The Ideological Fragmentation of Public Law

I am recently back from the annual AALS meeting, during which I attended some of the offerings of the annual “shadow” Federalist Society Conference as well. Both meetings had several worthwhile programs. One of the most interesting features of both conferences was the extent to which political and ideological fragmentation has become more ordinary and prevalent in public law disciplines. I found this to be quite comforting. In this post, I want to explain why, and to describe some of what I saw at the two conferences in this respect. But first, some thoughts on law and religion as a discipline today.

For some time now, I have believed that the political and ideological divides among legal academics in the law and religion field have been growing. They have now reached cavernous dimensions. Paul Horwitz argues in this (superb) piece that law and religion scholars have been in a state of general consensus about free exercise/accommodation issues until extremely recently, but I see things a little differently. The disagreements about free exercise have been manifest at least since I have been studying and writing in the area–about a decade now and probably longer than that. But Paul is right that they have increased dramatically even within that period.

Paul is also right that there was a period of such consensus. But it was a much earlier time. It was the period when, for example, giants including Kent Greenawalt and Doug Laycock and Vince Blasi and Jesse Choper came of scholarly age, the period when Leo Pfeffer’s views were dominant in this area, and only a few outliers arguing for non-preferentialism like James O’Neill existed. One could be a liberal nel vecchio stile and with great complaisance in those days, but still support exotic religions (traditional Christian religions were never really on the agenda), confident in the view that the “great minds” of the past—Jefferson and Madison (Marshall, Adams, and so many others were rarely mentioned)—were on board in spirit. One bought one’s bona fides to argue for relatively expansive free exercise protections (it was the ‘60s and ‘70s, and people should be free to follow their stars and make themselves into whatever they wanted) with iron separationism when it came to establishment. But the bottom line was that one’s Establishment Clause views always drove the boat then, as, it seems to me, they do now. Free exercise in that period was an afterthought—a concession to the unusual and the strange. Sort of like the way many discuss the nature of excuses in criminal law. One is excused for one’s conduct because, notwithstanding its wrongfulness, one makes a concession to human weakness by allowing that one is not blameworthy for that conduct. That’s how religion was perceived—as basically somewhere between odd and wrongful, but not culpable, and therefore excusable conduct which should be accommodated where possible for those in need of such ministrations.

That period is dead. It has been dead since long before Paul or I started writing about these matters. For those who followed in the wake of the liberal consensus, what happened was—again, beginning from an ever-hardening view of what the Establishment Clause demanded—the end of the ‘60s and ‘70s with its taste for exoticism and weird pluralism. In its place arrived a new zest for notions of equality, nondiscrimination, leveling, and so on. To argue for “pluralism” full stop and for its own sake today is something of an anachronism (this comes through nicely in the column Paul reacts to today by Frank Bruni). Exactly what is there of worth about pluralism as an intrinsic good? In the interim from then to now, sexual equalities of various sorts have gone mainstream (they were not so when the earlier consensus reigned; at least one liberal law and religion scholar of the ancien regime only began to support gay marriage in the last decade or so). Equalities of other kinds have taken center stage.

The illusion of consensus could be maintained, for a time at least, but only until the new egalitarian mandarins were challenged. Those challenges have come in the abortion context and other substantive due process areas. With some exceptions, the challenges have largely failed. But they had never come from the religion clauses proper (or their statutory analogues). Now they have. And they have made manifest the instability of the former consensus and the fact of its breakdown over many years. To invoke religious freedom is no longer to appeal to a commonly recognized constitutional freedom; it is to whistle to your favorite mangy dog.

The consequence today is that increasingly, law and religion scholars share far less common ground than they did 40 years ago. Outside their own political/ideological constituency, they have much more work to do to convince one another of their arguments. Indeed, the fact that some scholars squarely within the liberal consensus are now felt to be raving right-wingers is itself a marker of the fragmentation and polarization of the legal academy. Doug Laycock may be many wonderful and admirable things; but conservative is not one of them. These movements within (and also outside) the legal academy sometimes–perhaps oftentimes—make it feel like legal scholars have less and less to say to one another. On occasion, I have felt this to be an unfortunate feature of law and religion scholarship–exhausting and depressing. More work feels political; less work feels scholarly; and so it goes. One begins to long for other sorts of work.

But the panels that I attended last week at the AALS and Federalist Society Conferences began to persuade me of two things. First, ideological fracture is a more general development in public law in the legal academy. Second, that fracture–and all that it brings–has positive as well as negative features.

On the first issue, on subjects ranging from administrative law to statutory interpretation to executive non-enforcement of the law, and even to the closer-to-home issue of public reason and religious expression, the ideological divides among legal academics are enormous. The panel on administrative law I attended ran the gamut from those supremely invested in the administrative law machine to those supremely invested in destroying it. I don’t know enough about the sociology of administrative law scholarship, but it would surprise me if administrative law panels of the distant past would have represented such a gigantic diversity of views. The tenor of the discussion was less in the nature of a conversation and more about what is ‘mainstream’ scholarship, and why it might be mainstream, with associated commentary about who on the panel could or could not be confirmable to the United States Supreme Court (which is not to say that the discussion was not civil…it certainly was).

As for statutory interpretation, the superb lunchtime debate on the new statutory challenge to Obamacare persuaded me that King v. Burwell may do to the study of statutory interpretation what Hobby Lobby v. Burwell did to the study of religious accommodation. Textualism and intentionalism are taking on more and more distinctively partisan flavoring, and this will almost certainly reach a sort of climax if textualism takes down the PPACA (footnote: this is a little odd, of course, for those intentionalists out there who don’t toe the progressive political party line, but it worried some statutory interpretation people I know nonetheless).

Perhaps my favorite example concerned a point made by some of the panelists concerning executive non-enforcement of the law: the political valence of non-enforcement, they claimed, seemed a more natural fit for conservative than progressive politics. I’m not sure that is true, though I suppose it might be true if one substitutes “libertarian” for “conservative.” But the explicitly political register in which the subject was being debated drove the point home again. Public law is deeply riven ideologically.

A final example. The AALS sections on Jewish and Muslim law co-sponsored a session on religious reasons in political decisionmaking—that old chestnut, religion in the public square. What was striking to me was that the panel was composed of folks who discussed the perspectives of particular religious traditions on the subject. Jewish, Muslim, and Catholic perspectives, together with a Rawlsian perspective. If you went back 20-30 years ago, and attended an AALS panel on religion in the public square, would you see this composition? Almost certainly not. You would instead see a panel of scholars conversant in, if not wedded to, Rawls’s view of the matter. You would see a panel of philosophers or philosophically inclined scholars discussing the nuances of “public reason.” Of course, you still see such panels in many places. But the fact that this AALS panel was not so constituted—the fact that it was instead constituted by a broad array of very diverse political and religious perspectives—was quite an interesting development.

I have already suggested why the ideological fracture of public law might be a bad thing. There is simply less common ground between members of the academy; discussion is more exhausting; everything feels more political; more feels less scholarly.

But there are advantages too. For one thing, it is almost certainly true that there is simply a broader range of perspectives in public law at this moment than there was 30 or 50 years ago. Breadth of perspective might or might not be a good thing, but I tend to think that if the reasons for narrowness of perspective result from a kind of artificial exclusion of views (intentional or not), then the inclusion of a greater range of viewpoints is positive. It may also be the case that with greater variety of viewpoints comes greater precision in identifying exactly where one stands, as one’s opinions come to be challenged from all sorts of angles that were previously hidden from view.

Positive or negative, though, it seems that these developments are here to stay: the ideological fragmentation of public law–at least in many fields–within the legal academy is very much with us.

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