Reply to Fleming

I am honored that Professor Fleming has taken the time to read my book so carefully. Jim raises three kinds of questions of Eloquence and Reason: (1) the book's methodology and theoretical aims; (2) its causal claims about the Gobitis to Barnette sequence; and (3) its characterization of the Lawrence Court's deployment of the First Amendment on behalf of sexual autonomy. I'll take these up in turn.

I. General Comments

Jim wonders whether the book argues that the First Amendment is the "defining feature" of American constitutional culture or is simply interested in exploring First Amendment subculture. The answer is both, to varying degrees: I am primarily interested in explicating the contours of the political belief system and grammar we together call "First Amendment law." I am concerned with how that emerged over time, and, as a theoretical matter, how broader institutional and cultural processes gave us the modern First Amendment we have. That said, Eloquence and Reason also contends that, for better or for worse, and as originally designed or not (I think probably not), the First Amendment has come to dominate both the development of legal doctrine and ordinary Americans' attitudes about the Constitution. Because the book focuses on a handful of case studies during the twentieth century in the name of theory, it necessarily offers an incomplete history and partial ethnography. But, even though its sources consist of the writings and speeches of judges, lawyers, and elected officials, once more work is done I would expect to find that First Amendment ideas influence how ordinary people think of the Constitution.

When the book analyzes metaphor, it endeavors to make a general defense of the practice of transmitting constitutional ideas in metaphorical terms, while leaving room for just the kind of critique of specific metaphors that Jim offers of the "marketplace of ideas."

II. Gobitis to Barnette

Jim is skeptical that executive branch action did much, if anything, to cause the Supreme Court's shift from one position to another. I don't deny the role that personnel changes and changes of mind played, but argue that everything occurred in an environment shaped significantly by presidential action. While the Supreme Court was going to have to hear Walter Barnett's appeal, there are a few ways presidential language may have "caused" the outcome and content of Barnette:

1. To the extent that presidential rhetoric flooded public discourse, its basic thematic opposition to the logic of Gobitis (especially its claim that security and liberty stand in opposition) weakened that decision's capacity to gain popular assent.

2. Presidential words and executive branch actions, coupled with a refusal to endorse Gobitis publicly, signaled to the High Court a refusal to cooperate in enforcing its constitutional vision.

3. Presidential emphasis of the right to speech and religion between the years of 1940 and 1943 empowered pro-rights advocates. These included members of the media, high officials, DOJ lawyers, lawyers for the litigants, and receptive members of the Supreme Court, who specifically mentioned FDR's speeches and argued that Gobitis interfered with the president's priorities.

4. Presidential emphasis on the First Amendment may have inclined those within the administration to favor the following changes to Supreme Court personnel: Stone to Chief Justice, Robert Jackson for Stone's seat, and Wiley Rutledge for Jimmy Byrnes. Each of these individuals opposed Gobitis.

5. These words not only wrapped the plight of the Jehovah's Witnesses in major war-inspired themes but also offered a roadmap to follow should the Court wish to present a united front regarding the president's war agenda.

To be fair, I delve more deeply into these historical and theoretical claims in a subsequent article, Reconsidering Gobitis. My posts here, here, and here discuss archival materials suggesting that DOJ lawyers sought to overturn Gobitis and that extra-judicial statements by the executive branch impacted the Court's decisionmaking.

Footnote Four of the Carolene Products decision is important to contemporary theory. But here is where I fear Jim may be reading too much back into the past. Footnote Four cites a few First Amendment cases for the proposition that certain rights trigger "more exacting judicial scrutiny," and is a bit cagey at that (specifically mentioning "dissemination of information," "interferences with political organizations," and "peaceable assembly"). It does not explicitly use the "preferred position" formulation or otherwise place First Amendment rights above other non-economic liberties. Harlan Fiske Stone's Gobitis dissent mentions the process-clearing and "discrete and insular" rationales, but it nowhere claims that the First Amendment is to be privileged over other political rights. It's in his Opelika I dissent that Stone explicitly employs that formulation for the first time: "the Constitution, by virtue of the First and the Fourteenth Amendments, has put those freedoms in a preferred position." This more subtle reading of the decisions shows that a political order privileging the First Amendment was on the ascent during this period, but that it was not built all at once in 1938, nor complete by 1943.

III. Autonomy

Jim is among the most eloquent and committed defenders of individual autonomy today. And I quite agree that in the pluralistic order most of us accept today, it is absolutely essential to reconceive how the law can respect people of diverse experiences and life plans so as to promote human flourishing. But I don't pretend that sexual autonomy was on the minds of the Founding generation or that it is self-evident from the handful of cases decided. Rather, any right of autonomy must be (as Jim's own labors attest) constructed, articulated, and defended in ways that, if we are honest, will have seemed foreign to the generation that authored original text but will be persuasive to us living today. For me, Lawrence v. Texas is defensible on any number of grounds. So when I point out that the Lawrence Court has drawn on the First Amendment to "reconstruct" the notion of sexual privacy, I mean the following:

First, normative theory must be rooted in historicity if it hopes to persuade. Despite the fact that Justice Douglas may have downplayed the First Amendment over successive drafts, the published decision in Griswold v. Connecticut nevertheless draws heavily from First Amendment examples in its articulation of the various "zones of privacy." That Douglas was initially inclined to draw on the First Amendment more aggressively is compatible with the claim of Eloquence and Reason that the First Amendment has an influence—perhaps too much influence—on contemporary adjudication. For it's possible to say that being too wedded to the First Amendment may have prevented a more full-throated articulation of autonomy.

Second, Bowers v. Hardwick did violence to the emerging jurisprudence of privacy or autonomy; hence, the need for "reconstruction" of liberty insofar as human sexuality is concerned. Among other things, that decision appeared to make liberty turn on sexual preference (if the Court wished to return to some kind of privacy-is-for-procreation formulation, it should have overruled Eisenstadt v. Baird). But Bowers, while it damaged then-existing doctrine, also was a "socially plausible" reading of the Constitution in 1986. That social attitudes change, I think, is appropriately if cautiously acknowledged in Lawrence.

So, then, if I think Lawrence is socially plausible in 2003, normatively defensible, and even worth celebrating, what do I mean when I say that it is still necessary to engage "the hard work of making lasting connections" between the First Amendment and sexual liberty?

Just this: the cases do not articulate well why the right to free speech is implicated by the choice of sexual partners, for straights or for gays. Instead, Lawrence (incorporating Griswold and Casey) trades on widely-accepted belief in expressive values (by the way, I agree that today there is popular support for some notion of sexual autonomy). This type of appropriation and synthesis is a staple of constitutional decisionmaking--indeed, I have argued as much. But that doesn't change the fact that connections between domains of constitutional knowledge should be elaborated rather than merely asserted. Like the talented theorist he is, Jim points out that earlier cases already suggested that autonomy implicates expressive values. But those controversies involved making choices about whether or not to beget a child, and more importantly, the rulings only gesture in the direction of speech and association.

Do sexual choices really speak to the world in a coherent way or are they better understood as control over one's body or resistance of control by others? If sexual choices are expressive, under what circumstances? When securing the durable assent of elites and the general population is the name of the game, it's important to tend to these matters—if not in Lawrence, then down the road. Most of these questions having to do with persuasiveness lie beyond the scope of my book, which demonstrates only why arguing over liberty in such terms may be legitimate. Eloquence and Reason ends right around where Securing Constitutional Democracy begins.

Jilting the President for Congress

Cross-posted at Legal History Blog:

An intriguing aspect of West Virginia State Board of Education v. Barnette involves the Justices' choice of partners in making the sale to the American public that the Constitution embodies a more robust right of individual conscience than what they believed a few years earlier. The background assumption many scholars work with today is that, all things being equal, the Supreme Court prefers not to go it alone, particularly when the institution anticipates controversy ahead. Robert Jackson's early drafts of the opinion suggest that his preferred partner originally was the presidency. This makes sense on a number of levels, given that executive branch officials had flooded the zone on the matter, Jackson and others may have honestly been swayed by their statements and actions, and independent reasons exist for thinking that the modern presidency enjoys an influential role in framing constitutional questions.

But Jackson at some point appears to have changed his mind during the opinion writing process, and the published opinion not only sought to erase the appearance of presidential cooperation but also gestured toward Congress. Sandwiched between two sentences in Barnette on the risks to the Constitution posed by overzealous local officials is this sentence: "The action of Congress in making flag observance voluntary and respecting the conscience of the objector in a matter so vital as raising the Army contrasts sharply with these local regulations in matters relatively trivial to the welfare of the nation."

Note that the argument is only that the passage of a recent federal law and the existence of a textual commitment to Congress "contrast[] sharply" with a relatively minor claim by local officials to work in the federal interest, not that the federal law or Congress's power to raise an army is actually violated by a mandatory flag salute. In other words, a clash of federal and state interests is a strong suggestion rather than a firm conclusion.

What caused this aspect of the switch and what does it reveal?

The decision to swap partners merits further digging and rumination. For now, let me offer a few additional thoughts beyond my prior writings. First, the development may reflect no more than respect for formalism, since the administration was not a party to the action. On the other hand, DOJ was not present to defend the flag law or Congress's power to raise an army, either, so while formalism may explain in part a decision to jilt the presidency, it doesn't completely explain the Court's decision to take up with Congress. The argument that the federal flag law preempted conflicting state and local laws was made in the DOJ lawyers' article, pressed by the ACLU as amicus curiae below, and rejected by the three-judge panel that first heard the action—which means that the Supreme Court ended up watering down the argument, but found it useful anyway to imply federal-state friction. Still, at least the argument had already been made somewhere during the lawsuit.

Second, formalities aside, Congress is often an attractive partner because many Americans think of the legislative branch as most in tune with popular preferences. As an institution, it also has a hard time talking back in a single voice. Given the collective action problems involved in repudiating the Barnette Court's inconclusive assertion of a federal interest in all matters concerning the flag, the Justices may have felt it reasonably safe to imply that the Court and Congress were in accord on the matter. Since it hadn't issued a strong endorsement of Gobitis already, Congress was unlikely to do anything to shatter the illusion of Judiciary-Congress cooperation (though you can never fully predict a reaction to legal decisions).

Third, seeking cover behind legislative prerogatives may reflect some hangover effect from the New Deal years—including increased suspicion of presidential authority left over from the court-packing crisis. It is possible, of course, to argue that FDR was not nearly as popular in the 1940s as he had been in the 1930s. If this is true, then the contingent, oscillating nature of a particular office-holder's popularity may have affected the ultimate presentation in Barnette.

Photo credit.

Robert Jackson's Memo to FDR on Gobitis

Cross-posted at Legal History Blog:

On June 3, 1940, then-Attorney General Robert Jackson authored a memo to President Franklin Roosevelt, as was his practice, discussing the various Supreme Court decisions in which the United States had an interest. Jackson singled out Minersville School District v. Gobitis, even though the United States filed no brief in that case.

He wrote:

Among the decisions of the Court in non-Government litigation the one of most interest was that in Minersville School District v. Gobitis. In this case, the Court, in an opinion by Mr. Justice Frankfurter, held that the School Board could constitutionally exact a salute to the flag, even though the child was a member of the sect which believed the salute to be idolatrous worship of a man-made object or institution. The Court paid eloquent service to the principle that "the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law." But, the Court said, "the mere possession of religious convictions * * * does not relieve the citizen from the discharge of political responsibilities." Salute to the flag the Court considered to be a relevant requirement to obtain that "national unity" which "is the basis of national security." Mr. Justice Stone dissented. He recognized the power of government to control conduct notwithstanding religious scruples but thought the guarantee of religious freedom forbade the legislature to "compel public affirmations which violate * * * religious conscience."

Although one must be careful not to read too much into a synopsis, it is interesting how Jackson characterized the outcome. First, he framed the Witnesses' claim in a charitable light. Second, Jackson never mentioned the overwhelming nature of the decision, which was 8-1. Third, he didn't endorse the determinative rationale, which he put strictly in the mouths of the Justices; instead, he praised only the ruling's "eloquent" affirmation of the idea that one's "convictions" reached in the pursuit of life's mysteries lie "beyond the reach of law." Fourth, he gave equal time to Stone's dissent, which stressed the importance of "religious conscience."

Photo credit.

What Caused the Supreme Court to Change Its Mind on the Flag Salute?

In Chapter Five of Eloquence and Reason, I consider the ways in which war has altered how we talk about the First Amendment. A linchpin of the post-World War II order is the case of West Virginia State Board of Education v. Barnette, which vindicated the right of objecting Jehovah's Witnesses to refuse to salute the American flag. I have authored an article, Reconsidering Gobitis, that develops themes in the book by drawing on more extensive archival materials.

Cross-posted at Legal History Blog:

The question of causation is notoriously difficult to assess, in law as in history. The legal system's goals of fashioning incentives just-so and compensating injured parties demand that participants assign responsibility. Judges and juries identify the "proximate cause" or "motivating factor" because, in a sense, they must. In history, no normative enterprise need constrain one's investigation of cause and effect. Often, one can be satisfied by merely showing that some underappreciated factor had a part in human affairs.

When it comes to constitutional history, pressing a bit harder on the relationships among causal factors can yield insights as to how the political order operates. We might wish to know the relative power political and legal actors have in practice, the social conditions under which an influence on the law can be exerted, and the tools available for acts of constitutional meaning-making and transformation.

A fascinating case study can be found in the U.S. Supreme Court's switch on the constitutionality of the coerced flag salute in the early 1940s. As America geared up for war, the Justices originally held in Minersville School District v. Gobitis that national unity counseled against recognizing a First Amendment right to refuse to salute the American flag. Three years later, the High Court abruptly reversed course, concluding in the famous Barnette case that respect for pluralism and individuality favored vindicating the Jehovah Witnesses' claim.

What best explains the sudden change? Two of the stronger explanations for the switch involve the wave of terror against Jehovah's Witnesses after the first ruling, vividly documented by Shawn Francis Peters; and changes in the Court's personnel in the intervening years (as analyzed in numerous judicial biographies).

In Reconsidering Gobitis: An Exercise in Presidential Leadership, which is hot off the presses, I offer an alternative account: the extra-judicial words and deeds of the Roosevelt administration played a significant role in the Supreme Court's turnabout. These actions signaled that the right of conscience was a presidential priority and framed such a right as the legacy of a just war. No brief was filed by the United States government in either lawsuit, but archival documents show that Robert Jackson kept FDR apprised of developments in Barnette. Department of Justice lawyers authored an article laying the extra-legal violence against the Jehovah's Witnesses squarely at the feet of the Supreme Court, urging the Justices to undo the damage by reversing themselves, and suggesting that such a corrective would implement the president's agenda, "The Four Freedoms." Speeches by key aides emphasized religious liberty and conscience, all while denying public support to Gobitis; these speeches were prominently quoted by the litigants. Finally, Robert Jackson's early drafts of Barnette suggest that the Justices and law clerks were aware of these executive branch efforts, though most of these references were later excised or downplayed during the opinion writing process, effectuating an erasure of presidential action.

Who has the better of the historical argument? What lessons can be drawn if we view this sequence of events as a sophisticated exercise in what Keith Whittington calls "political construction" of the Constitution?