The Authenticity of Theodore Roosevelt

I am making my way through Doris Kearns Goodwin’s The Bully Pulpit, which chronicles the complex web of relationships between Teddy Roosevelt, William Howard Taft, and several writers at McClure‘s Magazine during the Progressive Era.  Goodwin’s narrative weaves together the diverse personalities that interacted during Roosevelt’s Administration at the dawn of the 20th century.  Her ultimate objective seems to be to highlight how the writers at McClure‘s contributed to Roosevelt’s progressive agenda.

But like most books about that era, even if the author’s intention is to amplify the roles of other players one persona tends to dominate: Roosevelt’s.  Goodwin’s prose, perhaps unintentionally, amplifies the absolute authenticity that so many other writers have commented on with respect to Teddy.  His cunning wit, sincerity of heart, boundless energy, intellectual curiosity, and stubborn political will shine through regardless of how crowded the story is with other personalities.  Having read Edmund Morris’ masterful trilogy over the last few years, it is truly remarkable to read again how Roosevelt became the face of an era, political party, family, and country for the better part of two decades.


The Often Forgotten Part of the Analysis…

The legal debates surrounding the controversial HHS mandate have been given ample press recently, with many commentators attempting to break down the competing arguments.  Unsurprisingly, there has been some confusion over the appropriate legal standard.  Supporters of the mandate often focus on the public policy underlying the regulations at issue in order to emphasize that the compelling interest portion of the RFRA test is met (i.e, the Administration’s noted goal of pursuing “women’s health”).  Opponents of the mandate tend to highlight the significance of the burden felt by the plaintiffs (i.e., the hefty fines faced by employers who do not choose to comply).

The tendency to try to neatly divide the debate in this fashion unfortunately has led one of the most important aspects of the legal analysis to be forgotten in the popular mindset (emphasis on “legal”).  If the corporate plaintiffs pass the initial question of personhood under RFRA, the case transitions to the second inquiry regarding whether a compelling interest exists or not.  But even if the Court answers that question in the affirmative, the case is not over.  Rather, the outcome is likely to hinge on the third inquiry under RFRA, namely whether the regulation (law) pursues the stated, acknowledged, (or assumed for the sake of the analysis) compelling interest through the least restrictive means.  In other words, does the law pursue the compelling interest in a way that burdens the religious liberty of the employer in the smallest way possible?

This is where the rubber will likely meet the proverbial road.  Making this argument is a taller task for the government because the law exempts millions of other non-religious entities from the mandate.  In this sense, the law could be characterized as grossly under-inclusive, which means it does not burden enough individuals in order to adequately pursue the law’s stated objective.  Further, there are other ways that the government could seemingly accomplish its objectives, such as direct provision of the services, reimbursement to the provider, and other tax/credit solutions to those seeking the services.

Youngstown Sheet & Tube Co. v. Sawyer and the Syrian Crisis

Over sixty years ago, the Supreme Court decided one of the most significant cases in American history regarding presidential power.  Commonly known as the Steel Seizure Case, the Court denied President Truman’s attempt to seize private property, without congressional authority, for executive-defined “national security” purposes.  The rebuff of executive authority was remarkable in its own right; but its lasting legacy was the complete inability of several justices of the Court to draw clear lines for future cases, thereby foreshadowing future interaction between the branches.  Sixty years later, with a president seeking Congress’ blessing for military action in a sectarian conflict on the other side of the world, the different opinions are more relevant than ever.

Unlike President Obama, President Truman did not ask for Congress’ authorization prior to acting.  Instead, he asked them after the fact, immediately after the seizure, which occurred in the middle of the Korean War.

The Court said no and stated that Truman needed authorization from Congress.  Justice Black wrote a formalistic majority opinion that focused on the absence of congressional action ahead of time.  He pointed to past congressional actions that seemed to deny the president the exact type of authority that Truman sought.  Most importantly though, he argued that the power claimed by Truman did not inhere in Article II of the Constitution.  The implicit powers that come with being Commander-in-Chief do not provide the president with a blank check, especially because Article I locates war-making and lawmaking authority with Congress.  He also denied the power of precedent when it came to unilateral presidential action; past presidents may have acted beyond their constitutional authority, but that did not change the meaning of the Constitution.

Each concurring opinion was unique in its own right.  Justice Frankfurter expressed skepticism about clearly defining presidential power in the context of this case.  He also pointed to post facto congressional authorization as a legitimate practice, but emphasized how Congress did not act even after Truman seized the mills.

Justice Douglas’ opinion may be the most relevant in a post-9/11 world, where the limits of the War on Terror remain unknown and civil wars in the smallest countries may tangentially affect national security in some way.  Douglas warned that emergency does not create power and that necessity does not place power in the hands of the president rather than Congress.  Bullish on the separation of powers, Justice Douglas emphasized how the separate branches protect against arbitrary exercises of power, which are most prevalent when the nation may be under duress.  The Constitution cannot change for the purposes of political convenience born from emergency situations.

The most famous opinion came from Justice Jackson.  He divided presidential power, as it relates to congressional action, into three categories, with the most presidential power existing in the first situation.  The categories were when: (1) the president acts pursuant to express or implied congressional authorization; (2) the president acts when Congress is silent; (3) the president acts in defiance of Congress’ will.  In the first scenario, the president acts according to inherent executive authority in Article II and Congress’ blessing.  In the second situation, the president acts based on Article II powers alone, which few have been able to define clearly given the textual ambiguity in Article II itself.  The last situation requires the most scrutiny because the president’s action is only legitimate if the goal of the action is beyond Congress’ authority (and impliedly within Article II).

Running through Jackson’s framework is the idea that the president, while Commander-in-Chief of the military, does not, because of that title, become military commander of the entire country to the point that the president can ignore the existing legal framework.  In other words, representative government still reigns sovereign because the president’s military authority is not extra-legal.  Interestingly, however, Jackson does state that presidential power is broader when turned outward rather than inward (domestic) because Congress has significant authority, as enumerated in Article I, in the latter situation.  Thus, even in Jackson’s eyes, there is wiggle room when foreign affairs of the highest order are involved.

What does all of this mean for the present debate occurring about action in Syria?  While the facts are significantly different considering Truman’s situation involved a unilateral action on American soil related to a war effort abroad, it suggests that should Congress decide not to authorize military action, the president may be fighting a battle over legal legitimacy as well as a battle over public opinion.  The risk of Congressional rejection would put the president in Justice Jackson’s third category, especially considering that Article II is silent about humanitarian missions and because Congress will be tasked with funding whatever mission takes place.  From a legal standpoint, one could argue that the president would have been on sounder legal footing if he acted in Jackson’s second category, because the ambiguity inherent in Article II allows for more creative legal arguments.  On the other hand, the president’s decision to seek congressional authorization comports with the spirit running through Jackson’s opinion regarding norms of representative government.

At the very least, the conversation between these Justices provides a window through which to view the interaction between Congress and the President in the coming weeks.

Who Decides?

Tracing the history of the Free Exercise Clause, and particularly what is known amongst legal scholars as “exemptions analysis,” is like riding a roller coaster.  When the law started to run up against unorthodox practices with greater frequency, starting with Reynolds v. United States, the Court opted for the approach that it later took in Employment Division v. Smith.  In Reynolds, the Court prioritized generally applicable laws over religiously motivated conduct in direct contravention of the law (in that case, a criminal prohibition against bigamy).  The Reynolds Court made clear its concern over the idea that religious belief will relieve citizens of civil obligations that are linked to the social order.

Fast forward nearly a century and the Court makes an about face.  Instead of deferring to legislative judgments, the Court decided to create a system of individualized assessment for each individual claim.  The Court ushered in an era of “strict scrutiny” of laws that burden religiously inspired conduct.  Absent a compelling interest, the state could not substantially burden a religious believer.  This is how and why Amish parents were victorious when they challenged a Wisconsin law compelling attendance of their adolescent children at the local public high school.   After Wisconsin v. Yoder, the action regarding religious exemptions from the law took place in the courts.

Nearly twenty years later, the Smith decision became the law (and still is to this day).  Smith stands for the principle that neutral and generally applicable laws are presumptively constitutional even if they incidentally burden religiously motivated conduct.  This rule applies across the board unless the law in question targets a specific religious belief (Church of Lukumi v. Hialeah) or the case involves another constitutionally protected interest, such as parental due process rights (how Justice Scalia distinguishes Yoder).  It also does not apply if the law in question contains a system of individualized assessments, especially for secular claimants (how Justice Scalia managed to not overrule Sherbert v. Verner).  A keen observer will notice that the exceptions to the rule imply that the law in question was not neutral and generally applicable in the first place.  Regardless, the majority opinion in Smith prefers the work of legislatures when it comes to protecting religious freedom.

Interestingly, Justice O’Connor, while agreeing with the result in Smith, did not advocate the rule announced by the majority.  Instead, she preferred strict scrutiny as the best method for preserving religious liberty to the fullest, which she labels a preeminent constitutional norm.  For O’Connor, the Free Exercise Clause took the regulation of religious liberty out of the hands of the legislature for the precise reason that serves as the underlying premise of the majority’s opinion: namely that incidental burdens on religion are not in fact “prohibiting” free exercise.  Somewhat obviously, Justice O’Connor points out that the Free Exercise Clause does not distinguish between indirect and direct burdens.  And courts are more likely to protect religious liberty, especially for the unorthodox.

While this roller coaster of precedent could take another turn in the future, especially given the numerous conflicts between religious liberty and general regulations, as well as new marriage laws in various states, it is interesting to note that the debate between each side centers around choosing between the legislature and the courts.  But nowadays, many legal challenges in the religious liberty context center around problematic regulations promulgated by an agency in the executive branch, which most likely received its authority from the legislature (federal or state).  The knock against leaving these questions in the hands of the legislature is that religious freedom should not be subject to the whim of the majority; conversely, critics of judicial adjudication argue that judges are unelected, unaccountable, and not capable of drawing clear lines.

Notably, one could object to leaving these issues in the hands of executive regulators on both of these grounds.   Regulations that are the product of executive bureaucratic decision-making are only indirectly and remotely democratic, and regulators are at least arguably only as accountable as judges, if not less so given insulation from the public eye.

One can only wonder whether Justice Scalia would be as deferential to the legislature now that experience has demonstrated that the legislature is significantly unlikely to actually write the law that leads to litigation.  Given his general frustration with legislative delegation, perhaps he will modify Smith should the issue present itself in the future.



Religious Exemptions and Same-Sex Marriage

Religious Exemptions and Same-Sex Marriage

This is one of the better stories I’ve seen in the mainstream media that summarizes the debate amongst scholars, lawyers, and other players concerning maintaining religious liberty in light of the legalization of same-sex marriage in different states.  Lots of viewpoints are represented and the author does a good job of articulating the premises that motivate each side.

ESPN’s Effect on College Football

ESPN’s Effect on College Football

The New York Times has a fascinating series on the influence of ESPN on the upcoming college football season and how the relationship between the network and the major football conferences has developed over the past two decades. 

ESPN’s strong relationship with the SEC, investment in the Longhorn Network, and ability to help smaller programs become more notorious (aka Boise State) makes the rumors about a new Division 4, or super-conference, even more interesting.  Is it possible that any other future exists for college football?

College Football Predictions

The start of the college football season is a mere 3 days away and it’s time for me to make my picks for the upcoming season:


BCS Championship Game: Alabama v. Stanford

Top 15

1. Alabama: The Process overwhelms anything in its path.  This team is loaded.

2. Stanford: The Cardinal gets the nod at No. 2 due to a favorable schedule (Oregon and Notre Dame at home).

3. Ohio State: Braxton Miller and company run the table until they meet Michigan on the road and relish the opportunity to ruin a season.

4. Georgia: The Bulldogs have the unfortunate reality of having to face Alabama in the SEC title game, which has become the BCS play-in game.

5. Oregon: Stanford will have the Ducks’ number again but big O could run the table.

6. Clemson: If they run the table, they could meet Alabama.  When was the last time an ACC team did that?


                                       Notre Dame Stadium – South Bend, Indiana

7. Louisville: A very good team in a very bad conference.

8. South Carolina: Spurrier’s squad has top 5 talent but an SEC schedule with tough road games to deal with.

9. LSU: Ditto, South Carolina.

10. Florida: Ditto, South Carolina and LSU.  Plus, their offense still worries Gator fans.

11. Notre Dame: If Golson returned, ND might be heading to the title game again.  With Rees, a BCS game is still in sight given the tough Irish D.

12. Texas: Mack Brown has the Hook ’em Horns on the rise again and they could be a sleeper.

13. Michigan: The Wolverines could win the Big Ten, but tests against ND and at Penn State present stumbling blocks.

14. Oklahoma State: The Cowboys might be the Big 12’s finest in a down year.

15. Texas A & M: Too much noise surrounding Manziel will take a toll on this team’s title hopes, especially after the Tide roll into College Station.

New Elements of America’s Civil Religion?

Robert Bellah’s Civil Religion in America essay from nearly fifty years ago was a groundbreaking work that described how the American experience has fostered a religion within the political sphere that is not formally state-sponsored or enshrined in law, at least directly.  Bellah traced this [civil] religion throughout American history, beginning with the Promised Land themes that prevailed at the time of the American Founding, to the sacrifice and rebirth that Lincoln eloquently described at Gettysburg during the Civil War.  Bellah frames the essay by reflecting on how JFK, the country’s first and only Catholic president, referenced God in his inauguration address.  He wanted to know why the president did this, and what it meant to Americans.

This short essay caused me to reflect on whether any new elements have been added to the civil religion that Bellah describes.  The article appeared in 1966, which was the midpoint of the civil rights movement that captured the nation’s attention.  Certainly, Martin Luther King Jr.’s “Dream Speech,” which occurred fifty years ago this month, added to the catechism of this religion.  Dr. King’s message revived Promised Land themes at a time of national crisis, but expanded those themes to include the power of personal conscience and Christ’s call to “do unto others as you would have them do unto you.”


Tomb of the Unknown Revolutionary War Soldier, Washington Square Park, Philadelphia

Have any other elements been added after the civil rights movement?  That movement sets the bar high for becoming part of the canon, especially when one considers the most visible aspects of the civil rights movement happened over the course of two decades, if not longer.  Arguably, one could make the case that faith in technological advancement, science, and human ingenuity, ranging from the mapping of the human genome to the personal computer (or handheld device), now holds a special place as part of the religion.  The Internet is now accepted as the prime way to express freedom and autonomy and to self-define and mold the world as one sees fit; if faith in the Internet is not a core element of the civil religion, it may be, at the very least, a temple in which to practice it.

Another possible modification is the definition of God that prevails in today’s civil religion.  The “God” of the Founders was a judge, the locus of absolute authority, and actively involved in world affairs.  The Founders also believed that God’s providence looked favorably on America’s plans.  This definition paralleled many of the institutional religions in existence at the time, even if the “God” of the civil religion did not belong to any one of them specifically.  Notably, the decline in institutional affiliation amongst Americans who self-define as religious is one of the major trends of the 21st century and is unlike any other period of America’s religious history.  Some scholars have suggested that “God” no longer resembles the figure that was present in the traditional religions at the time of the Founding.  Perhaps this is why it seems like fewer Americans tolerate references to “God” in public affairs, because if “God” is not involved in the nation’s affairs, and only relates to individuals on a private level, then it would seem to follow that the same “God” does not need to be included in any sort of national conversation.

In hindsight, Bellah’s essay was perceptive, and he even acknowledges that he could not understand why the subject had not received more attention amongst scholars.  Perhaps it is time to study how the civil religion has changed in the past fifty years.

The First Amendment Jurisprudence of Fr. John Courtney Murray, S.J.

Over the weekend, I had the opportunity to revisit the work of Fr. John Courtney Murray, S.J., specifically a chapter in We Hold These Truths: Catholic Reflections on the American Proposition.  After reading the chapter, I realized that I had unconsciously expected to conclude that Murray’s work, while prescient at its time and undoubtedly a significant contribution to Catholic legal theory, was outdated by this point.  Instead, I marveled at Murray’s words about the meaning of the First Amendment and what it means for American culture.

In “Civil Unity and Religious Integrity: The Articles of Peace,” Fr. Murray reflects on the inherently paradoxical “American Consensus” given America’s religious pluralism from the beginning of its history.  The American genius was the prioritization of peace through freedom, rather than attempted single-mindedness or conformity to a particular political orthodoxy known at the time.  Instead, the American orthodoxy, if you will, leaves room for the unorthodox to operate separate from the state.  This results in unity conceived in freedom, an idea that the Founders sought to practice in the unique constitutional system they created.

For Murray, civil unity can co-exist with religious pluralism when the traditional distinction between the realms of religion and the state is maintained.  Acknowledging the jurisdictional line that separates both fields is the theory that underlies religious freedom in the United States, and that finds its legal form in the First Amendment.  In other words, religious freedom means freedom of religion, and sometimes, in effect, for religion.  With ample religious actors in society, this presumption for freedom breeds civil unity because all traditions are respected rather than sterilized.  The First Amendment, as good law oriented toward the common good by pursuing social harmony, promotes this objective.

Murray contrasts this approach with different “Theologies of the First Amendment.”  Writing in the mid-20th century, he reflects on how the historical influence of Protestantism on American law caused some to believe that the First Amendment enshrined Protestant orthodoxies (see e.g., debates about public and private school funding in the late 19th century).  For proponents of this view, the Religion Clauses were “Articles of Faith.”  This could not be true according to Fr. Murray because it would actually result in an establishment, which of course the First Amendment prohibited.

The opposite end of the spectrum, consisting of the most fervent secular liberals, held that the First Amendment actually meant, in substance, the metaphor everyone has come to know as the “wall of separation.”  For this crew, positivist norms prevailed, such as strict majoritarianism and the notion that civil rights are the end all, be all.  The consequence of this viewpoint was that religion, and more colloquially churches, are within the state and owe their continued existence to the positive law that confers civil rights.  For Murray, this view also failed because it ultimately resulted in the subordination of church and state rather than its supposed objective, namely separation (which Murray supports for reasons discussed below).  It also established a secular orthodoxy that was in effect hostile to religion.

Most notably, however, are Fr. Murray’s comments directed at those who hold “freedom of religion” as a religion itself.  Standard talking points for many politicians and lawyers contain references to support for “the separation of church and state.”  Murray thought this was too dogmatic and out of touch with the actual spirit of the First Amendment, which was more pragmatic than doctrinal and recognized the positive role that religion plays in society, specifically between the government and citizens.  The notion of “freedom of religion” was not supposed to be a religion itself; the strict separation of church and state is a dogma that is not rooted in history or reality.

Murray’s alternative to the three common mistakes above is to place the First Amendment within the context of Western, Christian legal tradition that prioritizes the common good and to recognize the social realities at the time of the Founding.  The common good is not what many now consider it, namely pure social welfare considered in material terms.  Rather, the common good touched more directly on the conditions necessary for human flourishing, one of which was social peace and harmony.  Fr. Murray believes this is precisely what the Founders did when crafting the Religion Clauses, even if their intentions were not entirely clear at the time.  Their aim was simple: making good law for the preservation of the public peace in a fragile, religiously pluralistic society.  As such, they crafted “Articles of Peace.”  For Murray, this goal was noble because social peace is an “integrating element of the common good.”  Peace binds people together in civil unity while allowing ample room for religious integrity born from religious freedom.

What does Murray use to support his interpretation of the First Amendment?  He points to the social necessities at the time of creation of the Amendment.  First, any law had to account for those who did not believe or have a faith and instill the value that those who do believe deserve respect.  Second, the social reality of multiple denominations required a novel solution.  Third, the American solution satisfied the American desire for removing discrimination from business and economics.  In other words, religious discrimination was bad for business.

These on-the-ground concerns led to the adoption of the Religion Clauses as pragmatic measures with an eye toward the common good.  The First Amendment, then, removes religion from the province of the state.  This reaffirms the ancient notion of distinct orders for church and state; denying this distinction either results in a loss of civil liberty (in the case of religion subsuming the state) or religious liberty (in the case of the state overtaking religion).  Madison’s Memorial and Remonstrance says nearly as much.

Yet even more interesting are Murray’s comments about Founding beliefs toward strict secularism.  He holds that the Founders, by crafting the Amendment as they did, rejected strict separation and de facto hostility because in reality strict separate was tantamount to theocracy: it resulted in a unification of church and state by making everything political and secular and the state omni-juridical.  In other words, Murray manages to defend religious liberty by holding that deprivations of religious liberty will actually result in long-term denials of other civil liberties.  Once freedom for religion is lost, the dominoes fall into place for other similar actions by the state.

For Fr. Murray, the American experience (experiment) with religious liberty is evidence of its genius.  Our history indicates that political unity and stability are possible without uniformity of religious belief and practice and without government restrictions on religion, unless the religious practices violate the public peace (and therefore disintegrate the conditions necessary for the common good).  When the government chooses to recuse itself from the market of religious differences, rather than attempting to create a public space that only allows certain convictions or actions, the common good is strengthened because freedom is more prevalent.

Why might these views be considered prophetic?  Because the American Consensus that Fr. Murray lauds earlier in his book–an appreciation for the idea of one nation under God, the natural law and natural rights tradition, the principle of consent, the role of virtue, and this understanding of the First Amendment–appear under attack.  Many doubt whether the idea that God is the author of pre-civil rights still prevails among a majority of the nation, if it is even on the collective radar at all.  Positive law, with its emphasis on quantity, science, and efficiency, seems to have replaced any consideration of the natural law in public policy debates (think of politicians saying, tautologically, “I’m interested in what works.”).  Most strikingly, talk of virtue-both communal and individual-is rare, and social organizations outside of government are declining.  The prevailing definitions of freedom resemble personal preference rather than the pursuit of objective goods.  The idea that the Christian tradition has contributed to the legitimacy of natural rights is mostly forgotten.  And finally, the notion that the realm of religion is beyond the purview of the state for all matters except those involving the “public peace” is arguably being challenged by both the left and right.

Writing at the time that many doubted whether they could vote for a Catholic candidate for president, Fr. Murray’s book was an attempt to synchronize Catholic teaching with the core components of the American creed.  Concluding that the Catholic conscience was amenable to the American Consensus, Fr. Murray proceeded to address other modern political issues such as aid to private schools and nuclear disarmament.  But perhaps the most prescient of Fr. Murray’s observations comes at the end of the first chapter, titled “E Pluribus Unum: The American Consensus.”  After describing the components of the historical and social consensus (mentioned above) in detail, Murray concludes by noting the irony of the position of the Catholic Church with respect to the Consensus.  According to Murray, Catholics, considered half-citizens by many who were skeptical of their loyalty to the Pope, may one day have to defend the original American creed against other ideas put forth by citizens as society continued to develop toward an expansive state model.  While many have characterized the Church’s response to the HHS mandate as overblown hysterics, it is undeniable that the Church is attempting to answer what it perceives to be its call, namely defending the idea of religious freedom that was formalized in the good law of the First Amendment.

Comparing and Contrasting Presidential Action

The WSJ has an interesting op-ed this morning discussing the responses of President Lincoln and President Obama to critics about alleged usurpation of executive authority.  Regardless of which side of the debate one finds his or herself, this discussion is fascinating.  With that said, the two situations appear somewhat different, as one involves adherence to a constitutional law (the habeas clause) whereas the other involves a legislatively enacted law.  Additionally, the backdrop of the Civil War arguably magnified the necessity of Lincoln’s decision to suspend habeas and the intensity he showed when trying to defend his action (which for some, indicates why Lincoln looks even better than the current president).  As many authors have suggested, it is in the quietest times that executive authority expands because very few are truly paying attention.

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