "Counter-Conversationalism and the Sense of Difficulty", 95 NW. U. L. Rev. 845 (2001) ] Indeed, one might say that reconciling judicial review and democratic institutions is the goal of almost every major constitutional scholar writing today, including Bennett himself. I have suggested elsewhere that scholars as diverse as Richard Epstein, Antonin Scalia, and Robert Bork on the one hand, and Akhil Amar, Bruce Ackerman, and Ronald Dworkin on the other, are all motivated by a desire to overcome the counter-majoritarian difficulty. Bennett seeks to corral the difficulty by describing a difference between courts and other actors, which he finds more meaningful than references to "majoritarianism." Bennett suggests that the academic fascination with the "countermajoritarian difficulty" arises out of a mistaken view of democracy. Barry Friedman suggests that it comes from a combination of factors, including the rise of legal realism, the stature of many of the early counter-majoritarian theorists, and the dilemma faced by liberals when the 1930s Court's obstructionist interference with democratic processes gave way to the Warren Court's laudable interference with democratic processes. All these explanations--especially Friedman's last--probably contain some truth.

Neal Devins says that we don't put political science into our casebooks and Gerald Rosenberg levels the same charge at our scholarship. And so it has fallen to me to defend the ranks of law professors from these scurrilous accusations. Unfortunately, I can't do it: Rosenberg, at least, is largely right. Rosenberg's delightful little polemic has accurately diagnosed the problem. Law professors as a group are too arrogant, too disdainful of empirical information in favor of grand abstractions, and appallingly willing to write in disciplines of which they are woefully ignorant. There are many exceptions, of course: with or without additional degrees, some law professors are competent - even excellent - historians, political scientists, economists, sociologists, and the like. But too many of us adopt the "law professor as astrophysicist" model: we think we can master any field in the time it takes to research and write an article. It doesn't help, as Rosenberg points out, that we rarely learn from our students and that we allow them. complete authority qver scholarly publications.

Professor Currie's article [See David P. Currie, "Separating Judicial Power", 61 LAW & CONTEMPORARY PROBLEMS 7 (Summer 1998) ] discusses historical attempts to limit judicial independence. I consider the converse: how judges have exercised their independence. This essay provides a brief historical overview of judges using their independence to implement their own view of justice, often contrary to both popular sentiment and legislative will.

In 1995, Judge Richard Posner ruled that the state of Illinois could not celebrate Good Friday as a statewide holiday for the public schools.' Closing all Illinois public schools on Good Friday, Posner declared, violated the Establishment Clause of the Constitution by "plac[ing] the support of the state behind a wholly sectarian holiday." The Ninth Circuit has disagreed, upholding Good Friday as a state holiday in Hawaii. Federal courts have similarly reached varying conclusions about the constitutionality of other symbolic endorsements of Christianity, including the use of a cross as part of a government seal, the inclusion of the phrase "in the year of our Lord" in government documents, and the singing of religious Christmas carols in public schools. Still other Christian rites are so intertwined with American life that they are largely uncontroversial: for example, no federal court has ever invalidated Sunday closing laws or the celebration of Christmas as a national holiday. Despite these numerous overt governmental endorsements of Christianity, a number of legal scholars have begun to conclude that there is not enough religion in our public life. They argue that in our secular society, religion is marginalized. Pointing to Supreme Court doctrines that prohibit the government from funding religion or religious education, that limit the religious symbols that may be displayed in public places, or that invalidate government-sponsored prayer, they charge that in the United States, religion has become a mere hobby. To reinvigorate the American religious spirit, these scholars urge that the government be permitted to engage in even more religious symbolism, and indeed to fund religion and religious education. In short, the government ought to encourage religious belief of all denominations. This Article focuses on one particular aspect of this growing debate over the appropriate role of religion in our society. What is often called the question of religion in the public square asks about the basis on which ...

I begin with a question: why have a conference on judicial independence? To find the answer, one need only read the newspapers. Judicial independence-as well as its political counterpart, judicial impeachment-is a hot topic these days because some in Congress have threatened to impeach judges for delivering unpopular decisions. So I take as my subject in this Essay the question of whether the constitutional provisions safeguarding judicial independence protect judges against impeachment for issuing rulings that Congress considers erroneous or even loathsome. When we talk about judicial independence, we have to separate two questions. The first question is the extent to which judges are or ought to be independent of the political branches of government. May Congress impeach judges simply because it disagrees with their rulings? Despite the current popular inclination toward limiting this kind of judicial independence, I think this first issue involves a constitutional rarity-an easy question with a clear answer. Indeed, there is a fairly large body of literature that reaches the same conclusion. I will therefore begin my remarks with a relatively brief explanation of that clear answer. Regardless of whether judges ought to be independent of the political branches, however, judges must still remain faithful to "the law." In interpreting the Constitution, for example, judges cannot claim to be independent of that document. Nevertheless, there is a great deal of dispute about what it means to be faithful to the Constitution.' This second question is in fact linked to the first: much of the controversy about the extent to which the political branches can or should control federal judges stems from disagreement with the way in which those judges have interpreted the Constitution.

Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question I will address, some brief background on Flores is necessary. Prior to 1990, the Supreme Court interpreted the Free Exercise Clause of the Constitution--applicable to the states through the Fourteenth Amendment--to require the government to accommodate religious beliefs by granting exemptions to those with religious objections to generally applicable laws, unless the government could show a compelling interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this doctrine, concluding that neutral, generally applicable laws--even if they burdened religious practices-need only serve a legitimate state interest. In 1993, Congress, relying on the power granted to it by Section 5 of the Fourteenth Amendment ("Section 5"), enacted RFRA by an overwhelming bipartisan vote. RFRA reinstated the compelling interest test for any state or federal statute that substantially burdened religious exercise. The question before the Court in Flores was whether Congress's Section 5 powers were broad enough to support RFRA. Justice Kennedy's majority opinion concluded that in attempting to protect rights beyond those covered by the Constitution, as interpreted by the Supreme Court in Smith, Congress exceeded the powers granted to it by the Constitution. Justice O'Connor issued a passionate dissent in Flores, arguing that the Court should both uphold RFRA and overrule Smith, the case that provoked ...

Supreme Court currents are no less treacherous to navigators than are river currents-and, as Michael Paulsen himself has previously pointed out, RFRA shares more than a linguistic resonance with a river.1 Unfortunately, this time Paulsen has let himself be fooled by the prevailing political winds into believing that there will be smooth sailing for his favorite statute despite the swirling eddies ahead. He is altogether too confident of a favorable result. Although I have no wagers, public or private (and I am shocked-shocked!-to find gambling in this establishment) on the outcome of Boeme v. Flores, I want to use my editorial prerogative to take issue with my colleague's predictions. Indeed, he seems to have things exactly backward.

A very strange thing is happening in legal academia. The left and the right have joined forces, and the center is under attack. What makes this so unusual is that law has traditionally been a field of centrists. The common law background, drummed into every first year law student, tends to leave lawyers with a taste for incremental rather than sudden change.' Further experience with the doctrine of stare decisis and the methods of legal reasoning only strengthens this tendency. Even those students who come in eager to change the world rarely survive more than a few years in practice before realizing the futility of hoping for radical decisions from judges who have spent a lifetime internalizing the careful and methodical pace of the common law. Some adjust; others go into politics, which may offer more hope of radical transformations. Apparently, however, the most unrepentant idealists have been gravitating toward academia, where they are now attacking legal centrism at its source.

I have argued that the government may not single out any irrational beliefs for preferential treatment, nor is it required to treat alternative epistemologies as favorably as Enlightenment rationality. Both history and practical considerations support the notion that the Constitution rejects epistemological pluralism in favor of the primacy of reason. There is no evidence that the religion clauses are an exception to this basic principle; indeed, for the founding generation, pre-Enlightenment religion was the primary--and perhaps the only---example of a nonrational epistemology. If we allow government decisions to be made on the basis of, or influenced by, premises and conclusions that fly in the face of the Enlightenment's rationalist and empiricist methodology, we must accord the same consideration to Holocaust deniers--and to racists, flat-earthers, and other peculiar or dangerous believers-as we do to religious believers. To do otherwise is for the government to accept as true the claims of particular religious believers--a course of action that is dangerous to government and religion alike, and is therefore wisely rejected by the Free Exercise and Establishment Clauses.

The United States Supreme Court has long recognized what none of us can doubt: education is vital to citizenship in a democratic republic. Moreover, because the Court has left open the question whether there might be a constitutional right to a minimally adequate education,3 scholarly commentary has speculated for at least the last decade on possible constitutional bases for such a right. No one, however, has much explored the possible content of a right to education. In particular, there has been little examination of the concrete relationship between education and citizenship. What are the appropriate contours of an education for citizenship? Of course, asking such a question raises even more difficult questions about citizenship itself. There is no dearth of literature on the rights of citizens, but it seems disingenuous (and maybe circular) to argue that one needs an education to exercise the rights of citizenship. After all, despite some claims that illiteracy is inevitably disenfranchising, one can vote-as well as earn a living, own property, raise a family, and do whatever else might be suggested as a right of citizenship-without an education. Millions do. The core of the claim that education is necessary to citizenship must instead be that education is necessary to the thoughtful or responsible exercise of citizenship rights. But focusing on how a right is exercised changes the nature of the argument. Citizens are no longer simply rights-bearing individuals. They are, rather, rights-bearing individuals with responsibilities. If what is important is not that one has a right to vote but that one is able to (and does) use it wisely, we have moved our vision of citizenship from rights alone to rights and duties, or rights and responsibilities. We have, in a word, added virtue to the mix. Once we introduce virtue into our concept of citizenship, we can draw on another vast body of literature: that of the neo-republican revival. But if the literature on rights suffers from an inattention to virtue, the most ...

In the race to the bottom that characterizes this Symposium, I cast my vote for Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State . Indeed, were this provision not unequivocally enshrined in the Constitution itself, it would undoubtedly be unconstitutional, for, as the United States Supreme Court has recognized, it is in conflict with the most basic principles of democracy underlying our Constitution and the form of government it establishes.