LAW AND RELIGION FORUM

Former Forum guest Kevin Walsh and I have a new paper that examines the relationship of and the separation between constitutional theory and constitutional adjudication. The article is called, Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory. There is a law and religion connection as well, as part of our discussion concerns cases decided by these judges involving perceived official favoritism of Christianity. Comments are most welcome, and I’ll try to have a bit more about the paper in the coming days and weeks. Here’s the abstract.

Judge Richard Posner’s well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its “cosmic” aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson — in the popular press, in law review articles, and in books — have advocated what…

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