Do We Need 27 Supreme Court Justices?

Toobin-Supreme-Court

There is nothing in the United States Constitution that says we must have nine Supreme Court justices.  What about 27?  Rutgers University law professor Jacob Russell Hale thinks it might be a good idea.  Here is a taste of his piece at Time:

The battle over court packing is being fought on the wrong terms. Americans of all political stripes should want to see the court expanded, but not to get judicial results more favorable to one party. Instead, we need a bigger court because the current institutional design is badly broken. The right approach isn’t a revival of FDR’s court packing plan, which would have increased the court to 15, or current plans, which call for 11. Instead, the right size is much, much bigger. Three times its current size, or 27, is a good place to start, but it’s quite possible the optimal size is even higher. This needn’t be done as a partisan gambit to stack more liberals on the court. Indeed, the only sensible way to make this change would be to have it phase in gradually, perhaps adding two justices every other year, to prevent any one president and Senate from gaining an unwarranted advantage.

Such a proposal isn’t unconstitutional, nor even that radical. There’s nothing sacred about the number nine, which isn’t found in the constitution and instead comes from an 1869 act of congress. Congress can pass a law changing the court’s size at any time. That contrasts it with other potentially meritorious reform ideas, like term limits, which would require amending the constitution and thus are unlikely to succeed. And countries, with much smaller populations, have much larger high courts. In 1869, when the number nine was chosen, the U.S. was roughly a tenth of its current size, laws and government institutions were far smaller and less complex, and the volume of cases was vastly lower. Supreme Court enlargement only seems radical because we have lost touch with the fundamentals of our living, breathing constitution. The flawed debate over court-packing is an opportunity to reexamine our idea of what a Supreme Court is, and some foundational, and wrong, assumptions.

Read the entire piece here.

An African-American Evangelical on the Brett Kavanaugh Nomination

 

Kavanaugh

President Donald Trump announces xxxxx as his Supreme Court nominee, in the East Room of the White House, Monday, July 9, 2018, in Washington. (AP Photo/Evan Vucci)

John C. Richards, the Managing Director of the Billy Graham Center at Wheaton College, is not overjoyed about Donald Trump’s pick of Brett Kavanaugh to replace the retired Anthony Kennedy.  Here is a taste of his piece at Christianity Today:

This tenuous relationship between judicial appointments and partisanship is why I am less excited about Kavanaugh’s nomination—especially when couched in terms of conservatism. While a more conservative court may be good for America, it hasn’t always been good for Blacks in America.

For many Black Christians, conservative strategies have historically had a disparate impact on our communities.

In Dred Scott vs. Sandford, a conservative court previously held that people of African descent could not be U.S. citizens. For the record, in the history of the Supreme Court, the Dred Scott case is regarded as the court’s worst decision.

Conservative strategies created the War on Drugs in the 1990s that has led to the U.S. far outpacing any other nation in the world in mass incarceration rates—which has resulted in a disproportionate amount of people of color in prisons across our country.

The truth is that many Black Christians aren’t so much looking for a more conservative court as they are looking for a more fair and neutral court—devoid of political influence.

Tempered Celebration

Ultimately, I want to encourage my White brothers and sisters in Christ to temper their celebration a bit. To be fair, many Black Christians would render a hearty amen to right to life and religious freedom issues that led many White Evangelicals to vote the way they voted in November 2016.

But let me be clear here. If there’s any concern about the Black exodus from Evangelicalism, we need to be sure that right to life is a womb-to-tomb issue—valuing human life and rights from conception to death.

We need to be sure that religious freedom and free speech extends to athletes who silently protest social issues in public spaces. We need to call out the hypocrisy of NFL owners who ask athletes to “just play football” and turn around and endorse federal judicial nominations on team Twitter accounts.

To make this nomination about Roe and dough (i.e. the religious freedom highlighted in the Christian baker case) ignores other essential issues Christians should care about—including immigration, health care, and labor laws.

Read the entire piece here.

Kavanaugh is the Pick. Not all Conservative Evangelicals are Happy

Kavanaugh

Conservative evangelicals have had mixed reactions to the selection of Brett Kavanaugh as Anthony Kennedy’s replacement on the Supreme Court.  Over at VOX, Tara Isabella Burton sorts it all out for us.  Here is a taste:

The major Christian right figures in Trump’s orbit have largely greeted news of Kavanaugh’s confirmation with measured, if vague, optimism, celebrating the choice of a conservative judge more generally, and casting the news as a win for Trump specifically. The promise of a more conservative Supreme Court has long bolstered Trump’s support among evangelicals, and many leading evangelicals have framed the news in terms of Trump keeping his promises to that community.

Robert Jeffress, one of Trump’s most significant evangelical advisers, said in a statement emailed to journalists, “Evangelicals are ecstatic because in less than two years President Trump has filled a second Supreme Court vacancy with a second conservative—just as he promised. The fact that the president chose another conservative justice is more important than the name of that justice. This is a huge win for President Trump.”

Likewise, Paula White, another of Trump’s main evangelical advisers, highlighted how Trump’s pick of Kavanaugh showed that “President Trump has done it yet again, fulfilled a promise exactly as he said he would.”

Some conservative Christian organizations have expressed their doubts on Kavanaugh, however. The American Family Association formally opposed the nomination, saying in a statement that “Judge Kavanaugh’s reasoning on religious liberty, Obamacare and issues concerning life have proven to be of major concern.”

Overall, however, the fact that Kavanaugh is seen as a “moderate” pick on religious liberty cases tells us more about the nature of discourse about religion in America than it does about Kavanaugh himself. Sure, by the standards of an administration that regularly cites the Bible to legitimize its complete authority, that has produced executive orders demanding that “religious liberty” be observed by the Department of Justice even when it conflicts with anti-discrimination laws, and that regularly implies Trump was chosen by God, Kavanaugh is a moderate.

Read the entire piece here.

Zimmerman: The GOP Should be Careful What They Wish for in Overturning *Roe v. Wade*

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University of Pennsylvania historian Jonathan Zimmerman wonders if overturning Roe v. Wade will lead to a liberal resurgence that might change the face of American politics.  Here is a taste of his piece at The New Republic:

Now, Justice Anthony Kennedy’s retirement from the bench has American conservatives chomping at the bit: with the swing vote removed and replaced with a nominee of President Trump’s choosing, perhaps the 1973 ruling can be overturned. Conservatives’ own history, however, suggests that they should be careful for what they wish for. Instead of an unambiguous and permanent conservative victory, they might face a liberal political resurgence unlike anything seen in decades. A victory in the courts could spawn backlash at the polls.

That, after all, is precisely what happened after 1973, with the roles reversed, when Roe galvanized a right-wing revolution. Sixteen states had liberalized their abortion laws in the years leading up to the decision, provoking sporadic conservative protests. But the issue didn’t become a truly national one until the Supreme Court intervened in 1973, declaring that the protections of the Constitution did not apply to the unborn.

Read the entire piece here.

What Happens if *Roe v. Wade* is Overturned?

Toobin-Supreme-Court

When Trump appoints a pro-life Supreme Court justice on Monday, and that justice is confirmed, there is a chance that Roe v. Wade will be overturned.  What would that mean for abortion rights in America? How is the pro-life movement thinking about this possibility?

Allyson Escobar has a helpful piece on the matter at the Jesuit America magazine.  Most of it focuses on the opinions of Richard Doerflinger, former associate director of pro-life activities at the U’S. Catholic Bishops.  Here is a taste:

If Roe were overturned, Mr. Doerflinger says, the decision by itself would not lead to any restrictions on abortion but would allow for more debate on the issue.

“It would free both sides in this debate to argue their case and try to reach at least a majority consensus on what is just and what the society will bear,” Mr. Doerflinger says.

“The result would likely be different in different states and different in the same state from one year to another, as with most issues in our democracy,” he says. “But the pro-life viewpoint would not be excluded in principle from that debate, blocked in advance by what the court calls a constitutional right.” 

Read the entire piece here.

Some Court Evangelicals are Downplaying a Possible Roe v. Wade Reversal

Trump fans

Court evangelicals Jerry Falwell Jr., Johnnie Moore, and Tony Perkins are all downplaying the idea that Roe v. Wade will be overturned by a conservative court.  Here is a taste of Steve People’s reporting for the Associated Press:

Like many religious conservatives in a position to know, the Liberty University president with close ties to the White House suspects that the Supreme Court vacancy President Donald Trump fills in the coming months will ultimately lead to the reversal of the landmark abortion case Roe v. Wade. But instead of celebrating publicly, some evangelical leaders are downplaying their fortune on an issue that has defined their movement for decades.

“What people don’t understand is that if you overturn Roe v. Wade, all that does is give the states the right to decide whether abortion is legal or illegal,” Falwell told The Associated Press in an interview. “My guess is that there’d probably be less than 20 states that would make abortion illegal if given that right.”

 

Falwell added: “In the ’70s, I don’t know how many states had abortion illegal before Roe v. Wade, but it won’t be near as many this time.”

The sentiment, echoed by evangelical leaders across the country this past week, underscores the delicate politics that surround a moment many religious conservatives have longed for. With the retirement of swing vote Supreme Court Justice Anthony Kennedy, Trump and his Republican allies in the Senate plan to install a conservative justice who could re-define the law of the land on some of the nation’s most explosive policy debates – none bigger than abortion.

And while these are the very best of times for the religious right, social conservatives risk a powerful backlash from their opponents if they cheer too loudly. Women’s groups have already raised the alarm for their constituents, particularly suburban women, who are poised to play an outsized role in the fight for the House majority this November.

Two-thirds of Americans do not want to see Roe v. Wade overturned, according to a poll released Friday by the nonpartisan Kaiser Family Foundation. Among women of reproductive age, three out of four want the high court ruling left alone. The poll was conducted before Kennedy’s retirement was announced.

Read the rest here.

Was It Worth It?

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As many readers know, I am in the midst of the promotional campaign for Believe Me: The Evangelical Road to Donald Trump.  I am sure that the recent retirement of Anthony Kennedy, and his almost certain replacement with a more conservative justice, will be a major theme of my upcoming interviews and speaking engagements.

It is probably premature to think about whether a conservative Trump court will overturn Roe v. Wade.  A lot has to happen before that occurs, but I think it is safe to say that it is more likely today than it was before Kennedy’s announcement.

Abortion remains at the top of the Christian Right agenda.  Trump’s evangelicals care more about abortion than they do religious liberty, gay marriage, immigration, or any other social issue.

When it comes to dealing with the problem of abortion, the members of the Christian Right have been reading from the same political playbook for more than four decades.  It teaches them that the best way to bring an end to abortion in America is to elect the right President, who, in turn, will support the right justices.

But it is not exactly clear how this strategy will bring an end to abortion in America.  If Roe v. Wade is overturned by the Supreme Court, the issue will be sent back to the states.  Abortion is very likely to remain legal in the so-called blue-states, including California and New York (just under 20% of the population), and illegal in many of so-called red states, especially in the deep South.  State legislatures will need to decide how they will handle the abortion issue in the remaining states, but a significant number of them will probably allow abortion in some form.  To put it simply, overturning Roe v. Wade will not end abortion in America.  (I write about this in greater depth in Believe Me).

With this in mind, one must ask conservative evangelicals if getting into bed with Donald Trump was worth it.

Rachel Held Evans put it bluntly:

When Trump appoints a conservative justice to replace Kennedy he will change the ideological make-up of the court for a generation or two.  Conservative evangelicals are rejoicing today.

But what will the witness of the church look like in a generation or two?  How compromised will it be?  And who is asking these questions today?

One person asking such questions is Thabiti Anyabwile, a writer for the Calvinist website The Gospel Coalition and the pastor of an evangelical church in Washington D.C.

He is pro-life on abortion.

Check out Anyabwile’s recent article at The Washington Post: “Overturning Roe v. Wade isn’t worth compromising with Trump, my fellow evangelicals.”  Here is a taste:

And how do we calculate the moral damage and accountability of the harm done to the legitimacy of the presidency itself nearly every day on Twitter and as a Russian collusion investigation continues?

In sheer numbers, more lives are ended by legalized abortion. Christians are correct to focus energy and concern on ending the practice. But in quieter, sometimes less observable ways, the carnage mounts in racial injustice and discrimination.

The potential nomination of a potential pro-life judge does not, in my opinion, alleviate the concerns I have about the racial injustices this same administration seems to multiply each day. What many evangelicals don’t seem to understand is they’re turning blind eyes to their brethren suffering at the hands of this administration for the long-held hope of overturning Roe. I’m for overturning Roe, but I’m also for protecting black and brown lives from racism and the kind of criminalization that swells our prisons and devastates communities or separates families at the borders.

Some Christians appear to have made a Faustian bargain for the mere price of a Supreme Court nominee. The Devil gets the better end of that deal!

Judgment begins at the household of God; that is, judgment begins with Christians. Most evangelical Christians worry about God’s judgment of people who are not Christians. But the Bible calls us to first judge ourselves in light of God’s expectations for Christians. Indifference to other moral issues and forms of suffering call into question one’s understanding of the faith and one’s claim to be a Christian. I can’t tell the difference between true and false Christians, but God surely can. He knows who belongs to Him and who will inherit the kingdom of God. They are the righteous ones whose faith leads them to feed the hungry, give water to the thirsty, welcome the stranger, clothe the naked, visit the sick, and visit those in prison (Matthew 25:35-36).

Read the entire piece here.

Will Future Generations Condemn the Recent Supreme Court Decisions?

Sotomayor_AP_2018-06-26

Who knows?

Historians are not prophets and history, despite what Barack Obama and other progressives say, does always lead toward justice as understood by the person making the claim.  I have been saying this for a long time, but I really like how Jacob Bacharach puts in his New Republic piece “Don’t Count on History to Judge Wisely.” Bacharach writes in the context of Justice Sotomayor’s dissenting remarks in the Trump v. Hawaii travel ban case.  Sotomayor said that “history will not look kindly on the court’s misguided decision today, nor should it.”

Here is a taste of his piece:

History’s superseding judgment also crept into the left’s responses in the National Institute of Family and Life Advocates case, the other decision announced on Tuesday, in which another narrow conservative majority ruled on free speech grounds that anti-abortion “crisis pregnancy centers” can, in effect, deceive people about the services they provide, overturning a California state law that compelled certain disclosures. The court, much of lefty Twitter agreed, had once again found itself on the wrong side of history. This presumes that the left, broadly defined, will be the ones writing it, because the left will prevail.

This is magical thinking. The Democrats are completely out of power in Washington and across most of the country, and the Supreme Court is one retirement or heart attack away from a 6-3 conservative majority (and a chief justice who is just 63). It may be reassuring to quote King: “The arc of the moral universe is long, but it bends toward justice.” But that famous line was, in context, an explicitly theological consideration, not a statement about the inevitability of temporal social justice. Moreover, that refrain obscures the difficult fact that King grew increasingly pessimistic in his final years, increasingly doubtful that history was predisposed to justice at all.

Moral superiority in the absence of political power is useless, and self-reassurance in the inevitable upward motion of progress—that it may be interrupted or delayed, but rises inexorably—is self-indulgence. The GOP has spent the last half-century methodically and patiently laying an infrastructure for the acquisition and, more importantly, for the exercise of power. Its broad capture of the American judiciary is one of the great political feats of the modern era. The ostensible opposition party lacks a clear strategy for the coming legislative midterms, let alone for the incremental grooming of a cohort of jurists to place on the bench two to three decades down the road.

Read the entire piece here.

Trump Will Deliver for Evangelicals With a Conservative Supreme Court Justice

Donald Trump,Anthony Kennedy

This is why 81% of American evangelicals voted for Donald Trump.  Anthony Kennedy has retired and he will certainly be replaced with a pro-life (on abortion) justice.

The court evangelicals and their followers have traded a president who peddles in misogyny, racism, deceit, and division in exchange for a president who will appoint the right Supreme Court justices.  This is the trade-off.

Commentators today are saying that Trump’s appointment of another conservative justice will be a major part of his legacy.  He will change the make-up of the court for a generation or more.  This is true.  But only time will tell how the witness of evangelicals will be weakened over the next generation or two (or more) because they have hitched their wagons to Donald Trump.

Again, this is the trade-off.

Here is Ruth Graham’s take at Slate:

The announcement on Wednesday afternoon that Justice Anthony Kennedy will retire from the Supreme Court was a vindication for Trump’s evangelical defenders, who had one message for voters in 2016: Close your eyes and think of the Supreme Court. No matter how a Christian might feel about Trump as a man (the extramarital sex, the mockery of the disabled), they said, he would have a chance to radically reshape the makeup of the Supreme Court. This week, that calculation paid off.

It is hard to overstate how relentlessly Trump’s evangelical supporters promoted this message, especially as the campaign staggered toward Election Day. The emergence of the Access Hollywood tapes in October 2016 was widely expected to threaten Trump’s advantage among white evangelicals. A thrice-married casino mogul was one thing, but one whom voters could actually hear bragging about grabbing pussy?

“Hold your nose and go vote,” evangelist Franklin Graham told about 10,500 attendees at a prayer rally in North Carolina in 2016, circling the wagons after the tapes emerged. “You have to decide which one of the two (presidential candidates) that you would trust to appoint justices that are going to protect our religious freedom as Christians.”

Read the rest here.

Let’s Remember What Thomas Jefferson Thought About Religious Liberty for Muslims

Jefferson and Religious Liberty

Check out Elahe Izadi‘s piece at The Washington Post.  It quotes several scholars of early American history, Islam, Thomas Jefferson, and religious liberty including Denise Spellberg, Andrew O’Shaughnessy, and John Ragosta.

Here is a taste:

Jefferson authored the Virginia Statute for Religious Freedom and asked that it be one of just three accomplishments listed on his tombstone. The Virginia law became the foundation of the religious freedom protections later delineated in the Constitution.

Virginia went from having a strong state-established church,  which Virginians had to pay taxes to support, to protecting freedom of conscience and separating church and state. Jefferson specifically mentioned Muslims when describing the broad scope of protections he intended by his legislation, which was passed in 1786.

“What he wanted to do was get the state of Virginia out of the business of deciding which was the best religion, and who had to pay taxes to support it,” said Spellberg, a professor of history and Islamic studies at the University of Texas at Austin.

During the bill’s debate, some legislators wanted to insert the term “Jesus Christ,” which was rejected. Writing in 1821, Jefferson reflected that “singular proposition proved that [the bill’s] protection of opinion was meant to be universal.”

He continued:

Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word “Jesus Christ,” so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan [Muslim], the Hindoo [Hindu], and Infidel of every denomination.”

Read the entire piece here.

Understanding the Supreme Court Decision on Trump’s Travel Ban

Gorsuch Trump

Some nice context here from CNN writer Chris Cilizza.  Here are his “5 takeaways“:

 

  1. “Elections matter. A lot.”
  2. “This is as much Mitch McConnell’s victory as it is Donald Trump’s”
  3. “The President has loads of power”
  4. “The court didn’t take Trump literally”
  5. “The court wanted to make clear it wasn’t endorsing past Trump statements on Muslims.”

See how Cilizza develops these points here.

Supreme Court Case of the Day

Ali

U.S. Supreme Court

Clay v. United States, 403 U.S. 698 (1971)

Clay v. United States

No. 783

Argued April 19, 1971

Decided June 28, 1971

403 U.S. 698

Syllabus

Petitioner appealed his local draft board’s rejection of his application for conscientious objector classification. The Justice Department, in response to the State Appeal Board’s referral for an advisory recommendation, concluded, contrary to a hearing officer’s recommendation, that petitioner’s claim should be denied, and wrote that board that petitioner did not meet any of the three basic tests for conscientious objector status. The Appeal Board then denied petitioner’s claim, but without stating its reasons. Petitioner refused to report for induction, for which he was thereafter tried and convicted. The Court of Appeals affirmed. In this Court, the Government has rightly conceded the invalidity of two of the grounds for denial of petitioner’s claim given in its letter to the Appeal Board, but argues that there was factual support for the third ground.

Held: Since the Appeal Board gave no reason for the denial of a conscientious objector exemption to petitioner, and it is impossible to determine on which of the three grounds offered in the Justice Department’s letter that board relied, petitioner’s conviction must be reversed. Sicurella v. United States348 U. S. 385.

430 F.2d 165, reversed.

Why am I posting this today?  Click here.

 

Some Quick Thoughts on *Masterpiece Cakeshop v. Colorado Civil Rights Commission*

Cake baker

Masterpiece Cakeshop v. Colorado Civil Rights Commission will generate a lot of commentary in the next hours and days.  We will try to post some of it here.  As the pundits and legal scholars write their pieces, let’s get started with Robert Barnes’s summary of the case at The Washington Post:

The Supreme Court on Monday ruled for a Colorado baker who refused to create a wedding cake for a gay couple.

In an opinion by Justice Anthony M. Kennedy that leaves many questions unanswered, the court held that the Colorado Civil Rights Commission had not adequately taken into account the religious beliefs of baker Jack Phillips.

In fact, Kennedy said, the commission had been hostile to the baker’s faith, denying him the neutral consideration he deserved. While the justices split in their reasoning, only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

Kennedy wrote that the question of when religious beliefs must give way to anti-discrimination laws might be different in future cases. But in this case, he said, Phillips did not get the proper consideration.

“The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws,” he wrote. “Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here.”

Read the rest here.

Read the decision here.

The Supreme Court kicked the ball down the road and made a strong statement about respecting sincerely held religious beliefs.

If I read the decision correctly, it seems that the Court ruled in favor of the baker because the Colorado Civil Rights Commission did not respect his First Amendment religious rights.  The Commissioner called baker Jack Phillip’s faith “one of the most despicable pieces of rhetoric that people can use.”  He compared Phillip’s “sincerely held religious beliefs” to slavery and the Holocaust.  As a result, Justice Kennedy argued in his majority opinion: “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.”

In other words, the Colorado Civil Rights Commissioner crossed a line.  The Court is a sending a message that these sloppy attacks on sincerely held religious beliefs will not be tolerated.  If you think Phillips should be legally required to bake the cake for the gay couple, take your frustrations out on the Colorado Commission, not on the Supreme Court.

The decision also implies that another cake-baking case might be decided differently.  Kennedy writes:

Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.  In this case the adjudication concerned a context that may well be different going forward in the respects noted above.  However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.

 

Clarence Thomas Makes It Into the National Museum of African American History and Culture

Clarence_Thomas_official_SCOTUS_portrait
Back in July we wondered why Clarence Thomas was not in the National Museum of African American History and Culture.  Read that post here.

Well, it looks the second African American Supreme Court justice will now get a place in the museum just in time for the celebration of its one-year anniversary.  Bradford Richardson reports at The Washington Times:

Just in time to celebrate its first anniversary, the Smithsonian’s National Museum of African American History and Culture has included a display featuring Justice Clarence Thomas, one of the U.S. Supreme Court’s conservative stalwarts.

Justice Thomas appears in an exhibit that was installed shortly before the one-year anniversary Sunday, a Smithsonian spokeswoman said Monday. The display honors both of the black justices who ascended to the pinnacle of the legal profession. The other is Thurgood Marshall.

Justice Thomas’ apparent omission irked conservative observers, who suspected an ideological bias among Smithsonian officials and called for the influential jurist’s inclusion in the museum.

Ronald D. Rotunda, distinguished professor of jurisprudence at the Dale E. Fowler School of Law at Chapman University, said Justice Thomas deserves to be recognized for his contributions to constitutional jurisprudence, his record of public service and his inspirational life story.

Read the entire piece here.

Today’s Religion News Service Commentary: “Kentucky’s shrewd move to promote a Christian nationalist agenda”

Kentucky.  Map courtesy of Creative Commons

Regular readers of The Way of Improvement Leads Home will be familiar with a longer version of this piece.

Here is a taste of a shorter version syndicated today through Religion News Service:

(RNS) Matt Bevin, the governor of Kentucky, recently signed House Bill 128 requiring the state Board of Education to establish an elective social studies course on the Old and New Testaments.

Kentucky lawmakers believe a course will “provide to students knowledge of biblical content, character, poetry, and narratives that are prerequisites to understanding contemporary society and culture, including literature, art, music, mores, oratory, and public policy.”

Bible courses in public schools are perfectly constitutional. In 1963, the Supreme Court ruled in Abington v. Schempp that mandatory reading of the Bible in public schools as an act of religious practice or devotion was unconstitutional.

But what many fail to recognize is that Abington v. Schempp did not completely remove the Bible from schools. Consider Supreme Court Justice Tom Clark’s majority opinion:

“It might well be said that one’s education is not complete without the study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its religious and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.”

If Kentucky has every constitutional right to hold “objective,” content-oriented Bible courses, why was it necessary to pass HB 128?

The passing of this law has little to do with the United States Constitution. It has everything to do with politics.

Parts of HB 128 should raise red flags. The wording suggests that the course should move beyond the study of the Bible in its ancient context. It requires educators to apply the Bible’s teaching to current events and assumes that the Bible informs virtually every area of American culture.

Read the rest here.

Who is Henry Marie Brackenridge?

 

HM_Brackenridge_1901Chief Justice John Roberts quoted a Brackenridge speech in the Trinity Lutheran v. Comer majority opinion.

Here is a taste of Ann E. Marimow’s piece at The Washington Post:

The lawmaker Roberts cited was H.M. Brackenridge, a member of the Maryland House of Delegates and leading supporter of what was known as the “Jew Bill” — a measure to remove the state’s requirement that elected officials swear to “a belief in the Christian religion.”

The brief excerpt from Brackenridge’s lengthy speech came at the end of the 15-page majority opinion in Trinity Lutheran v. Comer. The high court found that a preschool operated by a Missouri church should have been eligible for state funding just like other non-religious charitable organizations.

Trinity Lutheran Church in Columbia, Mo., brought the case after the Missouri government excluded the church from a grant program that pays to resurface playgrounds because the state said it could not provide financial assistance directly to a church. In the 7-2 decision, Roberts quoted Brackenridge before concluding that the exclusion of the church “solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

The son of a Pennsylvania Supreme Court judge, Brackenridge is hardly a household name in Maryland’s political history having served just two terms representing Baltimore. Much of his career was spent in other states, including stints as a judge in Louisiana and Florida, and as a U.S. congressman from Pennsylvania in 1840.

Brackenridge’s 1819 speech was part of broader effort to get rid of a measure that prevented Jews from holding office. Many states in the early nineteenth-century had religious qualifications for office.

According to the Maryland State Archives, Brackenridge argued that Maryland’s requirement violated the First Amendment of the Constitution that at the time only applied to the federal government. The so-called Jew Bill did not pass during Brackenridge’s tenure, when there were only about 150 Jewish people in Maryland. Jews were unable to hold elected office in Maryland until 1826, said Emily Oland Squires, director of research, education and outreach at the Maryland State Archives.

Read the entire piece here.

It is also worth noting here at The Way of Improvement Leads Home that H.M. Brackenridge is the son of Henry Hugh Brackenridge, a Princeton classmate of Philip Vickers Fithian.

Did the Supreme Court “Strike Down a Major Church-State Barrier” Yesterday?

Trinity LutheranThe title of Atlantic writer Emma Green’s article on the Supreme Court’s recent Trinity Lutheran v. Comer is titled “The Supreme Court Strikes Down a Major Church-State Barrier.”

In case you are new to the case, the Supreme Court ruled that the state of Missouri cannot deny funds to a church because it is a religious institution.  Green writes:

Seven justices affirmed the judgment in Trinity Lutheran v. Comer, albeit with some disagreement about the reasoning behind it. The major church-state case could potentially expand the legal understanding of the free-exercise clause of the First Amendment of the U.S. Constitution. It is also the first time the Supreme Court has ruled that governments must provide money directly to a house of worship, which could have implications for future policy fights—including funding for private, religious charter schools.  

Trinity Lutheran is a big case that hinges on mundane facts. In 2012, when Trinity Lutheran Church in Missouri applied for a state grant to resurface its playground, it was ranked as a strong potential candidate for the program. Ultimately, though, Missouri denied the funding under a state constitutional provision that prohibits public money from going to religious organizations and houses of worship. “There is no question that Trinity Lutheran was denied a grant simply because of what it is,” wrote Chief Justice John Roberts in his decision for the majority. “A church.”

The case focused on whether this decision conflicts with the First Amendment of the United States Constitution, and specifically whether Missouri was violating the free-exercise clause by preventing Trinity Lutheran from participating in a secular, neutral aid program. On Monday, the court overwhelmingly agreed that the answer was “yes.”

Read Green’s entire piece here.

Over at his blog Snakes and Ladders, Baylor English professor Alan Jacobs takes issue with the title of Green’s piece.

Here is a taste of Jacobs’s post:

Emma Green, the fine reporter who wrote the story (though not the headline), asked me to clarify, so here goes:

  1. That the story lede (the first sentence) is accurate will be seen from what follows.
  2. I called the dek (the description below the headline) “misleading,” but that is generous: it’s simply wrong. And Emma Green — who, again, is a superb reporter and rarely makes errors like this — gets it wrong in her story when she writes the source of the dek: “It is also the first time the Supreme Court has ruled that governments must provide money directly to a house of worship.” No: it is not true government “must” provide money to a house of worship or to any other organization. The ruling, rather, is that if a state or local government says that it will provide money to organizations in return for providing certain services — in this case, the maintaining of a playground available to children throughout the community — then it cannot withhold that money from churches simply because they are churches. (The New York Times get it wrong in its headline too, and in the same way: “States Must Aid Some Church Programs, Justices Rule.”) I understand that you can’t squeeze everything into a headline, but the distinction between “governments must give money to churches” and “governments cannot exclude churches qua churches from projects for civic improvement” is not an especially subtle one.
  3. The idea expressed in the hed that this decision “Strikes Down a Major Church-State Barrier” is simply absurd. What is the “barrier” that existed before this ruling and if now gone? What does this ruling do to establish a state church? After all, the ruling applies equally to churches, mosques, synagogues, and atheist community centers: by what torturing of logic could such a ruling be said to establish a state religion? Just as the Civil Rights Act helped to enfranchise people of color without disenfranchising white people, so this ruling excludes prejudice against churches qua churches (in this one minor matter) without infringing on anyone else’s rights.

Read the entire post here.

Thoughts? Jacobs makes sense to me.

Not Everyone Who Studies the Past is a Historian

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A couple of weeks ago Stanford history professor Jonathan Gienapp published a critique of the so-called “originalist” approach to the interpretation of the U.S. Constitution.  Gienapp showed the difference between the ways historians think about the Constitution and the ways judges and lawyers think about it.

Georgetown law professor Randy Barrett responded to Gienapp’s piece here.

And now Gienapp has responded to Barrett with another lengthy post that is, once again, worth reading for it’s articulation of how historians approach the past, particularly the founding era. It is a great reminder that not everyone who studies the past is a historian and it returns to the old debate between the past as “usable” and the past as a “foreign country.”

Here is just a small taste of his piece at Process blog: “Knowing How Vs. Knowing That: Navigating the Past.”

…in discussing the art of thinking historically, I talked in my initial essay about how historians take up residence with the natives of the past, how they immerse themselves in their subjects’ logics and assumptions in order to think as they once did. The reason why is something of an article of faith in the profession: that the past is a foreign country. As Rhys Isaac once persuasively put it, “Whether one moves away from oneself in cultural space or in historical time, one does not go far before one is in a world where the taken-for-granted must cease to be so. Translation then becomes necessary. Ways must be found of attaining an understanding of the meanings that the inhabitants of other worlds have given to their own everyday customs.”[6] The past, in others words, comes to us encoded in a foreign language. If we wish to understand the original meaning of historical texts, we have to translate them. This is what historians mean when they say that understanding historical texts in their original forms requires restoring them to their original historical context.

Here is where things often seem to get stuck, though—because originalists, Professor Barnett included, seem to agree with these claims. They recognize that meaning needs to be contextualized and that the past is different than the present. Originalism would not make much sense unless followers assumed that the Constitution means something different now than at the time of its inception. So we need to be especially clear on how historical practice and Originalism 2.0 actually diverge. The key is not that meaning needs to be put in context (everybody thinks that), it is, instead, figuring out which context and why.

Those questions can only be answered by first determining just how different the past really was from the present. Historians believe that the past is far more foreign than champions of Originalism 2.0 do. Because they believe the past is so foreign, historians insist upon a much wider and more far-reaching brand of translation than originalists think is necessary. And because they demand this kind of translation, historians call for a much deeper form of contextualization than originalists do.

Everything then begins with the foreignness of the past. To understand the past we must, as the historian Robert Darnton once articulated it, “put back together symbolic worlds that collapsed centuries ago.”[7] Where this seems to become a problem for originalist-historian debates is not in discussing the “past” in broad terms, but the past period that is most immediately relevant to originalist inquiry—the American Founding. The unwitting assumption upon which most originalist writings are based is that the era of the American Founding is rather easily accessible, that it is not that different from the conceptual world in which we currently reside. After all, not only did Founding-era Americans speak English and seem to draw upon many of the same concepts that still animate us today—such as “liberty,” “rights,” “happiness,” or “the state”—they also inaugurated many of the political and constitutional traditions in which we still find ourselves. Professor Barnett betrays this assumption clearly when discussing lawyers’ expertise in reading legal texts: why, he asks, would historians be better equipped to read a law enacted in the eighteenth century when they are unable to read one enacted in the twenty-first? Is Professor Barnett saying, generally, that as a lawyer he is always better equipped than other scholars to read legal texts—that he is better armed to decipher Qing dynasty legal texts than Chinese historians; or local civil suits in colonial West Africa than African historians and anthropologists; or the Justinianic Code than Byzantine historians? I assume not. So most legal texts produced in other times and places are actually not subject to the legal expertise of American lawyers. His point must simply be that those produced at the time of the American Founding are. The only justification for this distinction could be that those late eighteenth-century American texts are written in a conceptual vocabulary that is readily accessible to an American lawyer in a way that Qing dynasty legal texts or colonial West African civil suits or the Justinianic Code are not. That is the argument Professor Barnett, and most other originalists who have weighed in on this debate, are really making.

Here is the critical divergence, because historians of the Founding era (like historians generally) adamantly reject this claim. The most important scholarship on Revolutionary America has pierced the veneer of familiarity that unites the present and this historical period and shown that the Revolutionaries’ guiding assumptions were strikingly different than our own. As Gordon Wood so revealingly put it to begin his immensely influential, The Creation of the American Republic, “As I explored [the revolutionaries’]pattern of beliefs, it became evident that” the prevailing interpretive approach to the American Founding had “been deeply ahistorical, there had been too little sense of the irretrievability and differentness of the eighteenth-century world.”[8] Even though the Revolutionaries used words and ideas that bore a superficial resemblance to our own, beneath this seeming familiarity lay a largely alien conceptual world that, Wood showed, had to be reconstructed in its totality from within.

Read the entire piece here.