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for libel (thereby providing more financial protection for printers), but allows persons falsely defamed to recover token money damages and declaratory judgments that disparaging publications are false without having to prove actual printer malice (thereby providing more reputational vindication for libel victims). Had the Court itself tried to announce such rules for federal libel suits, perhaps the justices’ efforts to restrain jury damages might have set off Seventh Amendment alarm bells about judges improperly limiting juries. More generally, the Court might have worried that it was democratically unseemly for unelected judges to limit the domain of juries. Congress, however, has long been understood to have broad legal authority to limit juries in the process of creating new “equitable” statutory systems replacing traditional common-law causes of action; elected members of Congress also enjoy a stronger democratic mandate to limit jury power. Thus, even though our hypothetical congressional statute in some ways would offer publishers less than Sullivan does, if Congress actually were to enact such a law the Court should not reject it out of hand, if indeed it would protect the core of the First Amendment as well as—or perhaps even better than—the Court was able to do acting purely on its own steam in Sullivan .
    IN THE REALM OF RELIGIOUS RIGHTS, the Warren Court once again aced the question of constitutional meaning—affirming full religious liberty and equality against both state and federal officials—and then sensibly fashioned implementing rules to make that meaning a reality. Alas, post-Warren cases went further, laying down troubling doctrinal sub-rules organized around a poorly defined metaphor of “separation of church and state.” Some of these sub-rules led to outlandish results. More recent cases have properly trimmed back some of these sub-rules, thereby returning America to the more sensible approach of the Warren Court itself. 8
    Recall that in two early 1960s cases, Engel v. Vitale and Abington v. Schempp , the Warren Court struck down organized worship services in the public schools in situations where public employees had either composedor blessed an official government prayer. In the 1985 case of Wallace v. Jaffree , by contrast, the post-Warren Court repeatedly invoked Engel and Abington to strike down a state law mandating a moment of classroom silence that enabled students to pray individually or simply to engage in quiet contemplation. Unlike the governments in Engel and Abington , however, the state in Wallace had neither written nor endorsed any kind of prayer whatsoever. Nor had the state separated children along religious lines or forced any student to opt out or stand apart. Agnostic children were free to sit at their desks in this silent moment and think about baseball. More subversive kids were even free to silently indulge atheist, heretical, or anti-government thoughts.
    In principle, a moment of silence was one way to communicate that the public schools aimed to be religiously neutral, not antireligious—to reach out to include those who had experienced Engel and Abington as assaults on and insults to their religious identities. The silent moment was meant to accommodate observance in a manner that was nevertheless wholly neutral and nonsegregative.
    Some of the Wallace Court’s hostility to moments of silence may be explained by understandable—though not admirable—institutional defensiveness. Engel and Abington provoked massive popular backlash, and in many places outright defiance of the Court’s rulings. The Court responded by defending its turf, and in the process, overreacting.
    More generally, post–Warren Court religion law subtly shifted away from religious equality toward separation as an organizing concept. The separation concept had been visible even before the Warren Court. The 1947 school-bus case, Everson v. Board of Education , had famously invoked