Review of Weiner’s “The Political Constitution”

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. A bit:

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.

More on Motive in Law

A followup to Marc’s post on motive in law. Marc notes that motive remains salient in constitutional law, but not in tort or criminal law. I’d like to add just a couple of points.

First, when it comes to constitutional law, motive is especially important in contemporary Religion Clause jurisprudence. The Lemon test (much-derided, but still extant, in my opinion, even after last term’s Bladensburg Cross case) makes government motive central to Establishment Clause cases. In the Free Exercise context, government motive figures prominently as well. The Masterpiece Cakeshop decision turned almost entirely on the Court’s inferences about the anti-religious motives of Colorado state officials.

Marc wonders why motive should be relevant in constitutional law, when it has lost its relevance in tort law. It’s a good question. Because motive is even more elusive in public law than in private law. Take contract law, for example. Classical contract law disregards a party’s motives for making a contract. It doesn’t matter why someone makes a contract. The only thing that matters is that the person intends to make a contract–or, rather, that an objective observer would understand that the person intends to make a contract. This is so because a party may have several motivations for making a contract: profit, affection, indifference, etc. To try to figure which motive was the most important is a hopeless task.

The problem is even more compounded when it comes to government motive. In contract law, we’re talking about the intentions of two actors. But government actions turn on the decisions of potentially hundreds of actors, all of whom may have multiple motives. The problem of ascertaining motive is even more difficult in this context.

I’m not sure where all this leads. But Marc is right in pointing out the continued relevance of motive in constitutional law, and its continued irrelevance in private law. It’s a puzzle that demands an answer.

A Thought About Motive in the Law

Espinoza v. Montana Department of Revenue is a new and important Supreme Court case scheduled to be argued later this month that concerns whether prohibiting parents from using tax credits for private religious schooling, where the state made the credit available for private religious and non-religious schooling alike, violates the Constitution. After finding that using the credit for religious schools would violate the Montana State Constitution’s Blaine Amendment, the Montana Supreme Court struck down the entire statutory scheme. We’ve got a podcast on the case over here as an introduction to it.

Over at the Volokh Conspiracy, Professor Eugene Volokh asks the question whether the Montana Supreme Court’s decision religiously discriminatory if the program is now completely dead–that is, if all private schools, religious and secular, are prohibited from using the credits. He posts an interesting answer from an attorney at the Institute for Justice that it is, because the motive for striking down the program in its entirety was discriminatory as to religion: “Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go.” There are race discrimination precedents for this sort of reasoning, but also the problematic Palmer v. Thompson that needs to be explained as distinctive with respect to the state of the record.

All of this worthwhile exchange led me to think generally about motive in American law. It strikes me that much of the utilitarian-inflected skepticism about motive’s relevance in criminal law and tort law has barely touched constitutional law at all. Jeremy Bentham’s view in his Introduction to the Principles of Morals Legislation was that the emotions motivating human behavior were unregulable. All that could be done was to punish behavior that actors expected to cause harm. Motivations were basically irrelevant to the law–vestiges of a time when law was unhealthfully saturated with morality. John Austin likewise distinguished between cognitive states and desiderative states in attempting to hive off intention from motive (Lectures on Jurisprudence). And these theorists were major influences on the thought of James Fitzjames Stephen and Oliver Wendell Holmes, Jr., and, later and by extension, people like Herbert Wechsler and William Prosser in their respective disciplines, turning criminal law and tort law decidedly away from an emphasis on motive.

Not at all so for constitutional law, however. Since at least the early twentieth century, motive has played a major (indeed, perhaps *the leading*) role in evaluating the permissibility of various government policies and projects. I suppose the difference can be explained away on the basis that constitutional law concerns the government’s motive, while criminal law and tort law would concern the individual’s motive. But why should we be more or less skeptical about the role of motive in the law depending on whether we are considering government or individual motives? The government is made up of individuals with motives, after all. Perhaps there is a historically specific reason for the focus on motive in constitutional law connected to the gravity of the plight of African Americans and the situation of slavery in American law and history. But there are very grave sorts of crimes and torts as well, and yet many theorists today continue to follow the view that motive ought not to matter in these other areas.

In fact, motive often does matter greatly in criminal law and tort law, as I’ll have occasion to discuss in more depth soon, drawing from a new paper I’ll post. Still, it’s interesting that the “irrelevance of motive” position still has strong adherents in criminal and tort law, but very few in constitutional law.

What Does the Methodist Divide Mean?

Logo of the United Methodist Church

In the past couple of decades, American Protestant churches have suffered divisions on the question of homosexuality, and same-sex marriage in particular. Conservative congregations and dioceses have seceded from progressive national bodies, which has led, in some cases, to acrimonious, high-profile litigation over church finances and property. For lawyers and scholars who study law-and-religion, these disputes raise complicated and interesting legal questions. For the litigants, they are often emotional and painful conflicts–divorces, really–that leave everyone, winners and losers, worse off.

It seems that the United Methodist Church (UMC), America’s second-largest Protestant denomination, will not be able to avoid a split over LGBT issues. The Methodists may, however, avoid litigation. This week, a group of church leaders announced a plan for the dissolution of the worldwide church that would allow conservative congregations and conferences to leave the main body and join a new conservative denomination. Under the proposal, the UMC would give the new denomination $25 million and allow departing congregations to keep their property, and departing clergy, their pensions. The UMC seems likely to approve the plan at its next general conference in May.

Observers believe that most American Methodist congregations, which support same-sex marriage, will stick with the main body. But the UMC is a global entity, and, worldwide, the opposite may be the case. In a post at Juicy Ecumenism, Mark Tooley observes that the majority of Methodists today live in Africa, where the church is growing. African Methodists are quite conservative on LGBT and other issues. As a global matter, then, the large majority of Methodists may end up in the new, conservative denomination. If that is the case, Methodism will reflect the same dynamic that exists in Christianity worldwide: growth in conservative churches in the developing world, decline in progressive churches in the developed world. Another sign that Christianity’s center of gravity may be shifting from the global North to the global South.

On Blue Laws

Here is something interesting from a book I’m reviewing now by Professor Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy, which takes Justice Felix Frankfurter’s later views of constitutional jurisprudence as in some respects a model for today. Here, Weiner discusses Frankfurter’s view of the Blue Laws, which forbade a wide range of commercial activities on Sunday in order to recognize the sabbath day for Christians, in a famous case called McGowan v. Maryland (1961). The Court upheld these laws for a rather peculiar reason: that “the record is barren” of reasons to *disprove* that forbidding the sales of certain products on Sunday does not contribute to the rationalized well-being of the citizenry.

Justice Frankfurter concurred. Here is a bit from the book with some material from the Frankfurter opinion quoted:

The effect of the law was to set Sundays apart as ‘a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous values for life.’ Perhaps most important, rather than seeing the case as one pitting lone objectors against the state, Frankfurter recognized the individual’s situation in the context of a political community whose ‘spirit…expresses in goodly measure the heritage which links it to its past’ and which could reasonably decide to create an ‘atmosphere of general repose’ that would be disrupted by exempting individuals from the law.

In other words, the majority of the community was entitled to impose regulations that created what it regarded as conditions for living a good life, which included leisure, community interaction, and, yes, a particular convenience for members of the dominant religion….The religious heritage of blue laws was part of the traditions of a community, which could not regard itself as existing simply in the here and now. (97-98)

I’ll have more to say about the book, and claims like the one above, soon.

On the Armenian Genocide Resolution

On the First Things website, I have an essay on Lindsey Graham’s decision earlier this month to block a Senate measure commemorating the Armenian Genocide of 1915, and how his decision threatens Christians who live in the Middle East today. Senator Graham’s decision was inexplicable, I wrote, given what he has said about Turkey’s aggression in Syria, which has revived ISIS and led to new attacks on Christians, including one that killed a Catholic priest:

What is one to make of Senator Graham? He has expressed outrage at Turkey’s invasion of Syria. He recently suggested that NATO should expel Turkey for threatening the Kurdish militias who helped destroy ISIS. But his comments and his vote to block the Genocide resolution will only embolden Turkey and threaten the region’s Christians even more. Turkey does not see ISIS as a terrible problem and would happily accept the group’s revival, if that means injuring the Syrian Kurds. 

That local Christians like Fr. Bidoyan will pay the price for the revival of ISIS is, to put it mildly, not a difficulty for Turkey. What difference would it make? In 100 years, people like Graham will suggest the suffering was all a fantasy, anyway. It won’t be the Armenian Christians who died in 1915 who will pay for Graham’s actions. It will be the dwindling and threatened Christian minority in the Middle East today.  

Graham now says he was complying with requests from White House staff, who did not want to scuttle negotiations with Turkey over the placement of a Russian missile-defense system. If that was his reason, he should have said so, rather than accuse the resolution’s supporters of trying to “sugercoat” history. Graham says this was a one-off and he will not oppose the resolution in the future. So now the White House has reached out to other GOP senators to do the same thing. Stay tuned.

On “Social Crusading”

On Thursday, I’m delighted to be participating with Professor Bob Nagel, on a panel, moderated by Prof. Matt Franck, on Professor Keith Whittington’s new book, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present (2019). The event gives me a chance to return to see my old friends at the James Madison Program at Princeton University, where I spent a delightful and productive spring as a visiting fellow.

The book provides detailed empirical support for the proposition that the Supreme Court, far more often than not (at a rate of about 3:1), upholds congressional statutes than it strikes them down. Whittington extends, but also modifies and enriches, the thesis proposed by Robert Dahl, Mark Graber, and Barry Friedman, among others, that the Court is fundamentally a political institution that very often operates in accord with the other political branches. The counter-majoritarian difficulty famously discussed by Alexander Bickel, in Whittington’s hands (and as one of my exceptional students, Joe Brandt, put it in our Constitutional Theory seminar this fall), becomes a majoritarian difficulty.

I’ll have more to say about the book later, but for the moment I want to call a little attention to a small, but interesting, line in the book discussing Reynolds v. United States (1878), where the Supreme Court upheld the federal Morrill Anti-Bigamy Act against a constitutional challenge by the LDS community on the ground that the Act violated its religious freedom. Polygamy was church practice at the time. Whittington counts this as an example right in line with his general thesis, and I think he is right about that.

But he describes the case in these terms:

“As Congress embarked on new social crusades, the Court stood aside. The Republican Party denounced the polygamy practiced by the Mormons in the West as equally barbaric as the slavery practiced by the slavocracy in the South. When the postbellum Congress turned its attention to bringing the Church of Jesus Christ of Latter-day Saints to heel, the Court gave it a free hand.” (170)

It may be a small point, but to describe the Congress as “embark[ing] on new social crusades” by enacting this legislation seems to me not quite right. If anyone was embarking on new social crusades, it was the religious organization, not Congress. I mean that entirely descriptively. Laws against bigamy and polygamy were nothing new in the late 19th century. Indeed, I should think that they would have been regarded as perfectly ordinary and unremarkable, and that is exactly how the Supreme Court regarded them in Reynolds: “At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.” Enforcing long-standing social understandings by law against novel social arrangements is not social crusading. Quite the opposite.

But perhaps this difference of perspective illustrates a broader point about these sorts of descriptions. What we characterize as “social” or “moral” “crusading” (somehow, crusading has taken on unequivocally negative connotations…tant pis) will depend upon a baseline of what we value in existing social conditions and what we deem ordinary legislation to protect those conditions. “Moral” or “social crusading,” then, doesn’t seem to have much meaning beyond something like, “pursuing moral or social objectives I think illegitimate.” If that’s what it means, maybe we should just argue about those first-order disagreements directly (“which morality is best?”), rather than present those disagreements in second-order dismissals (“stop imposing your morality on me!”).

Laicite in Quebec

Je Me Souviens?

When profoundly Catholic societies go off religion, they really go off religion. Religion doesn’t become simply a matter of indifference; people seem to feel they must uproot religion entirely from public life, in order to compensate for and distance themselves from the benighted ways of the past.

Societies need some common identity to bind them, though, and when shared religion is no longer an option, they substitute other things. In a First Things essay this week (“Canada Divided Against Itself”), David Koyzis observes this dynamic at work in Quebec. Once a famously Catholic place, he says, since the Quiet Revolution of the 1960s, Quebec has become an overwhelmingly secular society. (Strangely, they have kept a very Catholic-looking flag (above)). The province’s motto may be “Je me souviens,” but the Quebecois are trying to forget all about their religious tradition. What unites the province today, he says, is not Catholicism, but Quebecois national identity:

Ironically, despite the secularizing impact of the Quiet Revolution, Québec has not abandoned religious faith; it has simply redirected that faith toward a state-centered nationalism, around which the province’s main parties are largely united. What was once a French Canadian nationalism bent on defending a Catholic society whose traditions harked back to pre-revolutionary France has become Québec nationalism, which looks to the state to protect the province’s linguistic majority in a sea of English-speaking jurisdictions. If protecting this majority comes at the expense of minority interests within the province, then so be it.

As evidence, Koyzis adduces a new law that prohibits public employees from wearing religious symbols–crucifixes, kippas, hijabs–while on the job. The idea, he says, is to encourage the Quebecois to think of themselves, not as members of distinct religious communities, but simply as Quebecois. This is the same reasoning behind the ban on burkas in public places, and the ban on “conspicuous” religious symbols in public schools, in France.

Koyzis says that the forceful laicite of Quebec is in tension with the multiculturalism that animates Canadian public life outside the province. I don’t know enough about Canada to evaluate that argument. But his point about nationalism as a substitute for religion seems sound. You can read the whole piece here.

Is American Christianity in Decline?

In his column in last week’s Times, the always interesting Ross Douthat sifts through recent data on the decline of Christianity in the United States. It’s true, he writes, that the percentage of people declaring themselves Christian is declining, and that the percentage of Americans who tell pollsters they have “no religion” is increasing. But that doesn’t indicate an across-the board decline in Christian belief and practice. Seriously committed Christians remain so. It’s the nominal, weakly committed Christians who are leaving the churches:

The relative stability of the Gallup data fits with analysis offered by the sociologists Landon Schnabel and Sean Bock in a 2017 paper, “The Persistent and Exceptional Intensity of American Religion.” Drawing on the General Social Survey, they argued that the recent decline of institutional religion is entirely a function of the formerly weakly affiliated ceasing to identify with religious bodies entirely; for the strongly affiliated (just over a third of the American population), the trend between 1990 and the present is a flat line, their numbers neither growing nor collapsing but holding steady across an era of supposedly dramatic religious change.

That resilience should not be entirely comforting for Christian churches, since both their everyday work and their cultural influence depends on reaching beyond their core adherents, and inspiring a mix of sympathy and interest among people who aren’t at worship every week. Indeed, combining an enduring core of belief with a general falling-away could make the Christian position permanently embattled, tempting the pious to paranoia and misguided alliances while the wider culture becomes more anticlerical, more like 19th-century secular liberalism in its desire to batter down the redoubts of traditional belief.

But for now that resilience also puts some limits on how successfully anti-Christian policies can be pursued, how easily religious conservatism can be marginalized within the conservative coalition (not easily) and how completely the liberal coalition can be secularized — not completely at all, so long as its base remains heavily African-American and Hispanic. (The tragic racial polarization of American Christianity, in this sense, may have one positive effect: preventing a complete polarization of our politics between Christian and post-Christian coalitions.)

Douthat is right about this. As I’ve written elsewhere, the real story in American religion is its increasing polarization. The middle is dropping out in favor of extremes on either end: the Nones and the Traditionally Religious. Whether the departure of the Laodecians from America’s churches will be on the whole a good thing, for the churches and the society at large, remains to be seen.

The Standing Argument in the New Abortion Case

In our latest Legal Spirits podcast, Mark and I discuss June Medical Services v. Gee, the latest case about abortion picked up by the Supreme Court. This is a 5th Circuit case reviewing a Louisiana law requiring doctors to obtain admitting privileges at area hospitals in order to continue performing abortions at clinics. The 5th Circuit upheld the law, distinguishing a facially similar law in Texas that the Supreme Court struck down three years ago by a vote of 5-3 in Whole Woman’s Health v. Hellerstedt. In the podcast, Mark and chat about the lower court opinion, the petition, and the cross-petition.

I want to say just a little more in this post about the cross-petition, which advances an argument about standing–the constitutional requirement that a claimant allege a concrete and particularized injury that was caused by the defendant and can be redressed by the Court. One widely recognized rule of standing–a “prudential” rule rather than a constitutionally compelled rule (meaning that Congress could, if it wished, legislate around the prudential doctrine)–is that one cannot assert claims on behalf of other parties; that is, so-called “third party standing” or jus tertii is generally impermissible. There are exceptions to the rule. For example, a parent may assert a claim on behalf of a child. But in the main, third party standing has been rejected by the Court as adequate.

One of the exceptions to the third party standing prohibition was carved out by the Court in 1976, after Roe v. Wade, in a case called Singleton v. Wulff. In Wulff, the Court held that two Missouri physicians had standing to challenge a law excluding abortions that were not “medically indicated” for purposes of Medicaid coverage. A majority of the Court found adequate standing for the doctors themselves because of the financial consequences they might face in the absence of Medicaid coverage. But a plurality of the Court went further: in an opinion by Justice Blackmun, it held that physicians have the right to assert third party standing on behalf of women whose rights may be affected by a particular law because it thought that the interests of physicians and their patients in the abortion context are “inextricably bound up” and thus there exists a “close relationship” between them, that doctors are “effective advocates” for their patients, and that women may not be effective advocates of their own rights in this area.

The Gee cross-petition takes aim at this plurality holding in Wulff. Citing Justice Thomas’s dissenting opinion in Whole Woman’s Health (which only he signed), it argues that the Court should revisit the third party standing rule of Wulff and that the interests of women and physicians are actually adverse in this case (it claims that many of the doctors simply do not want to obtain admitting privileges, which would enhance patient safety). It also argues that because the issue of prudential third party standing was not explicitly raised below, the physicians have waived that standing, while the physicians say that it is the state that has waived its right to object to third party standing.

As we discuss in the podcast, there is also an amicus brief in the case submitted by Senator Josh Hawley of Missouri, a former clerk of Chief Justice John Roberts. It argues that the effect of this third party standing rule is to give physicians a heightened standard of review that they would not ordinarily get if they were asserting their own injuries. On their own, the law would be reviewed for a rational basis, but through third party standing, it is now reviewed under the higher undue burden standard of Planned Parenthood v. Casey. And it also argues that even if the physicians are granted third party standing, they cannot satisfy the undue burden standard as fleshed out by Casey and WWH because they cannot show that the statute affects a “large fraction of women,” which is the language used in the cases.

The Court could certainly use this case as a chance either to rethink or to rein in the Wulff rule. Option A: it could revisit the rule altogether and reject the plurality portion of the Wulff rule. Option B: it could narrow the Wulff rule to situations in which there is evidence that a “large fraction of women” might be affected by the legislation in question, and that there is insufficient evidence in Gee. Note that rejecting the third party standing rule altogether would abrogate that part of Whole Woman’s Health concerning standing (doctors brought the challenge there too), while the remainder of the “law” of WWH would remain in effect. Probably there are other possibilities. But resolving the case on the basis of third party standing doctrine might give the Court a way to chip away at existing abortion law without going directly after the likes of Casey. “They’ve narrowed Singleton v. Wulff!!” just doesn’t have the same sky-is-falling quality for abortion rights supporters that a more direct attack might. Going in this direction would also track some of the skepticism with which some members of the Court view its broader standing doctrines (see, for example, Justice Gorsuch’s views on standing in the Bladensburg Cross opinion).

It will be interesting to see just what the Court does with the standing claim. Stay tuned. And for more on the case generally (including some speculation about the standing claim), have a listen to our podcast!

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