The importance and influence of originalism as a theory of constitutional interpretation cannot be overstated. Originalism demands a response, and it has been uniquely successful in generating responses (whether sanguine or skeptical) from constitutional scholars as well as the broader public. In recent years, originalism has enjoyed renewed prominence in both the courts and the scholarly community. So-called “new originalism” has come on the scene, garnering a few unexpected adherents. And originalism’s influence has certainly increased on the Supreme Court in the last decade. Indeed, it is difficult to imagine an opinion on, for example, the Recess Appointments Clause in the upcoming Noel Canning case that does not discuss originalist methods and reach conclusions consistent with originalist interpretive theory. That prediction could not have been made in previous eras.
The influence of originalist thinking on the interpretation of the Constitution’s religion clauses has been perhaps less powerful than in other areas (Michael McConnell’s work is a notable exception, and there are a few others). In part this is due to complex and difficult disagreements among scholars about the meaning and scope of the Free Exercise Clause (see, for example, the old debate between McConnell and Philip Hamburger, reflected in the dueling opinions by Justices O’Connor and Scalia in City of Boerne v. Flores). In part it is due to the radical expansion of the coverage of the Establishment Clause in Supreme Court caselaw beginning in the 1940s (see Donald Drakeman’s book, among other treatments) well beyond its original meaning. Nevertheless, there is a distinct possibility that originalist analysis will play a prominent role in the interpretation of the Establishment Clause in the upcoming Supreme Court legislative prayer case–at least in some of the opinions.
All of this is just a little background for what looks to be an extremely important new book on originalism by two of the most acute proponents of originalism (specifically, original methods originalism, which the authors usefully compare against the constitutional construction of another new originalist, Larry Solum) writing today: Originalism and the Good Constitution (HUP 2013) by John McGinnis (Northwestern) and Michael Rappaport (University of San Diego). The book is a must-read for anyone interested in constitutional interpretation (even for–especially for–those of us who are not originalists). For some of my own thoughts about originalism in constitutional interpretation, see the second half of this paper. The publisher’s description follows.
Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.
The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?
A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.
Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.’” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.
But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:
The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.
So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.
I’ve enormously enjoyed Don Drakeman’s posts, and had questions for the readership here (and for Don!) about this post involving original meaning and original intent. Don raises a number of points that I’ve been having a hard time wrapping my mind around with respect to the contemporary discussion of new (or new new) originalism. First, are there still advocates (besides Don) of the utility of original intent originalism floating about? I think there are (Larry Alexander comes to mind, and I have a memory of something on this by Steve Smith, too) but they seem to be grossly (and increasingly?) outnumbered by original meaning originalists. I should also note that Don, from my reading of his work, is not exclusivist about original intent. He simply thinks it might be useful evidence to consider. Second, is what Don says about the equivalence between the substantial underdeterminacy of original meaning originalism and original intent originalism accepted by original meaning originalists (see Don’s example about the varying interpretations of establishment in Massachusetts and New Hampshire, and for more examples, see his book)? There may, of course, be reasons to opt for original meaning over original intent (though the hypothetical time-traveling law professor analogy presents its own problems), but isn’t Don right that mitigating the problems of underdeterminacy surely is unlikely to be one of them?
Here’s an important new paper, Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:
This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Continue reading
Posted in Mark L. Movsesian, Scholarship Roundup
Tagged Articles, Christian Legal Society v. Martinez, Comparative Law and Religion, Constitutional Law, Education, Equal Protection, Fourteenth Amendment, International Human Rights, Legal History, Originalism, Religion in America, Religious Discrimination
Perhaps not centrally related to law and religion (though not disconnected from it either), but here is my review of Judge J. Harvie Wilkinson III’s book, Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance, over at The New Republic. I have the rough sense that my take is generally more positive than what I’ve seen from other legal academics and commentators, but perhaps you will let me know.
Here is a terrific collection of essays edited by Gerard V. Bradley (Notre Dame), Challenges to Religious Liberty in the Twenty-First Century (CUP 2012). The contributors are CLR Forum guest Steve Smith and our friend Rick Garnett, as well as José Casanova, Tom Farr, Daniel Philpott, Christopher Tollefsen, William Inboden, Professor Bradley, and my old mentor and dear friend, Kent Greenawalt. The publisher’s description follows.
Almost everyone today affirms the importance and merit of religious liberty. But religious liberty is being challenged by new questions (for example, use of the niqab or church adoption services for same-sex couples) and new forces (such as globalization and Islamism). Combined, these make the meaning of religious liberty in the twenty-first century uncertain. This collection of essays by ten of the world’s leading scholars on religious liberty takes aim at these issues. The book is arranged around five specific challenges to religious liberty today: the state’s responsibility to prevent coercion and intimidation of believers by others within the same faith community; the U.S.’s basic moral responsibilities to promote religious liberty abroad; how to understand and apply the traditional right of conscientious objection in today’s circumstances; the distinctive problems presented by globalization; and the viability today of an ‘originalist’ interpretation of the First Amendment religion clauses.
Not the most common threesome, it’s true, but united in this interesting piece by Joel Alicea and Donald Drakeman, The Limits of New Originalism. For those that don’t know Drakeman’s work, you should check out his terrific Church, State, and Original Intent (here are some thoughts I wrote up about the book).
The new piece argues that the “new” originalism faces an important problem when originalist materials point toward “two or more equally persuasive original public meanings.” The authors focus on what would ordinarily be a relatively obscure tax case from 1796 – Hylton v. United States — which involved the constitutionality of a federal tax on carriages. The case was actually cited fairly extensively by CJ Roberts in his NFIB opinion for the discussion about the direct taxation issue (see pp. 40-41). The tax was resisted by Hylton, a Virginia businessman, and other Southerners who believed that it was inequitable because of the greater prevalence of carriages in the South (the strategy used to get to the Supreme Court at all is pretty neat too). The case pitted Hamilton against Madison (who had argued against the tax’s constitutionality) and the issue was whether this new tax should be characterized as a direct tax or an excise tax, and “what to do when the best evidence of contemporary usage points in two directions.” The arguments advanced by lawyers for and against the government proceed through all of the accepted new originalist sources — dictionaries, ordinary or customary usage before the framing of the Constitution (of many sorts), resistance to the “foreign Lexicons” of “consolidated” as opposed to “confederated” governments, commentaries, poems (do see Andrew Marvell’s verse on the excise tax as a “thousand eye[d]” “monster” — eat your heart out, Argus!), ratification materials, congressional debates, and so on.
Today’s classic revisited is one in the sociology and history of religion, Mircea Eliade’s The Sacred and the Profane: The Nature of Religion, first published in 1957 (the first edition pictured at right). The field of religious studies, unlike theology, is a comparatively new one – beginning in earnest in the 19th century and heating up only in the 20th. One connection to law is the ‘definition-of-religion’ issue: how can we find an essence or core of what religion is – and so what the scope is of the constitutional commitments against its establishment and to its free exercise. The issue appeared in some of the Supreme Court’s mid-twentieth century conscientious objection to military service opinions, which, while not strictly about the Constitution (they were statutory interpretation decisions), confronted the Court with the problems of how to distinguish a religious reason of conscience from a different sort of reason, and whether to do so at all. But there are other less obvious and so far unexplored connections to law, particularly constitutional law.
The eminent and supremely cultivated theorist and historian of religion Mircea Eliade, Romanian by birth, taught at the University of Chicago after a turbulent early life. Together with Joachim Wach and others, Eliade made Chicago the heart of the academic study of religion in the mid-late-20th century, and to this day it retains some of the preeminent figures in religious studies (J.Z. Smith, Martin Riesebrodt, and Jean Bethke Elshtain, among many others).
Though Eliade never had any particular influence on the Court (a treatise of his was cited in the majority opinion in the Lukumi Babalu decision, as well as in a handful of 2d and 3d circuit decisions), his ideas about the nature of religious experience are extremely interesting and possibly deserve further study by legal scholars and courts — including by those interested in the psychology of originalism. One of Eliade’s crucial ideas was that the conceptions of “sacred” and “profane” time differ fundamentally. In sacred time, every time that we engage in a ritual or a ceremony, it serves to reactualize the “mythic beginning” which is “indefinitely recoverable, indefinitely repeatable.” (69) Sacred time is therefore cyclical; while profane time is linear. That “beginning” is not to be found in a historical moment because no time can precede “the appearance of the reality narrated in the myth.” (72) It is in this way that sacred time (and, we might say, sacred legal time) creates fissures or what Eliade called moments of “hierophany” in the humdrum linearity of profane time, in which a (legal) “beginning” is recalled and reactualized in (legal) ritual.
Eliade’s writing (laced in part with the writing of Freud and Jung) has not penetrated the constitutional discourse, but it has something worthwhile to offer.
Wesley J. Campbell, a student at Stanford Law School, has posted a very interesting looking note, A New Approach to Nineteenth-Century Religious Exemption Cases. The abstract follows. — MOD
Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with many nineteenth-century decisions, notwithstanding Justice Scalia’s claim to the contrary in his concurrence in City of Boerne v. Flores. Moreover, past studies have failed to appreciate the enormous midcentury shift in constitutional meaning in response to Mormon polygamy and widespread Catholic immigration. This transformation leaves originalism incapable of providing a consistent account of the Free Exercise Clause.
Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:
The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally. (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.)
Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998). Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking. — MOD