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.


andy grewal said...

Keeping your disclaimer in mind (regarding simply providing a description of existing doctrines and not espousing a specific view), it seems like treating "no law" as a polymorphism is the wrong way to go. That is, courts should not say that for some things "no" means "no," but for other things, "no" means "almost no."

Rather, there'd be a stronger intellectual foundation if a court found that (for example) yelling "fire" in a crowded theater is not included in the concept of "freedom of speech." Read this way, there's no bizarre polymorphic issues. Ditto for "free exercise" of religion; if one particular religion observes its faith by killing people left and right, I would state that killing people left and right is not what is contemplated by "free exercise." I absolutely would not conclude (and do not think it sensible) that the "no law" language must be contorted to mean "almost no law" (although Siegel presents at least one situation where I think polymorphisms may be appropriate).

As a doctrinal point, I'd want to read the cases and make sure that courts are saying that "no" means "almost no," rather than merely construing limitations on the phrases "freedom of speech" and "free exercise," before concluding that this presents a real-life adoption of polymorphisms. The First Amendment example still leaves me wanting. But again, this is not my area. Maybe courts really are explicit that they are ignoring the word "no."

Also, a nitpick -- your post mentioned that Scalia had questioned polymorphisms in the statutory context, but I'd add that he has expressed doubt about polymorphisms in the constitutional context as well. (Do a CTRL+F for "grotesque" in the Heller opinion).

Thank you for bringing further attention to these fun issues. I'm looking forward to your third post!

Publius the Clown said...

Andy--I think that Professor Dorf is right to say that "no" means "almost no" when the Court applies strict scrutiny in the free speech or free exercise context. In that context, the Court only applies strict scrutiny when an individual is, in fact, asserting an individual constitutional right. Otherwise the Court's analysis would revert to rational basis scrutiny, or at least to intermediate scrutiny.

Accordingly, if the Court upholds a law after applying strict scrutiny, it does not find that the individual right claimed is not a constitutional right after all. Instead, it finds that the law that infringes the right is narrowly tailored to achieve a compelling government interest, and thus that the infringement of the right in this context is okay.

Unknown said...

I am also doubtful that the Court's First Amendment jurisprudence is an example of constitutional polymorphism.

First of all, it is far from clear that courts have treated the Establishment Clause principally as a structural guarantee. The U.S. Supreme Court has suggested that strict scrutiny might sometimes apply to the Establishment Clause, see, e.g., Larson v. Valente 456 U.S. 228 (1982), and the Second Circuit, in the only case applying the Establishment Clause abroad, created a special balancing test for the transnational context. Lamont v. Woods, 948 F.2d 825, 841–42 (2d Cir. 1991). Moreover, the Court has treated the Establishment Clause like other individual-rights guarantees by incorporating it. On the current Court, only Justice Thomas objects to Establishment Clause incorporation, and even he has suggested that the Clause should be treated as just another individual-rights guarantee; for example, in Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007), Thomas joined Scalia’s concurrence claiming that Article III standing rules should apply to the Establishment Clause in the same way these rules apply to other rights.

Second, to the extent that the Court has been reticent about applying strict scrutiny to the Establishment Clause, this reticence might have more to do with the flexible doctrine in this area of the law than the polymorphism of the word "no." The Lemon and endorsement tests permit so much judicial discretion that they already seem to include some consideration of state interests, as we have seen in the cases dealing with "ceremonial deism."

I think this is a fascinating topic, and I see much promise in how it can apply to constitutional interpretation in general. But I am doubtful of its applicability, as a descriptive matter, to the Court's First Amendment jurisprudence.

egarber said...

Is the notion of polymorphism rendered irrelevant if the issue is non-justiciable? On the "advice and consent" matter, it seems that at most, a court could only rule on whether the Senate at least did something. However, the substance of what "consent" means is left to senators to figure out; so by definition that would seem to leave room for multiple "correct" answers.

In physics terms, it's like saying there's a certain probability function that is itself an acceptable explanation -- unlike something the SCOTUS "collapses" into firm reality (no meaning no, etc.)

andy grewal said...
This comment has been removed by the author.
andy grewal said...


I can't express any opinion on what the first amendment cases actually say (I mostly read tax cases), but why aren't the limitations regarding "compelling government needs" best understood as limitations on the the concepts of "freedom of speech" or "free exercise"?

That is, wouldn't it be more intellectually sound to conclude that "free exercise" doesn't actually mean do WHATEVER YOU WANT TO DO AND WHENEVER YOU WANT TO DO IT, but that the concept of freedom is implicitly limited when there are compelling external circumstances?

To think about it in a different way, I don't think that, as a general matter, the word "free" connotes absolute freedom. If I say that "you are free to cross the street," you would probably understand that I'm not saying you can cross on a red light. And if a parent tells her child that he is "free to study" what he wants at college, I don't think that the parent is suggesting that the student can study only baseball statistics or only co-eds.

Again, not having read the first amendment cases, I cannot speak to what the courts are actually doing. Maybe they really are treating this as a polymorphism. But, subject to the huge disclaimer regarding my lack of knowledge of the First Amendment, I think the best way to understand limitations on people's ability to say whatever they want or practice religion however they want is by understanding that "freedom" doesn't mean "absolute freedom no matter what." If contemporary documents showed that the ratifiers understood that free exercise and freedom of speech actually meant that you can do whatever the hell you want, I'd be much more convinced that this is a true polymorphism.

Also, lest one think I just refuse to see polymorphisms, I'll point out that I come across polymorphic interpretations in the tax code all the time. Thus, I don't doubt that there are many, many such interpretations that have been adopted. But I'm skeptical that the First Amendment presents a strong case in support of them (as Mike's approach seems to suggest), and I still think that polymorphic interpretations should be given in only extremely unusual circumstances. They've been taken too far already, in my view, and we should be bashing polymorphisms, not defending them.

Michael C. Dorf said...

I'll try to incorporate my response to these insightful comments in my next post on this subject, next week. Thanks all!

Sam Rickless said...

[This is the first of a two-part post.]

While we're at it, let me add a (significant) wrinkle to Andy's suggestion (with which I partly agree).

Andy suggests that in "Congress shall make no law...prohibiting the free exercise of religion...or abridging the freedom of speech," the word "freedom" does not mean "license" (i.e., absolute freedom to do whatever one wants). This is part, but not the whole, of the right answer.

Part of the issue is how to understand words such as "prohibit" and "abridge", when used in conjunction with words like "freedom" or "free". As I read it, the phrase "prohibiting the free exercise of religion" means "violating the right to practise one's religion", and the phrase "abridging the freedom of speech" means "violating the right to speak". The reason why this is the best way to understand these phrases has to do with the fact that they are parts of the "Bill of Rights".

Now the right to practise one's religion does not include the right to sacrifice a human being, for example. This is because there is no such thing as a right to violate a right, or, more generally, a right to do something wrong. And, for similar reasons, the right to speak does not include the right to emit sounds that one knows will shatter one's hearer's eardrums. This takes care of *some* of the cases that might ordinarily be thought of as *exceptions* to the claim that Congress shall make *no* law....

But the important wrinkle is that it does not take care of *all* cases. In some circumstances, the potential consequences of exercising a right are so bad as to justify infringement of the right. [Here I am assuming, along with philosophers like Judith Thomson, that there is a distinction between infringement and violation. Roughly, to *infringe* P's right to X is to prevent P from obtaining or keeping X. To *violate* P's right to X is to infringe this right *impermissibly*. On this view, it may be possible to infringe a right permissibly, but it is not possible to violate a right permissibly.]

Sam Rickless said...

[This is part two of the two-part post.]

Example. Employer and Employee both sign a labor contract in circumstances in which there is only one employer and a huge pool of desperate job applicants. So wages are very low, and the situation is (let us assume) very bad, both micro- and macro-economically. The government steps in and *permissibly* infringes the right of contract (through, say, minimum wage laws or maximum hours of work laws) in order to avoid economic disaster. Notice that this is not a case in which Employer's right to contract does not include the right to make a contract with Employee, and vice-versa. In making the contract, Employer is not violating any right of Employee's, nor is Employer doing anything wrong. The problem lies elsewhere.

Another example. A serious strain of H1N1 is spreading on the Cornell campus and Professor P is starting to show signs of having contracted the disease in the middle of lecture. A student notifies the administration by cell phone and Professor P, along with the rest of the class, is placed in quarantine. The right to move and travel has been infringed, permissibly. But we don't want to say that the students in P's lecture do not so much as *have* the right to move and travel. We want to say that they retain these rights, but that the rights are being *permissibly* infringed (in order to avoid a public health disaster).

Now go back to the First Amendment. I say that "prohibiting the free exercise of religion" means "violating the right to practise one's religion", not "infringing the right not to practise one's religion". The Amendment then tells us that Congress shall make no law [where "no" means "no", not "almost no"] that impermissibly infringes the right to practise one's religion. I say that "abridging the freedom of speech" means "violating the right to speak", not "infringing the right to speak". The Amendment then tells us that Congress shall make no law [where "no" means "no", not "almost no"] that impermissibly infringes the right to speak.

There is therefore no polymorphism in the First Amendment.

Haydar said...


If you go to my blog, I recently wrote an article on the scope of First Amendment "Religious Freedom" accounced in the free exercise clause. My central argument was that religious freedom, though fundamental, is not an absolute right in the sense of being unconstrained or unrestricted. I argue for a "balancing approach" to the constitutional interpretation of the First Amendment as it relates to religious freedom such that the ability to exercise one's fundmantal right to freedom of conscience is balanced against 1) other substantive rights declared in the very same Amendment, 2)the constitutional structure of what has come to be known as "separtion of Church and State" and 3) state powers to curb the free exercuse of religion for the goals of public safety, health and security. I discuss this in the context of how the planned Islamic community center near Ground Zero and its supporters advance a misreading of the First Amendment whereby religious freedom becomes a priority over free speech (especially speech that is critical towards Islam and organized religion) and is quasi-transcendant of the establishment clause. To politicize this interpretation of the First Amendment, tolerence and Islamaphobia become a mode of discourse that helps to re-order or reprioritize subatantive rights in light of the seperation of church and state. What are your thoughts and how would you say my views conform/conflict with the polymorphic analysis of yours?