Sunday, June 26, 2011

The Political Irresponsibility of Douglas Laycock

6/26/2011—Douglas Laycock, professor of law at Virginia, is a great man. He is particularly a great man in the field of church and state. His terms dominate discussion in legal circles about religion in the public square and religious liberty generally.

But Douglas Laycock shares a trait with most law professors. He does not feel enough responsibility for the political health of America and he does not think hard enough about the relationship of his constitutional understanding to that political community.

I say that because of Laycock’s answer to criticism of his position on “under God” language in the Pledge of Allegiance [from 89 Texas Law Review 949]:

“[T]his is a wholly academic discussion. ‘[U]nder God’ in the Pledge is not going away. Forced to consider the issue by Michael Newdow's first lawsuit, I gave the principled answer that the current Pledge is unconstitutional. But nothing good can come from Newdow's litigation, which is many decades premature. The nonbelieving minority is not yet large enough or influential enough to have such a politically aggressive claim taken seriously. If Newdow ever gets the Supreme Court to consider his claim on the merits, he will almost certainly lose, and the opinion may do much broader damage to Establishment Clause doctrine. If he were to win, the victory would be Pyrrhic, leading to a constitutional amendment, widespread defiance of the Court, or both.
My amicus brief in Newdow, to be reprinted in volume 4, was an attempt at damage control. I made the argument for why the Pledge is unconstitutional, not in any hope of winning, but hoping only to get the Court to take the issue seriously and write a more cautious opinion. And then I suggested a way to uphold the Pledge that would do the least damage to surrounding doctrine. I am not campaigning to amend the Pledge. Here too, the perfect should not be the enemy of the good.”

Here is a good man gone terribly wrong. “Not yet large enough”. “Decades premature”. Does Laycock understand the implications of this language? We are to have decades of political strife over God. We are to have elections over whether God should be banished from the public square. Doesn’t Laycock understand the damage this will do? It is a perfect recipe for demagoguery, especially as the nonbelieving majority grows almost large enough to succeed.

This is Ronald Dworkin’s question all over again: are we going to be religious or secular? We just cannot be forced to answer that question. And if law so forces us, then law must be changed.

Laycock would say that none of this is his fault. He is not campaigning to amend the Pledge.

But it is his fault and that of others like him. He is the expert telling secularists that the Pledge is unconstitutional.

Undoubtedly there are times when the proper interpretation of the Constitution leads to political strife. Even long-term strife. Maybe Brown v. Board of Education was such an example.

But such a situation is rare. Why must God be interpreted in this way? Laycock’s position means that the Declaration of Independence is constitutionally suspect today. Can that really be right? Isn’t the Declaration the norm? It seems to me that the responsibility of every constitutional interpreter is to explain why public reading of the Declaration is constitutional. Laycock has not worked hard enough for peace. And his hiding behind “principle” is abdication.

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