Academic journal article Harvard Journal of Law & Public Policy

Religion, the Public Square, and the Presidency

Academic journal article Harvard Journal of Law & Public Policy

Religion, the Public Square, and the Presidency

Article excerpt


In addressing what advice on issues of religious liberty a practitioner in the religious liberty field might give to the new President, it almost seems rude to dwell on another branch of government. It would seem more appropriate that advice to the Chief Executive on furthering religious liberty focus on the executive branch, entailing questions such as those which faced the Clinton Administration: whether military chaplains are free to preach about partial-birth abortion,(1) whether to retain a display about Native American worship in a national park visitor's center despite an Establishment Clause challenge,(2) or how to deal with the suppression of student religious speech in public schools.(3) Another proper area of focus would be the President's legislative opportunities, such as whether to support school vouchers and charitable choice as measures that enhance the freedom and equality of religious people and institutions, or to adhere to the view that they are threats to religious freedom.

Try as I might to focus on these issues, one clause of Article II, Section 2 refuses to be ignored: "[A]nd he shall nominate, and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by law." Two powers within this clause-the power to appoint Justices of the Supreme Court and the power to appoint other federal judges (hidden in the catch-all "other Officers" language) -- have arguably become the primary engine of the federal government's policy on religious liberty issues.

Things were not supposed to be so. The Framers certainly intended the Constitution to be the supreme law of the land and the legislative will subservient to it. As Hamilton wrote, "[T]he constitution ought to be preferred to the statute, the intention of the people to the intention of their agents."(4) But the Framers nevertheless conceived of the judiciary as "the least dangerous" branch.(5) Madison observed in Federalist No. 68 that because of the specificity with which the judiciary's role is defined in the Constitution "projects of usurpation ... would immediately betray and defeat themselves"(6) Hamilton was even more optimistic. He remarked in Federalist No. 81 that

   the supposed danger of judiciary encroachments on the legislative
   authority, which has been upon many occasions reiterated, is, in reality, a
   phantom. Particular misconstructions and contraventions of the will of the
   legislature may now and then happen; but they can never be so extensive as
   to amount to an inconvenience, or in any sensible degree to affect the
   order of the political system.(7)

Experience has not been kind to Madison and Hamilton's prognostications. As Abraham Lincoln observed in response to the Dred Scott decision: "[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."(8) Nor have the Federalists' predictions held true in the twentieth century, particularly on the issue of religion in public life. Since the incorporation of the Establishment Clause in Everson v. Board of Education,(9) it has been the federal courts that have largely determined national, state, and local policy on the proper role of religion in public life. The issues of whether prayers(10) or moments of silence(11) are appropriate in school, what types of holiday decorations will be seen in towns each December,(12) and whether disadvantaged children attending parochial schools will receive the same special educational services public school children receive(13) are but a sampling of areas in which the Supreme Court has co-opted the field. …

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