an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Should Federal Judges Cite the Bible As Authority for Constitutional Decisions?
In a major campaign finance case decided two months ago by the Second Circuit, Judge Guido Calabresi began his concurring opinion by citing Luke 21:1-4 and including the following block quote:
As Jesus looked up, he saw the rich putting their gifts into the temple treasury. He also saw a poor widow put in two very small copper coins. “Truly I tell you,” he said, “this poor widow put in more than all the others. All these people gave their gifts out of their wealth; but she out of her poverty put in all she had to live on.”
Judge Calabresi used this epigram to launch into an opinion which argued that the Supreme Court should overrule Buckley v. Valeo and accept the "equalization" or "anti-distortion" rationale for permitting government to impose limits on how much candidates, individuals, political parties and others could spend on trying to get candidates elected.
I recall being struck at the time by this direct invocation and quotation of the Bible as a source of normative authority or inspiration for Judge Calabresi's legal analysis of the First Amendment issues. I expected to see a flurry of discussion and debate about the appropriateness of relying on the Bible in this way. But if there were any such discussion, I missed it. A good recent article on campaign-finance reform by Steven Rosenfeld, which quoted Judge Calabresi's quotation of the Bible, reminded me of this question.
Is it appropriate for judges to invoke the Bible in this way and quote from it in their decisions? If a "conservative" judge had similarly quoted from the Bible as support for a "conservative" decision on some constitutional issue, would the opinion have attracted more attention and discussion? Note that Judge Calabresi is not referencing a biblical passage for some descriptive purpose, such as to give an account on how a class on comparative religion, for example, was being taught in a public school. As I read his opinion, he is invoking the Bible as normative support for his position on how the First Amendment should be understood in the context of regulating election spending. Posted
by Rick Pildes [link]
The basic sentiment is not sectarian and an analog is probably found in most religions. It is a concurring opinion, stating his personal views. Also, opinions, particularly personal concurring or dissenting opinions, often cite works of literature. If Aesop's Fables were cited instead, would it be okay?
I think the problem is only when a judge uses opinions to promote clearly sectarian religious doctrine that has a feel of targeting other sects. Particularly in often quite personal concurring or dissenting opinions of this type, I don't think this sort of citation is overall problematic.
An originalist might consider especially the Framers' views - and perhaps those of the Ratifiers, although more problematic because of the numbers - on Jesus' sociology/philosophy regarding the rich and the poor. Was Jesus' thought in this epigram sort of a universal at the time, or perhaps since? Jesus' words are plain and easy to understand. These words have held up separate and apart from the Bible. These words reflect justice and fairness. Surely if Judge Calabresi's clerks had taken the time, similar thoughts prior and subsequent to Jesus's words could have been found. But is Judge Calabresi actually citing the Bible as authority or Jesus as a sociologist/philosopher on fairness and justice? Perhaps an originalist may be able to demonstrate that the Framers/Ratifiers cared diddly about fairness and justice, by pointing to slavery (about which I think Jesus had something to say).
I'm curious whether this question perhaps was in the back of Prof. Pildes' mind because of recent statements by GOP Presidential candidate Rick Santorum on the Bible. (I see a world of difference between Judge Calabresi's use of the Bible from that suggested by Santorum.)
To Joe: No, I was not thinking of anything any political candidate might have said. I had these thoughts when I read the decision in December; I was reminded of those thoughts only because of reading the article I cited on campaign finance.
Even as a staunch atheist I don't really see the problem here; Calabresi was citing the Bible as classic literature to illustrate a principle, not relying on it as a source of natural law. This seems analogous to opening an opinion with a quote from Cicero or Aristotle or Dickens; not really problematic.
Our yodeler charges Judge Calabresi with "misquoting scripture," presumably the block quote in Gerard's post, without informing us of the correct quote. Maybe our yodeler meant "misapplying scripture."
I haven't read the Judge's concurring opinion so I do not know if he quoted the First Amendment. Perhaps our yodeler did read it and knows as a fact that the Judge did not quote the First Amendment.
Our yodeler seems to be suggesting that perhaps any reference whatsoever in a court opinion to the Bible is not proper. But I think Unknown in his comment makes a strong point to counter such a suggestion with:
"Calabresi was citing the Bible as classic literature to illustrate a principle, not relying on it as a source of natural law."
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