I found this piece by Frank Bruni in Saturday's New York Times to be interesting in several respects. One of Bruni's claims is that we have not yet really tried to explain the various character flaws and other personality quirks that we (by which I mean the Times writers) see in Mitt Romney by reference to his religious background. It is important that we do this, says Bruni. So, for example, we should try to understand Romney's "muffled soul" by engaging in some extended religious psychology about Mormonism. Here's a bit from Bruni:
One longtime Republican strategist I talked with predicted that Gingrich would broach Romney’s Mormonism yet, with the aim of mobilizing the Mormon-wary evangelicals who vote in southern primaries on March 6, “Super Tuesday.”
That’s a regrettable motive. But there are valid reasons for the rest of us to home in on Romney’s religion, not in terms of its historical eccentricities but in terms of its cultural, psychological and emotional imprint on him.
His aloofness, guardedness and sporadic defensiveness: are these entwined with the experience of belonging to a minority tribe that has often been maligned and has operated in secret? Do his stamina and resilience as a candidate reflect his years of Mormon missionary work in France, during which he learned not to be daunted in the face of so much resistance that he won a mere 10 to 20 converts . . . .
And what of his sometimes huffy expectation that voters accept his current stances against abortion and gun control, to name two flips, and stop fussing over so many contrary positions in the past? Does that track with Mormonism’s blithe reluctance, according to its critics, to explain controversial tenets that it has jettisoned, like a ban on black clergy members that was in place until 1978?
I've noted before that I am increasingly skeptical that encouraging the drawing of these connections is worthwhile -- that the rhetoric of "talking" about religion in these contexts is at all helpful. Bruni's column does little to dissuade me from that view. Just as it would be inappropriate to understand, say, Secretary of HHS Kathleen Sebelius's decisions to do away with conscience protections on the ground that she is a lapsed Catholic with a deep-seated animus toward the Catholic Church based on some strategically chosen anecdotes about her early upbringing which, it is claimed, illuminate her "muffled soul" for the voting public to see in its full journalistic nakedness, and to draw a general connection between lapsed Catholics and support for the HHS mandate, so, too, ought it be inappropriate in this case.
More generally, though, this is precisely the sort of low-level partisan psychologizing that we are likely to get by imagining that we can explain personality flaws on the basis of religious association. Aloofness? Well, sure, that's a Mormon trait. Opportunistic waffling on the issues, coupled with inexplicable indignation? Yes, Mormons do that. It's part of their psychology, you see. And if you pay attention closely enough, we the press will bare a person's soul to you. We will explain them to you by recourse to their religious commitments, all the while reinforcing our (and, now, your) suspicions about them. I think this is a mistake, but perhaps one which ought to have been predictable to those who advocate greater public discourse about religion. To be clear, I am proud to be part of that group. But increasingly I see definite costs to that approach, too.
Wednesday, February 1, 2012
Today is the 460th anniversary of Sir Edward Coke's birth. Coke is widely known in part for his role in the prosecution of the Gunpowder Plot. But Coke was also an astute student of the law. Here's a memorable passage from Coke's report of Bonham's Case, which involved the question whether a London physician could be prevented from practicing medicine and imprisoned pursuant to the newly formed charter of the Royal College of Physicians -- and later ratified by an act of Parliament -- which altered the common law practice. The "censors" of the College had acted as both party and judge in the case, contravening the ancient rule. As those more learned than I have observed, Bonham's Case has almost nothing to do with the contemporary power of judicial review and everything to do with the power of the common law to control the unfettered will of decision-makers -- to restrain the rule of men by the common law, not to unleash it:
The censors cannot be judges, ministers, and parties . . . . And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.
Sunday, January 29, 2012
When Employment Division v. Smith was decided, it had committed opponents and supporters. Opponents claimed that it represented the end of free exercise; supporters argued that at long last, the Court adopted an appropriately equal, predictable, and univocal principle of free exercise which limited the scope of its political interventions. There was disagreement about the wisdom of Smith (including in Congress, which reacted negatively to Smith with some statutes), but few doubted that Smith was a very big deal for constitutional religious liberty.
The informed readership at MOJ of course knows that Smith carved out various exceptions to the rule that neutral laws of general application are constitutional. The first exception dealt with the idea of hybrid rights. The idea was that a less than independently viable free exercise claim, when coupled with another constitutional right of uncertain strength, would become viable. Lower courts have adopted various interpretations of this exception: some have treated it as non-binding dicta, while others have tried to operationalize it in various ways. The second exception has proved to be far more important: where the law at issue is not truly a law of general application -- where a system of individualized assessments with respect to exemption from the law has been adopted -- then the law is again subject to strict scrutiny. I've looked into the question of how much, and how often, lower courts are using this exception (and I also inquired a bit about the extent to which litigants are using it). It turns out...a whole lot. Indeed, the latest example of the application of the individual assessment exception appears in a case just decided in the Sixth Circuit, where Judge Sutton held that a student who was dismissed from a counseling program because she refused on religious grounds to counsel homosexual couples and non-married couples could proceed with her claim. The court held that the school's "no referral to other counselors" policy was not one of general application, because referrals for secular reasons had been permitted. For more on the case, see this item. You might wonder just how powerful the individualized assessment exception is...you will have to wait for my book to see just how much!
The third exception carved out by Smith was for the church autonomy cases, and at one time it was not clear whether the ministerial exception would fall into that exception. In Hosanna-Tabor, the Court made clear that it did. And now (courtesy of the excellent Professor Friedman at Religion Clause blog), it seems that the South Dakota Supreme Court has extended Hosanna-Tabor to apply outside the employment context to a case about the potential dissolution of a particular religious group. It is too early to tell what will happen...but...it may be that because of Hosanna-Tabor's uncertain scope, lower courts (state and federal) will extend it in unexpected directions -- and directions which differ one from another.
If this does happen, I think we may witness (in conjunction with the continuing expansion and complication of some of the other exceptions) the taming of Employment Division v. Smith. Smith will not be overruled, but it may be substantially chipped away in various ways. And so what appeared once -- to opponents and supporters alike -- to be a rule of iron predictability, will in fact become something very different.
Thursday, January 26, 2012
One of the great pleasures of teaching multiple courses is to see the many threads that connect them. This is not to say that law is a seamless web. It isn't. But there are twisting and turning concatenations. This is happening for me this semester with criminal law and constitutional law. One little example is that my view of the congressional delegation to the US Sentencing Commission in Mistretta is colored by the knowledge that the Sentencing Reform Act contains a panoply of justifications of punishment -- and so my first reaction after reading the case was to wonder whether a group of folks with no electoral accountability and no obvious constitutional warrant should be charged with the eminently political task of balancing conflicting theories of punishment that will bind the rest of us.
I spotted another perhaps more macrocosmic crossover in this column by Adam Gopnik, which discusses some of the claims by the late Professor William Stuntz in his book, The Collapse of the American Criminal Justice System. The argument in Gopnik's piece, which he attributes to Stuntz, that especially interested me was this. In searching for a reason why the United States incarcerates more people than other Western European countries, Gopnik writes that Stuntz traces the problem:
all the way to the Bill of Rights. In a society where Constitution worship is a requisite on right and left alike, Stuntz startlingly suggests that the Bill of Rights is a terrible document with which to start a justice system -- much inferior to the exactly contemporary French Declaration of the Rights of Man....
The trouble with the Bill of Rights, he argues, is that it emphasizes process and procedure rather than principles. The Declaration of the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of announcing general principles -- no one should be accused of something that wasn't a crime when he did it; cruel punishments are always wrong; the goal of justice is, above all, that justice be done -- it talks procedurally. You can't search someone without a reason; you can't accuse him without allowing him to see the evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess, where accused criminals get laboriously articulated protection against procedural errors and no protection at all against outrageous and obvious violations of simple justice....
The obsession with due process and the cult of brutal prisons, the argument goes, share an essential impersonality. The more professionalized and procedural a system is, the more insulated we become from its real effects on real people. That's why America is famous both for its process-driven judicial system...and for the harshness and inhumanity of its prisons. Though all industrialized societies started sending more people to prison and fewer to the gallows in the eighteenth century, it was in Enlightenment-inspired America that the taste for long-term, profoundly depersonalized punishment became most aggravated.
It's an interesting piece, and I should mention that I haven't read Professor Stuntz's book. But I'm dubious about at least some of these claims. Some questions about this thesis after the jump.
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