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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.

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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.

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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.

Center Papers & Activities in 2019

Here is a retrospective list of some of our papers and activities in 2019, with links where available. A warm thanks to our readers, and best wishes for the new year!

Papers

DeGirolami, The Traditions of American Constitutional Law (forthcoming, Notre Dame Law Review 2020).

Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J.L. & Pub. Pol’y 711 (2019).

DeGirolami, First Amendment Traditionalism (forthcoming, Wash. U. L. Rev. 2020).

Movsesian, The Armenian Genocide Today, First Things, November.

DeGirolami, The Sickness Unto Death of the First Amendment, 31 Harv. J.L. & Pub. Pol’y 751 (2019).

Movsesian, Tertullian and the Rise of Religious Freedom, University Bookman, August.

DeGirolami, Notes on a New Fusion, Liberty Fund, July.

Movsesian, Interpreting the Bladensburg Cross Case, First Things, June.

DeGirolami, Cross Purposes, Public Discourse, June.

Movsesian, The Devout and the Nones, First Things, April.

DeGirolami, Jurisprudence as an Expression of Character, Liberty Fund, January.

Activities

Conversation with Hon. Kyle Duncan (5th Circuit) and Hon. Richard Sullivan (2d Circuit) on church-state issues at the Supreme Court.

Legal Spirits (podcast series concerning law and religion).

In spring 2019, DeGirolami was a fellow in the James Madison Program in Princeton University’s Department of Politics.

DeGirolami, Panel on Keith Whittington’s “Repugnant Laws,” James Madison Program, Princeton University, November.

Movsesian, “Church-State Relations in a Time of Scandal,” Morningside Institute, September.

Movsesian, Constitution Day Lecture, The King’s College, September.

DeGirolami, “The Supreme Court’s New Traditionalism,” Skidmore College, September.

DeGirolami, “The Constitution, the Courts, and Conservatism,” Hertog Foundation, July.

The Center for Law and Religion colonizes the Harvard Journal of Law and Public Policy! June.

Movsesian, “Religion and the Administrative State,” Center for the Study of the Administrative State, George Mason University, March.

DeGirolami, “Free Exercise of Religion and Free Speech,” AALS Law and Religion Conference, January.

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Legal Spirits Episode 017: Tanzin v. Tanvir and Individual Liability Under RFRA

In this podcast, we discuss the Second Circuit opinion in Tanzin v. Tanvir, the Supreme Court’s second law-and-religion case this term, about whether the Religious Freedom Restoration Act contemplates liability for individual federal officers. Along the way, we consider some of the divided cultural backdrop against which this somewhat technical question will be decided. Listen in on our final podcast of 2019!

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