Lily on Accommodation / RLUIPA, response 2

Lily on Accommodation / RLUIPA, response 2

I've been thinking a lot about your post, Mike, over the past day or so. Some instinct in me feels a little nervous about the civic religion concept, and I've been trying to figure out exactly why -- whether there's actually a good reason that it makes me uncomfortable, or whether it is just not a concept that I'm used to. Here's one worry I am able to articulate:

The church/state wall is, in many ways, most meaningful to me not because it keeps religion out of the government, but because it keeps the government out of religion. For example, I worry about the recent Supreme Court decision affirming the use of school vouchers. This is not so much because I think that the government is embracing religion by giving parents more choices about where to send their kids to school. Rather, I don't want the government to ever be able to say to a religious school that they can't refuse to hire teachers who do not share the school's religious views. Here's how this could happen: If enough of a school's funding has its source in the voucher system (say, for example, 80-90%), then some plaintiff's lawyer is going to be able to make a pretty persuasive argument in court that that school's hiring decisions amount to "state action." The problem with that is, the Constitution and U.S. statutory law very properly do not allow the government discriminate on the basis of religion (or race, etc.) Therefore the school will be forced to make the choice between forgoing 90% of its funding (thereby almost certainly going under, at that point!) or hiring someone whose religious views and values are deeply contrary to what the school is trying to teach. In short, whenever the government starts getting its fingers into a venture, that venture is running a risk of losing autonomy.

In a worst case scenario, if this type of thing started happening all over the place, we would experience a national watering-down of our religious schools. These schools serve incredibly important purposes in American culture, instilling moral and religious values in many future leaders, and quite simply, bringing young people to God. A dilution of their mission would, in my opinion, be a national tragedy.

And this is only one example of an instance where an erosion of the church/state wall could have highly damaging repercussions to the very institutions (churches) that the government is trying to support. I am sure we can think of many others.

I would be really interested to hear others' thoughts on all these issues... Is there any way to allow the government to help fund worthy religious causes without experiencing the downside of government interference? On a slightly different note, is there any way to have a "civic religion" type of concept that is not merely a watered down, generic, over-politically-correct version of the incredibly powerful religious ideals by which many Americans live their personal lives?

Lily on RLUIPA, response 1

Lily on RLUIPA, response 1

Perhaps the attorneys arguing the RLUIPA case before the Supreme Court made the decision to address it through an Establishment Clause analysis rather than a Free Exercise Clause analysis for tactical reasons, rather than because it was really the best theoretical framework for their argument. Generally speaking, the type of remedy one is seeking in a free exercise setting is different from the remedy sought in an establishment clause setting.

If you are asserting a free exercise violation, you're saying, OK, here's this law, and y'all are welcome to enforce it against the general public; but you should make an exception for little old me, because enforcing it against me would violate my right to freely exercise my religion. Example: in Smith, as Andrew has mentioned, a group of Native Americans was challenging a statute prohibiting the consumption/abuse of controlled substances. They argued that they were entitled to have the statute re-written to include an exception for them, because smoking peyote was part of their religious rituals, and the state was infringing on their free exercise rights by enforcing the statute against them. (They lost, as Andrew has noted.) Importantly, the plaintiffs in Smith were not trying to get the whole statute invalidated; they just wanted an exception to be made for themselves.

Conversely, in an Establishment Clause setting, a plaintiff is seeking an entirely different remedy. Plaintiffs suing under the Establishment Clause typically want the challenged state action or statute to be completely invalidated, so that it will apply to no one. An example would be a case where the government puts up a nativity scene display around Christmastime. Generally, when a government-sponsored display includes a creche alone, a court is not going to allow it; the government will have to take it down, and nobody will be able to look at it.

In the present case, it sounds like maybe the remedy the plaintiffs are seeking is an invalidation of the entire RLUIPA statute, as opposed to an exemption from it just for themselves. Thus the Court's Establishment Clause jurisprudence lends itself better than the Free Exercise jurisprudence does, to the goal that plaintiffs ultimately want to achieve. Andrew, Mike, and I observed a similar phenomenon when we were all in Chapel Hill, watching the unfolding controversy over the University of North Carolina's summer reading assignment of a book entitled, Approaching the Q'uran. There, the plaintiff-students challenged the summer reading assignment on an Establishment Clause basis, not a Free Exercise Clause basis. They wanted to invalidate the whole summer reading program, not obtain an exemption from it personally. Like the RLUIPA briefs, the briefs in the UNC case did not address free exercise. (The plaintiffs lost this one, too, incidentally; but the University on its own initiative granted them personal exemptions from the assignment.)

Perhaps some of us have heard the adage, "Bad cases make bad law." In the present discussion, I guess bad brief writing is what makes the bad law. I can't really think of any way to alter the remedy structure of the establishment/free exercise jurisprudence (can y'all?) So I guess what we really need is plaintiffs who are more interested in obtaining the fairest result than imposing their own views on others, and thus would be willing to accept the humbler free exercise remedy than the sweeping establishment clause remedy.....

Accommodation

RLUIPA

In speaking about the 10 Commandments cases, Mike brought up a point with which I have some sympathy. It has also been raised by Stephen Carter of Yale Law School; to wit, what are normally called the Establishment and Free Exercise Clauses are in fact one clause...shall we say, the religious clause. Grammar supports this line of thinking, as the prohibition of Congress establishing religion and the ensured free exercise thereof are separated by a comma, not a semi-colon. While my embrace of proper grammar might have different interpretive results than Mike (and I know they differ from Professor Carter), it is a point that is, sadly, too seldom made.

For now, I will use Mike and Professor Carter's important point as a means to bring up another important religion case argued recently before the Court. And to assure this post is a short and earnest one, I will give away that I am more posing a question than posing my soundly reasoned opinion. The question(s), so we can all read attentively, is: what is accommodation, and under what Constitutional test/structure do we think about it?

Several years ago, in Smith, Justice Scalia made the lives of local, state, and federal governments a great deal easier. Until his majority opinion in that case, these government bodies would pass laws. And then, naming various religious reasons, various citizens would achieve exception from those laws. If, for instance, the Tillich-ian ground of your being opposed war, you needn't point to any particular creed in order to avoid the draft. (draft cases are the representative cases in most con law books.)

In Smith, the Court faced a law addressing peyote, and a group that believed smoking peyote to be central to their religious beliefs. The Court had had enough of seeking out, for each of these cases, the truth of whether this and that practice constituted genuine religious exercise, thus meriting the protections of free exercise. Rather, said Scalia, if a law has general applicability, and does not have as its purpose the effect to drive out a particular religion, that law passes under the first amendment(the Court maintained some well established protections that are not pertinent here).

The effect of all this was to ease the burden on government and their enforcement of laws. Before Smith, if someone raised a successful religious claim, the government could only enforce the law against that person if is was absolutely necessary to fulfill a compelling government purpose. After Smith, as long as the law was generally applicable, the government need only show the law reasonably relates to some government purpose, even if it infringes on your religion.

All this turned out not to sit so well with certain groups; and Congress tried to overturn Smith with the Religious Freedom Restoration Act, led by Sens Hatch and Kennedy. The Court, though, overturned Congress' dissent with Boerne, reminding Congress that, since Marbury v. Madison, the Court is the final word on things Constitutional.

Congress went back to the drawing boards, and found a way, via the post-civil-war amendments to exempt some religious activity from general laws. In the Religious Land Use and Institutionalized Persons Act, Congress asserted, after holding some hearings, that religious buildings and prisoners suffered a particular history of religiuos persuction from the government. Thus, the law (RLUIPA), was remedial, and passed not to overturn Smith, but to correct a pervasive pattern of government persecution.

That is the law that was heard before the Court recently. But, with all this buildup, I will not go into the facts of the cases. Rather, I will say simply that the cases were analyzed, in the briefs, as "Establishment Clause" cases. Namely, the argument is that, in allowing exemptions for non-persecutory laws because of a claim that such laws invade religious activity, the government is offering special benefit to religion; thus, violating the establishment clause.

The arguments for these exemptions did not bring up "accommodation." They did not ask the Court to accommodate religious practice. Thus, my confusion. When we talked about the 10 Commandments (traditionally an establishment clause conversation), Mike responded that we need to accommodate religion. And many commentators took similar positions. But, in what seems to me a return to the fights of Smith, and what would seem to be free exercise scenarios, nary a word of accommodation.

Perhaps I am merely laying down some history that will feed later discussion. For what it's worth, though, I wonder if I maight gain some insight on what you all mean when we talk about accommodation. I think of it from a free exercise perspective. From what angle do you come?

post duchampism?

Post Duchamp Phily.

Owens Rhetoric is mobile today, enjoying Philadelphia free wireless. We're here to spend the holiday weekend with the greek vase expert of the family. I heard faint echoes of our conversations below as I walked down Chestnut Street.

Via slowens, I've learned today of the work of "Banksy." From Reuters:

A British graffiti artist who goes by the name "Banksy" went one step further, by smuggling in his own picture of a soup can and hanging it on a wall, where it stayed for more than three days earlier this month before anybody noticed.

The prank was part of a coordinated plan to infiltrate four of New York's top museums on a single day.

The largest piece, which he smuggled into the Brooklyn Museum, was a 2 foot by 1.5 foot (61cm by 46 cm) oil painting of a colonial-era admiral, to which the artist had added a can of spray paint in his hand and anti-war graffiti in the background.

The other two targets were the Metropolitan Museum of Art and the American Museum of Natural History, where he hung a glass-encased beetle with fighter jet wings and missiles attached to its body -- another comment on war, Banksy told Reuters on Thursday.

It seems appropriate that I am near the resting place of Marcel Duchamp's final work; for, it would seem, Banksy has moved us into post-Duchampism. If the former chess king reckoned that art is what a museum chooses to display, Banksy has put the artist back into an active role- art is what the artist achieves placing into the museum. Down with curators! Given, the art gallery is still pre-eminent. What does this say about our attachment, ancient as it is, to that institution?

tragedy

What happened in Minnesota yesterday is violent and saddening. I believe this is the worst school shooting for some time, and I hope the community pulls together as best they can. I'm not sure whether its better or worse for their wellbeing that this has not received the same type of coverage of Columbine.

I hope it helps us find a way to do what's right: keep guns out of kids' hands. And help communities prevent anyone from resorting to such horrific action.

Lily on the Ten Commandments, Response 2

Lily on the Ten Commandments, Response 2

Okay, I probably should pipe up and clarify my position on the Ten Commandments issue, at least where I stand at the moment. (Subject to change, of course, because Mike's and Andrew's insightful comments are always challenging me to go deeper to refine my own thoughts!)

First of all, when we reflect on the profound role that the Ten Commandments have historically played in Western legal culture, it is easy to forget that, while they are AN influence, no one could argue that they are the only influence. [We can argue all day about the extent of their historical significance; my own thoughts on the role they have played (and still play) were a subject of my earlier post.] Consequently, I think that they are properly displayed in the decorations at the U.S. Supreme Court and other such locations, where an attempt has been made to acknowledge their importance while, at the same time, maintaining their context amongst other pillars of the Western legal system. I think having a picture of Moses holding the Commandments in a sculpture is not significantly different from having a picture of Blackstone or Hammurabi with their respective codes, when all these figures are presented together as part of an integrated pictorial commentary on the history of American law.

Where we run into problems is when the Commandments do not appear to be presented in a way that reflects a sensitivity to their role in the larger picture of the American legal system. When they are presented in isolation on a public school house wall, or in the lobby of a courthouse, or on the grounds of the state capitol, I honestly don't think it is obvious to the casual observer that they are being presented for historical reasons rather than religious reasons -- even if the underlying reason for putting them there WAS primarily historic.

I hope this clarifies that I am not arguing that our country is founded solely on Judeo-Christian law. But I think that the Judeo-Christian perspective plays an important role in the rich tapestry of our legal history, and it is no more wrong to acknowledge that than it is wrong to acknowledge Blackstone and Hammurabi. In fact, what if we had a sculpture with Blackstone and Hammurabi, but neglected to include Moses solely because we didn't want to have a monument with a religious figure in it? This very well might violate the establishment clause, too, since the government may no more discriminate against a particular religious tradition (or religion in general) than it may advocate for it.

I also wanted to clarify a point in Mike's most recent 10 Commandments post, which Andrew has also addressed: NO ONE is arguing (seriously) that I can't parade around on the state capitol grounds tomorrow with a sandwich board painted with the Ten Commandments. Of COURSE I can do that, and so could any of us. But, importantly, I have to buy the sandwich board and the paint with my own money. I cannot do it with the taxpayers' dollars. Why? Because the government is not allowed to make any law (or allocate any money!) respecting an establishment of religion.

Also, to respond to Andrew's and Mike's inclusiveness comments: Oddly enough, I don't see the debate over inclusiveness as entirely relevant. Suppose every person in America was Christian, and we had no de facto diversity of religion at all. Given our constitutional jurisprudence over the last several hundred years, even in that scenario it would still NOT be okay for the government to spend a bunch of taxpayer money to put up religious monuments in isolation, such as crosses, or tablets with the Commandments or the Beatitudes on them.

Many thanks to both Mike and Andrew for their courageous and honest exploration of these extremely difficult issues. Discussing them with you is a great privilege!

Owens on Commandments, 2

Owens on Commandments on display, 2

Several issues must wait, excited though I am to address them: the first amendment as a structuring mechanism ( I think it reflects the resounding purpose of our Nation); and incorporation through the 14th amendment (we're just going to have to save that one, Mike)...

Then, there are several nuggets I'd thought to add to the waiting list, yet realize they are important elements of this discussion: moral vs civic sources of law, being one I see in Lily's discussion. Mike and Lily leave me with a plethora of juicy sub topics that fight in opposition of my hope to soundly and concisely address our main topic, Commandment displays.

The crux of my disagreement:
"...to recognize particularly the role of Christian and Judeo thought in our nation's history, its moral movements, and yes, even its governance."

In both Mike and Lily's responses, I see an appeal to supposed historical fact; namely, that our Country is founded on Judeo-Christian law. My use of "supposed" is likely a startling rhetorical choice, and I use it carefully. Certainly, I acknowledge the profound influence that this religious heritage has on Western thought, and on the people that gathered to form together our Constitution. But our Constitution is not founded on the Western idea of God. The framers made a deliberate choice not to include that word in the fundamental document. We know the choice is deliberate, because "Nature's God" and the "Creator" find a place in the Declaration of Independance. But that document, that severed us from England and made us NOT a country, is quite different from the one that made us one.

While Judeo-Christian thought surely has a pronounced place in the context and subconscience of the Drafters, in English law, and in our society today, Ten Commandment displays such as the ones in Court last week work against what our Country is founded on; namely, the provence of the individual conscience (at least, as from government...I do believe in community's influence).

Mike is quite right to argue that religion, through the first amendment, is made special in our Country. We believe, as a national community, in the profound importance of earnest belief and thoughtful deliberation. For that reason, we do not allow the government to direct our faith and we accomodate citizens' efforts to practice their faiths.

It seems to me that, when we read religion clause as one (what is normally separated into Establishment and Free Exercise), and we allow in the context of an increasingly pluralistic (vocally, anyway) society through the centuries, we must interpet "establish" broadly--and that interpretive choice, as I understand it, is the issue here.

In the cases Mike apparently disdains, the Court is trying to answer, hard though it be, that question. What is it to establish religion in a pluralistic society?

As to the inclusive nature of these displays, I simply don't view it as such.

I would be interested to see the results of a study: how many religious monuments have been offered for display on public property? and of those, which do governments subsequently display? Our hunches on this may be revealingly different. Mine is that the 10 Commandments have a higher success rate than, say, a Witchcraft display. But I'm guessing that's a hypothetical we don't want to get into. It tells, though, my presumtions and fears here--that governments, in displaying such monuments, are, again, making a choice of religions. Further, here, the monument displays the Protestant version of the Commandments, not their Hebrew script (" I am the Lord, thy God, took you out of slavery...").

More to the point, I just don't see how it's inclusive to pick a central piece of a religion and display that with governments imprimature.

Finally, a word on accomodation. That is a free exercise issue. My borad reading of "establishment" should not imply a contempt for religion nor the public display thereof. Nor, really, careful government assistance and collaboration with religious institutions. People with signs in the park, no problem. Here, there is a clear line betwen accomodation and establishment: where is it that a reasonable person would think the government, as opposed to the people, makes the religious choice?

pulling the plug

When is it ok to pull the plug?
Texas law, in a piece of legislation signed by our President, who today flew back to DC to sign Delay's legislation to send the Shiavo's case to a Tennessee federal court, has an opinion.

If the question is: who can decide whether to pull the plug on a patient in a vegitative state, I have a great deal of patience and willingness to listen and learn. I am afraid the popular rhetoric has nothing to do with that debate.

Lily on the Ten Commandments, Response 1

Lily on the Ten Commandments, Response 1

Since we are committed to engaging in honest, thoughtful dialogue, I should begin by mentioning that I am truly undecided on the Ten Commandments issue. My "gut instinct" is not leaning one way or the other yet on the cases currently before the Supreme Court. One of the great things about having the chance to dialogue with our thoughtful friend Andrew on these difficult issues is that it can help me work through some of the nuances and gray areas that have so far prevented me from coming to any solid conclusions.

The initial starting point of my thinking is: I sense that a balance must be struck. On the one hand, we can probably agree that the Commandments cannot properly be displayed when their primary purpose and effect is to establish or promote religion (to borrow some Lemon test terms). If the display is making a blunt statement that the government is embracing a religious creed in the course of its lawmaking, I cannot see how the establishment clause would allow such a thing.

However, surely any historical study of how law has evolved over time would simply be factually inaccurate if it failed to include some mention of the Decalogue. The ancient Hebrews took an enormous jurisprudential stride when they tied the pragmatic laws about how you run a society (don't steal, don't kill, etc.) to the moral and ethical laws about how one worships. Prior to the revelations of Moses, the prevailing status quo in human societies involved a dual approach to lawgiving: there were laws about how you worshipped the gods to keep from angering them, and then there were laws about how your society functioned. The great innovation of the Ten Commandments is that they meld together these two concepts, by suggesting that you can please God by following such societal strictures as not lying and not stealing.

Perhaps one way to look at it is this: before the advent of the Ten Commandments, a person had (1) a civic duty not to lie, steal, etc., and (2) a religious/moral duty to worship the god(s) of his choice. But the Ten Commandments say, "You know what? You have a RELIGIOUS duty not to lie, steal, kill, covet, etc." The Decalogue recognizes that there are certain fundamental principles that societies need to espouse in order to survive, and then takes one more step: it transports those pragmatic principles into the realm of the sacred.

Ask virtually any American, and s/he will tell you that s/he not only feels s/he has a civic duty not to commit murder, but also an ethical duty not to do so. In fact, I would hazard a guess that on a personal level, most feel that the ethical duty is the more persuasive reason for refraining from wanton killing. Certainly, I don't want to kill people (or lie to them or steal from them) because I understand that society would descend into chaos if everyone was doing that. But it is even more compelling to me that killing, lying, and stealing are actions that violate a moral duty. If I had to tell you my number one reason why I don't do those things, it's the moral duty, not the pragmatic considerations.

So, all of this is to say, I truly think there are two intellectually honest sides to this debate. The trouble, as usual, comes with line drawing: how do we decide where the line is between a display that is an honest historical acknowledgement to one of the pillars of our American society, and one that is implicitly saying, "We, the government are embracing the particular religious tradition that gave rise to this list of rules"? On that, I simply don't know yet!

graham

(Kudos, let's hope, to Sen. Graham. See this.)

churches and the State

churches and the State

We are about to engage in some very good discussions on the first amendment and religion, and we'll do it in spurts frequently. The first, and for which this serves as an introduction, will address the recent arguments before the Court concerning two Ten Commandment displays on government property. I anticipate some worthwhile and valuable exchanges. First, though, I begin with a confession.

Through my disgust with the state of popular political rhetoric, I've come to see a source of the problem; to wit, our refusal to address and disclose our motives and underlying predispositions. This leads to some, I would say, evil arguments. Evil, because they deceptively center the debate on false parameters and relay false earnest-ness on factors toward which we ought to find greater flexibility. More troubling, such rhetoric fails to allow the audience to achieve real understanding of the person's position. Instead of finding why we think something, and seeking some reasonable place for insight, we lock ourselves into debates that become little more than talking points and rubbish.

Thus, my confession: I do not think the Ten Commandments, should be displayed anywhere that a reasonable person could perceive the government has so placed. This is not a conclusion derived from the posture of this case, nor from legal precedent. Rather, it is my belief--formed from my fundamental notions of what the first amendment means, and the way our Nation should be. In other words, my gut reaction to the recently argued cases is that state governments, by placing these monuments where they did, are attempting to make a very important religious choice for the governed, and such action is wrong--legally and morally.

As for legal reasoning, the displays violate the establishment clause (barring Congress from establishing religion, and applicable to state and local government action as well). In my mind, this is a violation across the various Constitutional interpretive approaches, except strict constructionalist. But I will save addressing each approach for the progress of this discussion.

As far as I can tell, my own approach is a mixture. The history major in me joins Scalia in his originalist approach, and so I take account of the framers' choice of "religion" rather than "a religion." The latter phrase would suggest that the establishment clause precludes a national church. I think the choice of the broader "religion" means just what it says...Congress shan't establish religion through its laws. I also acknowledge, through my history studies, the fallibility of our understanding just what these people, so disconnected from us, were thinking and intending. I would take any conclusions with a grain of salt.

I also agree with those jurists that give due weight to precedent. Just as a piece of art is, in the end, defined both by its maker and the perception of its audience, so too is the Constitution. Its treatment and interpretation by the Court over many years is part of what it is. Thus, it is not a waste of time to evoke the various tests that the Court has used--coercion, endorsement, et cetera. Under all those tests, I think the displays fail.

Finally, I incorporate, in my Constitutional decision making, some degree of feeling--what I think the Constitution should be, and what it should be read to say. The heart of the first amendment is its attempt to structure a Nation that gives its citizens a space to find what is real and true. What purpose, I wonder, do the words making up the establishment clause carry if various levels of government can direct our contemplation of truth? The Ten Commandment displays do just that.

SoS

SOS for SS Privates
Jon Chait offers the important and needed response to Dave Brooks' ridiculous observations at the potential, momentary end of privitization.

Meanwhile, in the New York Times, David Brooks writes a "A Requiem for Reform," in which he blames GOP miscalculation, Democratic partisanship, and the selfishness of the voters for killing privatization. (A departure from his usual sunny populism, wouldn't you say?)

Actually, if reform dies, it wasn't selfishness that killed privatization. It was precisely the opposite.

The irony of Brooks' complaint, which we're sure to see repeated elsewhere, is that selfishness has always been at the core of Bush's economic agenda. He passed tax cuts by dismissing Democratic worries that it would burden future generations with debt. Remember him waving dollar bills and promising, "it's your money"? He organized lobbies representing the affluent to push for the tax cuts that would benefit them disproportionately. Karl Rove's re-election strategy was built on appealing to the narrow self-interest of a series of groups. Farmers got lavish crop payments. The steel, shrimp, textile and lumber industry got tariffs. HMOs and pharmaceuticals got lavish subsidies. Etc.

needleman

I've had many good discussions about what I call every American's civic duty. It is, in my mind, our job to take ownership of our civic thoughts with some degree of learning and opinion making. The learning should be obvious. The opinion making should be responsible--this is not a game (contrary to CNN's panel of pundits), nor should we allow ourselves the leisure to think our political choices are free from consequence.

On the other side, it is the duty of civic leaders to avoid the leasure of Machiavelli. Would be leaders have a duty to speak earnestly and with intellectual honesty.

Both these duties (the citizen and the politician) are in steep decline. And we shall return to the topic. Namely, am I right, or filled with elitism, when I assert we have no choice to withdraw from civic awareness? I'll argue the former, but not right now.

What, more importantly, is the point of our civic duty? I often argue that we are born (or become) Americans, and as such, we have no choice--just as we do not choose our parents. But to what end does our political thinking serve? The answer, I think, is to our Country. But without an articulation of what that means, as I am reading now in Jacob Needleman's "The American Soul," one would stand awefully confused by that end.

I am only shallowly dug into the book. For now, I can only say that his foundational point is what lies behind my insistance on civic duty:
"To a significant extent, democracy in its specifically American form was created to allow men and women to seek their own higher principle within themselves."

Thinking about our Country, quite literally, is thinking about ourselves.

much ado

Tonight's play
was "Much Ado About Nothing"

Benedick: "...and therefore never flout at me for what I have said against it. For man is a giddy thing, and this is my conclusion."

machi

Our Machiavellian President

On a saturday, four months after the election, the Times decides to outline what is so problematic in this Presidency, and what it is doing to the national rhetoric.

Lily on Roper, response 3

Lily on Roper, response 3

I'm not sure that polling state legislatures on the juvenile death penalty is more "objective." It's more QUANTIFIABLE, and it's a way of measuring the majority's opinion. But that doesn't necessarily mean it is any more or less likely to get at the underlying truth of the matter than method (4) in Andrew's framework. Looking to majority opinions for guidance in policy formation works to some extent, but surely not always, or even often. Sadly, the majority can be just as likely to lead us away from objective truth as it is to lead us toward it. (Scariest and most obvious example in recent history: Nazi Germany)

The quantifiability of method (3) is probably what makes it so tempting as a rationale for decision-making. My experience in law school and my post-law school job, so far, has taught me that judges really, really like to decide something the easy way, instead of the hard way. Example: if, instead of having to do the hard work of reaching the constitutional merits, they can dispose of a case on procedural grounds, they will do it every time. For the most part, this is a laudable principle; it saves the constitutional questions for times when they really matter, and enables the court to choose its battles based upon when the most ideal, on-point factual situation presents itself. I wonder whether the Supreme Court in Roper went a bit overboard on this practice, though: by choosing method (3) over method (4), were they trying too hard to decide the easy way?

Also, in regard to Andrew's final observation, I should clarify that I didn't mean to suggest that our country's constitutional structure (and, if you will, "what it means to be American") is solely based on the democratic rule of the majority. I meant to invoke that principle on the nuts-and-bolts level of lawmaking; that is, I was just making the obvious and unoriginal point that a majority of Supreme Court justices hands down binding decisions, and (usually) a majority of legislators is required when a bill is being considered. My questions were, when is the operation of that mechanical principle completely inappropriate, and who gets to make that call as to whether we should use it or not?

Roper III

Roper 3, Owens

A difference in our Constitutional views might be in the different options we perceive to be before the Court. It looks like one way of looking at the case is this: 1) we need to understand the prevailing nation-wide view; 2)9 Justices have to make the call; 3)they could seek to find fairly objective means of doing so (a poll of state legislative actions; 4) or they could make up their own minds on the issue.

Under that framework, it would seem that I am arguing for point 4, and Lily is suggesting the wisdom of part 3. I am not certain this is the only available framework. Certainly, it makes sense. It is also, though, the framework that leads to many a deep contradictory reactions--ie, why do we celebrate Brown (which, under this paradigm falls under #4), but seem properly reluctant to praise a Justice's individual thinking at most any other time (you will never see a nominee say anyhting other than "I will seek to uphold the law, not make it" in front of a Judiciary Committee)?

I suggest this is not our only framework. We already know of at least another, suggested by a famously colorful dissenter of this case: what was cruel and unusual in the 18th century? I don't suggest that approach, though, as it is really much the same--simply replacing our current country with the one that existed more than 200 years ago.

What if we strike number 1 of the framework, and start with the question posed by the 8th amendment: what is cruel and unusual? Then, we make the following assumtpions: We place on the Justices the duty to decide, as Judges, not as representatives. They will not seek out their own interests, nor necessarily that of the majority. They will seek out the meaning of the Constitution.

That's an incomplete thought because I haven't completed it myself. But its a start. And, besides, we obviously have some further discussions to delve into--as I beg to differ that we are, at root, based on that democratic favoring of the majority. Look what happened to Athens.

Lily on Roper, response 2

Lily on Roper, response 2

In regard to your point that it is the Supreme Court's job to take on the moral questions head on: I definitely agree that putting bedrock constitutional principles into action in a constructive way is a proper role for the judiciary. I can see your point that it would be more useful to our nation for the Supreme Court to have a discussion entitled, "What is cruel and unusual punishment?" than one entitled, "How can we decide what most Americans think about cruel and unusual punishment?"

In the Supreme Court's defense, though, from a purely pragmatic standpoint I think it is at least arguable that we are likely to get results that more adequately reflect the prevailing nationwide view, if we play the Supreme Court game and take a poll of state legislatures. The essence of the counter-majoritarian difficulty is that 50 state legislatures (composed of scores of elected public officials who are accountable to their constituents every few years) are going to be a more representative slice of the American mood than ANY group of nine Americans, even nine brilliant, highly educated professional jurists whose own research is supported and enhanced by law clerks gleaned from the ranks of the nation's top law school graduates.

But, it might be objected, just because the majority of state legislatures would come out one way or the other on a given issue, doesn't mean that they are correct about that issue, from the standpoint of objective truth. What about racial issues like segregation and slavery, which have torn the nation apart for generations? On such deeply moral issues, history has taught us that we cannot afford to wait for a "national consensus" that might never come, or come too late.

How do we reconcile that point with the basic democratic principle upon which our government is built: that the majority wins? Do we need to modify that principle to say, the majority wins except when it shouldn't? But then, how do we know when it shouldn't, exactly? More specifically, is the juvenile death penalty a case where the majority should win, or where it shouldn't?

Owens on Roper, II

Owens Responds

As Kennedy writes, at the center of this case is human dignity: "By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons." Building on that, I think the 8th amendment is not simply a protection for the criminal. Is is, rather, a statement on our society, our compassion, and our collective understandings of punishment and revenge. The Constitution, then, is more than a blurry collection of laws that Justices can use to decide conflicts between individuals and branches of government. It is nothing less than the text of our National community. When we think about the Constitution, and our reading of the text, we necessarily think of who we are as a people. Thus, for those Justices that have been appointed and Senate-approved the extraordinary task of life tenure, so that they can approach this document with the purest frame of mind, I most certainly expect them to think (actively!) about what the Constitution means for us as a people.

The 8th amendment is a perfect example, in that it recites only "cruel and unusual" without particulars. There it is, in the Constitution, a statement about what we, as Americans, accept. And yet, the Constitution leaves blank the obvious question...well, what do we expect/tolerate? One could argue that is for legislators to decide, and to a great extent it is. But this is Constitutional law; thus, it is a brick wall surpassed by legislators only with another amendment. And since Marbury, we have accepted that Justices, largely, guard those brick walls. And, dropping that debate for the moment, it is simply a truth that this question--what is cruel and unusual--falls into the hands of the Supreme Court Justices. And like we trust our President with issues of whom we will drop bombs on, as a people, we trust the Court with this task.

Returning to my conviction that the Constitution is the most crucial piece of our Americanism, and to our National civic duty, I want very much for Justices to take the questions offered them head on--and not leave us to search dusty library religious/philosophy shelves. In my mind, discussing life/death/punishment is worthless if not given the civic meaning of the 8th amendment. What have I accomplished in deciding that I oppose the death penalty? Rather, I will argue that the 8th amendment of my county's founding document stands with me. I might be wrong, but we shall see.

Finally, my disappointment with the decision: I wish they hadn't centered the logic on the criminal's culpability. From the above, you can tell I wish the discussion was focused on us, outside the courtroom. Again, the 8th amendment is about Americans' values, not the criminal.

Lily on Roper, response 1

Lily on Roper, part I

On line drawing according to age:
As Justice O'Connor has pointed out in her dissent in Roper, we can probably all agree that there is almost no morally significant difference between someone who is 17 years and 364 days old, and 18 years and 1 day old. But, on the other hand, we can probably agree that there (almost) always IS a difference, for purposes of X (X = death penalty, drinking, the draft, voting, driving, etc.), between someone who is 5 years old and someone who is 35 years old. And, we know that we need an easy-to-understand rule. "18" or "16" is the best measurement approximation that we, as a society, can come up with, to reflect the standard we REALLY would like to impose, which is actually something more abstract, like, "able to appreciate the responsibility of driving" or "capable of forming the depravity requisite for the imposition of the death penalty."

The challenges of fixing exactly what age cut-off society thinks is an acceptable surrogate for the standard that we REALLY mean, is what I think Roper v. Simmons is really about. The justices can't agree on how best to measure society's thoughts on that subject.

On the role of the judiciary:
The justices also cannot agree, as Andrew has pointed out, how to figure in their own subjective moral perspectives in the calculus of determining what "society" thinks. It's an intriguing thought that, not only are the justices allowed to inject their subjective viewpoints, but in fact it might be required of them. It puts me in mind of that endlessly parsed, overly quoted, but nonetheless dearly beloved Supreme Court opinion called Marbury v. Madison, 5 U.S. 137 (1803), which states in part:

"Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him?" Id. at 180.

This passage would seem to suggest that a judge is obligated by his oath of office to bring something of himself to the table. Researching the vast case precedent, seeing patterns in his predecessors' legal reasoning, and compiling the fruits of his efforts into a coherent published opinion, usually is a monumental undertaking in its own right. But to this endeavor the judge must yet add something more: he must give society the benefit of his years of experience, and the wisdom he has accumulated by shepherding case after case through the litigation process. Perhaps most importantly of all, he owes it to society to allow his own inner moral compass to guide him to the right answer.

If this perspective on the role of the judiciary is true (and it may not be - the slope down which too many "activist" judges have slid is a steep one!) then maybe the more intellectually honest discussion from the Court would be whether the death penalty for juveniles is ethical, as such. Rather than arguing about how we decide what other people think about it, how about asking the much harder question: what do WE think about it?

But is it is fair to expect the Justices to engage each other, and the nation, in that discussion? Is philosophizing about ethical dilemmas really what the American taxpayer hires them to do? It is much easier to debate the objective moral status of the juvenile death penalty from the comfort of a warm, book-lined library in the religion department, or on a friendly web log, than to do so while simultaneously wielding the power of life and death over hundreds of incarcerated teenagers across the nation. Perhaps it was entirely correct for the justices to search for a different, more quantifiable way to frame this debate. What do we think?

Roper, I

Owens on Roper

Last Tuesday, the Supreme Court handed down its decision of Roper v. Simmons. Justice Kennedy, writing for the Court, revisits the 1989 case, Stanford v. Kentucky, where the court held that executions of those under 18 when the crime was committed did not violate the 8th amendment. Now, 16 years later, a majority of 5 Justices finds that, indeed, the state killing those under 18 when committing the crime is an infliction of cruel and unusual punishment. The Court reverses Stanford via one principle: Constitutional interpretation under the 8th amendment evolves.

When Justices decide whether a law causes "cruel and unusual punishments [to be] inflicted," the Court refers "to 'the evolving standards of decency that mark the progress of a maturing society' to determine which punishments are so disproportionate as to be cruel and unusual." Citing the several States that bar executions of those under 18 as well as the international consensus on the issue, Kennedy finds that such state killings are now outside the scope of socially accepted punitive action.

This case, then, centers on a powerful debate about Constitutional interpretation, and a good many legal commentators have already jumped on this opinion--the blurred consensus, that I've managed to read, seems to celebrate the ruling if not the reasoning; Kennedy's attempts to expose a profound national consensus against under-18 executions fails to convince. The opinion reveals, many say, 5 Justices hoping to insert their own moral judgments on the entire country. This is also Scalia's biting dissent.

The Court thus proclaims itself sole arbiter of our Nation's moral standards--and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

While the polite disagreement between Justices centers on methodolgy (did the Majority use statistics to correctly identify a certain--but undefined--National trend?), the case contains a real debate about the role of these 9 Justices. And I think phrasing the question makes all the difference. Is it proper that 5 people in Washington, DC can determine what is outside the standards of decency?

Or, has the Majority correctly ruled concerning the standards of decency within our Country?

Or, is it proper that 3 Justices (Scalia, Thomas and Rehnquist) would shuck their powerful decision-making role regarding our Constitution?

Scalia would ask the first, O'Connor (and Kennedy) the second, and I the third.

A select few Jurists think the 8th amendment forever refers to those punishments that were cruel and unusual in the 18th century. I, and the Court's precedents, think that the phrase is left unspecified (why didn't they just make a list?), consciously, in order to allow the amendment to apply to the evolving standards of human understanding.

My hunch is this: the easier a person accepts this reading of the 8th amendment, the less scrutiny he applies to Kennedy's reasoning in Roper. I find the first several amendments purposefully and meaningfully absent of particularity. I think they are meant to shift and evolve. And for that reason all those that might affect that evolution have an awesome responsibility to tread carefully and honestly. I am not applying extreme scrutiny to Kennedy's methodology, but I am applying a deep trust that he and the Majority took seriously their important role in shaping the Constitution.

Rhetoric

Introducing Lily.
After some tough negotiations, we've managed to sign on an insightful and bright friend to join in on discussions from time to time here at Owens Rhetoric. One aim of this sight is to explore a new political rhetoric that emphasizes constructive and vulnerable discussion. Vulnerable, because we will dispense with sound bites that muffle thoughthful counter-arguments with partisan cheers. Constructive, because we intend to get somewhere in our understanding of some pretty big issues.

Lily is kind enough to join with me in some back and forth comments- our first will begin soon, with the recent Roper decision from the US Supreme Court. Comments remain available, and we look forward to your thoughts.