The last decade of the 20th century has brought ferment and change in the American constitutional law concerning religious liberty. Change has come on several fronts. Throughout the 1990s, the U.S. Supreme Court and the Congress have battled over the scope of the right to free exercise of religion. First the Court narrowed the right dramatically, then Congress responded with a statute “restoring” the previous broader standard, only to see the Court invalidate the statute within four years. In addition, the prospect of full-blown government aid to religiously affiliated schools and other institutions came much closer to reality by 2000, as the Supreme Court grew more approving of such aid and as cities and states dissatisfied with the performance of public schools and government welfare agencies turned to assisting private and “faith-based” organizations as alternatives.

Expressive punishment is popular at the voting booth and in academic journals. Yet concerns remain about expressive punishment's pathological tendencies.

The work of René Girard explains the popularity of expressive punishment and diagnoses its pathology. Girard's analysis of violence, including the lawful violence categorized as punishment, is religious, anthropological, and literary. He posits that the mimetic and conflictual nature of human desire creates crises of undifferentiated violence that are resolved by “sacred violence.” Violence becomes sacred when it regenerates lost meaning, binds the community, and provides a temporary peace. Archaic religion, with its prohibitions, rituals, and myths, was a social mechanism for pragmatically managing that violence. Viewing the legal system as the heir to that tradition, that is, viewing law as our modern social technology of violence, illuminates the practice of expressive punishment.

Before turning to Girard's thought, I will survey some legal scholarship to develop a broad outline of the nature of expressive punishment. Then I will make an inductive argument, following Girard, that expressive punishment is a morally problematic mechanism for both controlling and dispensing sacred violence. Finally, I will explore some implications of that argument.