Volume 80, Number 6

December 2005

Religious Liberty in the Thirteenth Colony: Church-State Relations in Colonial and Early National Georgia

Joel A. Nichols

At the time of America’s constitutional origins, there was not a singular understanding of the proper relationship between the government and religion, but rather multiple understandings. Those multiple understandings are best understood through a close investigation of the experiences in each of the original states. This Article seeks to add the experience in Georgia—the thirteenth colony—to the larger discussion regarding the status of religious liberty in the various colonies and states in the eighteenth century.

From its founding in 1732 throughout the eighteenth century, Georgia was a place of both religious tolerance and religious pluralism. Georgia’s Royal Charter provided for liberty of conscience for all, and for the free exercise of religion by all except Roman Catholics. The Charter did not establish the Church of England or any other church. (Although the Church of England would later be established by law in 1758, it was, in practice, a weak establishment with little real ecclesiastical presence.) Between the Revolution and 1800, the new State of Georgia had three constitutions (1777, 1789, and 1798), each of which explicitly addressed religion and provided for varying levels of free exercise (including liberty of conscience) and disestablishment.

These principles of religious liberty that were reified and realized in the governing documents stemmed from the necessity of recognizing a variety of religious beliefs, for from early times the colony contained adherents of a number of religious faiths. These included Jews, Anglicans, Lutherans, Presbyterians, and others—who formed, according to one author, “a rich generation of religious ferment in the colony.” This admixture of religious adherents was welcomed—indeed, invited—to the new territory. And the various worshipers were not asked to conform to, nor required to support, the Church of England, but instead received governmental funding and support for their own endeavors (including land grants, salaries for ministers, and some control over church and civil governance).

By analyzing Georgia’s law and experience, this Article seeks to unearth and illuminate those principles of religious liberty valued in early Georgia. This Article reveals that early Georgians cherished liberty of conscience, free exercise, direct (but non-preferential) governmental support for religion, respect for religious pluralism, and non-discrimination on the basis of religion. Further, while Georgians gradually moved toward recognizing the value of disestablishment, there was never an intellectual adherence to a strict Jeffersonian ideal of “separation of church and state.” By adding Georgia’s experience in church-state relations to the larger conversation about religious liberty in the early Republic, this Article opens the conversation to a fuller discussion of the multiple understandings of religious liberty present from the beginning.


Beyond Admissibility: A Practical Look at the Use of Eyewitness Expert Testimony in the Federal Courts

Jennifer L. Overbeck

Eyewitness testimony is an important, persuasive, and often pivotal element in American trials. Jurors are strongly inclined to believe eyewitnesses, even in the face of other contradictory evidence, such as fingerprints. However, thirty years of psychological research into the workings of human memory have revealed that eyewitness accounts are frequently flawed, either because the witness’s original perception of the event was flawed, or because the memory was subconsciously altered prior to testifying at trial. This, combined with jurors’ inclination to trust eyewitnesses, leads juries to overcredit eyewitness testimony, resulting in false convictions. To help avoid such erroneous outcomes, the legal system must find a way to close the gap between eyewitness accuracy and juror belief in eyewitness accuracy. One controversial option is the use of expert psychological testimony to educate the jury about eyewitness fallibility. In this Note, Jennifer L. Overbeck draws on recent psychological research indicating that while expert testimony may be the best way of educating the jury, it is not successful in all circumstances. The Note argues that lawyers must harness psychological research to determine the circumstances that contribute to effective eyewitness expert testimony and incorporate this into their trial strategies. The Note concludes by suggesting some concrete ways of doing so.

The Eighth Amendment Reconsidered: A Framework for Analyzing the Excessiveness Prohibition

Samuel B. Lutz

Although it is widely accepted that the Eighth Amendment operates as a broad prohibition against excessive criminal sanctions, neither the courts nor the academic community have presented a unified account of what excessiveness means in the Eighth Amendment context. This absence of any larger theory of the Amendment has produced an increasingly disjointed body of case law, and left the legal community without a method of analyzing excessiveness claims as they arise. The purpose of this Note is to lay the initial groundwork for such a theory. This Note argues that the reason why no comprehensive theory of the Eighth Amendment has been developed is because courts and scholars have not framed their discussion in terms of the two theoretical questions raised by the Amendment’s sweeping prohibition of “excessive” criminal sanctions: (1) what substantive standard of decision should determine the outcomes of specific cases, and (2) what standard of review should courts apply when examining sentencing schemes enacted by the legislative branches? In examining these questions, this Note makes two important insights about the nature of the Eighth Amendment: first, that the substantive standard of decision governing the excessiveness prohibition is necessarily tied to an underlying theory of punishment that provides the normative baseline needed for the excessiveness inquiry; and second, that the appropriate standard of review for a criminal sanction adopted by the legislative branches ultimately must be derived from a theory of judicial review that defines the appropriate role of the courts in a democratic society. By structuring the inquiry in this way, this Note contends that it becomes possible to see the competing policy preferences that are implicated by the selection of one standard over another, and thereby forces us to undertake the difficult task of deciding which of these social values should inform interpretation of the Eighth Amendment.

A Pas de Deux for Choreography and Copyright

Joi Michelle Lakes

In this Note, Joi Lakes argues that the 1976 Copyright Act and the rules set forth by the Copyright Office are flawed with respect to defining what constitutes expressive, copyrightable material in a choreographic work. This ambiguity creates an imbalance between the public and private domains, which acts to stifle choreographic innovation instead of encouraging it. In particular, the movements comprising choreographic building blocks that properly belong in the public domain are not defined expansively enough. Current copyright doctrine also fails to emphasize the role of flow—or movement through time—in describing choreography’s expressive element, which is the sine qua non of copyright protection. Erroneous understandings of choreography’s expressive element can result in overprotection of dance works by finding copyright infringement where it does not truly exist. Finally, copyright law’s fixation requirement as currently understood could lead to under-protection for choreography, which is particularly difficult to “fix” in a tangible medium. Lakes argues that these imbalances between copyrightable and public domain material in the current Copyright Act can be rectified by amending it both to clarify the definition of a choreographic work and to liberalize the fixation requirement.

Toward Increased Notice of FMLA and ADA Protections

Debra L. Greenberger

The current notice regimes under the Americans with Disabilities Act and the Family and Medical Leave Act provide insufficient notice to two groups of employees who might avail themselves of the Acts’protections: those who are ignorant or misinformed about their rights under the Acts and those who remain “in the closet” about their disability, consciously choosing to hide their need for accommodation or leave in order to avoid the accompanying stigma. To address these dilemmas, the author proposes a multi-part solution: First, employers should provide individual notice to their workers at regular intervals. Second, employers should notify employees of the Acts’ protections when an employee demonstrates a performance problem resulting from lack of accommodation or leave, as it is at that point that the employee might wish to come “out of the closet” to enjoy the Acts’ protections.

A “New” No-Contact Rule: Proposing an Addition to the No-Contact Rule to Address Questioning of Suspects After Unreasonable Charging Delays

William H. Edmonson

This Note considers prosecutorial charging discretion and its interaction with the no-contact rule. Charging delays instituted in order to continually question suspects outside the presence of counsel have racial and social class implications. The no-contact rule should be modified to prevent prosecutors, once they reasonably believe they have enough evidence to pursue a successful conviction, from continuing to question suspects without charging them. Disciplinary sanctions, however, are a more appropriate remedy for such improper questioning than is suppression of the resulting statements.