Power and the Subject of Religion

Under the First Amendment, Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end. Professor Lash argues that the implied power theory cannot withstand historical scrutiny. Whatever implied power arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the First Amendment. However, the enactment of section 5 of the Fourteenth Amendment does enable Congress to legislate- in a limited scope- on religious matters

On Federalism, Freedom, and the Founders\u27 View of Retained Rights - A Reply to Randy Barnett

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people\u27s retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits with the available historical evidence and reconciles the people of the Ninth with the people of the Tenth Amendment. At the invitation of the Stanford Law Review, Ninth Amendment scholar Professor Randy Barnett has now written a response to this piece. In his essay, Kurt Lash\u27s Majoritarian Difficulty, Professor Barnett characterizes my approach to the Ninth Amendment as majoritarian and argues that the Ninth was intended to reflect the distinctly antimajoritarian views of Madison and the First Congress. Instead of protecting the collective rights of the people in the states, Barnett maintains that Ninth Amendment protects only individual rights and cites as critical support the opposition views of the antifederalist Virginia Senate and the majority opinion in Chisholm v. Georgia. In this brief reply essay, I clarify the distinction between individual, majoritarian and collective rights and explain how all were likely among the rights retained by the people under the Ninth Amendment. This federalist (as opposed to majoritarian) reading of the Ninth Amendment was expressly embraced by participants in the drafting and ratification of the Ninth Amendment, in particular James Madison, the drafter of the Amendment. In a major speech which he delivered while the Ninth Amendment remained pending in the states (a speech which Barnett does not mention), Madison explained how the Ninth Amendment was drafted in response to concerns emanating from the state ratifying conventions and that both the Ninth and Tenth Amendments were intended to preserve the retained powers and rights of the people in the states. Although the Chisholm majority presented a distinctly non-federalist vision of the people, had this been the common reading of the Ninth and Tenth in 1791, this would have ensured the defeat of the Bill of Rights - an outcome Virginia antifederalists desperately but unsuccessfully sought to achieve

Enforcing the Rights of Due Process: The Original Relationship between the Fourteenth Amendment and the 1866 Civil Rights Act

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described the 1866 Civil Rights Act as protecting the natural and equal right to due process in matters relating to life, liberty and property. Believing that Congress at that time lacked the constitutional power to enforce the Due Process Clause of the Fifth Amendment, Bingham proposed a Fourteenth Amendment which expressly protected every person’s right to due process and granted Congress the power to enforce the same. Following the ratification of the Fourteenth Amendment, Congress repassed the Civil Rights Act and extended the majority of its protections to “all persons.” This final version of the Civil Rights Act cannot be viewed as an enforcement of the rights of citizenship. Instead, it links the Civil Rights Act to the Due Process Clause and the rights of all persons.Understanding the link between the 1866 Civil Rights Act and the 1868 Due Process Clause sheds important light on the original meaning of Section One of the Fourteenth Amendment. First, it reveals an underappreciated equal rights strain within the Due Process Clause, a strain that implicates broad congressional power to enforce the equal due process rights of all persons regardless of citizenship. Second, it suggests scholars have been looking in the wrong place for the meaning of the Privileges or Immunities Clause. Rather than protecting the natural equal rights of all persons, it appears this Clause protected the constitutionally enumerated rights of American citizens, such as those enumerated in the first eight amendments. These rights were now to be applied against state officials with new federal power to secure their adequate enforcement

The Inescapable Federalism of the Ninth Amendment

Over the past two decades, the most influential work on the Ninth Amendment has been that of libertarian scholar Randy Barnett. Over a series of articles and books, Barnett has presented the Ninth as a provision originally intended to preserve individual natural rights. Recently uncovered historical evidence, however, suggests that the Ninth originally limited federal power in order to preserve the right to local self-government. I presented this evidence in two articles published by the Texas Law Review, the first dealing with the original meaning of the Ninth Amendment, and the second dealing with a heretofore lost jurisprudence of the Ninth from its adoption through the New Deal. Recognizing the challenge this evidence poses to his libertarian theory of the Constitution, Randy Barnett has now published his response to my work. He concludes that although the evidence supports my federalist model of the original Ninth Amendment, it also supports his libertarian reading of the Ninth. Barnett also argues that even if the original Ninth bound only the federal government, the same set of rights protected by the Ninth were applied against the states in the adoption of the Fourteenth Amendment. In this article, I clarify the distinction between the federalism and libertarian models of the Ninth Amendment. I conclude that the two models are in critical ways incompatible, and that the historical evidence properly understood significantly undermines Barnett\u27s libertarian reading of the Ninth and Fourteenth Amendments. In addition to addressing those aspects of the historical record which form the crux of the dispute between Barnett and myself, I also present newly discovered evidence of the original meaning of the Ninth which further supports the federalist model of the Amendment

The Origins of the Privileges or Immunities Clause, Part III: Andrew Johnson and the Constitutional Referendum of 1866

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what would become the central issue in the fall elections: whether the southern states should be readmitted without condition, or whether they must first be forced to protect the rights of citizens of the United States. The second Part discusses the final framing and initial public discussion of the Fourteenth Amendment during the summer of 1866. The broadly publicized speech of Jacob Howard that introduced the Amendment to the Senate and to the country confirmed what observers of the Thirty-ninth Congress had long suspected: Congress proposed to require the states to protect the constitutionally enumerated rights of American citizens (through the Privileges or Immunities Clause) and the natural rights of all persons (through the Due Process and Equal Protection Clauses). In particular, states must respect the enumerated rights of American citizenship, from the substantive rights listed in the first eight Amendments to the equal protection principles declared by the Comity Clause. In response to what he viewed as a radical intrusion on the reserved powers of the states, President Johnson challenged the right of the rump Congress to propose constitutional reform and called on the country to make its opinion on the matter known in the fall election.The third Part examines the dramatic and tragic events of the summer of 1866 that sharply focused political debate in the fall and clarified to the electorate what was at stake in the upcoming election. The state-sanctioned attack on black delegates meeting in convention in New Orleans on July 30, 1866, shocked northern voters and became a Republican clarion call for ratification of the Fourteenth Amendment. When President Johnson had his administration declare the proposed amendment unnecessary due to the existing protections in state constitutions, Republicans pointed to the massacre in New Orleans as a stark example of why states must be required to protect the constitutionally enumerated rights of speech and assembly.The fourth and final Part of the Article discusses the aftermath of the Republican landslide and Johnson’s final attempt to defeat the Fourteenth Amendment. Working with a group of conservative advisors, Johnson drafted an alternate “fourteenth amendment” that deleted the Privileges or Immunities Clause and replaced it with a passive restatement of the Comity Clause. After months of political debate, it was clear the Privileges or Immunities Clause would force the states to protect rights that under the original Constitution had been left to state control. By erasing that Clause and replacing it with a restatement of the Comity Clause, Johnson’s version would do nothing more than require states to provide sojourning citizens equal access to a limited set of state-conferred rights. Johnson’s effort failed, but the attempt reflects the commonly accepted distinction between the Comity Clause of Article IV and the proposed Privileges or Immunities Clause—a critical point that cuts against scholarly attempts to equate the rights covered by both clauses. The Article closes with a discussion of remaining questions about the meaning of the Privileges or Immunities Clause and the need for a comprehensive theory of Section I of the Fourteenth Amendment

Rejecting Conventional Wisdom: Federalist Ambivalence in the Framing and Implementation of Article V

In 1787, the idea of placing an amending provision in a constitution was uncontroversial. Popular sovereignty was an assumed doctrine in the colonies; the people retained the unalienable right to alter or abolish their system of government whenever they so pleased. How this unquestionable right was to be incorporated into the new federal Constitution, however, was another matter. The delegates who faced each other at Philadelphia had very different views about which body should be entrusted with the power to propose amendments, when that power should be used, and how that power should be defined. Article V, like the rest of the Constitution, reflects a mixture of compromise and ingenuity. The delegates sought a national government strong enough to overcome the problems of the Articles of Confederation, yet with enough of a federal structure to placate Antifederalist fears of de facto consolidation of the states. By creating a dual triggering mechanism, one that could be pulled by either the states or the federal government, Article V satisfied both nationalist and statist that amendments of the proper kind would be put before the people. The polarities in the convention, however, were more than nationalist versus statist, or large state versus small. The debates that swirled within and around Philadelphia reveal competing conceptions of government: Classical Republicanism which presumed a virtuous citizenry who could be expected to sacrifice parochial concerns in the pursuit of a common good, versus the emerging Liberal assumption that society was composed of factions whose competitions could be, and must be, structured so as to achieve a stable form of government. This clash between Liberal and Republican assumptions became especially acute in the debates surrounding the first attempted use of Article V: the Antifederalist call to a second convention. Seeing only discord and ferment coming from a second convention, the Federalists articulated a new and darker view of conventions: Is there any guaranty that a national convention will result in the considered judgment of the people? How can the assembly avoid being dominated by faction and demagoguery? The shadow thus cast over the convention clause of Article V has extended far beyond the Founding. It has obscured from view what was to Eighteenth Century Americans the fundamental expression of the language of democracy, the people\u27s right to assemble apart from established institutions and determine their own form of government

Civilizing Religion

Is it appropriate to restrict abortion at any stage in pregnancy on the ground that human life is sacred? Should the public square be open to biblical arguments against homosexuality? Or, to frame the issue in a more scholarly fashion: What role may religious arguments play, if any, either in public debate about what political choices to make or as the private basis of a political choice? In his recent book, Religion in Politics: Constitutional and Moral Perspectives, Michael Perry addresses these questions as a matter of constitutional law and political morality. Perry has been down this road before, most notably in his 1991 book, Love and Power. This new effort represents both a response to scholarly criticism of Love and Power and a reflection of Perry\u27s rethinking the problem of religion in politics. Ultimately, Perry concludes that religious-based political advocacy is always constitutional, and usually moral as well. This distinguishes Perry from the more exclusionary theories of scholars like Robert Audi and Richard Rorty who would severely restrict the religious voice in political debate, or remove it altogether. Perry draws the line, however, when it comes to relying on religious arguments regarding human well-being (what must-or must not-be done in order for humans to flourish): these religious arguments (for example, arguments against homosexual sexual conduct) are not an appropriate basis for making a political choice unless that choice is also supported by a persuasive secular rationale. Thus, Perry stakes out a position somewhere between unfettered inclusion and complete exclusion of religious arguments from political debate and decision making. In the process, Perry provides the reader with a nuanced and reasonable approach to a rather complicated set of issues. In fact, Perry\u27s approach may be too nuanced and too reasonable: his constitutional and moral theories contain important caveats that are difficult to reconcile with his overarching principles. Also, Perry\u27s vision of reasonable religious dialogue seems but a shadow of the impassioned rhetoric that characterized the historic speeches of the religious abolitionists and currently pervades the debates over abortion and homosexuality-Perry\u27s paradigmatic instances of moral debates. In his attempt to civilize religion, Perry may have excised those arguments that are distinctively religious on subjects of critical concern to many religious believers. These, however, are but minor criticisms. Religion in Politics is a thoughtful and important addition to Perry\u27s previous work on the religious voice in the public square and it deserves a careful reading by anyone interested in the subject

The Second Adoption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment

This Article explores the proposition that the Free Exercise Clause was adopted a second time through its incorporation into the Privileges or Immunities Clause of the Fourteenth Amendment and that the scope of the new Free Exercise Clause was intended to include protections un-anticipated at the Founding. Contrary to Jeffersonian notions of separate spheres, the nation by the time of Reconstruction had experienced decades of clashes resulting from the overlapping concerns of religion and government. In particular, the suppression of slave religion called into question the government\u27s power to interfere, even indirectly, with legitimate religious exercise. Accordingly, the Privileges or Immunities Clause incorporated a conception of religious liberty vastly different from that intended in 1791 and constitutes a constitutional modification of the original rights of conscience. Religious exemptions from generally applicable laws, considered unnecessary and improbable at the Founding, now became necessary and proper

Power and the Subject of Religion

Under the First Amendment, Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof. Nevertheless, congressional actors have on occasion enacted laws that expressly make religion the subject of legislation. Many scholars justify these laws on the grounds that Congress at the time of the Founding had an implied power to legislate on religion if necessary and proper to an enumerated end. Professor Lash argues that the implied power theory cannot withstand historical scrutiny. Whatever implied power arguments may have emanated from the original Constitution, those arguments were foreclosed by the adoption of the First Amendment. However, the enactment of section 5 of the Fourteenth Amendment does enable Congress to legislate- in a limited scope- on religious matters