White on Justice Kagan’s Dissent in Town of Greece

Over at the The Weekly Standard, Adam White picks up and expands insightfully on Justice Kagan’s comments about the nature of American citizens’ relation to their government, which I had noted here. I had not known about Teddy Roosevelt’s remarks concerning “hyphenated Americans.” Here’s a bit from Adam’s post:

On the other side of this spectrum, at its far extreme, we find Teddy Roosevelt’s famous criticism of “hyphenated Americans“:

What is true of creed is no less true of nationality. There is no room in this country for hyphenated Americanism. When I refer to hyphenated Americans, I do not refer to naturalized Americans. Some of the very best Americans I have ever known were naturalized Americans, Americans born abroad. But a hyphenated American is not an American at all. This is just as true of the man who puts “native” before the hyphen as of the man who puts German or Irish or English or French before the hyphen. Americanism is a matter of the spirit and of the soul. Our allegiance must be purely to the United States. We must unsparingly condemn any man who holds any other allegiance. But if he is heartily and singly loyal to this Republic, then no matter where he was born, he is just as good an American as any one else.

Roosevelt reiterated a year later, “let us be Americans, nothing else.” Such sentiments find echoes, perhaps distant, in Justice Kagan’s dissent—at least when she urges each American citizen “performs the duties … of citizenship … not as an adherent to one or another religion, but simply as an American.”

These arguments cut across familiar political lines; indeed, I suspect that all of us occasionally harbor thoughts on both sides of the spectrum. Conservatives might today share DeGirolami’s concerns about Kagan’s dissent (and Roosevelt’s concerns about “hyphenated Americans”); but they might also have bristled, just a few years ago, at Justice Sotomayor’s suggestion that as a justice she would benefit especially from “the richness of her experiences.”

And conservatives are not the only ones who likely have seen both sides of these questions. Indeed, note that Justice Sotomayor herself joined Kagan’s dissent, despite the notes strikingly at odds with her own account of how each judge’s own background affects the judge’s work.

These considerations cut across partisan and ideological lines because there is at least a kernel of truth at each extreme. Americans should not stand before their government exclusively as representatives of particular “little platoons.” But it would be just as mistaken to race to the other end of the spectrum and assert that Americans must strip themselves of all prior attachments and experiences before engaging the public arena—leaving us with, in Father Richard John Neuhaus words, a “naked public square.”

I am not saying that Kagan intended to imply that our public square is and ought to be “naked.” Far from it—if anything, I suspect that she was just a little bit too casual with her opinion’s specifics. (In that respect, she would be in good company lately.)

But even if Justice Kagan was just speaking a little too casually, her casual overstatement is an interesting one. Her offhand remark—and DeGirolami’s response—ought to challenge all of us to think more seriously about what citizenship and civic duty truly entails.

Maxey, “The ‘Greatest Problem'”

From Harvard University Press, The “Greatest Problem”: Religion and State Formation in Meiji Japan, by Trent Maxey (Amherst College). The publisher’s description follows:

At its inception in 1868, the modern Japanese state pursued policies and created institutions that lacked a coherent conception of religion. Yet the architects of the modern state pursued an explicit “religious settlement” as they set about designing a constitutional order through the 1880s. As a result, many of the cardinal institutions of the state, particularly the imperial institution, eventually were defined in opposition to religion.

Drawing on an assortment of primary sources, including internal government debates, diplomatic negotiations, and the popular press, Trent E. Maxey documents how the novel category of religion came to be seen as the “greatest problem” by the architects of the modern Japanese state. In Meiji Japan, religion designated a cognitive and social pluralism that resisted direct state control. It also provided the modern state with a means to contain, regulate, and neutralize that plurality.

A New Biography of Bonhoeffer

Charles Marsh has chosen an apt title for his worthwhile new biography of German pastor and theologian Dietrich Bonhoeffer, who died in a Nazi concentration camp in 1945. “Strange Glory” is a reference to a passage in one of Bonhoeffer’s sermons on the nature of God. But the phrase also captures the life of Bonhoeffer himself.

In Marsh’s telling, Bonhoeffer was a bundle of contradictions. A pacifist who condemned all violence, he joined a conspiracy to assassinate Hitler. A neo-orthodox Lutheran who criticized liberal Protestants for their lack of Reformation rigor, he came to champion the very un-Lutheran idea of monasticism as a way to restore the church. By the end of his life, he was talking about the need for a “religionless” Christianity. He was a mystic who liked fine clothes. Marsh jokes that Bonhoeffer was perhaps the only monk ever to be described by his brothers as a sporty dresser. He could be pompous, arrogant, and childish–solitary and a bit of a misfit.

Yet Bonhoeffer was a genuinely beloved pastor who brought comfort to many, including his fellow prisoners. He was an inspiring, charismatic teacher. He saw, earlier and clearer than most, how Hitler was manipulating Christian imagery to evil purposes. Only two days after Hitler became chancellor, Bonhoeffer gave a radio address condemning Hitler’s offer of a twisted narrative of national redemption in place of the Christian message of salvation. As Marsh writes, Bonhoeffer’s “voluble opposition to Hitler was a stirring counterpoint to the compliant rhetoric of most Protestant ministers, paralyzed as they were by a typical Lutheran veneration of the state.”

And he was exceptionally brave. In 1939, he left Germany for a visiting appointment at Union Theological Seminary in New York. He surely could have remained safely in America for the duration of the war. Indeed, he could have enjoyed the life of a celebrity emigre. But his sense of duty made him return to share in the suffering of his people. Once home, through connections, he managed to install himself in military intelligence, and for years he worked as a double agent, pretending to be a German operative while acting as a spy for the resistance. Eventually the Gestapo caught up with him, and he spent the last two years of his life in prisons and a concentration camp, where he was executed a few weeks before the end of the war.

A professor of religious studies, Marsh spends a great deal of time on Bonhoeffer’s theological writings. He also devotes much attention to the exceptionally close relationship Bonhoeffer had with a former student, Eberhard Bethge. Marsh believes Bonhoeffer had sexual feelings for Bethge, but never acknowledged them, much less acted upon them. (Bonhoeffer became engaged to a woman shortly before being arrested). If Marsh is correct, Bethge was the one love of Bonhoeffer’s life. Marsh makes a good case, but the evidence is circumstantial, and I was left wondering whether his interpretation of the relationship isn’t a bit anachronistic.

The Bethge angle is going to receive a lot of attention, I guess, given our current preoccupations, but it really isn’t the heart of the book. Among theologians, Bonhoeffer is known for his idea of “costly” as opposed to “cheap grace.” Costly grace means discipleship and the Cross, an acceptance of suffering in the name of Christ. Bonhoeffer practiced what he preached, at great personal cost. In this, he was a true Christian–and very rare. As for the contradictions in his life, perhaps he would have worked them out in time. When he died, he was not yet forty.

Originalism and Town of Greece v. Galloway

Professor Michael Ramsey has a very good post on the degree to which Justice Kennedy’s opinion for the Court in Town of Greece v. Galloway is (and is not) an originalist opinion. He concludes that it reflects a kind of original expected applications originalism. I have always had more sympathy for original expected applications originalism than most, and the points in favor of using this methodology made by Professor Ramsey seem persuasive to me in this context. At any rate, take note, my Fall ’14 students in Constitutional Theory! A bit from Prof. Ramsey’s fine post:

It’s not (typically for Kennedy) an exclusively originalist opinion, but this is a strong originalist element. My question: is it the right sort of originalism? Answer: yes and no. Kennedy’s principal contention (following Marsh) is that the people who proposed the First Amendment also authorized sectarian legislative prayer, so the Amendment must permit it.

In academic terms, this is a version of “original expected application” – that is, how did the framers of a provision anticipate it affecting existing practices? It is fashionable in academic circles to look down on original expected applications. Under original meaning originalism, the question is: what did the text mean? It’s not, what did some people at the time think it would mean (or, worse, how did some people at the time apply it in practice once it was enacted)? If that’s right, Kennedy is looking in the wrong place – it shouldn’t matter what people thought would happen to legislative prayer, but rather what the text actually meant for legislative prayer.

I share some of this view, but not all of it. So I have some sympathy for Kennedy’s argument. I agree that what ultimately matters is the text, not what particular people (or even everyone) thought of the text. Further, what some people thought of the text may be a poor indicator, because the people cited may have been outliers, or making self-interested arguments. Expected applications must be treated with caution, and doubly so for views expressed after ratification.

At the same time, though, expected applications can be good evidence of what the text actually meant.  The text does not have a platonic meaning apart from what people at the time understood it to mean. If a very broad consensus at the time of enactment (or shortly after) thought that provision X did not ban activity Y, that is surely strong evidence that the original public meaning of X did not ban activity Y. This seems especially true of a phrase (like establishment of religion) that may have been a term of art at the time but whose meaning has become obscured to modern readers. The enacting generation was much closer to the language and substituting our view for theirs seems problematic as a strategy for finding the text’s meaning in their time.

So I think the result in Greece v. Galloway is probably right, for at least some of the reasons Justice Kennedy states. But the analysis remains incomplete. Ultimately, an originalist analysis should tie the original expected application back to an original public meaning of the text (since it’s the latter that is what was enacted). That is, there should be a conclusion as to what the text means (consistent with legislative prayer being constitutional). The Court’s opinion does not make that connection. It’s core conclusion is, whatever the clause means, it must allow legislative prayer. But this does come close to saying that it’s the application, not the text, that matters.

UPDATE: I forgot to note a short, helpful defense of the use of original expected applications originalism in this paper by Professors John McGinnis and Michael Rappaport.