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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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15. U.S. NEWSWIRE, Sept. 25, 1996, at 10 (stating that the Religious Right's plank on abortion was included in the Republican Platform despite the objections of the party's Presidential nominee; while Dole did not oppose abortion in cases of rape, incest or endangerment to the mother's life, the platform called for a constitutional amendment completely prohibiting abortion in all cases).

16. School Prayer-Again House Republicans are Tinkering Needlessly With The First Amendment, L.A. TIMES, July 31, 1996, at N10 (noting a familiar election-year issue has resurfaced on Capitol Hill, where the Republican majority leader is calling for the adoption of a constitutional amendment that explicitly authorizes "studentsponsored prayer" in public school); School Prayer Revisited, CHRISTIAN SCIENCE MONITOR, July 25, 1996 (stating that the school-prayer measure has been given a bit of fresh momentum for the coming year election).



18. See Reynolds v. United States, 98 U.S. 145, 164 (1878) (quoting reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1, 1802)).

19. See Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872, 902 (1990) (O'Connor, J., concurring in judgment):

[T]he First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates 4321 FORDHAM URBAN LAW JOURNAL [Vol. XXIV tended to do so, reflecting a current of anti-Semitism. That theme was at least an undercurrent in the following declaration by Pat

Robertson, President of the Christian Coalition:

The Constitution of the United States is a marvelous document for self-government by Christian people. But the minute you turn the document into the hands of non-Christian people and atheist people, they can use it to destroy the very foundation of our society.

That statement is particularly shocking, given that Pat Robertson is not only a minister, but also a lawyer. Having received his legal education at Yale Law School, 21 he should have learned about the secular nature of our Constitution and the government it created.22 There are connections among the radical right's attacks on civil liberties, the anti-Semitism that, as the ADL has documented, underlies many of these attacks, 2 and also its constant demonizing of the ACLU, which it regularly targets as the "anti-Christ" in fundraising letters and other communications.24 For example, in a 1990 Los Angeles Times interview, Billy McCormack, a director of the Christian Coalition, said the following: "The Jewish element in the ACLU... trying to drive Christianity out of the public place is.... Because the ACLU is made up of a tremendous amount of '25 Jewish attorneys.

the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish.

20. CANTOR, supra note 17, at 6.

21. Pat Robertson graduated from Yale Law School in 1955.

22. See Isaac Kramnick, Jefferson vs. the Religious Right, N.Y. TIMES, Aug. 29, 1994, at A15 (noting that Jefferson was a strong adherent of church/state separation who wrote that "[t]he legitimate powers of government extend to such [religious] acts only as are injurious to others, but it does no injury for my neighbor to say there are 20 Gods or no God. It neither picks my pockets nor breaks my leg.").

23. CANTOR, supra note 17, at 5 (citing, taped interview with Billy McCormack, director of the Christian Coalition (Nov. 14, 1990)); id. at 42.

24. Referring back to the on-line chat I described earlier, about other phrases for which "ACLU" could stand, I have seen some vicious attacks on our organization that say those initials should stand for "Anti-Christian Liberties Union." See, e.g., Edith Stanley, American Album: Alabama Judge Goes to Court in Religious Battle, L.A.

TIMES, Jan. 11, 1996 (stating that Rev. Mickey Kirkland, pastor of the Lighthouse Baptist Church in Montgomery shouted out "The American Civil Liberties Union should change their name to the Anti-Christian Lawyers Union"); Cody Lows, ACLU, Too, Has Taken to Rabble-Rousing to Raise Funds, ROANOKE TIMES & WORLD NEWS, Oct. 1, 1995 (noting the "religious right" has taken a hard rap for being intolerant and extremist; for example, in its fund-raising letters, the American Civil Liberties Union is renamed the Anti-Christian Liberties Union).

25. CANTOR, supra note 17, at 5 (citing, Taped interview with Billy McCormack, Director of the Christian Coalition (Nov. 14, 1990)).


1997] I hasten to underscore that I am certainly not making charges of anti-Semitism against all people who hold narrow views about the First Amendment's religion clauses. But I am accusing them of at least insufficient consciousness of the adverse impact that such narrow views have on Jews and other religious minorities. For example, during his JTS talk, Justice Scalia referred to some constitutional rights as a "luxury ' 26 that we cannot afford. In that context, he was referring specifically to constitutional rights of people who are accused or suspected of crime, but he has also shown a similarly dismissive attitude toward the First Amendment's Free Exercise Clause,27 which guarantees freedom of worship. In his majority opinion in Employment Division, Department of Human Resources v. Smith,28 which radically truncated the scope of that clause, Justice Scalia dismissed the important constitutional right at stake in a manner that was almost cavalier, and he overlooked how particularly significant that right is to religious minorities.29 In her separate opinion, Justice Sandra Day O'Connor decried Smith's abandonment of the Court's traditionally strict enforcement of the Free Exercise Clause precisely because of the adverse impact on religious minorities: "The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging ' religious groups such as the Jehovah's Witnesses and the Amish.

I would now like to turn to three major topics that are implicated

both by the theme of this lecture series and by Justice Scalia's talk:

constitutional interpretation regarding individual liberty in general, and constitutional interpretation specifically regarding the two religion clauses of the First Amendment-the Establishment Clause and the Free Exercise Clause.

H. Constitutional Interpretation Justice Scalia proudly described himself as a "textualist" and said "strict constructionists give textualists a bad name." With all due respect, though, I think Justice Scalia himself gives textualists a bad name. He celebrated "textualism" as supposedly being faithful

26. Justice Antonin Scalia, Address at the Jewish Theological Seminary (May 21, 1996).

27. U.S. CONST. amend. I ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..

28. 494 U.S. 872 (1990).

29. See discussion of this opinion, infra text accompanying notes 165-73.

30. Smith, 494 U.S. at 902 (O'Connor, J., concurring in the judgment).

434 FORDHAM URBAN LAW JOURNAL [Vol. XXIV either to the Constitution's plain language or, where the language is not clear, to history and tradition. He asserted that this was the most objective, predictable approach to constitutional interpretation.

However, Justice Scalia's own statements showed that textualism does not in fact live up to any of these claims. The difficult, controversial issues of constitutional law are not, by definition, squarely resolved by the Constitution's text. To the contrary, the text itself demonstrates that the framers intended certain provisions to be open-ended, and therefore to be interpreted in light of changing conditions. As the great Chief Justice John Marshall famously declared, in support of an expansive interpretation of a constitutional provision early in our history: "We must never forget it is a Constitution we are expounding.., intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

During his lecture, Justice Scalia showed a selective, subjective approach to textualism. For example, he was willing to deviate from the Fourth Amendment's strict warrant and probable cause requirements, commenting: "The needs of our society have not now or ever been able to tolerate such an indulgence." As previously noted, this is. similar to Justice Scalia's view of the First Amendment's Free Exercise Clause as a dispensable "luxury."

Apparently, then, according to Scalian textualism, only some constitutional provisions should be enforced strictly as written.

In this vein, it was ironic that Justice Scalia's lecture warned of the danger of "morphing" the Constitution on the ground that this could lead to the erosion of constitutional rights. Justice Scalia maintained that judicial "morphing" of the Constitution by recognizing rights it does not expressly enumerate inevitably would lead to judicial "morphing" in the opposite direction: not recognizing rights it does expressly enumerate. In fact, though, Justice Scalia and other members of the Court's so-called "conservative" wing have often, unblushingly, ignored plain constitutional language to do just that.

For example, Justice Scalia recently authored a majority opinion that in effect created an exception to the Bill of Rights for public school students, 32 despite the absence of any constitutional language suggesting that rights are limited to the "free adults '33 with

31. McCulloch v. Maryland, 17 U.S. 316, 415 (1819).

32. Vernonia School Dist. v. Acton, 115 S. Ct. 2386 (1995).

33. Id. at 2392.


1997] whom Justice Scalia's opinion contrasted the young people who are studying in our nation's public schools. Conservative Justices also have read into the First Amendment's Free Speech Clause exceptions to constitutionally protected speech, which are not even suggested in the text, let alone clearly delineated there. That is true, for example, for the sexually-oriented expression that the Court has banished beyond the First Amendment pale under the rubric of "obscenity."' As another example, conservative Justices have read an unwritten limitation into the open-ended equality guarantee in the Fourteenth Amendment's Equal Protection Clause, deeming it to treat gender-based discrimination and other types of discrimination as less violative than racial discrimination.

It is completely consistent with the plain language and design of the Constitution to conclude that it tolerates-indeed, commands-what Justice Scalia would apparently consider "one-way morphing": i.e., to, authorize judicial enforcement of rights it does not expressly enumerate, but not to authorize judicial non-enforcement of rights it does expressly enumerate. There is no symmetry

here, for a very important reason that Justice Scalia overlooked:

our fundamental rights are not limited to those set out in the Constitution. Our government was founded on a natural rights philosophy, eloquently articulated in the Declaration of Independence.

Our founders shared the Enlightenment view that human beings are entitled to certain fundamental rights merely by virtue of being human, and that no government may legitimately abridge those inherent rights. To the contrary, one of the most important functions of government, in their view, is to protect those rights.36 This philosophy of inherent human rights pervades all of our government's constitutive documents: not only the Declaration of Independence, but also the Constitution and the Bill of Rights. For

34. Miller v. California, 418 U.S. 915 (1974); Paris Adult Theatre et al. v. Slaton, 418 U.S. 939 (1974).

35. United States v. Virginia, 116 S.Ct. 2264, 2295 (1996) (Scalia, J., dissenting);

Craig v. Boren, 429 U.S. 190, 197 (1976) (reaffirming that "classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives").

36. Jordan J. Paust, Human Dignity as a Constitutional Right. A Jurisprudentially Based Inquiry into Criteria and Content, 27 How. L.J. 145, 219-20 (1984) (stating "[the] basic expectation of the founders had been that the rights of man are protected under the Constitution, and it is a truism that universal rights must necessarily be our own."); John Hasnas, From Cannibalism to Caesareans: Two Conceptions of Fundamental Rights, 89 Nw. U. L. REV. 900, 912 (1995) (explaining that our founders shared classical conception of inherent fundamental rights which protect individuals' choices from government interference).

436 FORDHAM URBAN LAW JOURNAL [Vol. XXIV example, the Constitution's Preamble recites as one of the purposes of the newly-formed government structure "to secure the blessings of Liberty. '37 Significantly, it does not refer to "granting" liberty, but rather to securing the liberty to which individuals were already entitled, wholly independent of the Constitution or any other charter of government.

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