Constitutionalism

[Eugene Volokh]

Doug Laycock writes:

>         Eugene's comment that he is a "free exercise minimalist" raises the
> fundamental question of constitutionalism.  I do not have the sense that
> Eugene is a free speech minimalist, a takings clause minimalist, or a
> right-to-bear-arms minimalist.  So how can he legitimately be a free
> exercise minimalist.

    I am a free exercise minimalist in the following sense:  I
believe that, using the standard constitutional interpretive tools,
it is more appropriate to interpret the Clause as an
antidiscrimination norn, not a liberty norm.  Concern for getting a
clean rule is part of these tools, but the text and the original
meaning are a greater part, and the text and the history seem to me
to be at least ambiguous.  My view is that the Free Exercise Clause
thus provides protection considerably narrower than many think; hence
I think that as shorthand I can say I am on the "minimalist" end of
the spectrum.

    But of course I may well be wrong on my textual and historical
judgments, for the reasons that Doug and Michael McConnell have so
ably canvassed.  If I were persuaded of this -- if I were persuaded
that the text or the original meaning of the Free Exercise Clause did
create a broad liberty norm, it would indeed be entirely
inappropriate for me to remain a free exercise minimalist.  Doug is
absolutely right that we can't just pick and choose on the basis of
which rights we like; we have to have some neutral interpretive
explanation for our decisions.

    This is why, in fact, I find myself a (frustrated) RFRA
maximalist:  It's quite clear that RFRA *does* provide substantive
protection of liberty; I do think that RFRA *should* be taken
seriously; and that in taking it seriously we should give a lot of
people a lot of exemptions.  As a matter of first principles, I
sincerely believe that my Joe the householder should win.  Likewise,
I sincerely believe that people whose religion motivates them to
carry concealed weapons in order to defend themselves and others
must, under RFRA, be allowed the right to do so.  (I think I disagree
with the general principle as a policy matter -- even if I don't mind
these particular applications -- but I recognize that this
disagreement shouldn't color my interpretation of the statute.)

    Nonetheless, I'm a *frustrated* RFRA maximalist because I really
doubt that the courts will actually provide protection that's this
broad.  In fact, I suspect that some RFRA supporters actually
wouldn't want the courts to provide protection that's this broad, or
are at least reconciled to this.  (I recognize that this does *not*
include many on this list; Michael Paulsen is a self-avowed
maximalist, and I suspect Doug is not far from that, though he has a
principled and thoughtful argument for why the courts may
legitimately provided somewhat narrower protection than Michael
Paulsen -- or even I, on interpretive grounds -- would prefer.)

    If this will indeed happen, I'd much rather that the courts
confront the hard questions of *why* they're limiting this
protection, and *how* to limit the protection in a more principled
way (even if it can't be an entirely principled way), instead of
muddling through with some of their 1960s-1980s charades.

    Incidentally, while I am a free speech maximalist and a right to
keep and bear arms maximalist, I'm not sure that I'm a Takings Clause
maximalist, for the same reasons as with the Free Exercise Clause.  I
am not convinced that the regulatory takings doctrine is textually,
historically, or logically supportable.  Here, though, I stress "not
convinced" -- I just haven't given enough thought to the question to
even tentatively make up my mind.

    So I want to stress that I agree entirely with Doug's general
criticism of the I-don't-like-the-right school of minimalism, and try
to avoid it myself by adhering to the I-think-the-right-is-on-neutral-
principles-fairly-narrow school.  Again, though, I acknowledge that
there have been some very powerful arguments levied against the
position I take; that I might be mistaken; and that if I am persuaded
that, as a textual or originalist matter, I am mistaken, then I will
be obligated to become a maximalist.

>         How can it be legitimate for him to minimize the rights he doesn't
> much like, and maximize the ones he likes best?  Can constitutionalism
> function if we pick and choose which constitutional rights to minimize?
> Doesn't the minimization of unpopular constitutional rights mean that the
> whole effort to insulate some rights from the political process has failed,
> and that each constitutional right will be seriously enforced (not
> minimized) only so long as it retains sufficient political support?
>
>         I point this at Eugene only because he crystallized the point so
> neatly, but he is not in any sense an individual target.  The belief that we
> can ignore the rights we don't like without undermining the rights we do
> like -- the belief that for each constitutional right, we can make an
> independent first-order determination of how seriously to enforce it --
> seems to be endemic.  I have always found this inconsistent with the very
> concept of constitutional rights.
>
>         I assume Mark Tushnet would say that of course rights will remain
> viable only so long as they have sufficient political support, and who could
> be so naive as to think otherwise.  Fair enough, but the point of
> constitutionalism is to create a substantial counterweight to that tendency.
> Casual acceptance not only of the raw power, but of the legitimacy of
> picking and choosing which rights to enforce, takes most of the weight out
> of the counterweight.  Why is it not a fundamental principal of
> constitutionalism that interpreters are obliged to take all constitutional
> rights with equal seriousness?