Tuesday, June 24, 2014
My colleague, Mark Movsesian, has the report. I will have a bit more on the substance of the conference shortly (and then on to Tom!).
Suffice it to say that it was a great honor to meet Pope Francis and to hear his thoughts about the condition of religious liberty around the world. When the Pope's talk is translated, I will make it available here. And here is an English-language video report on our audience and the Pope's statement about religious freedom and our conference.
Monday, June 16, 2014
A very interesting new piece by Don Drakeman here. One of its interesting features is a recent survey of public attitudes about originalism--three of the key questions concerning (1) how many favor original understanding (to encompass original meaning and original intention) as compared with non-originalist methods of interpretation; (2) of those that do not favor original understanding, how many nevertheless believe that original understanding should be a factor that is considered in constitutional interpretation; and (3) how many prefer original intention as compared with original meaning (the questions are put with greater nuance than I am conveying here).
While the survey is interesting, there are three other contributions that the piece makes that I found pretty neat.
First, the titular question. The idea here is that "the point"--or at least one point--of originalism is to persuade the public of the court's decisions, and more generally of the court's legitimacy in rendering those decisions. The point is a purely pragmatic one. But it may be the fundamental point.
Second, the historical claim about the writing of majority opinions. We are accustomed to judicial opinions. Indeed, around this time of year, we are fixated on them, as if the opinions themselves had some sort of independent constitutional power. But they don't. Opinions are not constitutionally mandated. The Constitution speaks in terms of "the judicial power" and judicial "offices." But there is no constitutional reason that the court could not exercise its power and fulfill its office simply by rendering judgment. And so it did before the Marshall Court. Drakeman notes that opinion-writing for the court is really a Marshall-era innovation--devised in order to give rhetorical efficacy and (further) legitimacy to the court. Majority opinions are vehicles for the court to exercise its power as an institution (opinion writing generally is a different issue).
Third, I appreciated the idea of the distinction between a theory of constitutional interpretation and a theory of constitutional explication. What Drakeman is doing is explaining why originalism does matter as an approach to giving meaning to the Constitution: it keeps the Supreme Court in business. Of course, a counterpoint would be that for much of the Supreme Court's history and in many important cases that are embraced by the public, it has not been originalist. But at any rate, he is not arguing that originalism is the correct intepretive approach or that it ought to matter (or that the public is right to believe that it matters). Put another way, the paper is a positive account of originalism's value. I think that sort of account of originalism's worth might be very appealing, or at least very interesting indeed, from a Catholic perspective.
Monday, June 9, 2014
The eminent First Amendment scholar (and my friend) Steve Shiffrin has a smart post disagreeing with my own criticisms of Olivier Roy’s column a few days ago concerning the European political right and its nominal association, but substantive dissociation, with the major Christian churches of Europe. Actually there is not much to disagree with in Steve’s post: insofar as my post suggests that the problems that attend church state associations simply have no application in Europe, surely Steve is right to object. Here are just a few additional ruminations in response:
First, I take Steve’s post to be in some measure a friendly amendment to my own. The principal point I wanted to make about Professor Roy’s column is that to the extent that church-state association or connection is a problem in Europe, that is nothing new and has little to do with today’s particular political trade winds. So that while the contemporary political right makes for a fat target, Professor Roy’s real objection is to the larger model of church-state relations that has predominated in Europe (for good and, as Madison had it, for ill) for the hundreds of years that preceded the last handful. Steve’s post is, I think, consistent with this criticism.
Second, Steve’s post is also a reminder to me that the strength or vigor of a religious tradition is itself a contested concept. A highly Protestant or Evangelical view of religion’s core or essence will see weakness in associational or public institutional characteristics and strength in individual commitment and the purity of interior zeal (I note that Steve cites Stanley Hauerwas!). Here’s some of what I wrote a few months ago (in response to George Will) about the claim that separationism must always and necessarily strengthen religion, much of which seems applicable here too:
The claim is that religion is so vibrant in America only because (or uniquely because) it is so pure, so separate from public institutions. It’s an argument that Madison made famous in his “Memorial and Remonstrance” and that Justice Souter has made in his religion clause jurisprudence (see his dissent in Zelman v. Simmons-Harris)…. It reflects a distinctively evangelical ethic that one sees in full blossom in the writing of Roger Williams (as well as, before him, John Milton), for whom religion could never quite be pure enough–an ethic that hyper-emphasizes the unvarnished, utterly and uncomplicatedly sincere credos of what William James much later would call the gloomily intense “twice-born.”
Notice also the individualistic current on which the claim [of religious strength's source in separationism] rides. It isn’t just that the state is “likely to get it wrong”; that is an argument for disestablishment…. The deeper undercurrent of the separationist claim is that individuals, not entities, are the ones “likely to get it right”–that true-blue, healthfully zesty religiosity depends on a kind of inward exercise of discernment borne from fervent conviction that is always in peril of depurification by associational adulteration. It is a claim made primarily by those whose experience of “bad” religion was group religion– and traditional group religion at that. And the claim retains at least part of its power because of its still vital anti-clerical, anti-institutional foundations….
But is the claim true? In part, perhaps, but only with substantial qualifications of a kind that make it problematic. There is nothing inevitable….about religious strength that follows ineluctably from its complete separation from government. There is no iron law that says: the more we separate religion from government, the stronger religion must become. Such a claim would run headlong into many counterexamples, contemporary and ancient. The ancient examples make the claim appear patently absurd. One wants to ask: “Do you actually mean to tell me that no society which has not observed strict separation between church and state has had a flourishing religious life? So there was no flourishing religious life in any of countless pre-modern societies that existed before Milton or Locke or Roger Williams or whoever got busy?” And to take only one modern case, religion and the state have been strictly separated for some time in laic France and in other extremely secular European countries, and the strength of religious life in those countries is by all accounts much weaker than it was in prior historical periods when there was greater proximity and interpenetration of church and state.
I suppose one might argue that religious weakness in a country like France is the result of the long, noxious association of church and state that preceded separation, and that we just need some more time before a newly flourishing religiosity emerges. That seems highly dubious. Church and state have been separated in France for over a century (since 1905). How much longer is it supposed to take for this delicate flower to bloom in the desert? In fact, it seems much more likely that strict separation of church and state has either contributed to the weakening of religious life in a country like France or (even more plausibly) that it has occurred at a time when religiosity was weakening for reasons of its own–reasons unrelated to, or at least independent of, strict separationism.
If some notion of separation did in fact at one time contribute to a stronger collective religious life in the United States, the reason had little to do with any necessary connection in this respect, and more to do with the unique historical and cultural circumstances of the United States–circumstances in which the Puritan evangelicalism represented by Roger Williams’s particular style of fire-and-brimstone, garden-and-the-wilderness religiosity was much more powerful in the United States than it is today. Church-state separation may be a strategy that makes religion seem stronger, provided that one is beginning from the evangelical paradigm of the twice-born soul. But it is a different matter if religion is commonly perceived in wildly different terms and expected to perform entirely different functions.
I take all of these points to be consistent with Steve’s final paragraph, in which he writes: “The factors leading to religiosity or its decline are complicated and controversial, and the decline in European religiosity is palpable. I would not contend that the close ties between religion and the state are the only explanation. After all, those ties persisted for a long time without a decline as DeGirolami observes. I would add that those ties can be helpful.” Quite so.
Finally, a friend wrote to me indicating that he was dubious that “separationist” was a proper description of Professor Roy’s own views. That’s an interesting observation as well. I made the association because separationism has a long and rich history in this country. It is a view that proceeds in part from the position that the mingling of church and state is a corrupting force for both and it maintains that the cultural and identitarian features of religion which can permeate the political sphere are not a positive thing for either religion or government. I found this latter theme to be very much emphasized in Professor Roy’s piece; indeed, I found it to be crucial to the claims he makes. But separationism is an American phenomenon. And it may be difficult to transplant the flora of particular, culturally contingent church state arrangements to exotic soils and expect them to blossom in quite the same ways.
Thursday, June 5, 2014
The distinguished sociologist of religion, Olivier Roy (author of a very fine book called Holy Ignorance), has an interesting op-ed in the New York Times today entitled, “The Closing of the Right’s Mind” (no citation to Alan Bloom?). The large point in the piece has to do with the secularization of certain political parties in Europe that were formerly linked to the Christian churches of Europe, principally the Catholic Church. Here’s the opening:
The longstanding link between the political right and various Christian churches is breaking down across Europe. This is largely because the right, like much of European society, has become more secular. Yet this hardly indicates progress: Animated by an anti-Islamic sentiment, the right’s position is endangering freedom of religion, as well as secularism and basic democratic traditions.
Up to the 1950s, the cultural values endorsed by the right throughout much of Europe were not so different from the traditional religious values of Catholics and Protestants. Homosexuality was criminalized in many countries. Children born out of wedlock had fewer rights than “legitimate” children. The law in most countries protected family values, censored some forms of pornography and condemned what the French call mauvaises moeurs (roughly, loose morals).
The changes brought on by the decades that followed--in which rights and values of sexual autonomy came to dominate the scene--were initially the purview of the political left but eventually, Professor Roy notes, came to be adopted by the political right as well. And that has resulted in the fracturing of connections between the political right and the traditional European churches, which largely do not subscribe to those values.
The “twist,” however, is that the political right has assumed the mantle of Christianity without claiming any of its values. It has dissociated itself from Christianity; it has secularized. But it has simultaneously maintained that Western Europe is Christian. It has done this not because it is truly Christian--"spiritually” Christian--but for political reasons, principally for the purpose of resisting a growing Islam in Europe.
The piece is very interesting, as I say, but what principally interested me is how American it sounds. The claim that religion’s true value is its “spiritual” essence, rather than any number of other values, can be found in American separationist writings dating to Roger Williams. It has deep roots in a kind of Protestantism and Evangelicalism typical of the American experience. I would not have thought that the European experience, in which the political importance of religion was always far more prominent, was the same. And the notion that the association of politics and religion exerts a corrupting influence on religion may be traced in a direct line from James Madison all the way to David Souter’s church-state dissents. But, again, I take it that has not been the European historical experience. Indeed, Professor Roy himself notes in the fragment quoted above a period in which the political right and the European churches were plausibly connected. But if the separationist corruption argument is right, then this period of association was no less corrupt than the current condition of dissociation.
Indeed, in the view of the separationist, the previous period was just as corrupting for politics and religion alike as the present. This may be the reason that Professor Roy raises the Lautsi case, concerning the display of crucifixes in Italian public school classrooms, a practice which preceded by many years the current difficulties faced by European political parties. The European Court of Human Rights upheld the practice based in part on the religious culture and heritage of Italy. Professor Roy criticizes the ruling on the ground that “to defend a distinct cultural Christian identity is to secularize Christianity itself.”
Again, historically that has not been true in Europe; Christendom coexisted comfortably with Christianity for centuries, well before “secularization” in its contemporary form ever came on the scene. And even if the statement were true, its truth would have little to do with the current conditions of the political right in Europe. That statement reflects a larger vision of the nature of the relationship between church and state--a distinctively American conception of that relationship primarily (though not exclusively) embraced today by the political left in this country--strict separationism. Its influence in American law, however, has been steadily declining: there are no more church-state separationists on the Supreme Court. It is striking that separationism of this sort should have such contemporary purchase for the very different historical conditions of Western Europe.
Wednesday, June 4, 2014
Here is the updated schedule for our upcoming conference, International Religious Freedom and the Global Clash of Values, in Rome, Italy on June 20-21. If you happen to be in Rome, it would be great to have you!
The Center for International and Comparative Law and the Center for Law and Religion at St. John’s School of Law, and the Department of Law at the Libera Università Maria SS. Assunta, are pleased to present an academic conference:
International Religious Freedom and the Global Clash of Values
Taking place in Rome on Friday, June 20, 2014, and Saturday, June 21, 2014, the conference will bring together American and European scholars and policymakers to discuss the place of religious freedom in international law and politics. Speakers will address a variety of perspectives. Proceedings will be in English and Italian with simultaneous translation.
Revised Conference Agenda
Friday, June 20, 2014
1:30 - 2:30 p.m.
Lunch
2:30 - 2:45 p.m.
Welcome
2:45 - 4 p.m.
Keynote Panel
Religious Freedom in International Law, Yesterday and Today
Thomas Farr (Georgetown University)
John Witte, Jr. (Emory University)
Moderator: Marc DeGirolami (St. John’s University)
4:15 – 5:30 p.m.
Panel 1: The Politics of International Religious Freedom
Pasquale Annicchino (European University Institute)
Heiner Bielefeldt (UN Special Rapporteur on Freedom of Religion or Belief)
Hon. Ken Hackett (US Ambassador to the Holy See)
Moderator: Margaret E. McGuinness (St. John’s University)
Saturday, June 21, 2014
8:30 - 9 a.m.
Coffee
9 - 10:15 a.m.
Panel 2: Comparative Perspectives on International Religious Freedom
Francisca Pérez-Madrid (University of Barcelona)
Marco Ventura (Catholic University Leuven and University of Siena)
Roberto Zaccaria (University of Florence)
Moderator: Monica Lugato (LUMSA)
10:15 - 10:30 a.m.
Coffee
10:30 - 11:45 a.m.
Panel 3: Christian and Muslim Perspectives on International Religious Freedom
Abdullahi Ahmed An-Na’im (Emory University)
Olivier Roy (European University Institute)
Nina Shea (Hudson Institute)
Moderator: Mark L. Movsesian (St. John's University)
Noon - 12:30 p.m.
Conference Conclusions
Giuseppe Dalla Torre
LUMSA
Location
LUMSA, Complesso del Giubileo
via di Porta Castello, 44 – Roma
Registration
Please register to attend the conference by June 9 at: [email protected]
More Information
Monica Lugato | LUMSA Department of Law | [email protected]
Mark L. Movsesian | St. John's School of Law |[email protected]
Friday, May 30, 2014
This story in today's New York Times reports on the Chinese government's decision to bulldoze the beautiful 
and imposing Sanjian Church in Wenzhou. You can see the pile of rubble that remains. The ostensible secular purpose was a violation of a zoning ordinance. But the story reports that the Chinese government has issued demolition orders and orders for the removal of crosses for dozens of other Christian churches as part of a concerted, but non-public, strategy to suppress Christianity and its "excessive religious sites" and "overly popular" religious activities. Also of interest is that Christianity in particular seems to be a problem for the government. Government officials have been publicly praising other religions including Buddhism and Confucianism--a dramatic change in official policy--in an effort to augment the growing inter-religious tensions. But "Christianity," the story reports, "is seen by some in the government as a colonial vestige at odds with the party’s control of political and social life."
As it happens, I've started reading the mid-twentieth century British legal historian Theodore F.T. Plucknett's superb volume, A Concise History of the Common Law. Here is something apt from the beginning of the book:
While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognize some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution–and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power.
It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.
The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine. [citing C.H. Turner, Cambridge Mediaeval History]
Indeed, while the organization of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life. Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy. [4-5]
Thursday, May 22, 2014
On June 20, the Center for Law and Religion will co-host a conference, “International Religious Freedom and the Global Clash of Values,” at the Libera Università Maria SS. Assunta in Rome. The conference will bring together American and European scholars and officials; proceedings will be in English and Italian with simultaneous translation. Panels will include “Comparative Perspectives on International Religious Freedom,” “Christian and Muslim Perspectives on International Religious Freedom,” and “The Politics of International Religious Freedom.” Participants will include Abdullahi An-Na’im, Pasquale Annicchino, Heiner Bielefeldt, Giuseppe Dalla Torre, Thomas Farr, Ken Hackett, Monica Lugato, Francisca Pérez-Madrid, Olivier Roy, Nina Shea, Marco Ventura, John Witte, and Roberto Zaccaria.
For details and information about registration, please click here.
For a chapter in a book on the insanity defense, I'm doing a little research on the history of insanity as a phenomenon relevant to criminality. So far I've found plenty of discussion of 19th century developments. But what I'd really like are primary sources that predate the 18th and 19th centuries (setting to the side sources like Coke, Hale, and Blackstone) or secondary sources that discuss a discrete pre-19th century period. And in particular, if there are writings by Catholic thinkers related to the subject even tangentially, I'd very much like to read them. Any suggestions? [please write to me off line].
Thursday, May 15, 2014
The past few days have seen many criticisms from academic quarters of the Supreme Court's reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.
True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz's phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions is empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications means that equality and neutrality are empty or a fraud. Because, like Rick, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice's historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.
Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.
In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:
[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.
The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.
The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”
In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.
Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:
Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.
And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.
The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.
Thursday, May 8, 2014
One last expository post on Town of Greece v. Galloway, this one on Justice Thomas's concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas's concurrence.
The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas's view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause's incorporation was simply assumed, wrongly and without argument, in the Everson case.
Some discomfited attention is being paid to Justice Thomas's statement that "[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion." How could he only say "probably"?! There is an explanation, albeit one that depends on coming at the issue from the angle of the concurrence. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian Donald Drakeman. One of the primary claims in Drakeman's book is that there is enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)--uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause's historical meaning. Here is Drakeman at 260 (the portion of his book cited by Justice Thomas):
The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a "national religion." The First Amendment thus succeeded in turning the hotly contested subject of church-state relations--which had already caused legislative battles in the states and would continue to do so virtually in perpetuity--into a "milk and water" amendment by focusing on the one thing no one wanted and everyone could unite against: a "Church of the United States." There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.
Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it--as a federalism provision--then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements.
Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is "coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Note that here there is a kind of unity with Justice Scalia's view of the scope of protection afforded by the Free Exercise Clause. This "actual legal coercion" test--which the Justices distinguish from a "subtle coercive pressures" test (see Lee v. Weisman) involves the exercise of government power "in order to exact financial support of the church, compel religious observance, or control religious doctrine." It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy's opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).
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