3/15/2017--Last Friday, I gave a talk at the Nootbaar Conference as part of a panel that was addressing religious critiques of law. My topic was The Religious Critique of Constitutional Jurisprudence. The talk represented a challenge to the religious community, and to all those committed to forms of moral realism, to confront the nihilism and value relativism of the field of constitutional interpretation. Below is a form of the talk.
What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
The Religious Critique of Constitutional Jurisprudence
Nootbaar Conference, 2017
What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?
Does it consist of religious criticism of the demands of the State on religious believers?
Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?
All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?
There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.
Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.
But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?
When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.
The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.
This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.
This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.
The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.
At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.
The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:
"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."
Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.
I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.
This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.
Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.
We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.