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June 12, 2005

truth in advertising

Don Herzog: June 12, 2005

I've been reading back issues of the Federalist Patriot, a conservative e-newsletter ("the Internet's most subscribed e-journal," as they boast) that also runs a website.  (Yes, such are the heroic sacrifices your humble blogger makes for you.)  It isn't very good, unless you take delight in, oh, watching John McCain win the "Alpha Jackass Award" for his position on campaign finance.  And when it is bad, it is horrid:

American University professor Daniel Dreisbach and University of Chicago law professor Philip Hamburger argue, correctly, that the "wall of separation" has its ironic and erroneous origin in 1947.  It was then that Supreme Court Justice Hugo Black (whose anti-Catholicism was nourished during his days in the KKK) ruled in Everson v. Board of Education that the First Amendment created a "high and impregnable" wall between religion and government.  That decision forbade New Jersey from spending public funds for religious education — and you know the rest of the story.

Well, let's see.  In Everson, Black did write the majority opinion.  And he did write,

The First Amendment has erected a wall between church and state.  That wall must be kept high and impregnable.

But he upheld New Jersey's right to reimburse bus fares for children attending parochial schools, the only "spending public funds for religious education" at issue in the case.  I know, picky, picky:  what's a little factual accuracy among friends?

Addendum:  I offered some thoughts on Everson here.


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Posted by: Mona

It isn't very good, unless you take delight in, oh, watching John McCain win the "Alpha Jackass Award" for his position on campaign finance.

But I do!

Seriously, bloggers left and right are currently battling the FEC to keep that pernicious legislation from chilling their speech. When you have Kos and the righties at Powerline both signing the same petition, you know there is a problem.

Posted by: Mona | Jun 12, 2005 5:12:04 PM

Posted by: Perseus

I fail to see how the Federalist Patriot got its facts wrong. Everson did forbid New Jersey (and every other state) from spending public funds for religious education. The Court simply ruled that funding transportation to parochial schools didn't constitute spending for religion. And the principles enunciated in Everson did lay the groundwork for the Court's subsequent--and dubious--decisions on the establishment clause.

Posted by: Perseus | Jun 12, 2005 5:46:32 PM

Posted by: KL

Perseus is absolutely correct. But what's a little factual accuracy among friends on Left2Right?

Posted by: KL | Jun 13, 2005 2:35:24 PM

Posted by: Don Herzog

No, actually, Perseus is dead wrong. This is really painfully basic law stuff -- the sole holding in the case is that the bus fare scheme is fine. Everything else is dicta, of no precedential force. Not only that, the dicta don't say what Perseus says they do.

I suppose Perseus is thinking of this passage:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

And then the question is what the passage I've emphasized in bold means. It turns out to mean, as I've argued elsewhere on this blog, that the state can't single out religious groups for support because they're religious. But it remains free to support them under other descriptions: as the recent voucher case confirms, the state can fund schools in general and then there is no bar to religious schools receiving money -- because they're schools, not because they're church groups. Black's language can be read as a blocked-justification rule or a no-cash-to-religion-no-matter-what rule. The former rule remains good law. And again all of this is dicta.

Posted by: Don Herzog | Jun 13, 2005 3:02:11 PM

Posted by: Perseus

I don't deny that the offending passage was dicta, but it gave a good indication of what principles the Court would employ in future, and as such constituted a shot across the bow against any public official that would violate those principles. And I'd add that there are other issues raised by the case such as whether the First Amendment even applies to the states.

Posted by: Perseus | Jun 13, 2005 5:42:10 PM

Posted by: Don Herzog

Sorry, Perseus, but 1/if you concede the language is dicta, you cannot say that

Everson did forbid New Jersey (and every other state) from spending public funds for religious education.

Dicta can't forbid anyone from doing anything. And 2/you're missing the point about interpreting the dicta. On the blocked-justification view, Everson says a state cannot fund religion because it is religion. It doesn't bar funds allocated for secular reasons from helping religious organizations.

So look what Black says about police, fire, sewage, highway, and sidewalk spending.

Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.

In the later caselaw, which you allude to but seem not to grasp at all, the neutrality principle here is what I've referred to as blocked justifications. In modern doctrine, the establishment clause does not bar the state from funding religious organizations, as long as it doesn't pick them out qua religious; indeed it bars the state from trying to exclude them on the ground that they're religious. So for instance in 1995, the Court held that the University of Virginia could not carve a religious -- and frankly evangelical -- student magazine out of its program for funding campus publications. This is deeply continuous with Everson and central in modern caselaw.

As to whether the first amendment applies to the states, that was settled law by the time Everson was decided. In note 22, Black rattles off a string cite going back to Cantwell in 1940, and you can argue the principle is already quite clear in the '20s. If you mean to intimate a new criticism of Everson, I'm afraid you're dead wrong here, too. Yes, I know the original first amendment's establishment clause is a federalism protection -- it doesn't rule out state establishments, but protects them from Congressional interference. The modern view is that that changes fundamentally with the adoption of the 14th amendment. It is an interesting legal and historical puzzle why, if that is right, it takes till the early 20th century for the Court to start officially "incorporating" various provisions of the Bill of Rights against the states. Maybe you mean to question the merits of incorporation across the board. But it's worse than odd to fault Black or Everson for faithfully following entrenched precedent on point.

Posted by: Don Herzog | Jun 13, 2005 7:29:20 PM

Posted by: D.A. Ridgely

More than merely an interesting historical puzzle, Mr. Herzog. An equally reasonable reading of the "modern view" is that later courts did precisely what Perseus is really concerned about; namely, reach back to statutory or constitutional language or decisional dicta and craft new law where there was fairly clearly no prior understanding or belief that the law, amendment or decision was ever intended to have that effect or be applied in that manner.

Posted by: D.A. Ridgely | Jun 13, 2005 10:33:49 PM

Posted by: Don Herzog

Well, we have a historical dispute: William Nelson shows there was a range of views in play, but a central view contemporary with the framing and ratification of the fourteenth amendment was that it would apply the bill of rights against the states. (His skeptical thesis is that overall there was no commanding and clear understanding of just what the amendment would do. Most interesting is his reconstruction of the history of the language in Congress -- the last version out, the one sent on to the states, was the most unclear.) And we may also have a normative dispute on whether or in what sense original meaning is authoritative. But I've already aired my views on that matter here.

Posted by: Don Herzog | Jun 13, 2005 10:41:31 PM

Posted by: Perseus

If one wanted to be hyper-technical (a la Lincoln), the rulings of the Supreme Court are only binding among the parties involved in a given suit, in which case the Court doesn't "forbid" much of anything.

My additional criticism about Incorporation was to indicate once again that I like to revisit "modern" views and doctrines, including the Court's Madisonian "neutrality principle," which you seem to think escapes my grasp. Perhaps instead of not understanding the principle, I have reservations about it and prefer the views on religious liberty of other Founders such as Washington or Hamilton?

Posted by: Perseus | Jun 13, 2005 10:43:43 PM

Posted by: Don Herzog

Perseus, we can play an idle theorist's game called My Ideal Account of the Constitution. We can make normative and historical arguments. We can depart as far as we like from the real world of institutional practice and legal doctrine. It's not a game I like, frankly. But even if that's the game you're playing, it won't begin to defend the blunder the Federalist Patriot made about what Everson decided.

Posted by: Don Herzog | Jun 13, 2005 10:47:37 PM

Posted by: D.A. Ridgely

As to the real world of institutional practice, the skeptic's view is precisely that it is almost always possible to find some language or some expressed extrinsic opinion or understanding of a prior law that supports what the court wants to do later and, of course, equally possible to distinguish away anything contrary.

Moreover, though I would argue that this is true even in unanimous decisions, the fact of so many plurality and 5/4 split decisions argues strongly in favor of the notion that the court not so much discovers and applies prior intent or understanding to slightly novel circumstances as it simply makes a present decision as the majority sees fit and stresses or discounts prior law as need be to support that decision.

I hasten to add this has nothing to do with Everson, about which I agree with Mr. Herzog.

Posted by: D.A. Ridgely | Jun 13, 2005 11:01:59 PM

Posted by: Don Herzog

Mr. Ridgely's skepticism has a long and honorable place in legal theory and in Americna law -- my favorite version remains Karl Llewellyn's The Bramble Bush. But I think it's not just wrong but clearly wrong -- at the very least it could apply only to the relevant handful of hard cases.

Think about the world of contingency-fee practice. Mr. Ridgely knows full well that prospective clients are often told by one lawyer after another, "sorry, you haven't got a claim." Theirs are easy cases. Yes, you could find scraps of language in prior caselaw or statutes that would give them a shred of support. But they're still clear losers.

Many first amendmnet cases are now extremely easy, in just that sense.

Posted by: Don Herzog | Jun 13, 2005 11:16:54 PM

Posted by: D.A. Ridgely

Ah, well, contingent fee case taking law firms are notorious for not really taking iffy cases in the first place, now aren't they? And then there is always, however rarely, the brave or foolish (or starving but clever) lawyer who bucks the odds, takes the case anyway and, lo and behold, changes the law.

Settled law means no more than "most of us whose opinions count happen to agree... so far." And everyone should read The Bramble Bush. In fact, I should re-read it.

Posted by: D.A. Ridgely | Jun 13, 2005 11:24:49 PM

Posted by: Perseus

Well, if the president is able to appoint a couple of Supreme Court Justices like Thomas, my idle theorizing won't be quite so idle any more, which Mr. Ridgely would argue is just another way of saying: "Settled law means no more than 'most of us whose opinions count happen to agree... so far.'"

Posted by: Perseus | Jun 13, 2005 11:58:09 PM

Posted by: Thomas

A couple of items:

What's most interesting about the "separation of church and state" and Everson is that, in 1947, when Everson was decided, organized prayer in public schools was entirely legal, and remained so until 1962. It says something for Hamburger's thesis that funding bus rides for Catholic school kids was thought to violate the establishment clause, but Protestant prayers in the public schools wasn't thought to be a violation.

Above, Don says "In modern doctrine, the establishment clause does not bar the state from funding religious organizations, as long as it doesn't pick them out qua religious; indeed it bars the state from trying to exclude them on the ground that they're religious." Which isn't entirely accurate. For example, there's not a majority on the court that would allow funding for education in religious schools paid directly by the state; moreover, despite McConnell's best efforts (among the efforts of many others) there's not much doubt that religious schools can be excluded from, for example, a general program providing funding for education because they are religious.

If the FP has made a mistake, it has made a common one. See, for example, this posting on the UVA Law School website: http://www.law.virginia.edu/home2002/html/news/2002_fall/jeffries.htm

"The modern interpretation of the Establishment Clause dates to 1947 when the U.S. Supreme Court ruled in the case of Everson vs. the Board of Education that the First Amendment broadly rejects public funding for parochial schools."

If only they'd hired a UVA law grad to write this up!

Posted by: Thomas | Jun 14, 2005 12:26:33 AM

Posted by: noah

Anyone have an opinion on the voucher law that is currently before the Florida Supreme Court? I believe it has been ruled unconstitutional at lower levels because it would allow "support" of religious schools.

Posted by: noah | Jun 14, 2005 8:07:32 AM

Posted by: D.A. Ridgely

Those who are reading this thread but are (lucky them!) unversed in legal arcana might be benefited by understanding that there is a significant difference between the holding in a judicial decision as it actually resolves a case or controversy before it (Everson gets to spend public funds to bus its kids to parochial schools because that doesn’t count as establishing religion, Marbury doesn’t get his magistrate’s commission because the Court lacks jurisdiction to issue a mandamus, and blah, blah, blah) and how that case is used by subsequent courts in subsequent cases as precedence.

The theory, believed by virtually no one inside the legal profession, is that only the rule of law articulated to decide the particular facts before the court counts as the holding and that only the holding itself is supposed to have any influence on how the next judge decides a dispute over the same or similar facts. In practice, judges will slowly incorporate more and more of the dicta (language in the earlier decision not part of its holding) into their own decisions until it appears more and more like that dicta is a part of the trail of law. Indeed, courts will reach back to and cite approvingly such obiter dicta (really irrelevant language) as footnotes in dissents in older cases to buttress their decisions. Similarly, they will weigh facts differently, contending that a fact once ‘erroneously’ considered irrelevant, is now in fact relevant, thus supporting their new decision.

Thus, to quibble with Mr. Herzog’s implied view of decisional or constitutional law, it is always possible to look back at the case law and find a ‘continuity’ between current and prior decisions. Indeed, it is the exceptional case where any court, even the Supreme Court, flatly says it is rejecting prior precedence and making new law. There are various psychological and institutional reasons for this, but from the skeptic’s point of view the only difference between, say, Brown which flatly reversed Plessy and most other Supreme Court decisions that ‘develop’ our constitutional jurisprudence is that Brown was refreshingly candid.

Although judges have been making law for hundreds of years, most lay people object to the practice for the usual reasons of lack of accountability, etc. Until around a hundred years ago, this controversy was ameliorated by the prevailing belief in some sort of natural law – universal moral principles (whether derived from God or objectively ‘discoverable’ through reason) from which man-made law was supposed to be derived.

The prevailing modern view, however, is that there is no such thing as natural law or, at best, there isn’t very much and whatever it is doesn’t help us all that much in working out the details of a just and objectively legitimated legal system. That has, in turn, aggravated our sense of the danger of largely unaccountable judges making law. In one sense, the history of philosophy of law for the last century or so has been one of trying to find something objective outside the mere subjective whims of those currently in power, including judges, to morally justify the law. In very simplistic terms, both originalism and the law and economics movement are two ‘conservative’ attempts to answer that question, while American legal realism (e.g., Llewellyn) and the critical legal studies schools have sadly or gladly concluded that there is in fact nothing objective beyond or behind our positive lawmaking.

I realize I am simply ignoring here the Hart / Dworkin, etc. battle over legal positivism and such. Any attempt to settle these issues must eventually wander into not only normative questions but also deeply into metaethical territory.

Posted by: D.A. Ridgely | Jun 14, 2005 9:10:28 AM

Posted by: Seamus

But now that Mr. Ridgely has ably discussed the importance of the difference between the holding of a case and dicta, let it be known that not everyone believes the distinction is all that important. At least one legal scholar, in fact (http://lsolum.blogspot.com/archives/2003_10_01_lsolum_archive.html#106598221268307223), argues that "the very idea of a holding best makes sense in the context of legal formalsim but most law professors (consciously or unconsciously) have adopted some form of neorealism--they no longer believe in holdings." According to Professor Solum, to the extent they believe in holdings at all, "[l]egal realists view holdings as predictions of what future courts will do. The holding of a case is simply the best prediction that we can extract from the opinion as to what rule the court would apply in future cases."

To the extent that Professor Solum is right, Perseus may not be that far wrong in his view of what Everson "held," if that term is understood in the realist sense. (Under any account, however, he misspoke when he said that the Court in Everson "did forbid New Jersey (and every other state) from spending public funds for religious education." What the Court did was signal that it *would* forbid the spending of public funds for religious education if that case ever came before it.)

Posted by: Seamus | Jun 14, 2005 11:48:37 AM

Posted by: D.A. Ridgely

Seamus has made explicit what I merely implied. Mr. Herzog may disagree (and is in a far better position to observe), but I would guess that law school faculties continue to be filled with Legal Realists of one sort or another (who constitute the "old guard" among the liberals) and Crits (the more revolutionary, Foucault quoting leftists, often recruited from the tattered ranks of the Marxists.) Rule skepticism remains legal orthodoxy. The law and economics folks and originalists may predominate in a couple of law schools, but I would be shocked to hear they are not clearly in the minority inside law schools generally.

Posted by: D.A. Ridgely | Jun 14, 2005 12:07:41 PM

Posted by: Thomas

Whether DH disagrees or agrees with the Legal Realists, he may well be wrong about what the holding of Everson is.

DH suggests, in his response to Perseus above, that some quoted language from the Everson decision isn't the holding, but is just dicta.

The holding is, as Larry Solum's post linked to above makes clear, the ratio decidendi, the reasoning necessary to reach the result.

So, the question is, is the language quoted essential to reaching the result in Everson?

It is certainly possible to argue that it is. The Court sets out the standard to measure conduct under the Establishment Clause, and then measures the conduct in the given case. In that scenario, the setting out of the standard is essential to reaching the result, isn't it? And thus it is part of the holding, and not just dicta.

Posted by: Thomas | Jun 14, 2005 6:53:41 PM

Posted by: Perseus

I've always wondered if is not uncommon for judges to write, cite, and eventually incorporate dicta into their rulings, then how realistic is Legal Realism?

As for the Critical Legal Studies types, I say: "Pay no attention to the man behind the curtain!"

Posted by: Perseus | Jun 15, 2005 3:30:40 AM

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