Suchergebnisse

Liberty in the constitutional sense is always a right against state interference (a "freedom from"). The First Amendment begins by saying that "Congress shall make no law"; it forbids Congress to license or fine or jail people for speaking, or publishing, or assembling. Liberty is also, always, a right to do something (a "freedom to"): to speak, to assemble, to practice religion, to get married, etc. So "freedom from" and "freedom to" are always parts of the same idea, just as "flying from" and "flying to" are aspects of the same airplane trip. Freedom is always the right to do some particular act without government restraint. I mention Berlin's confusion because I think that a focus on these two aspects of liberty (freedom from state interference and freedom to practice religion) can help us understand the battles we are currently having about religious liberty. There have been two phases in this modern fight. In the first phase, opponents of religious freedom have focused on the freedom from state interference. They have argued that although religion is an important social (and theological!) good which deserves our utmost respect, nevertheless in this or that particular case the state should prevail because its concerns are especially weighty—more weighty than the plaintiff's religious concerns. In the second phase, people have argued that the religion that we should be free to practice is a more limited idea than we might suppose. In this phase, it is not a matter of weighing private concerns against public ones and finding the public ones more weighty. The private concerns simply don't count as religious, so we don't get to the point of balancing them against concerns of state.

Letter from Boston College Law School Dean John Garvey to the Law School Community addressing objections to the choice of United States Attorney General Michael Mukasey as the speaker at the school's 2008 commencement ceremony. Some faculty, students, and alumni objected to honoring Mukasey because of his refusal during to state a conclusive opinion on the legality of waterboarding, or on whether or not waterboarding constitute torture, during Congressional confirmation hearings.

In 1989 the National Endowment for the Arts (the "NEA") caused a stir by funding two exhibitions of photographs by Robert Mapplethorpe and Andres Serrano. The pictures were vulgar and irreverent, and many people thought that the NEA should not sponsor them with tax money. Whether the NEA can actually control the content of speech that it pays for is a hard First Amendment question. I want to look at how Congress has tried to answer it. Congress seriously considered two solutions, and adopted one of them in 1990. Both rely on analogies drawn from the area of race relations. This is not as strange as it sounds. There are some parallels in the problems and the solutions, and the politics of the situation makes the race analogy especially appealing. But this is not the kind of explanation, and maybe not the result, we would get from the judicial process.

This Article looks at the conflict between religious authority and liberal politics from a point of view within the Catholic Church. It examines the grounds of the teaching authority asserted by the Church, the scope and strength of that authority, and the possibility that obedience to authority will create dilemmas for religiously committed public officials. For purposes of illustration it uses New York Governor Mario Cuomo's religious and political observations on the subject of abortion.

The government often tries to control people's behavior by the way it hands out benefits. The most common objection to this practice is that it violates the rights of beneficiaries.' I want to make a simple observation about these "rights" cases. We used to treat the violation of rights as a question about the government's power. Now we treat it as a question about the government's duty. This shift in perspective is an important change. If we attend to it, we will be less perplexed by the problem of unconstitutional conditions. Though my point is simple, I will go to some length in making it. First, I will explain the old viewpoint - the focus on the powers of government. Next, I will explain the new one - the duties of government. Finally, I will point out how the shift from power to duty helps us solve some issues that arise in benefits cases.

In 1984 the Supreme Court determined in Grove City College v. Bell that the antidiscrimination provisions of Title IX of the Education Amendments of 1972 were program-specific rather than institution-wide in application. In response, several legislative proposals designed to mitigate or reverse the Grove City decision have been introduced in Congress. These proposals include the Civil Rights Restoration Act of 1985 (H.R. 700 and S. 431) and the Civil Rights Amendments Act of 1985 (S. 272). In this Article, Professor Garvey argues that institution-wide application of Title IX and similar antidiscrimination statutes would in many instances lead to results inconsistent with statutory language and the public interest. By examining and analyzing the current statutes' language and by reviewing and applying various theories of nondiscrimination law, Professor Garvey concludes that most of the current proposals addressing Grove City involve misconceptions of the statutes they would amend and fail to conform to any of the numerous underlying theories of antidiscrimination law.

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind – freedoms, which protect the right to make choices – pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the laissez-faire notion that all persons (including incompetents) are to be treated identically, the instrumental idea that granting freedoms to incompetents achieves extrinsic goals such as training, and the surrogate notion that persons who cannot make choices for themselves should be able to have those closest to them choose on their behalf. Professor Garvey concludes that, when these options fail and the state takes an incompetent person under its control, the state owes to the incompetent the full package of duties owed by other guardians to those under their control, including treatment in the case of the mentally ill or education in the case of children.

The Supreme Court has been extremely puzzled about how to treat the distribution of public benefits when the pattern of distribution may cause individuals to alter their preferences in making constitutionally protected choices. When dealing with the freedom to choose an abortion, for example, the Court held that the Hyde Amendment was constitutional because the government did not interfere with freedom when all it did was offer money to make the option it preferred (childbirth) more attractive. In free speech cases, the Court has said that when the government opens up public property or offers financial incentives to speakers it must treat all options equally-it may not favor a particular subject or position. Last term, in Thomas v. Review Board, the Court held that when freedom of religion is at stake, the government has an independent obligation to fund the option which the individual finds more attractive. The case directed the state of Indiana to pay unemployment compensation to one who quit his job for religious reasons, even though the state paid nothing to those who quit for other personal reasons. The allocation of public funds has created similar problems with regard to other constitutional freedoms, such as travel, voting, and parental choices about their children's education. I think that all these cases present questions of equality rather than freedom, and that the free exercise and abortion decisions err on different sides of the correct principle. The proper approach is to say, as the Court has regarding freedom of speech, that the government need not fund protected choices, but if it does, it must do so in a neutral fashion. If that is correct, then the question Thomas poses is not whether Indiana had prohibited the freedom to exercise religious belief but whether the Court, by awarding benefits, violated the equality principle inherent in the Establishment Clause.

If children possess moral and political rights against the state, theories about these rights have scarcely progressed beyond first principles. The state must retain power to regulate education and some aspects of family life. Parents sometimes have a final say concerning what a child may do and experience. Professor Garvey offers an account of the way in which these and other realities shape the child's rights of free expression under the first amendment.

Despite the vigorous debate which it occasioned in other circles, the practice of delegating legislative power to regulatory agencies which began at the end of the nineteenth century was never seriously questioned by American courts during the progressive era. This is not to say that the judiciary saw no threat posed by government by institutions of a form undreamed of at the time the Constitution was framed. Since the appearance of the first regulatory commissions, the courts have shown a concern to protect individual rights which recently may be seen in the insistence on procedural safeguards in agency adjudication and rulemaking which informs the Administrative Procedure Act. But the judicial branch at the turn of the century was little troubled by the absence of democratic input into the regulatory comnussion's rulemaking process, for the courts saw the same threat--subjection of individual rights to uncontrolled majority interests--posed by regulatory comnussion and legislature alike. Judicial response consequently took form not in a remand of non-delegable powers to the legislature, but in the doctrines of the non-finality of administrative and legislative action, and in efforts to narrow and define the constitutionally permissible scope of such action.

This Article will suggest that the right of autonomy, which limits state control over children, should be considered to reside not in the child alone, but in the family, just as the right against state interference with the family structure resides in the family. The shift in focus from children's rights to family rights implicitly accounts for the mental, physical, and emotional differences between children and adults. Moreover, protecting a family's right of autonomy insures that decisions on behalf of the child will be made by those presumptively best able to make such decisions, the parents.

Race Traitor brings together voices ranging from tenured university professors to skinheads and prison inmates to discuss the ""white question"" in America. Working from the premise that the white race has been socially constructed, Race Traitor is a call for the disruption of white conformity and the formation of a New Abolitionism to dissolve it. In a time when white supremicist thinking seems to be gaining momentum, Race Traitor brings together voices ranging from tenured university professors to skinheads and prison inmates to discuss the ""white question"" in America. Through popular cu