The Establishment Clause Gag Reflex

Some outcomes of Establishment Clause cases are better defended on realist rather than doctrinal grounds - that is, not on the basis of supposedly neutral principles, but by reference to some assessment of the kinds of church-state interactions that most Americans would tolerate. I call this the Establishment Clause gag reflex. A constitutional gag reflex refers to the instinctive intellectual revulsion one might feel in response to the doctrine or holding of a case. For example, a contemporary judicial decision countenancing permanent denial of citizenship to racial minorities, or that denied to such minorities liberty or equality rights enjoyed by whites, is unthinkable today. The constitutional gag reflex functions rhetorically much like the parade of horribles, in which one lists the ostensible horrors that would follow from an outcome one opposes. However, whereas the parade of horribles derives its rhetorical force as much from the length of the parade as from its participants, the constitutional gag reflex is triggered by a sole potentiality whose singular undesirability is so obvious that its mere possibility causes one instinctively to shudder, albeit intellectually. The Establishment Clause gag reflex, then, is an instinctive intellectual revulsion to the possibility of particular resolutions of Establishment Clause cases. The Establishment Clause gag reflex provides a helpful way to think about the current state of Establishment Clause doctrine. For the last two decades, the rhetorical center of the Clause has shifted, from a concern with separating church and state, to a concern with treating religion neutrally or equally with secular activities. The question of the day is whether neutrality should entirely displace separation, or whether separation should continue to trump neutrality in some situations. Locke v. Davey, for example, seemed to be about religious discrimination, as the appellee and the dissenting Justices argued. It also looked like content-based discrimination by the state against certain programs of religious education (which, after all, is speech). Neutrality would seem to require that religious individuals who otherwise qualify for state educational aid not be denied such aid simply because of they choose a pastoral course of study. But if this doctrinal principle had been implemented, it would have inevitably triggered paradigm violations of the Establishment Clause. Although the Court has declined to allow neutrality entirely to displace separation as a doctrinal principle, it has no coherent account that defines the limit on neutrality. Though not a doctrinal principle itself, the Establishment Clause gag reflex reflects important constitutional instincts about the limits of neutrality as a doctrinal principle

An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps. One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir Edward Coke\u27s notion of a higher-law constitutionalism that understood natural and customary rights as limits on crown prerogatives and parliamentary lawmaking. The American colonies adopted higher-law constitutionalism in their revolutionary struggle, and carried it with them through independence and constitutional ratification. Natural and customary rights limited the exercise of legislative power in the late eighteenth century through the normative definition of law inherited from the classical natural law tradition, which maintained that an unjust law was not really a law. American judges and attorneys did not consider legislative acts that violated natural or customary rights to be real laws, regardless of their compliance with a positivist rule of recognition. Accordingly, deprivations of life, liberty, or property effected on the authority of such acts did not comply with the law of the land or the due process of law, because regardless of the process such acts afforded, the deprivations they imposed were not accomplished by a true law. The classical understanding of law and thesubstantive understanding of due process that it underwrote are evident in legal dictionaries and in judicial decisions and arguments of counsel during the years immediately before and after ratification of the Bill of Rights in 1791. On balance, these authorities show that one widely held public understanding of Fifth Amendment Due Process Clause in the late eighteenth century included judicial protection of unenumerated substantive rights against congressional encroachment. Given the contemporary dominance of originalist theories of interpretation, anoriginalist defense of substantive due process under the Fifth Amendment is important for at least three reasons. First, such a defense provides a textual footing for important unenumerated substantive rights against the federal government. Second, because the original meanings of the Fifth and Fourteenth Amendment Due Process Clauses are widely thought to be identical, the originalist defense dramatically alters the interpretive landscape surrounding Fourteenth Amendment substantive due process, placing on its opponents the burden of explaining how and why the substantive understanding of due process in 1791 was lost by 1868. Finally, an originalist defense of substantive due process demonstrates that originalism is consistent with the progressive, common law recognition of individual rights

American Civil Religion: An Idea Whose Time is Past

From the founding of the United States, Americans have understood loyalty to their country as a religious and not just a civic commitment. The idea of a \u27civil religion\u27 that defines the collective identity of a nation originates with Rousseau, and was adapted to the United States Robert Bellah, who suggested that a peculiarly American civil religion has underwritten government and civil society in the United States. Leaving aside the question whether civil religion has ever truly unified all or virtually all Americans, I argue that it excludes too many Americans to function as such a unifying force in the present. I discuss the general content of American civil religion, and then briefly examine how it has been deployed to sacralize four historical \u27moments\u27 in American history, the Founding, the Civil War, the Cold War, and the contemporary Culture Wars. I argue that religious pluralism and sectarian activism in the United States make a unifying civil religion improbable from a practical standpoint, and that the tendency of civil religion to devolve into idolatry, i.e., the sanctification of the government and its goals, makes it normatively unattractive, particularly for religious minorities. I close by suggesting that American civil religion can genuinely include and unify all Americans only if it drops its religious component, and that American society has sufficient cultural resources to inform a \u27secular\u27 civil religion.This paper was delivered at a symposium entitled \u27Civil Religion in the United States and Europe: Four Comparative Perspectives,\u27 held at Brigham Young University Law School on March 12-14, 2009

True Lies: Canossa as Myth

This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often simply referred to “Canossa” after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom. The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. “Canossa,” instead, is a myth. More salient, nonmythical analogies for a “freedom of the Church” exist in U.S. constitutional history: genuine state sovereignty and dual-sovereignty federalism from the 19th century, and state dignity and native American domestic dependency from the contemporary era. These more historically accessible analogies all suggest that any “freedom of the Church” in U.S. constitutional doctrine is greatly diminished from the robust freedom argued for by those who invoke “Canossa” as that freedom’s defining moment. But even the mythical “Canossa” remains important. Myths are stories that a society tells about itself, stories that preserve and clarify its deepest values and commitments. Like the “myth of Magna Carta” that has exerted so much influence on English and American constitutional law, “Canossa” emphasizes the dangers to liberty from a government that sees no bounds on its jurisdiction and authority. Though historically false, “Canossa” might be mythically true

Public Life and Hostility to Religion

Many who value the contributions of religion to American life have contended that American public life is hostile to religion. They perceive many of the Supreme Court\u27s Religion Clause opinions as hostile to religion, and circulate anecdotes about the antireligious hostility of public life. Studies also suggest that some of the principle actors in American public life systematically marginalize religious viewpoints relative to secular ones. Nevertheless, others are baffled by the suggestion that public life discriminates against religion. These people note that religion is deeply (if controversially) involved in much of contemporary American politics, and dismiss anecdotes about such hostility as isolated instances of departure from a rule of religious accommodation in public life. This Essay seeks to demonstrate in a more precise way how American public life is hostile to religion. Like so much else, the hostility of public life to religion can be traced to one of the conceptual foundations of liberal political theory: the distinction between the public and the private. The Essay begins with a sketch of this distinction in American liberal thought, noting that the public is generally privileged over the private. The Essay argues that, because knowledge is associated with public life and belief with private life, both the distinction between knowledge and belief and the predominance of the former over the latter are assumed rather than demonstrated. It illustrates this thesis with an analysis of two Supreme Court decisions, Aguillard v. Edwards, a creation science decision, and Employment Division v. Smith, a decision about religious exemptions. The Essay closes with some observations about the significance of recognizing that American public life is hostile to belief

Indeterminacy and the Establishment Clause

Part of Symposium: Establishment and Fairnes

True Lies: Canossa as Myth

This essay is a response to Paul Horwitz, “Freedom of the Church without Romance,” published as part of a symposium on “The Freedom of the Church.” The essay endorses Horwitz’s central thesis that advocates of a contemporary “freedom of the Church” have overlooked historical complexities in marking the 11th-century investiture conflict between Henry IV and Pope Gregory VII, often simply referred to “Canossa” after the small Emilian village where Henry sought absolution from Gregory, as the birth of that freedom. The essay goes beyond Horwitz to argue that the historical account of “Canossa” presupposed by freedom-of-the-Church advocates is literally false. “Canossa,” instead, is a myth. More salient, nonmythical analogies for a “freedom of the Church” exist in U.S. constitutional history: genuine state sovereignty and dual-sovereignty federalism from the 19th century, and state dignity and native American domestic dependency from the contemporary era. These more historically accessible analogies all suggest that any “freedom of the Church” in U.S. constitutional doctrine is greatly diminished from the robust freedom argued for by those who invoke “Canossa” as that freedom’s defining moment. But even the mythical “Canossa” remains important. Myths are stories that a society tells about itself, stories that preserve and clarify its deepest values and commitments. Like the “myth of Magna Carta” that has exerted so much influence on English and American constitutional law, “Canossa” emphasizes the dangers to liberty from a government that sees no bounds on its jurisdiction and authority. Though historically false, “Canossa” might be mythically true