America's Unwritten Constitution: The Precedents and Principles We Live By (37 page)

THE BASIC DISTINCTION
between judicial interpretation and judicial implementation also brings the issues raised by
New York Times v. Sullivan
into sharp focus. The state of Alabama was trying to use its civil libel law to squelch political discourse in general and criticism of Alabama officialdom’s race policies in particular. The state had imposed crushing liability—half a million dollars of punitive damages—upon
The New York Times
for having published a scathing political ad about state officials. Alabama law, however, purported to punish the
Times
not for the opinions expressed in the ad but for the ad’s factual inaccuracies. This was a sham. The ad’s slight misstatements of fact were trivial. (For example, the ad had criticized state authorities for having suppressed peaceful civil rights protesters, but had mistakenly asserted that the protestors had sung “My Country Tis of Thee.” In fact, they had sung the national anthem.)

In striking down Alabama’s gambit, the
Times
Court got the big issue of constitutional meaning absolutely right: The Constitution clearly entitles Americans to freely express their political opinions and to harshly criticize government servants in the process. The Sedition Act of 1798 had mocked this basic right, and Alabama’s libel law eerily echoed this old act, which had been long discredited in the court of American history and public opinion. Like Alabama libel law, the 1798 act had purported to target only “false” statements, but both laws had operated to stifle core expressions of political opinion. (Under both legal regimes, disparaging remarks were typically presumed false, malicious, and injurious—a series of galloping presumptions that threatened free political discourse.)

Equipped with a sound understanding of the Constitution’s meaning, the
Times
Court proceeded to fashion a series of implementing rules to ensure robust political discourse. Although the Constitution does not value false assertions as such, some falsity needs to be protected as a practical matter. In
Sullivan
’s words, truly free speech needs “breathing space.” Without this space, citizens might hesitate to speak, chilled by the prospect of punishment or liability for innocent mistakes of fact that invariably pepper public discourse in a well-functioning democracy—a prospect exemplified by the facts of
Sullivan
itself and by America’s earlier experience under the Sedition Act.

Thus,
Sullivan
held that no libel judgment could issue unless a publisher had acted with “actual malice” by having knowingly propagated a falsehood—having flat-out lied—or by having displayed a reckless disregard for the actual truth of the matter. Plaintiffs would need to show this “actual malice” by evidence possessing a “convincing clarity,” and the
Sullivan
Court suggested that judges would keep juries on an especially tight leash to ensure that the evidence at trial met this heightened standard. Also, no plaintiff could prevail without evidence that he was the specific target of the libel. (In
Sullivan
, the ad had not named any Alabama official in particular, but had sweepingly condemned the oppressive state power structure in general.) These rules would apply to all libel suits brought by “a public official against critics of his official conduct.” Later cases expanded
Sullivan
to encompass all “public figures,” a category that at its core included all notable public servants and presumably all public office seekers, and that swept in other persons insofar as their activities were matters of legitimate public concern and commentary.
⁷

Almost none of these specific sub-rules could be found in or logically deduced from the written Constitution. These were not rules of constitutional meaning; they were sub-rules of constitutional implementation. As an ensemble, they formed one sensible way, albeit not the only imaginable way, of ensuring that freedom of expression would actually prevail in court and on the ground. As such, this cluster of doctrinal rules fell squarely within the proper “judicial Power” of the Supreme Court.

Precisely because several of
Sullivan’
s doctrinal sub-rules were merely implementational, other branches of government may today properly
propose alternative structures that might be equally effective or even more effective in protecting free expression overall, though less protective in certain implementational details. Imagine, for example, a congressional statute that tightly caps punitive damages for libel (thereby providing more financial protection for printers), but allows persons falsely defamed to recover token money damages and declaratory judgments that disparaging publications are false without having to prove actual printer malice (thereby providing more reputational vindication for libel victims). Had the Court itself tried to announce such rules for federal libel suits, perhaps the justices’ efforts to restrain jury damages might have set off Seventh Amendment alarm bells about judges improperly limiting juries. More generally, the Court might have worried that it was democratically unseemly for unelected judges to limit the domain of juries. Congress, however, has long been understood to have broad legal authority to limit juries in the process of creating new “equitable” statutory systems replacing traditional common-law causes of action; elected members of Congress also enjoy a stronger democratic mandate to limit jury power. Thus, even though our hypothetical congressional statute in some ways would offer publishers less than
Sullivan
does, if Congress actually were to enact such a law the Court should not reject it out of hand, if indeed it would protect the core of the First Amendment as well as—or perhaps even better than—the Court was able to do acting purely on its own steam in
Sullivan
.

IN THE REALM OF RELIGIOUS RIGHTS,
the Warren Court once again aced the question of constitutional meaning—affirming full religious liberty and equality against both state and federal officials—and then sensibly fashioned implementing rules to make that meaning a reality. Alas, post-Warren cases went further, laying down troubling doctrinal sub-rules organized around a poorly defined metaphor of “separation of church and state.” Some of these sub-rules led to outlandish results. More recent cases have properly trimmed back some of these sub-rules, thereby returning America to the more sensible approach of the Warren Court itself.
⁸

Recall that in two early 1960s cases,
Engel v. Vitale
and
Abington v. Schempp
, the Warren Court struck down organized worship services in the public schools in situations where public employees had either composed
or blessed an official government prayer. In the 1985 case of
Wallace v. Jaffree
, by contrast, the post-Warren Court repeatedly invoked Engel
and Abington
to strike down a state law mandating a moment of classroom silence that enabled students to pray individually or simply to engage in quiet contemplation. Unlike the governments in
Engel
and
Abington
, however, the state in
Wallace
had neither written nor endorsed any kind of prayer whatsoever. Nor had the state separated children along religious lines or forced any student to opt out or stand apart. Agnostic children were free to sit at their desks in this silent moment and think about baseball. More subversive kids were even free to silently indulge atheist, heretical, or anti-government thoughts.

In principle, a moment of silence was one way to communicate that the public schools aimed to be religiously neutral, not antireligious—to reach out to include those who had experienced
Engel
and
Abington
as assaults on and insults to their religious identities. The silent moment was meant to accommodate observance in a manner that was nevertheless wholly neutral and nonsegregative.

Some of the
Wallace
Court’s hostility to moments of silence may be explained by understandable—though not admirable—institutional defensiveness.
Engel
and
Abington
provoked massive popular backlash, and in many places outright defiance of the Court’s rulings. The Court responded by defending its turf, and in the process, overreacting.

More generally, post–Warren Court religion law subtly shifted away from religious equality toward separation as an organizing concept. The separation concept had been visible even before the Warren Court. The 1947 school-bus case,
Everson v. Board of Education
, had famously invoked Jefferson’s 1802 metaphor of “a wall of separation” between church and state. This metaphor became an increasingly common trope in later opinions, appearing in roughly twenty Court cases in the second half of the twentieth century. But “separation” was an ambiguous concept, susceptible to profound misinterpretation and perversion of the proper principles at stake.
⁹

Consider the “separation of powers.” One version of this separation simply means that election to one branch of government does not automatically entitle the winner to hold a position in a different branch of
government. Thus, in America—unlike England—the person elected to lead the legislature does not thereby become the chief executive. But a stronger version of separation of powers is also easily imaginable: Membership in one branch of government
disqualifies
the member from holding a position in a different branch of government. This, too, is part of the American Constitution: The incompatibility clause of Article I, section 6, prohibits any sitting member of Congress from holding a federal executive or judicial office.

Now consider analogous issues raised by the so-called “wall of separation between church and state.” Under a sensibly modest version of this metaphor, no church official would automatically be entitled to sit in government. Thus, in America—unlike England—an Anglican archbishop is not automatically a member of any official legislative body, such as the “Lords Spiritual.” But under a stricter version of separation, the fact that a person is a clergyman might actually disqualify him for a position in government.

Jefferson himself at times leaned in this anticlerical direction, and most states in the Founding era did indeed embrace formal disqualifications of clergymen. However, the modern Court has made clear (in a unanimous 1978 decision,
McDaniel v. Paty
) that such discrimination against religious officials is unconstitutional—a profound violation of proper principles of religious liberty and equality.

But so long as some justices use the metaphor of separation as their polestar, it becomes easier to think that rules like the one excluding the clergy are permissible, and perhaps even required, rather than being obvious affronts to America’s post-Reconstruction Constitution of liberty and equality for all.

To return to the school system for a handy hypothetical, suppose that the government decides to give every child a computer so that, truly, no child will be left behind. In this hypothetical government program, every child attending a public school receives this computer, as does every child who attends a private school that is either aggressively secular or merely religiously indifferent. But what about children who attend private religious schools—schools whose curricula are otherwise comparable to the private nonreligious schools but that also add religion to the educational experience?
May
children at such schools receive the computers?
Must
they?

Anyone whose organizing metaphor is separation might be inclined to answer no to both questions. Thus, several post–Warren Court cases from the mid-1970s, when talk of Jefferson’s wall reached its peak on the Court, actually held that this sort of discrimination against religious schools was not merely constitutionally permissible but constitutionally required. Fortunately, over the past decade the Court has returned to its senses, overruled several of these cases, and begun to see and say clearly that of course private religious schools should not be treated worse than otherwise comparable private nonreligious schools. The schools should be treated equally, as should the children. So long as a private school meets proper educational standards for teaching the basic 3 Rs and so on, it is simply none of the government’s business whether religion is taught pervasively or in a special part of the curriculum or whether the kids are praying in school-sponsored ways.
¹⁰

The proper touchstones are religious liberty and equality, not separation as such. If everyone else is receiving a government benefit, then so must religious folk—not because they are religious but regardless of whether they are religious. A private secular academy should never lose its government benefits merely because it later decides to add a daily prayer to its classroom regimen. Such a tax on prayer—for that is what a funding cutoff would be—would constitute an obvious violation of the ideals of liberty and equality at the heart of the Fourteenth Amendment.

To see the same point in the context of public-school education—the context that generated
Brown, Bolling, Engel
, and
Abington
—note that while governments may not properly organize prayer,
private citizens may
. If a student-organized and student-run stamp club is allowed to meet in a classroom after school, as is a student chess club, a student baseball-card club, and any other student club, then a student-organized and student-run Bible study must be allowed equal access. The key concept is not that religion must in every way be walled out of and separated from school space, but rather that religious students must be treated equally with all others. In short, the watchword is not “separate”—but “equal.”

THE PROBLEM WITH THE POST-WARREN COURT
’
S
doctrine governing church and state was not that various sub-rules were prophylactic and overprotective. As we have seen, the same could be said of
Browns’
s sub-rule
that de jure segregation would be presumed unequal and improper; of
Sullivan’s
ensemble of sub-rules designed to give breathing space to free speech; and perhaps even of the virtually irrebuttable presumption in the incorporation cases that any right in the Bill of Rights was
ipso facto
fundamental.
¹¹