Resistance to constitutional theory: The Supreme Court, constitutional change, and the "pragmatic moment"

Texas Law Review

Volumn 91, Issue 7, 2013, Pages 1815-1842

  Hill, B Jessie ^a  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84883293496     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (180)

1. Paul de Man, Promises (Social Contract), in allegories of reading: figural language in rousseau, nietzsche, rilke, and proust 246+271 (1979).
2. 132 S. Ct. 2566 (2012).
3. Adam Liptak, Approval Rating for Justices Hits Just 44% in New Poll, N.Y. TIMES, June 7, 2012, http://www.nytimes.com/2012/06/08/us/politics/44-percent-of-americans-approve-of-supreme-court-in-new-poll.html?pagewanted=all.
4. Press Release, Public Policy Polling, Congress Less Popular than Cockroaches, Traffic Jams (Jan. 8, 2013), http://www.publicpolicypolling.com/pdf/2011/PPP_Release_Natl_010813_pdf (indicating that voters have a "higher opinion" of cockroaches than Congress).
5. The plurality opinion stated: The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation... Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution... [O]nly the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.
6. Casey, 505 U.S. at 865-867 (plurality opinion).
7. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
8. Tonja Jacobi, Strategy and Tactics in NFIB v. Sebelius 6, 15-22 (Nw. L. & Econ. Research Paper No. 12-14, 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2133045 (arguing that Roberts's "driving concern [in NFIB] was for the institutional legitimacy of the Court").
9. Van Orden v. Perry, 545 U.S. 677+683 (2005)
10. Holder v. Hall, 512 U.S. 874+956 (1994) (Ginsburg, J., dissenting). Janus is the god of beginnings and endings who, according to Roman mythology, had two faces that pointed in opposite directions.
11. Samuel A. Rumore, Jr., Some Thoughts for the Beginning of 2001, 62 ALA. LAW. 8, 8 (2001).
12. For insightful discussions of the distinction between legal and social legitimacy, see generally Richard H. Fallon Jr., Legitimacy and the Constitution, 118 HARV. L. REV. 1787 (2005)
13. Robert C. Post & Neil S. Siegel, Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Legacy of Paul Mishkin, 95 CALIF. L. REV. 1473 (2007).
14. Also on point is Cass R. Sunstein, If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 STAN. L. REV. 155 (2007).
15. Post & Siegel, Supra note 11, at 1474 (arguing this tension is both significant and unavoidable as well as exaggerated)
16. Sunstein, Supra note 11, at 157-158 (positing that the Supreme Court avoids provoking public outrage that could ensue from a decision on a controversial topic by refusing to rule on it).
17. Richard A. Posner, The Supreme Court, 2004 Term-Foreword: A Political Court, 119 HARV. L. REV. 31, 51-52 (2005). Contra the NFIB example, though, Judge Posner argues that such voting against self-interest occurs primarily when the stakes of the decision are low.
18. Ibid. at 50-51.
19. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849+862-863 (1989) (arguing that originalism is "more compatible with the nature and purpose of a Constitution in a democratic system" in that it assigns judges the task of determining original meaning and democratically elected officials the task of taking account of changing societal values)
20. Andrew B. Coan, Talking Originalism, 2009 BYU L. REV. 847+849+852+858-859 (2009) (citing RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT (2d ed. 1997)
21. Robert H. Bork, The Tempting of America: The Political Seduction of The Law 143 (1990)
22. Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, And Judicial Review 110-159 (1999)
23. Richard S. Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 NW. U. L. REV. 226+234 (1988)) ("[T]he original meaning of the Constitution is the only meaning the People have democratically endorsed.").
24. Coan, Supra note 14.
25. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 5-6 (2005) (arguing that "courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts").
26. Larry D. Kramer, The People Themselves: Popular Constitutionalism And Judicial Review 7-8 (2004) ("[I]t was 'the people themselves'--working through and responding to their agents in the government--who were responsible for seeing that [the Constitution] was properly interpreted and implemented. The idea of turning this responsibility over to judges was simply unthinkable.")
27. Mark Tushnet, Taking The Constitution Away From The Courts 181-182 (1999) ("[Populist constitutional law] treats constitutional law not as something in the hands of lawyers and judges but in the hands of the people themselves.")
28. Larry D. Kramer, "The Interest of the Man": James Madison, Popular Constitutionalism, and the Theory of Deliberative Democracy, 41 VAL. U. L. REV. 697+700 (2006) ("[Popular constitutionalism] does not assume that authoritative legal interpretation can take place only in courts, but rather supposes that an equally valid process of interpretation can be undertaken in the political branches and by the community at large."). Professor Barry Friedman gives a brief, helpful listing of sources both promoting and criticizing popular constitutionalism in BARRY FRIEDMAN, THE WILL OF THE PEOPLE 564 n.266 (2009).
29. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373+388-401 (2007) (discussing backlash theories)
30. David Fontana & Donald Braman, Judicial Backlash or Just Backlash? Evidence from a National Experiment, 112 COLUM. L. REV. 731+741 (2012) (describing the argument that the Court's decisions regarding controversial issues creates a backlash against perceived "outside interference" or "judicial activism" (internal quotation marks omitted)).
31. But not impossible. One could believe that a particular constitutional provision was intended or designed to take changing circumstances into account, and thus allowing constitutional meaning to change would still mean hewing closely to original intent or another principled approach, such as subscribing to the view that the Constitution serves certain enduring values but that the content of those values may evolve over time.
32. See, e.g., Jack M. Balkin, Living Originalism 14 (2011) (arguing that the Framers, by choosing to use general and abstract concepts in the Constitution, meant for future generations to interpret and implement them). Alternately, one could support a change in meaning on the basis that the original interpretation of a constitutional provision was simply incorrect.
33. The term "postmodern literary theory" refers to a body of literary, artistic, and philosophical thought that arose in the second half of the twentieth century as a reaction to modernism and is most closely associated with deconstruction, a philosophy primarily developed by the French theorist Jacques Derrida. Kay Torney Souter, The Products of the Imagination: Psychoanalytic Theory and Postmodern Literary Criticism, 60 AM. J. Psychoanalysis 341+345 (2000).
34. Paul de Man, The Resistance to Theory, 63 Yale French Stud. 3 (1982), reprinted in 33 THEORY AND HISTORY OF LITERATURE: THE RESISTANCE TO THEORY 8 (1986).
35. Post & Siegel, Supra note 18, at 376.
36. I use the term "living constitutionalism" here to refer to all nonoriginalist theories of constitutional interpretation, with the recognition that both originalism and nonoriginalism are heterogeneous schools of thought. The point is to distinguish among constitutional theories on this one dimension, rather than to lump all originalist or nonoriginalist constitutional theories together.
37. Posner, Supra note 13, at 39-54.
38. Ibid. at 45-46.
39. Ibid. at 40.
40. Ibid. at 39-43.
41. Ibid. at 76.
42. Post & Siegel, Supra note 18, at 384.
43. See, e.g., Hebert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 11-12 (1959) (identifying "the deepest problem of our constitutionalism" as finding "criteria that can be framed and tested as an exercise of reason and not merely as an act of willfulness or will").
44. Regarding the resonance of the view of law as distinct from politics because of its principled nature, see Supra notes 4-9 and accompanying text.
45. Coan, Supra note 14, at 852+857 (acknowledging the defenses of originalism based on democracy and judicial restraint). The criticisms of this assertion are well-known and need not be repeated here. For an overview
46. Scalia, Supra note 14, at 862.
47. Ibid. at 864
48. Post & Siegel, Supra note 18, at 376.
49. Ibid. at 425-427 (suggesting that judges need not avoid controversy in order to maintain their proper judicial role).
50. Post & Siegel, Supra note 11, at 1510.
51. Ibid. at 1510-1511.
52. Friedman, Supra note 17.
53. Posner, Supra note 13, at 51 (referring to "conventional 'left' and 'right' ideologies")
54. Richard A. Posner, 1997 Oliver Wendell Holmes Lectures: The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637+1654 (1998) [hereinafter Posner, Problematics] (describing political platforms, such as Marxism and Communism, as ideologies).
55. Ibid. at 10.
56. Ibid. at 11.
57. Ibid. at 12.
58. Ibid. at 12-13.
59. Wlad Godzich, Foreword to 33 Theory And History Of Literature: The Resistance To Theory ix+xiii (1986) (defining theory as "a system of concepts that aims to give a global explanation to an area of knowledge" which is "oppose[d]... to praxis by virtue of the fact that it is a form of speculative knowledge").
60. de Man, Supra note 21, at 7-8.
61. Ibid. at 10-11.
62. Christopher Norris, Law, Deconstruction, and the Resistance to Theory, 15 J.L. & SOC'Y 166+177 (1988).
63. de Man, Supra note 21, at 13.
64. Norris, Supra note 58.
65. de Man, Supra note 21, at 13 (equating, implicitly, the relationship between language, as logic, and knowledge of the phenomenal world, which is accessible through mathematics, with the relationship between theory and aesthetics).
66. Ibid. at 14 ("The continuity between theory and phenomenalism is asserted and preserved by the system itself.").
67. Ibid. at 13.
68. Steven Best & Douglas Kellner, Postmodern Theory: Critical Interrogations 140 (1991) (describing how postmodern theory emphasizes rhetoric over "any systematic or comprehensive theoretical position").
69. de Man, Supra note 21, at 15.
70. Ibid. at 16 (discussing this problem in the context of interpreting the meaning of the title of Keats's The Fall of Hyperion and noting that "[f]aced with the ineluctable necessity to come to a decision, no grammatical or logical analysis can help us out").
71. Ibid. at 17. Thus, "once a reader has become aware of the rhetorical dimensions of a text, he will not be amiss in finding textual instances that are irreducible to grammar or to historically determined meaning."
72. Ibid. at 18.
73. Ibid. at 18-19. As I have explained elsewhere, what I call "meaning" here roughly correlates with "illocutionary force" in the parlance of speech-act theory.
74. B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 MICH. L. REV. 491+511-514 (2005). "Illocutionary force" is often defined as the effect of language-what language does or what act it performs (asserting, urging, certifying, begging)-rather than what the individual words denote.
75. John Searle, What is a Speech Act?, in The Communication Theory Reader 263 (Paul Cobley ed., 1996).
76. de Man, Supra note 21, at 19. De Man refers to classical theorists of speech acts, such as John Searle and J.L. Austin.
77. Amy Adler, What's Left?: Hate Speech, Pornography, and the Problem for Artistic Expression, 84 CALIF. L. REV. 1499+1541-1542 (1996) ("Meaning is context-bound, but context is boundless." (quoting JONATHAN CULLER, ON DECONSTRUCTION: THEORY AND CRITICISM AFTER STRUCTURALISM 123 (1982) (internal quotation marks omitted)))
78. Hill, Supra note 71, at 514-516 ("Context, however, is itself an extremely unstable device for discerning meaning. Although meaning is dependent on context, it is usually impossible to fully describe or delimit the relevant context ").
79. Hill, Supra note 71, at 517-522. An originalist might acknowledge the importance of context but argue that meaning should be dependent only on the context in which it was written. There are, however, several difficulties with this view. One is that historical context is virtually impossible to recapture in full; another is that constitutional language must continue to be applied in new, contemporary contexts and speak to contemporary problems. Few, if any, originalists would go so far as to say that constitutional language means only what it could have meant in the context of late eighteenth-century America.
80. District of Columbia v. Heller, 554 U.S. 570+582 (2008) (Scalia, J.) (rejecting as "bordering on the frivolous" the notion that only those arms available at the founding are encompassed by the Second Amendment's protections).
81. de Man, Supra note 21, at 15-19.
82. Ibid. at 19.
83. Norris, Supra note 58, at 173 (citing Stanley Fish, Dennis Martinez and the Uses of Theory, 96 YALE L.J. 1773, 1796 n.60 (1987)).
84. For examples of this phenomenon, see infra Part III. "Reading," for de Man, means close reading, with special attention to the multiple meanings and potential for indeterminacy within a text. de Man, Supra note 21, at 24.
85. de Man, Supra Note 1, at 270-71
86. Norris, Supra Note 58, at 175-76.
87. Culler, Supra Note 73, at 123-24
88. Hill, Supra Note 71, at 515.
89. Lemony Snicket, A series of unfortunate events no. 1: The bad beginning 133-144 (1999) (narrating the story of a mischievous count who tries to steal an orphan's fortune by staging a play in which the orphan plays the part of the count's bride-to-be and, unbeknownst to her, the woman playing the justice of the peace is an actual justice who performs an actual, valid marriage ceremony on stage).
90. I employ the "I do" example in Hill, Supra note 71, at 512.
91. Sometimes the context even includes that which is not written. For example, Akhil Amar, Chief Justice John Marshall, in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 353-356 (1819), drew on the use of the word "necessary" in other contexts, including outside the Constitution itself, to demonstrate that, if the Framers had meant to give Congress only those powers explicitly delegated in the Constitution, it would have said so.
92. Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747, 800 (1999).
93. According to Amar, "Marshall is contrasting the actual wording of the Constitution not merely with what it could have said... or with what another clause of the Constitution does say Rather, he is contrasting the text of the Constitution with what its predecessor document said."
94. Hill, supra note 71, at 515-16.
95. Culler, supra note 73, at 123.
96. Hill, supra note 71, at 515-516.
97. A Culler, supra note 73, at 124-125 (internal quotation marks omitted).
98. Professor Stanley Fish makes a similar point in arguing that the practice of judging and theories of legal interpretation are entirely distinct and, indeed, have nothing to do with one another. They are different practices with different goals.
99. Fish, supra note 78, at 1785-1787 (claiming that judging does not involve adherence to an "underlying set of rules and principles" but should instead strive for pragmatic coherence in decisionmaking).
100. Or at least, this is what the "new originalists" think. See, e.g., Randy E. Barnett, Interpretation and Construction, 34 HARV. J.L. & PUB. POL'Y 65, 69 (2011)
101. [hereinafter Barnett, Interpretation and Construction] ("[O]riginalism is a method of constitutional interpretation that identifies the meaning of the text as its public meaning at the time of its enactment.")
102. Randy E. Barnett, An Originalism for Nonoriginalists, 45 LOY. L. REV. 611, 627-629 (1999) ("The public meaning of the words of the Constitution... could be gleaned from a number of sources, including the records of the convention, but where those intentions differed from the public understanding, it is the public meaning that should prevail.").
103. Mark Tushnet, Heller and the New Originalism, 69 OHIO ST. L.J. 609, 610-611 (2008).
104. J.M. Balkin & Sanford Levinson, Interpreting Law and Music: Performance Notes on "The Banjo Serenader" and "The Lying Crowd of Jews," 20 CARDOZO L. REV. 1513, 1518-1519 (1999) (describing legal interpretation as a performance in which interpretive choices must be made and audiences persuaded anew each time).
105. Supra text accompanying notes 50-51.
106. Jamal Greene, Fourteenth Amendment Originalism, 71 MD. L. REV. 978, 988 (2012).
107. B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705, 738-739 (2010).
108. Ibid. at 738 (footnote omitted).
109. Barnett, Interpretation and Construction, supra note 91, at 66.
110. Ibid. at 67-68.
111. Amar, supra note 83, at 755-758 (discussing McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
112. Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873).
113. De Man, supra note 1, at 273
114. see also Norris, supra note 58, at 174-176, 180 (discussing the same passage in relation to legal interpretation).
115. de Man, Supra note 1, at 273.
116. Ibid. (internal citation omitted).
117. 60 U.S. (19 How.) 393 (1857).
118. U.S. CONST. amend. 14
119. Scott, 60 U.S. at 422-423.
120. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 73 (1873) (noting the Fourteenth Amendment "declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States").
121. 109 U.S. 3 (1883).
122. See Jamal Greene, The Anticanon, 125 HARV. L. REV. 379, 380, 406-408 (2011)
123. (identifying Dred Scott as part of the American anticanon and referring to Chief Justice Taney's originalism as "bad originalism").
124. A Scott, 60 U.S. at 427.
125. Specifically, Taney formulated the question as follows: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.
126. Id. at 403.
127. Ibid. at 403, 408, 422-423.
128. Ibid at 404.
129. Ibid. at 410-411.
130. Ibid. at 406-409, 411-426.
131. Ibid. at 410 ("The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration").
132. U.S. CONST. amend. 14, § 1.
133. Ibid. cl. 2 ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States ").
134. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1873).
135. Ibid. at 96 (Field, J., dissenting)
136. see generally JOHN HART ELY, DEMOCRACY AND DISTRUST 22-23 (1980).
137. Slaughter-House, 83 U.S. at 75-76
138. (citing Corfield v. Coryell, 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823) (No. 3,230)).
139. Well, almost verbatim. Article IV refers to "privileges and immunities," U.S. CONST. art. I, § 2 (emphasis added), while the Fourteenth Amendment, since it is phrased as a prohibition, states that no state can deprive a citizen of the "privileges or immunities" of citizenship, U.S. CONST. amend. XIV, § 1 (emphasis added).
140. Slaughter-House, 83 U.S. at 74-78.
141. Ibid. at 73-74
142. U.S. CONST. amend. 14 (emphasis added).
143. Slaughter-House, 83 U.S. at 74, 79
144. see, e.g., Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1332 (1952).
145. See, e.g., ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION 524-531 (1988) (explaining how the depression, labor movement, and electoral realignment of 1874
146. "strongly affected prevailing attitudes toward Reconstruction")\
147. see also Friedman, supra note 16, at 146-149 (noting the almost universally positive reception of the decision in the Slaughter-House Cases).
148. Foner, supra note 125, at 529-530.
149. See, e.g., Ely, supra note 119, at 23-24 ("Abolitionist concerns had broadened over time... from a narrow focus on the rights of blacks to a broader occupation with the civil rights and liberties of everyone. The various clauses of the Fourteenth Amendment reflect that development.").
150. Patrick Cronin, The Historical Origins of the Conflict Between Copyright and the First Amendment, 35 COLUM. J.L. & ARTS 221, 245 (2012).
151. Slaughter-House, 83 U.S. at 74-78.
152. I emphasize here that this example is merely an illustration, and not a definitive proof, of de Man's theory. A meaningful attempt to demonstrate the truth of the theory on empirical rather than conceptual grounds would require an exhaustive study of constitutional interpretation, certainly one beyond the scope of this Article.
153. U.S. CONST. amend. 1.
154. See, e.g., McCreary Cnty., Ky. v. ACLU, 545 U.S. 844, 874-875 (2005) ("The First Amendment contains no textual definition of 'establishment,' and the term is certainly not self- defining There is no simple answer, for more than one reason.")
155. Everson v. Bd. of Educ., 330 U.S. 1, 15 n.21 (1947) (collecting cases elaborating on the meaning and scope of the religion clauses).
156. See Welsh v. United States, 398 U.S. 333, 335 (1970) (avoiding constitutional questions by declining to articulate a definition of religion for purposes of constitutional claims)
157. United States v. Seeger, 380 U.S. 163, 188 (1965) (Douglas, J., concurring) (suggesting that the Court construed the term "Supreme Being" in the conscientious objector statute broadly so as to avoid constitutional issues (internal quotation marks omitted)).
158. 374 U.S. 203 (1963).
159. Stephen D. Solomon, Ellery's Protest: How One Young Man Defied Tradition & Sparked The Battle Over School Prayer 163-166, 185-187 (2007).
160. See, e.g., Ibid. at 130-131 (citing RICHARD B. DIERENFIELD, RELIGION IN AMERICAN PUBLIC SCHOOLS 50-51 (1962)) (suggesting that Bible reading was "often part of a broader devotional service, typically short in duration and held at the beginning of the day")
161. John C. Jeffries Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 MICH. L. REV. 279, 309-310 (2001) (observing a growing public secularism, including among Protestants).
162. See, e.g., Solomon, supra note 135, at 99-101, 108.
163. Ibid. at 113-114
164. see also Jeffries & Ryan, supra note 136, at 279.
165. Solomon, supra note 135, at 63.
166. Ibid. at 115-131
167. A Jeffries & A Ryan, supra note 136, at 299-305.
168. 370 U.S. 421 (1962).
169. See, e.g., A Jeffries & A Ryan, supra note 136, at 299 (asserting that public education in America was, from the beginning, "religious but nonsectarian").
170. See, e.g., Steven B. Epstein, The Constitutionality of Ceremonial Deism, 96 COLUM. L. REV. 2083, 2094-2095 (1996) (defining ceremonial deism).
171. Ibid. at 2091-2092 (giving examples of ceremonial deism).
172. Ibid. at 2091-2094 (describing numerous Supreme Court opinions in which the Justices have assumed, without deciding, that various types of ceremonial deism were constitutional).
173. Ibid. at 2084-2085.
174. See, e.g., McGinley v. Houston, 361 F.3d 1328, 1330-1331, 1333 (11th Cir. 2004) (per curiam) (affirming the dismissal of a suit asserting that the Alabama Supreme Court's removal of the Ten Commandments from a state building unconstitutionally established a religion of "nontheistic beliefs[]")
175. Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 519, 524 (9th Cir. 1994) (affirming the dismissal of a suit claiming that evolutionism is a "religious belief system" that public school teachers cannot be required to teach).
176. Cf. Frederick Mark Gedicks, Public Life and Hostility to Religion, 78 VA. L. REV. 671, 672-674 (1992) (discussing the "strongly felt perception" that religious viewpoints are systematically marginalized relative to secular ones in American public life and asserting that "many religious people clearly feel excluded and alienated from public life
177. See supra text accompanying notes 2-9.
178. Judge Richard Posner makes the argument that judges should not engage in moral theory but instead should be pragmatists in Problematics, supra note 40, at 1645
179. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
180. Indeed, the notion that the judiciary's duty is "to say what the law is" seems itself to partake of two possible meanings of the word "say"-one descriptive, one performative. Does the judiciary "say" what the law is as if it is just reading some unseen script that is determinate and fixed, but only revealed upon careful study (like one might "say" the Pledge of Allegiance)? Or does it "say" what the law is by imposing its "say-so"-that is, by declaring or effectuating what the law is (as one might say, or pronounce, the meaning of a particular constitutional provision)?