Strengthening Constitutional Self-Government

No Left Turns

Breyer on the First Amendment

Howard Friedman calls our attention to this report of Justice Stephen Breyer’s view of the First Amendment religion clauses. Two telling snippets:

Author of Active Liberty: Interpreting Our Democratic Constitution, published last fall, Breyer said that justices have “six possible places to look” when deciding on a case.

He then cited the text of the Constitution, the history, the tradition, precedent, the purpose or values that underlie the text and the consequences to those values. He said that some justices emphasize the first four more than the latter two, and vice versa.

“One of the things that is very difficult to me,” Breyer said, is determining “what precisely are the values that underlie” the Establishment Clause, which states that Congress shall make no law respecting the establishment of religion.

The idea behind the language “comes out of the wars of religion” between Catholics and Protestants in 17th-century Europe, he said, noting that the writers of the Constitution wanted only to ensure that Americans could practice their religion and teach it to their children.

Of course, those, er, values have lost their mooring, such as it ever was, in history:

The interpretation of the Establishment Clause has evolved in the 20th century, as the country changed and immigrants introduced dozens of new religions into the United States.

“The Founders did engage in a lot of activities that would be forbidden today under … current interpretations of the Establishment Clause,” said Breyer, because they lived in a generally homogenous nation.

As the nation has changed, the court’s view of the Establishment Clause has changed, but Breyer believes it has still stayed true to the original values that the Founders intended.

It sounds to me like, for Breyer, values and consequences overshadow text, history, and tradition by a wide margin, with precedent serving as an authority so long as it squares with one’s contextual assessment of those wonderfully plastic values.

Discussions - 3 Comments

Immigrants introduced dozens of new religions into the US during the 20th century? Help me out. What is he talking about? Islam, Hindu, Buddism, Shintoism...

These are incredibly tiny religions, but dozens? How (or why?) does the absolute number of religions change the treatment of the plain language of the establishment clause?

And how did the 17th century "religious wars" between Catholics and Protestants--the antecedant of the establishment clause in Breyer’s formulation--devolve into a "generally homogenious nation" in our founders’ 18th century?

The founders engaged in activities that would be forbidden today--nonetheless, Breyer believes the Court has stayed true to the founders’ values.

There must be a latin phrase for that logical implausibility!

A "telling" statement, or massively confused?


There is nothing wrong with Contextual Assessment. Context is almost everything.

Forbes: I think Breyer’s argument is logical and consistent. One could say the founder’s laid down a broad principle; "government actions should not cause religious strife." When everyone was Christian government could do vague Christian things and not run afoul of this principle. Once American became more diverse government could do less. The principle stayed the same.

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