Religious freedom is crucial to the American experience. Indeed, a longing for the right to worship according to the dictates of conscience is one of the reasons our nation exists.
Religious freedom encompasses many concepts. Fundamentally, it means the power to choose where and how you will worship—or if you’ll worship at all. It also means that the government has no right to compel anyone to take part in religious exercises or force its citizens to directly subsidize houses of worship. It means that decisions about faith are private and belong firmly anchored in what Supreme Court Justice Tom Clark once eloquently referred to as the “inviolable citadel of the heart.”
That’s what religious freedom is. Here is what it is not: a tool to control others or to diminish their rights. Yet, increasingly, this is how some Americans are defining religious liberty. Because religious freedom is central to our democracy, it’s important that we get this right.
I wrote Taking Liberties: Why Religious Freedom Doesn’t Give You the Right to Tell Other People What to Do because I was concerned that a noble principle designed to protect individual freedom was being warped into an instrument of mass oppression. This must not happen.
by Susan D. Carle, Professor of Law, American University Washington College of Law
As the nation heads towards the 50th anniversary of the Civil Rights Act of 1964, the time is ripe for revisiting the origins of the social movement that gave this important legislation its birth. We commonly think of the federal civil rights legislation of the 1960s, including both the Civil Rights Act of 1964 and the Voting Rights Act of 1965, as a product of a social movement that began just a few decades before. In fact, however, both the ideas for new national civil rights legislation to enforce the U.S. Constitution’s dictates of citizenship equality, and the activism that propelled those ideas into law, have far older origins.
Defining the Struggle: National Organizing for Racial Justice, 1880-1915, uncovers the almost forgotten “prehistory” of national organizing to promote racial citizenship equality. The book traces this history’s basis in the activism of lawyers and other civil rights leaders of the late 19th and first years of the 20th century. Through organizations rarely remembered today, such as the National Afro American League, the National Afro American Council, the Niagara Movement and others, early national leaders and activists began to experiment with a panoply of law-related strategies for advancing the equality principles embedded in the nation’s constitutional texts. These activists deeply believed in these fundamental equality principles, but they just as deeply distrusted the bureaucrats charged with enforcing law. Put otherwise, they were not naive “legal liberals” who believed the courts would enforce racial equality principles simply because they were petitioned to do. Early civil rights lawyers understood that the struggle would be a political one, and they were pessimistic about the advances that could be made without gaining more political power. At the same time, they believed that the courts were one forum in which the battle for racial equality should be fought, if only by exposing the nation’s hypocrisy on racial equality to the world. Even recognizing the great odds against them, this early generation of legal activists was willing to take on the challenge of using principles of constitutional law to challenge the unjust application of law.
by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.
In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.
Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.
In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.” Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003. Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.
The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security. This is an enormous power: critics charge that it effectively places the president above the law. Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.
by Orly Lobel, Don Weckstein Professor of Labor and Employment Law, University of San Diego School of Law
Under the radar, the monopolization of knowledge has expanded far beyond the bargain struck in Article I, Section 8 of the Constitution. The enumerated powers of Congress permit the legislature to secure “to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” for a limited time “to promote the Progress of Science and useful Art.” Thomas Jefferson described the act of delineating the appropriate scope of intellectual property rights as “drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.” Talent Wants to Be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding argues that Jefferson’s embarrassment extends beyond ownership over creations of the mind. Moreover, it extends beyond the exercise of public authority contemplated by the Constitution, and into private conduct that can exacerbate the tension Jefferson identified. The embarrassment reveals itself in full force when we focus our attention on the ways we regulate human capital – people themselves, their skills and knowledge, the social connections and the creative capacities and inventive potential that flow through the market.
Beyond our intellectual property wars, beyond the heated debates about the proper scope of patents and copyright, we’re confronting a surge in the monopolization of human potential for creativity and invention. The past decade has seen a wild expansion of business practices which attempt to control the mobility of talent and secrets. Companies big and small are using non-compete contracts, trade secret and non-disclosure agreements, prohibitions on poaching and soliciting of customers and co-workers, and the preclusion of employee ownership of patents and copyright. Take for example David Neelman, the founder of JetBlue, who was compelled to sit on imaginative ideas that would revolutionize the airline industry for five years because he had signed a non-compete with former employer Southwest. Or Nobel laureate and former Yale University professor, 87 year old John Fenn, who was sued by Yale over his patent on a method he had invented to evaluate new drugs, including the development of innovative AIDS medication in the mid-1990s. Ironically, these pervasive business practices frequently have a counter-productive effect not only on the public and employees, but also on businesses themselves.
Talent Wants to Be Free looks at how we fight over knowledge and talent in every industry, profession, and region, and considers the right balances of secrecy & sharing, carrots & sticks and freedoms & controls. We have vigorous debates about immigration reform, the patent system, labor unions and health care – all of which bear on how people and organizations innovate – but when we look at our core strategies on human capital, we’re losing out on rich potential, creativity, and drive. When it comes to fighting the war over talent, most of us react emotionally and territorially. But these are exciting times: there is fascinating new evidence from economics, psychology, sociology, management and law that reveal a vision of how to better wage the talent wars. Through interdisciplinary empirical research and insight from the industry leaders, the book reveals that more frequently than we have come to believe, corporations, individuals, industries and regions benefit more when talent is not subject to monopoly control.