Thursday, July 29, 2010

The Polymorphic First Amendment

By Mike Dorf

My prior post on "constitutional polymorphism" inspired some vigorous challenges in the comments.  After briefly summarizing them, I want to offer what I now regard as a better example than the one I gave earlier in the week.  In a third (and probably final) post on this subject next week, I'll connect my thoughts on polymorphism to the "new originalism."

Recall that "polymorphism" refers to the idea that a single word or phrase in a single statute or constitutional provision might mean different things in different contexts.  Justice Scalia has attacked polymorphism in statutory interpretation but, as I noted in Monday's post, Jon Siegel wrote an excellent article explaining both that it is not novel (as Scalia claimed) and that it can sometimes be normatively justified.  I suggested that polymorphism may provide a good account of how it is that the Senate's role in confirming executive officials is to defer substantially to the President, while it can show the President less deference with respect to judicial nominations.  I also gave examples of how "due process" and "equal protection" mean different things in different contexts.  Even as I acknowledged that the latter two examples aren't exactly polymorphic--because the capacious terms "due" and "equal" can have a consistent meaning even as they entail different tests in different contexts--I said that this formal distinction is not especially important: The important point is that the terms are sufficiently open-ended to give courts the power to interpret them differently based on context.

A couple of readers objected that the formal difference between a vague term like "equal" and treating a single term to mean different things is important.  In our back-and-forth, I acknowledged that even my core example--the meaning of "advice and consent"--is not really polymorphic: Consent always means a majority vote of the Senate, even as the criteria for consent (which are not listed in the Constitution) may vary depending on whether the Senate is considering a nominee to executive or judicial office.  Accordingly, I want to substitute a case of true constitutional polymorphism

The First Amendment provides: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."  What does the word "no" mean in the First Amendment?

When it comes to "an establishment of religion," "no" means no.  That is, if the courts determine that a law does respect an establishment of religion, then the law is unconstitutional.  But with respect to a law "prohibiting the free exercise" of religion or a law "abridging the freedom of speech, or of the press," "no" means "almost no."  If the courts find that a law does one of these things, the law is not automatically invalidated but is instead subject to strict scrutiny.  Thus, we have an example of constitutional polymorphism: The Establishment Clause is absolute while the rest of the First Amendment (putting aside petition) is merely a very strong presumption--even though the very same single word "no" does the work for each clause.

Is that sensible?  Sure.  The Establishment Clause may be best understood as a structural principle that strips the  government of jurisdiction over religious matters.  That's not the only plausible interpretation of the Establishment Clause, to be sure, but it is a plausible reading, and if one accepts that reading, then once one determines that some law--authorizing organized public school prayer, say--attempts to exercise power over religious issues, then the law is ipso facto unconstitutional, much in the same way that a law that purports to regulate interstate Commerce but in fact exceeds the bounds of the Commerce Clause is automatically unconstitutional, without any further requirement that the law be subject to strict scrutiny.  By contrast, the individual rights provisions of the First Amendment shield individuals and thus can be overridden in cases of compelling need.

I'm NOT attempting to justify these particular doctrines.  I'm simply saying that they're plausible accounts of the doctrines we have--even though the single word "no" must be given different meanings with respect to the different clauses of the First Amendment in order to make them work.