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Publication lag:

A fascinating 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, according to the SSRN abstract, is the backstory (you can find a 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.)

Steve:
Wow, that's a great story. What a nice way to honor a WWII vet, after all these years.
9.26.2007 12:49pm
cboldt (mail):
A peruse of Blackstone will illustrate the same concept, that law acting alone is insufficient glue for a durable and just society.
9.26.2007 12:52pm
Flash Gordon (mail):
Religion is an internal check on human behavior for some, but not others. Religion can just as well become a refuge for scoundrels. Aside from the evil perpetrated by radical Islam, other religions and churches have been a haven for thieves and crooks who scam little old ladies out of their life savings. The cloak of religion is used by the miscreants to gain the trust of their victims. All too often the good people of faith are a credulous lot who do a poor job of weeding out the criminals in their midst.

Perhaps government support of Islam is not a good example since the governments involved, such as the City of Minneapolis, support only Islam and not other religions.
9.26.2007 12:55pm
texas lawyer (mail):
This is an advantage of online publishing. There is no way this would be done if the law review only relied on paper copies.
9.26.2007 1:08pm
Anderson (mail):
I believe this is what Voltaire had in mind when he said that if God didn't exist, it would be necessary to invent one -- to keep the peasants in line.

Voltaire, enemy of arbitrary power tho he was, could little imagine the scope of the modern state's police powers; he might think that God was no longer so necessary a concept.
9.26.2007 1:16pm
Dave N (mail):
I echo Steve's sentiments completely. Good for the Minnesota Law Review to right an injustice and give Mr. Stiegler the recognition he should have received almost 60 years ago.

Oh--and even though it has only symbolic importance at this point, the University of Minnesota should also correct its records to give Mr. Stiegler academic credit for his law review service.
9.26.2007 1:33pm
Steve:
Come to think of it, I don't recall getting any credits for being on Law Review, it was something I just had to find the time for. Is that the common practice these days?
9.26.2007 1:38pm
Mr. Wrestling II:
Playing the part of a skeptic, is there any confirmation to this story besides the word of Mr. Steigler himself?

Not attacking, just curious.
9.26.2007 1:39pm
Blackadder (mail):
I, also, am a Catholic. And it is the one true religion. But that Note Editor sounds like a real idiot.
9.26.2007 1:54pm
Larry the Librarian:
I hope the editors can come up with some other evidence, because they'll be hearing from Bill Donohue really soon.

Mr. Wrestling II -- love hte GCW reference. I was a big fan.
9.26.2007 1:56pm
Guest101:
Having been a Notes Editor myself, I'm shocked that Mr. Stiegler's editor had the authority to not only single-handedly deny publication, but also to prevent him from receiving credit for his work. Maybe law journals worked differently in those days.
9.26.2007 2:06pm
quasimodo (mail):

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.


It is well known that Catholics always rise prior to slapping themselves on the head. Yup, that sounds like it was done in front of witnesses who can testify to its veracity half a century later.
9.26.2007 2:21pm
Jiffy:
In other words, religion "is the opium of the people." But that's a good thing.
9.26.2007 2:29pm
JB:
When Marx said the opiate quote, opiates were at the forefront of then-modern medicine. He was likening religion to today's morphine, not heroin.
9.26.2007 2:34pm
DiverDan (mail):
As a confirmed agnostic, I'm curious about the topic of the Note - If the Establishment Clause permits the Government to impartially endorse the concept of religion, that assumes it can make no distinctions between religious tenets that demand obedience, and thus act as an internal constraint on human behaivior, and those religious tenets that offer unconditional forgiveness in exchange for confession and remorse (like Catholicism), which might actually enable immoral behavior. I recall with fondness the Catholic Girls from my high school days, who viewed premarital sex as a "so what" sin, so long as they could go to confession the next Sunday - reliance upon Confession saved me from a long and frustrated virginity. That doesn't even address other religious beliefs and practices that might result in harm to society - 19th Century LDS religious support of polygamy, for example (which is still followed by some rebellious sects of Mormons), or Voodoo requirements of animal sacrifice, or Rastafarian requirements of ritual marijuana smoking, not to mention radical Islam's emphasis on religious Jihad. I'd be hard pressed to believe that religion in the abstract, without specific reference to the beliefs espoused, could be demonstrated as a net positive to society.
9.26.2007 2:45pm
tvk:
Is it really full compensation if the Note is published online-only? Seems like a half-hearted solution to me. If they were serious about remedying a past injustice they would publish the Note in the print edition (don't know if the law review can do anything about the masthead or the law school credit, but if they can they should).
9.26.2007 2:54pm
Sasha Volokh (mail) (www):
If they were serious about remedying a past injustice they would publish the Note in the 1949 print edition!
9.26.2007 2:56pm
Tony Tutins (mail):
We got credit for being on the board, but not for the candidate year of citechecking and notewriting.
9.26.2007 3:08pm
fennel:
Wrestling -

For what it's worth, I've seen Mr. Stiegler tell his story firsthand. At several points, he became quite emotional and broke into tears. While I'm not aware of any independent confirmation of his story, Mr. Stiegler stuck me as a very genuine person. That was my impression, anyway.
9.26.2007 3:12pm
jdnyu:
If they were serious about remedying past injustice they wouldn't have thrown it up on the web with a broken cross-reference.
9.26.2007 3:16pm
Sasha Volokh (mail) (www):
Bookmark not defined is justice declined!
9.26.2007 3:21pm
Steve:
Sasha is on a roll today. I laughed.
9.26.2007 3:31pm
Roach (mail) (www):
The story is actually somewhat believable to me, and I'm a conservative Catholic. I have a pet theory that Reagan Democrats and Jewish liberals are just relieving their divergent strategies and mutual animosity as fellow immigrant groups in New York circa 1900-1940.

Both groups, even today, imagine themselves to have been great victims of prejudice and discrimination in their earlier stages as immigrants, even though their victimization paled in comparison to what was meted out to blacks, and both groups are quite successful today. And there was a lack of solidarity on the whole, even though both groups themselves were viewed suspiciously by older WASP stock.

So, this story may be true, and it may be exaggerated, but I don't find it beyond the realm of believability.
9.26.2007 4:06pm
CJColucci:
Another fan of GCW's Mr. Wrestling II here. And how about that Harley Race?
9.26.2007 4:06pm
Jon Rowe (mail) (www):
"If the Establishment Clause permits the Government to impartially endorse the concept of religion,..."

From my meticulous study of the views of the men who wrote the religion clauses and other cognate documents (Washington, Adams, Jefferson, Madison, Franklin, et al.), I think they would have had no problem with government endorsing "religion" over "non-religion" (provided govt. still respected the rights of atheists, i.e., didn't pick their pockets or break their legs).

However, to them (and to us today) "religion" is a fairly broad concept. They believed Christianity, Judaism, Deism, Unitarianism, Islam, Hinduism, pagan Greco-Romanism, and Native American Spirituality were all "sound" religions. As best as I can tell, all sound religion required was belief in an overriding Providence who will ultimately reward good and punish evil.
9.26.2007 4:10pm
Dave N (mail):
I did not see where it was not published in the bound version of the law review--though the link is obviously to the online edition.

I do find it refreshing to agree with Steve, since we often disagree on substantive issues. A wrong occurred almost 60 years ago--and to their credit, the current Minnesota Law Review editors are doing what they can to right that wrong.

With respect to the credit question, I, too, received academic credit for my law review time (either 1/2 or 1 credit a semester--I forget which-- pass/fail) which barely compensated for the long hours I spent both as a 2L doing fact-checking and other fun grunt work and as a 3L when I was an editor.

I laughed at Sasha's comments too--witty and to the point.
9.26.2007 4:18pm
Sasha Volokh (mail) (www):
Dave N: The bit I quoted above said: "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."
9.26.2007 4:39pm
TerrencePhilip:
Is the gist of the editor's objection that he wanted government to promote his "one true" religion, or that he wanted no promotion of religion at all? (Perhaps if someone has heard Mr. Stiegler's story they can fill us in.)
9.26.2007 4:59pm
BruceM (mail) (www):
I truly despise religion. Overall, I think the world would be a much better place without it. However, nothing gives me pause more than the people who counter my arguments about religion by saying "without religion, what would prevent us from killing and stealing from each other?"

What they are really saying is "but for my fear of hell and/or desire for heaven, I would have no qualms about killing you and stealing from you." I'm glad such people have their religion, and woe be it for me to take it away from them.

On another note, I can't believe, even in 1949, that a law professor could get away with punishing a student for not being catholic.
9.26.2007 5:02pm
Sasha Volokh (mail) (www):
BruceM: This note editor was another student. Everyone on the board of student-edited law reviews is a student.
9.26.2007 5:10pm
liberty (mail) (www):

However, nothing gives me pause more than the people who counter my arguments about religion by saying "without religion, what would prevent us from killing and stealing from each other?"

What they are really saying is "but for my fear of hell and/or desire for heaven, I would have no qualms about killing you and stealing from you." I'm glad such people have their religion, and woe be it for me to take it away from them.


What is worse, to me, is that some people feel that way about the government. If the government says its bad, its bad, and if the government says its okay, then no matter how bad it is, its okay. Check out the comments thread here where one guy says that if rape were legal he'd be doing it all day. He says it without shame. Then, others defend him even after the full implications of the statement have been pointed out. And it all goes down without shock or uproar, I guess because its perfectly normal to think that is the state sanctions it - be it theft, murder or rape - then it must be okay. Is that how we are raising our children?
9.26.2007 5:35pm
Roach (mail) (www):
Since we have democratically enacted laws, it's reasonable to assume that if something is legal it's not that bad. That wouldn't make all but a few become rapists, then again we've seen quite a few monsters emerge in chaotic situations such as the LA Riots, the Superbowl at Katrina, or the dark hallways of housing projects and fraternity houses when no one is looking.

Other than sentimentality, though, I don't see what makes human beings so special that I should not do whatever I want whenever I want, so long as it is not dishonorable to me, without some kind of divine sanction in the afterlife. Isn't this the meaning of life in the pagan world. But perhaps you can explain why. And yes I've read Plato, Aristotle, Kant, et alia.
9.26.2007 6:21pm
BruceM (mail) (www):
Sasha: Ahh yeh, of course. Isn't there faculty oversight? Wouldn't Mr. Stiegler (or anyone in that position) have told a faculty member "hey, the note editor won't consider my article and chastised me for writing it because he says he's catholic, etc..."? I don't consider myself a tattle-tell by any stretch of the imagination, but if someone wronged me like that, I'd say something. It's not like he was at a religious, catholic law school.

Liberty: I agree, and the converse is that when the government says something is "bad" some people will not only never question it, but will refuse to accept the fact that the government may be wrong. See, e.g., the war on drugs (drugs are not evil, nor do they make people do evil things via voodoo pharmacology).

Some people simply cannot function without authority telling them what is right, wrong, good, bad. They'll always follow and never question. The other 5% of us look on with horror and disgust.
9.26.2007 6:45pm
BruceM (mail) (www):
Oh, I see he did complain. "My appeals to the powers that be were ignored...."

Frankly, I think that's the real story here. While I'm sure all the people who were "powers to be" in the school in 1950 are now deceased, it would be interesting to see if any formal complaints, appeals, decisions were written up. If the law school ignored Steigler's complaints, it in effect officially sanctioned the behavior of the student note editor. That's just evil.
9.26.2007 6:52pm
Sasha Volokh (mail) (www):
BruceM: I don't know what the status of the Minn. L. Rev. was in those days, but it could be that there was a strong norm in favor of the independence of the Review with respect to the law school and university. So the Powers That Be may have just treated certain decisions -- like the Notes Editor's decision on whether to publish a note -- as being essentially discretionary, reasoning that if you started questioning those, it would open the door to greater faculty or administration micromanagement of the Review.

Sure, this is a reprehensible case by the author's statement, but the Notes Editor himself probably had his own story, so it may have looked more like a tough case of he said/he said at the time. Of course, all of this is just speculation -- I have no idea what was going on.
9.26.2007 7:00pm
New Pseudonym (mail):
I note that credit has a small "c." perhaps he just means that he didn't get to put it on his resume. I was managing editor of the law review as a 3L, but I got no credit hours for either year, but I did get to try to impress the law firms I interviewed with. Actually, the removal of his name from the masthead (making him an unperson) strikes me as a greater injustice than not getting his note published (I didn't get mine published either, but it was on the unpopular idea that the Supreme Court had gone too far in its anti-religion interpretation of the Establishment Clause, so I wasn't surprised.)

Also, the story is incredible. As Garrison K has told us, he must have said, "I am Lutheran . . ." Of course, Bloomington is close to St Paul, a hotbed of Papists.
9.26.2007 7:41pm
Former Law Review Editor:
Doesn't anyone else find it amusing that this introduction is, for all practical purposes, identical to every single piece of dreck pumped out by law students (and most professors) to this day?

Either the Minnesota Law Review forced this form onto it (ick) or legal academic writing exhibits a shocking amount of archaism in its forms.
9.26.2007 9:06pm
Tom R (mail):
1949 was pre-Vatican II. The student editor probably thought he was risking his immortal soul merely by reading, let alone publishing, something that might later end up on the Index Librorum Prohibitorum.

Note that he slapped the table and not (being a non-Muslim) his head.
9.27.2007 12:10am
Can't find a good name:
Most likely the Notes Editor would have reported to the Editor-in-Chief (another student) or equivalent. (And, if the Notes Editor had any brains, he would have told the Editor-in-Chief, "I didn't say I wouldn't publish the note because I'm Catholic. I just didn't think it was all that good, and we had some other, better notes submitted for this volume.")
9.27.2007 4:23am
JesusMyth (mail):
The Church of the Flying Spaghetti Monster is even trueerer.
9.27.2007 12:58pm
koriordan (mail):
Good morning. It's nice to know that Mr. Stiegler's Note is generating some discussion.

I am the Editor-in-Chief of current volume of the Minnesota Law Review and I write to validate Mr. Stiegler's story. Indeed, in a meeting with Mr. Stiegler and my predecessor, I found that the story (outlined above) is even more fascinating than it appears. Mr. Stiegler did not want vindication. Mr. Stiegler did not want revenge. Mr. Stiegler just believed in his article. As he went through a transition period in his life, he was compelled to take one last shot at getting the article published. Mr. Stiegler is a fascinating individual and I encourage you, if you have not had the chance, to read his article.

As an aside, I will see what I can do to update/revise the current abstract on SSRN.

Kevin O'Riordan
9.27.2007 1:03pm
HellInAHandbasket (mail):
However, nothing gives me pause more than the people who counter my arguments about religion by saying "without religion, what would prevent us from killing and stealing from each other?"

BruceM -



By the articles of Christian faith, a person can not only rape, murder, etc. without going to hell, they can do it and go to heaven if they still repent and come to Jesus before death. They have NO MORE incentive to obey moral laws that Atheists do and perhaps have even less since to many sects "Jesus" acts like a giant faith-based "sin all you want and get out of hell free" card.

The next time a Christian points this out, try this - "Given that by your own beliefs you can do all kinds of horrible things and still go to heaven, why don't you do them? When you understand the answer to that question, you will also understand why I dont do them either".
9.27.2007 1:07pm