Honor\u27s Constitutional Moment: The Oath and Presidential Transitions

This Essay is part of a virtual symposium on the law of presidential transitions which will run in the coming weeks in Colloquy the online supplement of the Northwestern University Law Review This contribution to the symposium focuses on the implications of the Presidential Oath Clause Drawing on Bruce Ackermans language the Essay argues that every presidential transition is in an important sense a constitutional moment That moment is instantiated in a single act the taking of the presidential oath The oath is both an official act and a deeply personal one in which the oathtaker stakes his honor on the preservation protection and defense of the Constitution In doing so the new President necessarily must come to his own understanding of what the Constitution means and what obligations it imposes on him The Presidents duty to consider what the Constitution means and thus what his oath requires of him is indefeasible he cannot simply defer to the constitutional views of the courts of Congress of prior presidents or even of the people who elected him This understanding of the presidential oath as constitutional moment carries with it a host of possible implications They involve competing understandings of the nature of executive power of whether the President is obliged to preserve only the Constitution or the nation itself and of whether the new President is obligated to revisit and either ratify or rescind or even prosecute every action taken by the prior administration In confronting these questions the new President will also consider competing informational influences and policy considerations that may weigh on his choices Ultimately however the Presidential Oath Clause makes clear that the new President is oathbound to independently consider what the Constitution means and what it requires of him and to act accordingl

Law\u27s Expression: The Promise and Perils of Judicial Opinion Writing in Canadian Constitutional Law

This article argues that there is a link between ones theory of constitutional law and ones judgments about style in judicial opinion writing It identifies several special functions of the constitutional opinion including the democratic function of responding to the countermajoritarian difficulty through an act of public justification and the intergenerational function of provoking a temporally extended dialogue about constitutional values Drawing on these functions it argues for an opinion writing style dubbed opentextured minimalism which seeks to resolve cases narrowly articulate fundamental values and principles and spark longterm debates about the underlying values supporting each decision The article then applies these lessons to the Canadian Supreme Courts rulings on freedom of expression arguing that the Courts rulings on this subject in the first two decades of the Canadian Charter of Rights and Freedom suffered from their length and technicality and that the Court should have taken a more opentextured minimalist approach Although the article addresses Canadian law specifically its attempt to draw connections between constitutional theory and opinion style and its advocacy of an opentextured minimalist approach should be of interest to readers in the United States and elsewhere particularly lawyers in countries whose constitutional jurisprudence is still relatively youn

Judicial Character (And Does It Matter). Book Review Of: Constitutional Conscience: The Moral Dimension of Judicial Decision. H. Jefferson Powell; How Judges Think. Richard A. Posner; Judgement Calls: Principle and Politics in Constitutional Law. Daniel A. Farber & Suzanna Sherry

Book review: Constitutional Conscience: The Moral Dimension of Judicial Decision. H. Jefferson Powell. University of Chicago Press. 2008. Pp. x + 149 ; How Judges Think. Richard A. Posner. Harvard University Press. 2008. Pp. 387 ; Judgement Calls: Principle and Politics in Constitutional Law. Daniel A. Farber & Suzanna Sherry. Oxford University Press. 2009. Pp. xv + 201. Reviewed by: Paul Horwit

The Religious Geography of Town of Greece v. Galloway

Law and religion scholarship generally focuses on the temporal aspects of American religion and the law of the Religion Clauses not their spatial aspects This article argues that churchstate legal scholarship ought to take a spatial turn A substantial body of nonlegal scholarship has emphasized the influence of space and place on American religion and religious history The lens of geography observes a leading text provides an effective framework for analyzing the connection of religious belief to other spheres of thought and action at diverse scales Geography thus offers the potential for a richer understanding of American religious pluralism and of churchstate law itself The vehicle for this argument is a critical analysis of the Supreme Courts recent judgment in Town of Greece v Galloway which reaffirmed the constitutionality of legislative prayer even when delivered in front of a town board rather than before Congress or a state legislature Part I offers a critical summary of the opinions in Town of Greece v Galloway Part II compares Justice Kennedys opinion for the Court in Town of Greece with the principal dissent written by Justice Kagan It argues that despite their differences the two opinions have much in common Each presents a monistic sweeping vision of American religious pluralism suggesting that there is a single correct definition of religious pluralism one that is national in scope and uniform in application despite the nations incredible cultural and geographical diversity Ultimately for the reasons offered below both visions of American religious pluralism are thin unsatisfying and unlikely to last Part III provides an introduction to religious geography with its focus on spatial rather than temporalhistorical or abstract theoretical approaches to the story of American religious pluralism It turns the geographical lens on two aspects of Town of Greece First it provides an account of the importance of regions in American religious life and the varied strategies employed by different regions in dealing with religious pluralism It concludes that efforts like those of Justices Kennedy and Kagan to define or describe American religious pluralism in monistic terms and then build Establishment Clause law on the basis of that monistic account are mistaken and inevitably unstable Rather in the words of one author American religious pluralism can be understood as in fact consisting of an array of geographically defined pluralisms Second it examines what Richard Schragger has called the role of the local in understanding American churchstate law in general and Town of Greece in particular This section focuses on one striking and unfortunate aspect of Town of Greece the majoritys conclusion that the town acted reasonably when it limited its list of potential prayergivers to those living within the towns borders This limitation ignored the significance of the Jewish synagogues located close to the town but outside its official borders The article argues that the towns and the Courts approach to this question should have been sensitive to local facts and conditions not transfixed by a set of imaginary lines Somewhat ironically the opinion in this case that is most conscious of localism is Justice Alitos concurrence which emphasizes the informal imprecise practices of small and mediumsized units of local government and insists that courts must cut these units some slack in evaluating their practices lest they be foreclosed from offering legislative prayers at all For all the reasons that Alito suggests the Court should have done exactly the opposite of what he wanted and invalidated the towns prayer practices But that particular conclusion is less important than the general point geography including religious geography matters and should be an important part of churchstate law and scholarshi

A Close Reading of Barnette, in Honor of Vincent Blasi

This article written for a symposium marking the 75th anniversary of West Virginia State Board of Education v Barnette offers a close reading of Justice Jacksons opinion for the Court In doing so it offers an implicit and explicit tribute to Vincent Blasi whose teaching and writing have emphasized the value of deep careful engagement with the language and arguments of a single text such as a judicial opinion and who has been an inspiration to me and many other contemporary First Amendment scholars brbrThis close reading explores a gallery of passages from Barnette that have received relatively little scholarly attention largely because Jacksons arresting fixed star passage has monopolized much of the discussion But other passages in the opinion help reveal additional important points about the case with important broader implications They suggest something about why Jackson treated this as a speech rather than a religion case and as an individual liberty case rather than an equal treatment case They have implications for arguments about thirdparty harms government nonendorsement student speech and hecklers veto doctrine And they underscore the importance of Jacksons description of an autonomous sphere of intellect and spirit and of the limits of state power in this area Perhaps much more than has been recognized Barnette is a paean to the sovereignty of the mind and in doing so it treats this realm as much or more as a matter of state noninterference than as a subject for measured judicial balancing brbrAlthough I focus closely on the text of the opinion itself I offer some larger assessments of Barnettes condition today I make two general observations First on the one hand Barnette had an excellent 75th anniversary year with citations and discussions in major Supreme Court decisions suggesting its stock is high On the other I suggest that it is in much poorer health in academic circles A striking number of scholarly discussions of current issues such as the wedding vendor cases omit Barnette altogether I suggest that these omissions are evidence of a deeper discomfort with Barnette And for good reason As this close reading reveals the words and deeper music of Barnette are in genuine tension with current popular positions on these issues and suggest that at some point these scholars need to engage directly and seriously with Barnette Second I argue that in interesting ways Barnette is a kind of precapitulation of much that happened in First Amendment law in the 75 years that followed it This is true not just in the sense that Barnette positively inspired a great deal of First Amendment doctrine but also in the sense that much of the jurisprudence that followed consisted of efforts to cabin Barnette and its implications and to build safety valves around i