It is almost too much to contemplate: the prospect that we are living in the midst of, and accepting (to various degrees) one of the greatest human holocausts in history. And so we don’t contemplate it. Instead, we look for ways to deny this grim reality, minimize it, or explain away our complacency—or complicity.

It is important, however, to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age.

Roe’s Radicalism

Start with Roe’s radicalism, a radicalism that we may no longer grasp because it has become so familiar. Roe created a constitutional right to obtain or commit an abortion of a human life—that is, to terminate the life of a human embryo or fetus. It is important to be clear-sighted about this: abortion kills a living human embryo or fetus. What distinguishes “abortion” from (say) miscarriage is the specific intention to kill a living fetus. What was alive before has been deliberately killed. Abortion takes a life. Further, the life taken is human life. There is really no doubt about that as a matter of biology. The embryo or fetus belongs to the species homo sapiens. It is a separate, living human being that is killed by abortion.

To be sure, that human being is killed at an early stage in its life cycle, and for a substantial part of that time could not live without direct biological connection to his or her mother (the person in whom Roe vests the right to terminate that human life). But that does not make the human embryo any less alive, any less human, or any less a separate life from the mother. It just makes the unborn baby more vulnerable and dependent.

The right created by the Supreme Court in Roe is a constitutional right of some human beings to kill other human beings. I do not mean for my description to be provocative, but simply direct—blunt about facts. One need not presume that the human fetus has a right not to be killed in order to recognize that, as a descriptive matter, Roe creates a right for one class of human beings to kill other human beings.

Roe, coupled with Doe, creates a plenary right to kill the embryo or fetus for essentially any reason, at any time throughout all nine months of pregnancy. Distilled to its essence, Roe created a “trimester” framework for abortion. In roughly the first three months of pregnancy, the right of abortion is avowedly plenary: abortion may be had for any reason. In the second three months, government may regulate abortion to protect the life or health of the mother, but again the right to have an abortion remains plenary. In the final three months—after the point of “viability,” when the human fetus could live on his or her own outside the mother’s womb—Roe says that abortion can be restricted or prohibited . . . except where abortion is necessary to protect the “life or health” of the pregnant woman.

This is a big exception. And here is where Doe steps in. On its face, Roe might appear, to the unwary or uninitiated, “moderate”—its trimester-balancing framework a measured, reasonable-sounding, proportionate act of judicial legislation concerning abortion. It is Doe that does a lot of the work, through an indirect and ultimately disingenuous definition of the “health” reasons that always may justify a woman’s decision to have an abortion and trump any interest of society in protecting fetal human life, even when the child could survive outside the mother’s womb. Doe holds that relevant “health” considerations justifying late-term abortions include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.” (Doe’s understanding of “the patient” did not include the fetus; Roe held elsewhere that the human fetus has no legal rights that any person is bound to respect.)

Roe then cross-referenced Doe’s stylized definition of health and incorporated it into the main holding. The result is that an abortion may be had, under Roe and Doe, for essentially any reason, throughout all nine months of pregnancy, up to the point of birth.

Nothing in any of the Court’s later abortion cases alters this definition of “health” or the right to abortion throughout pregnancy. Planned Parenthood v. Casey, the 1992 case reaffirming Roe, tinkered slightly with the trimester framework and the point at which “viability” occurs but did not change Roe’s (and Doe’s) holding that abortion may be had for any reason, before viability, and for any “health” reason throughout pregnancy. The partial-birth abortion cases carried this understanding forward, holding that the state may not prohibit the abortion method of inducing birth and killing the fetus on the way out of the birth canal (Carhart I [2000]), unless an equally effective, equally “healthy” method of killing the fetus is available (Carhart II [2007]).

I suspect that if more people understood Roe’s and Doe’s actual holding fewer would support that constitutional regime. Roe was a truly extreme decision, creating an effectively unrestricted constitutional right to abort a living human being for any reason the mother might have, throughout pregnancy right up to the point of birth.

Roe’s Legal Untenability

This brings us to Roe’s utter indefensibility as a matter of constitutional law. If the U.S. Constitution actually protected such an extreme personal legal right to kill the human fetus, that would be troubling enough, but the trouble would be with the content of the Constitution. The further problem with Roe is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.

Roe’s reasoning, distilled to its essentials, is that the Constitution creates a “privacy” right to abortion, on the premise that the right not “to bear” a child is protected by the Fourteenth Amendment’s Due Process Clause. No serious constitutional law scholar thinks this is a plausible reading of the Due Process Clause. That clause forbids government to “deprive any person of life, liberty or property, without due process of law.” Without due process of law are crucial words. The Due Process Clause does not say that government never may deprive a person of life, liberty or property. It only says that government may not do so “without due process of law”—that is, arbitrarily, lawlessly, not in conformity with duly enacted laws and accepted procedures for their application.

Many nonetheless support Roe’s holding as a policy matter and therefore seek to rationalize the holding some other way. Perhaps the goofiest is the suggestion advanced by a few law professors, in apparent seriousness, that abortion restrictions violate the Thirteenth Amendment’s ban on slavery. Saner, but in the end still unsound as a legal matter, is the notion that abortion laws discriminate on the basis of sex and thus deny “equal protection of the laws.” The defect in this argument is that abortion laws do not classify on the basis of sex or gender and are not disguised attempts to do so. Rather, they aim at conduct—obtaining or committing an abortion—when engaged in by persons of either sex. Abortion restrictions do not restrict acts of women because they are women; they restrict acts committed by men or women because they kill human fetuses. Further, ask a “pro-choice” “feminist” whether abortion should be permitted for reasons of sex-selection—that is, because the unborn child is a girl—and the sex discrimination argument begins to turn back on itself. All but the most blindly pro-abortion ideologues abandon the argument that abortion rights are required for gender equality, if that means abortion can be chosen for gender-selection of boys over girls.

In Planned Parenthood v. Casey, the Supreme Court rested the right to abortion back where Roe purported to find it, in the Due Process Clause. Recognizing the embarrassments created by this view, Casey added another prop: the doctrine of precedent or “stare decisis,” which is essentially all that is left to support Roe. But Casey’s invocation of the doctrine was transparently disingenuous: Because the public expects the Court to adhere (usually) to its past decisions, because the Court had staked its authority on Roe, and because the Court might be viewed unfavorably by some of the public if it reversed itself in such a case, the Court said that it had decided to adhere to Roe “whether or not mistaken.” Thus, what Roe held to be required by substantive due process Casey held to be required by stare decisis, even assuming Roe to be wrong.

If Roe was radical, Casey was craven. A majority of the Supreme Court apparently believed that Roe was wrongly decided, fully understood the moral and human consequences of the decision, and deliberately adhered to it anyway. Stare decisis has never been thought required by the Constitution, before or since. Brown v. Board of Education (1954) famously repudiated Plessy v. Ferguson (1896) on the question of whether racial segregation was consistent with “equal protection of the laws.” The Court has overruled scores of its own precedents. Indeed, it overruled two cases in Casey. Casey’s reaffirmation of Roe, in the name of stare decisis, was a sham—perhaps the most transparently dishonest major judicial decision since Dred Scott.

Roe’s Immorality

Finally, there is Roe’s immorality—the abortion holocaust it unleashed—and the problem of our response to it. Roe is a radical decision and a legally indefensible one. But what really makes Roe unbearably wrong is its consequences. The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.

It is hard to escape this conclusion, but not impossible—and many certainly try. I will not here belabor the question of whether the intentional killing of innocent, dependent, vulnerable human children is a grave moral wrong. My concluding point concerns the lengths to which we will go to deny the reality of this holocaust, because it is almost unbearable to contemplate and still go on living life as if nothing is terribly wrong. The cognitive dissonance is simply too great. And so we have become, in effect, a nation of holocaust deniers.

Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is “truly” or “fully” human life, adopt a view that whether the embryo or fetus is human “depends,” or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of “imposing our views on others”; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.

All of this should tell us a few more sobering things. It should tell us that, much as we would like to believe that human beings have become more morally conscious, more sensitive to injustice and intolerant of clear evil, it remains the case that we often either fail to recognize it in our midst, or refuse to respond to it decisively, out of self-interest or cowardice. It should tell us that, much as we would like to think that we surely would have stood bravely against slavery, even if embedded in a nineteenth-century society that tolerated and accepted it as a legal right, we might have acquiesced or been tepid in our condemnation. It should tell us that, much as we would like to think we would never have put up with what transpired in Nazi Germany in the 1930s and the 1940s, the evidence of our lives in twenty-first century America is that we might have put up with quite a lot.

And it should tell us finally, that, as much as we may claim to admire our governmental and constitutional system, the decisions of the Supreme Court in the abortion cases expose the Court—at least on this matter of life, death, and law—as a lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people. Yet the docility of the American people with respect to Roe and abortion rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history.

The Supreme Court is empowered by the Constitution to faithfully interpret the Constitution. But it is not alone in that power, and when it exceeds it and violates it, it is the responsibility of other actors in our system to check the abuse. As James Madison wrote in The Federalist No. 49, “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Moreover, it is “the people themselves” who are “the grantors of the commission” and who “can alone declare its true meaning and enforce its observance.”

The Court’s decision in Roe v. Wade should not be accepted as law, in any sense. It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law. It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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The decision was, strikingly, unanimous: no one disagreed with Chief Justice Roberts’s opinion for the Court. The only separate opinions were concurring ones, suggesting further extensions or specific applications of the Court’s reasoning. On a Court that has often been bitterly divided, this expression of unanimity is truly remarkable.

The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Consider for a moment, point by point, what makes Hosanna-Tabor so praiseworthy:

First, the Court specifically grounded the so-called “ministerial exception” to employment discrimination laws in an affirmative First Amendment constitutional right of religious organizations to select their own faith leaders and exemplars, free of government interference. The “ministerial exception” originated in a series of lower court decisions, beginning forty years ago, reading into federal anti-discrimination employment statutes an implied exception for a church’s hiring (and firing) of ministers. The exception had the feel of judge-made law, carving out of the law as written an unwritten escape hatch (of indeterminate breadth) for churches and synagogues. The lower courts then struggled with how to apply an unwritten statutory exception, creating all the problems, in principle and practice, common to legal rules seemingly made up by judges as they go along, in disregard of the text.

Hosanna-Tabor was the Supreme Court’s first case involving the “ministerial exception.” The justices might have chosen to embrace the exception on a more namby-pamby, “we-construe-the-statute-in-such-a-way-as-to-avoid-the-possibility-of-its-creating-constitutional-difficulties” approach—not exactly embracing a constitutional rule but adopting an awkward rule of interpreting statutes in such a way as to avoid possible constitutional problems. (The Court has done this a fair bit, including in the religious freedom context.) Chief Justice Roberts’s opinion would have none of that: the right embraced in Hosanna-Tabor is a First Amendment constitutional right.

This right is not a judge-made interpolation into a statute; it is not a rule of construction; it is not an avoidance of deciding a constitutional question. It is a right supplied “by the text of the Constitution itself.” Hosanna-Tabor is a constitutional holding that where the Constitution supplies one rule (here, that religious groups have the right to hire and fire, free from government interference, those who personify and represent their faith communities, as an aspect of the free exercise of religion) and a statute supplies a contrary rule (that government generally may regulate employment practices, for example, to forbid practices it considers discriminatory), the Constitution’s rule trumps the statute’s. This is straight, old-fashioned, Marbury v. Madison-style judicial review: the Constitution is law and prevails over inconsistent statutes, to whatever the extent of the inconsistency. There is nothing judge-made, narrow, ad hoc, or uncertain about this. Hosanna-Tabor is a rule of First Amendment constitutional law.

Second, the rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor, lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.  For it is clear from the Court’s opinion that this right of autonomy embraces more than just the hiring of “ministers,” narrowly defined. The plaintiff who had sued Hosanna-Tabor Evangelical Lutheran Church and School was not a pastor in the traditional sense but a teacher in a religious school, teaching secular and religious subjects, but designated by the religious community as a minister.

This counts, the Court said. The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity. The Court decided only the case before it, but it made clear that the right itself is one of religious community autonomy, broadly understood. It is not a right limited to pastors alone.

This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.

Third, the Court in Hosanna-Tabor held that the right of religious community autonomy is a right specifically of constitutional religious freedom, which exists regardless of what rules government might have the authority to impose on (otherwise) analogous organizations. The Obama Administration had argued, vigorously, that the rules for ministers should be the same as the rules for private associations generally—that there is nothing unique about religion or religious employment. Chief Justice Roberts’s opinion demolished this position: “We find this position untenable . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

This is important. The Supreme Court has unanimously held that the Free Exercise Clause of the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled as a matter of the freedoms of speech and association. Even when government might be able to regulate the employment or internal governance of non-religious organizations and associations, it may not regulate the selection by religious groups of its leaders and exemplars.

Perhaps most significant of all was the Court’s response to the suggestion that Employment Division v. Smith (1990) foreclosed such special constitutional accommodation of religious practice. The Court stated flatly that this was an overly broad reading of Smith that “has no merit.” For those who have regarded (and experienced) Smith as a major retrenchment from true religious freedom, Hosanna-Tabor offered a ray of hope. The Court seemed to limit Smith much more tightly to its specific facts than it has before. Conceding that anti-discrimination laws, like Oregon’s prohibition of peyote use (at issue in Smith), are “valid and neutral” laws of general applicability, the Court distinguished Smith sharply: “a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

It is too soon (by a long shot) to shout “Hosanna!” for the overruling of Employment Division v. Smith. But it is not too soon to observe that the Court has drawn a line—if an imperfect one—between “outward physical acts” and “internal” religious community practice that affects the “faith and mission” of the religious community, and, notably, has placed employment practices on the “internal . . . faith and mission” side of the line, not governed by Smith.

All of this is especially significant when one considers what the Court might have done—how Hosanna-Tabor could have gone very wrong. One imagines, and shudders at the prospect, of a decision in which the Court might have held that employment discrimination laws are laws that apply to everybody, on an equal basis—religious and non-religious institutions alike (citing Smith with approval, rather than distinguishing it); that, to be sure, religious institutions possessed equal rights of freedom of association to secular institutions, but not greater ones; that, whatever the possible merit of a “ministerial exception” to anti-discrimination law in extreme cases (such as requiring the Catholic Church to ordain women), the facts at hand, involving a claim of disability discrimination brought by a teacher, not a pastor, did not warrant the Court’s “creating” an exception where Congress’s statute had not done so, and the First Amendment does not of its own force create one.

That, I must confess, is how I feared the case might come out. The fact that Hosanna-Tabor did not turn out that way—and, instead, adopts precisely the opposite of each of those plausible but sinister propositions—is its great achievement.

The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding.

The opinion closes with an important statement, shifting, subtly, the psychological balance of how the Court, and, one hopes, the country, sees these issues: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” With respect to a religious community’s freedom to select its minister, “the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

One could do far worse than that as a statement of religious liberty, and the Court often has. Hosanna-Tabor is truly a shout of praise to first principles of the First Amendment.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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The Obama Administration’s claims that it favors local control in education are belied by its actions—for example, coercing states to accept federally approved content standards and to compile and share private student data. But as evidence of federal interference run amok, Exhibit A is the Administration’s campaign to outlaw “bullying” and “harassment” in schools. From the Administration’s standpoint, this campaign offers double benefits: it enables the federal government both to control the minutiae of daily school operations, and to impose its preferred cultural attitudes. This attack is demonstrably inconsistent with constitutional and statutory law, and is yet another troubling transfer of power from families and localities to Washington.

The federal government’s constitutional role in education is basically nonexistent; the education of children is quintessentially a local and familial function. Though Congress long ago inserted itself into education policy despite this lack of authority, the federal government almost certainly does not have the power to enact an outright ban on bullying, under either the Commerce Clause (see U.S. v. Lopez) or the Fourteenth Amendment (see U.S. v. Morrison).

Congress and the federal Department of Education evade this problem through the power of the purse. Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and two lesser known statutes prohibit any educational institution that receives federal funding from discriminating on the basis of race, color, national origin, sex, or disability. If a school takes our money, says the Department, it must obey our rules. The Supreme Court generally allows this technique under the Spending Clause, Art. I, § 8 (see Davis v. Monroe County Bd. of Ed.). Thus does the federal government assume control in an area the founders left to local authority.

In October 2010, the Department’s Office for Civil Rights (OCR) announced its intention to aim these civil-rights statutes at schools that mishandle (in its view) student interactions. Decrying a supposed “pandemic” of bullying and harassment, OCR issued what is known in the bureaucracy as a “Dear Colleague Letter” to warn schools about potential civil-rights liability in such cases. Now, every teacher who addresses the everyday complaints of one student about another must fear being second-guessed by a bureaucrat in Washington. It is difficult to imagine a more inappropriate intrusion of federal authority into a manifestly local issue.

The OCR Letter’s Conflict with Current Federal Law

A particularly obvious problem with the Letter is the breadth of its definitions. Harassment, it says, “may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones and the Internet; or other conduct that may be physically threatening, harmful, or humiliating.” The government website fleshes this out: bullying includes “name-calling, teasing, spreading rumors, leaving people out on purpose, [and] breaking up friendships.” In other words, the federal definition of bullying includes much of what occurs in every school every day, and has since the advent of schools. The government presumes to hold schools accountable—through the threat of lost funding—if they do not stop it.

Another fundamental problem with the Letter is its inconsistency with Supreme Court authority. In Davis v. Monroe County Board of Education, the Court ruled that a student may recover damages from a school under Title IX for sexual harassment by another student, but only under very limited circumstances: school authorities must have been deliberately indifferent to, although they had actual knowledge of, harassment that was so severe, pervasive, and objectively offensive that it deprives the victim of access to educational opportunities or benefits. The Letter’s conflicts with this standard are several:

• The Letter changes the phrase “severe, pervasive, and . . . objectively offensive” to “severe, pervasive, or persistent.” The altered conjunction is significant: whereas the Davis Court required that all three conditions be met before liability would attach, OCR allows liability if any one of the three is present. Thus, as the dissenters to a U.S. Commission on Civil Rights “bullying” report warned, “schools can be in violation of Title IX based on a single student act if the government believes it is sufficiently severe.” This result was never contemplated by Davis.
• The Letter removes the requirement that the conduct be “objectively offensive” to justify liability. This change appears to eliminate the “reasonable person” standard, so that a school could lose federal funding for disregarding conduct that seemed harmless to the objective observer.
• Although Davis allows liability only for harassment that “deprive[s] the victims of access to educational opportunities or benefits,” the Letter  changes “deprives” to the more expansive “interferes with.” This change in terminology broadens schools’ potential liability beyond the Davis limits.

The Letter changes the Davis holding that there is no liability unless a school had “actual knowledge” of the misconduct. OCR says instead that the school may be liable if it “knows or reasonably should have known”—a much broader standard than that applied by Davis. The OCR Letter also expands potential liability beyond school grounds. Davis emphasized that the school could be liable only for harassment that occurred during school hours and on school grounds; other courts have similarly refused to sanction a school based on off-campus misconduct (see Lam v. Curators of the Univ. of Missouri at Kansas City Dental School). But the Letter obviously contemplates holding schools accountable for such behavior, especially in its reference to Internet-based misconduct. Unkind remarks posted on Facebook late at night may be distressing to a student, but is it fair to hold a school accountable for them?

In expanding potential liability so far beyond that allowed in Davis, OCR assumes the authority to reinterpret the governing statutes (primarily Title IX and Title VI). As Professor John Eastman has pointed out, an administrative agency has only limited authority to interpret statutes, especially when the Supreme Court has already done so and has reached different conclusions. So a school targeted by OCR may ultimately prevail in court, but the risk and expense of protracted litigation may (as OCR perhaps intends) force it to submit without a fight.

In addition to the inconsistency with Davis, the OCR Letter expands the coverage of the federal statutes beyond their clear terms. The statutes do not cover discrimination based on sexual orientation or religion, yet the Letter purports to include harassment bases on these nonstatutory characteristics. The legal basis for extending the sanctions to sexual-orientation harassment is at least colorable (by labeling it “sex stereotyping”); this is not true of harassment based on religion. Nevertheless, OCR now appears ready to crack down on schools that allow students to express opinions about, say, the connection between Islam and terrorism.

The OCR Letter’s Conflict with the First Amendment

OCR’s sweeping prohibition of “harassment” and “bullying” carries serious First Amendment implications. May a student express a negative opinion of illegal immigration, or could that be prohibited as harassment toward Latino students? May a boy argue in a public-speaking class that women should not be allowed in combat, or could that be prohibited as harassment toward female students? Troubling hypotheticals abound.

The OCR Letter dismisses the First Amendment problem in a single reference: a two-sentence footnote. That allotment of space crystallizes the level of regard OCR apparently has for freedom of speech.

A school’s regulation of student speech comports with the First Amendment only when (with minimal exceptions) the speech would substantially interfere with or disrupt the work of the school or the rights of other students (Tinker v. Des Moines Independent Community Sch. Dist.). “The Supreme Court has held time and again . . . that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it” (Saxe v. State College Area Sch. Dist.).

Under this standard, OCR’s attack on what it labels harassment or bullying potentially conflicts with the First Amendment. At a Civil Rights Commission hearing held in May 2011, government witnesses insisted that OCR is focusing only on unprotected conduct involving physical threats or creating a reasonable fear of physical harm. But commentators such as Professor Eugene Volokh have refuted this, noting that the Letter’s sweeping language reaches even purely verbal acts well beyond those that can be regulated under Davis and Tinker. At the Commission hearing, no OCR witness denied that the Letter means exactly what it says.

To date, courts have held that even offensive student speech may be protected by the First Amendment. (See Saxe v. State College Area Sch. Dist. and DeJohn v. Temple Univ., both striking down overly broad school “discrimination” or “harassment” policies.) So, a school that defends against OCR action on First Amendment grounds may very well prevail in court. But again, OCR appears to be betting on schools’ unwillingness to risk federal funding and devote extensive time and resources to litigation. First Amendment jurisprudence has a term for this: “chilling effect.”

One aspect of the OCR letter that deeply implicates the First Amendment is the prohibition of “harassment” based on sexual orientation (known as LGBT—lesbian, gay, bi-sexual, and transgendered). By expressing his belief, based on religious faith, that LGBT conduct is immoral, a student exercises his First Amendment rights both to freedom of speech and to freedom of religion. But if an LGBT student takes offense, would OCR respect the speaker’s First Amendment rights? Unlikely. More likely to prevail is the attitude expressed by U.S. Civil Rights Commissioner (and former Pelosi advisor) Michael Yaki, who argues that “government action to stop bullying in schools, particularly bullying against LGTB or LGTB-identified children, [should] be given substantial deference with regard to competing First Amendment concerns.”

Thus does the Obama Administration achieve two goals: it extends the tentacles of federal control more deeply into the day-to-day operations of schools, and it bans the expression of religious and cultural attitudes disfavored by government elites.

The Practical Effect of the OCR Letter

Instructed that “bullying” may be second-guessed by federal bureaucrats with a political agenda, the most likely response will be similar to the “zero tolerance” overreaches that prevailed after high-profile school shootings. Schools are likely to shut down, to the extent possible, all discussion of controversial topics that might offend, and to overreact to every complained-of slight. Expect also the flowering of additional bureaucracy at every level of educational administration, and, as has already begun, marketing of pricey packages designed to train teachers and administrators to prevent kids from acting like kids. And expect students to view teachers and administrators with diminished respect—since the government has pre-judged them as incompetent.

What effect will this bureaucratization have on children? New York psychotherapist Israel Kalman argues that the governmentalizing of responses to bullying actually harms children—even (perhaps especially) those who are the victims. According to Kalman, children must learn how to handle meanness from others and will suffer later in life if they miss these lessons. The better approach is to teach victims how to parry a bully’s thrusts rather than encourage them to run to the principal (which, as any former child knows, guarantees even more mistreatment from the bully). If they learn how to stand up for themselves, they are less likely to be bullied again and more prepared for the real world.

The Obama Administration justifies its obsession with bullying by claiming that the incidence of such misconduct has reached a “pandemic” level. It cites “research” such as an American Association of University Women study, reporting the percentage of eighth- through twelfth-graders who have been sexually harassed during school at a manifestly preposterous 81 percent. But a study funded by the Justice Department and released in 2010 found a sharp drop in the percentage of students who reported being bullied or harassed. Other researchers have made similar findings. So what is going on here?

The unspoken truth behind OCR’s “bullying” campaign is that it is directed primarily at speech critical of government-favored constituencies, such as homosexuals. The Obama Administration has embraced the mission of radical gay-rights groups to propagate full acceptance and affirmation of LGBT lifestyles. The goal is to delegitimize, and ultimately outlaw expression of, orthodox religious beliefs relating to marriage and sexual behavior. Viewed through this lens, OCR’s anti-bullying campaign is worse than silly—it’s dangerous.

Parents should recognize this new federal takeover for what it is, and insist that their legislators rein in OCR’s assault on freedom of speech and belief. Teachers and principals must be allowed to do their jobs and be accountable to parents—not to distant bureaucrats enforcing a political agenda.

Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project. Jane Robbins, Esq., is a Senior Fellow with the American Principles Project.

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Although the media’s breathless denunciations suggest otherwise, Gingrich is not the first public figure to challenge the Cooper Court’s assertion of its supremacy over constitutional interpretation. Attorney General Edwin Meese did the same in a 1986 lecture at Tulane University. Meese’s address elicited a similarly angry response from the press, especially from columnist Anthony Lewis, who made Cooper the centerpiece of his appraisal of Meese’s speech. As was the case in 1986, the debate over Cooper in the past few months has been confused, epitomized by the New York Times’ recent suggestion that Gingrich’s critique of Cooper has “disturbing racial undertones.” The Times and others misunderstand the history and law of that famous case. Those who argue that the Supreme Court is not the ultimate arbiter of the Constitution’s meaning need not deny the fact that Cooper was rightly decided; they can and do celebrate the courage of that opinion.

Cooper v. Aaron came to the Supreme Court under extraordinary circumstances, the drama of which is matched by few instances in our constitutional history. On the day before black students were to be admitted to Central High School in Little Rock, Arkansas, in compliance with the local school board’s desegregation plan and the Court’s decision in Brown v. Board of Education, Governor Orval Faubus ordered the state national guard to surround the building and declare it “off limits” to blacks. The governor’s actions precipitated a national crisis. President Eisenhower ordered in the Army to ensure desegregation moved forward. Months later, still in the midst of the crisis and at the request of the Little Rock School Board, the federal district court overseeing desegregation in Little Rock halted implementation of Brown, reasoning that more time was needed before desegregation could proceed.

The stakes for the Supreme Court and the nation could not have been higher. The virulent racism of Governor Faubus and the violence his actions encouraged had led the district court to retreat from implementing Brown. If the Supreme Court went along with the district court, if it lost its nerve at this critical moment, the segregationists would win a crushing victory, having intimidated the nation’s highest tribunal.

When the Supreme Court issued its opinion, it forcefully rejected the reasoning of the district court. All nine justices held that black students’ constitutional rights “are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature.” Because that violence and disorder were the basis for the district court’s decision, the Supreme Court’s statement, as its opinion acknowledged, was “enough to dispose of the case” and require desegregation to continue.

But the Court went further. It sought to refute the constitutional theory that served as the legal foundation of Arkansas’s resistance to Brown: nullification. When the school board asked the district court to delay implementation of desegregation, it did so in part because Governor Faubus’s actions had led people to believe that “there was some power in the State of Arkansas which, when exerted, could nullify the Federal law.” The Court recognized that the legal argument in the case was fundamentally about Arkansas’s assertion that it was not bound by the Court’s decision in Brown because it had the right to determine for itself what the Constitution meant.

Arkansas’s position was hardly novel. Based on the idea that states retained their ultimate sovereignty when they agreed to the constitutional compact and were the final judges of whether that compact was being violated, nullification dates at least as far back as the Virginia and Kentucky Resolutions of 1798 and 1799, which declared the Alien and Sedition Acts unconstitutional. South Carolina likewise asserted the power to nullify federal tariff laws in 1832. That effort was emphatically rejected by President Andrew Jackson in his Proclamation to the People of South Carolina. Jackson, as well as his nemesis Henry Clay, saw that the internal logic of nullification, once accepted, permitted secession and disunion.

Their concerns were borne out later by the Civil War. That harrowing conflict firmly established that the compact theory of the Constitution had been rejected, having been “tried by war and decided by victory,” to quote Abraham Lincoln. In its place stood a theory of America as an indissoluble Union, as evidenced by historian James McPherson’s observation that Americans ceased speaking of “the United States” in the plural and began referring to it in the singular. The Union theory left no room for states to judge for themselves whether to obey federal law. The Supreme Court recognized this post-war consensus in the 1869 case of Texas v. White, in which the Court held the following: “The act which consummated [Texas’s] admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final.”

The relation of this history, especially Jackson’s Proclamation and the decision of the Civil War, would have sufficed to settle the nullification question presented by Governor Faubus, a question that was itself extrinsic to the legal issue in Cooper and the judgment to proceed with desegregation.

But the Court instead chose to answer the nullifiers by making a far bolder and far less historically supportable claim: The justices made the striking assertion that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” Because the judiciary is supreme in constitutional questions, according to the Cooper Court, and because states are bound by the Constitution under Article VI, states must obey the judiciary’s decisions. The Court’s statement has been widely viewed by scholars as an assertion that the Court’s constitutional interpretations bind all levels of government, including its co-equal branches of the federal government.

The scope of the Court’s statement was not tailored to its end. Cooper was a case about enforcing federal law against the states. The Court need only have claimed the power to bind the states to its decisions; there was no need for the Court to assert its supremacy in constitutional interpretation against Congress and the president. The second sentence of the Court’s opinion makes it clear that the case “involve[d] a claim by the Governor and Legislature of a State that there [was] no duty on state officials to obey federal court orders resting on this Court’s considered interpretation of the Constitution.” Moreover, the Court’s statement was wholly superfluous to the legal issue in the case. Its rejection of Governor Faubus’s intimidation tactics sufficed to require desegregation to go forward. But the Court chose to assert a far more sweeping power: the final word on the meaning of the Constitution for all levels of government.

It is this last claim—that the Court’s decisions bind Congress and the president—to which Gingrich, Meese, and eminent scholars of varied political affiliation object. Nothing in this criticism tarnishes the courage or rightness of the Court’s decision in Cooper. As the Court acknowledged, its statement on judicial supremacy had no bearing on the outcome of the case, and the history related above demonstrates that judicial supremacy was unnecessary to rebut the legitimacy of nullification.

The real question is not whether opponents of the Court’s assertion of judicial supremacy in Cooper applaud the outcome of the case; it is whether supporters of judicial supremacy understand that their position places them on the other side of Abraham Lincoln. It was Lincoln who, in response to Chief Justice Roger Brooke Taney’s opinion in Dred Scott v. Sandford, rejected judicial supremacy in his first inaugural address. Lincoln believed that accepting judicial supremacy would mean that “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” He followed through on his challenge to the Court by defying the Dred Scott decision and issuing passports to free black citizens. How odd that those who follow in the tradition of Lincoln should find themselves accused of the sins of Taney.

Joel Alicea is a student at Harvard Law School.

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Santorum’s remarks led directly and predictably to a chorus of disapproval holding that we ought not to trash the Constitution even in the pursuit of national security. This reaction is understandable. Such profiling is distasteful to Americans. It necessarily involves treating some people as objects of suspicion simply because of who they are, and so it offends our better feelings.

While one may sympathize with this reaction, however, one need not go all the way with Santorum’s critics and hold that profiling necessarily violates the Constitution and is therefore always off-limits to American public officials charged with protecting the nation from attack. Not everything that offends our better feelings is unconstitutional, and not everything distasteful is to be unconditionally forsworn as a tool of national security.

Our inquiry must begin from whatever provisions of the Constitution plausibly may be held to prohibit racial and religious profiling. This is actually not as simple a matter as one might think. The most obvious place to turn in search of a constitutional prohibition on profiling would be the Equal Protection Clause of the Fourteenth Amendment. By its terms, however, that provision applies only to the states. Presumably, the opponents of profiling would not be satisfied with a principle that constrains only state law enforcement officials while leaving their federal counterparts completely free to use race and religion as factors in deciding whom to scrutinize as a possible terrorist.

Fortunately for such opponents, the Supreme Court already has rejected such a disproportion. Unable to tolerate the possibility that the Constitution prohibited racial segregation undertaken by the states but not by the federal government, the Court has held that the Due Process Clause of the Fifth Amendment, which restrains the federal government, contains an “equal protection component.” Guided by this interpretation, we must ask, then, whether the wording of either the Equal Protection Clause or the Due Process Clause forbids profiling.

The Equal Protection Clause provides that government shall not “deny to any person within its jurisdiction the equal protection of the laws.” Does profiling violate this principle? The case that it does is not as powerful as it first appears. To be sure, a law that enacted classifications detrimental to some classes of citizens would be highly suspect. Profiling, however, creates no such issue. Even the most vehement proponents of profiling do not hold that it should be written into the laws; nor, for that matter, need it even be presented as any kind of standing, formalized government policy.

It is rather a matter of executive discretion, a limited decision of law enforcement officials to give greater investigative scrutiny in circumstances where they think there is greater reason for suspicion. The purpose of the exercise of such discretion is not to deprive anyone of the equal protection of the laws but precisely to afford everyone the laws’ protection. The aim is to catch terrorists before they can strike, with the effect of preserving the lives of everyone who might have been killed or injured, including innocent persons who were subject to investigative profiling.

Does such profiling violate the Due Process Clause? Certainly those who are subjected to profiling have something done to them by the government without due process of law. The decision to profile is a matter of executive discretion, a mode of decision-making far removed from anything resembling the formal inquiry implied by “due process.” Again, however, the due process case against profiling crumbles upon closer examination. The Due Process Clause does not require due process of law to precede every unwelcome attention of the government. It rather provides that “life, liberty, and property” may not be taken without due process of law. Persons subjected to profiling are certainly not deprived of life or property on that basis. No respectable voice in America’s public discourse has suggested anything like the idea that people should be convicted and sentenced on the basis of their race or religion.

Those subjected to profiling are not deprived of liberty in any sense serious enough to make a violation of the due process clause. No proponent of profiling would call even for the arrest of anyone simply on the basis of their ethnicity or religion. The most that profiling would involve is more careful investigative scrutiny, usually at security checkpoints related to the public safety, as at airports. Such heightened scrutiny cannot reasonably be viewed as a deprivation of liberty. If it were, then it would be equally unconstitutional to do it to anybody, even at random. Hardly anyone, however, would contend that the Due Process Clause prohibits random application of more thorough searches at airport security.

Any approach that is properly deferential to executive discretion would not find that limited profiling violates the Constitution. Critics of profiling might respond by pointing out that when the Equal Protection and Due Process clauses are arguably involved, the Supreme Court is in a mood to be anything but deferential. The Court instead takes a very dim view of any government actions that create “suspect classifications.” It insists that they be subjected to “strict scrutiny,” meaning that a heavy burden of proof for justifying them falls upon the government.

Even bearing this in mind, it does not follow that profiling necessarily would be held by the Court to violate the Constitution. Even under strict scrutiny, the Court has upheld government policies using suspect classifications. In 2003, for example, the Court affirmed the constitutionality of the University of Michigan Law School’s policy of race-conscious affirmative action. Under strict scrutiny, the government must demonstrate a compelling interest to justify its action. In the Michigan case, the Court held that the state’s desire to secure the educational benefits of a diverse law school class constituted a sufficiently compelling governmental interest to justify its race-based policy. It would be strange indeed if the Court, holding to that proposition, nevertheless claimed that investigative profiling, which is undertaken to protect the nation against violent attack, serves no compelling state interest.

None of this is to say that profiling is a good thing. Governments should not undertake it lightly, and citizens should not tolerate it tamely. It is not even to say that it is generally a useful expedient for protecting public safety. Even some of the most earnest proponents of domestic security hold that profiling is not very helpful. Nevertheless, those who claim flatly that it is unconstitutional are saying that it is simply impermissible in any circumstances. This goes too far.

It is not difficult to imagine a case in which the government has reliable intelligence that a certain kind of attack is being planned by persons of a certain ethnicity or sect. In such a circumstance, it would be a dereliction of duty for those charged with public safety not to weigh such information and to investigate accordingly. Whether and how to do so is a judgment of prudence that belongs in the first instance to those entrusted with the nation’s security. The Constitution does not utterly forbid such exercises of executive discretion.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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By a vote of 8–1, the Court held that the First Amendment’s Free Speech Clause protects religious speech and association by private speakers and groups, just as it protects speech by any other speakers on any other subject, and that the Establishment Clause does not authorize discriminatory exclusion of religious speech.

This was a signal ruling. The free-speech holding was hardly new to Widmar—many of the Court’s great free-speech cases of the 1930s, 1940s, and 1950s involved religious expression—but the Widmar case framed the issue clearly and stated the rule simply. The decision came at a moment in the Court’s history when the principle of free religious speech had become endangered by the encroachment of overreaching claims of church-state “separation,” claims that many took to suggest that religion must be affirmatively excluded from the public sphere and from public discourse. Certainly UMKC (and its lawyers) thought that religious speech, by private parties, must be kept off university grounds. Separation of church and state required exclusion of religious speech, they supposed. UMKC’s posture was not so much one of hostility to religion as one of ignorance about the First Amendment—though the consequence was much the same.

Widmar marked a decisive turning point. Of course, the disposition to suppress private religious expression—to exclude, to hamper, to discriminate—persists even today. But Widmar (with its many successor cases) stands firmly in the way of the view that such suppression is in any way justified, let alone required, by the Constitution. Widmar repudiated such First Amendment ignorance.

Here is what the Court held in Widmar: Freedom of speech forbids government from prohibiting, punishing, or penalizing speech based on its content. This was already an oft-stated principle. The Free Speech Clause of the First Amendment thus forbids government from excluding religious speakers and groups from forums for expression—or from any other benefit—on account of the religious content of their expression or the religious nature of their views or association. Furthermore, the Court went on to hold, the Establishment Clause of the First Amendment, so often unthinkingly invoked to wall off religion from the public sphere, emphatically does not authorize or justify discriminatory exclusion of private religious speakers and groups from public forums for expression, or from other public benefits.

While there are many important cases in the Supreme Court’s First Amendment oeuvre, none in the last thirty years captures as succinctly and correctly as Widmar so many basic, important principles of the freedom of speech and, by implication, the American freedom of religion generally. Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject: Religious speech, association, or identity can no more serve as the basis of exclusion from a public forum or a public benefit than can any other viewpoint or affiliation. Religious freedom might mean more but cannot mean less than full and equal inclusion in the public sphere and the right to share in First Amendment freedoms of expression and association.

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

Nearly as important as Widmar’s embrace of the affirmative right to religious expression is its rejection of the mischievous notion that the Establishment Clause, which forbids government “establishment of religion,” somehow mandates, or justifies, government discrimination against religion. The Establishment Clause’s original meaning was to forbid official coercion in matters of religion, whether by direct state compulsion or by conditioning benefits or privileges on a citizen’s engaging in religious conduct favored by government. (That is the principle that makes the Court’s decisions of the 1960s striking down public-school official prayer exercises correct: Such practices employ the coercive machinery of the state to get schoolchildren to pray the government’s prayer.)

Unfortunately, a series of cases in the 1970s involving various state government programs of direct aid to private, parochial religious schools led the Court to devise a confusing “three-pronged test” intended to identify improper government sponsorship of religion. Like so many judicial interpolations into the constitutional text, however, the “Lemon test,” named for the 1971 case of Lemon v. Kurtzman that first used it, led the Court far astray. Soon, the Court’s decisions had transformed the Establishment Clause from a rule forbidding government coercion of religious practice into something approaching a rule requiring government exclusion of religion from the public square or from generally available benefits.

Widmar rejected such an understanding. Although the eight-member majority worked within the framework of the ‘70s’ Lemon test, it made clear that a policy of equal inclusion of religion does not violate the Establishment Clause. Equal inclusion has neither the purpose nor the effect of special state promotion of religion. It also avoids church-state tangles: A rule that required government to ferret out and exclude religious expression not only would violate core free-speech principles—Widmar’s free-speech holding—but also would entangle government terribly in matters of religion, in violation of religious freedom principles of church-state separation.

Widmar thus broke the Establishment Clause logjam that had become a barrier to true religious freedom. The former skewed thinking—that separation required discrimination—began to give way. Much as Brown v. Board of Education had broken the back of separate-but-equal state racial segregation a generation earlier, Widmar broke the back of separate-and-unequal official religious discrimination. Within a few years of Widmar, the Court held that tax arrangements providing neutral aid to families choosing private religious schools, rather than direct aid to the schools themselves, posed no special problem under the Establishment Clause (Mueller v. Allen, 1983). Decisions followed rejecting the idea that the Establishment Clause forbade vocational education benefit programs from being used for religious education (Witters v. Washington Department of Services for the Blind, 1986), or that disability services or remedial education could not be provided to children attending religious schools (Zobrest v. Catalina Foothills, 1993; Agostini v. Felton, 1997).

Widmar’s “equal access” rule was enacted by Congress in 1984 as a requirement for public secondary schools receiving federal financial assistance, in the important “Equal Access Act,” and was upheld by the Supreme Court against Establishment Clause challenges (Westside Board of Education v. Mergens, 1990): this means that high-school and middle-school religious student groups may form and meet on public school premises. The Court likewise applied the rule of Widmar to religious groups seeking to use or rent public-school building facilities after hours or on weekends, on an equal basis with other community groups (Lamb’s Chapel v. Center Moriches Union Free School District, 1993), and to after-hours religious clubs for children at elementary schools (Good News Club v. Milford Union Free School District, 2001). Religious worship, religious expression, and even child evangelism programs could take place on public school grounds, under equal-access principles.

In a dramatic and important extension of Widmar, the Court in 1995 held that student religious groups at state universities were entitled to equal access to student-activities funding by the university and that the Establishment Clause posed no barrier to such equal access. Thus, the University of Virginia was forbidden from denying funding to an evangelistic Christian student newspaper simply because of its religious content and viewpoint (Rosenberger v. Rector and Visitors of University of Virginia, 1995). Funding, the Court held, could be every bit as much a “forum,” from which student religious groups could not be excluded based on the content of their expression, as access to use of university buildings for religious meetings, worship, prayer, and Bible study. Given Rosenberger, it became a cinch that school-choice “voucher” plans that allowed parents to choose religious schools would be upheld against Establishment Clause challenge; and they were, in Zelman v. Simmons-Harris, in 2002. Widmar’s principle—that neutral inclusion does not violate the Establishment Clause—controlled.

These are significant results, with hugely positive consequences for religious freedom and equality in American public life. They would have been unthinkable had Widmar gone the other way, thirty years ago.

Of course, there has been some backsliding through isolated decisions in tension with Widmar’s reasoning. For example, Locke v. Davey (2004) held, somewhat bizarrely, that a state scholarship program to help lower-income, high-performing high-school students attend public or private college could exclude students choosing programs in theology. The Court emphasized, consistent with Widmar—and with Witters, Zobrest, and Rosenberger—that such exclusion was in no way constitutionally required.  Yet Locke’s  holding that such exclusion is permitted is hard to square with Widmar and cases following it.  More recently, and even more bizarrely, the Court in Christian Legal Society v. Martinez (2010) held that a state university could insist that student religious groups not have religious-belief requirements for their members and leaders. Taken seriously, Martinez is hard to square with Widmar’s premise that religious groups may not be discriminated against because of their religious nature.

But given Widmar, these isolated decisions ought not have legs. Locke v. Davey now appears to be a blip or a hiccup, limited to its facts and (one hopes) destined to be overruled in a proper case. And CLS v. Martinez may be limited to its oddly hypothetical, unreal stipulated facts (insisting that all student groups allow all people—regardless of whether they share the aims of the group—access to leadership roles).

Despite exceptions and odd departures, Widmar states the bedrock rules: The Free Speech Clause forbids government from excluding or discriminating against private parties’ religious expression because of its religious content. The Establishment Clause does not authorize or justify such discrimination, ever. Where government has provided a program or a benefit on a general basis, it may not exclude religious persons or groups on the basis of their religious expression or identity. It is hard to think of a better, more succinct statement of the essentials of religious freedom.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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Yet it is making some headway. To understand this, is it necessary to grasp how myriad family law developments over the last forty to fifty years have ignored or minimized children’s interests, thus paving the way for the arguments same-sex marriage proponents advance today. For example, as against the idea that marriage and child well-being go together, state laws approving no-fault divorce and normalizing cohabitation (by enforcing cohabitation agreements) do not take children’s presence in a household into consideration at all. Rather, they allow more and more children to be reared outside of households containing their married, biological parents. They also expose more children to instability in living arrangements, and to stepparents and new boyfriends, each of which is, on average, correlated with increased risks to children’s safety and to their emotional and educational achievement.

Against the notion that marriage is the place where society is born and formed, federal constitutional law concerning birth control and abortion from the 1970s through the 1990s stridently instructed us that decisions about procreation are about the individual, not the married couple and not the child. In the 1972 “birth control for singles” case, Eisenstadt v. Baird, the Court bluntly opined that “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In the 1992 Planned Parenthood v. Casey abortion decision, the Court went even further, declaring that the liberty interest in deciding to abort one’s own child is, at its core, a matter of “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”

Finally, against the idea that parental rights are derivative of parental duties to children, there are not only the counter-examples of no-fault divorce laws and the legal right to abortion, but also the fact that neither state nor federal law meaningfully regulates adults’ access to assisted reproductive technologies, including to donor gametes, deferring completely to adult desires for children versus children’s need to know and be loved by their own mother and father.

A look at the legislative transcripts or the judicial opinions or other sources that brought each of these legal regimes into being indicates how little children’s fates were considered from the very start. The legislative hearings leading to no-fault divorce, for example, are replete with references to children’s resiliency, or how the facilitating of their parents’ wishes for a divorce will indirectly lead to children’s happiness.[1] The California Supreme Court opinion that started the ball rolling toward many states’ recognizing and enforcing cohabitation agreements (Marvin v. Marvin, 1976) paid no attention to the possible effects upon children of the greater normalization of cohabitation. Some of the most popular assisted-reproductive technologies were not even tested on animals before being used to create thousands upon thousands of human children. And of course, nothing could have been further from the minds of the judges who gave us Roe and Casey than the well-being of the child on the other end of the abortion instruments.

Given this history, it should surprise no one that in the most recent family law controversy implicating children’s well-being, same-sex marriage proponents have devoted so little attention to the question of children. It shouldn’t surprise us when the Iowa Supreme Court relegates to a footnote its assurances that children will do just as well with a father or a mother as without one (Varnum v. Brien, 2009), or when that California district court opinion in the Proposition 8 case (Perry v. Schwarzenegger, 2010) concludes that opposite-sex marriage is merely an “artifact” of pernicious sex-role discrimination within marriage and society, a discrimination that is now passé. It should sound perfectly mainstream when members of the Massachusetts legislature (before refusing to allow citizens the right to vote on same-sex marriage) called marriage a “right” that “individuals” have, a matter allowing people to love one another, or of “guarantee[ing] the greatest amount of happiness to the most people.”[2]

Are these conclusions about marriage the inevitable follow-up to lawmakers’ recent dissociating of marriage and child-rearing? What about the vastly different concerns featured in over a century of Supreme Court opinions linking the state’s interest in marriage to children and their formation? There are several possible responses. Technically speaking, of course, the Court’s decisions from Reynolds to Lehr have not been overturned; they remain good law. But proponents of same-sex marriage could argue that the language in these cases linking marriage with parenting is dicta—i.e., not essential to their holdings—or even merely historically conditioned expressions of a moral sensibility bearing no relation to our current age. Maybe. Maybe today’s Supreme Court would accede to such a characterization. After all, look at its opinion (albeit over a stinging dissent) in Lawrence v. Texas (2003) granting constitutional status to sodomy, in response to perceived current trends here and abroad.

In light of the mode of reasoning adopted in Lawrence, then, those loath to see marriage and children divorced from one another would be wise to adopt an additional strategy. They should argue that the Supreme Court was more right than it even knew during the past two centuries, when it identified the state’s interest in marriage as children and their formation. In fact, today, more than ever before, we have a substantial body of literature linking children’s—and communities’—flourishing with the stable presence within a family of married, biological parents. Two additional developments also argue for reappropriating and reinvigorating Supreme Court precedents on marriage, rather than moving in the direction suggested by the last few decades’ retreat from child-centered marriage.

First, the most vulnerable members of society appear to be paying the highest price for this retreat. African Americans, Hispanics (our newest large immigrant group), the poor, and the less educated are suffering the most notable financial, emotional, and educational fallout. They now marry less, cohabit more, bear more children out of wedlock, and divorce more often than more privileged citizens, with the result that their children, and perhaps even their grandchildren, risk becoming part of an entrenched underclass in American society. To allow this to continue is to risk the rise of the perception that Americans are different from one another at very basic levels—in our fundamental needs for permanent and faithful love, for support when we are very young or very old, for harmony between the sexes and the generations. This is a very dangerous kind of separation between fellow citizens and human beings.

Second, it should be pointed out that the family law developments of the last forty to fifty years, described above, often proceeded on the claim that children would ultimately benefit from each of them. In other words, even those who were busy effectively dismantling family law’s orientation to children’s well-being were not deaf to the tradition embodied in the Supreme Court’s marriage and procreation cases. Rather, they argued that children would be happier when their parents were happier—because their parents were getting a divorce, or cohabiting, or living in whatever arrangement they chose. They argued that children would be happier if “wanted,” and what could be more wanted than a very planned, well-timed child, or even a “designed” child? They argued that cohabitation should lead to more stable marriages.

Now that each of these claims has been disproved, or at least called into serious question by respected research, there are proposals—for the first time in a very long time—to reform various family laws in order once again to take account of children. More scholars are proposing and more states are considering requiring sperm donors to provide information allowing their biological children to find out more about them. There are active efforts to promote legislation to slow down the divorce process, especially for parents of minor children. Scholarship about the dangers posed to children by cohabitation is gaining a national audience. In short, current reform efforts provide an additional reason to refuse to deem the last half-century of family law “progress,” let alone to take their “adults-first” or “adults-only” rallying cry any further, to its logical conclusion in same-sex marriage.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This is the second in a two-part series. Read the first installment here.

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[2] See, supra, Helen M. Alvaré, “The Turn Toward the Self in the Law of Marriage,” 174-176 and notes therein.

Those who champion marriage between a man and a woman would like to see the Supreme Court settle the matter according to a long series of precedents treating procreation and child-rearing as primary state-recognized goods of marriage. But given that one ought to be realistic about judicial willingness today to ignore precedent in favor of some perceived zeitgeist, an additional strategy to preserve the link between marriage and children in the Court’s reasoning is warranted.

This strategy would show, first, how the path of divorcing marriage from children—a path taken to its logical end by same-sex marriage—not only disadvantages children, but is already helping to effect troubling social divisions between the more and less privileged in the United States. The persistence of such divisions could begin to suggest, falsely, that the well-off and the poor, the more educated and the less educated, the majority and various minorities, do not share the same fundamental nature where marriage and parenting are concerned. Second, such a strategy would highlight the relatively recent willingness among scholars and lawmakers to come to grips with the fallout of “disestablishing” the interrelated goods of marriage and effective parenting, and to begin proposing reforms. This is not the time, therefore, to ignore or deny the robust empirical foundations of such reform efforts, via legally redefining “marriage” to exclude its intrinsic orientation to children. A brief look at our Supreme Court’s longstanding positions on the meaning of marriage (in this first of a two-part series), followed by a look at the whirlwind of family law developments from the 1970s to today (in the second part), will suffice to sketch the argument I am proposing.

A preliminary note: It is important to understand that family law is made in large part at the state level and, regarding marriage, consists not in lengthy disquisitions on the meaning of marriage, but rather in brief lists of the necessary preconditions for entering into it. States’ lists are similar. To enter marriage, there must be two persons: of opposite sexes (in the vast majority of states), of sufficient age, not related within prohibited degrees of consanguinity, free to marry, capable of marital consent, etc. On the one hand, state laws conditioning entry into marriage are fairly laissez-faire. On the other hand, all states signal the importance of marriage by refusing to acknowledge purely “private contracts” to marry. Rather, the state imposes terms upon marrying couples—a set of mutual rights and obligations with which they are not even likely familiar. Even when couples make prenuptial agreements, the state constrains their contents in the interests of fairness to the adults and solicitude for children.

The federal government tends to “make family law” when it feels threatened by developments in the states. Increasing rates of nonmarital births in the 1970s and 1980s, for example, and the resulting astronomical federal welfare expenditures, led to a series of federal child support laws, programs about preventing premarital sex and pregnancy, and later initiatives encouraging stable marriage and fatherhood. The latter, in particular, were grounded upon the growing body of data linking marriage with child well-being. The Defense of Marriage Act in the 1990s sprang from fears that one state’s approval of same-sex marriage would lead to demands for interstate and federal same-sex marriage recognition. For the most part, however, federal “characterizations” of the meaning and importance of marriage appear most often in a long series of Supreme Court cases concerning the constitutionality of various state laws affecting marriage or parent-child relationships. While a complete history of these rulings is not possible here, I will characterize their leading messages.

The first message, and the most plain, coming from the Supreme Court concerns the relationship between marriage and the birth of children. While it is impossible to disentangle completely this state interest from its interest in the healthy formation of children within marriage, still it is possible to discern it. In a late nineteenth-century case refusing to recognize a First Amendment right to practice polygamy, for example, the Court wrote that: “Upon [marriage] society may be said to be built” (Reynolds v. United States). Nearly 100 years later, in a case striking down a law banning interracial marriage (Loving v. Virginia), the Court referred to marriage as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

In several cases from the late nineteenth century to 1967, the Supreme Court revealed in a different fashion its understanding of the link between marriage and children: in cases where only a right to marry was at stake, or only a right respecting childrearing, the Court would nevertheless speak of the two interests as a pair. The plaintiffs in Loving asserted a right to marry as against antimiscegenation laws, and still the Court referred to marriage as necessary for “our very existence and survival.” Skinner v. Oklahoma concerned a law punishing certain felons with forced sterilization, but the opinion spoke of “marriage and procreation” as basic rights. In Meyer v. Nebraska, the case vindicating parents’ constitutional right to instruct their children in a foreign language, the Court referred to citizens’ rights “to marry, establish a home and bring up children.”

The state’s interest in linking procreation with marriage is also shown by the history of laws discouraging sexual intimacy and procreation between the unmarried, while protecting it between the married. Today, laws punishing adultery, fornication, or cohabitation rarely exist or are enforced. Still, even in the 1965 Supreme Court decision granting married persons the constitutional right to access birth control, a concurring opinion could observe: “It should be said of the Court’s holding today that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. . . . But the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected” (Griswold v. Connecticut).

A second prominent theme in the Supreme Court’s marriage jurisprudence is the importance of the marital family for forming and educating the citizens necessary for the continuation of our democratic society. In the 1879 polygamy opinion Reynolds, for example, the Supreme Court opined:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, … than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

The Reynolds case also contains a less frequently noted observation linking the shape of marriage and the shape of society: “According as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. … Polygamy leads to the patriarchal principle, and, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”

In 1943, in Prince v. Massachusetts, the Court not only affirmed parents’ authority over their children within reasonable limits (here, obedience to labor laws), but more importantly for our purposes, characterized their authority as a function of their responsibilities to children and to society, writing: “A democratic society rests, for its continuance, upon the healthy well-rounded growth of young people into full maturity as citizens, with all that implies.” An even more pointed expression of the economy of adults’ rights respecting children appeared in the case vindicating parents’ constitutional right to educate their children in religious schools. Nearly echoing John Locke’s observation in his Second Treatise on Government—“The Power, then, that Parents have over their Children, arises from that Duty which is incumbent on them, to take care of their Offspring”—the Supreme Court wrote in Pierce v. Society of Sisters that “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

As recently as 1983, in the single father’s rights case Lehr v. Robertson, the Court even more explicitly stated that “the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” It furthermore linked marriage and marital parenting with facilitating citizens’ ability to self-govern. Refusing to treat a single father identically to a married father in terms of rights respecting the child, it wrote that “marriage has played a critical role … in developing the decentralized structure of our democratic society. In recognition of that role, and as part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family.”

In sum, our Supreme Court has time and time again, and in an axiomatic fashion, expressed the state’s interests in marriage as: children, their formation, and the building up of a society of citizens well-prepared for self-government. In the process of recognizing various rights claimed by parents respecting their children, the Court has further observed that to the extent parents have such rights, it is because they have duties toward children. Those who demand that the state recognize, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health. Their insistence, however, that marriage is about the individual self, seeking satisfaction respecting matters related to sex, romance, and parenting, is not new to family law. Same-sex marriage proponents are only the most recent in a long line of voices urging American society to divorce children from marriage, and to vault adults’ interests over children’s needs. The second part of this article will treat this trajectory in family law.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This is the first in a two-part series. Read the second installment here.

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Yet judges and legal scholars rarely agree on what was the original meaning, understanding, or intent of controversial clauses of the Constitution. Perhaps no better example of this dispute exists than the slew of literature about the First Amendment’s establishment clause. Since the late 1940s, its ten words—”Congress shall make no law respecting an establishment of religion”—have probably been subjected to more detailed scrutiny and analysis than any other provision of the original ten amendments.

A number of different schools of interpretation have emerged since the 1940s, with the different schools usually more reflective of the differing policy preferences of their members than the kinds of genuine scholarly disputes that arise among philologists or classical scholars when disagreement emerges over the meaning of an ancient text. In the field of constitutional interpretation, ideology-driven conclusions are the norm, not the exception, and this is true even though the dispute under consideration may concern what seems to be the neutral assessment of the historical meaning of a dryly worded legal text. Too much is usually riding on the outcome in terms of current policy controversies for most constitutional scholars to display the disinterested cool and objectivity of, say, a Latin scholar interpreting the provisions of an ancient Roman law.

An exception to this ideology-driven, result-oriented historical scholarship is Donald Drakeman’s newest book, Church, State, and Original Intent. Indeed, this book may be the most honest, most comprehensive, most nuanced, and most illuminating scholarly study now available of what those ten words of the Establishment Clause probably meant to the many different Americans in 1789–1791 who would have read them. Drakeman has no obvious ideological or public policy agenda, and even the most discerning reader will be hard put to tell where he stands on the more controversial issues of the day regarding church-state relations. Drakeman clearly delivers on his promise in the book’s Preface to provide “an as-objective-as-possible analysis” of the history and original meaning of the Establishment Clause.

Drakeman first reviews the three most prominent ways of interpreting the Establishment Clause, most of which developed after the 1947 Everson decision that upheld amidst vigorous dissent state-subsidized bus transportation for parochial school students.

The strict separationist view is the first of these interpretations. Supporters of this view, including most Supreme Court justices, hold up Thomas Jefferson’s metaphor of a “wall of separation” between church and state. Strict separationists generally believe that the First Amendment’s establishment ban prohibits government not only from establishing a church or favoring one religion over another, but from favoring religion over non-religion, conducting prayer exercises or Bible readings in the public schools, sponsoring religious invocations at public-school sporting events, displaying religious symbols such as the Christian cross or nativity scenes on government property, opening legislative sessions with a prayer, giving school vouchers that go to students attending religious schools, or using the “In God We Trust” slogan on our currency or the “under God” declaration in the Pledge of Allegiance recited in public schools. On the strict separationist view, all of these prohibitions carry over to state governments through the Fourteenth Amendment’s Due Process Clause.

The second of these views, and the most forceful challenge to the strict separationists, comes from the non-preferentialists, a group that includes Justices Antonin Scalia and William Rehnquist and legal scholars such as Gerard V. Bradley. Non-preferentialists believe that the Establishment Clause aimed only (1) to prohibit the national government from establishing a single denominational church as the official church of the United States, and (2) to prohibit the favoring of one religion or religious sect over another. But the no-sect-preference principle, non-preferentialists say, was not designed to stop government support of religion over non-religion, or to stop the government from supporting piety, religiosity, and religiously grounded morality among the American people, as long as support was given on a sect-neutral basis. While the original understanding of the no-sect-preference principle was probably meant only to cover Christian sects (i.e., Christianity could be favored over Hinduism, Judaism, or Islam), today’s non-preferentialists generally extend their no-preference principle to all religions, Christian as well as non-Christian. Government can support religion and religious belief over its absence, they say, but not one religion or religious sect over another.

Finally, the jurisdictional or federalism-enhancing view, supported somewhat by Supreme Court Justice Clarence Thomas and legal scholars such as Robert P. George and Steven D. Smith, argues that the Establishment Clause was, in Smith’s words, “simply an assignment of jurisdiction over matters of religion to the states—no more, no less.” At the time of the adoption of the First Amendment, jurisdictionalists point out, several of the states (for example, Connecticut, Massachusetts, and New Hampshire) had state and local church-state arrangements that many would call “establishments of religion.” The Establishment Clause should be understood, then, as an attempt both to (1) prohibit such an establishment at the national level, and (2) offer protection of each state’s right to maintain such an establishment within its own borders. A major purpose of the Establishment Clause, say the jurisdictionalists, was to protect a state’s prerogative to establish a religion or support religion in any way it chose, whether preferentially or non-preferentially.

Drakeman rejects the conclusions of all three interpretations, at least insofar as they claim to explicate the original meaning or intent of the Establishment Clause. The strict separationists, Drakeman says, have tried to read the clause as the result of Madison’s and Jefferson’s efforts to determine the proper church-state relationship for their home state of Virginia under the Articles of Confederation. But their views, Drakeman argues, hardly can be equated with those of the nation as a whole, of the majority of the representatives and senators who passed the first ten amendments, or of the majority of state legislators who voted to ratify the Bill of Rights. Moreover, whatever was considered the proper course for their home state of Virginia, neither Jefferson nor Madison, Drakeman shows, believed that the national government should dictate to the states their proper manner of church-state relationship.

Against non-preferentialism Drakeman’s critique is a bit more restrained. It’s not that non-preferentialists read into the Establishment Clause what clearly isn’t there, or that they take a local state battle to be paradigmatic for a non-existent national dispute, but that they fail to realize that the term “establishment of religion” meant different things to different people and had a wider range of meanings across the American public spectrum than simply an established state church such as the Anglican Church in England.

Against the jurisdictionalists Drakeman offers a partial concession. It is undoubtedly true, he says, that those who passed and ratified the Bill of Rights in the 1789–1791 period would have understood the no-national-religion principle embodied in the First Amendment to be part of the overall constitutional structure of federalism whereby states would be free to set their own policies regarding church-state relationships even if the national government were more restricted in this area. Drakeman calls this “plain vanilla federalism.” He distinguishes this from the “federalism-enhancing federalism” of the jurisdictionalists who see a specific intent on the part of supporters of the Establishment Clause in states such as Connecticut and Massachusetts (which had state establishments) to protect their state establishments from outside national interference. The clause is seen by the jurisdictionalists as deliberately intended to create an extra layer of federalism protection to secure existing state religious establishments against national encroachment.

The major weakness with the jurisdictionalist interpretation, Drakeman says, is that there is no evidence for it. No one in the 1790s thought the national government would interfere with state church-state relationships, he says, so it is not surprising that no one known to us today ever expressed support for the Establishment Clause in the way the jurisdictionalists or federalism-enhancing interpreters of the clause assert.

Drakeman’s own interpretation of the clause is minimalist:

While some aspects of the evidence can be employed to support each of the various conventional interpretations [of the Establishment Clause], the only reading of the clause that is persuasively supported by all of the relevant data shows that its original meaning was to forbid the establishment of a single national religion. It is unclear whether such prohibitions only applied to an entity like the Church of England or whether more ecumenical forms of governmental financial aid might also have been included within the original meaning of the phrase “an establishment of religion.” On this latter point, the record is (and probably always will be) too murky to tell for sure.

Drakeman’s book is indispensable reading for anyone interested in church-state relations in the American constitutional order. It is constitutional analysis at the highest level of informed scholarship and is written with an openness and humanity that jump out from every page. Nevertheless, Drakeman fails to do full justice to those who see a crucial difference between the no-national-religion principle of the First Amendment and the five personal freedoms (speech, press, assembly, petition, and religious worship) guaranteed by that amendment against usurpation by the national government. Drakeman can argue, correctly, that the five personal freedoms enumerated in the First Amendment were intended just as much to be part of the federalism structure of the government created under the Constitution as the Establishment Clause insofar as the prohibition on their restriction was intended to apply only to government action at the national level, not the state level. States under the pre-incorporated First Amendment were just as free, under the confines of their own constitutions, to limit freedoms of speech, press, assembly, petition, and religious worship as they were free to establish a church and tax their inhabitants to support it. Drakeman seems to take this to mean that the difficulties under originalist jurisprudence of incorporating these five First Amendment freedoms under the liberty provision of the Fourteenth Amendment’s Due Process Clause—and applying them to cover government action by the several states as well as the national government—are no less than those of incorporating the Establishment Clause. Since the courts have seen no problem in overriding the original federalism structure in relation to five of the six provisions of the First Amendment, Drakeman’s reasoning seems to be, why not with the sixth as well?

I think there are two problems here. First there is the problem that the non-establishment principle is not what usually would be thought of as a “liberty” under the meaning of the Fourteenth Amendment’s Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). It is a collective non-endorsement principle more than a personal liberty principle. But aside from this difficulty (which some would get around by simply reformulating and restating the non-establishment principle in a personal-liberty-enhancing way), there is the fact that in the 1790s most Americans would have seen the rights of free speech, free assembly, freedom of the press, freedom to petition the government, and freedom of religious worship as universal natural rights—or at least the rights of adult American white males—whereas very few would have understood there being any general or natural right of this kind to live in a state or a nation which did not officially endorse one religion over another or all religions neutrally. Even if it is true that the First Amendment left it up to the states to protect their citizens from serious state and local usurpations of the freedoms of speech, assembly, press, petition, and worship, it was almost universally believed in the 1790s that such usurpations were grievous wrongs and violations of basic rights. There clearly was no such consensus, however, against a state establishing a religion, preferring one religion over another, or subsidizing all religions on a no-sect-preference basis. The latter were not seen by most Americans (with important regional exceptions) as grave usurpations of fundamental personal liberties or natural human rights. Hence they do not fit easily into the Fourteenth Amendment’s understanding of hallowed constitutional liberties that must not be infringed upon by government at any level.

There really do seem to be serious problems, then, even if we read the First Amendment through the lens of “plain vanilla” federalism rather than the more supercharged “enhanced” variety, with incorporating the non-establishment principle under any reasonable reading of the word “liberty” in the Fourteenth Amendment, and this issue touches the one area where Drakeman’s otherwise magnificent work falls short. On “original meaning” grounds, the jurisdictionalists, I believe—even the plain-vanilla variety—have a stronger case than he supposes.

Russell Nieli is a lecturer in Politics at Princeton University.

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In 1996 Congress passed, and President Clinton signed into law, the Child Pornography Prevention Act. The Act prohibited what has been termed “virtual child pornography.” That is, it was directed not primarily at the distribution of sexually explicit material made with the use of actual children; such material was already illegal. Instead, its chief aim was to proscribe material devised by other means, such as the use of youthful-looking performers or digitally created or manipulated images, to appear as if these materials depicted minors in sexually explicit ways.

The Act was challenged by a consortium of “adult entertainment” businesses calling itself the “Free Speech Coalition.” One might be tempted to react with indignation that a pack of pornographers would try to dignify its activities under the venerable constitutional concept of freedom of speech. One would err, however, if one directed this anger only at the pornographers. For the Supreme Court itself has long invited such an understanding by holding—contrary to any plausible interpretation of the Constitution as it was understood by those who wrote and ratified it—that pornography is sheltered by the First Amendment. Of course, the Court has never abandoned its longstanding doctrine that “obscenity” is not constitutionally protected speech; but this has become nothing more than a kind of jurisprudential Potemkin village. The Court assures a still somewhat morally serious public that obscenity is not protected, even as it makes it almost impossible to demonstrate that anything, even the most blatant hardcore pornography, fits its highly technical definition of obscenity. Pornography is not obscenity, the Court holds, unless it can be shown to have no socially redeeming value at all—something that would be very hard to demonstrate of any pornography that includes even one scene or element that is not itself sexually explicit.

Having thus invited the Free Speech Coalition’s challenge to the Child Pornography Prevention Act, the Court continued down this same path in its 2002 ruling in the resulting case, Free Speech Coalition v. Ashcroft. So long as it is produced without sexually exploiting any actual children, the Court claimed, even child pornography is not necessarily obscenity. That is, even child pornography may have socially redeeming value and is therefore entitled to the protection of the First Amendment.

By this ruling, the Court contributed to a public culture that encourages the sexual exploitation of children. Most obviously, it gave constitutional protection to material that feeds and strengthens the desires of pedophiles and thereby makes it more likely that some of them will act them out. More subtly, by preventing efforts to prohibit such material, the Court helped create a culture that undermines the pedophile’s own sense that his desires are wrong and to be resisted. A pedophile without access to child pornography is simply alone with his perverted thoughts and is therefore unlikely to forget that society condemns his desires in the strongest possible terms. But a pedophile with legitimate access to child pornography, even if it relies on “virtual” images, is taught that there are others—indeed, lawful businesses and even parts of whole industries—that sympathize with his desires and will cater to them, and that in doing so they are even exercising a constitutional right. Human beings are naturally sociable creatures. They tend to think, feel, approve or disapprove, praise or condemn, in groups. Accordingly, the very existence of child pornography, especially if it is lawfully produced, cannot help but encourage pedophiles to believe that their appetites are morally legitimate, because shared and approved by others, and thereby push some of them to violate the law by sexually exploiting actual children.

Indeed, by its handling of these issues, the Court has introduced a kind of moral incoherence into American law that must erode the public’s, and especially the pedophile’s, appreciation of the immorality of the sexual exploitation of minors. According to the Court, laws forbidding the sexual exploitation of minors are legitimate, but laws forbidding the production and consumption of “entertainment” that encourages the sexual exploitation of minors are illegitimate. This is absurdity; if it is wrong to do something, then it must also be wrong to encourage it, and even to desire to do it. This is especially true if the wrong in question is criminal and indeed among the most reprehensible acts that can be imagined. Because of this contradiction, one or the other of the Court’s affirmations must be undermined: either the illegitimacy of child sexual exploitation will lead us to reconsider the idea of a “right” to child pornography, or the legitimacy of such pornography will undermine our sense of the immorality of the acts it depicts and encourages. Given the deep roots that sexual libertinism has already laid down in our culture, it is difficult not to fear that the latter outcome is the more likely. In any case, it is impossible to mistake the lesson that the pedophile will want to draw. Receiving such mixed messages from the culture, his will to resist his own impulses will be undermined.

Moreover, the Court has introduced such moral confusion into our culture not only through its First Amendment jurisprudence, but also through its invention and expansion of the “right of privacy.” In 2003, in Lawrence v. Texas, the Court found that the privacy right prohibited a Texas law against homosexual sodomy. Whatever one thinks of the outcome of the case, the Court’s reasoning was radical in its implications. In effect, the Court held that a mere moral conviction on the part of a political majority was not a sufficient basis for law. A law with no better foundation, the Court suggested, was no better than arbitrary and irrational, and was probably rooted in disreputable prejudice. As Justice Scalia pointed out in his scathing dissent, the Court’s doctrine called into question a whole field of long-established morals legislation, from prohibitions on prostitution to proscriptions of incest. Scalia’s observation also applies to laws against the sexual exploitation of minors. It would be difficult to contend, after all, that such laws are not deeply rooted in the moral convictions of the majority.

None of this is to suggest that most pedophiles are readers of Supreme Court opinions. But they don’t have to be. Almost all of them are certainly aware of the cultural establishment’s libertine conviction that an individual’s sexual desires, whatever they are, are none of the law’s business; and most of them are surely aware, at least in some dim way, that the Supreme Court has repeatedly used its authority in defense of such a view. From there it is only a short step for some of them to convince themselves that their desires really are harmless so long as they can find a child to seduce, while escaping the detection of laws that now seem to have no real moral authority.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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This is the thought that springs to mind when one hears of the conduct of the Westboro Baptist Church, whose members make public spectacles of their fellow citizens’ funerals—even and especially those of warriors killed in the line of duty—in order to highlight ideas that could otherwise command little attention. Westboro continues to maintain a busy schedule of funeral protests.  Earlier this month Westboro leaders tweeted their intention to picket the funeral of Steve Jobs, and just last week they made known their intention to protest at the upcoming memorial of an Army Staff Sergeant killed in Afghanistan.

Although it is a natural response, to wonder whether nothing is sacred is perhaps an overreaction. After all, every society has a small class of zealots who, in their self-righteousness, think they may ignore even the most minimal standards of human decency. The conduct of such people in no way defines the character of the larger society.

This thought—“Is nothing sacred?”—is, however, a reasonable reaction to the behavior of America’s federal courts, which have given undeserved dignity to Westboro’s conduct by declaring it within the protection of the Constitution. Westboro’s abusive demonstrations, the courts tell us, are sheltered by the First Amendment’s prohibition on laws abridging the freedom of speech. Such judicial pronouncements do reflect on the nation’s character, because they are made under the authority of the United States and in the name of its fundamental law.

This problem first came to light last March, when the Supreme Court announced its decision in Snyder v. Phelps, ruling that the First Amendment barred Snyder—the father of a U.S. Marine killed in Iraq—from suing members of Westboro for the emotional distress caused by their protest at his son’s funeral. Last week, in a different case, the problem resurfaced in the United States Court of Appeals for the Eighth Circuit. The Appeals Court’s ruling is even more troubling than the Supreme Court’s because it threatens more judicially created restrictions on society’s ability to protect decent standards of public expression.

In striking down the suit for emotional distress, the Supreme Court reassured the nation that states still had tools by which they could protect the dignity and privacy of those burying their dead. A number of states, it noted, had passed or were considering laws requiring protesters to keep their distance from funerals. The Eighth Circuit ruling last week, however, cast a serious cloud of judicial doubt over such laws.

To be sure, the Eighth Circuit’s judgment does not definitively settle the constitutional issue here. The Nebraska Funeral Picketing Law prohibits funeral protests within 300 feet of the site and within an hour before and two hours after the funeral. Shirley Phelps-Roper, a Westboro member, challenged this law in United States District Court by seeking an injunction against its enforcement while it was under challenge. The District Court judge denied the injunction, but, on appeal, the Eighth Circuit panel agreed with Phelps-Roper that it should have been granted. Such a procedural ruling does not, again, give a final ruling on these laws’ constitutionality. The panel’s reasoning, however, is ominous for their future.  For the three-judge panel granted the injunction on the grounds that Phelps-Roper’s constitutional challenge is “likely to prevail” in the end, a fairly clear signal that she eventually will win relief not only in a temporary injunction but in a judicial decision to strike down the Nebraska law.

Rulings such as these do not arise merely from the preferences of liberal judges inclined to side with offensive malcontents against ordinary citizens. Snyder v. Phelps was decided 8 to 1. Justice Alito alone dissented, while the rest of the Court’s conservatives joined with all of its liberals to forbid the emotional distress suit in the name of the First Amendment. Similarly, the appellate panel’s decision was unanimous. And the Eighth Circuit, well-stocked with Republican nominees, is no haven of liberal judicial activism.

On the other hand, neither do such rulings stem from the real requirements of the Constitution. They are instead the fruit of well-established but still erroneous constitutional “doctrine” created by courts and wrongly acquiesced in by the public. Such doctrine, though decades old and now accepted by both conservative and liberal jurists, must be reconsidered if our governing institutions are to maintain any ability to enforce reasonable standards of public discourse.

The First Amendment, as originally understood, provides no shelter for Westboro’s antics. America’s founding generation—both ordinary citizens and legal elites—drew a distinction between liberty and license. That is, they recognized a difference between, say, the use of freedom of speech, on the one hand, and its abuse, on the other. There can be no genuine doubt that they would have classed Westboro’s outrageously lacerating rhetoric—“Thank God for Dead Soldiers,” “You’re Going to Hell”—in the second category and would have accordingly judged it outside the protection of the First Amendment’s speech clause, which was intended to protect a robust public debate, conducted according to civilized standards of decency.

As recently as a century ago, this Founding understanding was at least tolerably expressed in the Supreme Court’s approach to free-speech cases. This approach was governed by the “Bad Tendency Test,” which applied a standard of reasonableness—or what came to be called “rational basis review”—to laws regulating speech. The courts did not think themselves authorized to strike down speech laws if they suppressed speech that the legislature reasonably could  have considered socially harmful, or as having a “bad tendency.” The Bad Tendency Test was guided by the courts’ presumption that duly enacted laws were constitutional and that the burden of proof rested on those who sought to overturn them, a presumption that informed American judicial review from the beginning. Thus citizens who challenged speech laws were obliged to argue their unconstitutionality by showing that they were merely arbitrary or that they lacked any reasonable relation to a legitimate government responsibility.

The Bad Tendency Test, however, has long since been discarded by the Supreme Court and replaced with other standards, which make it almost impossible for the public to enact laws protecting reasonable and decent standards of public speech and conduct. In the early and middle twentieth century, the Court moved to the “Clear and Present Danger Test,” first devised by Oliver Wendell Holmes, Jr. This test held that government could only restrain speech when it was accompanied by a clear and present danger that would lead to other evils—evils that the government has a right to prevent. This test was then superseded by one even more protective of speech, the Imminent Lawless Action Test, which held that speech only could be controlled if it were uttered in a context where it was likely to lead to an unlawful act.

Moreover, the rise of these tests was accompanied by the Court’s rejection of the traditional presumption of constitutionality in a growing number of areas, including that of laws that regulate speech. It embraced the view, first developed by liberal free-speech absolutists such as Hugo Black and William O. Douglas, that speech enjoys a “preferred position” in our system of constitutional values. Accordingly, the Court began to apply various kinds of “heightened scrutiny” to laws impinging on speech, demanding more and more that the government demonstrate their necessity.

This modern approach to freedom of speech makes it almost impossible for our society to maintain a decent standard of public discourse and public conduct. Laws seeking to enforce such a standard must now face the Supreme Court’s rejection of presumed constitutionality. They approach the bar as constitutionally guilty until proven innocent, so to speak. Moreover, the substance of the modern speech tests tends to disfavor the very idea that society has any interest in protecting the moral quality of its public discourse. Civilized societies—even societies that must be regarded as free by any reasonable historical standard—always have recognized that some forms of expression are harmful to individuals and to the common good. Yet the Court’s modern approaches—preoccupied with clear and present dangers, or imminent lawless actions—deny such moral common sense, insisting instead that speech may only be regulated when it threatens some other harm beyond itself.

One is tempted to call Westboro’s conduct barbaric—until, that is, one realizes that this would be unfair to barbarians. For even the most unrefined societies in history would regard it as unacceptably disgraceful to make a political circus of the ceremonies by which a family buries its dead, all the more so when those dead are society’s defenders. It is sadly ironic, then, that the American practice of judicial review, itself a great achievement of civilization, has been turned into a tool for vindicating behaviors that are worse than barbaric—pornography, child pornography, and now Westboro’s profanation of funerals.

Most Americans, I think, sense this irony and wish it were otherwise. Indeed, the enactment and popularity of laws such as the Nebraska Funeral Picketing Law point to a public understanding that some forms of expression do harm and contribute nothing of value to our public discourse. Contemporary constitutional doctrine may impede the public from acting on such an understanding, but such doctrine, in this area at least, deserves none of the deference with which the public usually treats it. For, again, the Founders shared the commonsense view that some expression is an unjustifiable abuse of speech. And there is no reason to think that those who framed and ratified America’s Constitution intended to authorize a judicial review that treats laws protecting decent standards of speech and expression as presumptively unconstitutional.

In order to vindicate the public’s reasonable authority to protect the moral quality of our public discourse, citizens should seek to roll back the modern Court’s speech doctrines; they should elevate jurists who are guided by the Constitution and judicial review, as they were originally understood, rather than by judge-made doctrines whose application is virtually indistinguishable from judicial activism. If we do not do this, then the judgment implied by the question “Is nothing sacred?” will rightly fall not only on outrageous provocateurs and their judicial enablers, but on the country itself.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

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These stories do not (yet) reflect the views of most lawmakers. As Thomas Merrill and Henry Smith, two prominent defenders of property, have observed, the law still reflects our strong moral intuition that property rights are important. At the core of property lies a simple and widely shared principle: We believe firmly that stealing or trespassing is wrong, and the law backs this belief with strong sanctions. The owner has a right to exclude, which is enforceable against the whole world.

Of course, the way one uses one’s property nearly always affects other people, and governments reasonably police the margins of property use in order to promote the common good. Sometimes governments succeed and sometimes they overreach, but as long as the core of property remains intact, excessive regulation does not destroy the institution of property.

Now, however, even the core of property is in question. A formidable challenge to the very notion of private property recently has emerged from the property professoriate. In an influential series of articles, four property scholars have articulated and defended what they call a “Statement of Progressive Property.” They doubt that property owners can be trusted to use assets wisely for the common good. They would like, therefore, to make government the ultimate arbiter of property rights. Owners would exercise sovereignty over their assets only as the state permits.

Strikingly, two of the authors, Gregory Alexander and Eduardo M. Peñalver, defend the Progressive Statement on Aristotelian grounds. Peñalver envisions a law of property that “affirmatively promotes human virtue and flourishing.” This law will authorize state usurpation of property rights when “collective decision making” can be expected to “generate outcomes superior to individually determined conduct.” Alexander claims that the core of property contains a “social-obligation norm,” which requires property owners to share with others to foster human flourishing. The state should be empowered, and often has an obligation, to enforce this norm by coercion.

It should be noted that the authors of the Progressive Statement deny that they are challenging the institution of property. They deny that the core of property is a clearly defined domain of owner sovereignty. Thus, state incursions on private property rights are not limitations on property but rather part of the institution itself. Yet it is the right of the property owner to exclude that makes property unique. If property rights are created by, and maintained at, the discretion of the state, then property ceases to be property.

The authors of the Progressive Statement have performed a great service by calling attention to the values that sometimes warrant limitations upon property rights. They rightly affirm that these values cannot always be compared with each other on any scale, and that economics alone cannot explain the institution of property. They do well to remind property scholars that virtue plays an important role in law, even in property law. Nevertheless, they can be faulted for lack of attention to the implications of the very principles they invoke. It is not at all clear that one who is committed to virtue in the use of land also must be committed to state governance of land. Many defenders of property understand themselves to be in favor of both virtue and property rights.

Is the disagreement over the efficacy of property really a moral disagreement? Henry Smith does not think so. He holds that both defenders and critics of property rights are in favor of virtue and human flourishing. He criticizes the Progressive Statement authors for their insufficient attention to the means by which their proposals are supposed to serve these ends. The problem, in Smith’s view, is not that private property fails to promote human flourishing but rather that the critics of owner sovereignty are impatient with the “mysterious way” in which property does its work.

Property Promotes Human Flourishing, the Common Good, and Human Dignity

The manner in which property serves human flourishing is not really a mystery; it is merely very complex. Indeed, the operation of private property is as complex as the human goods that property serves. Property serves the common good in as many different ways as there are property owners. Just as one person’s notion of the good life differs from his neighbor’s notion, one person’s use of his assets to pursue the good life differs from his neighbor’s use.

Moral obligations sometimes require limitations upon property rights. One should not use one’s property to injure another person, to destroy the natural environment, or to harm another’s property rights. But most choices about the use of property are governed by pre-moral considerations. That is, absent some moral constraint, one may choose among equally reasonable, possible uses of property. Some people use property to raise and support families; others use property to pursue education and knowledge; others donate property to charitable causes. That different people use property to pursue different aspects of the good is one of property’s great strengths.

Property is, in this sense, one of the truly pluralistic institutions in American law. That the operation of private property is complex, however, does not mean that the rules of property must be equally complex. Indeed, the core of property is very simple: the property owner has the right to exclude others from his or her asset. This right to exclude gives the property owner space in which to exercise other rights, such as the right to use, exploit, and encumber the property. To undermine these simple rights is not to promote but rather to impoverish human flourishing. In order to work effectively, property rights must free the property owner to pursue projects that others do not value. Property must honor and protect the freedom of the owner-sovereign to choose.

Alexander and Peňalver suppose that property must be either individualist or collectivist. They pose a dichotomy between allowing individuals to serve their own interests and authorizing the state to promote collective interests. This is a false dichotomy. Even as it enables pluralism, property-owner sovereignty serves a truly common good, which is reducible neither to individual interests nor to collective political decisions.

Notwithstanding the plurality of uses of property, private property serves common values. Even individual property owners can and do choose to use their property for the benefit not only of themselves but also of others. Children benefit from the property ownership of their parents. The destitute benefit from charitable gifts. Employees benefit from capital investments in the corporations that employ them.

Furthermore, not all property owners are individuals. News agencies, athletic clubs, neighborhood associations, churches, and unions own property. Schools, social clubs, charitable organizations, for-profit companies, and many other associations serve common goods through the responsible exercise of property rights. The principle of subsidiarity reminds us that these institutions and associations are often better equipped to promote human flourishing than are governments, especially central governments. The purpose of a community is to help its members to help themselves, in the words of John Finnis, “to constitute themselves” by choosing and realizing their common good. The process of decision-making should, for this reason, be closest to those who will carry out the decision. Centralized governments should not assume authority that can be exercised by more local associations.

So, robust property rights are not in tension with human flourishing; but one can claim even more. Strong protections for the rights of property owners actually promote human flourishing, especially virtue, in ways that state governance of assets cannot. (Leave aside the empirical question whether private property or state control better promotes the economic prosperity of the least well-off.) Property-owner sovereignty enables a significant exercise of virtue that state governance actually destroys. By using property to choose between equally reasonable options, a property owner in an important sense makes his or her own life, brings a new reality into being. He or she exercises free choice (what many people would call “personal autonomy”) to bring about a new state of affairs. This is a distinctly human achievement. Strong property protection secures the freedom to exercise free choice. State governance destroys it.

Because an owner’s decisions about property use generally rest upon pre-moral considerations, the owner’s sovereignty over assets epitomizes the exercise of free choice in its highest and best form. One might encumber one’s house with a second mortgage in order to remodel one’s kitchen and host more dinner parties, or one might assume a mortgage obligation in order to further one’s education. One can just as reasonably choose to devote one’s assets to being more hospitable as to acquiring knowledge. Given finite value in the house (in the current real estate market, this is not implausible), one cannot choose both. Neither, however, is per se unreasonable or immoral. In such cases, which comprise the overwhelming majority of choices about property use, it is the act of choosing that settles the question.

In a society such as ours, which values pluralism and choice, property is precisely the place to protect the freedom to choose, and that freedom secured within the property owner’s sovereign domain can be exercised for great good. It is true that this freedom can be abused, as in cases of conspicuous consumption, reckless gambling, or miserly hoarding, but these abuses are the exceptions that prove the rule. We recognize abuses of property rights as abuses precisely because we know what good property use looks like and see it so often practiced.

This suggests a reason why the Progressive Statement fails to persuade. Perhaps the authors of the Progressive Statement neglected to look around at their neighbors and observe how owner sovereignty is actually exercised. Had they done so, they would have recognized that millions of property owners daily exercise their property rights to promote the common good and should be trusted to do so in the future.


Adam MacLeod is an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law.

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It’s shocking, but incontrovertible. Two decades ago, Harvard economist Amartya Sen, in an arrestingly titled article, documented the statistical reality that “More Than 100 Million Women Are Missing.” In a recently published book, Unnatural Selection, journalist Mara Hvistendahl convincingly demonstrates that the overwhelming reason for the increasingly large demographic disparity in the male-female birth ratio is sex-selection abortion. Hvistendahl estimates the number of missing or dead now to be 160 million and counting. Women have abortions because (among other reasons) they are able to learn the sex of their unborn baby and kill her if she’s a girl.

The phenomenon is most pronounced in certain Asian populations where the birth of girls is especially discouraged, but is not limited to Asia. Hvistendahl shows that sex-selection is not culturally or uniquely Asian. Male-child preference exists everywhere. Sex-selection abortion rises as birth rates fall, as wealth increases (especially in developing nations), and as technology for identifying a child’s gender in utero becomes more reliable and more available.

Sex-selection abortion occurs in America, too, and the practice is likely to increase. In August, a study in the Journal of the American Medical Association reported that a simple blood test seven weeks into pregnancy can reliably identify the sex of the child. Watch for a spike in abortion rates over the next few years as parents find it easier and cheaper to “choose” to have a boy by killing the fetus if—in a bitter reversal of an expression of joy—“it’s a girl.”

The shocking reality of sex-selection abortion cries out for laws banning the practice. Polls have shown that about 95 percent of the American people oppose sex-selection abortion. Even those who style themselves “pro-choice” overwhelmingly agree that abortion should not be allowed when the reason for such a choice is that the child to be born is female. The most pernicious radical feminist argument for abortion rights—that abortion is essential for “gender equality”—doubles back on itself in the case of sex-selection abortion: if abortion on the basis of the sex of the child—killing girls because they are not boys—is not sex discrimination, it is hard to know what is. (Hvistendahl is, awkwardly, pro-choice, yet horrified by the consequences of “unnatural selection.”)

Four states—Illinois, Pennsylvania, Oklahoma, and most recently Arizona—have enacted laws prohibiting sex-selection abortion. Those laws have yet to be tested in the courts. At least seven other states have considered bills that would ban the practice. A sex-selection-ban bill was introduced in Congress in 2009—I worked with committee staff on the bill—but it died in the then Democrat-controlled House.

Are such bans constitutional under the Supreme Court’s decisions creating a right to abortion? The question such laws present is a dramatic one, challenging the underpinnings of Roe v. Wade in the most fundamental and direct of ways: Does the U.S. Constitution create a right to abortion, even when the woman’s reason for abortion is that she does not like the sex of her unborn child?

Sadly, the answer, under the Supreme Court’s absurd, through-the-looking-glass constitutional law of abortion, is yes. Under Roe and the Court’s 1992 decision in Planned Parenthood v. Casey, a woman has a constitutional right to abort for any reason up to the point of “viability,” when the child could live outside the mother’s womb. Even after viability, a woman may abort for any “health” reason, an exception that ends up swallowing the rule: the Court’s abortion decisions define “health” justifications for abortion to include any “emotional,” “psychological,” or “familial” reason for wanting an abortion.

A pregnant woman’s (or a couple’s) preference for a boy rather than a girl would seem to fit comfortably within the gaping loophole for “emotional” or “familial” reasons for abortion. Parents are thus free to choose to kill female human fetuses because they are female, even when the unborn child could live outside her mother’s womb. It thus appears that, under Roe and Casey, laws banning sex-selection abortions are unconstitutional through all nine months of pregnancy.

This, of course, is madness, and it highlights, in an especially persuasive way, the extreme madness of the Supreme Court’s current abortion doctrine. It exposes the grim legal reality that abortions may be had for any reason. It lays bare the doublespeak of “health” justifications for abortions, and it highlights the logical (and moral) incoherence of abortion-rights arguments predicated on notions of “women’s rights” or “equal protection”: a right to abortion, in the name of gender equality, ends up being a right to abort females.

The fact that laws banning sex-selection may fly in the face of the Roe and Casey decisions is no reason not to enact them. On the contrary, it is a powerful reason to enact them: the justices, and abortion supporters generally, ought to be forced to confront the uncomfortable reality of the Court’s abortion jurisprudence. Those who style themselves as “centrists” or “moderates” on abortion–such as those who claim to be “personally opposed but pro-choice” or who acquiesce to Roe’s abortion regime for some other political or social reason—need to understand precisely what such a position entails and the lethal logic of what they have agreed to accept.

This goes for Supreme Court justices, as well. Justice Anthony Kennedy, whose vote was pivotal to the 1992 Casey decision reaffirming Roe on grounds of stare decisis, professed himself shocked— shocked!—to discover a few years later that the logic of Casey yielded a constitutional right to partial-birth abortion. He had not realized that a plenary right to “choice” on abortion meant that a physician could induce labor, deliver an intact, living baby except for the head, puncture the child’s skull, vacuum out its contents, and then complete delivery. Kennedy found himself outvoted, 5–4, and thus dissented in the 2000 Stenberg v. Carhart decision, recognizing a constitutional right to partial-birth abortion. He wrote the majority opinion narrowly upholding the federal partial-birth abortion ban, 5–4, in Gonzales v. Carhart in 2007. (Alas, Kennedy reaffirmed the “health” exception and the Court only distinguished, and did not overrule, its earlier partial-birth ruling. In the end, Gonzales holds only that partial-birth abortion can be banned only if it is clear that an equally “safe” abortion is available by some other method.)

Being confronted with a harsh reality can change the minds of persons who have thought about a question only in abstract, arid terms. It is possible, then, that even a pro-abortion Court, confronted with a law banning sex-selection abortion, might recognize and retreat from the consequences of its own prior decisions. Enacting sex-selection bans, even if contrary to Roe and Casey, just might lead the Court to begin charting a path away from Roe.

A sex-selection ban would indeed present the Supreme Court with a dilemma. To strike down such a law—in essence, to embrace a constitutional right to sex-selection abortion—would expose just how extreme and immoral the Court’s present abortion doctrine really is. To read such a result in the name of “gender equality” would be monstrous and absurd. Such a ruling would undermine support both for Roe and for the Court as an institution as never before. (Concern for the Court’s own prestige and public support was, in fact, part of the reasoning in Casey for reaffirming Roe.) A sex-selection ban dares the pro-abortion justices to embrace an abortion right to kill girls for being girls. Such a ruling would expose the illegitimacy of the Court’s abortion decisions.

On the other hand, for the Court to uphold a ban on such abortions would require a concession with powerful symbolic consequences: the human fetus has a gender; and killing a living fetus on the basis of such a distinctive, personal, permanent feature of human identity is unthinkable, and may rightly be punished. Such a concession would undermine the moral and legal premises of the entire judicially created right to abortion. If abortion merely removes unwanted tissue, its gender does not matter. But if gender matters, it must be because the unborn living being in the womb is already a human child, not merely “potential” life. The issue of sex-selection abortion thus challenges the very “it”-ness of the living human embryo or fetus killed by abortion—the implicit non-humanity of the fetus that underlies most arguments for allowing abortion. It is a girl or a boy—a member of the human family, albeit an extremely vulnerable one, whose life hangs in the balance. Acknowledge the humanity of the fetus and the regime of Roe collapses.

It is unclear which horn of the dilemma the Court would choose today. Four justices (Roberts, Scalia, Thomas, and Alito) would almost certainly uphold a sex-selection ban. Indeed, they would probably all agree that Roe and Casey were wrongly decided, and could properly be overruled. Four justices (Ginsburg, Breyer, Sotomayor, and Kagan) would probably hold that Roe’s right of choice is inviolable and, yes, that abortion is allowable for any reason a woman chooses. Justice Ruth Bader Ginsburg has explicitly defended Roe’s result on “feminist” grounds of sex equality. It would be interesting, and revealing, to see if she would affirm an absolute constitutional right to abort female human fetuses because they are female, in the face of a state or a federal ban forbidding sex-discrimination abortions. Would the woman who built her fame as a crusader against gender discrimination end up embracing fetal gendercide?

That leaves Justice Kennedy, whose votes in abortion cases have reflected a wet-finger-to-the-wind approach driven by the desire to appear moderate, by extreme sensitivity to elite public opinion, and by a concern to preserve the Court’s political capital and prestige. He has voted, alternately, to replace Roe (in 1989), to reaffirm Roe on the basis of stare decisis (in 1992), to deny a right to partial-birth abortion (in 2000) and, most recently, to accept but cut back on such a right (in 2007). His vote, more than that of any other justice, will be susceptible to the political winds and attuned to a decision’s effect on public perceptions of the Court as an institution and of him personally. He might provide a fifth vote to uphold a ban on sex-selection abortion, but would be unlikely to support any full-scale reversal of Roe’s or Casey’s core premises.

The intellectual, constitutional, legal case against the legitimacy of Roe already has been won. Roe hangs on by the thread of stare decisis, which in turn is a function of a few justices’ perception of the need to adhere to a concededly indefensible precedent for essentially social and policy reasons rooted in believed public support for the outcome. Knock out the prop of public support, and Roe falls.

In making this specific issue, sex-selection abortion, the pressure point of political and legal debate, and of public discourse over the constitutional status of abortion rights, we can frame the discussion in terms most favorable to the pro-life stance, most persuasive to those who are undecided or uncommitted, and most uncomfortable for defenders of the extreme pro-abortion status quo. The result of any test case, down the road, very likely turns on whether President Obama has a chance to make further appointments to the Court.

This suggests yet another reason for pressing this issue in the form of a proposed federal law banning sex-selection abortion. Not just pro-choice justices, but also pro-choice politicians need to be confronted with, and called to account for, the lethal logic and terrible consequences of their support of Roe. President Obama, and pro-choice members of Congress and state legislatures, should be put to a straightforward test: Do you support or oppose a right to abortion for reasons of sex-selection? Should a woman have a constitutional right to abortion because “it’s a girl”? There is no better litmus test issue over life, and there is no better time for pressing such a challenge than during an election year.


Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (“PLACE”).

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Both the Civil Rights Act and the Americans with Disabilities Act contain statutory exemptions that allow religious institutions to engage in religious discrimination. A church or religious school may, for example, require all employees to sign a statement of faith or otherwise maintain fidelity to the religious tenets of the organization. But the statutes do not grant exemptions for other forms of prohibited discrimination based on race, sex, ethnicity, national origin, or disability. So what about a religious organization that, say, restricts the priesthood to males or requires rituals to be performed by people of a particular ethnic group?

For this, judges have crafted a First Amendment exception to general anti-discrimination laws, granting religious organizations broad discretion to staff “ministerial” positions based on whatever criteria they choose. The actual language of the First Amendment prohibits congressional legislation “respecting an establishment of religion or prohibiting the free exercise thereof,” and the judicially created “ministerial exception” to anti-discrimination statutes presumes that a law limiting a church’s discretion to hire ministers would be an affront to both sides of the establishment/free exercise coin. Immediately at issue in Hosanna-Tabor Lutheran Church and School v. EEOC is what counts as a “ministerial” position—and who gets to decide.

After Cheryl Perich took a medical leave of absence from her job as a teacher at a Lutheran elementary school in Redford, Michigan, there was a dispute over whether, and on what terms, she would return to work. When she threatened to sue the congregation under the Americans with Disabilities Act, the voting members of the church removed her for failing to follow accepted ecclesiastical procedures for internal dispute resolution. Federal law prohibits retaliatory firing for claims made under the ADA, and Perich insists the law applies to her because she was not employed in a ministerial role. The church claims otherwise, having long categorized Perich as a “commissioned minister.”

If the Supreme Court sides with Perich, it will essentially invite federal review of religious organizations’ own designations of ministerial offices. On what basis, then, might courts decide whether specific offices are sufficiently ministerial? Perich’s attorney suggested during oral arguments that the principal question should be whether a particular employee carries out “important secular functions in addition to her religious duties.” But, as Chief Justice John Roberts pointed out, that test is entirely unworkable. The Pope is a head of state with important secular duties. So, Roberts asked rhetorically, is he not a minister? To limit the exception to employees whose functions are entirely religious would be to make the exception meaningless. Sorting out the religious from the secular duties of church employees would also necessarily embroil courts in theological disputes, since various religious traditions differ in the ways they conceive the religious nature of particular offices and vocations.

Several groups have brought up an additionally thorny question of whether the decision to fire Perich was sufficiently “religious,” and an amicus brief signed by Americans United for Separation of Church and State and the American Civil Liberties Union suggests “courts can and should use their considerable experience in determining whether sincere religious views animated a litigant’s conduct.” If such groups have their way, federal courts will be in the business of weighing the sincerity of the religious motivations for the employment decisions of religious organizations.

An even worse outcome for religious liberty would be for the Court to drop the ministerial exception altogether and hold every employment decision—ministerial or not—subject to federal oversight. This would create an awkward and unprecedented commingling of government and religion, with federal courts essentially mediating ecclesiastical disputes regarding the fitness of individuals for positions of church leadership. While neither Perich nor the church has explicitly advocated abandoning the ministerial exception, other serious voices have.

One of those voices is that of the Obama Administration, whose Department of Justice filed an opposition brief encouraging the Court to reject the ministerial exception outright. During oral arguments, Acting Deputy Solicitor General Leondra Kruger insisted that the “insight of the ministerial exception” is merely that it will sometimes take an “extraordinarily compelling governmental interest” to justify interference with a religious organization. Churches and other religious groups, Kruger conceded, have certain associational rights under the First Amendment, but she provocatively claimed that the “basic contours of the inquiry” in religion cases were no different than in any other case involving associational rights. Kruger’s argument thus minimized the importance of the religion clauses of the First Amendment to the rights of religious organizations, and, as Justice Antonin Scalia maintained, the government’s contention here was “extraordinary.” Right “there, black on white in the text of the Constitution are special protections for religion,” Scalia noted. “And you say it makes no difference?”

The Obama Administration’s position may have been extraordinary, but it was not original. Soon after the Court agreed to hear the case, University of Houston law professors Leslie Griffin and Ronald Turner suggested “[r]eligions should not be authorized to create a zone of employment autonomy outside the review of the courts.” For support, Griffin and Turner appeal to the logic of Scalia’s opinion for the Court in Employment Division v. Smith (1990), a landmark case involving two private drug-rehab counselors who were denied unemployment benefits by the state of Oregon after they were fired for ingesting peyote as part of a religious ritual.

The Smith case would have been uncontroversial had the counselors been recreational drug users. Because their use of peyote was religiously motivated, however, they sought an exception to the generally applicable law. Scalia and the Court balked, arguing that creating a religious exception to every general statute would be tantamount to making “the professed doctrines of religious belief superior to the law of the land, and in effect to allow every citizen to become a law unto himself.” Just as individuals cannot claim a religious right to skirt laws banning polygamy, evade social security taxes, employ children as laborers, or avoid Sunday closing laws, they cannot claim a religious right to use an illicit drug.

Yet religious exceptions to generally applicable criminal laws that do not implicate other constitutional rights are conceptually different from religious exceptions to anti-discrimination statutes. As Scalia pointed out, Smith “had nothing to do” with church employment decisions, and although there may not be a constitutional right to use peyote—even for religious purposes—there is undoubtedly a strong constitutional basis for claiming independence in the matter of staffing a religious organization. If the First Amendment means anything, it means the government should not choose the officers of a church. But consider the following scenario: A local congregation runs a private, sectarian elementary school. The congregation considers some of its teachers to be “commissioned ministers” with religious vocations, and the authority to hire these teachers is given to the voting members of the church. After an internal dispute, the congregation votes to fire one of its teachers. The Equal Employment Opportunity Commission then files a complaint with a federal court, and the church is forced by the government to maintain on its payroll a minister whom it decided to fire.

This is precisely what is at stake in Hosanna-Tabor v. EEOC, and its importance is heightened because it is an issue of first impression for the Supreme Court. Although slippery slope arguments are not always sound, it is easy to see what will happen if the ministerial exception is weakened or abandoned. Religious organizations will become increasingly subject to anti-discrimination laws having to do with a host of categories hitherto unimagined, and the underlying religious motivations for staffing decisions will be subject to judicial interpretation and review.

“It may not be easy,” Madison acknowledged nearly a half-century after the adoption of the First Amendment, “in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points.” The decision to hire or fire clergy, however, is hardly an “unessential” point, and there should be no doubt that the First Amendment takes such decisions away from the civil authority.


Justin Dyer is an assistant professor of political science at the University of Missouri-Columbia and the editor of American Soul: The Contested Legacy of the Declaration of Independence (Rowman & Littlefield).

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Although that is not a great deal of time, it did allow us to dig deeper into the candidates’ understandings and convictions than is typical in presidential debates. We eschewed questions designed to make the interrogator look smart and the candidate look stupid. Our goal was not to embarrass anyone. By the same token, the candidates were informed that we would not accept stump speeches or talking points.

To their credit, the candidates took that warning to heart. And so we learned, and I believe those viewing the forum on CNN or at TownHall.com learned, quite a bit about how the candidates understand the principles at the foundation of our civilization and Constitution, and how each would honor those principles in addressing the daunting—in some cases unprecedented—challenges we as a people face today.

Senator DeMint, focusing on the national deficit, the debt crisis, and the poor performance of the economy under President Obama, pressed the candidates on their beliefs about the Constitution’s limitations on the scope, size, and intrusiveness of the federal government. Here we expected and found a large measure of agreement. All the candidates stressed the need to shrink the national government to bring it within its constitutional bounds and to eliminate burdensome levels of taxation and regulation that impede economic growth and large-scale job creation. We had hoped for some specifics—since it is easy to praise limited government as an abstract ideal, but difficult actually to name which agencies or programs would be abolished or trimmed—and we did manage to get a few.

Congressman King’s questions focused on what George H. W. Bush famously called “the vision thing.” The congressman asked, for example, “Is America still Ronald Reagan’s (and John Winthrop’s) ‘Shining City on a Hill’?” and “What is your view of the next stage in America’s destiny, and what is your plan for getting us there?” Again, there was wide agreement that America, as a beacon of freedom in the world, is a truly exceptional nation with a special destiny. There was also agreement that the fulfillment of that destiny depended on fidelity to the principles of limited government, the rule of law, individual liberty, civic virtue, the market economy, respect for the integrity of institutions of civil society, equality of opportunity, and personal responsibility.

When my turn came, I asked each candidate a question designed to elicit their reflections on three issues of critical concern to me and many of our fellow citizens: (1) our obligations to human life in the era of Roe v. Wade; (2) the relationship of federal to state power in our federalist system when it comes to protecting basic rights; and (3) the options available in the face of judicial edicts that violate constitutional principles, as the Roe decision infamously did, by usurping the authority of the people acting through their elected representatives.

Here is what one commentator referred to as my “electric question”:

Many believe that we need a constitutional amendment to overturn Roe v. Wade. However, Section Five of the Fourteenth Amendment expressly empowers the Congress, by appropriate legislation, to enforce the guarantees of due process and equal protection contained in the Amendment’s first section. As someone who believes in the inherent and equal dignity of all members of the human family, including the child in the womb, would you propose to Congress appropriate legislation, pursuant to the Fourteenth Amendment, to protect human life in all stages and conditions?

To the surprise of many, the first three candidates—Michele Bachmann, Herman Cain, and Newt Gingrich—all said “yes.” Ron Paul said “no.” And Mitt Romney said “no, but . . .”

Conservative blogger Jennifer Rubin was annoyed by my question and appalled by the affirmative answer given by Bachmann, Cain, and Gingrich. I had, she opined, sent the candidates off in pursuit of a “lark”—the idea that abortion could be restricted without the Supreme Court reversing itself on Roe v. Wade. Worse yet, I was inviting them to endorse “lawlessness”—and they foolishly accepted the invitation! She praised Romney—no mention of Paul—for being “adult” enough politely to decline to go along with so absurd and dangerous an idea.

Well, now, let’s look at what we have here.

Jennifer Rubin supposes that when the Supreme Court hands down a ruling, however lawless it may be, that ruling is now the law and, as such, binds the other branches of government. For the president and Congress to refuse to treat the Court’s Diktat as controlling their actions would be unconstitutional and thus lawless. This view, known as judicial supremacy, is nicely described by one of its most notable critics, constitutional law scholar Gerard V. Bradley:

If the Supreme Court says that the Constitution requires this, that, or the other thing (perhaps having discovered it lurking in “penumbras formed by emanations”), then, damn it, that’s what the Constitution requires, and short of a constitutional amendment or the Court reversing itself there is, in all instances, nothing anyone can do.

Jennifer Rubin is hardly alone in endorsing (or simply assuming the unquestionable validity of) judicial supremacy. It is a view widely held these days, especially among defenders of liberal judicial activism (Rubin herself is not one of those, by the way), but it was not the view of the American founders or of Lincoln. And, as Professor Bradley has observed, that should count pretty heavily in favor both of my question and an affirmative answer to it in a presidential forum devoted to exploring America’s founding principles.

Nothing in the Constitution itself confers upon the Supreme Court supremacy in constitutional interpretation. Even those founders, such as Hamilton, who interpreted the document as implying a power of judicial review (the Constitution does not expressly confer such a power) did not interpret that power as establishing the supremacy of the judicial branch over the others. Nor is judicial supremacy consistent with the structure or logic of the system of government established by the Constitution. It is true that under Article III of the Constitution the Supreme Court is supreme over the “inferior” federal courts, but that does not mean that its usurpations of the powers assigned by the Constitution to the other branches of government, when they occur, must be treated by the president and Congress as beyond challenge.

As I pointed out at the Palmetto Forum, Abraham Lincoln could not have been clearer in his rejection of judicial supremacy or more forceful in his denunciation of it as a mortal threat to republican government—government by and for the people, the type of government for which Lincoln was willing to fight a bloody civil war. The issue presented itself in his era in the context of a decision remarkably like Roe v. Wade. That was the Supreme Court’s ruling in the case of Dred Scott v. Sandford, denying the authority of Congress to restrict slavery in the federal territories and depriving blacks, even free blacks, of the rights of citizenship. Like Roe, Dred Scott was a case of extravagant judicial overreaching. It lacked any basis in the text, logic, or original understanding of the Constitution. It was a gross usurpation of the power of the people acting through their elected representatives in Congress.

In his First Inaugural Address, with the threat of Southern secession and civil war looming, Lincoln went out of his way to confront the Supreme Court on the issue:

[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their Government, into the hands of that eminent tribunal.

True to his words, Lincoln as president refused to treat the Court’s holding in Dred Scott as binding on him or the Congress, and he supported legislation (which was enacted) and took executive actions that directly contravened the holding. (Bizarrely, Jennifer Rubin seems to suggest that Lincoln’s statements regarding Dred Scott were somehow meant to placate the South and make secession less likely. This is the reverse of the truth. They were words that Lincoln, in fidelity to constitutional principles, felt he needed to speak, despite the fact that they would further enflame the South.)

Did Lincoln believe he was acting lawlessly? Did the American people believe he was acting lawlessly? Well, Lincoln certainly had his critics, and they accused him of all sorts of things, including tyranny, but few regarded his rejection of judicial supremacy as constituting lawlessness. That is scarcely surprising, for the Great Emancipator was merely echoing the author of the Declaration of Independence, Thomas Jefferson, who warned that the acceptance of judicial supremacy would place the nation “under the despotism of an oligarchy.” The ascendancy of judicial supremacy had to await the twentieth century; indeed, the Supreme Court itself did not get round to endorsing the idea until 1958 in the case of Cooper v. Aaron (a point noted by Newt Gingrich, who holds a Ph.D. in history, at the Palmetto Forum). Even now there are Supreme Court justices who reject it, precisely because it is inconsistent with the original understanding of the Constitution and the system of government it established.

Ron Paul responded to my question not by embracing judicial supremacy, but by denying that the 14^th Amendment authorizes Congress to legislate to protect the unborn. Interestingly, Paul himself has a perfect pro-life voting record—in Congress. In his view, however, the abortion question is one that the Constitution leaves ultimately to the individual states, not the national government.

In his exchange with me, Congressman Paul argued that reading the 14^th Amendment broadly enough to empower Congress to protect the unborn would be inconsistent with the 10^th Amendment—the constitutional provision reminding us that powers not delegated by the Constitution to the federal government are reserved to the states and the people. But the Constitution, in its 14^th Amendment, plainly does delegate to Congress power to enforce its guarantees of due process and equal protection. Congressman Paul, like the other Republican candidates, believes that the unborn, no less than those human beings at later developmental stages, are members of the human family—in other words, persons—entitled to the same protections as others. And he is right to believe it.

Governor Romney offered a nuanced answer to my question. He declined to commit to proposing legislation that would directly challenge Roe v. Wade, saying that to do so would provoke a constitutional crisis. At the same time, he carefully avoided endorsing judicial supremacy. He addressed the question as a matter of prudence, not of constitutional principle. He did not say, as Rubin later would, that legislation defying Roe would be “lawless.” Indeed, he said that he could not rule out the idea that a time would come when direct defiance of a lawless Supreme Court decision would be justified and necessary. He argued, however, that Roe could be handled by appointing constitutionalist judges who recognize it as a constitutional error and would reverse it. He pledged to appoint such justices.

In my own view, Romney is correct to say that Congress and the president should exercise prudence in deciding whether and, if so, when and how to challenge a lawless and usurpative Supreme Court ruling. In the case of Roe, this is a difficult issue—which is part of why I asked the question. For what it is worth, my own view of the prudence of the matter differs from the governor’s. So, for example, I thought it was right for Congress to enact a prohibition on partial-birth abortion, despite the fact that the Supreme Court had previously struck down such a prohibition as inconsistent with Roe v. Wade. (On the second try, as it happens, the Court—wiser in virtue of the addition of Associate Justice Sam Alito—upheld the prohibition.) In any event, I thought it important for the American people to have an opportunity to assess the ways in which those aspiring to govern think prudentially about how to vindicate core principles when they have been neglected or dishonored.

Like Congressman Paul, Governor Romney took the position that the protection of the unborn is ultimately a state responsibility. So, after the Court reverses Roe v. Wade, as he hopes it will, he would leave the issue in the hands of the states. Of course, that leaves the question of whether Congress should step in, pursuant to the Fourteenth Amendment, to protect the unborn in the event that some states decline to fulfill their responsibility to do so. Unfortunately, there was not time to explore this question with the Governor.


Robert P. George is McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. He is founder of the American Principles Project, which sponsored the Palmetto Freedom Forum. This essay is the conclusion to the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond” 
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to Its Survival” 
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery” 
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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On September 18, 2001, Congress enacted into law, and President George W. Bush signed, what is arguably the broadest declaration of war in our nation’s history. “Whereas on September 11, 2001, acts of treacherous violence were committed against the United States,” begins the Authorization for Use of Military Force (AUMF),

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

Constitutionally, the 9-18-01 Act is a Declaration of War. Congress, not the President, has the power “to declare war,” the result of a deliberate decision by the framers of the Constitution to transfer the traditional war-initiating executive power of a king to a representative, republican legislature. The President, the framers determined, should have only the power to counter attacks on the nation—to repel and respond—but not to initiate war on his own. The President, as Commander-in-Chief, would have complete military authority to conduct war, once declared: he, and not Congress, makes the decisions as to how to wage war, including all matters of military engagement, strategy, tactics, rules of engagement, diplomacy, armistice, foreign relations with allies and adversaries, and policies toward captured enemies (including detention, interrogation, and military punishment—the subjects of so much friction in recent years). The framers’ division was clear: Congress declares wars; the President fights and concludes them.

Congress’s power to declare war does not require the use of magic words. Congress need not say “declare” and it need not say “war,” and there may be practical and diplomatic reasons to couch a war declaration in terms more congenial to the regime of “international law,” which favors the language of individual and collective self-defense over the old-fashioned, indecorous language of war. But war it is. More to the point, constitutionally, the 9-18-01 Authorization for Use of Military Force is an exercise of Congress’s legislative power “to declare war.”

The AUMF is remarkable, even stunning, in its sweep. It accounts for and justifies nearly every military action in which the United States has engaged in the past ten years in fighting the war on terror. (Iraq was the subject of a separate, overlapping war-authorization. U.S. military action in Libya, as I will discuss, is not justified by the AUMF and is probably best classified as an unconstitutional war.)

Consider the AUMF’s expansive language. Congress declared war against not only enemy nations—the traditional form of a war-declaration—but also against organizations and persons. The sole condition is that “the President determines” that a nation, organization or person is connected, in any of a number of ways, to the attacks of September 11, 2001. This includes “harboring” any person or organization who the President determines “planned, authorized,” or—the most open-ended term—even “aided” the 9-11 attacks. Combining the links in the chain of legal authorization opened up by the AUMF, the declaration of war reaches any person, organization, or nation connected in a supportive or protective (harboring) fashion, directly or indirectly, with the persons, organizations, or nations responsible for 9-11. It is a war on a network, or web, of interconnected, supportive persons, groups, and nations. It is a war on al Qaeda and its allies and affiliates and on any and all nations and groups that support them.

The only limitation is that the President must make the determination, presumably in good faith, that the connection is real and sufficient. But by the AUMF’s own terms, it is the President’s determination to make. He picks the targets; he judges the degree of connection to 9-11; he thus determines the enemies; he chooses the timing of attacks; he chooses the means of attack and defense; he decides what force is necessary, or appropriate; he chooses the ends and when they have been attained; he decides when there are no longer any relevant persons, groups, or nations that fit the described authorization. There is no prescribed time limitation or geographical limitation. It is, potentially, a world war of unlimited duration. As long as there are relevant targets and enemies; as long as the President considers the use of force against them “necessary and appropriate” to “prevent any future acts of international terrorism against the United States by such nations, organizations, or persons,” the President has authority to act.

Congress could repeal the AUMF, or cut off war funds, but short of thus effectively rescinding its declaration of war, the decisions all lie in the hands of the President as Commander in Chief. This fits well with the framers’ view that it is not Congress that conducts the nation’s wars; it is the President. But it is nonetheless the case that the AUMF is an extraordinary delegation of war-making power to the President. Congress declared, ten years ago, an enormous war, the exact bounds of which are to be determined by the Commander in Chief—indeed, perhaps an extended succession of Commanders in Chief.

This delegation of presidential power is expanded even more by the last of the AUMF’s “whereas” clauses. “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States,” it reads (emphasis added). This is, perhaps, not itself a further grant of power, but it is notable that Congress declared its acceptance, in general, of the idea of unilateral presidential military action to deter and prevent terrorism, and located such acceptance in Congress’s view of the Constitution. The AUMF passed unanimously (98-0) in the Senate and by vote of 420-1 in the House.

The attitude, in addition to the scope of authorization, reflected in the AUMF is light-years away from the posture of the War Powers Resolution of 1973, a late Vietnam-era act attempting to cabin presidential military power that has proved a friction point between presidents and congresses ever since. The War Powers Resolution attempted to thwart unilateral presidential decisions to use military force outside of the legitimate power to repel or respond to attacks on the nation, its armed forces, or its citizens. The War Powers Resolution insists that such actions require congressional authorization.

The AUMF did not repeal the War Powers Resolution, noting that the 9-18-01 Authorization was completely consistent with the Resolution. Yet the AUMF reflects a very different worldview than the War Powers Resolution does, one where unilateral presidential action to deter and prevent terrorism is presumptively legitimate, not illegitimate, in Congress’s eyes.

It is an interesting, but academic, question whether the September 18, 2001 Authorization for Use of Military Force would have been sufficient to justify the war in Iraq. Debates have raged for years over whether the war was justified, and the arguments have often centered on whether the connections between Saddam Hussein’s regime and al Qaeda were sufficient to warrant the conclusion of assistance, support, or harboring. Constitutionally it does not matter, because Congress separately authorized the war in Iraq, in the Authorization of Military Force Against Iraq Resolution of 2002.

But the broader war on al Qaeda and its affiliates and harboring states—in the Middle East, in the Arabian Peninsula, in South Asia—is clearly within the scope of the AUMF’s authorization. The United States is at war with a network and all persons and organizations within it. Interestingly, the New York Times recently reported an internal administration dispute over the scope of the power to wage war against foot soldiers supporting al Qaeda aims in the Gulf of Aden. The Obama State Department, at odds with the Pentagon, wishes to construe such authority narrowly, so as to avoid potential conflicts with the international law of war. But does the regime of “international law” legally constrain the U.S. constitutional power to wage war?

As a matter of constitutional law, it does not. While “international law” may function as an important political, diplomatic, and policy constraint on the conduct of U.S. foreign policy (including war), it never trumps the Constitution. As a matter of U.S. law, international law never constrains the exercise of legitimate constitutional powers by the three branches of U.S. government. No treaty or international law norm can give away the U.S. government’s constitutional powers to act—at least not constitutionally. Constitutionally, then, international law cannot limit the force and breadth of the Authorization to Use Military Force. The President’s Commander in Chief Clause power gives him the authority to exercise his power to wage an authorized war as he thinks best—including taking into account international law norms, if he thinks that in the best interests of the nation. But under the Constitution, the Constitution prevails over international law, at least as far as the United States is concerned. The President’s sworn oath is to the Constitution, not to the regime of international law.

For a president to subordinate the Constitution, and the interests of the United States, to the perceived legal imperatives of international law, or to any other foreign legal regime, would be a violation of his sworn oath. International law is thus not a true legal constraint on the U.S. war power, but only a policy concern as an aspect of the President’s power to conduct the nation’s foreign policy. As a matter of U.S. law, it seems clear that the AUMF authorizes military action against any person, organization, or nation acting in league with the al Qaeda network—no matter how international law or some foreign organization or entity may view the matter.

It works the other way around, too. Just as international law may not constrain Congress’s power to declare war, international law may not substitute for Congress’s power to declare war, as a matter of U.S. constitutional law. Thus, U.N. authorization, or a NATO collective decision, to use force cannot constitutionally eviscerate Congress’s sole authority to decide whether the nation will enter into a condition of war with another nation or entity.

Which brings us, finally, to Libya. Notwithstanding the Obama administration’s literally unbelievable protestations to the contrary, there is no denying that the U.S. military action against the Qaddafi regime in Libya—sustained bombing and air support missions, over an extended period of time—is the waging of war in the constitutional sense of the term. Yet, unlike military actions world-wide in the war on terror, it is hard to justify the war in Libya as falling within the terms of the AUMF (and the Obama administration has made no effort to do so): no serious argument has been made that Libya supported or harbored persons or groups involved in the September 11 attacks. Nor did Congress separately authorize the war on Libya, as it did with Iraq. And there is no plausible argument that our action fell within the President’s power to defend the nation against attacks. To put it bluntly: The Libyan war is unconstitutional. The fact that our military action may (or may not) be justified as a matter of international law is irrelevant to this fundamental proposition concerning our nation’s constitutional law.

This does not make America’s military action against Libya wrong or bad. It merely makes it unconstitutional, which is not at all the same thing. The war in Libya may well be a “good,” morally justified war, just as other seemingly unconstitutional wars of America’s past—Korea, Kosovo, and arguably several others—may have been “good” wars. But it is at least ironic (and at worst ridiculous) that an administration so concerned with straining legal gnats in conducting the war on terror should swallow the camel of a constitutionally illegal war in Libya.

A final irony: The AUMF was in large part the work of Bush administration lawyers, including those who sometimes asserted—in my view, incorrectly—that presidential war power does not require congressional authorization pursuant to the Constitution’s grant to Congress of the power “to declare war.” While the Bush administration may sometimes have taken this position in legal memoranda, the wars it actually waged—against al Qaeda, in Afghanistan and elsewhere, and against Saddam Hussein in Iraq—all complied with the more traditional view that Congress must authorize the use of significant offensive military force against an enemy. In part, this was made possible by the sheer breadth of the terms in which the AUMF is cast. In contrast, the Obama administration purports to adhere to the view that only Congress can initiate war, but has honored that principle in the breach.


Michael Stokes Paulsen is University Chair & Professor of Law at the University of St. Thomas, in Minneapolis. He is co-author of the recent casebook The Constitution of the United States. Ideas in this article are expanded in “The War Power,” 33 Harvard Journal of Law & Public Policy 113 (2010) and “The Constitutional Power to Interpret International Law,” 118 Yale Law Journal 1762 (2009).

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Boy, did it succeed.

Sen. Jim DeMint of South Carolina, Congressman Steve King of Iowa, and the founder of the American Principles Project, Princeton Professor Robert George, asked the questions. (Full disclosure: Professor George is also the founding chairman of the National Organization for Marriage, which I co-founded).

Five major GOP candidates stood nakedly on the stage, taking deep questions about constitutional principles—without a podium or a reporter in sight—for 20 minutes.

Strong, new, and newsworthy commitments emerged from almost all of the candidates on social issues, aka “civil rights.”

For the first time, presidential candidates were asked: Does the 14th Amendment’s guarantee of equal protection apply to unborn human beings, and if so, doesn’t Congress have express constitutional authority to enforce this guarantee?

(Herman Cain told me afterward that this was the one question that surprised him.)

Michele Bachmann opened ground on the life issue by saying “yes,” while Mitt Romney showed he understood George’s question by saying he would decline to create a “constitutional crisis” over the issue by confronting the court and instead would pledge to appoint justices who would interpret the Constitution correctly.

Ron Paul retreated to his Maginot Line of “states rights.” Murder, he points out, is a state issue and so should abortion be. Well, yes, pointed out George, unless and until some state decides to deprive a whole class of human beings of the protection of their lives, in which case the 14th Amendment expressly authorizes Congress (not the courts) to step in to remedy this gross violation of civil rights.

Also newsworthy: For the first time, all the major contenders (except Texas Gov. Rick Perry) have pledged to nominate a vice presidential candidate who supports life and marriage. Romney at first left himself some wiggle room, but in the end firmly committed to a pro-life, pro-marriage veep: “These are important enough issues that the person I select would share my views,” he promised.

And for the first time, major presidential candidates committed to protecting people and religious organizations in danger of being excluded from the public square because they do not support gay marriage or gay adoption.

George raised the issue of Catholic and Protestant adoption and foster care agencies in Illinois that are being excluded from participating in helping children because they do not place children with same-sex couples in civil unions.

Romney lived through this kind of thing in Massachusetts, where he was one of the few public voices standing up for Catholic Charities’ rights to help orphaned and abused children—and he was eloquent about the principles involved:

“I believe in religious tolerance and religious liberty,” Romney said. “That means, to me, we are not going to force people of faith to violate their faith in order to practice their professions … I’m not one of those who says get rid of the conscience protections,” thereby forcing people to do things that violate their faith.

Romney went on: “I would say in Massachusetts, about half of adoptions were being placed by Catholic Charities. And they were excluded because they would not place children in homes with same-sex couples. That’s a mistake; we should permit people to apply their faith,” especially when there are many other agencies who can deliver services.

Two people were missing in Columbia: Perry, who was drawn away by the urgent wildfires spreading across Texas, and former Sen. Rick Santorum of Pennsylvania.

As arguably one of the more principled conservatives in the race, I missed hearing what Santorum could have added to the debate over the powers of Congress under the 14th Amendment to guarantee equal protection to unborn human beings.

But thanks to the APP Palmetto Freedom Forum, he, like Michele Bachmann, has an opportunity to pick up the 14th Amendment gauntlet Mitt Romney deemed too hot to handle.

Maggie Gallagher is a co-founder of the National Organization for Marriage and host of The Maggie Report (www.maggiereport.com).

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The Department of Justice also plays significant roles on constitutional issues. Among other things, DOJ decides whether and how to defend federal laws against constitutional challenge, and it advises the president on constitutional issues and the selection of Supreme Court justices and lower-court nominees. A presidential candidate’s vision of how DOJ would operate under his direction provides valuable insights.

As conservatives begin sorting through the field of Republican presidential candidates, I offer here five pieces of advice that I believe ought to guide the candidates in forming their positions on selecting Supreme Court justices and directing the Department of Justice.

1. Recognize that the battle over the proper role of the Supreme Court is a political winner for conservatives.

As this mock memo by a former Obama DOJ judge-picker nicely illustrates, liberals lament that “conservatives have succeeded in defining the debate [over judges]: a judge is either a judicial activist or a conservative.” Conservative discourse about the proper role of judges has “tremendous public appeal,” whereas a nominee’s candid embrace of liberal “living Constitution” rhetoric will seriously jeopardize his nomination.

This political triumph of judicial conservatism explains, for example, why then-Supreme Court nominee Sonia Sotomayor, to the disgust of many on the Left, tried to disguise herself as a judicial conservative during her confirmation hearing.

Although the Left consoles itself with the notion that its problem lies in its messaging rather than in the substance of its positions, the reality is that conservative discourse is succeeding on its merits. As large swaths of the American public (especially those not suffering from the detriment of a modern legal miseducation) understand, the Constitution, within broad bounds, creates a system of representative government in which most issues, large and small, are left to American citizens to work out through their legislators at the state and national levels. To be sure, the judiciary has an essential role in enforcing those rights, and limits on governmental power, that are in the Constitution. But the unconstrained role of the judiciary that the Left advocates cannot be reconciled with core American principles.

The compelling common-sense appeal of originalism has so devastated proponents of the “living Constitution” that they have largely abandoned the term and have tried instead to rebrand their freewheeling approach or even to recast themselves as originalists. The rhetorical triumph of judicial restraint over liberal judicial activism has likewise led many liberals to reposition themselves opportunistically as champions of judicial restraint (and to charge conservative justices with the sin of activism). And Chief Justice Roberts’s umpire analogy in defense of judicial impartiality has so routed President Obama’s notoriously lawless empathy standard that Obama’s own Supreme Court nominees have repudiated that standard.

Among the positions embraced by the Left that are politically toxic is its unprincipled resort to contemporary foreign and international legal materials to redefine the meaning of provisions of our Constitution. That position is part of the Left’s broader transnationalist project to deprive American citizens of their powers of representative government by selectively imposing on them the favored policies of foreign and international elites. Sotomayor’s brazenly deceptive testimony is but the starkest of many efforts by Obama nominees to conceal their positions on this issue.

2. Make selection and confirmation of high-quality justices a top priority.

A Republican president elected in 2012 should be emboldened by the political triumph of judicial conservatism, especially if (as would be likely in the event of a Republican presidential victory) Republicans regain control of the Senate. Senate Democrats may well threaten to filibuster any conservative Supreme Court nominee. But if the White House genuinely has the will to wage a vigorous and extended campaign on behalf of a high-quality nominee, it should be able to defeat a filibuster.

Do not underestimate the danger, however, that timid political advisers to the president will try to avoid a fight in order to preserve capital for other battles. Any “compromise” candidate who would be acceptable to leading Senate Democrats would be a rank surrender. To avoid being undermined from within, the president needs to make clear from the outset that filling Supreme Court vacancies with outstanding conservative justices is one of his three or four highest priorities.

Methods of judicial appointment and configurations of party power vary considerably from state to state, but any Republican presidential candidate who has made judicial appointments as governor should be expected to show how his record indicates that he would fight hard as president to appoint high-quality Supreme Court justices.

3. Frame the argument for why the constitutional authority to make abortion policy should be restored to the democratic processes.

If a Republican president elected in 2012 has the opportunity to replace Justice Ginsburg (now 78), Justice Kennedy (75), or Justice Breyer (73) with an excellent conservative justice, there is a genuine prospect that the Court would have the five votes needed to overturn Roe v. Wade and restore abortion policy to its proper place in the democratic processes in the states. Given nearly four decades of pervasive media misrepresentations of what Roe held and what overturning it would mean, it is not surprising that many people initially are hostile to its being overturned. But there is ample reason to believe that some elementary education on the matter would dramatically increase public support for overturning Roe.

This is not an issue that Republican presidential candidates can duck. Nor, given the striking increase in pro-life sentiment, should they want to. They instead need to seize the opportunity to frame the issue in a manner that has broad appeal to Americans with diverse positions on abortion policy:

• They should educate the public that Roe imposes a radical regime of unrestricted abortion, for any reason, all the way up to viability—and, under the predominant reading of obtuse language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth.

• They should explain how Roe has poisoned American politics and culture for nearly four decades by preventing Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing their respective states.

• They should discuss how Roe’s manifest defects have been harshly criticized even by abortion supporters (see point 2 of my 2005 Senate testimony).

• They should point out that Roe has fueled endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, that seek to ensure informed consent and parental involvement for minors and bar atrocities like partial-birth abortion.

4. Strongly support the Defense of Marriage Act and oppose same-sex marriage.

The Obama administration’s sabotage and, more recently, formal abandonment of its duty to defend the federal Defense of Marriage Act reflects a sharp and shameful departure from the DOJ’s traditional practices. Republican presidential candidates should declare that their DOJ will vigorously defend DOMA and will intervene in other litigation to oppose the judicial invention of a federal constitutional right to same-sex marriage.

DOMA was approved by overwhelming majorities in both Houses of Congress in 1996 and was signed into law by President Clinton. DOMA’s broad bipartisan support—including from liberal Democrats like Joe Biden, Patrick Leahy, Charles Schumer, and Dick Durbin—refutes the empty revisionist claim that DOMA somehow embodies an irrational bigotry against same-sex couples.

DOMA does two things. First, it reaffirms the historic understanding of what the term “marriage” means in provisions of federal law—the legal union of a man and a woman as husband and wife. It is a profound confusion to argue, as some do, that values of federalism somehow require the federal government to accept any state’s redefinition of marriage in determining what “marriage” means in provisions of federal law.

Second, in a genuine protection of values of federalism, DOMA safeguards the prerogatives of each state to choose not to treat as a marriage a same-sex union recognized in another state. It thus helps ensure that one state does not effectively impose same-sex marriage on another state. At the same time, it leaves the citizens of every state free to decide whether or not to redefine their marriage laws.

Beyond defending DOMA, a president should declare his support for a federal marriage amendment that would preserve—and, for some states, restore—the traditional definition of marriage in the states.

Our predecessors understood what too many Americans today have forgotten or never learned—namely, that the marriage practices a society endorses have real-world consequences that extend far beyond the individuals who seek to marry, and that strengthen or undermine the broader culture. That understanding of marriage underlay the 19th-century effort to combat polygamy, which was regarded as inimical to democracy. That is why Congress, in its separate enabling acts for the admission of several states, conditioned their admission on each state’s inclusion of anti-polygamy provisions in its constitution. That history disproves the claim that how states define marriage has been a matter left entirely to the states.

The acceptance of same-sex marriage would permanently sever the inherent link between marriage and responsible procreation and child-rearing. The more confusion there is about the mission of marriage, the less effective marriage will be in accomplishing its mission. And the countless millions of victims of a collapsed marriage culture—children born into unstable or nonexistent families—will continue to pile up, with all the attendant disastrous social consequences.

5. Select White House advisers and DOJ leaders who embrace your goals and priorities.

Personnel is indeed policy. It is essential that a Republican president select senior White House advisers (including chief of staff and White House counsel) and leaders for the DOJ—especially for the positions of Attorney General and Solicitor General—who are deeply committed to his goals and priorities on selection of Supreme Court justices and on the operation of DOJ.

*  *  *

By his oath of office, the president commits that he “will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States.” What a president means by this oath depends on his own understanding of what the Constitution means. In setting forth their positions on selecting Supreme Court justices and directing the DOJ, the Republican presidential candidates can offer valuable insights into how well they understand the Constitution and how well-prepared they are to exercise presidential authority.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to National Review Online’s Bench Memos blog on constitutional law and judicial nominations. This essay is part of the 2012 Election Symposium. Read all of the entries here:

• Ryan T. Anderson, “Liberty, Justice, and the Common Good:
  Political Principles for 2012 and Beyond”
   
• O. Carter Snead, “Protect the Weak and Vulnerable:
  The Primacy of the Life Issue”
• Maggie Gallagher, “Defend Marriage: Moms and Dads Matter”
• Samuel Gregg, “Fix America’s Economy:
  Two Principles for Reform”
• Ed Whelan, “Defend Our Laws: Justice Matters”
• Helen Alvaré, “Uphold Conscience Protection:
  Religious Freedom’s Contribution to the American
  Experience and Threats to its Survival”
   
• Jennifer Bryson, “Promote Democracy:
  Start at Home but Don’t Stay at Home”
• Yuval Levin, “Heal the Sick and Reduce the Debt:
  The Moral Economy of the Healthcare Debate”
• Jane Robbins, “Empower Parents:
  Return Educational Policy to the States”
• Patrick Trueman, “End Child Pornography:
  Enforce Adult Pornography Laws”
• Laura Lederer, “End Human Trafficking:
  A Contemporary Slavery”
   
• Robert P. George, “Reflections of a Questioner:
  The Palmetto Freedom Forum Revisited”

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Copyright 2011 the Witherspoon Institute. All rights reserved.

This observation, of course, does not itself obviate the call for a balanced budget amendment, nor does it demonstrate that those who want it are not true disciples of the Founding. It is possible that circumstances have changed and that a balanced budget amendment is now necessary to realize those basic principles, such as limited government, to which the Founders were committed. Nevertheless, for those who respect the Founding and seek to be guided by it, the fact that such an amendment would take away or restrict a federal power that the Founders thought necessary should be a cause for hesitation and further reflection. Before deciding to support a balanced budget amendment, we ought to ask: why did the Founders empower the government to borrow?

Here we might turn with particular profit to that Founder most associated with the establishment of America’s public finances, the first Secretary of the Treasury, Alexander Hamilton. Upon taking office, Hamilton was confronted with an infant republic, saddled with considerable debt from the revolution and far behind in its repayment obligations. In late 1789, the House of Representatives charged him with devising a plan to put the nation’s finances back on a sound footing, and he responded with his masterly and much-admired Report on Public Credit; Congress subsequently adopted its recommendations. While the Report’s primary purpose was to provide a financial plan, Hamilton, seeking perhaps to educate public opinion and influence the views of legislators, opened the Report with some general reflections on the importance of public credit. It is here that we might gain some insights to enlighten the contemporary debate on the balanced budget amendment.

What, then, would Hamilton think about the balanced budget amendment? I think it is fair to say, on the basis of the Report on Public Credit, that he would not have approved of it. I do not intend here, however, merely to appeal to Hamilton’s authority. The Hamiltonian arguments for public credit have a force of their own, because they are based on the common experience of nations and on the wisdom of America’s founding principles themselves.

Before bringing to light the incompatibility of a balanced budget amendment with Hamilton’s arguments in the Report on Public Credit, it is worth noting that this incompatibility does not in any way suggest that Hamilton would approve, on the other hand, contemporary liberals’ approach to public borrowing. In the Report, Hamilton contends that public borrowing is to be undertaken to meet certain “exigencies” or “emergencies” that inevitably arise in the life of nations—exigencies including, but not limited to, war. Hamilton’s critics at the time regarded him as too complacent about public debt, but his position is certainly a far cry from the present liberal tendency to use public borrowing as an ordinary tool of policy, to be employed on a continual basis to fund government expenditures that are perfectly predictable. Indeed, Hamilton concludes his Report by admonishing those who think that a “public debt is a public blessing,” and claiming that it is only so if the debt is accompanied by means to extinguish it. Hamilton’s argument, then, does not point to a continually growing public debt. Indeed, he warns that a nation that finds itself more and more in debt over time will be imperiling the pubic credit and thus, by inviting higher interest rates, impairing the nation’s ability to borrow advantageously when genuine necessities arise. In this light, we can see that Hamilton’s arguments predict the kind of difficulty into which many Western governments have gotten themselves through undisciplined borrowing.

Why, then, do Hamilton’s principles seem to condemn a balanced budget amendment to the Constitution? Though Hamilton claims that public borrowing should be undertaken in response to unforeseeable “exigencies” or “emergencies,” he nevertheless claims that public borrowing is a “necessity.” This is the case because, while the exact nature of such exigencies cannot be known in advance, we can know, with great confidence, that they will arise, in one shape or another, and that they will overtax the ordinary revenues of the government. We know this, he indicates, from the experience of nations. Even the wealthiest of them find themselves, at times, in need of credit, especially in times of war. Here, again, is food for thought for the present proponents of a balanced budget amendment. Most of them regard themselves as conservatives. Conservatism, however, involves respect for what experience has to teach about politics, and as Hamilton observes—and he is surely correct—recurrence to public borrowing is an almost universal practice of modern states, a fact that should suggest, to conservatives at least, that the practice is to be disciplined by prudent governance but not forbidden by the nation’s fundamental law.

To this, the proponents of the balanced budget amendment might respond that it can be crafted in such a way as to allow for public borrowing in cases of war or crisis. As a matter of fact, such an exception is currently being discussed as part of any balanced budget amendment. Such an exception, however, would not solve the problem. Depending on how it were framed, it would accomplish either too much or too little. On the one hand, it would surely be foolhardy to write the amendment in such a way as to allow public borrowing only in cases of war, because it does not take too much imagination to summon to mind many potential crises short of war that might be addressed best through public borrowing. Hamilton spoke of public credit as a necessity in relation not only to war but also to other exigencies that might require the government quickly to raise a lot of money. Such exigencies are no less probable today than they were at the time of the Founding. To take two obvious examples: a violent natural disaster or a widespread epidemic might cause terrible damage to the nation unless met with a quick public response. Yet government might not be able to raise the necessary funds in a short amount of time in the absence of a power to borrow.

Moreover, an inability to borrow would not only hamstring the government in responding to grave public evils; it might also prevent the government from seizing positive opportunities that could produce public benefits for generations. America might, at some point, have a chance to purchase some valuable new territory, perhaps rich in natural resources, that will enhance the nation’s prosperity. Such a purchase, however, might require an immediate transfer of money that would be impossible without the ability to borrow.

One could, of course, try to avoid all of these problems by framing the necessary exception broadly enough in the language of a balanced budget amendment. The amendment might, for example, allow public borrowing not only in cases of war but also in cases of public crisis. But if a narrowly drawn exception accomplishes too much by preventing borrowing when it is really needed, a broadly drawn exception would accomplish too little and would, in fact, make the amendment useless for all practical purposes. To borrow Hamilton’s language from his critique (in the Federalist) of a constitutional protection for freedom of speech, there is no definition of public crisis that could be included in a balanced budget amendment that would not allow “the utmost latitude for evasion.” In other words, a definition broad enough to allow the government to borrow in all justifiable cases would equally empower it to borrow at will for whatever causes a majority of both Houses of Congress would approve.

In view of these Hamiltonian considerations, the balanced budget amendment appears misguided. The proponents of a balanced budget amendment might instead try to discipline borrowing by establishing a serious procedural obstacle to incurring debt. For example, the amendment might require a two-thirds majority of each House to authorize borrowing on behalf of the public. Based on the American experience, it is not clear that such a requirement would seriously deter the government from incurring new debt. In the Senate, the filibuster already creates a supermajority requirement (of three-fifths) for increasing the nation’s debt, yet debt-ceiling increases have routinely passed the Senate. Indeed, debt-ceiling increases have been routinely enacted with overwhelming support in both Houses of Congress. In the most recent, and most hotly contested, debt-ceiling debate ever, 62% of the House of Representatives and 74% of the Senate voted to issue more debt.

One might try for an even more stringent requirement—calling for, say, a three-fourths vote in each House of Congress—but this would only exacerbate an already serious failing in any supermajority requirement: namely, any supermajority requirement is anti-majoritarian, and the higher the bar is set, the more anti-majoritarian it is. A balanced budget amendment framed in this way thus strikes at one of the vital principles of American republicanism: majority rule. It would be a step backwards in the direction of the Articles of Confederation, which required supermajorities for important actions of the Federal government. As Hamilton noted in the Federalist, this requirement effectively allowed any determined minority to dominate governance, at least negatively, by defeating measures that enjoyed majority approval. With a balanced budget amendment, the evil would be more confined but still considerable. It would, after all, give a considerable minority power over the fiscal measures of the government, which, in the end, touch on the government’s ability to execute everything it does.

In light of Hamilton’s concerns and recommendations, the principles of which contain timeless wisdom for our nation, the balanced budget amendment appears to be a well-intentioned but ill-considered proposal.


Carson Holloway is a Political Scientist and the author of, most recently, The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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In the present conflict, this temptation has been most powerfully felt by, and has most successfully coaxed to action, the American left. In recent weeks, liberal legal and political commentators have claimed that, should Congress fail to raise the debt ceiling, the President, in order to prevent default, would be constitutionally authorized to incur new debt on behalf of the United States. Defenders of this idea pointed to the Fourteenth Amendment, which states that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This language, however, cannot plausibly justify the power some have claimed for the President.

The Amendment speaks of debt “authorized by law,” thus creating a heavy presumption that in our system of government, public debt can be incurred only by an act of the legislative power. This, indeed, is the explicit sense of the Constitution in Article I, Section 8, which provides that Congress “shall have the power . . . to borrow money on the credit of the United States.” On a plausible reading, the Fourteenth Amendment provides that the debt of the United States may not be repudiated. That only means, however, that should the government fail to make good its obligations, its creditors could take their grievance to the Courts to get their claims lawfully enforced. The Amendment says nothing in general about how the monies to pay the debt should be raised, and it certainly is completely silent on any executive power to raise such monies. It therefore contains nothing to modify or repeal the express provisions elsewhere in the Constitution that only Congress has such an authority.

Indeed, Article I, Section 8 of the Constitution gives Congress not only the power to borrow money on the credit of the United States, but also the power to “lay and collect taxes, duties, imposts, and excises, to pay the debts” of the United States. Therefore, if the interpretation advocated by the President’s partisans in the present dispute were correct, it would equally prove that the President, to avert default, could impose new taxes. Surely this implication is sufficient to bring to light the radically unconstitutional nature of the presidential power that is being suggested. Indeed, if the President may issue debt to prevent default when Congress will not raise the debt ceiling, then there is nothing to prevent him from vetoing whatever debt ceiling increase Congress might enact and then raising the revenues on his own authority and spending them according to his own discretion. To affirm the power of the President to issue debt would be indistinguishable from denying Congress the power of the purse, and would accordingly constitute a giant leap in the direction of one-man rule of our nation’s finances.

It is also worth noting that this expedient, which is presented as a way of preserving the credit of the United States and preventing the evils that would arise from a default, would, in all likelihood, do the reverse. Those who defend the idea note that even a temporary default on the nation’s debt payments would drive up rates of interest and make the public debt even more crushing. Continued borrowing will be necessary for the short and even mid-term, and new lenders would, in light of such a default, demand greater compensation for the now much greater risk of a future default. This analysis is correct, but the issuance of executive-authorized debt would do nothing to address it helpfully. The worst thing you could say about debt incurred on the authority of the President alone is that it is absolutely invalid and therefore not worth the paper on which it is printed. On the other hand, it is possible that the courts, in the end, might uphold the validity of such debt despite its obvious constitutional infirmity. It is possible, but not certain. Accordingly, the best thing you could say about executive-authorized debt is that its value is highly questionable and that it might never be repaid. In view of these circumstances, which will be evident to anyone in a position to lend to the government, executive-authorized bonds would have to command a very high rate of interest to compensate for the real possibility that they would never be repaid, and the near-certainty that if they were repaid, it would be only after a costly and uncertain process of litigation—one in which the Congress of the United States might be contending against their validity.

Unfortunately, in the debt ceiling controversy, the American right has also succumbed to the impulse to politicize constitutional interpretation, although not as brazenly as has the left. In response to the above interpretation, some conservatives have claimed that the Fourteenth Amendment does not create any executive authority but that it instead limits it, that it in fact requires what President Obama and his supporters surely do not want: namely, it requires the President, faced with insufficient revenue because of Congress’s refusal to raise the debt ceiling, to use present tax revenues to service the existing debt before paying for any other government programs. This interpretation was advanced, for example, by Republican Senator Mike Lee of Utah.

This, too, is an overreaching interpretation. The language of the Fourteenth Amendment, read impartially, does not really constrain executive discretion in this manner. Again, the pertinent passage holds that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This passage certainly means that the public debt cannot be repudiated by the government of the United States, but it does not prescribe any specific course of conduct for a president confronted with government revenues unequal to government commitments. A president in that situation would find himself with insufficient resources to meet all legislatively authorized objects; in the absence of legislation specifically constraining his choices, he would be free to use his own discretion as to which public obligations should be paid for first and which should, temporarily, at least, go unpaid. He might well decide to pay for other government programs before paying on the debt service. The exercise of such discretion would in no way deny or question the “validity” of America’s public debt. It would merely represent a temporary concession to a real and insuperable necessity: the absence of revenues with which to meet all the obligations Congress has authorized.

This is not to deny that there are powerful prudential and moral reasons to treat the public debt as having a claim on revenues prior to that of any other governmental obligations. After all, by damaging the nation’s credit, missed debt payments will likely do more harm to the national interest than, say, postponed expenditures for authorized programs, or even delayed social security checks. Also, the moral obligation to pay the public creditors is more pressing, because the government’s relationship to them is contractual. That is, it has promised to pay them back on a certain schedule, while other government programs represent more of a decision to execute a certain policy than a promise to specific individuals. Nevertheless, these prudential and moral considerations cannot be understood to impose a constitutional constraint on the discretion of a president faced with inadequate revenues. After all, one can easily conceive some public needs—such as defense or intelligence—that a prudent president might place even before paying the nation’s creditors. And once we concede this much discretion, there is no credible constitutional principle on which to limit that discretion at all.

Such politicization of constitutional interpretation, whether of the left or the right, threatens deep harm to our way of life as a nation committed to constitutional government. The point of the Constitution is to foster energetic but moderate government that can secure the common good while protecting fundamental liberties. It can only achieve that worthy end, however, if its provisions have a stable meaning that is largely immune to political perversion. Put more simply, the Constitution is meant to establish the rule of law, but there can be no rule of law in any meaningful sense when the fundamental law is routinely subjected to implausible interpretations that are pressed for the sake of temporary political advantage.

Resisting the politicization of the Constitution also has a bearing on our nation’s financial and economic fortunes. The credit of the United States reached its unsurpassed quality not only because the government has reliably paid its debts, but also because it has a system of laws, including the fundamental law of the Constitution, that renders the government’s behavior more regular and predictable than that of most other nations in the world. When we bend the Constitution to passing political purposes, however, we introduce an element of anti-constitutional banana-republicanism into what is meant to be a government of constitutionally delegated and distributed powers. We thus strike deeply at our reputation as a nation of laws, and that reputation is no less essential to its credit than its record of repaying its debts. Consider this in relation to the liberal claim that the Fourteenth Amendment authorizes the President to issue debt. By attempting to do so, he might succeed in temporarily making certain immediately pressing debt payments, but he would at the same time render the general principle of debt-repayment questionable. After all, if one can ignore a constitutional provision as clear as that which empowers only Congress to borrow money on the nation’s credit, one could just as easily ignore the Fourteenth Amendment’s provision that the validity of the nation’s debt shall not be questioned.

The temptation to politicize the Constitution is understandable. Everyone who is seriously engaged in politics passionately wishes for his side to prevail, and so deeply desires to impress the Constitution into the service of his cause. Nevertheless, for the sake of maintaining a free and prosperous polity under the rule of law, this temptation should be resisted with a resolution more than equal to it.


Carson Holloway is a Political Scientist and the author of, most recently, The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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