Sunday, August 1

Justice Thomas And Interpreting The Constitution

I always read the Patheos web page with interest, usually agreeing, sometimes disagreeing. Once in a while, though, Patheos has a tendency to “view with alarm”, and thereby to give us one more item to worry about – which would not be a problem if the given item were worth worrying about it. Often the alarm being raised pertains to something that really is worth worrying about. But not always. In the “not always” column goes Patheos’ recent – well … not all that recent:  2014 -- “viewing with alarm” of Justice Clarence Thomas’s assertion that States probably do have the prerogative under the Constitution of establishing an “official” State religion. That assertion is (a) just true enough to engender alarm, but (b) not true enough to merit worry. Patheos’s heart is in the right place, but given Russia, Trump, North Korea's nuclear program, multiple violations of the “emoluments clause,” the President’s quite probable suborning of obstruction of justice, hostility to a free press … really … need I go on? … we have enough real causes for worry, most of them imported from Weimar Germany c. 1933 / 1934, without prospecting for bogus ones. At least regarding Justice Thomas’s statement, please allow me to soothe any brows that may be fevered.

It helps to actually do something Patheos omitted:  a close reading of the relevant constitutional text – the closer the reading, the better – and to do so with some historical perspective. In this case, the relevant texts are the two “religion clauses” of the First Amendment, in particular the venerable “establishment” and "free exercise" clauses (boldface added):

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …

Three points:

(1)   The word “Congress” is critical. Essentially, what the Amendment says it that the Federal Legislature, i.e., Congress, is prohibited from establishing a religion. The context of the First Amendment pertains exclusively to the government at the Federal level, and is entirely agnostic vis a vis the prerogatives of the States. (This is no longer true. Keep reading!) In its original meaning – important qualification – the First Amendment pertained only to the Federal government.

(2)   Note that the First Amendment does not say “Congress shall make no law declaring a religion as ‘official’ … “. Nor does it say “Congress shall make no law declaring a Church, or any other religious organization, as ‘official’ … “. The First Amendment is much more wide-ranging, much more inclusive, much more comprehensive than any such comparatively restrictive language. The “respecting” is important. Essentially, when the word “respecting” is used vis a vis “establishment of religion,” the Amendment forbids the Federal government from any action whatsoever that even hints, even casually flirts with, even nods its head, even “wink-winks” knowingly toward any form of partiality or favoritism toward any religion, any body of religious doctrine, or any religious institution whatsoever in any degree whatsoever. The single word “respecting” may be fairly paraphrased as “having anything whatsoever, however tenuous, however indirect, however peripheral, to do with … “ (The First Amendment in its present form was drafted by James Madison, who had no law degree, but who nevertheless possessed a lawyer’s exquisite sensitivity to the subtleties of language. The First Amendment is an elegantly nuanced testimony to the sheer power of language in the hands of a virtuoso:  one little word – “respecting” – makes a universe of difference. Every time I read of hear the First Amendment, I have to make a conscious effort to not stand, gape-jawed in amazement and drooling in public.) One wishes that the militant Christian right understood this. Liberty University, Rev. Falwell fils, Rev. Franklin Graham, et al., are you listening?

(3)   The flip side of the relationship of government and religion is the “free exercise” clause. Just as government is sternly and without qualification admonished to adopt a “hands-off” policy toward establishing a religion, it is no less sternly admonished to likewise adopt a “hands-off” policy toward others’ exercise of their religious faith. Again, the context is religious doctrine and practice. Nothing in either “religion” clause prohibits the government from requiring compliance with, e.g., fire-safety codes, sanitation regulations, noise-abatement requirements, etc.

But – one more time – (1), (2), and (3) apply strictly at the Federal level, because the overarching context of the First Amendment is that “Congress [i.e., the Federal Legislature] shall make no law … “ (emphasis added). In its original meaning, the States are free to depart from all these provisions however their respective legislatures see fit. To that extent, and within the context of original meaning, Justice Thomas was quite correct:  the States – not the Federal Government, but the States – being untouched by the First Amendment, do have the option of declaring a religion or a Church the “official” religion or Church or doctrinal code, Christian or otherwise, the official religion or Church or doctrine of that particular State. In fact, in the State of Connecticut, the Congregational Church was the official Church from about 1801 until 1818. Ditto Massachusetts until 1833.

I say “States … do have the option” in the present tense. But in actuality, the present reality is that, whereas the States once did have the option to declare a religion (or Church or doctrine) “official”, States no longer have that prerogative. Why? The short answer – too terse for our purposes – is that the Constitution is an interpreted document.  In fact, “interpreted document” is a redundant phrase. All documents are interpreted. Without exception. Moby Dick, the Bible, the assembly instructions for your new IKEA coffee table, my wife’s grocery-shopping list – all documents, without exception, are interpreted. That is what renders them meaningful. In fact, that is what makes them documents.  Interpretation just is the process of endowing collections of words and punctuation with cognizable meaning. Furthermore, when parts of a given document change, by redaction, addition, or subtraction, the meaning of the entire document changes, even the parts that were not physically altered. Christians read the Hebrew Bible differently from Jews because Christians added the New Testament to what Christians call the “Old”. (That is why, e.g., Christians read Isaiah’s “suffering servant” texts as referring to Christ, and Isaiah’s “virgin” / “young woman” text as prophetic of Mary. Jews do not.) Such considerations are as relevant to the Constitution as to the Bible. Additions and alterations of the text of the Constitution alter the meaning of the Constitution, also.

The greatest seismic change in how the Constitution is interpreted was eventuated by the passage and ratification of the “Reconstruction Amendments”: 13, 14, and 15.  There is a whole jurisprudential universe of meaning in that previous sentence. But in terms of how we read the First Amendment, the greatest change in its interpretation is traceable to the "privileges or immunities," “due process,” and “equal protection” clauses of section 1 of the 14th Amendment:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Beginning in 1925 with the landmark case of Gitlow v. New York , the Supreme Court ruled that, with respect to the First Amendment, States are as bound by the First Amendment as the Federal government, i.e., anything the Federal government is enjoined from doing, the States may not do either. Strictly speaking, the Gitlow decision pertained only to “abridgement”-clause liberties of freedom of speech and press, not to the “religion” clauses. But Gitlow set the precedent of viewing the constitutional prerogatives of the States through the hermeneutic / interpretive lens of the 14th Amendment.  This practice, by now pretty much set in concrete by the principle of stare decisis , is known as the “incorporation doctrine,” and constitutional scholars now refer to various aspects of the Bill of Rights being “incorporated against the States” by the “due process” and “equal protection” clauses of the 14th Amendment.

So … bottom line … Justice Thomas was right in the 18th and 19th centuries, when the States could declare Churches and religions “official,” but he has been wrong since 1925, i.e., since Gitlow. Right? Wrong! Well … in the immortal words of Daffy Duck to Nasty Canasta in the old Warner Brothers cartoon: “Not s’fast hom-ber!” Remember two items, one old and one new:

(1)   As noted above, the US Constitution, like all documents, is – by definition of “document” – interpreted. That is how it is endowed with meaning.

(2)   Interpretations change with time.

The Constitution was once interpreted, by the Roger Brook Taney Court in Dred Scott v. Sandford , to mean that black slaves – in fact, even free blacks – could not ever be US citizens. (This conclusion was arrived at by an “original meaning” argument, by the way.) Likewise, it was also once interpreted in Plessy v. Ferguson in 1896 to mean that the Constitution validated the doctrine of “separate but equal”. Both decisions were invalidated:  Dred Scott by the 14th Amendment; Plessy, by Brown v. The Board of Education in 1954. In both cases, the interpretation of the entire Constitution was changed because of additions / emendations to the text of the Constitution itself, via the 14th Amendment. However … “Not s’fast hom-ber” … these interpretations of the constitutional text are themselves subject to interpretation. (This is the hoary, so-called “hermeneutic circle” of textual exegesis -- interpretations of interpretations of interpretations – that provides post-modern literary theorists in academe with job security.) So someday things could change again.

Bottom line? Three parts:  (a) Justice Thomas was right up until 1925 and Gitlow; (b) since Gitlow he has been wrong; but … but … (c) at some future date, he may be right again, despite stare decisis, because of the historical eddies, cross-currents, and rip-tides of textual interpretation. It has happened before – I  just gave two “classical” examples – and it could happen again.

The ur-point, the Grundgesetz (fundamental principle), “underneath” the entire interpretation issue is that the text of the US Constitution nowhere contains a rule for how to interpret the text of the US Constitution. (Actually … “Not s’fast hom-ber” … even that is not quite true. Article IV, sec. 3, para. 2 contains what I believe is the one sole "internal" exegetical rule for interpreting the Constitution. But it is not relevant here.) No point in having such:  the rules for interpretation, being themselves mere texts, would likewise be subject to interpretation. Ah the pleasures of what Derrida called la jouissance de la signification libre (“the joy of free signification”)! Now you know why I’m bald. Legal precedents are just that -- precedents -- not laws of mathematics. I do not realistically anticipate it happening, but theoretically, in principle, given the imponderables  of history and culture, it is vanishingly unlikely but possible that a future Supreme Court might interpret the Constitution so as to once more permit State legislatures to endow religions and religious institutions with "official" status. It is likewise theoretically possible, however vanishingly unlikely, that a future Supreme Court may repudiate Marbury v. Madison and decide that, no, the Supreme Court does not, after all, have constitutional license to rule laws unconstitutional. (There really is a small but persistent cottage industry of credentialed constitutional scholars -- by no means crackpots -- who make exactly this argument.) After all, Marbury is just one more decision -- one more precedent -- no more sacrosanct than Dred Scott or Plessy. "Impossible," you say? So said Deep South planters about the likelihood of black citizenship in the 1850s.

I conclude with three valedictions:  (1) because rules for interpreting the Constitution can change, Justice Thomas is right; but (2) because the incorporation doctrine has not changed yet, Justice Thomas is wrong, and (3) the incorporation doctrine and its history are head-shatteringly complicated. But the bottom line is that, while there are no strict guarantees as to the future, the likelihood that the incorporation doctrine will be repudiated, and that States will once more be free to make religions "official," is somewhat less likely than that Jeff Sessions and a hitherto-clandestine gay lover will adopt a Syrian-immigrant orphan.

In other words, don't worry about it.

James R. Cowles

Image credits:
14th Amendment Section 1 ... The Libertarian Republic ... Public domain
"Freedom" graffito ... The Libertarian Republic ... Public domain
Gavel picture ... ... Public domain
Independence Hall & First Amendment monument ... Robin Klein ... CC by SA 3.0
Justice Clarence Thomas ... Supreme Court ... Public domain


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