March 16, 2020 – Cornell Law School Professor Nelson Tebbe suggested that speech and religious provisions in the Constitution should be reassessed during a recent presentation at the University of Houston Law Center.
Tebbe presented his research on Lochnerism and the relationship between the First Amendment and the distribution of resources, including wealth and income as the keynote speaker at the Yale L. Rosenberg Memorial Lecture on March 3.
Tebbe cited examples that have impacted current society like Sorrell v. IMS Health and Burwell v. Hobby Lobby Stores, Inc.
“At this moment of worsening resource inequality, freedom of speech and religion are being used to weaken redistributive programs,” Tebbe said. “Today, the argument is that the court has breached that agreement by using the First Amendment to invalidate economic policy.”
He then discussed his ideas for alternatives and solutions to the challenges created by these policies and rulings.
“Today, the First Amendment is weakening democratic belonging for millions of people, precisely at the moment when that belonging is being degraded by economic conditions,” Tebbe said. “To adequately respond to this, the constitutional law and political theory and the conception of democracy that appears with the substantive re-imagination of the Constitution’s speech and religion provisions.
“That conception is possible and urgently necessary. It would apply not only to speech law, but to religious freedom doctrine in ways I’ve described. It would concern not just social and political issues, but pressing as a distributive justice in an age of worsening inequality. Now is the time to develop an approach to these fundamental questions that can work for everybody.”
His findings and conclusions were then discussed by several UH experts from multiple disciplines: Dr. Aimee Chin, professor of economics; Dr. Nancy Beck Young, professor of history and Law Center assistant professor James D. Nelson The faculty members elaborated and critiqued Tebbe’s findings in relation to their own expertise.
Chin highlighted how the various policies and rulings Tebbe talked about have affected income inequality, showing that wage inequality is as bad today as it was during the Gilded Age. She cited multiple reasons for this, including the rise of technology, globalization, decrease in the value of minimum wage and union membership among other points. It is hard to see this trend changing, she said, unless people begin to see this as a problem and address it as such.
Beck Young provided historical context to how these issues have been addressed in the past, particularly during the early days of the New Deal and the end of the Lochner Era. Today, federal relief to that in need is “fairly normative,” she said, but at the time of the New Deal, Congress was breaking new ground.
“It was from that Congress that we got the start of the unmaking of the Lochner Era in the courts by challenging what the government could and should be doing to address income inequality,” she said.
Nelson praised Tebbe’s work and shined a light on what he thought were its chief contributions. First, he said that Tebbe’s work broadens the scope of analysis and creates a rich discussion of how political and constitutional actors interpret the First Amendment. He also praised Tebbe’s ability to bring speech and religion together with case law and theory into a coherent discussion.
“It takes a lot more patience and care and it takes a lot more work, to try to figure out and give a coherent interpretation of what lawmakers are saying in this area,” Nelson said. “Even to take the reasons that these lawmakers are giving seriously — even if you disagree with them — to take them seriously enough to consider them and work up reasons for why you might not agree, that’s a lot of hard work.
“It requires a lot of reading, a lot of thinking and a lot of careful analytical work, but I think Professor Tebbe has already demonstrated how much we stand to gain when we’re willing to put in that kind of work.”
The Yale L. Rosenberg Memorial Fund was established to fund a student-writing prize and to bring distinguished speakers to the Law Center. Rosenberg joined the University of Houston Law Center faculty in 1972 after a distinguished career in government. His teaching of Civil Procedure, Federal Jurisdiction, Professional Responsibility, and Jewish Law earned him the UH Teaching Excellence Award in 2000. An award-winning scholar, Rosenberg has been called "America's prophet" for his analysis of the decline of federal habeas corpus. An alumnus of Rice University, he graduated from New York University Law School in 1964.
To view and download COMPARATIVE AMERICAN AND TALMUDIC CRIMINAL LAW by Irene Merker Rosenberg and Yale L. Rosenberg, a book published electronically by the University of Houston Law Center, please visit: law.uh.edu/rosenberg/jewishlaw/.
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