Active Liberty (Long Sidebar)

I led the RET book club‘s discussion tonight, having chosen the book for discussion, Active Liberty: Interpreting Our Democratic Constitution by Stephen Breyer, and it was a great success. It was a great turnout; more people than usual showed up for the discussion, and for a while, it felt like herding cats because so many people were jumping in to the talk. Nearly every lawyer in the group showed up, of course, and a law professor from UT also came and offered quite a few good insights.

On the book, I found myself not alone in my analysis that Breyer is attempting to pick up the flag of William Brennan and “breathing life into the Constitution,” nor was I alone in my critique of Breyer’s vulnerability to selective emphases in his philosophy to reach a pre-desired result. I did think Breyer was effective at pointing out that a more literalist approach, such as that of his colleague Antonin Scalia, can be and often is every bit as subjective as his own approach to jurisprudence.

There was surprisingly little controversy at all over my critique of Breyer’s philosophical stance of deference to majoritarian rule — that Breyer is too modest and not properly asserting the Court’s role as a guardian of Constitutional rights. This suggested to me that there was general comfort with the idea of the courts having an active role to play in the governing of the country. This is refreshing to note, especially given recent activism aimed at neutering the power of the judiciary. But that did not give Breyer much intellectual comfort in our group: “The role of the unelected courts in a system of democratic government is ambiguous, and Breyer has given us a way of looking at how those courts work which is similarly ambiguous,” I noted, and that seemed to be a great success.

While it wasn’t a bad thing, I found myself pretty much alone in the group when I condemned Breyer’s recent swing votes on religious symbols in governmental institutions. Here begins a long sidebar on the Establishment Clause. If you are not interested in my critique of current Establishment Clause jurisprudence, and Justice Breyer’s role in fashioning it, you can skip ahead of the block-indents.

Breyer’s decisions in Van Orden v. Perry (voting to permit the display of Ten Commandments on grounds of Texas Capitol) and in McCreary County v. ACLU (voting to forbid the display of Ten Commandments on grounds of Kentucky courthouse) were made based on Breyer’s analysis of the intent of the people who made those displays, and the differing lengths of time that those displays had been made available. Certainly Breyer was right to note in Van Orden v. Perry that “If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases,” and Van Orden did present a much more difficult case than McCreary County. But I think he blew the call — and thus the decision — in Van Orden.

As to the application of time (particularly in Van Orden), a violation of the Constitution is not somehow validated by virtue of the fact that it has been going on for a long time. Breyer agreed with the plurality opinion that the passage of 40 years’ time without a challenge to the display indicated that it was not an impermissible establishment of religion. But segregation of public schools had been going on for 80 years before Brown v. Board of Education, and that did not make it Constitutionally permissible. The passage of time should not have been a factor at all.

The other question for Breyer in the Ten Commandments cases became one of the intent of the creators of the displays, inferred from the context in which they were displayed. If the intent the law’s author is to be considered when evaluating its validity under the Establishment Clause, then why are blue laws constitutional? What is the secular intent of having “In God We Trust” on our money? What is the secular context of requiring a witness to swear to tell the truth under oath with the last part of that oath being “so help me God?” When I swore my oath to become a member of the Tennessee bar, I had to swear to God — was the oath any less binding to me than it was to someone who actually believes in God? The “tradition” and “history” behind those things are, as I noted above, insufficient justifications.

While I agree that intent and context are relevant and appropriate inquiries in a case like this, they are not dispositive. The result of intent-based and context-based analyses, as Justice Scalia rightly points out, is that the Supreme Court upholds governmental invocations of God when five or more of the Justices likes them, and strikes them down when five or more of them do not. No discernable rule or guideline can result from this kind of jurisprudence, and in that sense the Supreme Court is abdicating its role as the interpreter of the Constitution and assuming the role of a super-legislature, approving here and disapproving there, according to its collective whim.

But where Scalia sees God as an integral part of the tradition of America, inextricably intertwined into all of our national institutions and history, I say that tradition is not something upon which the Court should rely. I first point to the text of the First Amendment, which forbids any establishment of religion, and then to the intent of its Framers, a substantial portion of whom were outright atheists or the functional equivalent in the eighteenth century, Deists who believed only in a passive creator and not in the afterlife. Either interpretation renders the inclusion of religion in a civic activity suspect. Not always forbidden, I will concede, but always suspect.

So an explicitly religious act of the government (like a display of the Ten Commandments) should be presumptively a violation of the Establishment Clause, and require a showing by the government that it is not. This means the government must set forth an important purpose in making the reference to religion, and demonstrate that the reference is not advocacy of religion. Perhaps this departs from the concept that the government cannot be “hostile” to religion — but not being hostile to religion is not the same thing as fostering it, in even a general sense.

So either the display of the Ten Commandments is religious or it is not. It is one thing to point out (as Breyer does) that the Ten Commandments contain moral guidelines and are part of the heritage of American legal tradition; but it is quite another to ignore that three of the Ten Commandments are explicitly religious and have nothing whatsoever to do with the tradition of law as a secular aspect of the government. I can understand placing Moses holding the Ten Commandments in a larger context of celebrating laws that have governed societies before ours, although I would prefer that it do so only by implication (having the tablets bear only the numbers 1-10 or I-X rather than the text, but I also have a problem with the courts getting into that level of artistic detail).

But I don’t think the inclusion of such a religious symbol can possibly avoid being advocacy of religion, even if the advocacy is subtle. Personally, I look at those first three commandments and think, “I don’t do those things,” and it would obviously be improper if the government made me do them. The government’s placing those religious commandments in a position of honor, even within a display that admittedly is mostly secular, suggests to me that at some level, I don’t belong, that I am not wanted, that I am somehow excluded. Better in that case to not make the display at all.

But, as I mentioned before, I was out on my own for that issue. Most everyone else at the book club thought that Breyer’s analysis of the context and intent of the two displays made sense and that he had made the right calls in both cases. And it’s a relatively de minimis matter so long as the government does not demand that I subscribe to a religion. While it irked me to have to swear an oath to God in order to become an attorney here, I did it, and considered the “so help me God” portion of the oath as much a nullity as if I had sworn an oath to the sun. It diminished the solemnity of the moment in my opinion, although I realize that it increases the solemnity of such a moment for others. So it’s hard to get worked up in real life about this stuff; while academically the logic of it is as inescapable as concluding that burning the flag is free speech, the import of the issue is not that great one way or the other in practical terms.

Here endeth the sidebar.

While I disagreed with Breyer’s book quite a bit (I prefer the “balancing of competing interests” approach of recently-retired Justice Sandra Day O’Connor) I am glad I read the book and gladder still that RET had such a lively discussion of it. Both lawyers and lay people in the book club could appreciate the book, and everyone hungered for a more elaborate description and explanation of what Breyer was talking about. I was very pleased that the lay members were able to understand what was going on and that the subject matter was not too esoteric for them, and for the most part, the discussion stayed at a level of discussing the right way a judge should approach the task of making decisions rather than the substance of those decisions. Leading the discussion was fun. So was hearing different opinions about what the book was about, different visions of the right role of the courts in our society, and most of all, what it means to have a Constitutional government, was very enjoyable.

And, it’s important to read things with which you do not agree, to expose yourself to ideas that you wind up taking exception to, from time to time. It keeps the mind sharp and it keeps you intellectually honest with yourself.

Dinner afterwards was also particularly good. I got to sit next to Prof. Stephens, who encouraged me many times to seek an adjunct faculty position teaching writing at the law school. If I were staying here in Knoxville I would do exactly that, especially with the recommendation of a distinguished faculty member behind the application. But that is not meant to be; I’ll be back in California before the next semester at UT Law School begins.

I’m really enjoying the teaching gigs. I liked this book club, because it was like teaching — although at a higher level than a class; about half the participants were lawyers and the other half were really smart laypeople interested in the subject. I had a great class last week with the future paralegals. Online teaching is less interesting than it used to be, but maybe that’s because I was so unhappy with a class full of duds. I liked working with the bright students even in the bad class. I have a new online class starting Tuesday, so maybe that’ll be better than the last one. It’s fun and mentally stimulating; while it doesn’t pay as well as I would like, a part-time practice could make up for that. Alas, only too late have I found another piece of the Knoxville puzzle.