Good
question, Marty. I'd be interested to hear what others might have to say,
both concerning the Rehnquist opinion in Locke v. Davey, his opinions more
generally, and also the more general trend of opinion-writing that you describe
in your previous post.
I think
there's probably a law review article in my parenthetical comment. As you
said in your previous post, I'll get back to you in a few
years!
Dan
Conkle
-----Original Message----- From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Marty Lederman Sent: Tuesday, May 03, 2005 3:15
PM To: Law & Religion issues for Law Academics Subject:
Re: Locke v. Davey follow-up
Just curious: If the opinion is
intentionally "underreasoned" in order to (i) keep the Court's docket running
smoothly; and (ii) readily bring on board seven votes; and (ii) leave open for
further cases those difficult questions -- not presented in the case itself --
that might divide the seven-Justice majority . . . is that a prudentially
justified exception?
----- Original Message -----
Sent: Tuesday, May 03, 2005 4:09
PM
Subject: RE: Locke v. Davey
follow-up
I think
you had it right the first time, Eugene: At least as a general
proposition, we indeed ought to ask the justices to be logical and
principled in the sense you have in mind, and they should be subject to
criticism when they are not. (I say "at least as a general
proposition" to leave room for the possibility of prudentially justified
exceptions.)
Dan
Conkle
Touche; I should have said that there
ought to be logic at least to our theories of what the right rule here
should be, and to the frameworks that we propose as tools for organizing
the caselaw and for deciding future cases..
"Finally, as to looking to the principles
actually used by the Court, I would have thought that we ought to ask
them to be logical -- perhaps not perfectly crisp and clear in all
instances, but still generally logical."
Eugene, Eugene: Surely you
jest. Don't forget to take a look at the very first line of the
opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ
opinions, especially those involving difficult constitutional questions,
the whole objective is to ensure that there is no internal
"logic" at all, so that the Court is free to decide the next cases
any way it wishes. (Another classic in this vein: the
indefensible Boy Scouts v. Dale, which makes no
doctrinal sense and that can be read either to make mincemeat of a long
line of previous cases, or as a one-time ticket good for this day and
this train only -- probably best viewed as the latter, as the
Solomon Amendment case will demonstrate.) Indeed, much to what I
imagine is Eugene's chagrin, it turns out that the entire Court is
becoming much less doctrinal in recent Terms when it comes to
constitutional decisions, and much more, shall we say,
discursive, in a Rehnquist/O'Connor/Kennedy sort of way.
Scalia and (sometimes) Souter and Thomas might be exceptions. But
surely, the Chief's opinions are, quite intentionally, the most
inscrutable of all.
Locke v.
Davey is a Chief Special. It goes out of its way to
throw together, willy-nilly, a bunch of different variables and
factors, any one (or two, or three) of which could be ignored, or
embraced, next time around. That's no accident -- it's how
he designs it. Just take a look at the one-sentence
footnote 4, which apparently purports to resolve several
inscrutable constitutional questions -- concerning unconstitutional
conditions, and the "segregation" requirements of, e.g.,
Rust and LWV -- that many very bright folks
(e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his
Harvard piece) have spent hundreds upon hundreds of pages trying to
unravel (and that we struggled with for weeks on this list prior to the
Court's decision).
The
judgment in Locke can be defended. But in order
to do so, one needs a much richer account than Rehnquist would ever
dream of providing with respect to at least two things: (i) an
explanation of exactly why Washington might wish not to fund
divinity studies (or why the state in your hypo, Eugene, would single
out religion for restriction) -- by which I mean something much more
than the simple and unhelpful "because there's a tradition of not
using government funds to subsidize the church"; and (ii) a more
fullsome understanding of which sorts of government reasons for singling
out religion are, and are not, constitutionally
problematic.
I'm working on it
-- and I'll get back to you in a few years . . . .
----- Original Message -----
Sent: Tuesday, May 03, 2005 2:09
PM
Subject: RE: Locke v. Davey
follow-up
I don't quite understand this. Steve himself
says "A state may not want to use public funds to support religion
and religious training. And it can constitutionally do so." In
my hypothetical, that is *precisely* what the state is trying to
do.
Now perhaps Steve's "unreality" point is simply that
the provision is unlikely to be enacted. That's hard to tell;
the U.S. is a big country, and lots of things that are unlikely
generally may get enacted in one or another location under one or
another circumstance. I realize that some hypos are so
outlandish that they shed little light on the question. But is
this really *that* outlandish? Is it really pointless to
consider what would happen when a state is genuinely committed to the
*very sentiments expressed in Steve's own quote*, and just takes them
further than Washington did in Locke?
Finally, as to looking to
the principles actually used by the Court, I would have thought that
we ought to ask them to be logical -- perhaps not perfectly crisp and
clear in all instances, but still generally
logical.
Eugene
-----Original Message----- From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf
Of Steven Jamar Sent: Tuesday, May 03, 2005 10:31 AM To: Law &
Religion issues for Law Academics Subject: Re: Locke v. Davey
follow-up
The reason I find Eugene's hypo uninteresting is
the unreality of it. Of course, I say this despite having seen
many things I once thought from the realm of fantasy come to
pass.
There is a difference between a tax and
subsidy.
There is a difference between a direct payment and
an indirect one.
There is a difference between programs with
conditions and direct requirements without the
inducements.
But, in every instance, the edges are blurry and
if pushed too far, one thing has the undesired effect that the
distinction was trying to make.
A state may not want to
use public funds to support religion and religious training.
And it can constitutionally do so. The fact that the intention
can be circumvented or that the line drawn is imperfect or that some
distinctions seem illogical or are in fact illogical simply means
that the world is complex and that relationships of things one
to another are tangled and weblike, not subject to linear
logic.
Can one come up with a principled approach? The
court tries to do so. Sometimes the principles are as vague as
balancing competing interests of conflicting demands; or sometimes
principles will conflict (speech v. establishment a la Rosenberger);
or sometimes the situation just requires that the case and only the
case before it be decided; or sometimes the principles are not
hard-edged (like direct and indirect); or sometimes they relate to
history and tradition; and sometimes they are teleological.
Sometimes the principles are even logical or susceptible of
syllogistic application. Indeed, most cases are
like that. But not the ones on the edges.
We should
not be looking for logic in freedom or religion as Eugene seems to be
wanting us to do, but we should be looking to the principles actually
used by the Court. We make a mistake when we look just to facts
or to holding or to logic.
As Doug Laycock has pointed out
better than I could
have.
Steve
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