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A RESPONSE TO A “LIVING CONSTITUTIONALIST”

A RESPONSE TO A “LIVING CONSTITUTIONALIST”

Bruce Ledewitz is a very smart man who teaches constitutional law at Duquesne University in Pennsylvania. He recently wrote an article for the Philadelphia Inquirer—also reproduced in other news outlets. In his article, he contends that the Supreme Court’s decision this year in Trinity Lutheran Church v. Comer discredited “originalism”—the approach of interpreting the Constitution as the Founders adopted it.

Several leading originalists—including Professor Randy Barnett (Georgetown) and Professor Michael Ramsey (San Diego)—already have published good rejoinders.  I’ve been strongly urged to write one as well.

I normally avoid getting into that kind of affray, especially when other competent people have picked up the banner. However, I finally agreed to do so for one reason: I believe Professor Ledewitz’s article illustrates how even intelligent and mature law professors usually are unprepared for the tasks of writing and teaching about the Constitution.

I’ve mentioned the problems previously. Most law professors focus, both in their study and in their teaching, on Supreme Court cases. They have limited familiarity with the Founding Era record. Few have the historical training necessary to assess that record. Even fewer have been immersed in the 18th century educational canon. Exceedingly few are competent in Latin, the Founders’ second language. Surprisingly few have studied the Constitution’s 18th century legal background. Many corrupt their understanding of the Constitution with their own political preferences—either by claiming it means whatever they want or by underestimating it because it doesn’t give them what they want. These problems afflict law professors even at the nation’s most prestigious law schools.

My approach here is to excerpt passages from Professor Ledewitz’s article with a corrective response appended to each excerpt:

Professor Ledewitz: “It was probably always a mistake to take originalism seriously as a theory of constitutional interpretation.”

Answer: Professor Ledewitz may not know that, as explained below, “originalism” is merely the constitutional name for the method of documentary interpretation that has prevailed for centuries in the English and American judicial systems. Failing to take it seriously would be a far more radical change than I think even Professor Ledewitz would recommend.

Professor Ledewitz: “Originalism, or textualism as its great proponent, the late Justice Antonin Scalia, termed it, is the theory that constitutional provisions should be interpreted in accordance with their original public meaning.”

Answer: Textualism is not the same thing as originalism. Textualism is a method of interpretation that focuses on the meaning of words while generally avoiding resort to materials generated during the legislative process. It is usually applied to the interpretation of statutes. Pure textualism is more defensible in modern statutory construction than in constitutional interpretation because legislative history is sometimes manipulated in ways that the Constitution’s background was not.

In its most precise form, originalism is the view that judges and other officials should be faithful to the Constitution the people actually ratified (as amended)—and that judges and other officials should avoid the temptation to substitute a “constitution” they might prefer for the actual, historical document.

Writers often use the phrases “original public meaning” and “intent of the framers” as shorthand for originalism. In the 18th century, the common shorthand for originalism was “finding the intent of the makers.” All those labels can be confusing. According to the rules prevailing when the Constitution was adopted (and today as well, as to almost all other documents), an interpreter tries to recover the understanding of the parties (ratifiers). If, because of insufficient or conflicting evidence he or she cannot do so, then he or she applies the original public meaning as a substitute.

Professor Ledewitz: “The theory never made any sense either as a matter of language or political theory and was premised on a nihilistic skepticism about the possibility of truth in political affairs.”

Answer: Whether one can obtain “truth in political affairs” is not really relevant to the issue of the meaning of a written constitution. One reason for putting a constitution in writing is precisely to set down rules to contain and civilize the tumult of politics.

Professor Ledewitz: “Nevertheless, originalism has achieved a real rhetorical dominance.”

Answer: He writes as if originalism were a recent development. But construing documents according to “the intent of the makers” has been the prevailing Anglo-American legal method of interpretation for centuries. The Founders absorbed it from, among others, the 16th century legal scholar Edmund Plowden. During the 18th, 19th, and early 20th century it was the prevailing way of interpreting the Constitution. Originalism’s “rhetorical dominance” was achieved because of this history and also because (1) that is how we construe most other legal documents (certain real estate instruments partially excepted), (2) it is hard to justify the current double standard, and (3) non-originalists have failed to agree on principled alternatives.

Professor Ledewitz: “But, with the Trinity Lutheran Church decision on June 26, originalism as a theory can confidently be relegated to the historical ash heap. In Trinity Lutheran, Missouri excluded a church playground from a state reimbursement grant program toward the purchase of safe playground surfacing material. . . .The church won, 7-2. Given the safety issue and the nonreligious nature of the playground, the decision was certainly a sensible outcome. But, from the point of view of originalism, the decision was ridiculous.”

Answer: Courts may err in applying any theory of interpretation. Assuming Trinity Lutheran was wrong, Professor Ledewitz does not explain why one error should discredit a procedure that has served us well for centuries.

Professor Ledewitz: “If there was a single principle that united most of the framers and supporters of the original Establishment Clause, it was the prohibition against the payment of public money to churches.”

Answer: This is incorrect. The primary principle underlying the Establishment Clause was that Congress must treat all religions impartially. The Clause did not extend to the states. Those seeking “disestablishment” at the state level opposed taxpayer subsidies to churches designed to promote particular religions. They did not object to paying a church for unrelated contractual obligations—the scenario in Trinity Lutheran. And they would have been outraged at Missouri’s practice of discriminating against churches generally.

Moreover, as Professor Barnett has pointed out, the part of the Constitution most relevant to Trinity Lutheran is the Fourteenth Amendment, not the First. This is because the Supreme Court has applied First Amendment principles to the states only because of language in the Fourteenth Amendment. Professor Ledewitz’s article is devoid of any discussion—or even any mention—of the Fourteenth Amendment.

Professor Ledewitz: “The historical absurdity of the decision is why only the two dissenters, Justices Sonia Sotomayor and Ruth Bader Ginsburg, discussed the history of the religion clauses. But, since those two justices are not originalists, their discussion must be considered merely opportunistic. There are no originalists on the court.”

Answer: It is poor practice to conclude from a single decision—even assuming that it was erroneous—that there are “no originalists on the court.” Justice Clarence Thomas has applied originalist jurisprudence to countless cases throughout his long tenure. Based on several cases in his first term, Justice Gorsuch also appears to be an originalist.

Professor Ledewitz: “Although no one bothered to say so in the decision, a departure from historical understanding was justified in the Trinity Lutheran case because the modern sense of unjust discrimination is much more robust than when the First Amendment was adopted and government funding of private activity is much more prevalent than in the 18th century, when such spending was largely unknown. What would not have struck the framers as unfair discrimination against religious believers looks like that to us.”

Answer: There are a number of problems with this statement. First, Missouri relied on a section of its state constitution (the “Blaine provision”) designed to discriminate against particular religions, notably Roman Catholicism. This violated the central principle of the Establishment Clause as understood by the Founders, not merely by us.

Also, as noted above, the actual amendment governing the case was the Fourteenth Amendment, which was adopted in 1868, not during the Founding Era. Discriminating against churches in distributing otherwise generally-available funding probably violates that Amendment’s Equal Protection Clause. To contend that Missouri’s practice was consistent with the Constitution, one must argue both that (1) the Establishment Clause does not apply to the states and (2) the Fourteenth Amendment permits discrimination against churches. Professor Ledewitz does not make those arguments.

Professor Ledewitz: “That is how the living constitution works. We apply constitutional principles in ways that make sense today. We do not clone the thinking of political leaders who faced vastly different circumstances. . . .”

Answer: Following the Constitution does not require us to “clone the thinking” of anyone. It requires only that we follow the meaning of the words in a controlling document. Courts do that sort of thing all the time. It’s their job.

Moreover, what are the “constitutional principles” Professor Ledewitz would have us apply? Are they principles that we make up as we go along? In that case, we are acting politically, not constitutionally.

Or does he mean we should derive our constitutional principles from the Constitution? But the Constitution embodies a number of basic principles, and they sometimes conflict. The framers and ratifiers carefully crafted the document’s language to balance those principles in specific ways. Originalist interpretation enables us to understand the results. Non-originalist judges and professors often insist on re-balancing principles to suit themselves rather than inquiring how the Constitution balances them.  In doing so, they are acting politically, not constitutionally.

Professor Ledewitz: “The Trinity Lutheran decision does not mean that the cottage industry of originalism will shut down. The reason for its continuation is that originalism as a political matter never had anything to do with interpretive theory. The real purpose of originalism is to overturn the expansion of federal government power associated with the New Deal. . . . .”

Answer: An interpretive method that has lasted since at least since the 1500s cannot have been designed to overturn the New Deal of the 1930s. On the contrary, it was “living constitutionalism”—not originalism—that was fashioned for political ends. It was designed to offer a constitutional fig leaf for a federal coup d’etat. Not surprisingly, most people who study constitutional jurisprudence find the fig leaf transparent.

Professor Ledewitz: “Even the Republican majority in Congress does not understand the bill of goods it is being sold under the name of originalism. Included in the healthcare reform proposals being debated in the Senate are proposed national caps on pain and suffering in medical malpractice cases. Whatever one thinks of these proposals, they concern a problem national in scope that Congress should have the power to deal with. Certainly the framers of the Constitution, who were practical men intending to create a federal government with the necessary powers to deal with national issues, would agree with that if they were alive today. But, from the perspective of the 18th century, any such legislation would be unconstitutional as invasive of the reserved powers of the states.”

Answer: Professor Ledewitz is correct that some aspects of Republican federal tort reform proposals violate the Constitution’s meaning—a conclusion I have previously documented. However, he misunderstands how the Constitution’s enumerated power scheme was designed. The Founders did not give the federal government power to deal with every issue one might think “national in scope.” They were, indeed, practical men, and as such they recognized human activities of some kinds (e.g., religion, manufacturing) often affect others (commerce, foreign relations). But precisely because they were practical, they also recognized that sometimes the advantages of allowing Congress to legislate in all connected areas were outweighed by the disadvantages (e.g. the threat to liberty of centralized power).

Accordingly, the Constitution’s scheme of enumerated powers deliberately reserves certain potentially-national issues to the exclusive jurisdiction of the states. Most aspects of civil justice, including tort law, are in this category. Legitimate interstate action is still possible, however—through uniform state laws, interstate compacts, and, as a last resort, by constitutional amendment.

Professor Ledewitz: “As the Trinity Lutheran case shows, we need not be ruled from the grave. All of our law, but especially constitutional law, should be interpreted from our own perspective.”

Answer: Is Professor Ledewitz saying that judges should re-write laws to their liking simply because some or all of their sponsors are no longer around? That is a prescription for oligarchy—and the Constitution was designed to protect us against that.

Of course, Americans could have adopted the British unwritten (living) constitution approach whereby a sufficiently determined cabal of politicians and judges can change the rules. Although academia is filled with modern-day Tories who would be happier in such a system, most Americans, whatever they think of particular judicial holdings, seem quite content to have our Constitution fixed and in writing.

How the New York Times Misrepresents the Supreme Court

How the New York Times Misrepresents the Supreme Court

A recent New York Times story, titled “A Polarized Supreme Court, Growing More So,” illustrates how left-of-center media distort perceptions of the U.S. Supreme Court.

The story’s problems begin with the lead paragraph’s assertion that Justice Neil Gorsuch’s appointment is “a conservative replacing another conservative.” What the Times probably intended to say is that the appointment replaces an originalist with an originalist. Originalism and conservatism are not the same thing.

Originalism is untied to political results, whether liberal or conservative. It applies the methods English and American judges have used for centuries to interpret most documents, including constitutions. The primary difference between modern originalists and non-originalists hinges on whether judges should be consistent or whether they should change the rules of interpretation for some hot-button constitutional issues.

In the article, as elsewhere, the Times describes the Court as split five-to-four, with the majority constituting a “conservative bloc.” It is more accurate to describe the Court as split four ways: (1) liberal activists (Elena Kagan, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor), (2) originalists (Clarence Thomas and Gorsuch), (3) advocates of judicial deference (John Roberts, Samuel Alito), and (4) an erratic social libertarian (Anthony Kennedy).

“And, in a shift in recent years,” the Times writes, “partisan affiliation has become a very strong predictor of voting trends for all its members.” The sentence is technically true but substantially misleading. This description would be better: although Democratic appointees have been reliably liberal on most issues, Republican appointees have commonly slipped to the left—a slippage reduced recently as GOP administrations have adopted better vetting procedures.

The article’s thigh-slapper is its description of Kennedy as “a moderate conservative.” Anyone familiar with Kennedy’s judicial style knows that he is not a moderate anything, much less a conservative. It is true that he has voted to strike down some particularly ambitious pieces of congressional legislation, but he has also reaffirmed the very liberal view that the federal government may exercise almost unfettered control over the national economy. More importantly, he has written a series of opinions reaching radical social results through an untethered and virtually unprecedented methodology.

Similarly revealing are the “experts” the Times chose to quote. Apparently, there are no experts in flyover country or in the South. Everyone worth hearing is from the Northeast or West Coast.  This is an extraordinary omission because the nomination of Gorsuch, a Coloradan, was widely viewed as an effort to rebalance the court toward the country’s center.

Neither do practicing lawyers exist in the Times’ world. Everyone quoted is affiliated with an academic or policy institution.

Nor do consistent originalist experts exist—even though the Gorsuch hearings dwelt largely on originalism. The Times quotes four liberals and one activist libertarian. No originalist scholars at all.

The Times article cites just one case by name: Citizens United v. Federal Election Commission. The Times treats that case, as is common among liberal writers, as an unqualified “conservative” victory. In fact, it was a split decision, with originalists winning on one issue but losing on the other.

Several years ago, the Times was properly criticized for describing the Court’s activist liberals as its “four moderates.” While the latest article doesn’t make that mistake, it does reveal the Times’ propensity for putting its left-of-center views at the hub of the ideological universe. Thus the reporter describes Obama appointee Merrick Garland as “not especially liberal.” And he selected for publication an unrebutted claim that Garland was “centrist.”

Yet the reporter’s own article shows this to be untrue. It includes another unrebutted quotation in which a long liberal wish list is described as “safe” with Garland. If he were a centrist, presumably liberals would lose sometimes!

In fairness, the Times does quote an expert who cautions against its stereotyped nomenclature—pointing out that labeling Gorsuch and Garland as “‘conservative” or “liberal” is “too simplistic and unfair to both of them.” That caution, however, is buried at the end.

This article was originally published in the American Conservative.

Three New Supreme Court Cases Show in Some Areas, the Constitution No Longer Matters

Three New Supreme Court Cases Show in Some Areas, the Constitution No Longer Matters

Note: This article originally appeared at CNS News. An earlier version included unauthorized editing and should be disregarded.

Three recent Supreme Court decisions reveal in the area of personal rights, most of the justices are applying rules unrelated to the U.S. Constitution. In two of the cases, the majority refused to protect rights expressly laid out in the Constitution. In the third, the majority strained to protect a “right” that does not appear there.

The First Amendment protects “free exercise” of religion. In 1993, the Court held—correctly, I believe—when government officials target particular religious beliefs, they violate the First Amendment.

But that’s exactly what Washington State officials did in Stormans, Inc. v. Wiesman. In that case, Gov. Christine Gregoire (D) was displeased with pharmacists who, on religious grounds, refused to dispense abortion-inducing drugs. Availability of the drugs was not a serious concern; they were freely available elsewhere. But the governor wanted to force religious dissenters to either violate their consciences or lose their livelihoods. She even threatened to fire members of the state’s pharmacy board unless they banned faith-related opt-outs. Her allies on the state human rights commission threatened board members with personal liability if they did not issue a ban.

Under pressure, the pharmacy board adopted a rule requiring religious dissenters to dispense abortifacients. Left-wing activist groups then used the rule to launch a campaign to badger dissenters into choosing between compliance or closing down.

This was a clear case of a state violating First Amendment rights, and the trial judge so ruled. But an appellate court reversed that decision, and a majority of the U.S. Supreme Court—with Justices Samuel Alito, John Roberts, and Clarence Thomas dissenting—let the appellate court’s decision stand. In doing so, the majority carried out the veiled warning they issued last year in the homosexual marriage case: Religious freedom will not be allowed to obstruct the court’s social agenda.

The First Amendment also guards “freedom of the press.” The phrase was designed to cover not only newspapers but the right to publish political opinion as well, with or without disclosing one’s identity. In fact, when the First Amendment was adopted, the usual practice was to submit an opinion for public judgment without signing one’s name. That’s how The Federalist Papers were first published.

In recent years, Congress and many states have flouted the First Amendment by adopting laws forcing the authors of political media to disclose donors’ names. Those laws are popular only among people who do not understand the real motivations behind them: to aid incumbent politicians and to subject dissenters to harassment.

In Delaware Strong Families v. Denn, the State of Delaware imposed intrusive disclosure rules on a nonprofit organization that distributed a voter guide revealing—in a relatively neutral way—local candidates’ positions on various issues. The guide was precisely the kind of publication protected by the Founders’ phrase “freedom of the press.” Nevertheless, the Supreme Court refused to overturn the Delaware rules. Only Alito and Thomas dissented.

But in Whole Women’s Health v. Hellerstedt the majority zealously protected a “right” not located in the Constitution at all.

In that case, a majority of justices struck down a Texas law requiring each abortion doctor to have admitting privileges at a nearby hospital. The idea behind the law was to assure immediate hospitalization if complications arose during an abortion procedure. The court also struck down another state law requiring abortion facilities to follow the same standards imposed on other out-patient surgery providers.

As business regulations go, the Texas laws were very modest. Judges routinely uphold much more intrusive regulations—even those that entirely abolish otherwise legitimate businesses. Yet, in this case, the Supreme Court majority—again with dissents from Alito, Roberts, and Thomas—voided both laws. The majority reasoned the regulations might reduce the availability of abortion and were therefore unconstitutional. Yet the courts do not show similar concern for other businesses greatly harmed by regulations, including other health care facilities.

The majority’s zeal is particularly striking when you consider two other factors: First, none of the plaintiffs actually were women seeking abortions. The plaintiffs were providers making money from abortions. Second, the majority swept away technical legal hurdles that probably would have killed any non-abortion case.

Sadly, in this area of constitutional law, the Constitution no longer matters much. What does seem to matter, however, are the personal views of the majority of the Supreme Court.

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

New Article on What "Taxes" Are (And Aren't) Under the Constitution, and the Implications for Obamacare

2005-10 RGNStPaulsWas the Supreme Court right to call Obamacare’s insurance penalty a “tax?”

Not according to the Founders.

Rob’s new article explaining just what the Constitution means by “tax” has just come out. It explains also the Constitution’s other financial terms: “Revenue,” “Excises,” “Tonnage,” “Duties,” and “Imposts.”

You can get a copy here.

 

Antonin Scalia, RIP

Antonin Scalia, RIP

 

Justice Antonin Scalia was one of the most eloquent opinion writers in the history of the United States Supreme Court–perhaps the greatest of all. His dissents may have been the most powerful ever written.

Justice Scalia was more than an outstanding lawyer: He was an perceptive social commentator.

In tribute, I reproduce below his opinion in the 1992 case of Lee v. Weisman. In that opinion, he dissented—with characteristic humor, cultural leaning, and biting wit—from the Court’s decision banning prayer from high school graduations. Justice Scalia added to his purely legal treatment the centrality, and the benefits, of religion in American civic life. His peroration—the last portion below the asterisks—is particularly moving, and I have bolded it. In this reproduction, I have omitted only Justice Scalia’s citations to volumes and pages.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE THOMAS join, dissenting.

Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.” . . . .

These views, of course, prevent me from joining today’s opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court—with nary a mention that it is doing so—lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States . . . .Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

I
Justice Holmes’ aphorism that “a page of history is worth a volume of logic,” . . . applies with particular force to our Establishment Clause jurisprudence. As we have recognized, our interpretation of the Establishment Clause should “compor[t] with what history reveals was the contemporaneous understanding of its guarantees.” Lynch v. Donnelly . . . “[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.” School Dist. of Abington v. Schempp. . . (Brennan, J., concurring). “[H]istorical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied” to contemporaneous practices. Marsh v. Chambers . . .Thus, “[t]he existence from the beginning of the Nation’s life of a practice, [while] not conclusive of its constitutionality . . . is a fact of considerable import in the interpretation” of the Establishment Clause . . .

The history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition. Illustrations of this point have been amply provided in our prior opinions. . . but since the Court is so oblivious to our history as to suggest that the Constitution restricts “preservation and transmission of religious beliefs . . . to the private sphere,” . . . it appears necessary to provide another brief account.

From our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, “appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions” and avowed “a firm reliance on the protection of divine Providence.” In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President:

“[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.”

Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, prayed in his first inaugural address: “[M]ay that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.” In his second inaugural address, Jefferson acknowledged his need for divine guidance and invited his audience to join his prayer:

“I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.”

Similarly, James Madison, in his first inaugural address, placed his confidence

“in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.”

Most recently, President Bush, continuing the tradition established by President Washington, asked those attending his inauguration to bow their heads, and made a prayer his first official act as President.

Our national celebration of Thanksgiving likewise dates back to President Washington. As we recounted in Lynch,

“The day after the First Amendment was proposed, Congress urged President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God. President Washington proclaimed November 26, 1789, a day of thanksgiving to offe[r] our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions. . . .”

This tradition of Thanksgiving Proclamations—with their religious theme of prayerful gratitude to God—has been adhered to by almost every President. . . .

The other two branches of the Federal Government also have a long-established practice of prayer at public events. As we detailed in Marsh, congressional sessions have opened with a chaplain’s prayer ever since the First Congress. . . . And this Court’s own sessions have opened with the invocation “God save the United States and this Honorable Court” since the days of Chief Justice Marshall. . . .

In addition to this general tradition of prayer at public ceremonies, there exists a more specific tradition of invocations and benedictions at public school graduation exercises. By one account, the first public high school graduation ceremony took place in Connecticut in July. 1868—the very month, as it happens, that the Fourteenth Amendment (the vehicle by which the Establishment Clause has been applied against the States) was ratified—when “15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.” . . . As the Court obliquely acknowledges in describing the “customary features” of high school graduations, ante, at 583, and as respondents do not contest, the invocation and benediction have long been recognized to be “as traditional as any other parts of the [school] graduation program and are widely established.” . . .

II
The Court presumably would separate graduation invocations and benedictions from other instances of public “preservation and transmission of religious beliefs” on the ground that they involve “psychological coercion.” I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays, see County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter . . . has come to “requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.” American Jewish Congress v. Chicago . . . . But interior decorating is a rock-hard science compared to psychology practiced by amateurs. A few citations of “[r]esearch in psychology” that have no particular bearing upon the precise issue here, ante, at 593, cannot disguise the fact that the Court has gone beyond the realm where judges know what they are doing. The Court’s argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

The Court identifies two “dominant facts” that it says dictate its ruling that invocations and benedictions at public school graduation ceremonies violate the Establishment Clause. Ante, at 586. Neither of them is, in any relevant sense, true.

A
The Court declares that students’ “attendance and participation in the [invocation and benediction] are, in a fair and real sense, obligatory.” . . .But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation,” ante, at 588, in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure, . . . to stand as a group or, at least, maintain respectful silence” during those prayers. Ante, at 593. This assertion—the very linchpin of the Court’s opinion—is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters.) It claims only that students are psychologically coerced “to stand . . . or, at least, maintain respectful silence.” Ibid. (emphasis added). Both halves of this disjunctive (both of which must amount to the fact or appearance of participation in prayer if the Court’s analysis is to survive on its own terms) merit particular attention.

To begin with the latter: the Court’s notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined—or would somehow be perceived as having joined—in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions,” ibid., have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence. Since the Court does not dispute that students exposed to prayer at graduation ceremonies retain (despite “subtle coercive pressures,” ante, at 588) the free will to sit, cf. ante, at 593, there is absolutely no basis for the Court’s decision. It is fanciful enough to say that “a reasonable dissenter,” standing head erect in a class of bowed heads, “could believe that the group exercise signified her own participation or approval of it.” . . . It is beyond the absurd to say that she could entertain such a belief while pointedly declining to rise.

But let us assume the very worst, that the nonparticipating graduate is “subtly coerced” . . . to stand! Even that half of the disjunctive does not remotely establish a “participation” (or an “appearance of participation”) in a religious exercise. The Court acknowledges that, “in our culture, standing . . . can signify adherence to a view or simple respect for the views of others.” (Much more often the latter than the former, I think, except perhaps in the proverbial town meeting, where one votes by standing.) But if it is a permissible inference that one who is standing is doing so simply out of respect for the prayers of others that are in progress, then how can it possibly be said that a “reasonable dissenter . . . could believe that the group exercise signified her own participation or approval”? Quite obviously, it cannot. I may add, moreover, that maintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate—so that, even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter’s interest in avoiding even the false appearance of participation constitutionally trumps the government’s interest in fostering respect for religion generally.

The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern or disapproval, that students stood for the Pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invocation? Ante, at 583. The government can, of course, no more coerce political orthodoxy than religious orthodoxy. West Virginia Bd. of Ed. v. Barnette. . . . Moreover, since the Pledge of Allegiance has been revised since Barnette to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence—indeed, even to stand in respectful silence – when those who wished to recite it did so. Logically, that ought to be the next project for the Court’s bulldozer.

I also find it odd that the Court concludes that high school graduates may not be subjected to this supposed psychological coercion, yet refrains from addressing whether “mature adults” may. Ante, at 593. I had thought that the reason graduation from high school is regarded as so significant an event is that it is generally associated with transition from adolescence to young adulthood. Many graduating seniors, of course, are old enough to vote. Why, then, does the Court treat them as though they were first-graders? Will we soon have a jurisprudence that distinguishes between mature and immature adults?

B
The other “dominant fac[t]” identified by the Court is that “[s]tate officials direct the performance of a formal religious exercise” at school graduation ceremonies. Ante, at 586. “Direct[ing] the performance of a formal religious exercise” has a sound of liturgy to it, summoning up images of the principal directing acolytes where to carry the cross, or showing the rabbi where to unroll the Torah. A Court professing to be engaged in a “delicate and fact-sensitive” line-drawing, ante, at 597, would better describe what it means as “prescribing the content of an invocation and benediction.” But even that would be false. All the record shows is that principals of the Providence public schools, acting within their delegated authority, have invited clergy to deliver invocations and benedictions at graduations; and that Principal Lee invited Rabbi Gutterman, provided him a two-page pamphlet, prepared by the National Conference of Christians and Jews, giving general advice on inclusive prayer for civic occasions, and advised him that his prayers at graduation should be nonsectarian. How these facts can fairly be transformed into the charges that Principal Lee “directed and controlled the content of [Rabbi Gutterman’s] prayer,” ante, at 588, that school officials “monitor prayer,” ante, at 590, and attempted to “`compose official prayers,'” ante, at 588, and that the “government involvement with religious activity in this case is pervasive,” ante, at 587, is difficult to fathom. The Court identifies nothing in the record remotely suggesting that school officials have ever drafted, edited, screened, or censored graduation prayers, or that Rabbi Gutterman was a mouthpiece of the school officials.

These distortions of the record are, of course, not harmless error: without them, the Court’s solemn assertion that the school officials could reasonably be perceived to be “enforc[ing] a religious orthodoxy,” ante, at 592, would ring as hollow, as it ought.

III
The deeper flaw in the Court’s opinion does not lie in its wrong answer to the question whether there was state-induced “peer-pressure” coercion; it lies, rather, in the Court’s making violation of the Establishment Clause hinge on such a precious question. The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. . . . .Thus, for example, in the colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches. . . .
The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level (and to protect state establishments of religion from federal interference). I will further acknowledge for the sake of argument that, as some scholars have argued, by 1790, the term “establishment” had acquired an additional meaning—“financial support of religion generally, by public taxation”—that reflected the development of “general or multiple” establishments, not limited to a single church. . . . But that would still be an establishment coerced by force of law. And I will further concede that our constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington, quoted earlier, down to the present day, has, with a few aberrations. . . ruled out of order government-sponsored endorsement of religion—even when no legal coercion is present, and indeed even when no ersatz, “peer-pressure” psycho-coercion is present—where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ). But there is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman—with no one legally coerced to recite them – violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself.

Thus, while I have no quarrel with the Court’s general proposition that the Establishment Clause “guarantees that government may not coerce anyone to support or participate in religion or its exercise,” ante, at 587, I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud. The Framers were indeed opposed to coercion of religious worship by the National Government; but, as their own sponsorship of nonsectarian prayer in public events demonstrates, they understood that “[s]peech is not coercive; the listener may do as he likes.”. . . .

This historical discussion places in revealing perspective the Court’s extravagant claim that the State has, “for all practical purposes,” ante, at 589, and “in every practical sense,” ante, at 598, compelled students to participate in prayers at graduation. Beyond the fact, stipulated to by the parties, that attendance at graduation is voluntary, there is nothing in the record to indicate that failure of attending students to take part in the invocation or benediction was subject to any penalty or discipline. Contrast this with, for example, the facts of Barnette: Schoolchildren were required by law to recite the Pledge of Allegiance; failure to do so resulted in expulsion, threatened the expelled child with the prospect of being sent to a reformatory for criminally inclined juveniles, and subjected his parents to prosecution (and incarceration) for causing delinquency. . . . To characterize the “subtle coercive pressures,” ante, at 588, allegedly present here as the “practical” equivalent of the legal sanctions in Barnette is . . . well, let me just say it is not a “delicate and fact-sensitive” analysis.

The Court relies on our “school prayer” cases . . . But whatever the merit of those cases, they do not support, much less compel, the Court’s psychojourney. In the first place, [they] do not constitute an exception to the rule, distilled from historical practice, that public ceremonies may include prayer. . . [R]ather, they simply do not fall within the scope of the rule (for the obvious reason that school instruction is not a public ceremony). Second, we have made clear our understanding that school prayer occurs within a framework in which legal coercion to attend school (i.e., coercion under threat of penalty) provides the ultimate backdrop. In Schempp, for example, we emphasized that the prayers were “prescribed as part of the curricular activities of students who are required by law to attend school.” . . . Engel’s suggestion that the school prayer program at issue there—which permitted students “to remain silent or be excused from the room,” . . . involved “indirect coercive pressure,” . . . should be understood against this backdrop of legal coercion. The question whether the opt-out procedure in Engel sufficed to dispel the coercion resulting from the mandatory attendance requirement is quite different from the question whether forbidden coercion exists in an environment utterly devoid of legal compulsion. And finally, our school prayer cases turn in part on the fact that the classroom is inherently an instructional setting, and daily prayer there—where parents are not present to counter “the students’ emulation of teachers as role models and the children’s susceptibility to peer pressure,” Edwards v. Aguillard . . . —might be thought to raise special concerns regarding state interference with the liberty of parents to direct the religious upbringing of their children: “Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.” . . . Voluntary prayer at graduation—a one-time ceremony at which parents, friends, and relatives are present—can hardly be thought to raise the same concerns.

IV
Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test . . . The Court today demonstrates the irrelevance of Lemon by essentially ignoring it, see ante, at 587, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people’s historic practice and being as infinitely expandable as the reasons for psychotherapy itself.

Another happy aspect of the case is that it is only a jurisprudential disaster, and not a practical one. Given the odd basis for the Court’s decision, invocations and benedictions will be able to be given at public school graduations next June, as they have for the past century and a half, so long as school authorities make clear that anyone who abstains from screaming in protest does not necessarily participate in the prayers. All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation and benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. That obvious fact recited, the graduates and their parents may proceed to thank God, as Americans have always done, for the blessings He has generously bestowed on them and on their country.

* * * *
The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room. For most believers, it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington’s first Thanksgiving Proclamation put it, the “Great Lord and Ruler of Nations.” One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it.

The narrow context of the present case involves a community’s celebration of one of the milestones in its young citizens’ lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make. The issue before us today is not the abstract philosophical question whether the alternative of frustrating this desire of a religious majority is to be preferred over the alternative of imposing “psychological coercion,” or a feeling of exclusion, upon nonbelievers. Rather, the question is whether a mandatory choice in favor of the former has been imposed by the United States Constitution. As the age-old practices of our people show, the answer to that question is not at all in doubt.

I must add one final observation: the Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration—no, an affection—for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that cannot be replicated. To deprive our society of that important unifying mechanism in order to spare the nonbeliever what seems to me the minimal inconvenience of standing, or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

For the foregoing reasons, I dissent.