Posted by Sasha Volokh:
Publication lag:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190820505
A fascinating [1]student note from the Minnesota Law Review, not so
much for its subject matter as for how it came to be published.
Here's what the note is about. From its introduction (paragraph breaks
added):
This Note argues that because law is limited to placing external
constraints on human behavior, religion, through its capacity to
internally constrain human behavior, acts as an indispensable
assistant to the law in preserving public order.
Part I details how, in recent decisions, the Supreme Court has used
history to interpret the Establishment Clause. Part II argues that
the Court's reliance on history is misplaced because the historical
evidence of the clause's meaning is inconclusive.
Part III provides an alternative approach to interpreting the
Establishment Clause that focuses on the ability of religion to
constrain human behavior. This Note concludes that while it is
sound public policy to support religion, religion is only effective
insofar as it instills faith within its followers. Because no
religion appeals to all men, the government should impartially
promote religious worship and instruction.
You might notice, if you read the article, that it doesn't refer to
any cases -- or anything else -- more recent than 1949. It turns out
there's a reason for this. Here, [2], is the backstory (you can find a
[3]more complete story, in the author's own words, on the website
itself):
Mr. Stiegler served in the Second World War and then returned home
to Minnesota to attend law school. He wrote this article while a
student-member of the Minnesota Law Review during the 1948-49
school year. While reviewing Mr. Stiegler's first draft, the Note
Editor rose, slapped his hand on the table proclaiming: I am
Catholic. It is the one true religion. This Note will never be
published. Mr. Stiegler's name was subsequently removed from the
masthead of the Minnesota Law Review and he was denied credit for
the activity for his last year of law school.
For fifty-seven years the manuscript lay hidden in his desk. In
March 2007, Mr. Stiegler contacted the current leadership of the
Minnesota Law Review, and they decided to bring Mr. Stiegler's
article to the public by editing the work and then publishing it on
SSRN and on the webpage of the Minnesota Law Review. Mr. Stiegler's
ideas and arguments are still relevant today.
(Note: The rest of the SSRN abstract doesn't summarize the article
very well, which is why I gave the summary from the Note itself.)
References
1. http://www.law.umn.edu/uploads/images/5699/Stiegler_final.pdf
2. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=998103
3. http://www.law.umn.edu/lawreview/v91stiegler.htm
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
