Day 80: Falling in Love with the Constitution Again

Photo by Lily Miller on Unsplash

WVU Law today observed Constitution Day, a holiday established through legislation sponsored in 2004 by Senator Robert Byrd. On Constitution Day, all publicly funded educational institutions are required to offer special programming honoring the Constitution of the United States.

Professor Richard Katskee of Duke Law gave a talk to the WVU Law community today entitled, “Taking Liberties: The Supreme Court’s New Hierarchy of Rights and its Victims.” Katskee, former legal director of Americans United for Separation of Church and State, argued for the government in the case of Kennedy v. Bremerton School District, the case involving a football coach’s team prayers at the 50 yard line after high school football games.

I state the facts of the case obliquely on purpose, because Katskee pointed out numerous facts that were clear in the record that have been obscured - to put it diplomatically - by the Court’s decision and the surrounding press. For one thing, Katskee said, Kennedy did not pray silently and alone; he led “motivational prayers” (his words) in which the whole team participated, although some parents said their children were uncomfortable doing so. And the school district offered Kennedy a solution that allowed him to perform his religious devotion while respecting the public school’s obligations under the Establishment Clause; Kennedy initially didn’t object. Moreover, Katskee added, Kennedy had moved to Florida before the Court’s decision, which should have mooted the case. After the ruling, he returned to his job for one game, then resigned and returned to Florida.

The Greater Costs of Kennedy

Katskee’s larger point in the lecture is that, no matter what we might think politically or religiously of the outcome, the Kennedy decision is dangerous for the Constitution and the continued legitimacy of our constitutional democracy. Traditionally, Katskee said, citizens were asked and able to tolerate the enormous power of nine unelected judges with life tenure because the Court practiced four important disciplines on their powers:

First, under the terms of Article III of the Constitution, they only decided cases or controversies, meaning they only settled messy real-life cases between particular people, rather than making policy.

Second, they observed the principle of stare decisis, in which they followed previous cases of the Court that resolved common questions rather than making new law with every generation of new judges to be seated on the Court.

Third, the legislature generally made policy, while the Court changed the ground rules only on rare occasions in ways that were necessary to protect “discrete and insular minorities” from the power of majorities to overrun their rights.

Fourth, they strove not to prioritize any one constitutional right over any other.

According to Katskee, the Kennedy decision erodes all four. The facts of the case, as he described them, suggest that there was no genuine case or controversy at issue by the time the Court decided Kennedy (if there ever had been). The case appears instead to have been created by lawyers with a certain political agenda (and some coaching by Justice Alito in an earlier denial of certiorari at the preliminary injunction stage) to create policy through the Court rather than through the democratically-elected Congress.

The Court’s ruling also rejected the test announced in a 1971 case, Lemon v . Kurtzman, for finding the line between the Free Exercise Clause and the Establishment Clause, instead advising government entities and reviewing courts to look to “history and tradition.” To Katskee, this is an example of the current Court’s trend of ignoring precedent to undo what had previously been recognized as fundamental rights.

The third and fourth protections of Supreme Court legitimacy, Katskee said, are undermined by the Court’s “see saw” approach to Free Exercise and Establishment rights. In order to protect one (or a certain version of one) - the free exercise of religion - the Court’s holding says we must limit the other - freedom from a state establishment of religion. But the Court’s holding, Katskee said, fails to grapple with the loss of freedom of those football players who felt compelled to join in the team prayer despite reservations based either on non-Christian religious beliefs or on Christian religious beliefs that reject praying in public.

In Katskee’s view, the Court’s moves to jettison the four pillars of protection against a nine-person oligarchy have even more devastating consequences than loss of respect for the Court or its decisions. If the Court loses legitimacy, he argued, then the entire constitutional structure loses legitimacy. From there, the attack on the Capitol of January 6, 2021, becomes justifiable. And that is the end of the Constitution.

Looking Back and Moving Forward

Katskee’s lecture took me back decades. For one thing, Katskee and I were law school classmates, and we got a pleasant opportunity over dinner to re-connect after three decades.

But more importantly, listening to Katskee’s informed, painstaking, passionate argument in defense of the Constitution, I remembered why I went to law school in the first place. As a college junior reading First Amendment cases for an undergraduate journalism course, I fell in love with the Constitution. At a time in life when little else made sense, I would sit up at an all-night diner with a bottomless pot of coffee and read the Court’s decisions until I was too weary to continue.

Here was something extraordinary, I knew as deeply as I know my Christian faith: A people, united for two and a half centuries - not by race, creed, or origin, but only by a shared commitment to a 4,543-word document and its principles. Flawed as that project has been, it has also succeeded, miraculously, so far, in knitting a country together into a people.

I don’t share Katskee’s expertise in Free Exercise or Establishment Clause jurisprudence, so I don’t enter here into a debate of his premises drawn from Kennedy and the other leading cases from recent Court terms. But his impassioned and unapologetic defense of the Constitution that I fell in love with during those late nights at Denny’s felt like a wake-up call. I value diversity and dialogue, and I mourn the divisiveness of modern political discourse. But the road to resistance doesn’t run through peaceful territory. Sometimes resistance requires a throaty and vigorous defense of an image of the Constitution that is under threat - or worse.