Bordewich, “The First Congress”

The Supreme Court has, on occasion, given the decisions of the First Congress great weight in interpreting the Establishment Clause. The Framers of the First Amendment sat in the First Congress, so it seems plausible to look to their decisions as indications of what the Amendment meant to people at the time. The Court has not strictly held to this approach–when it comes to the Establishment Clause, it doesn’t strictly hold to any approach–but it’s there in the cases.

A new book by author Fergus Bordewich, The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government (Simon & Schuster), discusses the history. The publisher’s description follows.

the-first-congress-9781451692112_hrThis “fascinating” (Chicago Tribune), “lively” (The New York Times) history tells how the First Congress and the Washington administration created one of the most productive and far-reaching governments in American history—“gracefully written…and well worth reading” (The Wall Street Journal).

The First Congress may have been the most important in American history because it established how our government would work. The Constitution was a broad set of principles that left undefined the machinery of government. Fortunately, far-sighted, brilliant, and determined men such as Washington, Madison, Adams, Hamilton, and Jefferson (and others less well known today) labored to create a functioning government.

In The First Congress, award-winning author Fergus Bordewich brings to life the achievements of the First Congress: it debated and passed the first ten amendments to the Constitution, which we know as the Bill of Rights; admitted North Carolina and Rhode Island to the union when they belatedly ratified the Constitution, then admitted two new states, Kentucky and Vermont, establishing the procedure for admitting new states on equal terms with the original thirteen; chose the site of the national capital, a new city to be built on the Potomac; created a national bank to handle the infant republic’s finances; created the first cabinet positions and the federal court system; and many other achievements. But it avoided the subject of slavery, which was too contentious to resolve.

The First Congress takes us back to the days when the future of our country was by no means assured and makes “an intricate story clear and fascinating” (The Washington Post).

Around the Web

Here are some interesting news stories involving law and religion from the past week:

Around the Web This Week

Here are some interesting stories involving law and religion from this past week:

My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

Loewe, “Of Sacred Lands and Strip Malls”

In September, Rowman & Littlefield released “Of Sacred Lands and Strip Malls: The Battle for Puvungna,” by Ronald Loewe (California State University).  The publisher’s description follows:

A twenty-two acre strip of land—known as Puvungna—lies at the edge of 9780759121607California State University’s Long Beach campus. The land, indisputably owned by California, is also sacred to several Native American tribes. And these twenty-two acres have been the nexus for an acrimonious and costly conflict over control of the land. Of Sacred Lands and Strip Malls tells the story of Puvungna, from the region’s deep history, through years of struggle between activists and campus administration, and ongoing reverberations from the conflict.

As Loewe makes clear, this is a case study with implications beyond a single controversy; at stake in the legal battle is the constitutionality of state codes meant to protect sacred sites from commercial development, and the right of individuals to participate in public hearings. The case also raises questions about the nature of contract archaeology, applied anthropology, and the relative status of ethnography and ethnohistorical research. It is a compelling snapshot of issues surrounding contemporary Native American landscapes.

Brettschneider: An Expansive Establishment Clause, Too

All this month, we are hosting an online symposium on Vincent Phillip Muñoz‘s new article, “Two Concepts of Religious Liberty.” In today’s post, Corey Brettschneider (Brown) responds to Muñoz. For other posts in this series, please click here

It is my pleasure to reply to Professor Muñoz’s fine article and excellent post. It is also a pleasure to join such a robust conversation about the Founders’ ideas about religious freedom and their implications for contemporary jurisprudence. Muñoz argues that the Founders held a jurisdictional view of religious freedom that divided the divine authority over religious worship and protected it against secular authority. The jurisdictional view would also protect a wide terrain of secular authority from religious intervention. So far, commentators have focused on the implications of Muñoz’s jurisdictional view for the Court’s contemporary Free Exercise jurisprudence. I want to refocus on the implications of Muñoz’s account for Establishment jurisprudence. While Muñoz might be correct that the Founders’ vision pushes toward Smith rather than Sherbert, and thus suggests doctrine on the weaker end of free exercise, I suggest why his account recommends an expansive reading of the Establishment Clause.

In his article, Muñoz argues the Founders understood the Free Exercise Clause to ban the state from regulating worship. It follows that the limits on secular authority in matters of worship provide government a very expansive authority over secular matters. The flip side  of the limited jurisdiction government has in matters of worship is a vast limit on religious influence over secular lawmaking. This limit has important implications for the breadth of the Establishment Clause. I want to push Munoz to think about how the jurisdictional view would address two fundamental jurisprudential problems. The first concerns third party harm and the second concerns the Establishment Clause requirement of secular purpose.

In Burwell v. Hobby Lobby, the Supreme Court held that the Religious Freedom Restoration Act required an exemption to a federal requirement that closely held for-profit corporations provide birth control coverage to their employees even when those corporations object to providing it on religious grounds. Jack Rakove rightly suggests that the notion of third party harm might be directly relevant to the Founders’ view. In the Hobby Lobby case, he argues, the rights of a potential beneficiary of birth control might be violated by the imposition of a religiously-based refusal to provide a benefit by an Continue reading

The Ten Commandments in the Courthouse

Recently, I visited the New York State Courthouse here in Jamaica, Queens. For readers who don’t know, Queens is one of New York City’s outer boroughs. It is the most ethnically diverse county in the United States, perhaps the most ethnically diverse place in the entire world. About half its population of 2.3 million is foreign born. More than half speak a language other than English at home. About 40% of its residents are white; Asians and African-Americans each make up about a fifth of the population; Latinos a bit more. Statistics on religious affiliation are harder to come by, but apparently about half of the borough’s residents are Christians; of them, Catholics make up the largest percentage, about one-third of the total population. As to the other 50%, Queens has significant numbers of Jews, Muslims, Hindus, Sikhs, Buddhists, and people without formal religious affiliation—the Nones. In terms of religious and cultural variety, Queens has it all.

Given the ethnic and religious diversity of Queens, a work of art I saw in the Queens courthouse surprised me. Decorating the building’s central, ceremonial staircase are a pair of two large WPA-style murals, executed when the courthouse was built during the Great Depression. They make up a unified work. The one on the left, titled “Mosaic Law” (above) shows a crowd of Hebrews surrounding Moses as he descends from Mt. Sinai with the tablets containing the Ten Commandments, written in Hebrew script. The one on the right, titled “Constitutional Law” (below) shows a crowd of historical figures—Washington, the Framers, and Chief Justices from John Jay to Charles Evans Hughes—gathered around a stone plaque with the words of the Preamble: “We the People.”

In one sense, of course, the murals should not have surprised me. Displaying the Ten Commandments in courthouses is an American tradition. It has become an extremely controversial one, however. Litigants have brought numerous constitutional challenges in the last few decades. Courts have reached different conclusions, based largely on the facts of specific cases. About 10 years ago, the US Supreme Court ruled that the display of the Ten Commandments in one Kentucky courthouse violated the Establishment Clause under the so-called “endorsement test.” A reasonable observer, the Court held, would perceive the display as an impermissible, official endorsement of religion. Such an endorsement would send a message of exclusion to non-adherents and make them feel like outsiders in their own community—like disfavored, second-class citizens.

I stood on the staircase for a while and watched people go up and down. Aside from me, no one seemed to notice the murals at all. And I wondered, how could it be, in a place as religiously diverse as Queens, that no one had objected? How could it be that no one had claimed that the murals made him feel like an outsider, a second-class citizen? With thousands of people from different religious backgrounds passing by these murals every day, surely someone would have taken offense and brought a lawsuit. Were people too polite or intimidated to complain? That hardly seems possible, not in Queens. And if someone did bring a constitutional challenge, wouldn’t it have a good chance to succeed? What explains the quietude—the dog that doesn’t bark?

It seems to me there are two explanations. First, it’s quite possible that people in Queens, even the many people from religious traditions other than Christianity, Judaism, and Islam—all of which venerate the Ten Commandments—do not find the display at all offensive. They likely accept it as the tradition of the society in which they have chosen to live. Many of them have immigrated here at great personal cost and are not put off by American customs. Peter Berger and others have written about this phenomenon in the European context. Although European elites often argue that religious minorities find public Christian displays insulting, he explains, little evidence exists that the minorities themselves actually feel offended. Berger describes this misguided, or pretextual, solicitude for religious minorities as the “‘battering ram’ approach to policy making: secular elites make use of other faith communities in order to further their own—frequently secular—points of view.”

Of course, there are plenty of secular elites in New York City, and many of them are lawyers. So why has no one brought a lawsuit over the display at the Queens courthouse? Here we come to the second explanation: such a lawsuit would very likely fail. For one thing, notwithstanding its earlier decisions, it’s not clear that the Supreme Court would continue to apply the endorsement test to courthouse displays of the Ten Commandments. A couple of terms ago, in the Town of Greece case, the Court applied a different test to uphold the constitutionality of official, legislative prayer. Such prayer is constitutional, the Court said, because it is an important part of American tradition—and also because it does not coerce listeners to participate. Courthouse displays of the Ten Commandments are part of American tradition as well, and they also coerce no one. If the Town of Greece test applies, Ten Commandments displays would be constitutional as well.

The Court is notoriously unpredictable in Establishment Clause cases, though, and it could well continue to apply the endorsement test to courthouse displays. Even so, it’s unlikely the Queens murals would be unconstitutional. True, an observer could perceive a religious message. Perhaps the implication is that our fundamental law is of a piece with its divine predecessor, and that we, like the ancient Hebrews, are united by our worship of God. But observers could draw a variety of other messages as well. One very plausible interpretation is this: our Constitution is part of the great tradition of Western law, in which the Ten Commandments play a vital role. Another would be, these are two parallel episodes of lawgiving: Just as the ancient Hebrews were a community bound by a received law, so are we Americans today—although our law comes, not from God, but from the people itself. Perhaps there is no special meaning at all. Perhaps the artist was simply trying to dignify the building in a way that people of the time would find familiar and appropriate.

In short, the mural is not clearly an endorsement of religion. Moreover, it has been there for about 70 years now. As Justice Breyer reasoned in one of the Ten Commandments cases, the fact that a display has gone unchallenged for decades suggests that people do not perceive it as an insult or a religious endorsement. To remove the mural now, on the ground that it impermissibly endorses religion, would suggest that government has an affirmative hostility to faith—a suggestion bound to insult believers and cause even greater social tension than allowing the mural to remain. Although the Court might not allow the mural to be installed in a courthouse today, the fact that it is already in the Queens courthouse gives it a kind of grandfathered status.

So, it seems likely the mural will remain. If you’re in the neighborhood, go take a look. You might also visit the nearby Rufus King Museum, the home of one of the Framers of the Constitution—though not, as far as I can tell, one of the Framers depicted in the mural—and the last Federalist candidate for President of the United States. What he would have thought of the murals’ constitutionality, I’m pretty sure I know.

Witte & Nichols, “Religion and the American Constitutional Experiment” (4th ed)

In April, Oxford University Press released the fourth edition of Religion and the American 9780190459420Constitutional Experiment, by John Witte, Jr. (Emory) and Joel Nichols (St. Thomas-Minnesota). The publisher’s description follows:

This accessible introduction tells the American story of religious liberty from its colonial beginnings to the latest Supreme Court cases. The authors provide extensive analysis of the formation of the First Amendment religion clauses and the plausible original intent or understanding of the founders. They describe the enduring principles of American religious freedom–liberty of conscience, free exercise of religion, religious equality, religious pluralism, separation of church and state, and no establishment of religion–as those principles were developed by the founders and applied by the Supreme Court. Successive chapters analyze the two hundred plus Supreme Court Continue reading

Dispatches From Kabul: Walls of Separation and the Call to Prayer

Green Zone

Former CLR Fellow Jessica Wright ’14 is currently working as an attorney in Kabul, Afghanistan. This post is part of a series of reflections on her experiences there.

In New York it was the sirens that nettled, piercing through triple-paned glass seventeen stories above the avenue at all hours of the day and night. In Kabul it’s the call to prayer that distracts, albeit less frequently, and which I wake to most mornings. There’s the initial crackle of the loudspeaker, a clearing of the throat, and then a momentary struggle to find the right pitch. The opening words of the azan ring out clearly and confidently – Allahu Akbar – but sometimes, part of the way through, the voice wavers and there is an awkward adjustment of the register, an interruption that could be obviated with the initial use of a pitch pipe or the playing of a middle C, I’ve thought. Then again, I’ve never seen a pitch pipe in Afghanistan, and I suppose it would be difficult to put a piano in a minaret.

Since September, we’ve had a string of mediocre muezzins, criers who never fail to rouse us from our sleep just before dawn, but whose recitations of the takbir and shahada – the Muslim Statement of Faith – leave much to be desired. It’s a bit ironic that they’ve been so lacking, considering that muezzins are traditionally chosen for their superior vocal skills. The first, Bilal ibn Rabah, was supposedly plucked from obscurity by the Prophet Mohammad for his beautiful voice. The idea was that the more melodious and clear the expression, the more powerful the azan, and therefore the more compelling would be the spiritual ideology of Islam sung in those eight verses. Allahu Akbar (four times) / I acknowledge that there is no deity but God (twice) / I acknowledge that Mohammad is the Messenger of Allah (twice) / Hasten to Prayer (twice) / Hasten to success (twice) / Prayer is better than sleep (twice) / Allah is greatest (twice) / There is no deity but God (once). This standard of qualification seems not to be taken seriously in my Kabul neighborhood. Perhaps the benchmark here is pünktlichkeit, in which case I’ve no doubt that our muezzins would be considered rousing successes. It’s disappointing, though, that their rendition of the azan does not resonate across the land as an otherworldly call to the divine.

To make matters worse, our current prayer leader has taken to conversing with himself over the loudspeaker after the initial recitation. The intonation is thoughtful, even philosophical, as if he is contemplating deep and important questions out loud. One morning, as I was lying in bed listening to his slow, punctuated words, I started thinking about America and Constitutional law and Jefferson’s letter to the Danbury Baptists. I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. That wall was adopted by the Supreme Court, becoming authoritative in Reynolds and “high and impregnable” in Everson. In context, Jefferson’s pithy metaphor concerned his opposition to an established national church rather than a belief in strict separationism, but it is a comforting metaphor at dawn while being sermonized over a loudspeaker. In such moments, prayer is not better than sleep.

***

They call the enormous concrete blast wall surrounding the U.S. Embassy near Massoud Circle the King Kong wall because it is a barrier so overwhelming that only a fictional movie monster could surmount it. Last week as we were driving by, a colleague said, “That thing should be considered a wonder of the world.” The grey concrete casts a long shadow on passers-by and dwarfs all of the buildings in its vicinity. I’ve wondered recently if the song of the muezzin reaches past it, through the security maze of the Green Zone, and into the container homes of my compatriots at the U.S. Embassy. It must, I think, since after Continue reading

International Law and Religion Moot Court: Venice 2016

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The Fondazione Marcianum in Venice

The Fondazione Marcianum, a research center in Venice, will hold its second annual international law-and-religion moot court competition this coming March. The competition, which gathers law students from universities around the world, is the only one of its kind: a truly international competition in which students argue a case before panels simulating both the US Supreme Court and the European Court of Human Rights. Full disclosure: I took part as a judge in last year’s competition and found it extremely worthwhile. This year, I’ve helped craft the problem and will deliver one of the keynote addresses.

This year’s problem relates to the establishment of religion — to school prayer, specifically. You can download the problem here. I greatly encourage law students to consider competing. It’s a truly unique educational experience. Any questions, please contact the Fondazione here.

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