Mirror of Justice

On "Popular" Originalism

The following is a post by my friend Don Drakeman, on a portion of the debate among Orin Kerr, Ilya Somin, and Larry Solum concerning the public's understanding of originalism and the originalist positions with respect to same-sex marriage.

 

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As part of a lively debate about originalism and same-sex marriage (at the Volokh Conspiracy site between Orin Kerr and Ilya Somin), Larry Solum has suggested that there is “no good empirical data on public beliefs about originalism.”  I can’t add to the substantive debate, but I have some empirical data about what the public believes about originalism.  Readers can decide whether it is good or not.

 

In 2012, I commissioned a YOUGOV survey of 1000 Americans specifically on the topic of originalism.  Most surveys have simply asked voters to choose between the Constitution’s original meaning and a more modern, living Constitution approach. Over time, the public has generally split about 50-50 on that point, with a majority periodically flipping from  one side to the other.  In my Originalism 2012 Survey, 60% chose the understanding of the Constitution at the time it was originally written, with 40% picking “what the Constitution means in current times.”

 

But here’s the interesting part. I asked the “current times” respondents what the Supreme Court should do with evidence of the original meaning.”  I expected that most would say that it should be either irrelevant or, or merely historical background.  Yet, only 3% said that the Court should ignore it, 18% opted for it to be used only as historical background, and an impressive 79% said that the Supreme Court should “consider it as one of the various factors that should be considered in making the decision.”  So, all in, over 90% of Americans think that the original meaning is at least relevant to the Supreme Court’s decision, with half or more considering it determinative.

 

That strikes me is as a pretty powerful reason for us to think hard about what the original meaning really is. Many of the debates among originalists center on exactly where we should be looking for that meaning.  I asked the public that question. Offered a series of possible sources, a majority of the public said “yes” or “maybe” to all of these four possibilities: Dictionary definitions; how average voters at the time of ratification understood it; how hypothetical, well-informed ratifiers would have understood it; and the understanding of the framers.  When asked which of these is the most important in the event of a conflict, 66% picked “what the Constitution’s framers intended it to mean.”

 

Whether the public’s views are important is an interesting question for debate. (For what it’s worth, I believe that they are.) For today, however, I simply wanted to point out that we do have some empirical data, and it speaks pretty clearly.

 

Details of the Originalism 2012 Survey (along with why I think it is important) can be found here:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2448431

Solidarity with Raif Badawi

In response to a deluge of requests by people from all over the world who wish to join us in asking to take a portion of the punishment of Raif Badawi, my dear friend Katrina Lantos Swett, President of the Lantos Foundation for Human Rights, has created a website where people can sign up to offer to take some of Raif's lashes. By sharing this website, I do not mean in any way to pressure anyone to sign up. This is a purely personal and vocational decision. No one is deficient in respect for human rights--and no one is a coward--for not joining us. In my opinion, God calls all of us to bear moral witness, but He does not call all of us to bear it in the same way. For example, not everyone was called to join Dr. King in going to jail in Albany, Georgia or Birmingham, Alabama. For those who feel called in this case, however, Katrina and her Foundation are making this website available. The one thing I would call everyone to do is pray for Raif and his family, and for the softening of the hearts of the Saudi officials responsible for the horrific injustice being committed against him. (For those who are reading this note who are not believers, may I suggest that you nevertheless join us in prayer, praying in the mode of Charles Ryder in Waugh's novel *Brideshead Revisited*:  Oh, God (if there is a God), I ask you to . . . .")

https://www.change.org/p/government-of-saudi-arabia-allow-us-to-take-lashes-for-raif-badawi

Some thoughts from a reader on Prof. Robert Rodes, liberation theology, and law

A few weeks ago, I posted about the death (and life, and work) of my friend, colleague, and teacher, Robert Rodes.   In response, a regular MOJ reader sent in the following.  I really appreciated this reader's thoughts and, with permission, I share them below:

1) On November 20, I attended (at my undergraduate alma mater Loyola-Chicago) first a memorial Mass in honor of the "Salvadoran Martyrs" (six Jesuits at the University of Central America and two lay women executed by the Salvadorn military in 1989) wherein Jesuit Fr. Jon Sobrino was a concelebrant and later in the evening an address by Fr. Sobrino after the conferral of an honorary degree by the University.  Both the homily at Mass (by another Jesuit of my acquaintance who accomplished great things in Peru) and the address by Father Sobrino invoked, as one might expect, principles of liberation theology which exerted a not insignificant influence upon me in my youth.  The day inevitably led to some wistful reflection - very lightly tinged with mild regret(?) - about how my professional life as a lawyer has measured up to youthful ideals, boxed away sometime during my first year of law school with my

dog-eared copy of Fr. Gutiérrez' A Theology of Liberation.

 

2) On November 28, I saw your post on MOJ concerning the death of your colleague at Notre Dame, Professor Robert Rodes, Jr.  The linked article by Professor Shaffer "The Christian Jurisprudence of Robert E. Rodes, Jr." led me to read all the articles by Professor Rodes available at SSRN or otherwise on the Internet (as well as your article about Rodes' notion of Church-State nexus and Professor Uelman's piece).  In particular, "On Professors and Poor People - A Jurisprudential Memoir" (2007) led me to acquire Pilgrim Law - I was hooked as he acknowledged the impact of William Stringfellow, Jacques Ellul and Father Gutiérrez on his work in "On Professors and Poor People,"  each of whom gobsmacked me in my youth. The notion of "liberation jurisprudence" I found bracing and concluded/hoped that, often without intent or understanding, I had occasionally stumbled into applying his reading of the "preferential option for the poor" at least during the last 12 years of my legal career.  Eschatology from a "radical Catholic" lawyer is by now for me easier to digest than taking it straight from radical theologians like Fr. Sobrino.  So, thank you for the introduction to Professor Rodes.    

3)  My Internet search also led me to a remarkable "non-legal" article by Professor Rodes from 2002 in the now defunct American Benedictine Review "On the Vocation of a Benedictine Oblate" available at:

http://babel.hathitrust.org/cgi/pt?id=mdp.39015077515248#view=1up;seq=9

Since 2000, I have sporadically attended Mass at the Benedictine Monastery of the Holy Cross in the Bridgeport neighborhood on the South Side of Chicago and have participated in a sort of book club sponsored by the monks since about 2001-2002.  Originally, I was exploring the notion of becoming a Benedictine oblate, but quickly decided it was not really for me - in part because my wife finds the monastic "thing" quite alien.  If my math is accurate, Professor Rodes and his wife had been oblates at Portsmouth Abbey in Rhode Island for 50 years before he wrote the article.  I don't know how one spouse could properly be an oblate without the other, and certainly I could not.  As someone hovering occasionally around the edges of Benedictine community, his insights here were at least as impressive (for me) as his eschatological, liberation jurisprudence.

 

4) While I had already read the excellent exchange in the February 2015 First Things when I saw your post on "Hanby, Weigel, and Dreher on 'The Civic Project of American Christianity'," further discussion there concerning the "Benedict option" led me back to Professor Rodes reflection on the vocation of the Benedictine oblate.  Hanby, Weigel and Dreher differ on several points but share a basically pessimistic view about the general prospects for Christians in America, let alone the "Civic Project of American Christianity."  Hanby and Dreher again discuss the "Benedict option." I tend to share a pessimistic view of most things, whether as a matter of personality or experience. 

However, for some reason I have been particularly taken by the last paragraph of Professor Rodes' article, mentioning the picture of the "old" St. Benedict beside a tree stump with a small leaf growing out of the side.  "Underneath was the motto SUCCISA VIRESCIT, when cut down, it grows green."  Some translations of the motto substitute "pruned" for "cut down" and "flourishes" for "grows green."  Professor Rodes' translation was spot on and very Benedictine. Succisa virescit is originally the motto of St. Benedict's own Abbey of Montecassino and developed at some time after the abbey was destroyed by the Lombards around 585 and by the Saracens in 884, but before the subsequent destruction by Normans in 1046, by earthquake in 1349, and by the American Army Air Corps in 1944. 

 

Ultimately, it seems the "Benedict option" is now what it always has been - pray and work wherever you find yourself, trusting always in the Lord.  If it gets cut down, it will grow green.  

More on the NLRB Decision in Pacific Lutheran

Over at the Law and Liberty site, Joseph Knippenberg has a post looking at the decision by the NLRB in the Pacific Lutheran case I mentioned here. A bit from his analysis:

First, the Board’s balancing act impels it to make judgments—historically eschewed by the Supreme Court—about the religious character of various educational and employment practices. The Board’s deep intrusion into the university’s functioning is based on a “stark error,” said Board member Johnson in dissent, for it elevates the rights granted by the National Labor Relations Act to the same level as a right guaranteed by the Constitution. And in its willingness to use state power to protect legislatively granted rights, the Board assumes the authority to make judgments about how religious institutions are to conduct their business, not just in terms of employment practices but also in terms of how faculty roles have to be defined in order to exempt them from regulation.

This is, needless to say, a serious diminution of the free exercise protections religiously affiliated colleges and universities have hitherto enjoyed.

Second, and connected to this, I would note the majority’s assumption about the only kind of religious institution that may enjoy the full range of First Amendment protections. To use the invidious language the Supreme Court once used to describe such schools, only “pervasively sectarian” colleges and universities—those on the margins of an increasingly secular society—can expect to be exempt from NLRB regulation.

On Holocaust Remembrance Day

 

Today is the observance of International Holocaust Memorial Day. It falls on the 70th anniversary of the liberation of the Auschwitz-Birkenau extermination camp, known as "the death factory." It is a day to remember, prayerfully, the victims, and to reflect, soberly, on the depth of human depravity. How, we ask ourselves, could human beings have tortured and brutally murdered millions of their fellow human beings? How could such inhumanity, such barbarism, have occurred in the modern world, and in Germany—a nation of unparalleled cultural and intellectual attainments? It is also a day to consider, humbly, that had we been there, few of us would have been among the heroes who, at great risk to themselves, sheltered Jews and other victims or joined the forces opposing Hitler and the Nazis. Very few of us indeed.

But above all, it is a day to say, from our hearts and with conviction: "Never again."

The Holocaust—the Shoah—did not begin with the mass killing of Jews or other ethnic or religious minorities, or even Hitler's political opponents. It began with the killing of the handicapped and infirm. They were, according to Nazi ideology, "useless eaters," "parasites," lebensunwertes leben ("lives unworthy of life"). It is important to remember that this eugenic doctrine did not originate with the Nazis. It began with polite, urbane, well-educated, sophisticated people who saw "social hygiene" via, among other methods, euthanasia, as representing progress and modernity. They wanted to ditch the old Judaeo-Christian belief in the sanctity of all human life and replace it with what they regarded as a more advanced and rational philosophy.

This was the view articulated by, for example, noted legal scholar Karl Binding and psychiatrist Alfred Hoche in their treatise *Permitting the Destruction of Life Unworthy of Life*, published in 1920. Binding and Hoche were not Nazis, and when they were writing their book the Nazi party didn't even exist. In a few years, however, Hitler and the Nazis would adopt their ideas about "social hygiene" (mixing in racialist ideology and nostalgia for a mythical golden age of Teutonic paganism) and carry out the euthanasia program with a remorseless, pitiless fervor. Thus, began what became the Shoah—the murder of six million Jews, two to three million Russians, two million ethnic Poles, and nearly countless other so-called “undesirables.”

Yes, let us truly say, from our hearts and with conviction: "Never again."

CLS (St. Thomas Law Clinic) Brief Defending NC School Choice

The Religious Liberty Appellate Clinic I supervise at St. Thomas has filed amicus briefs in a pair of important school choice cases. The North Carolina Supreme Court is reviewing a trial judge's invalidation of the state "opportunity scholarship" program that helped low-income students attend private K-12 schools if their families choose.  (See the Institute for Justice description of the cases.)  The issues are important not only because the program serves the commendable goal of empowering parents and families, but also because the trial court's ruling of invalidity made a hash of the "state action" doctrine, conflating religious admissions and hiring criteria by private schools with unconstitutional religious discrimination by the state.

The plaintiffs raised several challenges to the statute, including that it allows families to use their scholarship money at religious schools that allegedly discriminate by considering religious affiliation in their employment or admissions policies. The amicus brief focuses on this issue, arguing that to strike down the program on this ground would create severe tensions with the religious freedoms guaranteed by the U.S. and North Carolina constitution: schools’ freedom to maintain their religious identity, and parents’ freedom to choose a school with such an identity.

The St. Thomas news release tells you more about the amici--who include the Christian Legal Society (CLS), evangelical Christian school associations, and Catholic dioceses--and about our clinic.  The previous briefs we have filed are collected here.  3L student Jim Kovacs did an excellent job as the primary drafter of the NC brief.  And thanks to Debbie Dewart, our co-counsel in North Carolina, and Kim Colby of CLS, co-counsel on this and many other of the clinic's briefs.

Some resources on death-qualified jurors and Catholic teaching

One of the surprises of my first year of law school was learning that my real but still tentative faith-based opposition to the death penalty might prevent me from serving on a jury in a capital case. The idea of a death-qualified jury clashed with my notion of a jury of one's peers.

I've come to learn that an adherent to current Catholic teaching on the death penalty would not necessarily be excluded from a death-qualified jury. But I remain troubled about the idea of death-qualifying a jury.

In looking into various issues raised by our system's allowance for death-qualification of jurors, I recently came across a helpful list of resources compiled for the 2004-2005 Catholic Lawyer's Program sponsored by the Institute on Religion, Law, and Lawyer's Work at Fordham Law, "Catholics and the Death Penalty: Lawyers, Jurors, and Judges." Materials available online include a Foreword by Amy Uelmen, an essay by Gerald Uelmen, and the transcript of a discussion between two Catholic lawyers with prosecution and defense experience in capital cases. I recommend the essay by Gerald Uelmen in particular. 

"Protest too much"? A response to Schragger, Schwartzman, and Tebbe on the so-called Establishment Clause third-party harms doctrine

Richard Schragger, Micah Schwartzman, and Nelson Tebbe say that I (and it is just me, not "commentators," as far as I can tell) "protest too much" in interpreting Justice Ginsburg's two-sentence Holt v. Hobbs concurrence:

[S]ome commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents inEstate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance. 

Some points in response: 

(1) The "third-party harms doctrine" is a term coined by these scholars, not one that Justice Ginsburg or anyone on the Court has used. It’s not the term I would prefer to use to describe the kind of analysis used by the Court in Caldor and Cutter. A more precise label would be something like the “no unyielding weight doctrine.” See Cutter (explaining that "[w]e held the law invalid under the Establishment Clause because it 'unyielding[ly] weigh[ted]' the interests of Sabbatarians 'over all other interests.'") (quoting Caldor). But whatever.

(2) Justice Ginsburg would have made the same type of third-party burdens argument in the application of RFRA and RLUIPA if there were no Establishment Clause and if neither Caldor nor Cutter had ever been decided. The argument would take the form it took in United States v. Lee (decided three years before Caldor) or in Justice Jackson’s opinion in Prince v. Massachusetts (decided before the Establishment Clause was incorporated). We know this because Justice Ginsburg already relies on these cases, and these cases do not rely on Caldor or Cutter. See also part I.B.1 of the scholars' own amicus brief ("The Court’s mandatory accommodation decisions under the Free Exercise Clause reflect the same aversion to cost-shifting exemptions as its Establishment Clause decisions.") (emphasis added).

(3) This reliance on non-Establishment Clause cases in Justice Ginsburg’s opinions was part of the argument I offered in my interpretation. These scholars did not address it. Instead, they supported their “protest too much” claim by pointing to a feature of Justice Ginsburg’s opinions that I already addressed--its citation of some Establishment Clause cases. But as Marc and Rick and others have argued, one need not and should not understand Caldor and Cutter as providing a basis for freestanding Establishment Clause objections to accommodations required by RFRA. Cutter held that RLUIPA does not, on its face, violate the Establishment Clause because it does not provide for the unyielding weighting of religious interests over non-religious interests (as the Supreme Court understood the uncostitutional statute in Caldor to have done). In this respect, RFRA is just like RLUIPA. Both statutes, on their face and therefore as properly applied, require courts to take account of other interests in the application of strict scrutiny. One such interest may be in avoiding harm to third parties.

(4) When courts, properly applying RFRA, account for potential harm to third parties, they do so in applying a feature of the statutory strict scrutiny test. This feature that they apply insulates RFRA from a Caldor claim, as Cutter holds. But to say that courts consider third-party harm as part of the compelling interest test because of the Establishment Clause is to confuse a statutory feature that defeats an Establishment Clause claim with a reason for applying a statutory requirement that needs no reason to be applied other than that it is in the law. (As Schragger, Schwartzman, and Tebbe know, moreover, the compelling interest test is in RFRA because it was in prior Free Exercise jurisprudence, not because of anything stemming from the Establishment Clause.) And when courts consider third-party harms in applying RFRA's compelling interest prong, the relevant compelling interest is not avoiding an Establishment Clause violation. (RFRA already does that by authorizing substantial burdens on the exercise of religion when strict scrutiny is satisfied.) The relevant compelling interests, instead, are whatever interests the the government claims to be advancing in the regulatory scheme from which the religious believer seeks an exemption.

(5) If ever a debate were “academic” (as some use the term pejoratively), this would be it. I posted about a narrow disagreement with Rick and Marc to stir the pot a little bit here at MOJ. Because it’s not healthy (and not interesting) for us always to agree on everything, it’s helpful to occasionally flag disagreements, especially on points that may be of interest to law nerds like me and are disputed by others. To be clear, though, a two-sentence concurrence on behalf of two Justices who dissented in Hobby Lobby is not a “significant statement.” (If Justice Ginsburg's concurrence is a "significant statement," is it significant that Justice Breyer and Justice Kagan did not join it (just like they did not join Justice Ginsburg's analysis of RFRA's alleged non-coverage of Hobby Lobby in Hobby Lobby)?) Nor does such an opinion necessarily imply that a particular "doctrine" is alive and well. (For example, Justice Thomas's understanding of Establishment Clause non-incorporation is not "alive and well" in Supreme Court doctrine even though it has appeared in the U.S. Reports.)

(6) For actual significance, consider instead the unanimous Court’s confirmation of the correct approach to substantial burden analysis and its application of “exceptionally demanding” strict scrutiny.

Now, I suppose, I actually do “protest too much.” I offer no defense, but instead plead guilty because charged.  

Nourse, "blatherskite", and "the great irony of Lochner"

As part of my imperfect but ongoing attempts to resolve lingering questions about the legal meaning of the Fourteenth Amendment, I found myself today reading an intellectually exciting and insightful article by Victoria Nourse,  A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Cal. L. Rev. 751 (2009). I learned much from reading it, on matters both small and great.

On the smaller side of things, I learned a new word, "blatherskite."  (The word's meaning reminds me of Marc's immediately preceding post, in which Dickens has a character observe about another that "the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them.")

More to the point of my purpose for perusing, I came to appreciate how repitition of today's conventional academic wisdom about Lochner may unknowingly reflect the triumph of a claim advanced by Theodore Roosevelt in an underappreciated instance of popular constitutionalism. According to Nourse, "the great irony of Lochner is that an essentially political critique, [Theodore] Roosevelt’s strong-rights view, has become the 'doctrinal' understanding of the case."

Is Professor Nourse right? Read the whole thing.

Dickens on Our Tyranny Over Words

From David Copperfield, Chapter LII ("I Assist at an Explosion"), in which Mr. Micawber is expatiating on the various villainies of Uriah Heep in his genially orotund way:

Again, Mr. Micawber had a relish in this formal piling up of words, which, however ludicrously displayed in his case, was, I must say, not at all peculiar to him. I have observed it, in the course of my life, in numbers of men. It seems to me to be a general rule. In the taking of legal oaths, for instance, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, or so forth; and the old anathemas were made relishing on the same principle. We talk about the tyranny of words; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well. As we are not particular about the meaning of our liveries on state occasions, if they be but fine and numerous enough, so the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them. And as individuals get into trouble by making too great a show of liveries, or as slaves when they are too numerous rise against their masters, so I think I could mention a nation that has got into many great difficulties, and will get into many greater, from maintaining too large a retinue of words.

Noted not so much for the substance, with which I cannot quite agree. Our own difficulties have absolutely nothing to do with a little too much gusto in an unnecessarily expansive vocabulary. And there is some irony in Dickens offering this sentiment at the close of a book in excess of 800 pages. But though the substance of the criticism is common enough (indeed, all too common today--one hears something like this complaint about academic writing all the time), one rarely hears it expressed so well.