Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice. Read More
Short Circuit: A roundup of recent federal court decisions
Geek therapy, crack felony, and some Scooby Snacks.
The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002
Arkansas Constitution's Right to Bear Arms Provision Strengthened
The old provision dated back to 1868, and read, "The citizens of this State shall have the right to keep and bear arms, for their common defense." The new, which passed 71%-29%, will read:
(a) The citizens of this State shall have the right to keep and bear arms, for:
(1) Their common defense;
(2) Lawful hunting and recreational use; and
(3) Any other lawful purpose.
(b) The right to keep and bear arms under subsection (a) of this section includes without limitation the possession and use of:
(1) Ammunition;
(2) Firearm accessories; and
(3) Firearm components.
(c) The right to keep and bear arms under subsection (a) of this section is a natural, fundamental, and individual right that shall not be infringed.
"Emphatic Swearing"
I was just listening to a great talk about taboo words by Steven Pinker at the FIRE Soapbox conference, and particularly liked this example of "emphatic swearing":
The taboo word is often used to draw a listener's attention, emphasizing the following noun or adjective. For example: "This is really, really fucking brilliant" [that's a reference to the Bono incident that led to FCC action -EV] or "He thinks he's a fucking scoutmaster, Rip Van fuckin' Winkle."
When emphatic and idiomatic swearing is overused, it can lead to a form of English sometimes referred to as "fuck patois." This is a style where swearing is so pervasive that it becomes almost a defining feature of the language. An example of this can be found in the story of a soldier who says, "I come home to my fucking house after three fucking years in the fucking war, and what do I fucking well find? My wife in bed, engaged in illicit sexual relations with a male!"
I think there's more going on in the soldier story than just fuck patois—indeed, what makes it emphatic might be the absence of "fuck" in the closing phrase—but in any event it's pretty funny.
Note that the term "fuck patois" is often credited to Tom Wolfe.
Lawsuit Against New York AG Letitia James over Letter Alleging Group's Event Was Connected to "White Nationalist Ideals" …
can go forward on First Amendment coercion, First Amendment retaliation, and defamation grounds, a federal district court concludes.
From Magistrate Judge Kenneth Schroeder's Report and Recommendation Sept. 22 in Doyle v. James, affirmed Wednesday by Judge John Sinatra (W.D.N.Y.), plaintiff's allegations:
Plaintiff Paul Doyle ("Doyle") is the Senior Pastor at Cornerstone Church in Batavia, New York. Cornerstone is a small, rural church with a history of service and community outreach. Cornerstone has worked to build relationships with communities of color and was aggressive in their assistance to victims of the mass shooting in Buffalo.
Plaintiff Clay Clark ("Clark") is the owner and operator of The Thrive Time Show, a highly successful business podcast. Clark has twice been named the US Small Business Association Entrepreneur of the Year and is the recipient of other business awards.
"ReAwaken America" is a conservative political movement that hosts events throughout the country. The ReAwaken America Tour ("the Tour") was scheduled to host an event in Rochester, New York on August 12, 2022 at the Main Street Armory. However, after community members and local politicians spoke out against the event, the Armory cancelled it.
The Tour then reached out to Doyle to see if Cornerstone would be willing to host the event. Doyle met with groups from Rochester to try to understand their concerns and concluded that "the Tour was not what was being portrayed in the media and by government officials." Doyle thus agreed to host the event at Cornerstone "due to his strong belief that free speech should not be restricted and those who attempt to exercise it should not be intimidated, particularly by government officials." The event was scheduled for August 11-13, 2022.
On August 3, 2022, New York Attorney General Letitia James sent a letter addressed to Clark and General Michael Flynn—a co-organizer of the Tour—to Doyle's home address "c/o Cornerstone Church." Plaintiffs allege that the letter was "nothing less than an attempt to covertly intimidate and threaten the Plaintiffs into shutting down the event."
James's letter stated, in part:
As New York's top law enforcement officer, I have significant concerns that the ReAwaken America Tour's upcoming event at the Cornerstone Church in Batavia, New York on August 12 and 13 could spur extremist or racially motivated violence. These concerns center around the event's proposed dates, which coincide with the five-year anniversary of the deadly Unite the Right rally in Charlottesville, Virginia, and past extremist statements made by yourselves and the other featured speakers on the tour.
Florida Ban on Material Support to "Domestic Terrorist Organizations" Can't Be Applied to Legal Advice to CAIR
From CAIR-Foundation, Inc. v. DeSantis Wednesday by Chief Judge Allen Winsor (N.D. Fla.):
The Florida Legislature recently enacted a new law that allows state officials to designate certain groups "domestic terrorist organizations" (DTOs). Soon thereafter, Florida's Governor and Cabinet designated Plaintiffs CAIR-Foundation, Inc., and CAIR-Florida, Inc., as DTOs. The designations take effect on November 5, 2026. At that point, Plaintiffs and others supporting them will be subject to criminal and civil penalties for certain activities. In this action, Plaintiffs contend the new law (or parts of it) and the DTO designations violate their First Amendment freedoms and due process protections….
This is Florida's second effort to designate Plaintiffs as terrorist organizations. Previously, the Governor issued an executive order that designated Plaintiffs as terrorist organizations and prevented them "or 'any person known to have provided material support or resources' to [them] 'from receiving any contract, employment, funds, or other benefit or privilege' from executive or cabinet agencies or from any county or municipality of the state." This court preliminarily enjoined enforcement of the executive order, finding it likely violates the First Amendment. [See this post on that decision. -EV] The Governor appealed, and the appeal remains pending.
After this court's decision, the Florida Legislature enacted HBs 1471 and 1473, which created a DTO designation process. The Florida Department of Law Enforcement later promulgated Emergency Rule 11RER26-8, which implements this legislation. Pursuant to the legislation and rule, Florida's Chief of Domestic Security issued a written notice of intent to designate Plaintiffs as DTOs…. [T]he Governor and Cabinet held a public meeting, at which they approved the designations….
{[U]nder [Fla. Stat.] § 775.33(3), "[a] person who knowingly provides material support or resources to a designated … domestic terrorist organization" commits a first-degree felony. See also Fla. Stat. § 775.33(1)(d) ("'Material support or resources' means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, or transportation. The term does not include medicine or religious materials.").}
Senator-Governor Klobuchar and the Problem of the Received Wisdom
[This post is co-authored with Professor Seth Barrett Tillman.]
On November 3, 2026, U.S. Senator Amy Klobuchar (Minnesota-Democratic Party) was elected Governor of Minnesota. It is expected that, at some point, she will resign her U.S. senate seat, then take up the governor's position, and subsequently make a temporary appointment to fill her then-vacant senate seat. That dance of musical chairs happens from time-to-time. But some have also reported that Klobuchar must resign her senate seat. CBS News quoted political science professor David Schultz (Hamline University, Minnesota): "At some point she's going to have to step down as U.S. [S]enator." That might be true pragmatically—as a matter of politics. And sometimes, federal and state constitutional and statutory law bar dual-officeholding. Sometimes, but not all the time. In these circumstances, the law does not expressly bar dual-officeholding where, as here, the two positions are U.S. Senator and Minnesota Governor.
The U.S. Constitution's Incompatibility Clause (Article I, Section 6, Clause 2) bars U.S. Senators and Representatives from concurrently holding certain other federal positions. The position of governor is a state, not a federal position. So, this provision has no application here.
The Minnesota State Constitution has a similar provision (Article IV, Section 5). That provision bars Minnesota's state (not U.S.) Senators and Representatives from holding other state and federal positions. Klobuchar is not a state Senator; rather, she is a U.S. Senator. So, this provision has no application here.
The federal double-dipping statute, 5 United States Code Section 5533 bars drawing two salaries for two positions, where both positions are at the federal level. It has no application to state positions, e.g., governor. Moreover, it does not bar actual dual-officeholding; rather, it bars receiving two streams of full-time compensation or salary. Again, this provision has no application here.
Beyond these express provisions of positive law relating to incompatible offices, there are two common law doctrines, announced by state and federal courts, relating to incompatible offices. The more narrow doctrine prohibits one person holding two positions where one position supervises the other position or determines its compensation. Here, the two positions—U.S. Senator and Minnesota Governor—neither supervise one another, nor determine one another's compensation. So, this doctrine has no application here.
Finally, there is a more expansive common law doctrine relating to incompatible offices. This doctrine holds that, where as a practical matter, one person cannot carry out both sets of duties connected to two positions, the two positions are incompatible. It might be argued that a governor, particularly in an emergency, must reside within her state, and that a U.S. Senator, should generally be on hand, at short notice, to carry out Senate business. Given the physical distance between Minnesota and Washington, D.C., it is not entirely frivolous to suggest that this doctrine might act as a bar here. But the bar here is not distance, it is whether one can practically carry out both sets of duties. Governors frequently leave their states for short periods of time—even for vacations. That's allowable as long as they are within reach by telephone or video link, and as long as they can return quickly in the event of an emergency. Likewise, the U.S. Senate can choose to accommodate a Senator with responsibilities distant from D.C.—the Senate could allow participation in debate by video link, and it could allow remote voting, as long as the votes are reasonably authenticated. In other words, it is not a slam dunk that this expansive doctrine should apply on these facts, particularly given that this doctrine is merely a judicial creation lacking any foundation in both the U.S. Constitution and the Minnesota Constitution. More generally, we should not allow ad hoc judicial creations to supersede democratic elections and add to the qualifications and incompatibilities expressly set out in positive law.
Having one person hold two government positions—including state governor and U.S. Senator—is not a particularly good result. But the fact that a result is bad does not mean, without more, that that result is barred by our law. Not every bad thing is illegal; not every bad result is unconstitutional. And pretending the U.S. Constitution and Minnesota Constitution bar what we think is bad today elevates our intuition into legal duties only by undermining what the legal system actually commands. And if today, our intuition is vindicated, we might do well to remember that tomorrow, it might be someone else's intuition being vindicated and in ways that we might come to regret.
Among those who have considered this issue, I expect that many (and, perhaps, most) believe, as Professor Shultz believes, that Klobuchar must resign her senate seat before she becomes Minnesota's governor. That is, of course, the received wisdom. And that should tell you all you need to know about . . . the received wisdom.
[Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad.]
Man's Criticism of Nonprofit Found to Be "Harassment," Leads to Order Banning Photographing Company's Directors and Officers
From Monday's decision in Lake Itasca Region Pioneer Farmers, Inc. v. Fenske, by Minnesota Court of Appeals Judge Bratvold, joined by Judges Ede and Schmidt:
Pioneer Farmers … is a Minnesota nonprofit corporation that "organizes and conducts annual public demonstrations of historical steam-powered agricultural equipment at Itasca State Park and elsewhere for educational and historical purposes." Pioneer Farmers also owns real property near the north entrance of Itasca State Park in Park Rapids. Appellant Gerald W. Fenske is a former member of Pioneer Farmers. Fenske's membership was revoked in May 2023 for, according to allegations by Pioneer Farmers, "repeated disruptive behavior and conflicts with other members."
In December 2025, Pioneer Farmers petitioned the district court for an HRO [harassment restraining order] against Fenske, alleging that Fenske engaged in harassment "directed at" Pioneer Farmers and its "directors and officers." Along with the petition, Pioneer Farmers filed an affidavit by its president, who averred that, following the revocation of his membership, Fenske made "false and/or misleading complaints to various Minnesota state agencies" about Pioneer Farmers. In response, Pioneer Farmers sent Fenske two cease-and-desist letters.
According to the president's affidavit, after receiving the cease-and-desist letters, Fenske contacted individual members, made "unfounded ownership claims regarding equipment" on Pioneer Farmers' property, and continued "to attempt to stir discord among associated organizations." Fenske also maintained a personal web page titled, "Itasca Pioneer Farmer's Show Cancelled—Allegations of Unsafe Boiler Operation Reason for Cancellation." The president averred that Pioneer Farmers had never cancelled its annual event "for that reason."
In January 2026, the district court conducted a two-day evidentiary hearing on the petition. In March 2026, the district court granted the HRO. The district court found that (1) Fenske maintained "a publicly accessible website containing statements about [Pioneer Farmers'] annual event that imply the event's cancellation, resulting in confusion to the public," and (2) Fenske "contacted three board members after being served with a Cease & Desist letter." Based on these findings, the district court determined that "reasonable grounds" showed that Fenske "engaged in harassment which has or is intended to have a substantial adverse effect on safety, security, or privacy" of Pioneer Farmers.
Today in Supreme Court History: November 6, 1989
11/6/1989: Employment Division v. Smith argued.
Open Thread
What’s on your mind?
Declaratory Judgment + $275K in Attorney Fees in Settlement of N.H. "XX" Wristbands Case
The Institute for Free Speech, which litigated the case, reports on the settlement agreement:
Take off the wristbands or leave. That was the message Bow school officials gave parents and a grandfather who were silently protesting in support of female-only sports by wearing pink "XX" wristbands at a girls' high school soccer game in 2024…. After more than two years of litigation …, the Bow School District has agreed to a judgment declaring that it violated the plaintiffs' rights by barring them from wearing the wristbands at the game. U.S…. The settlement also provides $275,000 in attorneys' fees and costs.
The judgment declares that the plaintiffs "have a First Amendment right to silently wear pink wristbands bearing the XX symbol on the sidelines, in the spectator's area, or in the parking lot of any Bow District sporting event." It binds the district and its Board of Education, and it remains in effect even if the district amends its policies….
The plaintiffs wore the wristbands, whose "XX" symbols reference female chromosome structure, to protest a policy permitting a biological male to compete on the opposing girls' team. School officials, accompanied by a police officer, confronted them. The referee halted play until one spectator removed his wristband, and school officials later issued trespass orders barring Fellers and Andy Foote from school grounds, preventing them from attending their children's games and other school activities for a time….
After the district court denied a preliminary injunction in April 2025, the plaintiffs appealed. In August 2026, the U.S. Court of Appeals for the First Circuit ruled in the plaintiffs' favor, finding that they "have established a likelihood of success as to their viewpoint discrimination claim." The court concluded that the protest "fell short of harassment and disruption," and that school officials "cannot favor one side of a debate involving parental speech on an issue of prominent public concern." …
Here's my August post excerpting the First Circuit's opinion, written by First Circuit Judge Sandra Lynch, joined by Judge Jeffrey Howard:
How Trump's Undermining of the Constitution Helped Cause a "Blue Tsunami"
Trump's unconstitutional policies on tariffs, the Iran War, and immigration played a big role in his party's enormous "Blue Tsunami" election defeat.
On Tuesday, Trump and the Republican suffered a massive electoral defeat, losing control of both houses of Congress. Many have called it a "Blue Tsunami". The defeat was caused by multiple factors. But Trump's unconstitutional actions on tariffs, the War in Iran, and immigration played a major role. Violations of the Constitution don't always result in political setbacks for the perpetrators. But in this case they did "bigly." As Texas GOP Senator Ted Cruz put it, "Tariffs have made everything too expensive, and the Iran war has dragged on too long."
This connection is perhaps most obvious in the case of tariffs. Since returning to power in January 2025, Trump has engaged in a series of massive tariff power grabs, repeatedly attempting to usurp congressional authority in this field, and use it to impose the highest tariff schedule since the Great Depression. He started with the IEEPA tariffs. When the Supreme Court invalidated them, he tried again with Section 122 and Section 301 of the Trade Act of 1974, and the Section 338 tariffs against Canada. In each case, he illegally tried to transform relatively narrow delegations to the executive into a blank check to impose tariffs at will. The net effect of these actions has been to raise prices for consumers, reduce economic growth, and impose some $700 billion in new taxes on Americans over a 10-year period (unless courts end up striking down the new tariffs, too). The tariffs also failed to produce the promised increase manufacturing employment.
Most relevant for present purposes, affordability and price increases were clearly a huge issue in the election. And most voters have come to realize that tariffs increase prices, and damage the economy. Exit polls reveal that 66% of voters believe Trump's tariffs have hurt the national economy (compared to only 21% who believe they helped), and a similar percentage (64%) believe they hurt the economy in their area (only 14% believe they helped it). Numerous other polls show widespread opposition to the tariffs, as well (e.g. here and here). They became a major issue in the elections, linked to the broader issues of price increases and "affordability."
Polls, pundits, and even Donald Trump and Vice President J.D. Vance all agree the Iran War was a major factor in GOP losses. The military stalemate combined with resulting energy price increases have enraged voters. Exit polls showed that 74% of voters said the war was a "crucial" or "important" factor in their decisions, and the vast majority of them disapproved of Trump's conduct of it.
And, as I have argued from the beginning, that war is unconstitutional because it was never authorized by Congress. As I warned at the start of the conflict, the failure to build up the public supported needed to secure congressional authorization greatly reduced the odds of success:
This [constitutional] limitation on presidential power is more than just a technical legal point. The requirement of congressional authorization for the initiation of war is there to ensure that no one person can take the country to war on his own, and that any major military actions have broad public support, which can be essential to ensuring that we have the will and commitment needed to achieve victory against difficult opponents. Trump's failure to seek and secure that kind of broad public support has ensured that only about 27 percent of Americans approve of this military action, compared to 43 percent who disapprove, according to a Reuters poll. Other surveys show similar results. This is a historically low level of public support at the start of a major military action and bodes ill for U.S. staying power if we suffer reverses or a prolonged conflict results.
I think that prediction has (so far at least) been vindicated by events.
The immigration situation is somewhat more complicated than that with tariffs and war. But, here too, various unconstitutional actions have damaged the GOP's political standing and hurt the party in the election. Trump's cruel mass deportation policies have made ICE by far the most the most unpopular federal agency (surpassing even the IRS) and alienated Hispanic voters in Texas and elsewhere; this was a key factor in the Republicans' defeat in that state. GOP immigration policies led many Hispanics who backed Trump and the GOP in 2024 to turn against them in 2026.
In part because of indefensible double standards in relevant Supreme Court precedent, courts permit a wide range of harsh and cruel conduct in immigration policy, that would be invalidated in any other context. But many of Trump's policies went beyond even these overly permissive bounds. As a result, the administration has lost many thousands of immigration detention and deportation cases, including many on constitutional grounds, and many before GOP-appointed judges. Trump's immigration crackdown has violated the Constitution in various other ways, as well, as in the case of his use of an absurdly broad definition of "invasion" in order to justify detaining and deporting even legal migrants without due process.
In all three of these cases, voter backlash arose primarily because of the awful - and highly visible - practical consequences, rather than because of the constitutional issues themselves. Most voters care far more about military failure, rising prices, and visible cruelty of these policies than about their legality. Nonetheless, it is still true that unconstitutional conduct played a major role in causing the tsunami that swept away many GOP officeholders.
We should not be overly optimistic about this chain of events. It would be a mistake to assume that unconstitutional policies always lead to electoral punishment, or even usually do so. In many cases, voters are unaware of illegality or don't give it much weight if they do find out. Previous presidents have often avoided significant political backlash for violating the Constitution. Barack Obama, for example, also waged two unconstitutional wars (those against Libya and ISIS). But because the wars were (at least initially) militarily successful, led to few casualties, and had little visible negative economic impact, he largely avoided political damage. Later, Obama concluded that the Libya war was his worst mistake. But Democrats didn't pay much, if any, political price for it.
Trump's unconstitutional actions on these three issues turned out be politically costly because the negative effects were large and highly visible. Even many generally ignorant and inattentive voters noticed them.
Here, as always, I do not claim that public support for my position somehow proves I was right. As the author of Democracy and Political Ignorance: Why Smaller Government is Smarter, I recognize that majority public opinion is heavily influenced by ignorance and bias, and thus often a poor guide to goo policy. Moreover, while majority opinion agrees with me in condemning Trump's policies here, it would not go as far as I would in sweeping away nearly all tariffs and immigration restrictions.
Despite these caveats, I am glad that the public punished the GOP for these terrible unconstitutional policies. I hope this outcome might deter future presidents from imitating them. At the very least, they might hesitate to pursue them on the same massive scale as Trump did.
May Court Order Parent to "Immediately Cease All Disparagement of" Other Parent "via Social Media"?
An appellate court orders a trial court to consider whether such an order is consistent with the First Amendment.
From McWilliams v. Meghrian, decided Monday by Georgia Court of Appeals Judges Jeffrey Watkins, Christopher McFadden, and J. Wade Padgett:
This appeal arises from a child custody modification proceeding in which the trial court, [among other things,] … permanently enjoined … Mother … from making any "disparaging" statements about Father "via social media or other means" and modified child support. Mother appeals, and for the reasons below, we vacate the trial court's final order and remand for further proceedings. The parties are the parents of one child, born in 2008….
Mother argues that the final order and accompanying parenting plan included unconstitutional prior restraints on speech. The final order directed Mother to "immediately cease all disparagement of [Father] whether via social media or other means." The final order also adopted and incorporated the parenting plan proposed by Father, which provided that the parties "will not speak badly of each other or the members of the family of the other parent." …
First Circuit Declines to Mandate Religious Exemptions from Public School Vaccination Requirement,
at least on an emergency basis while an appeal on the subject is pending.
From We the Patriots USA, Inc. v. Makin, decided Tuesday by First Circuit Judges Gustavo Gelpí and Seth Aframe:
In this case, plaintiffs … move for an injunction pending appeal of a district court's order denying them a temporary restraining order and a preliminary injunction. If we granted the requested injunction, it would bar the defendants from enforcing, against … We The Patriots members who oppose vaccination on free exercise grounds, Maine's vaccination requirements for children enrolling in elementary and secondary schools….
Plaintiffs primarily argue that they are likely to prevail on appeal because the vaccination requirement imposes the kind of substantial burden on parental and religious exercise rights that triggers strict scrutiny, even assuming that the vaccination requirement is generally applicable. They cite Wisconsin v. Yoder (1972) (holding that Wisconsin's law requiring public or private school enrollment until the age of 16 violated Amish parents' Free Exercise rights), and two recent Supreme Court decisions applying Yoder. See Mahmoud v. Taylor (2025) (in a preliminary injunction appeal, "hold[ing] that the [Montgomery County School] Board's introduction of the 'LGBTQ+-inclusive' storybooks — combined with its decision to withhold notice to parents and to forbid opt outs — substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that Yoder found unacceptable"; "[a] government burdens the religious exercise of parents when it requires them to submit their children to instruction that poses 'a very real threat of undermining' the religious beliefs and practices that the parents wish to instill"); Mirabelli v. Bonta (2026) (per curiam, emergency docket) (vacating Ninth Circuit stay of permanent injunction; California's policies limiting parental notice about their children's in-school, staff-"facilitat[ed]" gender transitioning "likely trigger strict scrutiny under [the free exercise] provision because they substantially interfere with the 'right of parents to guide the religious development of their children' and 'impos[e] the kind of burden on religious exercise that Yoder found unacceptable'").
On the district court record and the papers before us, plaintiffs have not made the necessary heightened showing of a likelihood of success on the merits…. [I]n the posture of seeking an injunction pending appeal, "the bar is harder to clear" because "an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by [a] lower court[]" …. It is not obvious that Yoder, Mahmoud, and Mirabelli govern the situation we face given that Maine's vaccination law does not appear to require a student's submission to school-facilitated instruction.
The Death of Religion?
A new book challenges the narrative of religious decline in the US
One of the most important developments in American religion over the past several decades has been the rise of the "Nones"—people who tell pollsters they have no religious affiliation. According to the Pew Research Center, about 29% of American adults now fall into this category, compared with 16% in 2007. Among younger Americans, the figure is even higher. Many observers see these numbers as evidence of the continuing secularization of American society.
A provocative new book challenges this conventional wisdom. In The Death of Religion? Nones, Others, and the Flourishing of Faith, sociologist Byron Johnson and historian Thomas Kidd argue that surveys greatly exaggerate the decline of religion in the US. I interviewed Kidd about the book in the most recent Legal Spirits podcast.
The book maintains that conventional surveys, including those conducted by Pew, give a misleading picture of American religious life. People who identify as religiously unaffiliated are not necessarily unbelievers. Some Nones retain religious commitments even though they have no formal connection to a denomination or congregation. Some Americans belong to religious communities that surveys fail to capture adequately, particularly among racial and ethnic minorities. Consequently, surveys may systematically underestimate the vitality of religion in the US.
Of course, there is evidence of genuine decline in some traditional religious institutions, like mainline churches. I asked Kidd about this during our conversation. Still, the authors make a useful point: religious affiliation and religious belief are not the same thing, and trends in one do not necessarily establish equivalent trends in the other.
For me, the most interesting part of the book is its historical account. It turns out that Americans have been worrying about religious disaffiliation for more than two centuries. In the eighteenth and nineteenth centuries, Americans sometimes referred to people without a definite religious affiliation as "Nothingarians" and suggested doing missionary work among them. Orestes Brownson, the famous Transcendentalist-turned-Catholic, maintained that Nothingarians made up the majority of antebellum Americans.
The historical parallels raise an interesting question. Americans have long been suspicious of institutions and hierarchies. It would not be surprising if this suspicion extended to religious institutions as well. Could Americans' longstanding preference for personal autonomy and self-reliance help explain the persistence of religious disaffiliation, even among people who retain spiritual beliefs?
Whether or not one accepts all the authors' conclusions, their book offers an interesting corrective to overly simple narratives about the disappearance of religion in America. You can listen my interview with Kidd here.
Lawprof's First Amendment Case Against Univ. of Kentucky, and a Case's "Journey so Circuitous it Would Make a Baggins Blush"
From Judge Benjamin Beaton Tuesday (W.D. Ky.) in Woodcock v. Capilouto (E.D. Ky.):
Ramsi Woodcock, a tenured University of Kentucky law professor, has been under investigation for more than a year for controversial comments regarding Israel and Palestine. The alleged comments varied in both content and forum: an online petition calling for the invasion of Israel, listserv blasts to the University faculty and broader legal academy accusing Israel of genocide, the interjection of far-afield remarks about colonization at an antitrust panel in Hong Kong, shouts of "Free Palestine!" while driving two law students near campus, and more.
None of the remarks came in the classroom and none appears to have disrupted school activities. Yet all related in some manner to his role as a state-employed professor—rendering all the more curious the University's July 2025 decisions to promote him to full professor one week and call him in for questioning (literally) the next. {Curiouser still, Woodcock maintains that the remarks in question dated as far back as February 2024 and were known (at least in part) to the University since March 2024.}
The following week brought a public denunciation from the University's President, the start of a formal investigation into potential harassment under Title VI, reassignment from teaching duties to "professional development," and a (since rescinded) ban from campus. {This first of two "Notice[s] of Investigation" laid out four allegations that Woodcock "may have violated" the University's code of conduct and other policies. The notice declared (without elaboration) that the "investigation … is consistent with the First Amendment" and "addresses requirements under Title VI of the Civil Rights Act." A second notice, based on reports from four students, identified four additional allegations that may have "created a hostile environment on the basis of race, color, or national origin."}
Rather than participate in the investigation, however, Woodcock filed this [federal] lawsuit …. The pleadings characterize his treatment by leaders of the University and its law school as retaliation for protected academic or personal speech, violations of the Due Process and Establishment Clauses, and racial and religious discrimination…. The issue ripe for resolution today is Woodcock's request for temporary emergency relief halting the investigation and reinstating his teaching duties.
This is Woodcock's second or third such request, depending on how one counts. And it follows a journey so circuitous it would make a Baggins blush.
Today in Supreme Court History: November 5, 1917
11/5/1917: Buchanan v. Warley decided.
Open Thread
What’s on your mind?
"The Time, the Opportunity, and the Need to Reclaim the Republican Party from Trump and Trumpism"
I thought I'd pass along this smart and readable analysis from Bill Otis (Ringside at the Reckoning); as I've mentioned before, he and his coauthor Paul Mirengoff are my go-to people for hardheaded, pragmatic, but principled conservative views. They are probably on balance more conservative than I am, but I always much enjoy their legal and political commentary. An excerpt:
In an election where overwhelmingly the preeminent issue was affordability — in other and more candid words, the increasingly obvious decline in the standard of living huge numbers of people are feeling — what has Trump been occupying himself with? Here's a partial list: Building the White House ballroom (from which, in a tone deaf rendition that defies description) he gave his election post-mortem; re-doing the East Potomac Golf Course to make it a "premium" experience; building a Triumphal Arch no one asked for or thought about when they elected him; demanding prosecutions for imaginary vandalism at the Reflecting Pool; invading Greenland; making Canada the 51st state; re-naming Lake Ontario; re-naming the Gulf of Mexico; and perhaps most prominently, making sure his name gets put on the Kennedy Center even though he had nothing to do with its creation. Then there are numerous other items: Trump passports, Trump one-dollar gold coins, and "commemorative" $100 bills, to name three.
Exactly what does this Adventure in Narcissism seem like to the voter — actually, the millions of voters — who feel like they're being stretched thin? You don't need a florid imagination to answer that one. They gave their answer last night.
