From both my travels around the country, and from the reactions in the blogosphere, it is evident to me that the Supreme Court’s opinion in Lawrence v. Texas, has struck a nerve in some people, as has my defense of the decision on this blog, in The Cato Supreme Court Review as well in as my amicus brief for The Institute for Justice. This reaction is so impassioned that it cannot be explained solely by outrage at any alleged judicial “usurpation” of the democratic process. Obviously, for some folks, the driving emotional force is the alleged sanctioning of homosexual behavior, even if most of these persons do not long for the imprisonment of their gay neighbors and coworkers that the statute in Lawrence authorized. For reasons best known to themselves, sanctioning homosexuality really bothers them a lot, and nothing so abstract as the original meaning of the Constitution will be allowed to stand in the way. If they can find a theory, any theory, of originalism that justifies the legal suppression of homosexuality, then that is super. But if not, then their originalism will be bent into a pretzel, or abandoned altogether if need be, to get where they want to go. [Note to readers: If this description does not fit you, then you need not write to inform me. I know it does not fit everyone who disagrees with Lawrence v. Texas.] Abortion is also floating close to the surface as evidenced by Professor Bainbridge’s recent post to which I respond here.
A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one’s even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.
The judicial “virtue” of fidelity to law is what Larry Solum has advocated for a long time (see here). Assuming that the written Constitution exceeds some threshold of justice, only when we demand judges who put the Constitution ahead of their policy or moral commitments can we hope to escape what he has called the “downward spiral” in which we are presently locked. But this requires that the Constitution have a meaning independent of that which either judges or legislatures give to it, which is provided by an originalism based on the public meaning of the words at the time they were enacted. Original meaning originalism is nothing fancier than the theory that the meaning of the Constitution must remain the same until it is properly changed and judges alone or in consort with the other branches are not empowered to change it because they are who it is supposed to bind.
In contrast, when one’s method of interpretation is “realist” or flexible enough to get you everything you care deeply about, I can assure you that very same method is flexible enough to get your political opposite most all that he or she wants, in which case everything then turns on who gets appointed to the court. Under conditions of full-blown realism, no one can stand the possibility that his or her opponents get their hands on the levers of constitutional interpretation. No one can safely trust that one’s legal realist political and moral opponents will put something called “the law” (which many realists mock as nonexistent,or as “formalism”) or “the Constitution” (which realists say means whatever the courts say it means) ahead of their deepest commitments.
When legal realist interpretation reigns and your opponent’s deepest commitments are in opposition to yours, a fight to the political death over judicial appointments results. The only way out of this death spiral is a commitment to “formalism,” by which is meant a commitment to a legal meaning of text independent of one’s own. Indeed one virtue of having a written text is that it provides something that can have a meaning independent of one’s own, a meaning that can depoliticize the judiciary to a significant degree if judges have the virtue of putting that meaning ahead of their own moral or policy desires. (This again is Larry Solum’s argument in The Aretaic Turn in Constitutional Theory.) Original meaning originalism is one such interpretive approach, though it is not without its weaknesses. (There may be others, but I have yet to be convinced that they are sufficiently independent of judges political or moral desires–but this is another story.)
If a commitment to formalism based on original meaning requires one to accept results with which one passionately disapproves–such as depriving legislatures of the power to criminalize homosexual sex in private, i.e. not in public places where even heterosexual “fornication” can be prohibited–what outcomes do I give up that I passionately prefer, outcomes that may well be welcomed by many of those who oppose Lawrence v. Texas? While there probably are more, let me confine myself to one.
I believe strongly in the separation of church and state. I believe strongly in a completely secular government, not only for my personal well being, but for the well being of others in society with me. I think a world in which governments endorse or aid religion is seriously inferior to one in which government has nothing whatsoever to say about religion. I do not want to live in a governmentally-reinforced “Christian nation,” any more than I want to live in a Jewish or Muslim nation. And all this is pretty important to me. Can I find it in the Constitution understood according to its original meaning?
While the First Amendment does mandate the protection of the “free exercise of religion,” I do not believe that the First Amendment mandates the separation of church and state much as I wish it did. The very words of the First Amendment belie this claim. It says that “Congress shall make no law respecting an establishment of religion.” Unless I discovered evidence to the contrary–and I have done no independent originalst research on this issue–this merely commands that Congress not itself establish an official religion, nor interfere with state governments that do establish religion. Making “no law respecting” is a command for complete hands off on the subject of establishment, one way or the other.
At the federal level, the First Amendment is antiestablishmentarian. A law establishing a national religion is a law “respecting an establishment of religion” that Congress may not make. Vis-a-vis the states, the very same language is antidisestablishmentarian. (Bet you never thought you would see that word used in a blog!) Congress may make no law disestablishing state religions for such would be a law respecting the establishment of religion that Congress is prohibited from making. Not only is this the plain meaning of the Amendment, but so far as I know (and I could be wrong about this having done no original research) it also comports with all known evidence of original public meaning.
So under the original meaning of the original Constitution, states may establish religion if their constitutions so allow while Congress may not do so. What this power entails is complicated, and I shall not pursue it here (e.g., is putting “In God We Trust” on coins an “establishment”? I doubt it, but do not prejudge the issue.) It would seem that if a state can establish an official religion it can also aid and endorse one religion or religion in general, for example, by instituting a noncompulsory pledge of allegiance in its government schools that includes the words “under God”–another practice to which I strongly object as a libertarian.
Does the Privileges or Immunities Clause of the Fourteenth Amendment change this? In my view, because the free exercise of religion is a natural liberty right or “immunity,” the only interference with this right that is justified under the police power of a state is when a law prevents this right from being exercised in such a manner as to violate the rights of others, an extreme historical example of which would be child sacrifice. While the original Constitution did not protect the right of free exercise from infringement by states, the Privileges or Immunities Clause of the Fourteenth Amendment changed this and does extend federal protection of this “immunity” of citizens.
In contrast, the Establishment Clause of the First Amendment describes neither a natural liberty right or “immunity,” nor a positive individual right or “privilege” of citizens. It is simply a limitation on the power of Congress simpliciter. Therefore, the plain and original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment has no relevance to the state establishment of religion. State endorsements of religions are not unconstitutional (although I reserve judgment on the propriety of using a general tax to subsidize religion without any opt-out).
I am open to being convinced that I am wrong about this. Indeed, given my commitment to the separation of church and state, I would WELCOME being convinced that I am wrong. But I refuse to convince myself I am wrong just because I want to be. Nor would I abandon the Constitution over this issue. This is not, after all, a liberty issue. A religious establishment tells no one what they must do or must not do (unlike “blue laws,” for instance, that do). To obtain the legally enforceable separation of church and state at the state level that I strongly desire would require a constitutional amendment. It cannot properly be made up by the courts, though courts have done exactly this by abandoning both the text and its original meaning.
I raise the issue of separation of church and state here because I want to offer a sacrifice to the Constitution akin to the sacrifice I am asking of others who want the states to be able to condemn homosexuality by criminalizing it.
I also pose the following challenge to those who favor state endorsement of religion at the state level: if you are willing to modify your commitment to the entire Constitution when parts of it get in your way–in order to reach, e.g., private homosexual conduct–can you offer a principled reason why I could not use your interpretive method to evade the original meaning of the Establishment Clause and the Privileges or Immunities Clause of the Fourteenth Amendment to effectuate a separation of church and state that conflicts with the original meaning of both?
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