Independence Day 2022
Independence Day is around the corner, gas prices are crazy, people need a summer break and the Scotus Nine, heading out for theirs, drop four big decisions about abortion, guns and religion. Quite a mix. We were at a party with a thoughtful group of friends last night and you could sense everybody not wanting to let current events turn a grill out into a debate rather than a taste of summer.
The four Scotus cases in sum. A high school football coach can lead post-game prayer at the 50 yard line. Parents in Maine can get tuition assistance for their kid going to a religious school. A conceal carry gun owner in New York doesn’t have to give a reason to carry outside the home. Roe vs. Wade is overturned.
My job as a lawyer/teacher isn’t to push political opinions on students but to teach how to read the cases and think critically about the text and principles. On American campuses this fall these will be electric issues, as they are now on the minds of many. So how to have a constitutional conversation?
- Reading – Understandably, few folks will slog through the hundreds of pages of Scotus verbage in these four cases. Suffice it to say reading makes a difference in constitutional thinking if not political opinionating. A friend yesterday at dinner said she was going to read the 238 pages of the abortion case as a “civic duty”.
- Federalism – This is how the Constitution relates state legal sovereignty to the national government. We tend to think of the U.S. Constitution as a singular governmental form , but it’s really a “nest” within which there are fifty state constitutions, fifty state governments or, as Justice Brandeis called them, fifty laboratories of democracy. To take only one example, this means the Montana constitution has, unlike the federal Constitution, a provision on environmental protection, establishing a healthy environment as a right for the citizens of Montana.
- Historicism – This is a method of judicial interpretation (sometimes called originalism) in which Scotus says that that an individual constitutional right depends on whether the right is “embedded in history and tradition”. Historicism in some cases gets 5 votes on Scotus, as it did in the abortion and gun cases, but it doesn’t get the votes in other cases. It also lacks widespread consensus across the federal and state judiciary, those who study and practice constitutional law and among many Americans.
How do federalism and historicism play out in these four cases?
- In the two religion cases, the coach prayer case and the religious education tuition assistance case, Scotus shows its cards that the Free Exercise Clause is its favored provision now, moreso than the Establishment Clause. The Scotus majority is out to protect religious exercise, not worried so much about establishing a single religion and not deferring to how an individual state may handle religious freedom.
- In the abortion decision, the majority combines federalism and historicism, saying abortion is not a right supported by history and tradition and turning abortion rights over to states.
- In the gun decision, the majority’s federalism and historicism lead to different outcomes. Gun rights they say have the history that abortion doesn’t and it strikes down a state’s ( New Yorks’) law.
There’s much more to be said of course, politically, socially, morally on all sides of these controversial cases.
Independence Day is around the corner, a reminder that the amazing American democratic experiment includes both blessings and fireworks.