“First Amendment Traditionalism”

That’s this new paper, which I’ve just posted, and accompanies this earlier paper discussing the nature of traditionalist interpretation. Here’s the abstract of the newer piece (comments welcome):

“Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This essay probes traditionalism’s conceptual and normative foundations. It focuses on the Supreme Court’s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the essay identifies and describes traditionalism in some of the Court’s Speech and Religion Clause jurisprudence, highlighting its salience in the Court’s recent Establishment Clause doctrine.

Part II develops two justifications for traditionalism: “interpretive” and “democratic-populist.” The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed them practices with political legitimacy. Courts owe the people’s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.

In Part III, this essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism’s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant “expected applications.” It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about “expected applications,” but in making decisions about retrospective applications—drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the essay investigates the connection between so-called “original law” theories of originalism and traditionalism. Original law theorists argue that originalism is “our law” as a sociological and cultural fact. But traditionalism may be more “our law” than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this essay takes no position), then it may support traditionalism as much as originalism.”

Movsesian at The King’s College

While Marc went north to Skidmore, I traveled to lower Manhattan today, to deliver the annual Constitution Day Address at The King’s College. Excellent questions from the students. Thanks for having me!

Lecture at Skidmore College on “The Supreme Court’s New Traditionalism”

I am up in lovely and bucolic Saratoga Springs at Skidmore College to deliver a lecture on “The Supreme Court’s New Traditionalism.” The talk lays out some general views on constitutional theory and then discusses an approach to constitutional interpretation that I have been developing in this paper and another paper forthcoming in short order.

Center Hosts Conversation on Church and State at SCOTUS

L-R: Marc DeGirolami, Kyle Duncan, Richard Sullivan, Mark Movsesian

Last week, the Center hosted a conversation on church-and-state issues before the US Supreme Court with federal appeals court judges Kyle Duncan (5th Circuit) and Richard Sullivan (2nd Circuit). The two newly-appointed judges discussed legislative prayer; public religious displays; the conflict between anti-discrimination laws and religious freedom; and state aid to religious schools. Here’s a write-up of the event from the Law School webpage.

Movsesian at The King’s College Next Month

Next month, I’ll give the annual Constitution Day Address at The King’s College in New York, on Masterpiece Cakeshop and the future of religious freedom in the United States. Details about the event, to take place on September 19, are here. Forum readers in New York, please stop by to say hello!

Movsesian on Wilken on Religious Freedom

In this week’s University Bookman, I have a review of Robert Louis Wilken’s new book on Christianity and religious freedom, Liberty in the Things of God. Here’s a sample:

Wilken writes lucidly and persuasively, and his basic point is correct. Religious freedom is not a concept foreign to Christian thought, and its place as a pillar of Western civilization owes much to Christian sources. Of course, one should not exaggerate. It’s fair to say that religious freedom, as it developed in the West, is one Christian approach to the question, but not the onlyChristian approach. As the examples of Augustine, Aquinas, and Calvin show, there are strains in the Christian tradition that would oppose religious freedom, at least as we understand the concept today. The dualist nature of Christian politics, which insists that Christians owe duties simultaneously to God and to the state, but that Christ is Lord of all, makes easy conclusions about the Christian approach to church-state relations impossible.

The full review is available here.

At the Hertog Foundation today

I’m delighted to be a guest today at the Hertog Foundation in Washington, DC, where I’m speaking at a class for college students and graduates taught by Adam White on “The Constitution, the Courts, and Conservatism.” Professor Randy Barnett, Judge Neomi Rao, and Ilya Shapiro of the Cato Institute are among the other speakers. I’ll be speaking about some of my work on traditionalism in constitutional interpretation.

Movsesian on Masterpiece Cakeshop

For those who are interested, the Harvard Journal of Law and Public Policy has published my article, Masterpiece Cakeshop and the Future of Religious Freedom, in the most recent issue. Here’s the abstract:

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.

Readers can also download the article from the SSRN website, here.

2019 Annual Review

Here’s our annual review of Center activities for the past academic year, including Part III of the Tradition Project in Rome–with a keynote from Justice Samuel A. Alito; the fourth biennial Colloquium in Law and Religion, a new podcast series, and more. Check it out!

On the Cross

I have an essay about the Bladensburg Cross case at Public Discourse, where I isolate the holding (and wonder about whether there is actually a broader holding in the case), discuss the case’s implications for future religious displays, and speculate about the dynamics on the Supreme Court and elsewhere respecting these issues. A bit:

“The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.”

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