Article: "Making Sense of Schaumburg"
In my article in the Marquette Law Review, I focus on the trilogy of cases in the 1980s in which the Supreme Court shaped its approach to charitable solicitation: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Munson (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts without a workable test for evaluating regulations affecting this form of speech: the Eighth and Tenth Circuits interpret Schaumburg as an intermediate scrutiny test, the Third and Eleventh Circuits view it as a strict scrutiny test, and the Fourth Circuit has simply noted that the Court has been “unclear” about the appropriate standard.
After examining the Court’s approach to charitable solicitation, I propose a new test that incorporates current notions of content analysis and tiered scrutiny and better accounts for the speaker-based interests tied to charitable solicitation. My normative approach adopts a “civic conception of free speech” that is cognizant of the matters of public concern advanced both directly and indirectly through charitable solicitation. I conclude that a balancing of interests offers a more appropriate review of charitable solicitation regulation than the cumbersome formulations arising out of the Schaumburg trilogy.
Article: "No Future Without (Personal) Forgiveness"
In my article in the Human Rights Review, I explore the political possibilities of personal forgiveness in transitional justice. Personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. The victim forgives only that harm which has been done to him or her. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, it is my three-fold contention that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness; and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness. These assertions lead to two further observations. First, because the state has a normative role in its (limited) capacity to forgive on its own behalf and a practical role in its ability to spread and transmit a shared narrative framework, the state is an important actor in political forgiveness. Second, because the primary historical example of political forgiveness in transitional justice is the South African Truth and Reconciliation Commission that unfolded within an explicitly Christian theological framework, it may be that the shared narrative framework need be religious or even Christian in nature.
Article (completed draft): "Dworkin's Integrity and the Public Reason Problem"
I argue that Ronald Dworkin’s legal theory suffers from parochial limitations similar to those found in John Rawls’s political theory, namely, that it relies fundamentally on secular liberal presuppositions for its interpretive framework. Despite its neutral pretenses, Dworkin’s constraint of integrity, like Rawls’s use of public reason, ultimately excludes certain voices from the normative debate about the values that shape the laws that govern us. I begin by summarizing Dworkin’s theory of legal interpretation as he presents it in Law’s Empire and Justice in Robes. I then suggest how law as integrity unnecessarily constrains the practice of legal interpretation by rejecting accounts that appeal to “religious convictions or goals.” I offer the work of theologian Stanley Hauerwas as an example of one such excluded account. I conclude by comparing Dworkin to Hauerwas on the question of abortion and suggest that the contrasts reveals the extent to which Dworkin’s interpretive theory precludes the kinds of arguments that Hauerwas wants to make.
Book: The Forgotten Freedom of
Assembly (in progress)
My book project explores the freedom of assembly, a constitutional right that has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the Great War and the second Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called “the right of the people peaceably to assemble” part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years, the freedom of assembly has become little more than an historical footnote in American political theory and law.
One of the reasons for the loss of assembly from the public consciousness is the Supreme Court's recognition of a constitutional right of association in NAACP v. Alabama (1958). I look at the development of the right of association, which I divide into two eras. The foundations of this right were laid in what I call the national security era, which begins in the mid-1940s and ends in the mid-1960s. During this time, three factors influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor).
I call the second constitutional epoch of the right of association the equality era, which spans roughly from the mid-1960s to the end of the twentieth century. It includes the transformation of the right of association into intimate and expressive components in Roberts v. United States Jaycees (1984). This transformation in many ways took its cues from the foundations established during the national security era. But the equality era also introduced its own factors that influenced associational freedom: (1) the pursuit of civil rights policy objectives through antidiscrimination legislation (a political factor); (2) the emergence of a constitutional right to privacy and the relationship between privacy and association (a jurisprudential factor); and (3) the prominence of Rawlsian liberalism and the scholarly and societal debates that unfolded within its parameters (a theoretical factor).
I argue that the shift from assembly to association produced three important changes: (1) the displacement of dissenting and destabilizing groups by consensus groups; (2) the depoliticizing and privatization of practices that formerly constituted part of political life; and (3) the transformation of groups as forms of expression into groups as means of expression. Collectively, these changes introduced greater state control over group practices and a corresponding decline in group autonomy. I explore the consequences of these changes by comparing ideas of assembly and association using conversations in contemporary political theory about liberalism, multiculturalism, and community practices.
Finally, after examining some of the differences between assembly and association, I consider the theoretical possibilities of religious assembly. Conceiving of religious practices through the lens of assembly may not only help illuminate the contours of group autonomy but also shed light on the troubled constitutional framework for the free exercise of religion. Using the work of Stanley Hauerwas, H. Jefferson Powell, and Dietrich Bonhoeffer, I suggest how assembly might offer a different way of conceiving protections for religious group autonomy.
My book project explores the freedom of assembly, a constitutional right that has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women’s suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the Civil Rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the Great War and the second Red Scare of 1950s’ McCarthyism. Abraham Lincoln once called “the right of the people peaceably to assemble” part of “the Constitutional substitute for revolution.” In 1939, the popular press heralded it as one of the “four freedoms” at the core of the Bill of Rights. And even as late as 1973, John Rawls characterized it as one of the “basic liberties.” But in the past thirty years, the freedom of assembly has become little more than an historical footnote in American political theory and law.
One of the reasons for the loss of assembly from the public consciousness is the Supreme Court's recognition of a constitutional right of association in NAACP v. Alabama (1958). I look at the development of the right of association, which I divide into two eras. The foundations of this right were laid in what I call the national security era, which begins in the mid-1940s and ends in the mid-1960s. During this time, three factors influenced the shaping of association: (1) the conflation of rampant anti-communist sentiment with the rise of the civil rights movement (a political factor); (2) infighting on the Court over the proper way to ground the right of association in the Constitution and the relationship between association and assembly (a jurisprudential factor); and (3) the pluralist political theory of mid-twentieth century liberalism that emphasized the importance of consensus, balance, and stability (a theoretical factor).
I call the second constitutional epoch of the right of association the equality era, which spans roughly from the mid-1960s to the end of the twentieth century. It includes the transformation of the right of association into intimate and expressive components in Roberts v. United States Jaycees (1984). This transformation in many ways took its cues from the foundations established during the national security era. But the equality era also introduced its own factors that influenced associational freedom: (1) the pursuit of civil rights policy objectives through antidiscrimination legislation (a political factor); (2) the emergence of a constitutional right to privacy and the relationship between privacy and association (a jurisprudential factor); and (3) the prominence of Rawlsian liberalism and the scholarly and societal debates that unfolded within its parameters (a theoretical factor).
I argue that the shift from assembly to association produced three important changes: (1) the displacement of dissenting and destabilizing groups by consensus groups; (2) the depoliticizing and privatization of practices that formerly constituted part of political life; and (3) the transformation of groups as forms of expression into groups as means of expression. Collectively, these changes introduced greater state control over group practices and a corresponding decline in group autonomy. I explore the consequences of these changes by comparing ideas of assembly and association using conversations in contemporary political theory about liberalism, multiculturalism, and community practices.
Finally, after examining some of the differences between assembly and association, I consider the theoretical possibilities of religious assembly. Conceiving of religious practices through the lens of assembly may not only help illuminate the contours of group autonomy but also shed light on the troubled constitutional framework for the free exercise of religion. Using the work of Stanley Hauerwas, H. Jefferson Powell, and Dietrich Bonhoeffer, I suggest how assembly might offer a different way of conceiving protections for religious group autonomy.