Circumscribing Constitutional Identities

Article excerpt

I. Introduction: Constitutional Ethnographies

This Note examines the opinions and legal commentary on the Kiryas Joel(1) case decided by the United States Supreme Court in 1994. The case turned on the constitutionality, under the Establishment Clause of the First Amendment, of New York State legislation establishing a separate school district providing special education exclusively for Hasidic Jewish children. The Court deemed that legislation an unconstitutional establishment of religion.(2) However, in line with certain dicta of the Court, the legislation was redrafted in a fashion which, until August 1996, appeared to permit the separate school district to continue. At present the fate of the district is once again being litigated.(3)

A substantial amount of commentary has already been written about Kiryas Joel. Student notes on the case are frequently concerned with the implications of Kiryas Joel for Supreme Court standards in deciding religious establishment cases -- an area of law that has been notoriously troublesome to the Court in recent decades.(4) Professors and other legal scholars have analyzed the case as an example of the current Court's secularist bias(5) and as an example of the need to examine constitutional issues from the perspective of minority groups.(6) The most exhaustive exchange on Kiryas Joel began with a 1996 article by Professor Abner Greene, who argued strongly for the right to semi-autonomy of groups that demonstrate their commitment to their own principles by separating themselves geographically.(7) Greene's article sparked responses from Christopher Eisgruber, who claimed that assimilation is a constitutional value,(8) and Ira Lupu, who was concerned that the current arrangement masks abuses of democratic process within Kiryas Joel.(9)

This Note argues that the judicial opinions and the legal commentary on Kiryas Joel share a common underlying conception of the relationship between identity (the nature of the subject of rights) and polity (the constituency of the state). In that underlying conception, the polity is understood as consisting of all the citizens of a neutrally bounded territory (a municipality or state), while the subject of rights is taken to be the individual person.(10) This Note explores the ways in which the assumptions of neutral territory and the individual subject have shaped the literature on Kiryas Joel. It articulates an alternative underlying conception of political identity as organized around diaspora (primary orientation somewhere other than a group's present residence) and genealogy (family and group descent and upbringing). It claims that this alternative underlying conception animates the residents of Kiryas Joel in their search for the culturally acceptable provision of special education.

This Note claims that jurisprudence on this case should attend to genealogy and diaspora as the cultural contexts of the Kiryas Joel dispute. Moreover, it claims that the search for principles of religious "neutrality" in constitutional jurisprudence is inseparable from Protestant traditions of individual liberty of belief and thus may be ill-suited to determining the religious rights of many Americans today. The argument is neither in favor of one of these conceptions of identity nor against the other; it seeks to demonstrate the contingency (rather than universality) of individualism and territoriality on the one hand and the coherence of genealogy and diaspora on the other.

Part II of this Note discusses the origins of the dispute and the history of the legislation. Part III explains the contrasting conceptions of polity and identity informing discussions of Kiryas Joel. Part III also discusses Robert Cover's Nomos and Narrative,(11) an essay in jurisprudence that has influenced much of the existing literature on Kiryas Joel. Part IV looks closely at the rhetoric used in that existing literature to demonstrate how individualist and territorial assumptions subtly influence accounts of the case. …