The Making of Juneteenth

Editor’s note: This year is the second time that Americans celebrate Juneteenth as a national holiday. At Public Discourse this week, we offer essays that look back on Juneteenth’s history, and look ahead to consider its place in America’s self-understanding.

Juneteenth is a linguistic compression of the date “June Nineteenth,” with the particular June 19th in view being June 19, 1865. The American Civil War was practically over by that date—the principal Confederate field army under Robert E. Lee had surrendered in Virginia on April 9, 1865, followed by the surrenders of other Confederate forces and the capture of fleeing Confederate president Jefferson Davis on May 10th. But only practically. The United States government had never recognized the Confederacy as a legal entity, and so there were no peace talks or treaty signings to mark a single end-point to the war; the Confederacy simply expired, and did so unevenly, from place to place. In Texas, there were still enough in the way of organized Confederate forces to fight a pitched battle, at Palmito Ranch on May 12th. Palmito Ranch was not a very large or significant battle, but it ended in the withdrawal of Union soldiers back to the southern Texas port of Brownsville, which they had occupied since 1863. Anyone who wanted to declare the war over might find themselves in more danger than they had imagined.

The same thing was true for slavery, which was the principal cause that triggered the war. President Abraham Lincoln had issued an Emancipation Proclamation on January 1, 1863, that declared “forever free” all the slaves in those parts of the breakaway Southern Confederacy not yet returned to Union control. This was an extraordinary step toward the ending of slavery in America, but not the final step. For one thing, Lincoln issued his proclamation on the strength of his “war power” as commander-in-chief, in order to weaken the Confederacy’s powers of resistance. But there was no body of settled law concerning presidential “war powers” in 1863, and even Lincoln was anxious that federal courts might overturn both the proclamation and the freedom it legally awarded to three and a half million black slaves in the Confederacy. For another, the proclamation—precisely because it was a “war powers” document—could only be operative against slavery in the Confederacy; it did not wipe out slavery in the four states where slavery was legal, but which had remained loyal to the Union (Missouri, Maryland, Kentucky, Delaware).

 

After his reelection to the presidency in November 1864, Lincoln pressed Congress to adopt a thirteenth amendment to the Constitution that would both erase slavery everywhere in the United States and put emancipation beyond the reach of the courts. Congress agreed, by a slim margin, in January 1865. But the amendment would not become legally effective until its ratification by the states, and that would not happen until December 1865. Until then, there was always the chance of a legal or political version of the Palmito Ranch battle that might upset every inch of progress made toward ending slavery.

But the hourglass on these threats was running out swiftly. On May 26th—two weeks after the collision at Palmito Ranch—Confederate General Simon Bolivar Buckner arranged a formal surrender of Confederate forces west of the Mississippi, a surrender confirmed on June 2nd by the last senior Confederate officer in the west, Edmund Kirby Smith. Union commanders were eager to move into Texas as quickly as possible: the Mexican border had been in chaos since the French empire of Napoleon III occupied the former Mexican republic in 1862, and many Confederates were crossing into Mexico to join the French. On June 13th, Union Major General Philip Sheridan, who had been appointed to command the formerly Confederate southwestern states of Louisiana, Arkansas, and Texas, directed Major General Gordon Granger (who had been in command of Union troops occupying the strategic port of Mobile, Alabama) to take charge of all Union forces holding points on the Texas Gulf coast and set up his headquarters at the port of Galveston. Chief among his responsibilities would be to “notify the people of Texas” that, under the terms of the Emancipation Proclamation, slavery had ceased to exist in Texas and that “all slaves are free.”

Gordon Granger was a career U.S. Army officer and a graduate of West Point in the class of 1845 (where he finished a lackluster thirty-fifth in a class of forty-one). He had served in the Mexican War in the Mounted Rifles during Lieutenant General Winfield Scott’s lightning campaign against Mexico City in 1847, and thereafter against the Apache and Comanche in southern Texas. The outbreak of the Civil War brought a demand for anyone with professional experience, and Granger found himself quickly jumped in rank from first lieutenant to command of the 2nd Michigan Cavalry, and then brigadier general of Volunteers, and major general by 1863. One of his superiors characterized Granger as “a man of brains and courage,” but also “blunt to a degree” that would be “well nigh intolerable to strangers.” When an Alabama clergyman asked if Granger intended to require prayers for the president of the United States rather than the Confederacy, Granger sarcastically replied that since the man’s prayers had evidently done little good for Jefferson Davis, “it is no sort of consequence about your prayers, any way.” Still, he served creditably with the Army of the Cumberland at the disastrous battle of Chickamauga, and followed Ulysses Grant in the compensating victory at Chattanooga in 1863, and in 1865 he seemed the perfect choice for coordinating Union occupation of formerly Confederate Texas.

Granger began forwarding troops to Galveston immediately after Sheridan’s order. An advance contingent arrived on June 16th aboard the army transport Corinthian, and Granger arrived in Galveston himself on June 19th, on board the steamer Crescent with “two or three thousand” Union soldiers, and set up headquarters in the Osterman Building. It was at the Osterman Building and other points in Galveston that Granger’s soldiers read and distributed his General Orders No. 3, which (as Sheridan had directed him to do) declared in no uncertain terms that slavery was now over as a fact in Texas, as it had been legally since the Emancipation Proclamation was issued: “The people of Texas are informed that, in accordance with a proclamation from the Executive of the United States, all slaves are free.” Granger even took a small step beyond the ending of slavery, by declaring that the former slaves would now enjoy “an absolute equality of personal rights and rights of property” with their former masters, “and the connection heretofore existing between them becomes that between employer and hired labor.” On the other hand, Granger did not press beyond that to announce an equality of civil rights (that would not occur until the passage and ratification of the fourteenth and fifteenth amendments over the next five years). He assured Galveston’s white inhabitants that “negroes fleeing from the country to this city would not be allowed to live in idleness or become a burthen to the people,” and with his characteristic brusqueness, General Orders No. 3 counseled the freedmen “to remain quietly at their present homes and work for wages” and not “to collect at military posts” in any expectation of being “supported in idleness either there or elsewhere.”

Granger only remained in command in Galveston until August 1st, and spent the remainder of his career until his death in 1876 in otherwise routine Army assignments in the west. But celebrations of June 19th began in Galveston with “a grand turn-out and barbeque” as early as 1866, and in 1872, four black leaders in Houston—John Henry “Jack” Yates, Richard Allen, Richard Brock, and David Elias Dibble—purchased a ten-acre “Emancipation Park” that became the focus for “Juneteenth” observations. By 1902, there were “five or six barbeques given by the colored people” in Brazos County alone, despite the sniffing disapproval of disgruntled white Texans that “our carnival-like Juneteenth outings” and “burlesque parade” should be “knocked on the head and done with”—and despite the offer by the “colored people” in 1909 to “prepare a special table for their white friends … so they may have the pleasure of entertaining them.” Juneteenth became “a second Christmas” for black Texans, with “everything especially set aside for that day.”

 

At first, Juneteenth was only a Texas holiday (and not even a formal state holiday until 1979, even though cities like Austin made it a municipal holiday as early as 1946) and had to compete with fifteen other emancipation holidays observed elsewhere by black Americans. The earliest of these holidays, even before the Civil War, was August 1st, in recognition of the abolition of slavery in the British West Indies in 1834; yet another, in the District of Columbia, was (and is still) held on April 16th, to mark the signing of the District of Columbia emancipation bill by President Lincoln in 1862. Other holidays included the official ending of the transatlantic slave trade in 1808, and the ratification date of the thirteenth amendment. The most prevalent, for decades, was January 1st—“Emancipation Day”—in remembrance of Lincoln’s signing of the Emancipation Proclamation, which featured “Watch Night” church services beginning on New Year’s Eve and lasting into January 1st.

Gradually, however, Juneteenth has superseded even January 1st in importance as a black emancipation holiday. “The way it was explained to me,” recalled one black Texan, “the 19th of June wasn’t the exact day the Negro was freed,” but “that’s the day they told them that they was free,” and they “whooped and hollered and bored holes in trees with augers and stopped it up with [gun] powder and light that, and that would be their blast for the celebration.” By the 1920s, there were Juneteenth celebrations in Shreveport, Oklahoma City, Los Angeles, and Phoenix, with “a parade through the principal downtown streets … and floats showing the gradual progress of the Negro from 1865 to 1920.” Annette Gordon-Reed, a native Texan and legal historian, recalled that, “for my great-grandmother, my grandparents, and relatives in their generation, this was the celebration of the freedom of people they had actually known.”

After World War II, black migration from the rural South to northern cities carried Juneteenth celebrations with it, and black historian Peniel Joseph recalled how “Each year we would commemorate the day, often during a Sunday service and occasionally during vacation Bible school. … I imagined myself as part of the Black Texas community, which dared to believe in dreams of freedom that were once considered impossible.” Ralph Ellison’s unfinished novel, Juneteenth, captures the fiery spirit of Juneteenth celebrations when its principal character, Reverend Hickman, describes slavery as a kind of preparation for “the awe-inspiring labor of transforming God’s Word into a lantern,” a preparation that has continued because “He wants a well-tested people to work his will,” even “a new kind of human.” Opal Lee, a retired school teacher from Ft. Worth, began staging symbolic “walks” from Ft. Worth to Washington, D.C., to advocate the designation of Juneteenth as a national holiday, and in 2021, she was rewarded by the passage of a bill creating a national Juneteenth holiday.

Juneteenth has had its ups and downs as “a red-spot day on the calendar.” The foremost chronicler of black holidays, William H. Wiggins, believed that in the 1960s, interest in Juneteenth waned to the point of evaporation, only to be re-invigorated in the 1970s. The principal irony of Juneteenth, however, is that slavery was still a legal institution in the United States on June 19, 1865—if not in Texas because of the Emancipation Proclamation, then certainly in Kentucky and Delaware, where slavery would not be blotted out until the ratification of the thirteenth amendment. This would not, however, be the only irony in the history of American emancipation, and certainly not the last.

James Bradley Thayer, Legal Realist?

James Bradley Thayer (1831–1902) occupies an interesting place in legal history. Having spent the final quarter century of his life as a professor at Harvard Law School, Thayer is a very famous man—to a very limited number of people, those who make a study of American constitutional law. To the general public, and even those fairly familiar with American political and legal history, he is not nearly as well known as some of the protégés and students he influenced. So it is fitting that a teacher and his students should write a kind of “life and legacy” of Thayer, examining the man and those whose thinking he did much to shape. Andrew Porwancher, a professor of constitutional studies at the University of Oklahoma, enlisted three recently graduated students of his—Jake Mazeitis, Taylor Jipp, and Austin Coffey—to join him in writing The Prophet of Harvard Law: James Bradley Thayer and His Legal Legacy.

Why the authors call Thayer a “prophet” must be guessed at—more on that below—but he certainly was an influential teacher and mentor. After two chapters on his life and scholarship, this slender volume gives us a chapter on Oliver Wendell Holmes, Jr., a younger contemporary who did not study under Thayer but was long associated with him; a chapter on Thayer’s most prominent students (the future Supreme Court justice Louis Brandeis, the scholar John Henry Wigmore, the future Harvard Law dean, Roscoe Pound, and the future federal judge Learned Hand); and a chapter on Justice Felix Frankfurter, who was a student at Harvard Law after Thayer’s death but professed himself a lifelong Thayerian in his jurisprudence.

But what did it mean to be a Thayerian? The primary reason J. B. Thayer is famous among students of constitutional law is his publication of a celebrated article in the Harvard Law Review in the fall of 1893, “The Origin and Scope of the American Doctrine of Constitutional Law.” The article has been both hugely influential and a bête noire, depending on one’s approach to constitutional jurisprudence—but “Origin and Scope” is probably the most anthologized article in the field, appearing in many textbooks that otherwise consist mostly of abridged and annotated judicial decisions. Thayer, one of the Harvard pioneers of the “case method” of legal education, was also the editor of the first such “casebook” in constitutional law.

 

The argument of Thayer’s “Origin and Scope”—a short article by today’s law-review standards, just twenty-eight pages—was that the power of American courts to strike down acts of legislation on constitutional grounds was a) derived from the texts of our constitutions, federal and state, and b) so constrained by the character of our institutions that those courts were obliged to entertain a very strong presumption that what the other branches did in the exercise of their powers was consistent with the constitution. Thayer’s own statement of this “presumption of constitutionality” was very strong indeed. For a court to invoke its power of “judicial review” (a phrase Thayer never used, which only came into vogue two decades later), the breach of the constitution must be “clear and unequivocal,” such that any “reasonable” case for an act’s constitutionality was sufficient to sustain it. Even if the judges disagreed, that is, they were not to prefer their own view of the constitution’s meaning to any rational alternative.

Thayer’s highly astringent doctrine is probably so famous because it has been so intensely fought over, at least since the late 1940s, when the historian Arthur Schlesinger, Jr. coined the terms “judicial activism” and “judicial restraint” for the warring wings of Roosevelt and Truman appointees on the Supreme Court. The Thayerian preference for judicial restraint, championed by Justice Frankfurter, was at odds with the emerging—and ultimately triumphant—impulse for de facto legislating by an activist judiciary, championed by figures such as Justice William O. Douglas. For at least seven decades now, while constitutional jurisprudence and legal scholarship have evolved in manifold ways, a through-line regarding the proper role of the judiciary has been a constant—and one’s understanding of and response to Thayer’s article has constituted a kind of cleat to which that hawser is tied.

If this were all that need be said of Thayer’s legacy, it would be a noteworthy one, but not of continental proportions. Porwancher et al., for their part, make the case that Thayer was more than the progenitor of judicial restraint: they view Thayer as a legal realist, or at least a proto-realist—“the godfather” of that movement in legal thought, they say in their introduction. (This probably accounts for the “prophet” in their title.) Thayer’s alleged “realist” tendencies become the through-line of their book, and it is just here that I think they are mistaken. The purported evidence for Thayer’s (proto-) realism is scattered, scanty, and, I believe, largely misunderstood by the authors.

What was—or perhaps we should say is—legal realism? Opinions vary about its contours, about the dating of its emergence and heyday, and about who is to be counted among its adherents. Historian Laura Kalman, writing in the mid-1980s, located the school of thought chiefly in the 1930s, and chiefly at Yale Law School, saying it “won no converts at Harvard,” which had been Thayer’s home—though she concedes that Frankfurter and other Harvard professors “rebelled against formalism,” the idea that the law is an orderly set of unvarying rules, discovered by judges (not made by them) and logically applied to cases.  More recently Brian Tamanaha has questioned how much the “realism vs. formalism” dichotomy really explains in legal history. In Tamanaha’s view, “formalism” was largely a caricature of the legal realists—a bogeyman that in truth barely existed as they described it—while many of the hallmarks of what came to be called “realism” in the twentieth century are visible far earlier.

But what are those hallmarks? To a certain extent, legal realism advances propositions that should be uncontroversial: that judges’ personal views have an effect on their judgments and reasoning; that lawyers should concern themselves with predicting how judges will rule; that there is always some degree of freedom for judges to interpret statutes, precedents, and constitutions, as well as the facts in any case and their relevance; and that there are gaps or interstices in the law that particular cases sometimes call on judges to fill to the best of their ability. To some degree, each of these propositions is so true as to be a truism that no student or practitioner of the law has ever seriously denied.

 

The question with respect to each of them is precisely the degree of weight accorded them. “The rule of law and not of men” is destroyed if any of them is taken as completely and utterly true without qualification. If the law is nothing but a reflection of what judges personally believe about justice, then law self-destructs. If lawyering is only the prediction (and manipulation) of judges’ decisions rather than arguments from principle, then law self-destructs. If the freedom to construe all legal materials is perfectly untrammeled by interpretive norms that constrain judicial willfulness, then law self-destructs. If the law is all gaps and nothing determinate or given, then—you know the rest.

At their most outré, the legal realists of the 1920s and ’30s embraced such extremism virtually without qualifications, attacking all formal principles of restraint and effectively collapsing the rule of law into the rule of judges. Porwancher et al. evidently believe that Thayer pointed the legal profession in that direction, and I think in this they are profoundly mistaken. For the traditional jurist—and I believe Thayer stood in the great tradition—the propositions characteristic of legal realism are best understood as accurate observations of pitfalls to be avoided. Yes, for instance, judges have their biases, but the point is to discipline oneself to principled decision-making and guard against them. This is clearly the gravamen of Thayer’s most famous article, “Origin and Scope.”

Marc DeGirolami, in a review of Tamanaha’s book, fruitfully suggests a strong affinity of originalism to formalism, and of the “living Constitution” approach to realism. Porwancher and his co-authors evidently agree with this, several times claiming that Thayer was a devotee of the living Constitution, and referring to his “rejection of originalism,” which they profess to see in “his conviction that the Constitution was open to multiple interpretations.” But there is no incompatibility between the principled view that the Constitution has its own discernible original meaning—its own integrity, independent of the interpreter—and the sensible observation that good-faith interpreters can rationally come to different understandings of its meaning.

As I have argued at length elsewhere, Thayer’s “Origin and Scope” makes a principled case—based on the Constitution’s text, structure, and interpretive history—for a robust presumption of constitutionality, with judges deferring to legislative interpretation if there is any reasonable ground for it. Thayer here teaches an essentially functional differentiation of judicial from legislative responsibility—a differentiation that adherents of the “living Constitution” typically collapse. In the space that Thayer’s argument makes for legislative flexibility—the inverse of the constraint he places on the judiciary—he is in perfect accord with the teaching of John Marshall, than whom no jurist in our history was more originalist. (It is only by wrenching a few lines from their context in his 1819 opinion in McCulloch v. Maryland that the Great Chief Justice has been wrongly characterized as a living constitutionalist.)

Limited space here means that just two pieces of evidence will have to suffice to show that the authors have mistakenly ascribed the tenets of legal realism to Thayer. First, Porwancher et al. say that Thayer “criticized judges who spuriously denied that they legislated from the bench.” They continue:

That kind of judicial activism was “not quite in harmony with the general attitude of the common-law courts and their humble phraseology in disclaiming the office of legislation.” But in actuality, the need to adjudicate amid “ever-changing combinations of fact” forced the bench to “constantly legislate.” Rather than hide behind a false veneer of self-abnegation, “it is best that this be openly done” by judges.

These perfectly accurate quotations from Thayer’s Preliminary Treatise on Evidence at the Common Law (1898) nonetheless take on a somewhat different cast when presented more fully in their original setting. Thayer is remarking on the common-law development of a certain doctrine of evidence “by a direct application of maxims of justice,—”

a simple method, and worthy of any judicial tribunal which rises to the level of its great office; and yet not one quite in harmony with the general attitude of the common-law courts and their humble phraseology in disclaiming the office of legislation. But inasmuch as every body of men who undertake to administer the law must, in fitting it to the ever-changing combinations of fact that come before them, constantly legislate, incidentally and in a subsidiary way, it is best that this should be openly done; as it is in the cautious reaching out of the principle of estoppel. (emphasis added)

It is worth noting that Thayer’s context is the common law, where judicial “legislation” is less controversial than in statutory or constitutional interpretation. And it is not Thayer, the lifelong proponent of restraint, who praises “legislat[ing] from the bench” as “judicial activism” (a phrase no one used in his time). That is the construction put on his words by our authors. Thayer indeed seems content to recognize the general validity of the norm of judges’ “disclaiming the office of legislation.” He insists, however, on honest avowal from them when they legislate “incidentally and in a subsidiary way” by a “cautious reaching out” of this common-law principle or that (telling phrases left out by our authors). That this must be “constantly done” on such incidental and subsidiary questions does not mean that the wall comes down between legislating and judging on fundamental questions of law and policy.

So much for Thayer on the common law of evidence. In constitutional law, Thayer cleared no space whatever for judges to “legislate” even in a subsidiary way, and preached “self-abnegation.” Indeed, it should be plain to any reader of Thayer’s “Origin and Scope” that the tight strictures he insists upon for judicial decisions against the constitutionality of legislation simply cannot be derived from the tenets of legal realism, which were all about freeing judges from such constraints.

 

This brings me to the second piece of evidence that our authors have been turned around in the wrong direction in their understanding of Thayer. In their discussion of his student Louis Brandeis, Porwancher et al. remark that on the bench, “Brandeis’s commitment to restraint was not unconditional”—unlike Thayer’s, that is. Brandeis, they say, was “comfortable with an activist role for the judiciary in the protection of civil liberties.” And they venture the more than plausible thought that “Brandeis saw in Thayerian deference a useful tool to ensure that progressive legislators could experiment without interference from the bench.” In short, for Brandeis it was “Thayerian deference” when progressives legislated, and judicial activism when the forces of reaction threatened “civil liberties.” That’s not principled jurisprudence; it’s legal realism’s embrace of the judge as participant in social reform.

And the giveaway is that our authors cannot help but contrast Brandeis with his late teacher. Where Brandeis the legal realist could turn the deference on or off according to his ideological preferences, Thayer sternly taught an iron discipline in constitutional judging of holding one’s own views—even one’s conviction that one understood the Constitution better than the legislature did—firmly in check. And he taught this because he believed it was the only approach consistent with the Constitution’s text, purposes, structure, and traditional interpretation. This view made him the furthest thing imaginable from a “living Constitution” advocate in the Brandeis mold.

I am glad Andrew Porwancher and his former students have shone a spotlight on James Bradley Thayer. His restrained jurisprudence is due for a revival. But I view him as a rather different sort of prophet than they do—not as a seer forecasting the future of legal realism, but as a voice crying in the wilderness that his profession must bind itself to legal principles or else hasten the downfall of the rule of law and self-government alike.

How the Government Is Buying Our Submission

Readers of a certain age will recall the Schoolhouse Rock cartoon shorts, which regularly interrupted networks’ kid-oriented Saturday-morning programming and served up pithy tutorials in grammar (“Conjunction Junction”), multiplication (“Three Is a Magic Number”), and—most important for present purposes—the text and structure of the Constitution of the United States. As we learned from “I’m Just a Bill,” it is a “long, long journey” from a citizen’s or official’s policy goal or regulatory impulse to the lofty status of “supreme law of the land.”

Those who designed, proposed, and ratified our Constitution had (among others) two aims: first, to facilitate coordinated, effective, national responses to challenges that urgently and obviously required them; and second, to make sure that the required process for federal lawmaking was not too easy and therefore included various checks and balances, voices and vetoes. The Constitution created—that is, it constituted—a new, powerful government and a “more perfect union,” but it was deliberate and cautious with respect to what Philip Hamburger calls the “pathways” of that power. The national government’s functions are divided among the Congress, the courts, and the president. Its regulatory authority is both limited and shared with the states’. Its purpose, therefore, is not to maximize efficiency but to promote self-government and protect political and other freedoms.

That, at least, was the idea.

In a recent, compact, accessible, and hard-hitting book, Purchasing Submission: Conditions, Power, and Freedom, Professor Philip Hamburger—a distinguished scholar and historian of American public law—contends that the national government regularly and increasingly employs “pathways of power,” “methods of control,” and “modes of governance” other than those set out in the Constitution. More and more, it gets what it wants using carrots (incentives), and in ways that are often harder to resist than if it were using sticks (force). “Governance through spending,” Hamburger explains, is supplementing, and perhaps displacing, “governance through law.”

Spending Conditions

Start from the beginning: “It is widely recognized that government exercises influence through its distribution of money and other privileges.” Yes, the national government regulates, requires, prohibits, and prescribes; it also makes deals. It spends lots of money, but conditions follow the funds; it dispenses benefits, but with strings attached; it grants privileges, but extracts compliance. “He who pays the piper calls the tune” is, as we all know, a fact of life. And, as The Godfather teaches, there are offers that can’t—not really—be refused. Hamburger reminds us that purchased submission is more difficult to see (let alone to challenge or resist) than are edicts that emerge from the Constitution’s prescribed processes for lawmaking.

Of course, many of the conditions attached to federal spending are unremarkable: if the Department of Defense contracts for the construction of an airplane, it can withhold or claw back payment if Raytheon delivers a ship. If the Post Office deposits a paycheck in your account, it can insist that you show up for work. If the Department of Education sends grants to a school district to support special-education programs, it can require that they not be diverted to construct a stadium. And so on.

How should we think, though, about, say, highway spending that compels states to change their legal drinking age, or employment contracts that limit citizens’ political activities, or plea bargains that include waivers of the right to appeal, or public-housing benefits that come with reduced constitutional protections against suspicionless searches? Or, to borrow one of Hamburger’s examples, telling Jimi Hendrix that he can avoid going to prison for joyriding if he enlists in the Army’s 101st Airborne Division?  It is not much of a reach for the government to tell a university that receives federal research grants it may not discriminate on the basis of race, but what about demanding that it abolish single-sex residence halls or dispense with cross-examination and counsel in sexual-harassment investigations?

The constitutional decisions and doctrines dealing with these matters are complicated and contested. For better or worse, it is settled that the federal government’s authorization to spend is broader, and reaches further, than its (also broad and far-reaching!) power to regulate directly. And the power to attach conditions to this spending means that the national government can regulate indirectly what it cannot constitutionally regulate directly. The Court’s lingering concerns about federalism and the states’ reserved powers are reflected in precedents requiring that conditions on funds be clear, relevant, and noncoercive, but these rules have not been strictly enforced and only rarely intrude on national projects or policies.

 

Questions about the constitutionality of the conditions the government attaches to the money it provides—or, of what Professor Randy Kozel has called government “leverage”—also arise in the individual-rights context. The applicable doctrine here is, as one scholar put it, a “quagmire,” but it reflects, and aspires to capture, the intuition that there must be some limits, somewhere, on the government’s ability to use benefits to extract waivers or to repackage rights as privileges.  Making a deal, in other words, is one thing; violating a right, though, should be another. Many scholars have attempted to ground and cash out this intuition, and Hamburger examines and evaluates these efforts thoroughly.

Indeed, Purchasing Submission goes beyond the standard and familiar debates about federalism, enumerated powers, and waivers of constitutional rights. As Hamburger shows, the regulatory-conditions problem is not merely about policing public contracts for coercive terms. It is bigger than that: the national government is using largesse, rather than law, and is purchasing “submission” rather than merely securing compliance. “Americans,” he warns, are being “induce[d] . . . to submit to a new path of governance, which displaces the Constitution’s avenues of power and its rights.” It is not only that the national government’s regulatory reach is expanding. It is that the Constitution’s carefully designed processes for democratic self-governance, and the means and mechanisms for ensuring accountability, are evaded and eroded.

Outsourcing Submission

Hamburger sets out, then, to reveal the many hidden ways this evasion occurs—through spending conditions and contractual terms, yes, but also through “dangerously benevolent” nudges, incentives, intermediaries, accreditation, licensing, permits, and permissions. One instance of this “mode of governance” that Hamburger illuminates is the way not only Congress, but also agencies and officials, outsource and privatize power by requiring government’s beneficiaries to regulate and control the behavior of others. A university, say, will enact and impose rules on students to secure and safeguard the favor of administrators who have the ability to turn off funding faucets; or an employer eager to retain contractor status will adopt workplace regulations desired by bureaucrats (though not enacted by Congress); or a religious institution concerned to protect its tax-exempt status will instruct its ministers to avoid prophetic witness or inspired activism on controversial political matters; or a local school district might submit to a detailed, decades-long consent decree that effectively puts litigators, not lawmakers, in control of education policy. Especially in the context of higher education, this dynamic tends to homogenize a sector that should be pluralistic. Furthermore, it shrinks the crucial “third sector” of civil society that mediates between the state and individuals.

 

Think back to Schoolhouse Rock. Our Constitution uses “avenues for binding power” to secure our freedoms, which are endangered by regulators’ “off-road driving.” “Precisely because government can work through the subterranean conduits offered by regulatory conditions,” Hamburger notes, “it can impose policies that, if pursued through the Constitution’s regular political processes, might not have survived the light of day.” As he reminds us repeatedly, the fact that “consent” is secured in any particular case, or to any particular condition, does not cure the structural problem or avoid the threat to democracy. Political opposition, state and local resistance and experimentation, and citizens’ criticism can all be bought off. And since some are more exposed to the new mode of governance—because of their dependence on particular benefits, or by virtue of their profession—the equal status of citizens as participants in our constitutional democracy is undermined.

Hamburger’s study reveals the extent to which regulatory authority increases not only through the number of regulations and regulators but also, and even more troublingly, through expanding the amount of life that is regulated. That is, the “purchasing submission” problem is worsening not only because lots of conditions are being attached to government benefits, but also because more and more things are declared to be things to which conditions may be attached.

Again, it is relatively easy to understand why a government contract might, say, prohibit contractors from sourcing their supplies from an enemy nation. But why does the government get to require licenses for a particular occupation, and then to use that licensing as another “pathway of power” for controlling the “beneficiaries”? Anything the government characterizes as within its power to give or withhold becomes something to which a condition can be attached.

 

When our working premise shifts from “that which is not prohibited is permitted” to “only that which is permitted is permitted,” and conditions can attach to permissions, the submission that results is dramatic. Hamburger has provided a valuable guide for navigating—and, perhaps, resisting—this shift.

In some places, Hamburger characterizes certain practices and submission-purchases as “unconstitutional” when courts have not yet so held, and are not likely to. He calls in the book’s latter sections for courts to take better account of the extent to which the new “pathways of power” are in tension with basic constitutional principles. However, as he knows, courts cannot simply identify practices and policies as unlawful; they do so only in the context of litigation between parties about real-world injuries.

Unfortunately, it will very often be the case that no parties with standing have any incentive to complain about regulatory conditions’ regrettable effects on accountability, transparency, equality, and freedom. The responsibility for policing and restraining the new modes of governance is on “We the People.”

Gay Marriage, Civil Rights, and Christian Virtue: An Interview with David French

In today’s interview, David French joins Public Discourse editor-in-chief R. J. Snell to discuss French’s new position as a New York Times columnist, gay marriage, and how Christians should engage in politics. 

R. J. Snell: Thanks so much for being with us for this interview and congratulations on your new position with the New York Times. Are there issues or topics you hope to explore there that would be different than at the Dispatch or elsewhere?

David French: As far as I know, I’m going to be writing about the exact same themes and issues and topics that I’ve written about at the Dispatch and the Atlantic. In fact, that’s why the Times wanted me, so I could continue to write about those themes. So I’m going to write about religion, I’m going to write a lot about law, culture. My military experience will come into play in my writing as it has at the Dispatch and the Atlantic.

If you’ve seen my work over the last many years, law, culture, religion are all three big themes that I have addressed quite a bit. We are in an era at the Supreme Court where we have this conservative majority and we’re likely to have this conservative majority for the foreseeable future. It’s important to have folks who understand conservative jurisprudence writing in mainstream publications. Conservative jurisprudence is the air I breathe. I understand what’s going on at the Supreme Court, and I understand the various nuances of conservative jurisprudence. So that’s going to be an important part of what I write about and what I address.

It’s also really important to step outside of the news cycle often and take a look at the larger cultural and religious trends that are shaping American life. And Dean Baquet said right after Trump was elected, a lot of the media doesn’t “get religion.” You can’t understand America without understanding America’s religious landscape. So I’m going to be writing quite a bit about that as well.

RJS: Some have disputed what they understand as a tension or contradiction in your commitments. Particularly your commitments to both civil libertarianism and religious freedom. How would you articulate your position and the tensions or lack of tensions?

DF: Well, I think religious freedom is an aspect of civil libertarianism. So religious liberty, free speech, all of that, those were encompassed in the First Amendment. And so I would say more people frame the distinction as a tension between my commitment to civil libertarianism, including religious freedom for all people, including people who have dramatically different religious beliefs from me, and my Christian orthodoxy. That’s where people see a lot of the tension. I don’t see that tension at all, really.

I think of two of the great founding documents in American history. Of course the most famous of the founding documents is the Declaration of Independence, where Thomas Jefferson famously wrote that we’re endowed by our creator with certain unalienable rights, among them life, liberty, and the pursuit of happiness, and then goes on to talk about how governments are tasked with defending that liberty. And then the lesser known, but very important document is John Adams’s letter to the Massachusetts Militia, where John Adams uttered the famous statement that our constitution was made for a moral and religious people and is wholly inadequate to the governance of any other.

The entire letter is fascinating because what he’s basically saying is that our constitution is not strong enough, the government is not strong enough to dictate public morality. Rather than dictating public morality, it depends on public morality. So he talks about how certain vices are so terrible that left unrestrained, they would cut through the cords of our constitution like a whale goes through a net.

So I think of these two documents as framing an American social compact. It is one of the primary responsibilities, not the exclusive responsibility, of government to protect the liberty of its citizens. It is the responsibility of citizens to exercise that liberty towards virtuous purposes. That’s your social compact. When I’m interacting with the relationship between the state and individuals, I’m going to defend the liberty of individuals. When I’m interacting with individuals, I’m going to urge, especially when talking with fellow Christian believers, Christian virtues, I’m going to urge various civic virtues, defend civic associations, defend those institutions that are advancing civic virtues. So I don’t see those things really in tension at all. In fact, I think that the defense of liberty, in many ways, is necessary to holistically pursue virtue in the private sphere.

 

RJS: For some, that answer makes sense, but others think things have changed. They might have been friendly to that argument some years ago, but when they look at the contemporary United States, they see decadence and decline, even the absence of public morality, which that compact depends upon. What had been obvious no longer seems obvious. What would need to happen in our society for you to rethink your commitment? Is there a breaking point where you would think, “that’s not working out; I need to reconsider”?

DF: Yeah. The difficulty is that if you look at some of the worst moments in American history, it’s when the government has violated that social compact, when it has said for certain communities of Americans, you have fewer rights. Or when it has put its thumb on the religious scales in some decisive way.

For example, you don’t have to go far back in American history to find the Blaine Amendments, these anti-Catholic state constitutional amendments that were designed to protect public schools, which were deemed and viewed at that time as essentially Protestant schools free from Catholic influence. Here was a world, in many ways, that a lot of the more “New Right” folks want, which is the ability of the government to put its thumb on the religious scales. We had that. It didn’t work very well.

We’ve had many times in American history when the government had the power to reward friends and punish enemies. Again, this is what much of the New Right wants, and it didn’t work. It was inherently unstable. It was unjust.

 

What I see in modern America is something maybe a little bit different than what other folks see. I think the nation vis-à-vis its laws is far more just than it has been at virtually any point in its previous history. Racial discrimination is outlawed de jure. You have an extension of the First Amendment to all American communities. You have greater religious freedoms in a concrete way than we’ve ever enjoyed in the history of the United States. Is this government treating its people justly? We’re far from perfect. We have a lot of problems, but we’re better than we’ve been.

When it comes to public morality, the other side of that social compact that asks us to exercise our liberty for virtuous purposes, things are a lot more mixed. Now, in some ways, we’re better. We should never minimize the advances we’ve made in really eradicating the kinds of brutal personal racism that used to mark American life. There’s a news broadcast from the 1970s in New York where there’s a black family that’s moving into a local community. And the amount of unbelievable, overt racism directed at that family blows our minds here in 2022, and that’s not that long ago. 1970s is my lifetime.

We often take a look at things from the standpoint of sexual morality. We think the changes in sexual mores have fully defined the increasing decadence of the American public. But we are complicated creatures. There are many ways in which we’ve gotten better, and there some ways in which we have gotten worse. We tend to completely overlook the ways in which we’ve gotten better and then say, “Well, this is just not working out. We have to make big changes.”

But in fact, even when it comes to sexuality, I think that we are actually in the middle of a number of really important and meaningful conversations about sex and sexuality, and there are actually some positive signs. Many negative signs for sure, but also some positive signs. I don’t know if you saw Christine Emba’s recent book about how the consent-only culture has harmed women. There’s been a rising groundswell from both religious and secular sources rethinking the way in which we have constructed a sexual morality that is entirely experiential as opposed to a relational. Disconnecting sex from love and relationship has not worked for millions upon millions of people. A free society isn’t immune to negative social movements, but it is able to react to and reform negative social movements in a way that more authoritarian countries often are not.

I’m not going to say that from a moral standpoint, we citizens have upheld our end of the bargain. In many ways, we have not, and that has caused a lot of suffering. But it is also the case that a free society is able to reform itself in ways that totalitarian societies obviously do not and cannot.

RJS: How would you respond to those who suggest that the inner logic of liberty and the anthropology of liberalism have a directionality toward the destruction of the family, fragmentation, and soft tyranny? Sure, it’s not as bad as hard tyranny, but we’re moving to soft tyranny as an inevitable logic.

DF: I’ve always been confused by the phrase soft tyranny. Is it tyranny if it’s soft? I don’t know exactly what that means. When I see the phrase soft tyranny used, this often means there are powerful people who don’t like me. It’s not that they can actually control me. It’s not that they actually are shutting down my church. They’re not destroying my family or my relationships, but I’m a dissenter. I’m on the outside looking in, and there are people who don’t like me. That term, soft tyranny, needs a lot more definition before I’m going to start to question liberal democracy.

RJS: I take them to mean it’s not the state itself, but cultural forces, business forces, those sorts of things.

DF: Yeah. Again, unimpressed by that concept. But some of this, I think, is also due to what your conception is of what it means to live as a Christian in this world. I never for a moment have understood the scriptures to say that there is a system of government that is going to make it easy for me to live as a Christian. In fact, I’ve been guaranteed the opposite.

So if my standard is, well, I find it difficult to live as a Christian in this culture, therefore we need massive governmental reforms and greater governmental authority to make it easier for me to live as a Christian in this culture, number one, the track record for that historically is really bad. Number two, in many ways, what you’re asking for is trying to construct what is biblically, in many ways, an impossible system. I’m not so sure it’s possible to make the systems and the engines of culture hospitable to the gospel message by force of law.

And number three, we have seen time and time again that it is difficult to live authentic Christian lives even in many of America’s Christian institutions. If you look at some of the most powerful Christian institutions in America, part of Christendom, for lack of a better term, some of them have been deeply and profoundly corrupt. The most prominent apologetics ministry in the United States was run by an abuser of women. You have perhaps the largest Christian camp housing one of the worst superpredators in American life for a decade plus, and then covering it up. You could go down the line. And time and time again, I hear Christians say, “We need more Christians in power.” And I’m thinking, “Do we, though?”

 

Think of January 6th. If you had told young me that there will come a time when the chief of staff is an outspoken evangelical, one of the president’s personal lawyers, outspoken evangelical, the House and Senate Republicans are staffed with outspoken evangelicals, the young naive me would have said: “Justice must be rolling down from the heavens.” Instead, what was rolling down from the National Mall was a mob listening to praise music as they stormed the U.S. Capitol building.

I do think you can use the engines of government in ways that are deeply and darkly oppressive to Christianity, but I’m much more skeptical when it comes to arguments that I hear from folks on the New Right about building some sort of Christian nationalism that will preserve what is good in our society and squelch what is bad. I’ve yet to see a government exercise that kind of authority in a just manner.

RJS: Let’s talk about same-sex marriage. You’ve written that you’ve changed your mind on this, and more than once. Is this a fair summary of your position from the Atlantic and Dispatch essays of late 2022?

First, equality and fairness before the law under the conditions of pluralism guides your thinking. Second, there’s an unfairness and inapplicability of using Christian or religious understandings of marriage as normative for civil marriage. Third, civil law is already out of step with the Christian conceptions anyway—think no-fault divorce—and the harms to the biblical understanding of marriage were done by religious hypocrites. And, fourth, you don’t see under the current conditions any grave threat to religious freedom. Is that the arc? What would you add or change in my summary?

DF: I think that’s pretty fair. The way I characterized it in a piece I wrote is that it’s a flip-flop-flip. It’s one position then another, then back to the original. Again, remember, my default position is a more civil libertarian position. So when the initial Massachusetts Supreme Court decision was handed down in the early 2000s, I was not alarmed by it. I’m a traditional, small “o” orthodox Christian, and I have a biblical view of marriage, which I call covenant marriage. And no-fault divorce is utterly alien to that scriptural conception. It is as separate as night and day from the scriptural conception.

So when civil marriage was being changed to include same-sex couples, in my view, that was not the same thing as walking into my church and saying, “Okay. Marriage has changed.” Those were two different things.

Then you began to see what a lot of people presciently warned about, that some people who will attempt to isolate and render as second-class citizens individuals who believe in traditional Christian marriage, or what are called covenant marriage in my writing. This is something I encountered time and time again in my religious liberty work. “Oh, you don’t have the new view of marriage? Well, you can’t operate in this college. You can’t have a student group in this college,” or, “We’re going to threaten your accreditation if you’re a Christian university.”

RJS: Soft tyranny, as it were!

DF: Well, it’s pretty hard when you’re using the operations of the government to kick someone off campus, or take away their tax-exempt status. That’s government action. That’s not somebody making me feel bad. I can handle that.

That’s when you began to see this concern emerging that said, “Look. If same-sex marriage becomes law, then the institutions and ideas of covenant marriage are going to be rendered second-class.” And I said no to that arrangement, absolutely not. If supporting same-sex marriage means treating those people like me who uphold covenant marriage and belong to institutions that uphold covenant marriage and want to foster it around the culture, if that means that people like me have to become second-class citizens, no deal. So then along comes Obergefell, and when Justice Kennedy wrote the majority opinion, he seemed cognizant of this issue. He very clearly wrote that there are people of goodwill on both sides of this issue and the law should respect and protect both. I remember reading it and thinking, “Nice words. We’ll see.”

Since then, in the seven, now coming on eight years since Obergefell, there has not been a single significant religious liberty loss at the Supreme Court. Religious liberty has continued to advance. And many of the wins were by supermajority, seven to two, nine to zero. This was really surprising for folks who thought that Obergefell was the beginning of the end of religious liberty.

When the Respect for Marriage Act came up, it tried to (imperfectly) respect religious liberty. If I was writing the bill, it would be different, but it imperfectly said, “We think that same-sex marriage and religious liberty can coexist in the United States of America, and we’re going to codify that coexistence.” I thought that was absolutely an acceptable compromise.

 

RJS: After the Atlantic piece, you did two Dispatch essays to explain your views in more detail. In one of those, you have a throwaway line—it’s not the core of your argument, but I’m interested in it—where you state that there are both secular and religious arguments against abortion. Are there not secular arguments against same sex marriage? What is the role of reason in how we understand covenantal marriage and civil marriage? Are there secular arguments against same-sex civil marriage? Don’t covenantal understandings of marriage translate to reason?

DF: Let’s say I’m talking to someone who does not share my faith commitments. I have lots of arguments about the value of lifelong marriage and not viewing marriage primarily as an engine for adult happiness.

RJS: Are these mainly sociological arguments, or arguments that can be made about the nature of marriage itself?

DF: I’m not so sure about the nature of marriage itself, but definitely when it comes to arguments based in what we understand about human flourishing. And interestingly, what we see is that there are an awful lot of people who don’t question no-fault divorce at all and would resist a legal regime that repeals no-fault divorce. Yet they don’t live like that in their own marriages: they stick through it, through thick and thin.

One of the hallmarks of the upper-middle-class America is pretty darn stable families. People do not cycle through relationships. They do not cycle through marriages. That stability is the hallmark of upper-middle-class America, even if social conservatism as an ideology is not. There are all kinds of arguments about family stability, the inadvisability of divorce, the destructiveness of divorce, the challenges of loneliness. You can make these arguments to people who don’t share my preexisting faith commitments about marriage.

RJS: Those are sociological arguments, or arguments about human flourishing. As you know, some of our colleagues at Witherspoon wrote the What Is Marriage? book, in which they ask, using secular reason, about the nature of marriage itself. They claim that if you don’t accept the conjugal view of marriage you lose any principled and rational basis for why marriage needs to be permanent or exclusive. If you don’t provide arguments about the nature of marriage itself, what’s your limiting principle to disallow throuples or five-year marriages with options to renew? Such arrangements might have negative effects, but do you have a principled reason against them?

DF: Well, so five-year marriages with an option to renew would actually be more binding than the current no-fault marriage. It’s mind-blowing to realize literally a refrigerator warranty is more binding than a marriage under the law. That is no exaggeration. So when people have talked to me about the sanctity of marriage prior to same-sex marriage, it’s been an eye-rolling thing for me because I think either they don’t know what no-fault divorce is, or they think that has sanctity? What? No-fault divorce is the codification of a sub-contractual view of marriage.

It’s hard for me to see the argument that there’s something fundamentally sacred about that civil arrangement. I see why government has an interest in delegating the sanctity of a relationship to the citizens. I see why there are defensible governmental reasons for the no-fault divorce construct of marriage, especially given long histories of extraordinary problems with domestic abuse in intimate relationships, and the difficulty people had traditionally in extricating themselves from physically abusive situations in years past. But it is difficult for me to see the moral interest in that construct. So that’s why I’m not persuaded that that particular construct was worth excluding same-sex couples from. That’s where folks lose me.

And this is magnified by the idea that, if you have a same-sex couple and they’re raising children, you’re going to come in and change the law, and suddenly, they’re not married, which has all kinds of down-line ramifications for everything—from financial arrangements, to healthcare relationships, to child custody. My goodness.

While at the same time preserving this sort of no-fault situation that heterosexual couples have, it’s hard for me to see the justice in that because that’s where the reliance interests come into play. You have a million-plus people in this country who have built their relationships around these legal arrangements, and then to yank it all away strikes me as profoundly unjust, even cruel.

RJS: You claim there’s something quite different between a covenantal marriage (I would call this a sacramental marriage) and a civil marriage. The circles don’t overlap, is how I remember you putting it. But on one understanding, and this would be my own, the logic of revelation or grace can’t contradict the logic of nature. Even more, the logic of revelation or grace presupposes the logic of nature. Grace presupposes nature, grace perfects nature, and grace elevates nature. If in the domain of the civil or the natural, we’re creating something out of step with the logic of revelation and grace, we’ve got something deeply wrong with our understanding of the natural; we have something that can’t be true, that doesn’t follow the logic of either nature or grace, or we have double truth. God’s general and specific revelation would contradict one another, and that just cannot be possible. How do you think about that?

DF: What do you mean creating?

RJS: Well, we create laws, positive law. I take civil law to be a construction of the state. But I also take a just civil law to be one in keeping with the logic of grace, and open to it because grace presupposes nature. (That’s Aquinas’s phrasing.) Do you agree? What should we do if the civil law contradicts the logic of covenantal marriage? How do you understand the relationship of nature and grace? I think you’re going in a different direction than I would.

DF: Yeah. I don’t quite see it that way. I don’t think the civil law is creating anything. It’s recognizing relationships in a pretty precise legal way. So the civil law cannot create or destroy my marriage. My marriage—

RJS: Your covenantal marriage?

DF: That’s the only marriage that I know. The civil law cannot create my marriage, nor can it destroy my marriage. It can recognize it and provide particular sets of benefits surrounding it, or it cannot recognize it, but it doesn’t create it, nor does it destroy it. We can’t think of the state as providing that level of meaning. That’s where I dispute some of this, because I don’t see my marriage as a creation of the state at all. I see it as a union of one man and one woman before God himself. I’m glad that the state recognizes it and provides certain kinds of short benefits that allow me to make, by default, some kinds of medical decisions, and by default possess child custody. But it does not create my marriage. It cannot destroy my marriage.

The question when it comes to the state is not what is the state creating. The question is what kind of relationships is the state recognizing and providing certain kinds of default protections for. It’s a much lower order of engagement. That’s why from the beginning of the debate, I’ve been much more torn about this than many of my Christian friends have been. I look at the role of the state as not an entity that creates. It recognizes and provides particular kinds of benefits to relationships. It’s a much lower order engagement.

 

Perhaps some of this is influenced by, for example, my longtime free speech advocacy. If the state is protecting my speech, it is not in any way endorsing that speech. Or if the state is protecting my religious liberty, it is not in any way endorsing that religion. It is not imbuing that religion with truth or meaning or purpose. It’s just protecting it from oppression and restriction. I think of the role of the state in a different way.

You can really dig deep into this, but one of the ways where I really depart from some of my Christian nationalist friends is they put a lot more meaning around what the state can potentially do to provide some sacred purpose or meaning to a nation.

RJS: One might respond to what you just said this way: okay, fine. So the real marriage is neither going to be created nor destroyed by the state, but the state can recognize the relationship. But that’s precisely why the state should recognize some sort of civil union, but not same-sex marriage, because the state can’t create marriage. Marriage is created by the covenantal logic, and that covenantal logic is going to be permanent, exclusive, involving spouses of different sexes, and so on. Why grant same-sex marriage under civil law? That sounds like creating something, and something false. Certainly, there are opponents to that position, who want same-sex marriage recognized as marriage just because marriage has a sacral quality to them. They didn’t want the recognition of civil unions. They wanted marriage.

DF: Right. Yeah. They absolutely wanted their relationships to have the same legal recognition as the recognition granted to opposite-sex couples. If the state recognized civil unions, but not marriage, even if the set of benefits were identical provided to civil unions as to marriage, that they would still view these as second-class arrangements. There was a validating aspect of expanding the definition of civil marriage. There’s no question about that.

Also, there was almost no constituency on the right for creating civil unions that were identical to marriage, but not called marriage. I remember the days. If you were for civil unions, you were seen as a hopeless compromiser. This was compromise that nobody wanted at the time.

 

It’s also the case that there’s a wide divergence of religious belief regarding marriage in the United States of America. An awful lot of same-sex couples say, “David, you’re wrong. I have a covenant marriage just like you do.” And they belong to religious traditions or to churches that would endorse that wholly entirely and completely, and that my definition of covenant marriage is fundamentally wrong. And that brings into play the question that we haven’t really addressed, which is pluralism. How do we live together across this really big difference? Again, that’s why my default position comes down to respecting each other’s liberties and respecting each other’s desires to live our lives according to our deepest values.

RJS: Final question, and thanks again for doing the interview with us. Clearly, there’s a lot of contestation in the conservative world right now about what it means to be a conservative, what we should do, who we should vote for, and so on. What do you want to tell conservatives about how they should think and act and proceed going forward?

DF: On the voting question, which is one of the more basic questions, I have a two-pronged test that I apply, and you have to pass them both. It’s not one or the other. It’s an “and,” not an “or.”

First, you have to possess personal character commensurate with the office you seek. So the higher the office, the higher demand for character there should be. So there should be character commensurate with the office that you seek. Second, a person should broadly support my political policy positions, my political values. There’s no perfect person, and there’s no perfect policy alignment. But broadly speaking, high character and policy alignment. If you’re missing either one, I’m not going to vote for you.

I wrote about this in my last Sunday newsletter. In 1998, the Southern Baptist Convention wrote a resolution on moral character in public officials. It was extremely brief, but eloquent and powerful. And one of the most eloquent passages of it says that the tolerance of serious wrongs by leaders sears the conscience of a culture, spawns unrestrained lawlessness, and surely will result in God’s judgment. There was a lot of mocking of that sentiment by a lot of the mainstream culture in 1998 when it was drafted, because that was Bill Clinton they were aiming at. We had peace and prosperity and all those Christian prudes. I remember even reading op-eds about how we need to have more European views about mistresses.

 

Is there a statement that’s been more thoroughly vindicated than that? What happens when we tolerate serious wrongs by leaders? It does sear our conscience. How many times are we now seeing people just rationalizing the grossest conduct? It does spawn lawlessness. The scandals that are metastasizing through the American body politic are ripping at the seams of our social fabric. God’s judgment is not necessarily hurricanes or tsunamis or fire from the sky. It can be something as simple as giving us over to our own desires and watching us reap the consequences of our own behavior. A part of God’s constant mercy and grace is consistently saving us from ourselves. God’s judgment will not always save us from ourselves, and many times we reap what we’ve sown. Right now, we’re in a reaping phase of having sown an awful lot of lawlessness and corruption.

This really short-term thinking that says, “I don’t like either one, but one’s clearly a lesser evil,” is exactly what’s landing us in the position that we are in with a collapse of trust in institutions, a collapse in trust in politics, a collapse in competence. If your primary qualification is you’re not the other guy, where’s the emphasis on competence even as a baseline? Somebody has to start taking the long view.

Neither party can win an election without their Bible-believing base. The two most church-going segments of American society, in addition to Mormons, are white evangelicals and black Democrats. Black Protestants are overwhelmingly Democrat. If both these movements exercised a veto authority over low-character politicians, American life would change.

That’s what I would urge for people of faith. Use the power that you actually have. Stop sitting around moaning and groaning that you’re persecuted and you don’t have any power. Come on. White evangelicals are the most powerful faction of one of the two most powerful political parties in the most powerful country in the history of the world. You are not powerless. You are not persecuted. Use the immense power that you have to begin to change the character of our institutions in a positive direction. No more fear-based voting. No more compromises with lesser evils. Use your power to reinforce virtue in this country, or you’re not upholding your end of the social compact. Period.

Abusing Religious Freedom for Abortion Access

For many years, advocates of religious liberty have had to fight back against accusations that religious freedom is a get-out-of-jail-free card. When Indiana’s Religious Freedom Restoration Act (RFRA) was being debated in 2015, it was pummeled with such criticisms. Opponents characterized the bill as giving religious Indianans a pass to violate the state’s anti-discrimination laws and the rights of LGBT people. In one of the most extreme examples—misunderstanding both the bill and religious people—critics even alleged that Christian doctors and EMTs could and would simply refuse to treat any LGBT patients.

Many of those opponents are now cheering as the bill they hated has become a law they love. In December, an Indiana judge determined that RFRA prevents the state from enforcing its newly passed restrictions on abortion, after several Jewish, Muslim, and other religious plaintiffs claimed that their religions sometimes obligate them to obtain abortions for reasons not recognized by the new state law. Indiana has appealed the decision, but this argument has already been raised in courts throughout the country. If progressive religious groups and litigators prevail, religious liberty claims will remain a central challenge to abortion restrictions enacted under the new Dobbs regime. After all, if successful, the argument would achieve two long-held progressive goals: making religious liberty laws unpalatable to the general public, and defending abortion rights.

 

On a legal level, as we discussed at greater length elsewhere, the judge’s reasoning was wrong. Under RFRA, once a plaintiff has shown that a law burdens her sincere religious practice, the state can still win if it can show that it is advancing a compelling interest in the manner least restrictive of religious liberty. But in this case, the judge denied the state’s claim that it was advancing the compelling interest of protecting fetal life because “the Plaintiffs do not share the State’s belief that life begins at fertilization or that abortion constitutes the intentional taking of a human life.” Having already found that plaintiffs and the state do not see eye to eye, the judge simply handed the plaintiffs a brass ring. Once the religious objectors proved their initial case, it became a fait accompli that the government could not prevail. The state would not be permitted to enforce laws that the court determined were based on principles the religious objectors did not share.

Such reasoning is contrary to Supreme Court precedent and is unlikely to hold up on appeal. It nonetheless provides a good opportunity to think carefully about why the court so readily mishandled a claim of religious liberty, and why groups like ours, the Jewish Coalition for Religious Liberty, will support Indiana in its appeal.

Religious liberty, embodied in the protections of the First Amendment, was never meant to be a trump card over state interests. Rather, it was always meant to strike a balance between majority rule and minority rights, just as the other provisions of the Bill of Rights do. As Orthodox Jews and lawyers (or lawyers-to-be) who see religious liberty as a cornerstone of a peaceful, pluralistic constitutional republic, we want to see that balance preserved. Courts’ scrutinizing state laws to ensure they account for minority interests by being narrowly tailored to achieve their goal is one way that happens. Religious groups’ using the channels of persuasion and politics to get legislative carve-outs is another.

Ultimately, the goal is to find a workable balance between order and liberty, without either of which a republic is impossible. Justice Scalia was right (in a decision with which we generally disagree) when he wrote in Employment Division v. Smith (citing Reynolds, which affirmed the government’s right to ban plural marriage despite its burden on some religious practices) that our Constitution does not “make the professed doctrines of religious belief superior to the law of the land, and in effect . . . permit every citizen to become a law unto himself.” Yet the First Amendment does offer protection for religious practice to a greater extent than it does for mere philosophical objection.

The precise contours of the balance between protecting religious liberty and allowing the states to pursue their compelling interest are difficult to identify in the religious freedom context, just as they are in the context of First Amendment rights to speech and assembly—both of which may be limited to preserve order and the public interest. RFRA represents one attempt to sketch out a balance, by reviewing state action to ensure that states are not sacrificing religious liberty for frivolous ends or recklessly failing to account for the interests of religious minorities unlikely to be represented adequately in the state legislature. State RFRAs may or may not be the right balance between majority rule and religious liberty, but the RFRA model is a good-faith attempt—and it is democratically enacted and subject to revision by democratic means.

By contrast, this Indiana court has signaled that it does not take the concepts of majority rule and religious liberty seriously. Making no attempt to balance state power and individual rights, it struck down a democratically enacted law on the grounds that it violated an unprecedented definition of religious liberty. It gave the state no real opportunity to prove that it had a sufficiently important need to burden religious exercise, much less that it had tailored its regulatory scheme carefully. Plaintiffs seeking religious vetoes over state laws, rather than compromises or carve-outs, similarly signal their shallow view of the relationship between democracy and religion.

 

Allowed to stand, this ruling would have ghastly consequences for religious liberty. States would have to choose between religious liberty laws and every other law they would enforce, nearly all of which burden someone’s conscience and limit behaviors some people consider obligatory. Faced with such a choice, states will have to give up protecting religious liberty altogether. What appears to be a victory for religious liberty—a court’s granting a religious claim great weight—is really just the opposite.

The plaintiffs’ arguments and judge’s decision bespeak an unfamiliarity with the mechanics and aims of religious exercise protections. That is probably the sad result of religious liberty becoming a partisan issue, as left-leaning Americans are increasingly unaccustomed to treating religion as something worth protecting. After assailing religious liberty as a cudgel for so many years, they have begun to embrace it for the same reasons. Moving from one extreme to the other, they have skipped over the constitutional demand to try to synthesize freedom and order.

But they were wrong then, as they are wrong now. Sincere claims of religious liberty are serious business. Free exercise is a constitutional protection for a reason, and deserves the same reverence we provide the freedom of speech, protection against cruel and unusual punishment, and the due process of law. These all pose challenges when they collide with what majorities want. But neither judges nor legislators can circumvent the challenges of governing a pluralistic republic by simply awarding wins to their favorite causes with whatever tool happens to be at hand.