Rienzi surveys the diverse religious views on the interrelationship of piety and profit, noting that “many religions impose, and at least some businesses follow, religious requirements for the conduct of profit-making businesses.” While that alone does not translate into legal protection for for-profit religious exercise, it is sufficient to show that businesses following religious dictates in their practices are “exercising” religion by any logical definition.

The law already protects non-profit religious exercise in the non-profit corporate context, Rienzi argues, so relying upon whether religious protections, like speech protections in Citizens United, apply to corporate persons in general misses the mark.

On this point, as Rienzi’s legal survey shows, no such distinction between profit and non-profit corporate persons exists within constitutional questions—and, what’s more, courts have routinely rejected arguments to apply them in that context. Neither, Rienzi argues, does such a distinction exist within the Religious Freedom Restoration Act—the statutory protection for religious exercise at issue in the mandate litigation. Here, he cites to the law’s legislative history revealing a desire to have the Act’s word “person” protect “a single, uniform standard for religious freedom claims across all contexts.” Further, in an apropo analogy, Rienzi looks to for-profit companies like Whole Foods that clearly take moral views on economic philosophy or the environment, and explains the illogic of allowing corporations to take such views while maintaining that a company could not take a similar, religious-based position.

Given this disparity, Rienzi concludes “that denying religious liberty rights for profit-makers would actually require singling out religion for disfavored treatment in ways forbidden by the Free Exercise Clause and federal law.” Such a view of law would permit for-profit corporations to have the moral culpability of criminal convictions, take moral views on a slew of ethical concerns, and let corporations exercise other constitutional guarantees as persons while inexplicably siphoning off only for-profit corporations from religious protection.  Rather than give for-profit corporations the same religious protections as non-profit corporations, or other persons guaranteed constitutional protection, it would single for-profit companies out to deny them religious exercise. This, as Rienzi notes, turns religious liberty law on its head.

This article, the first to give comprehensive treatment to this question of increasing prominence within the federal courts, can be found here.

The article is featured on the Federalist Society’s website here.  I hope you find it enlightening about the impact this great and good man continues to have on American law and policy.

Seidman first looks to our nation’s “fiscal cliff” debate as an example of the Constitution’s failure—blaming its requirement that all revenue-raising bills originate in the House and not the Senate for the lack of a deal (the “Origination Clause”). As he says, “Why should anyone care? Why should a lame-duck House, 27 members of which were defeated for re-election, have a stranglehold on our economy? Why does a grotesquely malapportioned Senate get to decide the nation’s fate?”

Rather than deal counterarguments,Seidman breezes past his rhetorical questions. Doing so allows him to conveniently ignore the very democratic nature of the Origination Clause—that only those representatives who are closest to the People both in terms of proportional representation and in frequency of election can initiate a new tax on them. Had Seidman considered this tacit victory for self-government, he might have endorsed the Clause’s wisdom because it prevents exactly what he contemporaneously criticizes: “a grotesquely malapportioned Senate” getting “ to decide the nation’s fate.” Seidman might also have wrestled with the reality that the Supreme Court already pared back the Origination Clause’s relevance with no corresponding increase in governmental efficiency, as in Flint v. Stone Tracy Co. where the Court affirmed the Senate adding a tax increase to a House bill, or in Rainey v. United States where the Court affirmed the Senate adding a tariff to a House bill.

Perhaps the professor’s most bombastic criticism comes here:

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

This is untrue. As Yuval Levin astutely pointed out, quite a lot gets done in Washington—and almost all of it is done without any regard for the any Founder’s desires or the Constitution’s manifested restraints. The past decade alone has seen an overhaul of Medicare, an overhaul of the federal government’s role in education, the creation of a new federal department (Homeland Security), the Patriot Act, financial accounting reform (Sarbanes Oxley), a bailout of America’s major financial institutions, a bailout of the American auto industry, an overhaul of banking regulations (Dodd Frank), a massive federal stimulus program, and of course, an overhaul of the American health care system—which also included the nationalizing of the student loan industry. It would be a very narrow definition of a functional political system that didn’t consider these legislative achievements “doing something,” regardless of their respective merits.

To the extent divisions do prohibit Washington from “doing something,” especially in the context of fiscal reform, they speak to deep divisions in our country over the nature of the individual’s relationship to the government. A division that has only been encouraged by the very type of “Constitutional disobedience” the professor lauds—contorting the Constitution to allow for government action it would have prohibited if its provisions were understood in line with their text’s meaning.

What Seidman really rejects, and why his argument cannot escape the radicalism he tries to downplay, is the concept of intergenerational government—that prior generations should be able to bind subsequent generations to a form of government. To sum up the professor’s argument: the fact that “a group of white propertied men who have been dead for two centuries” disagrees with the conclusions of today’s leaders is not even “remotely rational” to consider relevant in debating what’s good for the country.

The rest of his examples are ripe with other convenient omissions that prove the Constitution’s lasting wisdom. It was appeals to the broader notion of free speech contained with the Constitution that prohibited future “Alien and Sedition” acts, just as the Fourteenth Amendment gave Congress the power to prohibit the types of racial discrimination at the state level that the Constitution already prohibited federally. Even the types of “Constitutional disobedience” Seidman seems comfortable with, such as when the Supreme Court protects rights “whether or not they are within the Constitution,” is couched in the language of Constitutional compulsion. Why, for example, would organized political groups pursue lawsuits to argue for a constitutional right to abortion or to abolish the death penalty if not to ossify their wishes into an unchanging law like the Constitution? If the Constitution has only been treated as a “suggestion” throughout history like Seidman argues, than attempting to rigidify one’s political goals into its provisions would be nonsensical. Yet, these political groups pursued such a strategy precisely because Seidman’s historical account is incomplete: the Constitution does in fact determine what our government does and does not do, even after numerous efforts to undermine it.

At this juncture is where Seidman’s argument transforms from simply radical to incoherent. After mischaracterizing originalism as a quest to derive the inner “intent” of the Founders, he then says that we should nevertheless obey certain parts of the Constitution – mostly the parts where the Supreme Court engaged in the most contortion about the rights those provisions protect. Since Seidman spent the first page and a half of his op-ed attempting to dismantle any principled justification for Constitutional obedience by the three branches of government, it appears Seidman thinks ipse dixit is a stronger argument instead. To him, the President will remain “checked” by Congress and the states simply because, well, he will be, and so forth with the other branches.

Apparently, the mere possibility that American politics discusses “real issues” with less concern for Constitutional niceties is more valuable than the numerous historical examples of tyranny that came when government lacked formal constraints to have its actions weighed against. “To thine ownself be true” is not a governing philosophy that will preserve self-rule, and Seidman seems okay with that. Take this quote from his conclusion: “If even this change is impossible, perhaps the dream of a country ruled by “We the people” is impossibly utopian. If so, we have to give up on the claim that we are a self-governing people who can settle our disagreements through mature and tolerant debate.” As Prof. Siedman reveals his true colors, he also reveals the wisdom of this quote from President Calvin Coolidge on the 150^th anniversary of the Declaration of Independence.  t could just as easily be said about the Constitution and its detractors:

It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning cannot be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

To make the point clear, as Justice Scalia did years ago, it’s important to appreciate the distinction between the judging of “common law judges” and the judging required by the Constitution.

In a common law system, the judge’s task is to “discover” the law–meaning that he develops rules from certain principles and precedents, extrapolating the factual circumstances of a given case into broader notions of sound public policy (“the law”). From this view of proper adjudication, it’s perfectly appropriate to rely on what Professor Stoner suggests, “natural law or the law of reason,” in order to “discover” the right result. Professor McGinnis’s quoted observation sums up the common law quest succinctly: to “discover good social norms.”

Our Constitution, however, does not task our judges with “discovering” the law or crafting the right result in accordance with “natural law or the law of reason.” Unlike the English common law system from which America derived, the U.S. Constitution confines the power to make (or “discover,” if you will) law, and the power to interpret it to the legislative and judicial branches, respectively. This separation is intentional. In Federalist #47, James Madison emphasized the centrality of separating legislative and judicial power in preserving self-rule when he quoted Montesquieu as saying: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator.”

The Constitution’s separation of powers is also distinct from our English common law heritage in that this requirement is itself codified by the democratic process–the American people voted to approve a fundamental law, the Constitution, that in turn provides them and their representatives the sole power to continue to make law via statutes. This does not completely preclude the common law concept of judging, but it certainly foreshadows a broader nineteenth century (and continuing) effort to make what was once done by judges–the development of law–done by legislatures. Resulting from this development is the legislative codification of previously judge-made rules in the areas of criminal law, property law, contract law, and other fields.

The implications of our Constitution’s separated powers scheme–and the fact that the Constitution is itself a statute similar to other legislative codifications except in that it is our country’s fundamental law–are significant when it comes to constitutional interpretation.

While Professor Stoner may want to rely on “natural law or the law of reason” to interpret the Constitution, the Constitution is not natural law. It is a law itself, with its own words, phrases, and grammatical syntax that contain a certain meaning when read as they would be reasonably understood to those people that enacted its respective provisions into law. The common law enterprise of juxtaposing the given facts of a case to broader notions of public policy, or natural law as Professors Stoner and Arkes would seem to have it, in order to derive a sound legal rule is simply not relevant to the inquiry of using the dictionary, rules of grammar, and other mechanisms conventionally used to understand writing. As Chief Justice John Marshall said in Ogden v. Saunders in 1827, the judge is left only to:

Say that the intention of the instrument [the U.S. Constitution] must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers.

To Justice Marshall, these considerations are “all that can be necessary” for a judge, as any other consideration would exceed the judicial power. Thus, were a legislator, or an individual person, to consult natural law or the law of reason in making law, there would be no quarrel as the legislative power within the Constitution proscribes no such limit on that use. Whereas, the Constitution’s judicial power is an interpretive power, and were a judge to rely on natural law or the law of reason rather than the textual meaning of a given statutory or Constitutional provision–and further, have as his quest the discovery of “good social norms” rather than the meaning of a legal text–they would be doing exactly what Alexander Hamilton warned against in Federalist #78:  substituting “their pleasure to that of the legislative body.” The same is true when dealing with a garden variety statute adopted by the people through their representatives.

The reluctance Professor McGinnis points out in employing common law in constitutional interpretation points to some genuine problems, but they are deeper than judges being unlikely to “discover good social norms” because of a changed legal culture. If our “social norms” and “legal culture” are distinct from that of the Founding generation, and, for example, a judge was tasked with deriving the meaning of a constitutional provision that did not derive from the Founding generation, why would it be that the Founding generation’s “social norms” ought to be “discovered” and imposed onto that provision anyway? Why a text’s meaning be cast aside simply because it embodies values distinct from the “social norms” of the Founding generation and representative of the generation that adopted it? How would such an adjudicative approach not undermine the Article V amendment process?

The alternative, where a judge would be able to cast aside a constitutional provision’s original meaning in exchange for “discover[ing] good social norms,” is the type of adjudication that makes Professor McGinnis’s other critique so strong: that the Supreme Court is our nation’s court of last resort and thus, save the extraordinary case of a constitutional amendment or crisis through a branch of government ignoring the Court’s ruling, is the final arbiter of what a given constitutional provision means. The Framers created a constitution designed to preserve self-rule, and outsourcing the discovery of good social norms to a branch with so little accountability compared to the other two hardly seems consistent with the judicial power was it was understood in Article III and described above. Accordingly, giving them the power to “discover good social norms” is not simply the pragmatic problem of today’s legal culture not identifying as good of norms as the Founding’s, but rather a doctrinal problem because it is outside the realm of the judicial power afforded to the Court via the Constitution.