The Corner

Freedom and the Constitution

Wise and learned defenders of freedom from the whims of arrogant, mercurial sovereigns over the centuries have often sought to make their case by a careful mix of affirmation and correction. 

That thought occurred to me today as I read the fantastic cover piece in the new Weekly Standard, in which the wise and learned Adam White tries to help Supreme Court justice Anthony Kennedy see why the logic (if you will) of some of Kennedy’s own past decisions should lead him to be particularly protective of religious liberty in the marriage case now before the Court, and in similar cases likely to come. If some professor made you read Persecution and the Art of Writing in college but you felt like you didn’t quite get the gist, you should read this masterful essay for a real-world example of how to write in layers. 

But White’s piece does more than that. Before it tries to help Justice Kennedy become a better version of himself, it offers an exceptionally illuminating overview of how we have come to treat religious liberty as a controversial subject in American life. This it does in a straightforward and powerful way, which as it proceeds also raises some very important concerns about the state of our system of government, and perhaps particularly the relationship between its branches. 

White points to the ways in which today’s left, and the Obama administration in particular, has sought to instigate tensions around the subject of religious liberty, and how this has created some controversies that are different in character from the kinds of religious-liberty questions we’re used to seeing in American politics and law: These aren’t instances when a law with a broad purpose incidentally restricts someone’s practice of religion but rather instances when regulations or judicial decisions aimed at aggressively advancing the left’s social agenda unavoidably (or, as with the HHS mandate, forcefully and deliberately) create religious objectors and therefore a crisis around the very idea of religious liberty.

That this occurs most often through regulatory and judicial action is especially significant. White makes this point with regard to the marriage debate and the courts in particular:

In legislatures or referenda, arguments for and against same-sex marriage must be calibrated to convince the unconvinced, the undecided voters or outright converts. Proponents of same-sex marriage thus argue extending marriage to same-sex couples will benefit society, not harm it. Its opponents argue the reverse. To prevail in those public forums, same-sex marriage’s proponents must grapple seriously with tradition, religion, and other sources of public values, while its proponents must grapple just as seriously with cultural change and changing notions of equality. In courts, by contrast, proponents of same-sex marriage must argue that their opponents are not merely wrong but irrational, if not altogether hateful—and thus that religion is not merely wrong but irrational, if not altogether hateful.

I think the same logic applies to confrontations sparked by regulatory action with dubious legislative support — there again, advocates can only make their case by insisting there is no rational counter-argument, because they are operating in a forum built not for public persuasion but for technical administration. The HHS contraceptive mandate, remember, was not in the Obamacare statute but was a creature of administrative rulemaking. People eager to pass governing power from the legislative branch to the executive and judicial branches often suggest that doing so would make for more rational government, but in fact it often makes it much harder for us to have rational debates about contentious questions, because the second and third branches are not designed for debate, and in many cases can really only act when they can assert that there is no debate to be had. That makes practical compromise very difficult. 

Such people, it should be noted, exist not only on the left. While liberals are often eager to empower the administrative state to rationalize our unruly politics (an ambition inherent in progressivism from the first) and are friendly to judicial activism as a shortcut around persuasion and debate too, a related instinct is now apparent more and more in precincts of the right as well—in a strand of activist judicial libertarianism that has become increasingly dominant among right-leaning lawyers. Both evince a mistrust of the institution empowered with “all legislative powers” granted to the federal government in our system. 

But of course, it has to be said that at the core of the rise of the second and third branches at the expense of the first has been Congress’s own willful surrender of its prerogatives and powers over the course of the last several decades, and again at the hands of both parties. Even the most ardent constitutionalists on the right too rarely raise alarms about that willful surrender, evident not only in the practice of even Congress’s most conservative members but also in the way conservative activists tend to talk about the constitution and in the way conservative scholars approach it. Today’s right has a set of serious, developed, constructively competing theories of the executive and the judiciary. But what is the right’s basic theory of Congress? James Burnham’s landmark book on the subject, published 56 years ago, offers not a bad answer, but it isn’t really at the center of any conversation. There doesn’t seem to be much thought given to the question, even in a conservative movement that tends to think a lot about our constitutional system. 

The recovery of a serious case for Congress, and a recovery of Congress’s place and prerogatives, would do that system a lot of good today. Among other things, it would help spare the wisest defenders of our most basic liberties from having to cajole fickle judges into allowing that those liberties might be consonant with whatever pet theories they have mistaken for the constitution. 

All of which is just to say: Read Adam White. 

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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