Posted on by Mark Movsesian

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.

Posted on by Mark Movsesian

Tartakovsky, “The Lives of the Constitution”

LivesoftheConstitution_lowres-310x460This forthcoming book from Encounter looks fun: The Lives of the Constitution: Ten Exceptional Minds That Shaped America’s Supreme Law, by Joseph Tartakovsky (Claremont Institute). Here’s the description from the publisher’s website:

In a fascinating blend of biography and history, Joseph Tartakovsky tells the epic and unexpected story of our Constitution through the eyes of ten extraordinary individuals—some renowned, like Alexander Hamilton and Woodrow Wilson, and some forgotten, like James Wilson and Ida B. Wells-Barnett.

Tartakovsky brings to life their struggles over our supreme law from its origins in revolutionary America to the era of Obama and Trump. Sweeping from settings as diverse as Gold Rush California to the halls of Congress, and crowded with a vivid Dickensian cast, Tartakovsky shows how America’s unique constitutional culture grapples with questions like democracy, racial and sexual equality, free speech, economic liberty, and the role of government.

Joining the ranks of other great American storytellers, Tartakovsky chronicles how Daniel Webster sought to avert the Civil War; how Alexis de Tocqueville misunderstood America; how Robert Jackson balanced liberty and order in the battle against Nazism and Communism; and how Antonin Scalia died warning Americans about the ever-growing reach of the Supreme Court.

From the 1787 Philadelphia Convention to the clash over gay marriage, this is a grand tour through two centuries of constitutional history as never told before, and an education in the principles that sustain America in the most astonishing experiment in government ever undertaken.

Posted on by Mark Movsesian

Reynolds, “The Judiciary’s Class War”

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Here is another new book that addresses the impact of culture on law, The Judiciary’s Class War (Encounter Books), by University of Tennessee law professor Glenn Harlan Reynolds. As I wrote in Monday’s post, cultural values profoundly American influence church-state law. Reynolds, who also hosts the InstaPundit blog, points out that it’s really educated-upper-middle-class cultural values that matter–the values that judges, who come from the upper echelon of the legal profession, see as natural and inarguable. Reynolds’s theory seems quite plausible to anyone who has studied American constitutional law, including the Court’s religion-clause jurisprudence. The book looks very interesting. Here’s the description from the publisher’s website:

The terms “Front-Row Kids” and “Back-Row Kids,” coined by the photographer Chris Arnade, describe the divide between the educated upper middle class, who are staying ahead in today’s economy, and the less educated working class, who are doing poorly. The differences in education—and the values associated with elite schooling—have produced a divide in America that is on a par with that of race.

The judiciary, requiring a postgraduate degree, is the one branch of government that is reserved for the Front-Row Kids. Correspondingly, since the Warren era, the Supreme Court has basically served as an engine for vindicating Front-Row preferences, from allowing birth control and abortion, to marginalizing religion in the public space, to legislative apportionment and libel law, and beyond. Professor Glenn Reynolds describes this problem in detail and offers some suggestions for making things better.

Posted on by Mark Movsesian

Barclay & Rienzi, “Constitutional Anomalies”

Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:

In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.

Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.

The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.

Posted on by Mark Movsesian

Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.

Posted on by Mark Movsesian

Masterpiece Cakeshop and the Passion for Equality

At the First Things site today, I have an essay on the Masterpiece Cakeshop case, in which the Supreme Court granted cert at the end of its term a couple of weeks ago. In the case, a cake shop owner argues that the First Amendment grants him the right to decline to design and bake a cake for a same-sex marriage. I use Masterpiece Cakeshop, and a hypothetical question I posed to my class in law and religion, to explore Tocqueville’s observation that the concept of equality inevitably expands in democratic societies, and to explain how a case in which same-sex marriage is so central may, in fact, have little to do with sexuality:

Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.

Tocqueville saw this coming long ago. Democracies, he wrote, prize equality above all other values. Their “passion for equality,” he observed, is “ardent, insatiable, incessant, invincible.” It is not simply a matter of assuring every person equal rights under law. Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.

If I’m right that, in the long run, social intuitions drive the law, and if I’m also right that my students’ reaction reflects something about social intuitions in America today, then litigants like the shop owner in Masterpiece Cakeshop will have an increasingly hard time prevailing in American courts. As the concept of equality inevitably extends further and further, distinctions like the one he is trying to maintain will appear more and more rebarbative. People will fail to empathize at a basic level.

You can read the whole essay here.

Posted on by L&R Forum

Happy Independence Day

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In honor of the Fourth of July, the Forum is taking off today. Happy Independence Day and see you tomorrow!

Posted on by Mark Movsesian

Epstein, “The Classical Liberal Constitution”

Speaking of classical liberalism, here is a new book from the most prominent libertarian voice in the American legal academy, Richard Epstein, The Classical Liberal Constitution: the Uncertain Quest for Limited Government (Harvard). It certainly seems the case that many disputes over religious liberty today result from expanding governmental control over aspects of life the framers of the Free Exercise Clause could not have imagined — the Contraception Mandate, for example. Readers can decide whether that expansion, and the attendant conflicts over religious liberty, are the inevitable consequences of modernity or, as Epstein suggests, the result of an an unnecessary ideological project unwisely endorsed by the Supreme Court. The publisher’s description is below.

9780674975460American liberals and conservatives alike take for granted a progressive view of the Constitution that took root in the early twentieth century. Richard A. Epstein laments this complacency which, he believes, explains America’s current economic malaise and political gridlock. Steering clear of well-worn debates between defenders of originalism and proponents of a living Constitution, Epstein employs close textual reading, historical analysis, and political and economic theory to urge a return to the classical liberal theory of governance that animated the framers’ original text, and to the limited government this theory supports.

Grounded in the thought of Locke, Hume, Madison, and other Enlightenment figures, the classical liberal tradition emphasized federalism, restricted government, separation of powers, property rights, and economic liberties. The most serious challenge to this tradition, Epstein contends, has come from New Deal progressives and their intellectual defenders. Unlike Thomas Paine, who saw government as a necessary evil at best, the progressives embraced government as a force for administering social good. The Supreme Court has unwisely ratified the progressive program by sustaining an ever-lengthening list of legislative programs at odds with the classical liberal Constitution.

Epstein’s carefully considered analysis addresses both halves of the constitutional enterprise: its structural safeguards against excessive government power and its protection of individual rights. He illuminates contemporary disputes ranging from presidential prerogatives to health care legislation, while reexamining such enduring topics as the institution of judicial review, the federal government’s role in regulating economic activity, freedom of speech and religion, and equal protection.

 

Posted on by Christina Vlahos

Rubin, “Judicial Review and American Conservatism”

In March, the Cambridge University Press will release “Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era,” by Robert Daniel Rubin.  The publisher’s description follows: 

The Christian Right of the 1980s forged its political identity largely in response to what it perceived as liberal ‘judicial activism’. Robert Daniel Rubin tells this story 9781107060555as it played out in Mobile, Alabama. There, a community conflict pitted a group of conservative evangelicals, a sympathetic federal judge, and a handful of conservative intellectuals against a religious agnostic opposed to prayer in schools, and a school system accused of promoting a religion called ‘secular humanism’. The twists in the Mobile conflict speak to the changes and continuities that marked the relationship of 1980s’ religious conservatism to democracy, the courts, and the Constitution. By alternately focusing its gaze on the local conflict and related events in Washington, DC, this book weaves a captivating narrative. Historians, political scientists, and constitutional lawyers will find, in Rubin’s study, a challenging new perspective on the history of the Christian Right in the United States.

Posted on by Christina Vlahos

“Constitution Writing, Religion and Democracy” (Bâli & Lerner, eds.)

In January, Cambridge University Press will release “Constitution Writing, Religion and Democracy,” edited by Aslı Ü. Bâli (University of California, Los Angeles) and Hanna Lerner (Tel-Aviv University).  The publisher’s description follows:

What role do and should constitutions play in mitigating intense disagreements over 9781107070516the religious character of a state? And what kind of constitutional solutions might reconcile democracy with the type of religious demands raised in contemporary democratising or democratic states? Tensions over religion-state relations are gaining increasing salience in constitution writing and rewriting around the world. This book explores the challenge of crafting a democratic constitution under conditions of deep disagreement over a state’s religious or secular identity. It draws on a broad range of relevant case studies of past and current constitutional debates in Europe, Asia, Africa and the Middle East, and offers valuable lessons for societies soon to embark on constitution drafting or amendment processes where religion is an issue of contention.