Legal Commentary

Before I shuffle off, I want to note a very interesting recently posted piece by Richard Schragger, The Relative Irrelevance of the Establishment Clause.  I am a big fan of Professor Schragger's piece on localism in religious liberty from a few years back in which he claimed, in part, that decentralized decisions that benefit or burden religious liberty ought to be given greater deference than analogous federal, centralized decisions.

The current article sounds related notes about the advantages of underenforcement of the disestablishment norm.  From the introduction:

This Article argues (1) that a pervasive feature of the Court?s Establishment Clause jurisprudence is that the Court?s stated doctrine is underenforced or is irrelevant to a whole range of arguably pertinent conduct; (2) there are some legitimate reasons for this judicial underenforcement or irrelevance; and (3) to the extent the Court is capable of enforcing its stated nonestablishment principles, it can only do so indirectly by managing establishment in the political/legal culture that exists beyond constitutional law.  How the Court does or fails to do (3) is the main subject of this Article.

Thanks, Dan and Prawfs.  I enjoyed being here.