Browsing by Subject "neutrality"

Now showing 1 - 2 of 2
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    Can We Make Sense of Neutrality in the Religion Clause Cases: Seven Rescue Attempts and a Viable Alternative
    (2012) Wright, R. George
    This Article addresses the controversial question of 'neutrality' as a crucial test in a number of important Religion Clause cases. The idea of 'neutrality' in the Religion Clause context turns out to be popular, but unavoidably incoherent. The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality. What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.
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    Jurisprudence Transcending Time and Space: Affirmative Action and the Revolution of 1937
    (2005-04) Blake, William D
    The purpose of this paper is to compare the jurisprudential debate on affirmative action to economic rights questions facing the Court during the Lochner Era. Proponents of the antidiscrimination principle believe that all racial classifications, including affirmative action, are unconstitutional, a view that corresponds with Lochner v. New York. Supporters of the anti-caste principle support affirmative action programs as a means to ensure that the circumstances of one's birth do not preclude the opportunity to succeed, a principle similar to West Cost Hotel v. Parish. These similarities demonstrate that legal principles reflect evolving notions of American ideals present throughout our history.