One of the two books I downloaded to Kindle was the updated version of Keeping Faith with the Constitution, a chapter on freedom of expression and an index being the chief additions. Let me add that the computerized automatic text to speech feature (male or female voice) is pretty neat, if a bit rough. [The link provides a complete download of the original version and discussion, including a summary by two of its authors, one an Obama appellate judge nominee filibustered by the Republicans.]
The book is a useful account meant to be approachable by the general public discussing how fidelity to the original Constitution includes keeping its particulars up to date. The lessons of history, such as the women's rights movement, of special importance. Antiquated beliefs of a woman's role per 19th Century thought is not the limit of what equal protection requires. This is part of the attempt to turn originalist thought against itself. In other words, the core principles of the Constitution matter, and the way to keep them active is to keep them up to date as to the specifics. Relying on merely a limited view of what was understood in the past under this light is problematic.
Lee v. Weisman can be used to put this principle into practice. This is a 5-4 ruling by Justice Kennedy from 1992, but could probably come down the same way today. Kennedy argues that a prayer ceremony at a public school graduation violates the First Amendment (as incorporated into the Fourteenth) because it in effect coerces dissenters to join in, given the importance of the event, peer pressure and so forth. Precedent and Kennedy-esque appeal to constitutional principle is cited.
Justice Scalia, particularly annoyed since Kennedy a few years before appeared to take a less restrictive view in a holiday display case, dissented with his usual verve. Public ceremonies historically provided some invocation of God and this was no different. Precedent could be distinguished, granting it was to be taken as sound. His citations generally were to governmental ceremonies, however, one exception involving students going to a graduation at a church (!). Justice Souter's more expansive concurrence, one that rested in part on original understanding and text, was not even referenced. Better to snidely comment on how the idea dissenters here would be pressured to conform is so ridiculous.
Justice Souter's concurrence underlines that originalism need not be seen as purely a conservative approach. [Justice Blackmun concurred to also argue that coercion alone isn't the test, but focusing more on precedent.] It also shows that history is of some value, if we don't have a selective memory. Still, though this was not uncommon in such cases, the opinion is troublesomely incomplete. And, the book helps understand why. A full understanding would cite the history of public education, one where selectively respect of religious belief is well documented.
Such history would make Scalia's selective appeal to the value of public honoring of "God" -- alone a tad ironic given his own counseled the value of praying in private -- appear even more dubious than it already does. But, even when someone like Justice Black cited religious disputes that guided the writing of the First Amendment, the whole story was not expressed. Keeping faith to the First Amendment includes learning the lessons of history since its ratification. This includes repeated sectarian de facto establishments in public schools, even if courts somewhat artificially address limited questions that made the problems seem more trivial.
The fact four opinions missed this basic fact in an important respect is as troubling as it is normal. We saw it too in Heller and its follow-up -- the history of the right keep and bear arms should include events after Reconstruction, and not just in some summary paragraph or reference. Lawrence v. Texas suggested that the last fifty years is of special importance when understanding the contours of substantive due process. The value of an up to date history can be seen as useful as a general principle. A page of history retains its importance, particularly if it is a complete one.
It helps too when the justices don't just -- as here -- basically talk past each other. Kennedy is particularly at fault, doing his usual ex cathedra routine with no cites to the dissent (or concurrences), even by the usual footnote approach. Scalia often doesn't seem to truly want to see things through the other person's eyes, this involving less disdain than he usually shows, but at least he makes an effort to respond. A complete use of history might provide a way to use the tools offered by the other side (history being Scalia's touchstone, not just founding era history at that) to have a real conversation.
One can hope, at least.
The book is a useful account meant to be approachable by the general public discussing how fidelity to the original Constitution includes keeping its particulars up to date. The lessons of history, such as the women's rights movement, of special importance. Antiquated beliefs of a woman's role per 19th Century thought is not the limit of what equal protection requires. This is part of the attempt to turn originalist thought against itself. In other words, the core principles of the Constitution matter, and the way to keep them active is to keep them up to date as to the specifics. Relying on merely a limited view of what was understood in the past under this light is problematic.
Lee v. Weisman can be used to put this principle into practice. This is a 5-4 ruling by Justice Kennedy from 1992, but could probably come down the same way today. Kennedy argues that a prayer ceremony at a public school graduation violates the First Amendment (as incorporated into the Fourteenth) because it in effect coerces dissenters to join in, given the importance of the event, peer pressure and so forth. Precedent and Kennedy-esque appeal to constitutional principle is cited.
Justice Scalia, particularly annoyed since Kennedy a few years before appeared to take a less restrictive view in a holiday display case, dissented with his usual verve. Public ceremonies historically provided some invocation of God and this was no different. Precedent could be distinguished, granting it was to be taken as sound. His citations generally were to governmental ceremonies, however, one exception involving students going to a graduation at a church (!). Justice Souter's more expansive concurrence, one that rested in part on original understanding and text, was not even referenced. Better to snidely comment on how the idea dissenters here would be pressured to conform is so ridiculous.
Justice Souter's concurrence underlines that originalism need not be seen as purely a conservative approach. [Justice Blackmun concurred to also argue that coercion alone isn't the test, but focusing more on precedent.] It also shows that history is of some value, if we don't have a selective memory. Still, though this was not uncommon in such cases, the opinion is troublesomely incomplete. And, the book helps understand why. A full understanding would cite the history of public education, one where selectively respect of religious belief is well documented.
Such history would make Scalia's selective appeal to the value of public honoring of "God" -- alone a tad ironic given his own counseled the value of praying in private -- appear even more dubious than it already does. But, even when someone like Justice Black cited religious disputes that guided the writing of the First Amendment, the whole story was not expressed. Keeping faith to the First Amendment includes learning the lessons of history since its ratification. This includes repeated sectarian de facto establishments in public schools, even if courts somewhat artificially address limited questions that made the problems seem more trivial.
The fact four opinions missed this basic fact in an important respect is as troubling as it is normal. We saw it too in Heller and its follow-up -- the history of the right keep and bear arms should include events after Reconstruction, and not just in some summary paragraph or reference. Lawrence v. Texas suggested that the last fifty years is of special importance when understanding the contours of substantive due process. The value of an up to date history can be seen as useful as a general principle. A page of history retains its importance, particularly if it is a complete one.
It helps too when the justices don't just -- as here -- basically talk past each other. Kennedy is particularly at fault, doing his usual ex cathedra routine with no cites to the dissent (or concurrences), even by the usual footnote approach. Scalia often doesn't seem to truly want to see things through the other person's eyes, this involving less disdain than he usually shows, but at least he makes an effort to respond. A complete use of history might provide a way to use the tools offered by the other side (history being Scalia's touchstone, not just founding era history at that) to have a real conversation.
One can hope, at least.