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.

Wright on Neutrality in Religion Clause Cases

R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Can We Make Sense of ‘Neutrality’ in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative. The abstract follows.

This Article addresses the controversial question of ‘neutrality’ as a crucial test in a number of important Religion Clause cases. The idea of ‘neutrality’ in the Religion Clause context turns out to be popular, but unavoidably incoherent.

The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.

What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.

Goldford: The Constitution of Religious Freedom

This month, Baylor University Press publishes The Constitution of Religious Freedom:  God, Politics, and the First Amendment by Dennis J. Goldford.  Goldford, Professor of Politics at Drake University in Iowa, argues that the Religion Clauses of the First Amendment do not create a national religious identity, but, instead, create a religious liberty located squarely in the individual.  The publisher’s abstract follows:

In a time when the question of American religious identity underlies much political conversation that fills the public square, Dennis Goldford directs his readers to consider the First Amendment. The founding fathers’ words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” are the constitutional means of ensuring, however imperfectly, the American freedom to stand for something sacred. In his analysis, Goldford ably demonstrates that the very nature of these religion clauses establishes protection not for religion but for religious freedom. The Constitution of Religious Freedom argues that religious identity inheres not in the nation, but in the individual citizen.

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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Koppelman on Justice Stevens’s Treatment of Religion

Andrew Koppelman (Northwestern University School of Law) has posted an interesting piece, Justice Stevens, Religious Enthusiast. The abstract follows.

It is sometimes alleged that Justice John Paul Stevens is hostile to religion. In fact, however, Justice Stevens espouses a position with religious roots and enthusiastically embraces a distinct conception of religion. This casts doubt on the claim, made in different ways by Eduardo Peñalver and Christopher Eisgruber, that the fundamental concern of his religion clause jurisprudence is equality. At least as important to him is protecting religion from corruption by the state.

Stevens’s position, in order to be consistent, ought to acknowledge, more forthrightly than he does, that it treats religion as a distinctive human good. Any notion of corruption implies a norm or ideal state from which the corruption is a falling off. An invocation of the corruption rationale presupposes that religion is a good thing deserving of protection. To call this view hostile to religion is confused to the point of perversity.

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