Posted on by Marc O. DeGirolami

Remedies and the Religion Clauses: Reflections on the Jurisprudence of Tradition

The past few days have seen many criticisms from academic quarters of the Supreme Court’s reliance on historical evidence and practice to reconstruct the tradition of legislative prayer in reaching the conclusion that it did in Town of Greece v. Galloway. I have argued at length elsewhere that recurrence to long-standing and unbroken traditions of practice as themselves constitutional justifications is a sensible way to give presumptive meaning to open-ended provisions in the Constitution like the religion clauses. This is particularly so in the face of the tragically clashing values of religious freedom, where the elevation of one value as paramount will result in the loss of others.

True, other considerations of sufficient weight can and should supervene on the presumptive deference accorded to traditional practices. True also, the nature of a tradition may itself be contested and subject to different interpretations. The past speaks with many voices, as Martin Krygier has put it. So that the reconstruction and reconstitution of a tradition by a court will often smooth away rough edges; it must do so, as this is what law invariably and necessarily does—skeletonize fact, in Clifford Geertz’s phrase. The court’s reconstruction will not be the historian’s reconstruction because it cannot be. It will be a legal reconstruction—a judicial historiography. In this, tradition is hardly to be distinguished from the sorts of abstractions that courts and others often prefer to debate in this area of the law—equality, neutrality, and human dignity, to name only a few. But the reality of contestation does not mean that the idea of tradition or the substance of specific traditions are empty or somehow a fraud—any more than contestation about the idea of equality or neutrality or their specific applications mean that equality and neutrality are empty or a fraud. Because, like Rick Garnett, I believe that the core function of constitutional interpretation is not to resolve political division and disagreement, but to ascertain the meaning of words in a text (if that is what is meant by textualism, then I subscribe to it), the facts of a practice’s historical roots and duration are evidence of its consistency with the words of a law. Moral or political argumentation can, in unusual circumstances, trump such evidence. But those situations are, for me, exceptional. As I say, these are not extremely popular views in the legal academy. But they were controlling in Town of Greece. While legislative prayer may often be unwise as a political matter (and I believe that it is), the case was, in my view, correctly decided as a constitutional matter.

Yet in the balance of this post, I want to consider another feature of the case. What Town of Greece also shows is that the academy and the courts view the import of traditional analysis in legal interpretation in wildly different ways, assigning very different value to it. And the divide between the legal academy and the Supreme Court when it comes to the issue of the weight of tradition is not confined to the law of the religion clauses, or even to constitutional law proper.

In a superb new paper, The Supreme Court and the New Equity, Samuel Bray (UCLA) explains that what is “new” about the Supreme Court’s approach to remedies is that its methodology appeals to history and tradition. In a series of about ten cases in which the Court has been confronted in statutes with the words “equitable relief” or “equitable remedies,” it has reconstructed and re-entrenched the division of law and equity by relying on history and traditional practice. These statutes are authorizing courts to give certain specific kinds of remedies, not recommending that they do whatever they believe is politically or morally best in the name of equity. Bray writes that the Court has rejected the conventional academic wisdom of the past four decades and beyond—that there is no longer any viable distinction between equitable and legal remedies (this is seen most clearly in the difference between academic and judicial views about the continuing vitality of the irreparable injury rule). Here is Sam from the introduction to the piece:

[S]omething remarkable has happened at the Supreme Court. Over the last decade and a half, the Court has been slowly, perhaps even accidentally, laying the foundation for a very different future for the law of remedies. In ten different cases in nearly as many substantive areas, the Court has deeply entrenched the “no adequate remedy at law” requirement for equitable relief, and it has repeatedly underscored the distinction between legal and equitable remedies. The Court has shown no appetite, however, for reviving old distinctions between legal and equitable courts, procedures, or substantive areas of the law. Only in remedies—but there, with vigor—has the Court insisted on the historic division between law and equity.

The Court has not given a defense of perpetuating the division between legal and equitable remedies. Instead, at every point, the Court has supported its new equity jurisprudence by appealing to history and tradition. For example, in one of the new equity cases—a mere eight pages in the U.S. Reports—the word tradition or a cognate appears fourteen times.

The Court’s reconstructed tradition of equity is not fixed at any given moment. But neither does it recognize evolution or development. Rather, it looks, as Justice Kagan put it in U.S. Airways, Inc. v. McCutcheon, to “the kinds of relief ‘typically available in equity’ in the days of ‘the divided bench’ before law and equity merged.”

In relying on the history of equity to reconstruct a tradition of the division between equitable and legal remedies, sometimes the Court has gotten it quite wrong. It has made errors, and these have been rightly pointed out by legal historians. Sometimes these errors have been corrected by the Court; sometimes they still await correction. And yet, Sam writes that while the legal academic critique of the jurisprudence of tradition has been “stinging,” it has also been “incomplete.” As the jurisprudence of tradition was employed in an increasing number of cases, the historical errors decreased, the Court developed consensus about the boundaries of equitable remedies and about its own methodology, and the appeal to tradition sometimes restricted but also sometimes expanded the reach of equitable remedies. The jurisprudence of tradition matured.

Some legal academics have gone further in their criticisms. They have claimed that the “tradition” of equity is a fabrication—a fraud constructed by the Court—and that no such sharp-edged historical referent is even conceivable just exactly because the tradition is so ancient and so varied. But Sam resists this criticism, and quite rightly in my own view. The judge’s imperative is to interpret language and to decide cases, and it is in the shadow of this imperative that he looks to history. Here is Sam again, in a telling passage:

Judges are looking to history, but not for historical purposes. They must force unruly historical events through a decisionmaking process that will have binary results, such as liability or no liability, damages or no damages, guilt or acquittal, a jury trial or no jury trial, the availability of laches or no availability of laches, contempt or no contempt. Judges have no leisure for prolonged investigation, a series of monographs, a revise-and-resubmit. They do have some grounds for abstaining from making a decision, but there is no such thing as Incomplete Historical Record Abstention. Pressed to use history and pressed to decide, judges tend to emphasize the continuity of past and present. In this way, too, their use of history differs sharply from historical scholarship, in which the characteristic theme is discontinuity.

And yet this does not mean that the idealized tradition that judges reconstruct is empty or a phantom or a fraud. The tradition of remedies typically available in equity is not meaningless. Naturally there will be disputed questions at the borders, as there always are. But there are many questions that will be clearly settled by such an approach—indeed, this is what will make it possible for legal historians to criticize courts for clear mistakes (as when the Supreme Court misdescribed the writ of mandamus as an equitable remedy). As time goes on, the jurisprudence of the tradition of remedies typically available in equity will settle. It will mature.

The jurisprudence of tradition’s project to reconstruct an idealized history of equity is, in fact, a plausible middle course between the options of freezing equity at a distant historical moment, on the one hand, and imbuing it with amorphous exhortations to courts to be “flexible” or “adaptable” or to do “what is right,” on the other. These are the options available to a court confronted with the necessity to interpret and decide. Even more than that, however, the methodology of the jurisprudence of tradition highlights—helpfully—the perennial separation between academic and judicial functions, purposes, and roles. Perhaps there are lessons here for the religion clauses as well.

Posted on by Marc O. DeGirolami

On Commencement Speakers

There has recently been something of a flutter about the withdrawal, under pressure, of several scheduled Commencement speakers for various sorts of reasons diffusely related to politics, controversial viewpoints, or associations and activities with which some administrator feels disquieted (or with which the administrator believes that some influential, or prominent, or loud group of alumni or students will feel disquieted). It is difficult to get a sense for any unifying theme of controversy in these pressured withdrawals, but together they reflect the sort of soft and not particularly committed progressive pastiche of disapproval that prevails at many colleges and universities: Condoleezza Rice was part of the Bush Administration; Ayaan Hirsi Ali said critical things about Islam; Christine Lagarde presides over an organization which is felt by some students to be “patriarchal” and unhelpful to the poor.

Incensed finger-waggers have observed that these pressured withdrawals are very damaging to universities, because, after all, universities are claimed to be sites of open and respectful argument where ideas can be challenged and debated freely. What kind of closed-minded places are these universities if they cannot engage respectfully with controversial views and encourage their students to do likewise? What about the free exchange of ideas? What about confronting perspectives different than one’s own–those that are alien or that induce alienation?

This all seems rather silly. First, is it really the case that graduations are moments where the university displays what are claimed to be its intellectual virtues in chief? Does anybody believe that the very tail end of the higher educational experience, right as the students are walking out the door, is the moment to showcase these qualities–a moment where nobody but the Commencement speaker actually gets a chance to express any views? Speeches delivered at Commencements are nearly universally empty, gaseous, platitudinous, and saccharine. That is by design. That is their function. They are the most perfunctory part of the ceremony. The speaker pumps the bellows for a bit while the assembly listens with half an ear; the other ear and a half is preoccupied with much more interesting matters, like wondering whether one is sweating too much, or about a sudden acrid smell. The parents of the graduates pretend to listen while clucking about their dearest ones in the crowd. And then, at long last, it’s on to the reception bar with all deliberate speed.

What the pressured withdrawals might suggest is that many universities really are not places where students learn and exercise the habits of intellectual engagement and exchange in any appreciable degree at all. The Commencement speech is just the last in a long trail of hot air. Indeed, some have suggested that many American universities are simply gargantuan machines dedicated to the cultivation of middle-class tastes and distinctively shallow civic points of view–mills for producing good and voracious consumers with whatever miscellany of attendant politics one needs to get on without incident or complaint. That seems slightly sour, but if it is true, then the graduation speech is of a piece with the rest of the experience.

I’ve made it to some of my own graduations and skipped just as many. I can’t say I ever felt regret about those I skipped. Of the many Commencement addresses I have heard, not a single one I can remember provoked deep intellectual engagement or reflection in me. Maybe I was unlucky with the speakers; certainly they were unlucky with me. Perhaps the problem is that I can’t remember any of them. I do know that the speeches all contained the requisite elements of vaguely Whiggish optimism, indistinct exhortation, and comfortable banality that characterizes much of university life. They were delivered by people with anodyne, milk-and-water backgrounds and views who had reached prominent positions. So it should come as no surprise at all when a university calibrates the selection of its Commencement speaker accordingly.

UPDATE: An interesting, somewhat different, perspective here (though I can’t subscribe to any claims about a university’s “democratic values”)

Posted on by Marc O. DeGirolami

Wolf, “Juan de Segovia and the Fight for Peace: Christians and Muslims in the Fifteenth Century”

From the University of Notre Dame Press, here’s an interesting work in the Juan de Segoviahistory of religion, Juan de Segovia and the Fight for Peace: Christians and Muslims in the Fifteenth Century, by Anne Marie Wolfe (University of Maine at Farmington). The publisher’s description follows.

Juan de Segovia (d. 1458), theologian, translator of the Qur’an, and lifelong advocate for the forging of peaceful relations between Christians and Muslims, was one of Europe’s leading intellectuals. Today, however, few scholars are familiar with this important fifteenth-century figure. In this well-documented study, Anne Marie Wolf presents a clear, chronological narrative that follows the thought and career of Segovia, who taught at the University of Salamanca, represented the university at the Council of Basel (1431–1449), and spent his final years arguing vigorously that Europe should eschew war with the ascendant Ottoman Turks and instead strive to convert them peacefully to Christianity.

What could make a prominent thinker, especially one who moved in circles of power, depart so markedly from the dominant views of his day and advance arguments that he knew would subject him to criticism and even ridicule? Although some historians have suggested that the multifaith heritage of his native Spain accounts for his unconventional belief that peaceful dialogue with Muslims was possible, Wolf argues that other aspects of his life and thought were equally important. For example, his experiences at the Council of Basel, where his defense of conciliarism in the face of opposition contributed to his ability to defend an unpopular position and where his insistence on conversion through peaceful means was bolstered by discussions about the proper way to deal with the Hussites, refined his arguments that peaceful conversion was prefereable to war. Ultimately Wolf demonstrates that Segovia’s thought on Islam and the proper Christian stance toward the Muslim world was consistent with his approach to other endeavors and with cultural and intellectual movements at play throughout his career.

Posted on by Marc O. DeGirolami

Bloomberg Law Interview About Town of Greece and Elmbrook School District

I was interviewed today on Bloomberg Law about the petition in the Elmbrook School District decision out of the Seventh Circuit and the possible effect of the Supreme Court decision in Town of Greece. You can download the podcast here. My segment starts at about the 7.30 minute mark.

Posted on by Marc O. DeGirolami

Lewis & Lewis (eds.), “Sacred Schisms: How Religions Divide”

New in June from Cambridge University Press is this interesting collection of Sacred Schismsessays, Sacred Schisms: How Religions Divide, edited by James R. Lewis (University of Wisconsin-Stevens Point) and Sarah M. Lewis (University of Wales-Lampeter). The publisher’s description follows.

Schism (from the Greek ‘to split’) refers to a group that breaks away from another, usually larger organisation and forms a new organisation. Though the term is typically confined to religious schisms, it can be extended to other kinds of breakaway groups. Because schisms emerge out of controversies, the term has negative connotations. Though they are an important component of many analyses, schisms in general have not been subjected to systematic analysis. This volume provides the first book-length study of religious schisms as a general phenomenon. Some chapters examine specific case studies while others provide surveys of the history of schisms within larger religious traditions, such as Islam and Buddhism. Other chapters are more theoretically focused. Examples are drawn from a wide variety of different traditions and geographical areas, from early Mediterranean Christianity to modern Japanese New Religions, and from the Jehovah’s Witnesses to Neo-Pagans.

Posted on by Marc O. DeGirolami · 4 Comments

Want to Understand the Possible Implications of the Legislative Prayer Case?

Then you should read these two posts by Kevin Walsh.

In the first post, Kevin explains the way in which Justice Kagan’s dissent lines up in important ways with the views of Judge J. Harvie Wilkinson in his opinion for the Fourth Circuit in Joyner v. Forsyth County (Justice Kagan explicitly relies on some language in Joyner, but the similarities in outlook run deep).

The second post discusses a pending cert. petition–the Elmbrook School District case out of the Seventh Circuit in which Judges Easterbrook, Posner, and Ripple authored dissents from the court’s en banc opinion–and what might happen to it in light of the Court’s holding in Greece.

Both issues are discussed at length in the article that Kevin and I wrote together–Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory (see in particular Parts I(B) and II(C)). You should read that too!

Posted on by Marc O. DeGirolami

Gilham, “Loyal Enemies: British Converts to Islam, 1850-1950”

In June, Oxford University Press will publish Loyal Enemies: British Converts toLoyal Enemies Islam, 1850-1950, by Jamie Gilham. The publisher’s description follows.

Loyal Enemies uncovers the history of the earliest British converts to Islam who lived their lives freely as Muslims on British soil, from the 1850s to the 1950s. Drawing on original archival research, it reveals that people from across the range of social classes defied convention by choosing Islam in this period. Through a series of case studies of influential converts and pioneering Muslim communities, Loyal Enemies considers how the culture of Empire and imperialism influenced and affected their conversions and subsequent lives, before examining how they adapted and sustained their faith. Jamie Gilham shows that, although the overall number of converts was small, conversion to Islam aroused hostile reactions locally and nationally. He therefore also probes the roots of antipathy towards Islam and Muslims, identifies their manifestations and explores what conversion entailed socially and culturally. He also considers whether there was any substance to persistent allegations that converts had “divided” loyalties between the British Crown and a Muslim ruler, country or community. Loyal Enemies is a book about the past, but its core themes–about faith and belief, identity, Empire, loyalties and discrimination– are still salient today.

Posted on by Marc O. DeGirolami

Justice Thomas’s Concurrence in Town of Greece

One last expository post on Town of Greece v. Galloway, this one on Justice Thomas’s concurrence, which was joined by Justice Scalia as to Part II alone. There has already been a fair quantity of commentary on the case, but little of it has focused on Justice Thomas’s concurrence.

The Thomas concurrence is divided into two sections. The first part restates and develops Justice Thomas’s view, first expressed in Elk Grove Unified School District v. Newdow, that the Establishment Clause should not be incorporated against the states because the Establishment Clause represents a protection for the states against interference by the federal government in matters of religion. Like the Tenth Amendment, the Establishment Clause is not a protection for individual rights. The clause’s incorporation was simply assumed, wrongly and without argument, in the Everson case.

Some discomfited attention is being paid to Justice Thomas’s statement that “[a]s an initial matter, the Clause probably prohibits Congress from establishing a national religion.” How could he only say “probably”? But there is an explanation. The citation for this statement is the excellent book, Church, State, and Original Intent, by religious historian (and Center for Law and Religion board member and former Forum guest) Donald Drakeman. Here is Don at 260 of the book:

The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations–which had already caused legislative battles in the states and would continue to do so virtually in perpetuity–into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it.

There is therefore enormous uncertainty as to what the clause meant as an original matter (this is one reason that original expected applications originalism is so useful as to the Establishment Clause)–uncertainty that is reflected in the very spare historical record that reveals next to nothing about the clause’s historical meaning. Church-state arrangements in the early republic were, as they are now, deeply unsettled and contested, and the Establishment Clause was not intended to settle them. If the clause is read as Justice Thomas reads it–as a federalism provision–then one must make the inference (and it is an inference) that a national church was prohibited, since a national church would present a major obstacle to the freedom of states to decide on their own church-state arrangements. 

Part II of the concurrence assumes that the clause had been incorporated and then argues that what the clause proscribes is “coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Note that here there is a kind of unity with Justice Scalia’s view of the scope of protection afforded by the Free Exercise Clause. This “actual legal coercion” test–which the Justices distinguish from a “subtle coercive pressures” test (see Lee v. Weisman) involves the exercise of government power “in order to exact financial support of the church, compel religious observance, or control religious doctrine.” It is therefore unsurprising that Justice Thomas and Justice Scalia did not join Part II(B) of Justice Kennedy’s opinion dealing with the type of coercion required to make out an Establishment Clause challenge (assuming its incorporation against the states).

Posted on by Marc O. DeGirolami

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.

Posted on by Marc O. DeGirolami

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.