June 27, 2005

Madison on Religious Liberty, and the Future of the Establishment Clause

If I was going to bet on who would next be named to the US Supreme Court, I wouldn’t put money on 10th Circuit Judge Michael McConnell. While he’s extremely bright, affable, and a nominee who could split liberals and please Christians (and hence someone whose nomination could be a big political win for the president) he appears to also be principled and take the law seriously – and given who runs the White House at the moment that likely makes him too unpredictable to choose. Plus apparently he’s criticized Bush v. Gore and I’ll be very surprised if President Bush is willing to select anyone who’s publicly done that.

But even if McConnell isn’t likely to be named to the SCOTUS by the current occupant of the White House, he remains influential, and his writings are among the most significant today in shaping the relationship between religion and the government. I was reminded of this, and the potentially breathtaking changes that could occur in Establishment Clause jurisprudence if more judges follow his work, when reading “James Madison’s Principle of Religious Liberty” by Vincent Philip Munoz (in the February 2003 issue of the American Political Science Review). Munoz focuses on Madison, and especially on “Memorial and Remonstance”, in making the point that several justices (including Souter, Rehnquist, Thomas and Scalia – O’Connor is the one exception he notes) read Madison incorrectly, or at least incompletely, and therefore are misinterpreting the founding documents when it comes to questions tied to religion. His view is closely tied to that of McConnell, and he compelling cites McConnell in framing his presentation of Madison’s views. The key point is that Munoz says Madison meant for a principle of “noncognizance” to guide the state in these matters, not “strict separation”. Basically, the argument is founded on the idea that religion is beyond the social contract, and therefore the state can’t legitimately deal with it.

If this view was more widely held (and given the influence of people like McConnell it is likely to be more widely held in the future) this could lead to big changes in the law on both Establishment Clause issues and Free Exercise issues. As to the former, the state must be religion blind. Religion can’t be a governmental classification. This could open up whole new avenues for religious organizations to pursue. Religious individuals and groups couldn’t be excluded from generally available benefits. In terms of things like what the president apparently wants his “faith-based” initiatives to look like, it would open the door to throwing giant buckets full of cash at limousine evangelicals. Many of the religiously funded school cases, for example Aguilar v. Felton and Mitchell v. Helms, were wrongly decided under this framework. As to Free Exercise Clause cases, this view would mean several of them were wrongly decided as well. If the government can’t consider religion, then it can’t create religious exemptions for, say Amish parents opposed to school attendance regulations (Wisconsin v. Yoder).

Of course many key rulings would stand. There can still be no school-written prayers that students are forced to recite, or exemptions to marriage laws for bigamists. But it’s interesting to see more and more scholarship on these issues moving in this direction. And given the increase in its standing, and the pressure put on by interest groups that could benefit from this type of reading of the Establishment Clause, it will be interesting to watch this develop. The president might have his own personal reasons for not wanting to put certain people who hold to these views on the SCOTUS. But given what’s at stake, and the nature of national politics and Court nomination battles today, there are plenty of reasons to think that the government’s understanding of the Establishment Clause might move in this direction over time.

Posted by armand at June 27, 2005 11:43 AM | TrackBack | Posted to Law and the Courts


so it may, but all of this presumes that we care what madison thought / wrote about the founding documents. as brian leiter recently observed, "Originalism (whether about intentions or meanings) is now the dominant, almost entirely unquestioned touchstone of constitutional argument and interpretation in the United States."

as i move more in the libertarian direction, i find myself more seduced by originalism simpliciter (as opposed to the originalism of convenience reflected in, inter alia, scalia's jurisprudence; indeed i probably find thomas more tenable, if more odious, for his brute consistency on this point)), and it's only an intent-based originalism (scalia would disavow this most of the time), i.e., one that looks outside the founding documents for clues as to their meaning, that would be influenced significantly by what madison thought/wrote.

i'm more inclined towards meaning originalism, which acknowledges that certain meaning-based analyses necessarily must acknowledge the open-endedness of various provisions. extrinsic writings from the constitutional framers and contemporaries have only marginally more value to me (and other meaning originalists) than the ever-elusive legislative intent that courts sometimes attempt to glean from floor-delivered stemwinders that usually are self-serving and we have no reason to believe really reflect the majority view of the legislative body. like it or not, i find myself often falling back on: if that's what they wanted, that's what they would have written.

i'm a little more liberal with regard to the constitution, because i believe it was never intended to be exhaustive; like a person's DNA, it's constitutive without being entirely prescriptive. and i think the framer's anticipated that, hence the brevity and porosity of the constitution.

still and all, that they wanted the document to contain room for modification doesn't mean they wanted people looking at their monographs and one-off jeremiads two centuries later to assess the constitution's meaning in the first instance.

Posted by: joshua at June 27, 2005 01:54 PM | PERMALINK

On Madison, see today's decision in Van Orden, Stevens, J., dissenting, Slip Op. at 19.

Posted by: Joshua at June 27, 2005 02:53 PM | PERMALINK
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