Cheney v. Trump

Gerard N. Magliocca

In the wake of her primary defeat, Representative Cheney is floating the idea of running against Donald Trump for the 2024 Republican nomination. That may seem like a pointless protest campaign. But given her role on the January 6th Committee, she may have another goal in mind.

In some states, only a primary candidate has standing to raise an eligibility challenge against another candidate. Thus, Representative Cheney may decide to run just so she can sue Donald Trump as ineligible under Section Three of the Fourteenth Amendment to serve again as President. Indeed, you can imagine a case captioned "Cheney v. Trump" reaching the Supreme Court next year or early in 2024. If she is serious about preventing Trump from returning to the Oval Office (which is what she and her father said in recent weeks), a presidential campaign may be her best option.

No Republican candidate who is trying to win the nomination (in other words, Ron DeSantis) will make a Section Three argument. Suing Trump on that basis would make it impossible for that candidate to win the votes of lukewarm Trump supporters. Representative Cheney, though, won't be worried about them.

Andrew Koppelman

 Eugene Volokh has kindly invited me to contribute a series of posts to his blog, Volokh Conspiracy, summarizing my forthcoming article, "The Increasingly Dangerous Variants of the "Most-Favored-Nation" Theory of Religious Liberty." There is a link to the full article, which is on SSRN, but the article is a little long and this version provides the gist for the busy executive.

Religion and the wrong defense of abortion rights

Andrew Koppelman

The Closure of the Supreme Court

Gerard N. Magliocca

The Supreme Court is still closed to the public due to the pandemic. This is in sharp contrast to the other major public institutions in Washington D.C. The Capitol is open to visitors. The White House is open to tours. The Smithsonian is open, the Library of Congress is open, and the national monuments are open. So what's going on? Maybe the Court is simply getting more cautious advice from medical experts. Or maybe they have an imminent plan to reopen.

Unfortunately, it's hard to avoid the conclusion that the real reason for the Court's continued closure is to prevent protesters from expressing their views inside the building. Free speech for thee but not for me.

Some Lessons Taught by an American Shtetl

Sandy Levinson

 Summer is an occasion, at least for academics, for reading big books, and I'm happy to say that I've just finished one of the major books on my list, American Shtetl:  The Making of Kiryas Joel, a Hasidic Village in Upstate New York, by Nomi Stolzenberg and David Myers.  I adverted to it in my response to the "Levinsonfest" on religious diversity, in which Nomi participated, but I had not yet finished it.  I had at that time read only enough to know that it was fascinating.  But I'm now in a position to be able to recommend  it to anyone seriously interested not only in the central topic of religious diversity, whether in the United States or elsewhere, but also the various uses (and abuses) of litigation.  The Satmar Hasids (who get their name from their "origin community in Romania) is now "the most populous Hasidic group in the world today" (p. 370).  They imagine themselves as being a tightly-knit community wholly set apart from the ordinary world, speaking Yiddish and devoted exclusively to carrying out their religious duties.  Yet a major theme of the book is the fact that they have created an American shtetl in significant measure because of their adaptation to certain important aspects of American culture.  These include knowledge about how to work within the particular world of New York politics and, over the years, an increasing willingness to engage in active litigation in order to attain their goals.  In addition, Stolzenberg and Myers emphasize as well what might be "exceptional" American laws concerning private property and land-use.  

This is not intended to be a full-scale review of a long, complex, and nuanced book.  Much of it is devoted to explicating the particularities (and peculiarities) of the Satmar approach to the world.  Events in Europe obviously destroyed the foundations of the Satmar order; they were certainly among the victims of World War II and the Holocaust,.  However, their leader, Rabbi Joel Teitelbaum (whose name is memorialized in the name of the up-state New York village Kiryat Joel), moved to New York and, to an almost incredible degree, flourished in his desire to recreate the equivalent of a European shtetl composed exclusively of fellow members of the Satmar community and, as much as possible, free from the incursions of "gentile" leadership (or, for that matter, other Jews scarcely recognized as such by the Satmars).  To describe Teitelbaum as a "leader" is an understatement: Chasidic communities are basically under the iron rule of singular quasi-monarchical rabbis, and Teitelbaum had the kind of sway over members of his community that no modern king or queen can dream of.  There is a good reason that one speaks of rabbinic "courts" atop any given Chasidic movement.  His words were almost literally law; more to the point, they were viewed as such by most members of the community.  Unlike the probably better known Lubavitch Chasids, the Satmars did not view their rebbe as in fact the Messiah, but, while alive, he certainly exercised complete authority.  Part of the drama of the book is the fragmentation within the Satmar community following his death and the rise of remarkably hostile factions headed by two different grandchildren of Teitelbaum (the Aronites and the Zalites).  Indeed, Joel Teitelbaum's widow turns out to be a major figure in the infighting.  If one were reading a novel called American Shtetl, there would be a temptation to describe some of the events described as "unrealistic" or "over-the-top," but truth really is often stranger than fiction,.

A central tenet of Satmar theology is unmitigated opposition to Zionism, because, among other things, it rejects the command to await God's own decision as to when a messiah might come and restore Israel as an independent nation.   Not only were most original Zionists secular; even the so-called "religious Zionists" rejected the command of political quietism, at least with regard to establishing a "Jewish state," in favor of human action.  Although there are in fact some Satmars in Israel, they are among that group of the ulttra-Orthodox (the "haredi") who disdain the idea that Israel is a "Jewish state."  Viewers of the justifiably popular Israeli series Shtisel, brought to America by Netflix, will be familiar with the fact that some of the most militant anti-Zionists in Israel in fact come from within the community of religious Jews. Stolzenberg and Myers do not mention the fact that the politicians from whom the Satmars seek (and often find) support are often themselves strong "supporters of Israel."  They are more than happy to accept their support for what might be termed their "domestic" project of creating autonomous communities in New York.  All politics are simply transactional.  The Satmars are completely "American" in terms of being the epitome of a Madisonian "faction" concerned only with their own welfare; it is not at all clear that they have a genuinely "American" identity that might require any subordination of group interests to those of the "general welfare."  But, then, that may make them not "un-American" at all, but only a clear illustration of the kind of "interest-group" politics that have made the Madisonian vision set out in Federalist 10 a delusional fantasy.

It would be a mistake, though, to compare the the Satmars to the Amish (and Stolzenberg and Myers do not).   The Amish want primarily to be let alone; they do not involve themselves in politics in any ordinary sense.   Although apparently some individual Amish vote--they appear to have been strong supporters of Donald Trump, as were the Satmars in Kiryat Joel, who gave him 99% of their votes (!)--apparently most Amish sat on the sidelines.  The Satmars, however, have proved extraordinarily skilled in using their political clout to get what they want from the gentiles.  Both Mario Cuomo and his Republican successor George Pataki, for example, were key to their ability to develop Kiryat Joel as a basically autonomous community, described by some as a "theocracy," that, nonetheless, could benefit from a variety of programs of the state of New York, including aid to disabled children.  (It was this issue that precipitated the creation of an "independent school district" at Kiryat Joel that ran a program for such children.)   The ability of the Chasidic rabbis in effect to control a significant bloc of votes, especially in local elections, means that they are figures to be reckoned with in any politician's calculations.  This is thought to have played a role in Bill Clinton's decision, as he was leaving his presidency, to commute the sentences of four (non-Satmar) Chasids who had been convicted of bilking the United States out of millions of dollars.  His wife, embarking on her own political career in New York, benefitted from her close ties with the Chasidic community even as most of them increasingly described themselves as Republican.  

American Shtetl is a "must-read" book for anyone interested in the realities of religious pluralism in America.  "Identity politics" is often associated with the left, but Stolzenberg and Myers correctly note that among the most skillful users of the "identitarian" trope are religious groups attempting to resist what they view as a decadent secular culture.  One of their concluding paragraphs is worth quoting at length:

            [B]oth sides of the culture wars that have dominated American politics for half a century espouse  the politics of group identity.  The battle is not between identitarians and anti-identitarians.  Nor is it between those who espouse the value of religious freedom and those who don't.  It is, rather, a fight between those who see themselves as protecting traditional beliefs, practices, and cultural identity from the corrosive force of secular modernity and those who seek to assert personal cultural or religious identities that are anathema to religious traditionalists.  (p. 378) 

Although "mullti-culturalism" may be viewed as a "left" or "progressive" trope, it is obvious that its most truly effective adherents come from the religious sector.  Indeed, as I elaborated in my own response to the "Levinsonfest" presentations, my friends Doug Laycock and Michael McConnell persuaded me back in the 1980s that a commitment to "cultural pluralism" did require a greater sensitivity to the claims, for example, of religious parents of modest means who could not afford to take advantage of their formal constitutional right, protected since the 1920s, to educate their children in religious schools.  McConnell in particular emphasized that most political progressives (including myself) supported state-subsidized abortions lest reproductive choice become simply a formal right enjoyed primarily by the well-off. So why didn't we as well support greater subsidization of educational choice that would allow more parents to send their children to religious schools?  Part of American Shtetll sets out the collapse of an older liberal consensus on the meaning of "separation of church and state," encapsulated in the rhetoric (if not necessarily the result) in Everson v. Board of Education (1947) that suggested that no public funds should ever go to help fund religious schools.  That vision, for better or worse, is in complete tatters, especially following the recent decision (obviously issued after the publication of American Shtetl) forcing Maine to direct funds to sectarian schools if the state gives funds to any private schools at all.  

There is surprisingly little discussion in the book about the deepening acrimonious conflicts concerning what might be called the monitoring of the education received in Satmar and other Hasidic schools.  There is no real effort to educate the Satmar young, especially males, in any skills relevant to becoming full members of what is viewed as a decadent and basically goyish American society.  Time spent on "secular" education is time taken away from what is really important, at least for males--the study of Torah and the Talmud, where the languages of instruction are Yiddish and Hebrew.  (Here there may be an analogy with the Amish, whose Court-protected freedom from the "tyranny" of state compulsory education laws means that most of the Amish young also have few of the skills necessary for membership in the contemporary American economy or polity.)  Many struggles over educational policy are between adult parents and adult politicians over who should have ultimate control; few people genuinely speak up for the children whose lives are obviously most affected by the decisions reached by their adult superiors.  New York politicians, aware of the importance of the Hasidic bloc vote and the importance the rebbes attach to control of what outsiders might well describe as a totalitarian educational system, are averse to enforcing laws on the books that might seemingly rein in the power of the rebbes to reign over one of the central institutions by which groups (including, obviously, the Satmars) perpetuate themselves.  High birth rates by themselves would be ineffective if the kids were in fact exposed to the lures of outside society.  That must be prevented, and New York, at least practically speaking, seems willing to accommodate the Satmars and other such groups.  

A long chapter detailing literally decades of litigation involving the Satmars both in Kiryat Joel (now called Palm Tree as the former "village" has become an incorporated "town") and Brooklyn--will be of special interest to any lawyer.  Many of us are trained to believe that what "cases" are really about is a result at the end indicating who wins and who loses.  That is certainly not the case with regard to the Satmar litigation.  A loss at the United States Supreme Court about the validity of a New York state law allowing Kiryat Joel to operate as a separate school district was followed by years of further litigation involving new legislation designed to get around the Court's decision.  But, as Stolzenberg and Myers insightfully demonstrate,  at least as important as final decisions, practically speaking, may be the issuance of "stay" orders that leave in place a status quo even as the litigation proceeds.  Moreover, the key event in central litigation between Satmars themselves, and not simply between outsiders and the Satmars, was a settlement that literally drove one of the lawyers to tears because of what he viewed as its surrender on absolutely key points.  (The settlement apparently took place in negotiations among the Satmars, without participation by any of the lawyers involved.). There is also fascinating discussion of the interplay between New York State courts and federal courts.  

In every way, then, this is a long book very much worth reading.  It is a mistake to treat the Satmars as a basically irrelevant "exotic" group of religious zealots.  Their ability to maintain a remarkable degree of independence from general American culture--in part because of their skill in using American mechanisms of politics and litigation--in fact illuminates a great deal about the contemporary divides in American society and whether it is in fact thinkable that they will be genuinely overcome in our lifetimes.

Democrats in Array: How the Climate Bill Finally Passed

David Super

     As readers presumably know, the Senate today passed the Inflation Reduction Act, a budget reconciliation bill that has been in the works for a year and a half.  Although far less ambitious than the Build Back Better agreement Democrats reached then abandoned a year ago, it still includes transformational changes in energy policy to combat climate change.  It also reduces prescription drug prices for both Medicare beneficiaries and the federal government itself as well as extending enhanced premium tax credits that originated in the American Rescue Plan Act of early 2021.  It also reduces the deficit by raising taxes on the affluent and repairing some of the damage Republican appropriators have done over the past decade to the Internal Revenue Service’s capacity to curb tax evasion. 

     Superficially, everything went largely according to script:  all Democratic senators supported the bill, all Republicans opposed it, and Vice President Harris broke the tie in favor of passage.  The House will reconvene later this week to pass the bill and send it on to the President. 

     Beneath the surface, however, this legislation is not just a substantive tour de force but a strategic one as well.  It also suggests that, after decades of headlines about their supposed “disarray”, Democrats are developing the pragmatism and strategic judgment necessary for them to do much more going forward if they can manage to win elections.  This post is a set of observations on how this happened.

     First, notwithstanding the determined talk about bipartisanship from President Biden and his two immediate Democratic predecessors, the Democrats recognized early on that they were completely alone.  Under no circumstances would any Republicans help out in any way; historically, senators from the minority party will sometimes help craft parts of legislation, or defeat nefarious amendments, even if they do not plan to vote for final passage.  Here, every single Republican move, from threatening to hold hostage other legislation to crafting amendments designed solely to splinter the Democratic caucus, sought to undermine the legislation.  Supposed Senate Republican moderates played along all the way.  (Sen. Collins voted against a few extreme amendments when the Democrats had demonstrated they had the fifty votes to defeat it, but she never committed herself in advance – suggesting that she might have changed her vote had it been decisive.) 

     Second, Democrats showed remarkable unity.  Adoption of any Republican poison-pill amendments might have doomed final passage in the Senate and almost certainly would have done so in the House. 

     Democrats had two means available to pass a “clean” bill:  defeat every amendment as it came up or support a comprehensive superseding amendment at the end from Senate Majority Leader Schumer to strip out all amendments adopted along the way.  Many of us assumed the senators would want to vote for many Republican amendments and then adopt the “king-of-the-hill” strategy at the end.  That, however, would have put a majority of the Senate on record favoring this or that problematic policy and all but inviting Republicans to force them to vote on those same policies during consideration of future must-pass legislation. 

     To their credit, Democratic senators recognized this danger, held hands and voted down everything.  Sen. Bernie Sanders (I-VT) gave moderate and endangered Democrats cover by offering up several amendments to make the legislation more liberal.  Consistent with the Democrats’ agreement to oppose all amendments, the Sanders Amendments were voted down 99-1 or thereabouts.  This allowed all senators to say that they were protecting the underlying bill by opposing amendments they liked as well as those they did not – a claim made more credible when they rejected appealing liberalizing amendments. 

     Democratic senators’ unity, and clear focus on the need to enact the climate bill, was so powerful that Senator Schumer elected not to use several lifelines he had available.  In particular, many Republican amendments violated the Senate’s rules; by raising a point of order against them, Senator Schumer could force the Republicans to seek the sixty votes needed to waive the Congressional Budget Act.  That framing made “no” votes easier to explain, and the higher threshold allowed up to nine Democrats to cast politically convenient votes with the Republicans while still allowing the amendment to fail.  Yet that device, too, would put Democrats on record supporting policies they disfavored, opening the door to on-going Republican attempts to force votes on future legislation.  On several Republican amendments containing overt, even outlandish violations of Senate Rules, the Democratic leadership elected not to raise the point of order, fighting the amendment with a fifty-vote threshold for success.  To the amazement of those of us beseeching the leadership to invoke available points of order, every such amendment failed.  Only on two Republican amendments did the Democrats give themselves a margin of error by raising a point of order. 

     Most observers became convinced that the legislation was going to pass after Democrats voted down the seventh offered amendment, which would have reinstated President Trump’s “remain-in-Mexico” policy.  That policy polls extremely well but is difficult to reconcile with our international obligations to those fleeing oppression.  Democrats have been leery about opposing it in the past, but this time they voted it down without dissention (and also without help from any purportedly moderate Republicans).  This amendment blatantly violated section 313(b)(1)(D) of the Congressional Budget Act, but Democrats declined to raise a point of order that could have allowed nine of them to vote for it. 

     On the other hand, half of the Democratic amendments came to the floor needing sixty votes to pass.  At least one of these did irredeemably violate Senate rules, but some others probably could have been reframed to require only fifty votes to pass.  The leadership recognized, however, that adoption of these amendments would blow up their carefully-honed deal and that no Democrat wanted to be recorded as the one to scuttle important Democratic priorities.  By bringing their amendments to the floor in a form requiring sixty votes, Democrats could vote for the amendments and still know that nothing would rupture their agreement. 

     Third, Democrats showed impressive preparation.  The bill threatened to unravel near the end of the “vote-a-rama” on amendments when Sen. Kyrsten Sinema unexpectedly decided to support an amendment from Senate Republican Whip John Thune.  The Thune Amendment would narrow the bill’s corporate minimum tax and pay for it by extending caps on deductions for State and Local Taxes (SALT).  SALT caps are intensely unpopular with Democrats from high-tax states, and extending them could have jeopardized the bill in both chambers.  Once Sen. Sinema broke ranks, six other purple-state Democrats followed suit. 

     The leadership was ready, however, and as soon as the Thune Amendment passed Sen. Mark Warner offered an amendment to strip out Sen. Thune’s SALT caps and replace them with an alternative revenue source.  All Democrats supported the change, and the underlying bill was again free of poison pills.  Had the leadership not prepared amendments with alternative revenue sources and had them costed out in advance, it would have had few good options for salvaging the bill. 

     After Sen. Thune’s SALT gambit failed, Senate Minority Leader McConnell terminated the Republicans’ fourteen-hour amendment campaign and allowed a final vote.  All told, Republicans offered twenty-seven amendments and Democrats brought ten to a vote; all except Sen. Thune’s and Sen. Warner’s failed. 

     @DavidASuper1

LevinsonFest on Wrestling with Religious Diversity -- Collected Posts

Guest Blogger

Ashley Moran

Below are the collected posts on the LevinsonFest 2022 roundtable constitutional faith and veneration:

1. Ashley Moran, LevinsonFest on Wrestling with Religious Diversity

2. John Adenitire, Wrestling with Religion in Law

3. Douglas Laycock, On Friendship, Tolerance, and Religious Liberty

4. Carol Nackenoff, Stiff Joints Don’t Bend Anymore

5. Jaclyn Neo, Wrestling with Religious Diversification

6. Intisar Rabb, E Unum Pluribus: Comparative Textualism & Constitutional Faiths

7. Mark Scarberry, Wrestling with Religious Opposition to Leviathan

8. Nomi Stolzenberg, Can We All Get Along? A Tribute and a Question

9. Sanford Levinson, Wrestling with Diversity in the Contemporary World 

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Wrestling with Diversity in the Contemporary World

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022.

I begin by expressing my deepest gratitude first to Richard Albert and Ashley Moran for organizing this event and to the irreplaceable Trish Do for actually making it happen, technologically. And, of course, I’m grateful to each and every one of you of the participants. I am delighted that their appearance on Balkinization will bring them to the attention of a wider community that will much benefit from reading and thinking about them.

I want to engage in a special recognition of Doug Laycock. It’s not only that we’ve been friends and colleagues now for forty years. It’s also true that there is probably no single individual in the academy who has so obviously affected the way I think about the general issues surrounding law and religion. That being said, I find myself even more perplexed and ambivalent than usual at the present moment about what the relationship between law and religion should be, not least because of a lot of developments over these forty years or even more recently. I published a group of essays, Wrestling with Diversity, in which I expressed a variety of quite “Laycockian” views about how best to treat that relationship. But it turns out that the wrestling match has not ended!

I am increasingly dissatisfied with the relevance of most standard-form legal doctrine, which seems to me to evade many central questions, beginning, for that matter, with the Supreme Court’s almost insouciant inability to offer a cogent definition of “religion.” I suspect that Carol Nackenoff is correct in some of her comments about the present (and future) Court, but, save for their obvious power in the American legal order, I’m increasingly uncertain why I should take any of their opinions truly seriously, even when I might agree with the particular outcome. It is worth noting that our gathering occurred before the late-June blockbuster of the Court and, particularly with regard to Carol’s paper, its opinion in the Kennedy “praying coach” case. Many of us were perplexed why the Court took the case at all, given that its facts were quite peculiar and there was nothing close to a “conflict in the circuits” that demanded judicial intervention. It appears quite clear, though, that the majority of the Court was quite determined to intervene in order to write a broad opinion that served to upend many basic understandings of religion and state built up over the past half century. In no sense does the present Court seem interested in displaying any “passive virtues.” It has power and it seemingly wishes to use it.

It is foolhardy to deny the continued relevance of W. E. B. DuBois’s emphasis on the importance of the “color line,” even in the 21st century. But Jaclyn Neo’s fascinating paper about religious diversification across the world demonstrates that, whatever may have been our expectations fifty years ago, “the religion line” will play an ever more important role. Perhaps academics are becoming ever more secular and “cosmopolitan,” but that definitely does not seem to be the case for the nation or world at large. And Nomi Stolzenberg’s remarkable survey of my work over many years asks a truly crucial question: Is it possible for intellectually committed “secularists” and what might be called the “seriously religious” to get along at the present time, which I must say is very different from, say, the world in which the central law-and-religion case was Yoder?

Can We All Get Along? A Tribute and a Question

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Nomi Maya Stolzenberg 

On March 3, 1991, Rodney King, an African American man driving on a Los Angeles freeway, was chased and then savagely beaten by the police. A videotape of the beating ignited widespread criticism and charges were brought against the participating police officers for assault and excessive use of force. The trial, which took place one year later, culminated in acquittals of the four officers who were charged,^[1] in reaction to which thousands of people took part in five days of civil disturbances known variously as the LA Uprising or the LA riots of 1992. On the third day of the uprising, King gave an impromptu news conference, deploring the shooting of a security guard that had taken place and pleading for an end to the violence. The speech is famously remembered for one line, oft-misquoted as: “Can’t we all just get along?” In fact, the question that Rodney King posed was not “can’t we get along?,” but rather, “can we get along?” The latter conveys the same longing for peaceful coexistence that the mistaken paraphrase does, and indeed, King went on to say, wishfully, “we can get along. We all can get along. We just gotta. We gotta. I mean, we’re all stuck here for a while. Let’s, you know, let’s try to work it out.” But unlike the mistaken paraphrase, “can’t we get along?,” “can we get along?” is less a rhetorical question to which the answer must be yes than it is a genuine question, the answer to which remains very much in doubt. 

In roughly the same time period, Professor Sanford Levinson—Sandy, to his friends—published a set of essays posing essentially the same question, with one key difference. Whereas Rodney King expressed the desire to overcome the racial divisions that scar American society, these essays that Sandy wrote in the early 1990s were focused on the problem of religious division.^[2] More precisely, they examined the divide that exists between what Sandy described as “secularist, accommodationist liberals like myself”^[3] and “those who are religious.”^[4] They gave voice to his concern about whether these groups can get along, as opposed to splintering apart into mutually indifferent, or worse, warring camps. And they expressed the desire not just to confront the divide between secularism and religious belief but to explore the possibility of bridging it.

Climate change and the Supreme Court’s version of police abolitionism

Andrew Koppelman

West Virginia v. Environmental Protection Agency, which in June gutted the Biden Administration’s ability to reduce the electrical power industry’s carbon emissions, may be the Supreme Court’s most reckless and lawless decision (in an extremely competitive field). The Court comes close to anarchism, crippling Congress’s capacity to protect the country from disaster, and undermining the fundamental purpose of the Constitution.

I explain in a new column at The Hill, here.

Wrestling with Religious Opposition to Leviathan

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Mark S. Scarberry[1] 

This paper considers Professor Levinson’s (Sandy’s) treatment of Federalist No. 2 in his book on the Federalist,[2] and also his inaugural lecture at Touro Law School’s Jewish Law Institute, “Divided Loyalties: The Problem Of ‘Dual Sovereignty’ and Constitutional Faith.”[3] The Federalist extolls American religious unity as a basis for maintaining and deepening the American union. Sandy’s Touro lecture explores the conflict inherent in a religiously diverse nation, where loyalty to God and loyalty to the State—loyalty pledged pursuant to every government official’s oath (or affirmation) to support the Constitution—may conflict. (In this regard, we could consider the addition of “under God” to the Pledge of Allegiance during the Cold War struggle against totalitarian adversaries that demanded total loyalty to the State, but that would be a different paper.) 

I would like to say something about the role of minority Christian faiths—key elements of our religious diversity—in the development of First Amendment principles. I will suggest that the contribution of those faiths in wrestling with “Leviathan” may have made it possible for us all to live in peace, with a degree of unity. 

Little of this will be original. On an irreligiously religious note, consider Mark Twain’s Notebook comment on Adam in the Garden of Eden: “How lucky Adam was. He knew when he said a good thing, nobody had said it before.” Whether this paper includes any “good thing[s]” will be for others to say. 

In Federalist No. 2, John Jay, writing of course as Publius, asserted that the Constitution had to be ratified, or else the unity of the United States, such as it was, would be lost. The result? Separated, vulnerable and potentially hostile states or confederations. Unity was possible because Americans were “one united people”—setting aside the native American population and the enormity of the evil of slavery—who, among other commonalities “profess[ed] the same religion.” Sandy points out that “it would be easy to demonstrate the utter fatuity” of Publius’s assertion of these commonalities.[4] Most free Americans indeed were Christians of various sorts, though one might doubt that persecuted Baptists and Quakers considered themselves to be united by faith with Anglicans and Congregationalists. Nor, of course, would Jews. And the English Civil War, with its religious struggle—not nearing in ferocity the religious wars on the Continent but ending in the same year as publication of Hobbes’s Leviathan—would not have been far from their minds.

E Unum Pluribus: Comparative Textualism & Constitutional Faiths

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Intisar A. Rabb 

From one text comes many interpretations: e unum pluribus. This formula is of course an inversion of e pluribus unum (“from many, one”)—the motto for American democracy emblazoned on our money to provide as often a reminder to [property-owning] adherents of America’s “civil religion” of shared constitutional ideals, constitutional aspirations, constitutional faiths.[1] By making faiths plural, I am in part ceding the about-face that Sandy Levinson, former adherent, made in his Foreword to a new edition of his book Constitutional Faith. There, he concluded that, although the Constitution’s generalities are still fluid and thus negotiable, many of its structural elements have settled in ways that make governance and addressing problems of injustice hard.[2] The Supreme Court’s Term this year perhaps proves the point.[3] 

Taking up Sandy’s charge that scholars rarely discuss the general elements that make interpretation hard, I offer some comparative perspective from a seemingly unlikely place—Islam’s pluralistic legal system—to suggest that in any legal interpretation, including the most controversial in the U.S., difficult interpretive elements are never about a single constitutional faith. Nor are they even about religion, per se, even when they seem to be. They are about a plurality of constitutional faiths despite a single legal text. Those elements motivate core differences in the Court’s interpretive debates over fundamental privileges versus promises, textualism versus purposivism, status quo-preserving originalism vs. rights-promoting pragmatism.[4] I aim to explore those elements with an eye to the plurality of opinions that emerge from shared legal texts, now that stare decisis is in question as a way to settle them and now that interpretations of history and tradition matter a lot toward the same end. 

Consider Dobbs v. Jackson Women’s Health Organization, the Court’s recent decision overturning its 1973 decision Roe v. Wade and its companion 1992 decision Planned Parenthood v. Casey.[5] Differing interpretive approaches and conclusions in its majority and dissenting opinions display competing visions of “history and tradition.”[6] Those competing visions reflexively drive the interpretive approaches that dictate which history and which traditions to adopt—in Dobbs, a supermajority adopted an originalism that somehow excluded the history of slavery and its ongoing consequences, as well as the Constitution’s Reconstruction Amendments meant to address it, as Professor Michelle Goodwin has powerfully pointed out.[7] And both sides reveal competing accounts of the otherwise agreed-upon common law doctrine of stare decisis and when to forego it. In the end, all of these disagreements about history and interpretive method reveal differing value commitments in the guise of competing beliefs, not explicitly in religious faith (despite its obvious relevance to abortion),[8] but in the Constitution and the role of the Court: that is, competing constitutional faiths, plural.[9] 

As with the popular religious and political polarization about abortion, interpretive polarization was evident in the questions presented before the Court, with no room for nuance, discussion, or compromise. Each side was at pains to point out that only one position should and could reign supreme, and Justice Alito was happy to oblige in Dobbs.[10] But in reality, on the court, judges must wrestle with diversity.[11]

Wrestling with Religious Diversification

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Jaclyn L. Neo 

In the introduction to Sandy Levinson’s book Wrestling with Diversity, he states that his “principal goal” is “to examine the various ways that we attempt to come to terms with—to ‘wrestle’ with—the complex issues presented by contemporary life in a decidedly diverse, multicultural, and culturally pluralistic society.” This is a noble aim. We live in a diverse society with multiple sources of divisions (e.g., culture, language, ideology, and religion). In this post, I want to specifically orient our minds towards religious diversification as a social dynamic that requires critical attention in the public eye. This means that with increasing religious diversification, the old constitutional settlements of asserting the privatizing of religion, and ideologically bracketing religion, may no longer be sufficient.

Stiff Joints Don’t Bend Anymore

Guest Blogger

This post was prepared for a roundtable on Wrestling with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Carol Nackenoff

‘there is room for play in the joints’ between what the Establishment

Clause permits and the Free Exercise Clause compels.^[1]

It is an honor to participate in this celebration of Sandy Levinson’s 40 years at the University of Texas at Austin. Sandy’s enthusiasm for interacting with smart undergraduates led him to accept my invitation to serve as an examiner for my Constitutional Law honors seminar at Swarthmore, and he has also been Swarthmore’s Constitution Day speaker.

In Wrestling with Diversity (2003), Sandy Levinson is especially concerned with the arrangements through which Americans might interact peaceably with other Americans with religious and cultural worldviews different from their own. Even in the founding era, a number of influential people thought those in the new United States were diverse enough to be worrisome—there were those German-speakers in Pennsylvania; there were Quakers, Catholics, and Jews; people living in southern states and those on the western frontier were seen as having such different values from those in the northern Atlantic states that it was hard to imagine how they might form a single union.^[2] Sandy argues there was no singular “People” in whose name the Constitution of 1787 was created. Since 1787, more elements of the population have been included in the U.S. citizenry, and the nation is comprised of a much more diverse array of people (religiously, culturally) than at the founding. Sandy searches for solutions that might achieve “some kind of unum among the pluribus of American society.”^[3] Toward this end, he finds exposure to other worldviews necessary—secular perspectives for those in insular religious communities and diverse religious perspectives for those who live in highly secular ones.

Today, this looks like an increasingly tall order, and the Court might even be impeding, rather than aiding, such goals. A focus on recent constitutional struggles illuminates some difficulties and stakes in wrestling with religious diversity and diverse views about the place of religion in the public realm. The Court has weighed in on quite a few blockbuster religion clause cases since Wrestling was published. Not only are Establishment and Free Exercise Clause cases favorites on the Roberts Court’s docket, but many cases involve their intersection.

The Parliamentarian’s Curious Definition of “Merely Incidental”

David Super

     Now that Sens. Schumer and Manchin have reached agreement on the Inflation Reduction Act (IRA), the Senate Parliamentarian’s role again comes to the fore.  She will have two crucial functions. 

     First, she will rule on which provisions on the agreed legislation meet the Congressional Budget Act’s requirements for inclusion in a “reconciliation” bill (the so-called “Byrd Rule”).  This is crucial because, with united Republican opposition, the IRA can only pass through the narrow exemption from filibusters that the Act provides to budget reconciliation bills. 

     And second, the Parliamentarian must decide which amendments to that legislation may be offered on the Senate floor.  Although the Act caps the amount of time that may be spent on floor debate, it does not limit the number of amendments put to a vote so long as those amendments comply with the Act’s rules for germaneness and its restrictions on the contents of reconciliation bills.  Senate Republicans have expressed no interest in improving the legislation, but they do seek to force Democrats to cast politically damaging votes to defeat their amendments.  And because the Democrats’ majority is so narrow, every single Democrat must vote against every single “poison pill” amendment for the legislation to survive. 

     Several of the Congressional Budget Act’s restrictions on reconciliation legislation enforce the congressional budget resolution that authorized the bill.  Because the budget resolution under which Democrats are moving this bill passed over a year ago, when hopes were much higher, the IRA will easily fall within all budgetary constraints.  Republican amendments could theoretically be ruled out of order for breaching budgetary ceilings, but Democrats likely would be only too happy to vote down “budget-buster” amendments that would shrink the $300 billion in deficit reduction the IRA contains. 

     As a result, the provisions of the Congressional Budget Act most likely to affect the IRA debate are those designed to keep non-budgetary matters from hijacking the reconciliation vehicle when they lack the support to move as regular legislation.  In particular, she will have to apply section 313(b)(1)(D), which declares that “a provision shall be considered extraneous if it produces changes in outlays or revenues which are merely incidental to the non-budgetary components of the provision”. 

     Neither the Parliamentarian nor the Senate as a whole have articulated a clear definition of what it means for a budgetary effect to be “merely incidental” to non-budgetary components.  Obviously one could not rewrite the Endangered Species Act or the Civil Rights Act of 1964 and slip it into a reconciliation bill by adding some trivial fee somewhere.  But how should less extreme cases be decided? 

     No minimum dollar threshold can do the job:  small revenue increases or spending cuts can add up to have a significant impact on the deficit.  And surely a small fiscal effect could be merely incidental to an overhaul of the nation’s telecommunications statutes yet not merely incidental to the treatment of import duties on day-minders. 

     Several years ago, the Parliamentarian rejected Republican efforts to exclude Planned Parenthood from Medicaid on reconciliation legislation.  She acknowledged that doing so might save some money but believed that restricting abortion, rather than lowering Medicaid’s costs, was the primary motive of the provision’s authors. 

     On the other hand, she allowed Republicans to gut protections for the Arctic National Wildlife Refuge on the 2017 reconciliation act.  A strong argument could be made that aiding oil and gas companies, and weakening environmental protection generally, were far more central to the proponents’ multi-year campaign to drill in the refuge than the relatively meager federal revenues anticipated.  The Parliamentarian concluded, however, that the revenues were enough to defeat a “merely incidental” point of order. 

     Throughout much of 2021, the Parliamentarian batted down several proposals to liberalize immigration laws as part of the Build Back Better reconciliation bill under consideration at that time.  Legalizing undocumented immigrants outside of reconciliation is very difficult because the Congressional Budget Office scores many such measures as having a large cost because it believes the immigrants’ family members (many of whom are U.S. citizens) would then feel more at ease accessing human services programs. 

     This would seem a classic case of the nation deciding on its fiscal priorities, the very purpose of the reconciliation vehicle.  The Parliamentarian ruled, however, that because many people passionately support helping immigrants and are largely indifferent to the fiscal impact of doing so, those fiscal effects were “merely incidental” to the non-budgetary effects on immigrants.  I disagreed with that ruling at the time – and uncertainties about its basis contributed to Democrats’ disastrous decision to delay moving the Build Back Better reconciliation bill – but it is now established precedent. 

     Republicans seem unlikely to try to provoke votes on abortion next week, but the other two precedents could be important. 

     The deal between Sens. Schumer and Manchin contains so provisions for oil and gas leasing on federal lands.  Many environmentalists could do without expanding fossil fuel consumption, but leading groups recognize that these provisions are essential to holding the whole package together, with its transformational initiatives supporting renewable energy development.  Based on her ruling on the Arctic Refuge, the Parliamentarian ought to allow this provision. 

     Republicans surely would like to force Democrats to vote on various anti-immigrant measures.  For example, they may try to force the Administration to restrict persecution victims’ ability to claim asylum in this country, as international law requires.  The fiscal effects of these provisions are likely to be quite trivial.  Moreover, much of their fiscal impact is likely to be on programs funded with discretionary appropriations, which does not count for reconciliation purposes because those programs budgets are fixed in appropriations bills. 

     These would seem to be straightforward examples of proposed changes in law with a large real-world impact and a “merely incidental” fiscal side.  These also would fit the Parliamentarian’s rationale for rejecting immigration proposals a year ago:  their motivation is hostility to immigrants – or, more precisely, seeking to mobilize voters who are hostile to immigrants – rather than any impact on the public fisc.

     More broadly, if the Parliamentarian were to allow any anti-immigrant amendments to come to a vote after blocking all pro-immigrant legislative proposals a year ago, she would create a procedural regime with a deeply unbalanced substantive effect:  immigrants’ opponents may pursue their passions through reconciliation while immigrants’ supporters may not.  For a Parliamentarian who cares more than some judges about avoiding the appearance of favoritism, deviating from her strict exclusion of immigration law changes from reconciliation could raise serious concerns. 

     Once the current legislation has been completed, the Parliamentarian could do a great service to the Senate – and to those (including the House of Representatives, the White House, the Congressional Budget Office, and the Joint Committee on Taxation) who depend on the Senate – if she would publish a clear, systematic statement of how she interprets “merely incidental”.  Whatever the merits of a case-by-case method of statutory interpretation may be in the courts, her failure to issue opinions explaining her rulings is causing considerable confusion and wasted effort while damaging confidence in her office.

     @DavidASuper1