Thursday, September 25, 2014
I highly recommend Yuval Levin's essay in the most recent issue of First Things, "Taking the Long Way." Especially this:
Not everyone has the good fortune of a flourishing family, or the opportunity for rewarding work, or a liberal education, or a humbling faith, let alone all of these at once. But some combination of these soul-forming institutions is within the reach of most, and the work of reinforcing them, sustaining the space for them, and putting them within the reach of as many of our fellow citizens as possible is among our highest and most pressing civic callings. That calling, rather than a hyper-individualist liberationism, should be the organizing principle of our political life, helping us see what to conserve and how to advance.
According to the New York Times, "the vast Church of the Holy Sepulcher mark[s] the site where many Christians believe Jesus is buried." Rod Dreher is right:
I can understand someone living in Pakistan, or Sichuan province, not getting that all of Christianity, in its many versions throughout the ages, rests on the resurrection of Jesus. I don’t understand how an educated American, whatever his beliefs, can not know that. Yet that story got through several layers of editing at the Times before making it into print. It’s staggering.
Wednesday, September 24, 2014
The Judiciary Act of 1789 was enacted two hundred twenty-five years ago today. It was a monumental achievement for the First Congress. Among other things, the Act gave concrete institutional shape to a judiciary left open-ended in Article III. (Remember the "Madisonian compromise"? The biggest fight surrounding the first Judiciary Act centered on the need for an extensive system of lower federal courts.) The Act also began the process of working out the relationship between state and federal judiciaries, advancing a process of constitutional liquidation anticipated by Hamilton in Federalist No. 82. And Section 25 of the Act, which provided for Supreme Court review of state decisions via writ of error, explicitly contemplated judicial determinations of the constitutionality of statutes. (This is the practice we now call "judicial review," although that term did not emerge in connection with this practice until the early twentieth century.)
September 24 is also John Marshall's birthday; today would have been his 259th (b. 1755, d. 1835). It is fitting that Chief Justice Marshall and the federal judiciary share the same birthday. Perhaps the coincidence can remind us to be grateful not only for the Great Chief Justice, but also for Oliver Ellsworth, the father of the Judiciary Act and our third Chief Justice.
In reading through Josh Blackman's criticisms of Justice Ginsburg's forthcoming Elle interview, one of Justice Ginsburg's answers stood out to me:
Interviewer: Fifty years from now, which decisions in your tenure do you think will be the most significant?
J. Ginsburg: Well, I think 50 years from now, people will not be able to understand Hobby Lobby.
Justice Ginsburg's response not only fails to answer the question asked, but also advances an insupportable claim about the comprehensibility of a recent opinion of the Court. Are there any Supreme Court decisions from fifty years ago (which is just 1964) that people today cannot understand? What is it that Justice Ginsburg thinks future interpreters will find so hard to comprehend about Hobby Lobby?
In terms of comprehensibility to future interpreters, I tend to think that Justice Alito's more formalist opinion for the Court will be more understandable than Justice Ginsburg's purposivist dissent. Understanding the majority opinion requires less contextual knowledge of the sort that may fade with the passing of time. Someone trying to figure out how the majority and the dissent arrived at their respective conclusions about the scope of RFRA's coverage can more readily understand the largely textualist analysis of the majority opinion than the dissent's importation into RFRA of a judicially developed formula designed to implement a religious organization exemption for a different statute.
Perhaps future interpreters will disagree with the outcome in Hobby Lobby; hard to say with any confidence whether disagreement will be greater or lesser than it already is. But it should not be difficult for future interpreters to understand how the Court arrived at its decision.
Sir Edward Coke was a lawyer, an MP, Attorney General, and Chief Justice of the Court of Common Pleas of the King's Bench. He is widely considered one of the fathers of the common law. Here is a fragment of the preface to Part Two of his Reports. I was struck by the terms in which he discusses the common law:
To the learned Reader
There are (sayeth Euripides) three Virtues worthy [of] our meditation; To honor God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honor to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speak of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt [MOD trans.: But there are some disdainful types who hate every high calling with which they are unfamiliar, I know not for what reason]. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speak of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England....
Their example [that of the "Sages of the Law"] and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any many of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.
If you observe any diversities of opinion amongst the professors of the Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis [MOD trans.: the vice of man, not of the profession].
Tuesday, September 23, 2014
Church Signs, Content Discrimination, and Freedom of Assembly: Amicus Brief from CLS and the St. Thomas Religious Liberty Clinic
The Supreme Court this term is hearing Reed v. Town of Gilbert, a church's challenge to a town ordinance that imposes widely varying size and duration requirements on temporary signs with different messages and subject matters. "Political signs" (those supporting candidates or ballot measures) and "ideological signs" (those that simply communicate a noncommercial message) can be much larger and stay up much longer than "temporary directional signs for qualifying events," which announce an event (other than a political one!) and give directions to it. Officials classified Good News Church's signs for its weekly Sunday worship services (held in rented public-school rooms) into this last category. The signs thus could not be placed until 12 hours before the services and had to be removed within one hour afterward.
The UST Law Religious Liberty Appellate Clinic, which I direct, wrote an amicus brief for the Christian Legal Society and several other groups supporting the church's challenge. We argue that the sign ordinance is content-based (discriminating based on the subject matter of the signs) and thus subject to strict scrutiny; we support the plaintiffs' argument that the content-discrimination category applies here even if the town was not shown to be motivated by disagreement with the message of disfavored signs.
We also argue that the disfavored treatment of signs that announce and give information about a noncommercial event conflicts not only with freedom of speech, but with the distinct First Amendment right of freedom of assembly. This may call to mind for readers John Inazu's important recent book, Liberty's Refuge: The Forgotten Freedom of Assembly, and we rely significantly on the book in this section. We think that the denigration of the value of event announcements in this ordinance really frames nicely John's point that assembly should not be reduced merely to speech (or the other doctrine, lacking an explicit textual pedigree, of "intimate or expressive association"). Here's a bit from that section of the brief:
The Court of Appeals’ holding that speech announcing events has little or no constitutional protection is gravely detrimental to the distinct First Amendment right of freedom of assembly. Because the people have the right not just to speak, but “peaceably to assemble,” U.S. Const. amend. I, messages announcing events and directing people to them cannot be relegated to inferior constitutional status. Substantial restrictions on meeting announcements and directions can severely hamper the practical ability of groups to assemble...
This Court has made clear that the “right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.” De Jonge v. Oregon, 299 U.S. 353, 364 (1937).... Accordingly, the interpretation of free speech principles must give weight to the distinct but related right of assembly.
The press release from CLS is here. Thanks to clinic student (3L) Michael Blissenbach, who did a fine job in contributing to the drafting of the brief. And of course thanks to Kim Colby of CLS, who as many readers may know is one of the nation's very best religious liberty lawyers.
Here's the abstract:
This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.
At the Libertas Project workshop on economic freedom this past summer, one of our sessions took up the issues posed by Cass Sunstein and Richard Thaler's Nudge, which is generating a cottage industry of commentary around issues of freedom, autonomy, and government paternalism. This interesting review at the NY Review of Books by Jeremy Waldron of two (!) new books by Sunstein nicely frames the debate.
Waldron points out in the review the danger in Sunstein's claim that "we should design policies that help the least sophisticated people in society while imposing the smallest possible costs on the most sophisticated" of what Bernard Williams memorably called "Government House Utilitarianism":
There are deeper questions, too, than these issues of trust and competence. As befits someone who was “regulation czar” in the Obama White House, Sunstein’s point of view is a rather lofty one and at times it has an uncomfortable affinity with what Bernard Williams once called “Government House utilitarianism." Government House utilitarianism was a moral philosophy that envisaged an elite who knew the moral truth and could put out simple rules for the natives (or ordinary people) to use, even though in the commissioner’s bungalow it was known that the use of these rules would not always be justified. We (the governors) know that lying, for example, is sometimes justified, but we don’t want to let on to the natives, who may not have the wit to figure out when this is so; we don’t trust them to make the calculations that we make about when the ordinary rules should not be followed. Williams saw the element of insult in this sort of approach to morality, and I think it is discernable in Sunstein’s nudging as well.
Here's an interesting question for Catholic legal theory: Does the Catholic tradition's robust commitment to the common good sit comfortably with Sunsteinian nudging of citizens by the state (one might even think that, pace Sunstein, nudging should include not merely health, safety, and economic choices but also moral virtue)? And how much does the answer to that question turn on accepting something like Sunstein's welfare maximization account, which is hardly what the tradition means by the common good? But if the political common good is merely instrumental to other human goods, one has reservations about the competence of the state in such matters, or one is concerned about the autonomy of our choices (a libertarian view one doesn't readily encounter in Catholic social thought), then perhaps the critics of nudging are right to worry about it. (See Waldron's comments about how Sunstein's equation of autonomy with welfare is "remarkably tone-deaf to concerns about autonomy").
Eli Wald (Denver) and Russ Pearce (Fordham) have offered a thoughtful and helpfully critical review of my recent book, Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice. Here's the opening:
Rob Vischer has written an elegant and thought-provoking book, in which he asserts convincingly that something is very wrong with the legal profession and lawyers today and supplies an innovative and intriguing, albeit not fully realised, alternative vision. In doing so, moreover, Vischer joins Brad Wendel in authoring a pathbreaking book as part of a ‘new generation’ of scholars that seeks to build on the success in influencing the academy—and to learn from the failure to persuade practising lawyers—of an earlier generation of leading thinkers, including David Luban, Deborah Rhode, William Simon and Thomas Shaffer, who challenged the dominant conception of lawyers as neutral partisans. . . .
The bulk of Vischer’s book is an attempt to address this very challenge [of individualism] by providing a rich account of relational content to lawyers, offering means of expanding their view, as well as their clients’ view, to develop a practice of law that respects and advances clients’ true nature and objectives as relational beings. The relational content draws primarily on the teachings and thinking of Dr Martin Luther King, Jr—including his reliance upon agape, personalism, justice and Christian realism. Vischer’s book is impressive because it builds on at least three bodies of work—Dr King’s teachings, Christian theology and lawyers’ professionalism—to produce an easily readable, concise, practical blueprint for lawyers interested in serving the actual needs of their clients. The book successfully demonstrates that lawyers’ fundamental premise about clients is erroneous or at least overly reductive, and creatively challenges the orthodoxy of autonomy and individualism by offering a rich relational alternative. It does all of that by reintroducing Dr King’s work to a new generation of lawyers—an objective worthy in and of itself.
Wald and Pearce do express some skepticism about some of my conclusions, wondering, for example, if atomistic individualism is so ingrained in our culture that the removal of institutional barriers will actually pave the way for relational lawyering in any meaningful sense.
The lawyers arguing about the constitutional redefinition of marriage (and arguing about who should be arguing about this)
Marcia Coyle of the National Law Journal and Adam Liptak of the New York Times have stories on the lawyers representing the various parties in the marriage-redefinition litigation. The NLJ story is titled "These Are the Lawyers Fighting Marriage Equality," and the NYT story bears the title "Seeking a Same-Sex Marriage Case Fit For History." It may not be intentional, but even these titles show a mixture of opinion and reporting functions.