Posted on by Marc O. DeGirolami

Rancor Follows Decision Striking Down School Prayer

Here is an interesting story about the acute social rancor that has followed a U.S. District Court’s decision to hold unconstitutional the display of a prayer in a Rhode Island public school auditorium.  The prayer, written by a seventh grader some 50 years ago, said this:

School Prayer.

Our Heavenly Father, Grant us each day the desire to do our best, to grow mentally and morally as well as physically, to be kind and helpful to our classmates and teachers, to be honest with ourselves as well as with others.  Help us to be good sports and smile when we lose as well as when we win.  Teach us the value of true friendship.  Help us always to conduct ourselves so as to bring credit to Cranston High School West.  Amen.

An atheist student sued to eliminate the prayer as a violation of the Establishment Clause and the court agreed.  Whether the town will appeal is unclear.  The story reports that State Representative Peter Palumbo has said some very harsh things about the atheist student plaintiff.  Justified or not, the anger that he expresses and which the town obviously feels is properly directed against the court.

Posted on by Marc O. DeGirolami

A Structuralist Musing on the Establishment Clause

The Constitution uses the word “Establishment” exactly twice.  The second time is familiar to CLR Forum readers: “Congress shall make no law respecting an establishment of religion…”  Do you know what the first reference is?  (No peeking!…the answer, a thought, and a question after the jump)

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What Does It Mean to Call a Judicial Decision Particularist?

Hosanna-Tabor has come and gone, with a flurry of commentary out of the gate  and now a bit of (perhaps welcome!) silence.  Last week, I described the decision as particularist, but I did not define the term.  Judicial particularism is a concept that I explore in my current book project, Tragedy and History: The Quality of Religious Liberty, but for purposes of this post, I thought to offer some quick-shot thoughts about what judicial particularism might mean — first what it does not, or need not, mean, and second what I believe it does, or at least could, mean. 

If judicial particularism is taken to mean only the simple and bland proposition that “context matters” in the adjudication of cases, then that seems fairly uncontroversial. Of course context matters.  Who would disagree?  Even those who prefer the ostensible discipline of hard rules in adjudication acknowledge that general rules are not self-applying and that the specifics of a case will and ought to affect the outcome. 

Judicial particularism also does not necessarily mean or imply adjudicatory narrowness, in the sense of deciding only the absolute minimum that one needs to dispose of the case.  It is true that often times particularistic judgments may also be narrow judgments.  Indeed, this is a position with great appeal.  But one could be both a judicial particularist and write a decision that intimates (perhaps subtly, in dicta, or perhaps implicitly, by failing to say anything) the resolution of other, future cases that are factually similar on similar grounds, or the resolution of other, future cases that are factually dissimilar on dissimilar grounds.

Following Jonathan Dancy’s work on moral particularism, I take the core of judicial particularism to be that it is possible to decide cases reasonably predictably without the necessity of relying on a single general value or principle, or even a set number of general values or principles, to do so.  The sting in particularism is not that ‘context matters’ but that reasons or values which are important in some specific context may not be so in others.  Reasons or values do not have either constant or categorical weight across a range of disputes, or even among cases within a range, so that what is a reason for reaching a judgment in one set of circumstances may not, as Dancy puts it, retain the same “polarity” in another set of circumstances. 

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Unanimity in Religion Clause Decisions

The Court’s decision was unanimous in Hosanna-Tabor.  Given some of the language in Chief Justice Roberts’ decision, I find that rather surprising — particularly because some thought that there was a reasonable chance that we would see multiple opinions in this case going in all sorts of directions.

Unanimity in religion clause cases is uncommon.  In part that’s because they tend generally to be fairly controversial, in part because (as Greg Sisk and Michael Heise have shown) they tend to map onto a Justice’s political ideology (not always, but fairly often).  Unanimity as to the judgment happens once in a while.  Unanimity as to the judgment and the reasoning is extremely rare.

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The Historical and Particularist Quality of Hosanna-Tabor

I’m still digesting the Court’s unanimous decision in Hosanna-Tabor.  But I thought to note something interesting (to me), given my current book project titled Tragedy and History: The Quality of Religious Liberty. 

In this post over at Mirror of Justice a few months ago, I predicted that the Court would issue a decision that reflected a highly particularized and deeply historically informed sensibility — historical both in a social and doctrinal fashion.  I think that Chief Justice Roberts’s majority opinion does just that.  Take a little tour of the decision with me.

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Hosanna-Tabor Decision

Here is the text of the decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The decision in favor of Hosanna-Tabor was 9-0, in a majority opinion authored by Chief Justice Roberts and with concurrences by Justice Thomas and Justice Alito (joined by Justice Kagan).

More in a bit after I’ve read the decision.

Posted on by Marc O. DeGirolami

Harris and Kidd, eds., “The Founding Fathers and the Debate Over Religion in Revolutionary America”

Here is a useful historical study of the “Christian nation” question, The Founding Fathers and the Debate Over Religion in Revolutionary America: A History in Documents (OUP 2011), edited by Matthew L. Harris (Colorado State University-Pueblo) and Thomas S. Kidd (Baylor).  The publisher’s description follows.

Whether America was founded as a Christian nation or as a secular republic is one of the most fiercely debated questions in American history. Historians Matthew Harris and Thomas Kidd offer an authoritative examination of the essential documents needed to understand this debate. The texts included in this volume – writings and speeches from both well-known and obscure early American thinkers – show that religion played a prominent yet fractious role in the era of the American Revolution.

In their personal beliefs, the Founders ranged from profound skeptics like Thomas Paine to traditional Christians like Patrick Henry. Nevertheless, most of the Founding Fathers rallied around certain crucial religious principles, including the idea that people were “created” equal, the belief that religious freedom required the disestablishment of state-backed denominations, the necessity of virtue in a republic, and the role of Providence in guiding the affairs of nations. Harris and Kidd show that through the struggles of war and the framing of the Constitution, Americans sought to reconcile their dedication to religious vitality with their commitment to religious freedom.

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Classic Revisited: Tocqueville’s “Democracy in America”

This one will be familiar to many CLR Forum readers, but I was reminded of Alexis de Tocqueville’s wonderful work of comparative political science, Democracy in America (1835 & 1840) (readable in its entirety for free, people, for free!)  as I was preparing for my constitutional law class this spring.  Rather than reproducing the well-known tracts about American “democratic” religion, here’s a fragment from Tocqueville’s superb discussion of the unique position of the American federal judiciary.  Note in particular Tocqueville’s emphasis toward the end of the section I’ve reproduced on the fact that the American judge does not deal in “theoretical generalities,” but in very discrete factual particulars.  A proto-minimalist passage, perhaps.  From Volume I:

The first characteristic of judicial power in all nations is the duty of arbitration. But rights must be contested in order to warrant the interference of a tribunal; and an action must be brought before the decision of a judge can be had. As long, therefore, as a law is uncontested, the judicial authority is not called upon to discuss it, and it may exist without being perceived. When a judge in a given case attacks a law relating to that case, he extends the circle of his customary duties, without, however, stepping beyond it, since he is in some measure obliged to decide upon the law in order to decide the case. But if he pronounces upon a law without proceeding from a case, he clearly steps beyond his sphere and invades that of the legislative authority.

The second characteristic of judicial power is that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important and perhaps a more useful influence than that of the magistrate, but he ceases to represent the judicial power.

The third characteristic of the judicial power is that it can act only when it is called upon, or when, in legal phrase, it has taken cognizance of an affair. This characteristic is less general than the other two; but, notwithstanding the exceptions, I think it may be regarded as essential. The judicial power is, by its nature, devoid of action; it must be put in motion in order to produce a result. When it is called upon to repress a crime, it punishes the criminal; when a wrong is to be redressed, it is ready to redress it; when an act requires interpretation, it is prepared to interpret it; but it does not pursue criminals, hunt out wrongs, or examine evidence of its own accord. A judicial functionary who should take the initiative and usurp the censureship of the laws would in some measure do violence to the passive nature of his authority.

The Americans have retained these three distinguishing characteristics of the judicial power: an American judge can pronounce a decision only when litigation has arisen, he is conversant only with special cases, and he cannot act until the cause has been duly brought before the court. His position is therefore exactly the same as that of the magistrates of other nations, and yet he is invested with immense political power. How does this come about? If the sphere of his authority and his means of action are the same as those of other judges, whence does he derive a power which they do not possess? The cause of this difference lies in the simple fact that the Americans have acknowledged the right of judges to found their decisions on the Constitution rather than on the laws. In other words, they have permitted them not to apply such laws as may appear to them to be unconstitutional.

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Classic Revisited: Justice Joseph Story’s “Commentaries on the Constitution”

Justice Joseph Story’s Commentaries on the Constitution of the United States (1833) (available for free!) is a lively, opinionated, and rangy discussion of the original understanding of the Constitution.  Story was a Supreme Court justice from 1811-1845, and for much of that period he was also a professor at Harvard Law School (one could do both in those days).  Professor Michael Paulsen once aptly called Story’s 3-volume tour de force “comprehensive and brilliant, but often tendentious” and listed it as among the top five books of all-time about the Constitution.  Chief Justice William Rehnquist once used some of Story’s discussion of the Establishment Clause in his dissenting opinion in Wallace v. Jaffree (the moment of silence case).  Here is a good chunk of Story — sections 1865-1871 of his treatise — to give you a sense of his views and style:

§ 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.  How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.  Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; — these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.

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Threats of Impeachment and Signaling

The rather impetuous comments of Newt Gingrich over the weekend on Face the Nation have received some warranted scrutiny, including over at Prawfsblawg by my friend Paul Horwitz.  In response to some questions by the host about his view of the Supreme Court and of courts in general, Gingrich said a few things about the secularism in evidence in the Mt. Soledad Cross case out of the Ninth Circuit as well as the “under God” Pledge of Allegiance case decided by the Ninth.  Early in the interview, he also said this:

I think part of the advantage I have is that I’m not a lawyer. And so as historian, I look at the context of the judiciary and the constitution in terms of American history. The fact is, I’ll just give you two examples — Judge Biery’s ruling on June 1st that he would jail the superintendent if anybody at the high school graduation used the word benediction, used the word invocation, asked for a moment of silence, asked the audience to stand, or mentioned God, he would jail the superintendent was such an anti-American dictatorship of speech that there’s no reason the American people need to tolerate a federal judge who is that out of sync with an entire culture. So I have to ask the question, is there an alternative? What’s the recourse? Well, one recourse is impeachment.

One interesting feature of the discussion is the move to threaten impeachment.  This is, of course, nothing new.  One of the first articles I wrote (and which has all the marks of an early piece) had to do with congressional threats of impeachment against federal judges; the practice is very old, indeed, in no small measure because it is so difficult to actually impeach a judge (or anybody else for that matter) — I document the context of successful and threatened judicial impeachments in the piece.

Threats of removal against the judiciary, whether by Congress or the executive, can also, in appropriate cases, serve a kind of signaling function.

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