Madison's Music (22 page)

However you decide the chaplaincy and public prayer cases, though, there is no escape from the paradox of two apparently discordant religion clauses pulling in different directions. Can such discord be harmonized?

DOUBLING DOWN ON DIVINE MADNESS

A narrow majority of the current Supreme Court seeks to tame the paradox by leveling both religion clauses down so that they don't clash. The levelers read both clauses as forbidding improperly motivated, irrational, or discriminatory government action dealing directly with religion, pro or con, but, as in the town meeting case, uphold just about everything else, even when the challenged government program has the effect of suppressing religious conscience or aiding religious institutions. The leveling-down approach turns the religion clauses into bland assurances that religion will be treated no better and no worse than comparable secular institutions. There is, of course, nothing wrong with such an assurance of equal treatment of religion. It is merely the flip side of Justice Harlan's insistence that secular conscience be treated as respectfully as religious conscience. But an exclusive focus on leveling down overlooks Madison's recognition of the immense psychological power of religious beliefs and experiences. The Court's current tendency to tamp down the two religious clauses decreases the tension between them, but at the cost of the structural role of freedom of conscience as the essential starting point for the entire Bill of Rights.

The current Supreme Court's leveling-down approach permits
the government to invoke ordinary drug laws to criminalize the use of peyote in Native American religious ceremonies. It lets the state drive a logging road through a Native American burial ground without considering readily available alternative routes. It condones denying convicted Muslim and Jewish prisoners access to pork-free diets and to religious services on their holy days, as well as a refusal to permit orthodox Jewish or Sikh members of the armed forces to wear religious headgear indoors.
¹⁴
Leveling down also permits financial aid or other forms of government support to religion through state scholarships to study for the ministry, financial aid to religious colleges, or tuition vouchers for parochial schools, even when the overwhelming effect of a particular program is to funnel aid disproportionately to religious institutions.
¹⁵
Justice Alito has suggested that he would even permit a taxpayer subsidy to cover the cost of allowing religious employers to opt out of paying for health insurance covering contraceptives, but the full Court has not yet faced the question. Stay tuned.

I believe that the key to harmonizing the two opening clauses in the Bill of Rights is not to level them down. Instead, we should
double down
on Madison's understanding of the extraordinary power of religious conscience for good or ill. Madison's vision calls for heightened not lessened protection in both Free Exercise and Establishment settings. Viewed as parallel responses to Madison's understanding of and respect for the enormous power of the religious impulse, the apparent paradox resolves into structural harmony. Ordinarily, we expect citizens to apply a rational cost/benefit analysis in deciding whether to comply with a government regulation or an official duty. When the cost of disobedience is high—such as criminal conviction or public obloquy—we assume that a rational citizen will choose to comply with the law. Madison understood, however, that rational analyses are useless when a true believer is forbidden by government to carry out the commands of god or is told by god to disobey the state. The true believer, by definition in the grip of divine madness for good or evil, has no moral choice but to obey god or conscience. In order to spare people from such a
dilemma, Madison's poem provides heightened constitutional protection both
from
and
of
religion.

Of course, where government action is impermissibly motivated by hostility toward religion or an impermissible support of it, both the levelers and the divine-madness justices will strike it down, even if the challenged action advances a permissible government interest. For example, a local zoning ordinance forbidding the ritual slaughter of chickens that was intentionally designed to drive a minority religion out of town is unconstitutional under both a leveling-down and a divine-madness reading of the Free Exercise Clause.
¹⁶
Similarly, laws aimed at introducing religion into the public schools by requiring the reading of the Bible, the recitation of a prayer, the display of the Ten Commandments, or the teaching of creationism
¹⁷
are unconstitutional under both a leveling and a divine-madness reading of the Establishment Clause. But in the many settings where the government's purpose is opaque or unconnected with religion as the courts define it (as in the passage of drug laws), the leveling-down approach provides little or no constitutional protection for or against religious conscience, while the divine-madness reading is true to Madison's recognition of the power of the religious impulse.

As we've seen, even Madison's divine-madness reading of the Free Exercise Clause has limits. Madisonian respect for conscience does not include behavior that risks harm to others or shifts the burdens of citizenship to third persons. That's why subsidizing the cost of a religious employer's refusal to pay for health insurance covering contraception would violate the Establishment Clause. Nonbelieving taxpayers would be forced to bear the costs of someone else's religious observance. A harder question is whether the ban on voluntary plural marriage by adults is constitutional when it conflicts with the tenets of a religion. My guess is that the current Court would continue to uphold the nineteenth-century ban on plural marriage in order to protect vulnerable young women,
¹⁸
but I'm not sure that such a paternalistic approach would be consistent with Madison's intense preoccupation with freedom of conscience.
It may be that grown women know better than the state what kind of life (or marriage) to choose for themselves. Maybe the best answer is to set a minimum age of twenty-five for entry into plural marriage, and ensure an easy way out.

In the end, neither text nor history can fully resolve the paradox of two religion clauses pulling in different directions. But Madison's respect for the enormous power of religion, for good or ill, is the key to understanding them as powerful protections
from
and
of
the force of the religious impulse.

9

The Costs of Ignoring Madison's Music

The Enigma of Judicial Review

Our democratic scorecard leaves a good deal to be desired. The Electoral College, with a vote allocation formula that overrepresents rural states and constantly threatens to choose (and twice
has
chosen) the loser of the popular vote as president, is nobody's ideal of a distinguished way to elect a democratic chief executive. Nor can we be proud of our absurdly malapportioned Senate, where Montana, with 570,000 people, enjoys the same political representation as California, with 38 million, and where a filibuster rule enables senators representing 11 percent of the people to block laws desired by senators representing more than 89 percent. We certainly can't brag about the way we elect members of the House of Representatives when more than 80 percent of the elections are rigged by gerrymandering, or about House procedures where, under current rules, 118 Republicans can prevent the remaining 317 members from voting on legislation. Nor can we be proud of our appalling approach to election administration and voter registration. We have the lowest electoral turnouts in the democratic world, especially by the poor. If more than half the people vote in a presidential election, we consider it a triumph. We get positively giddy if all the votes actually get counted. Finally, if someone tried, he couldn't design a worse way to finance democracy than our judicially imposed campaign finance system, which guarantees the very rich, including large for-profit corporations, an absolute right
to spend as much as they can in often successful efforts to manipulate voters and control elected officials.

Despite our less than stellar democracy report card, though, we can justly take credit for one of the most important contributions to the art of democratic governance. We pioneered the idea of giving unelected judges the power to trump the outcome of the democratic process in the name of enforcing the Constitution. We call it judicial review and celebrate it as the key to harmonizing democratic rule with individual rights. Most of the democratic world has now adopted a variant of the practice. But granting such power to a small group of black-robed bureaucrats carries real questions and risks. First, there is the troubling question of where American judges get their judicial review power from. Unlike European constitutions, the text of the U.S. Constitution doesn't contain a single word about it. Then there's the fact that the provisions of the Constitution that really matter, like the Bill of Rights, almost never have a single, objectively knowable meaning. Judges must decide what they actually mean, but more than two hundred years into our experiment with judicial review there is still no consensus about how judges should go about reading the Constitution's ambiguous text, often rendering the outcome of judicial review as unpredictable as the spin of a roulette wheel. Finally, history teaches that American judges have too often gotten the constitutional text terribly wrong, reading the Constitution in ways that reinforce the powerful and ignore the weak.

That's why recovering the ability to hear Madison's music is so important. Remembering how to read the Bill of Rights, especially the First Amendment, as a coherent narrative of democracy instead of a series of unconnected commands would immensely enrich a judge's interpretive tool kit, providing much needed guidance to intellectually honest judges and a firmer popular understanding of our most important political text. While recovering Madison's music will not turn judicial review into a mechanical process with a single right answer (the luminous abstractions in the Bill of Rights
will always resist simplistic readings), it will lessen the arbitrariness of our current approach and should lower the odds that a judge will get a fragment of the text catastrophically wrong.

WHERE DOES JUDICIAL REVIEW COME FROM?

As an initial matter, though, why should we worry so much about how judges, as opposed to legislators, presidents, or the people, read the Bill of Rights? Why should an unelected Supreme Court justice's reading trump everybody else's reading? In short, exactly where does the power of judicial review come from?

Most Americans believe there is only one United States Constitution. Physically, of course, that's true. The signed originals of the 1787 Constitution, the 1791 Bill of Rights, and the subsequent seventeen amendments are locked up safe and sound behind plate glass in the Rotunda of Freedom at the National Archives. Most constitutional experts (including virtually all politicians and many judges) insist that there is only one legally correct meaning for each provision in the constitutional text. Expert after expert claims to have discovered the constitutional Rosetta stone that will instruct judges how to decipher the constitutional text's one true meaning. The problem, of course, is that the experts and judges disagree—often bitterly—about which Rosetta stone to use and what that one true meaning is. The problem is made worse by the failure of the Constitution to say anything about giving unelected judges the final power to read the Constitution. In 1803, Chief Justice John Marshall insisted in
Marbury v. Madison
(yes, our James Madison, making a cameo appearance as President Jefferson's secretary of state) that an American judge, confronted with a collision between the constitutional text and a congressional statute, has no choice but to give preference to the constitutional text, even if that means overturning an act of Congress.
¹
Since then, whenever anyone asks where the awesome power of judicial review comes from, judges and law professors confidently answer,
Marbury v. Madison
. But my nose gets a little longer each time I use Marshall's reasoning
to justify a judge's power to have the last word about the one true meaning of the Bill of Rights. If
Marbury
is really where judicial review comes from, we're in big trouble, because the case is a farce on just about every level. The facts read like the script of a Marx Brothers movie about life on the farcical island of Barataria, with politicians, office seekers, and judges scurrying about, behaving in antic ways. As for the law, Marshall's legal reasoning wouldn't pass muster in my first-year law class. In fact, the legendary chief justice cynically manipulated the facts and the law in an effort to score political points against President Jefferson, even if it meant sacrificing the rights of the litigants before the Court. When we take off the rosy self-congratulatory lenses through which we venerate
Marbury
as a bedrock of our political system, the case is revealed as a naked judicial power grab.

Judicial review is too important to our democracy and too valuable to our freedom to be left dangling from
Marbury v. Madison
. But don't take my word for it. Consider the case for yourself, without the hot air and self-justification that usually afflicts lawyers and judges when they try to explain where judicial review comes from. It's like trying to explain the origin of babies to your young kids. The product is sublime, but the process of creation is left to euphemisms like the stork.
Marbury
is the stork that brings us judicial review.

Those of you, dear readers, who do not enjoy the louche pleasures of American legal history can take my word that the facts of
Marbury
border on the farcical and the legal reasoning is seriously flawed. You may skip to
page 171
. But you'll be sorry.