Constitutional law vs. the Constitution...

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[What follows is part of an e-mail exchange between two Christian lawyers on First Amendment law. John Doe was responding to Jim Smith’s law journal publication. Jim Smith's publication surveys First Amendment cases that involve various laws of neutral applicability whose reach is said to violate someone’s right to free exercise of religion. An example of this kind of law is a requirement that all children must attend school until at least age 16 over the objection of, for example, Amish parents. The publication also makes suggestions regarding how one litigating a Free Exercise claim should articulate the standard that a court uses to judge such claims.

For context, Braunfeld v. Brown (1961) involves a dispute over a Pennsylvania Sunday-closing law. An Orthodox Jew sued, arguing that such a law discriminated against him because he must close his business on Sunday as well as Friday nightfall through Saturday nightfall to observe the Jewish sabbath. The U.S. Supreme Court denied his claim and upheld the law. It is, thus, viewed as a case in which “government interests” prevail over a “religionist’s interests.”

The second e-mail is actually two e-mails: Jim’s e-mail text interspersed with John’s direct response. A beloved pastor and friend was also copied on all these exchanges.]

From: John Doe

Date: October 10, 2012 7:33:52 PM EDT

To: Jim Smith

Subject: Re: Smith - Publication

Dear Jim, Thank you for sending this. It was helpful. I wish we could talk about it sometime and the practice of law generally.

Your [law journal publication] helped me re-enter the alternate universe of First Amendment jurisprudence.

I often think of the law as it originally applied or operated. Less frequently do I think about what the law has become or the best means of working within the existing judicial rearrangements to promote justice, mercy, and truth.

By the way, regarding Braunfeld, I think religious adherents actually won that case--just not the ones before the Supreme Court. To have approved the doing of business on Sunday, in opposition to state law, would also have involved the Supreme Court in passing a law respecting an establishment of religion and prohibiting the free exercise thereof. (Christians could continue to enjoy worship and the blessed peace of the Lord's Day.) But the First Amendment only forbids Congress and state actors from doing such things, right? :) It would also have required the Court to say that Sunday-closing laws that had been on the books since well before and after the Founding were violative of Jews' constitutional rights. But then I'm like a dog going back to the text and original understanding.


John Doe

From: Jim Smith

Date: October 10, 2012 9:56:33 PM EDT

To: John Doe Subject:

Re: Smith - Publication

Thanks, John.

So, you're saying that if SCOTUS had struck down the law in Braunfeld, that would have been tantamount to an establishment of religion? Today's Court would likely view it in the opposite manner and would have struck down the state law on the ground that it constituted an establishment of religion. But yours is an interesting take. It's certainly conceivable that the Court could rule in a manner that effectively compels religion. But would that be state action? No, if we take the original text of the First Amendment seriously: "Congress shall make no law . . . ."

>>[John’s reply] If the Supreme Court had struck down the Sunday-closing law or permitted the exception it would have made a law prohibiting the free exercise of religion--the religion of Christians in remembering the Sabbath and keeping it holy. In his Commentaries on the U.S. Constitution, Justice Story says that the First Amendment protects the Christian religion: "The real object of the [First] amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to a hierarchy the exclusive patronage of the national government." (Section 1871.) He also says: "Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster the Christian religion generally, as a matter of sound policy, as well as of revealed truth." (Section 1867.) He recognizes rights of private conscience in religion but doesn't think that means government levels all religions: "Probably at the time of the adoption of the constitution, and of the [First] amendment to it, now under consideration, the general, if not universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." (Section 1868.) The First Amendment prohibits Congress from doing such things, but at that time no one would have supposed that the Court would arrogate to itself the power of keeping the national conscience and keeping the Constitution in tune with the times, which usually favors Progressivism. The Founders said the judiciary had neither Force nor Will, only Judgment. (Federalist 78.)<<

Which tees up an interesting issue. If we were to be strict originalists/constructionists, we would reject Incorporation and would revert to the original scope of the Bill of Rights, which pertained only to the federal government. Under that take, a state could freely compel Christians to violate their consciences, but the federal government could not. Interesting stuff to think about.

>>[John’s reply] You are hitting on some of the features of the alternate universe I was alluding to. Abolition of the 10th Amendment and adoption of balancing tests are prominent features of the alternate Constitution, the real one having been exiled as someone has put it. I wouldn't call myself a strict constructionist. My goal is to take the text of the Constitution, construe it in the sense that was the (usually common, unchallenged) understanding at the time of the Founding, and then submit to it. Those making sense of the Constitution at the time and deciding whether to ratify it were doing exactly the same thing, though many were worried about whether certain passages would later be abused through sophistry and casuistry. They wouldn't have called themselves strict constructionists in the pinched, crabbed, stingy sense that term bears today, I don't think. Now, given that, what about Wisconsin v. Yoder? William Bentley Ball hauled Wisconsin into federal court to protect the right of Amish parents to educate their children after age 15 as they saw fit. Would I rely on that case? I would under the current regime. During a taped conference that Tim sent me a copy of, William Bentley Ball wondered about the use of federal courts to protect against state encroachments, knowing that federal interference would not exactly square with the 10th Amendment. I think his conclusion is it's messy and he didn't know what else to do. I'll stand with Mr. Ball and try to fend off the hobgoblins and their foolish consistency. Even then, state constitutions also protect rights of conscience. No state has the authority to compel Christians to violate their conscience.<<

Let's do catch up sometime. . . . [M]aybe we could chat over the phone sometime in November. Hopefully, if the conversation is after Nov. 6, it will be a pleasant and not a despondent one.

>>[John’s reply] I would enjoy it very much if we could. May God bless you and your family.<<

Sincerely, Jim

From: Jim Smith

Date: October 13, 2012 10:48:36 PM EDT

To: John Doe

Subject: Re: Smith - Publication

Hi, John:

. . . .

One clarification I might make concerns my statement that "a state could freely compel Christians to violate their consciences, but the federal government could not." Under an originalist interpretation (e.g., rejecting the doctrine of Incorporation) nothing in the federal Constitution would prohibit a state from forcing Christians to violate their consciences. Whether state constitutions or natural law protect the right of conscience is another matter. I'm guessing we agree on this, and the issue was simply one of semantics, but I think it crucial to distinguish between federal vs. state rights, and I would argue that an overly expansive view of federal rights, however well intentioned, can be just as dangerous as a deficient one. Consider that the right to abortion was found by an overly aggressive Court seeking to do just that - find a federal Constitutional right to protect us from every (perceived) injustice. I think the federal Constitution (including the Bill of Rights), as written, strikes about the right balance between giving us too little protection from government and giving us too much. I'd much rather the federal Constitution leave room for the states to abuse me than to leave no room at all. I can vote against a runaway laboratory of democracy with my feet, but from a dangerously paternalistic central government whither should I flee?

Best, Jim

Ezra Hale is the pseudonym of a man serving in an upper-level, executive branch position of state government. Ezra is a licensed attorney and for several years practiced law in state and federal courts. He is a graduate of ___________ School of Law, where he served as editor-in-chief of the Law Review.