2020 Blog

Obama's Inauguration: A Progressive Approach to Religion in the Public Sphere?


"We know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus – and nonbelievers."
 – Barack Obama’s Inaugural Address, January 2009

Since George Washington invoked “the Almighty Being” in his first inaugural address, prayer has opened America's Presidential inaugural ceremonies.  Recent Presidents -- Republicans and Democrats alike -- have chosen religious figures who have offered broad ecumenical prayers to appeal to the widest range of people.

But, in a departure from the norm, Barack Obama chose voices from extreme ends of the political spectrum and wove them together into a pluralistic patchwork of public religious expression: the first openly gay Episcopalian bishop commenced the festivities, an evangelical preacher known for his opposition to gay marriage offered the invocation, and a veteran civil rights leader delivered the benediction.  At the National Prayer Service the next day, the first female president of the Disciples of Christ gave the sermon, and Muslim, Hindu, Jewish, Protestant, and Catholic leaders offered prayers from their faith traditions. (To see video coverage of the festitivites, click here.)

Never before had an inaugural ceremony embraced such radically inclusive religious representation.  Obama was the first to give a prominent place to Muslims and Hindus, both in the ceremony and his inauguration speech.  (The Bush and Clinton inaugurations were racially diverse but remained almost exclusively Judeo-Christian, prominently featuring Billy Graham.)  Can Obama’s inauguration hold up a picture of a new progressive approach to religion in the public sphere? 

In "Progressives, the Religion Clauses, and the Limits of Secularism" (Chapter 21 in The Constitution in 2020), William Marshall explains that a progressive approach to religion must recognize the limits and values of secularism, the position that government must not use its power to promote or endorse religion.  Marshall argues that secularism has instrumental values: government support of religion demeans the integrity of that religion, harms and alienates other religions, and misuses government resources. 

However, secularism has its limits too, Marshall argues: the secular position that morality can be derived from nonreligious sources is itself a theological proposition that creates its own establishment.  When secularism privileges nonreligious over religious entities, it discriminates against religion and violates equality.  Moreover, secularism runs up against a public culture already replete with religious symbols, names, and references.  It is not only impossible but also hostile and divisive to attempt to strip all religion from the public sphere.  Marshall concludes that both extremes of pro-religion conservatism and anti-religion secularism are harmful.

In his inauguration, Obama appeared to steer between the extremes Marshall sketches out: he heeded the values of secularism and avoided his predecessor’s overreliance on a single brand of conservative Christianity, but he also recognized the limits of secularism and did not restrict or water down religion in his inauguration.  Rather, Obama populated the festivities with multiple religious voices that reflected the nation’s rising religious diversity.  I believe that the use of religion in Obama’s inauguration went beyond merely confirming the importance of the historical role of religion in American history: it played an active role in the evolution of public religious displays from general and minimalist to plural and particular. 

Marshall warns against such an active engagement with religion.  Marshall wants progressives to permit religious vestiges in culture but prohibit the government from new forms of religious reference or displays.  When the government participates in the production of public religious culture, Marshall argues, sectarian interests can capture the state, religious groups will want to seek additional government favor, and the government can become entangled in battles over religious symbols, raising antiestablishment concerns. 

Obama risked all of these dangers in his inauguration – and for the most part avoided them.  Can he continue to engage religion successfully as President – not just in speech but in action too?

Obama’s recent speech addressing embattled religious communities in the Middle East suggests he can. There, Obama recognized both sides as victims and oppressors, and appealed to both sides’ religious commitments in calling them to break cycles of violence. 


His speech has been criticized as just that – speech. And yet speech is a necessary first step toward any action.  That first step is always critical and often under-valued: it is the space of the imagination where values are nurtured, horizons are drawn, and capabilities are determined.  Obama works this space well.  His speeches throughout the campaign and in the inauguration reclaimed a national narrative of hope and possibility; now his speech aims to redeem ancient religious narratives soaked in blood.  Radically inclusive speech has the power to bring people to the table and to shape their sense of possibility upon arriving there (journalists have already begun to suggest that there’s an “Obama effect” rippling throughout other parts of the globe). Once at the table, the real work begins – negotiating concrete differences, pounding out policy proposals, and taking action that causes real change.

Can Obama bring enough people to the table to deliver results?  Can he engage religion and avoid the danger Marshall outlines -- government entanglement with religion at home and abroad?  The jury is still out, but the signs are promising.

THE CONSTITUTION IN 2020 @ The ACS National Convention

This past weekend, ACS held its annual National Convention at Washington, D.C.'s Renaissance Mayflower Hotel. While the event was heavily attended -- and even written about (see Lydia DePillis's "Et Tu, Scalia? Dispatch from the American Constitution Society Convention" on Slate for one journalist's reaction and a thumbnail on the history of ACS) -- we know even more people wished they could be there. Luckily, the bulk of the convention was taped -- including Saturday afternoon's Constitution in 2020 presentation and panel, which featured several of the book's editors and authors discussing the origins and aims of the 2020 project, as well as outlining their own ideas for the Constitution's future. For more highlights from the conference, click here.

THE CONSTITUTION IN 2020 in the News

The Constitution in 2020 has been the subject of several thoughtful write-ups in the past few weeks. In addition to reviews in the Wall Street Journal and the L.A. Daily Journal, Jeffrey Rosen's "What's a Liberal Justice Now?" (from the May 31st edition of The New York Times Magazine) offers readers a concise overview of the intellectual trends that The Constitution in 2020 is engaging and/or exploring. In the process of laying out the pre-history of The Constitution in 2020, Rosen glosses several major schools of constitutional interpretation, namely, democratic constitutionalism, strict constructionism, and minimalism (I'm throwing quite a few "-isms" around, but no worries -- Rosen does a fantastic job explaining each and their interrelations). One note: While Rosen's article seems to suggest that minimalism is a fading, "Clinton-era" remnant, it's still alive and well, in the pages of The Constitution in 2020 no less (see chapter 4: Cass Sunstein's "The Minimalist Constitution"). Much of the frission in the book arises from the interplay between democratic constitutionalism and minimalism... but that's the subject for another post (or four).
Once you've got your constitutional sea-legs under you, you should head over to Ari Shapiro's "Conservatives Have 'Originalism,' Liberals Have...?" on NPR.com. Shapiro uses the publication of The Constitution in 2020 as an occasion to revisit the conversation about what the left/liberal/progressive method of constitutional interpretation is or should be. Several scholars weigh in, opening up what has rapidly developed into a lively discussion in the article's comments section.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality? (Part 2)

Continuing last week's Point-Counterpoint, begun by Daniel Winik...
Counterpoint: Jeremy Kessler
I thank Daniel for getting the conversation rolling with several pragmatic reasons for why we should fight for same-sex marriage in the legislatures rather than the courts. Although I'm sympathetic to many of Daniel's points, I'm not convinced by his argument as a whole. Even if one were to argue for a "mixed" legislative-judicial strategy, it's hard to underestimate the importance of the courts to the overall marriage equality project or to the progressive project more generally.

Daniel raises the specter of Roe in arguing that "constitutional progress is most effective and most lasting when it derives from popular consensus." It's true that bold judicial decisions risk solidifying resistance to constitutional causes. But for every Roe there may be a Brown v. Board of Education. Brown (347 U.S. 483, full text) caused a major backlash in the South and even liberal intellectuals assailed it for its supposedly shoddy reasoning. But today it's one of the pillars of our constitutional order. Judge-made law often meets popular resistance, but this resistance may itself prove an important catalyst for positive democratic change. Why? Adjudicative action can raise awareness of the issue, help citizens think through what their position really is, and so, ultimately, bring pressure to bear on local political actors. The language of rights is all-American and the courts are high-profile communities where that language can be spoken and broadcast to the general public.

The conversation-changing potential of adjudication isn't restricted to the federal courts. Just as "the process of legislative change, state by state" can affect the evolution of public attitudes toward marriage equality, the process of judicial change on the issue at the state level may also positively inform public attitudes. We are a law-abiding people. If state courts believe that marriage equality is the immanent law of their land, other states' courts and citizenries should know about this belief. The more marriage equality is the law the better, especially if you are by disposition an incrementalist. Gradually, the weather will change, and the right to marriage will become the daily forecast. Both court and legislative action can contribute to this atmospheric shift.

Beyond strategy, there's at least one other compelling reason for pursuing marriage equality in the courts. It relates to Robin West's argument for the legislative articulation of constitutional law. West argues that the Supreme Court's ongoing failure to treat the Equal Protection clause as a guarantee of positive action to eradicate inequality (as opposed to a negative check on legislative discrimination) is inherent in the nature of jurisprudence itself. From West's standpoint, judges are inclined to think equal protection demands, and can provide no more than, formally equal treatment of the subjects of legislation because such formally equal treatment is what judges themselves are expected to provide. Unlike judges, however, legislators are neither expected to mete out blind justice, nor to respect the value of continuity with precedent that drives judicial reluctance to license new rights. When judges demand that legislators act like judges, making no distinctions between aggrieved groups and rarely breaking with the status quo, they do violence to democratic governance.

West takes this sorry state of affairs to mean that we should concentrate our energies on developing a "legisprudence" of how legislatures can best articulate constitutional doctrine. But this cure doesn't necessarily treat the sickness West diagnoses. However progressive legislative action might be, regressively formalistic courts can still act as a stumbling block. It is therefore dangerous for progressives to accept such obstructionist courts as the natural order. We know that courts have, at times, engaged in declarations of positive rights and prescribed the proper remedies for their violation. Post-Brown desegregation cases like Green v. County School Board of New Kent County (391 U.S. 430, full text) and Swann v. Charlotte-Mecklenburg Board of Education (402 U.S. 1, full text) demanded that local governments take substantial, positive steps in order to achieve the true promise of equal protection. Brown's own notion of inherent inequality suggests that courts can create doctrine that demands legislatures go beyond their contemporary understanding of formal equality. This legacy of the details-oriented affirmation of positive rights is a noble one.

The development of a jurisprudence of positive rights should not be abandoned because of contemporary resistance to this jurisprudence. Judges should say what the law is. If progressives think the law demands a positive interpretation of equal protection -- in the case of gay marriage, the entitlement of legal marriage for all -- then they should try to persuade judges, and the larger community, of this legal fact. Exiting the courts because they tend to enforce readings of equal protection that allow actual discrimination can only perpetuate an undesirable, and incorrect, jurisprudence. Taking the fight to the courts serves not just the cause of same-sex marriage but the broader progressive agenda.

The Constitution, Constitution2020.org, and You

Seeing as this is the first post for a website dedicated to the Constitution – its past, its present, and, most importantly, its future(s) –  and seeing further as the Constitution2020.org team will likely use the word “Constitution” (at least) 2,020 times between now and 2020, it’s only appropriate that I attempt to define “the Constitution.” Or at least offer one way of looking at the Constitution that justifies what we’re up to here. A weighty subject, for a blog post no less. No doubt. But indulge me.

Consider the life of the Constitution in a collection of sentences that verge on statements of the obvious: The Framers drafted the Constitution. Legislators, almost from the time the ink dried on that document, amended it. These same legislators and their successors have created, expanded, revised, and repealed laws to give effect to their understanding of contents of the Constitution. Judges have interpreted the Constitution to mean certain things and not others… and then reiterated, refined, revised, and reversed those decisions. Members of the executive branch, from Presidents to Attorney Generals to your local police officers, have enforced those rights/liberties/duties/obligations to the extent that they have deemed proper. Scholars and analysts have written to recommend courses of action, to criticize courses of action, and to hash-out the meaning(s) of the Constitution. Teachers have trained generations of lawyers, policymakers, leaders, and citizens. People have organized to urge legislators, judges, and executives to act; they have organized to urge legislators, judges, and executives to stay their hands.

The Constitution is the sum total of these actions (and more), actions undertaken not by thousands, but by tens of millions of people, each working at his/her own scale and in his/her own particular niche.  And if history is any indication of the future, we can take this observation one step further: the Constitution has been, is, and will be nothing more than the sum total of our strivings, the aggregate of what we think, say, and do… and what we don’t.

If I’m at all right, then the most pressing question for all of us is: How will the Constitution change? But, if change is the result of people acting (in the broadest possible sense), then I guess the real question is: How will YOU change the Constitution?

We here at Constitution2020.org are here to help you figure these things out, although we’re probably likely to raise more questions than we answer. Please forgive us; we are, after all, students still learning the mysterious ways of The Law and our reach may often exceed our grasp. Better to reach, however, than to sit idly by.

In our blog posts, we’ll kick around ideas, many of them based on the essays in Jack Balkin and Reva Siegel’s The Constitution in 2020. You should let us know what you think by dropping comments to our posts and e-mailing us. But there’s so much more to do. You can organize a reading group for your classmates or co-workers. You can recommend articles, essays, and books for other progressive-minded students, scholars, and practitioners to read. Think of it as a giant collaborative project, the collective building of the progressive future of the Constitution.

    Really, though, this site and the activities extending from it are just the tip of the progressive constitutional iceberg. You should think big…

… and act bigger. The frightening aspect of constitutional change – change – is also its liberating aspect. You, along with everyone else, hold the Constitution in your hands. Where will the Constitution be in 2012? In 2020? Depends on how you define it, beginning today.

Point-Counterpoint: Progressive Approaches to Achieving Marriage Equality?

Over the next few days, Daniel Winik and Jeremy Kessler will use this space to delve into one of the most pressing debates within contemporary constitutionalism: whether progressive advocates for marriage equality should focus their energies on legislatures or the courts. Consider it a lawyerly debate, with each writer arguing wholeheartedly for the merits of his client — Dan for an “incremental,” legislatively-focused strategy, Jeremy for a court-centered approach — rather than either trying to give a completely “rounded” view on his own. Like many questions, the answer probably rests somewhere in the balance.

Point: Daniel Winik

I’ll open with an argument for incrementalism, an argument shaped in large part by several pieces from The Constitution in 2020, especially Judith Resnik’s discussion of progressive federalism (Chapter 24, PDF) and Robin West’s analysis of “legisprudence” (Chapter 8, PDF). As the essays by Resnik and West suggest, any effective progressive agenda will have to move beyond single-minded reliance on the federal courts as guarantors of rights. This is particularly true, as I see it, for marriage equality: progressives should continue to favor a state-by-state approach to achieving marriage equality, and where possible, they should make their case in the legislatures rather than the courts. Both of these elements — federalism and legislation — are central to an incremental approach. (For similar thinking, see Aaron Zelinsky’s insightful posts here and here.)

Without a doubt, incrementalism makes concessions to the federal bench’s conservative tilt and to the ongoing debate — even among progressives — as to whether the Federal Constitution encompasses marriage equality. That said, my argument is not mainly a tactical one. Even if the Supreme Court were to uphold an Equal Protection challenge, that outcome might not be best for progressives in the long run. Let me suggest three reasons why.

First, constitutional progress is most effective and most lasting when it arises from popular consensus. Jack Balkin and Sandy Levinson have argued that the Supreme Court’s constitutional innovations tend to track the mainstream of political thought, insofar as constitutional change occurs through “partisan entrenchment.” On the rare occasions when the Court has deviated from mainstream trends — Roe v. Wade, 410 U.S. 113 (1973), being the prime example — its pronouncements have been slower to gain acceptance. Justice Ginsburg, among the pioneers of litigation for women’s rights, has herself suggested that the Roe Court “bit off more than it could chew,” upsetting a legislative “state of flux.” Had Roe come five or ten years later, after legislative progress had been made, the controversy surrounding it would likely not have endured for decades.

If present trends hold, advocates of marriage equality won’t have to wait long for their popular consensus. Statistical guru Nate Silver’s models suggest that “by 2012, almost half of the 50 states [will have] voted against a marriage ban,” and “[b]y 2016, only a handful of states in the Deep South would vote to ban gay marriage.” The recent wave of legislative progress toward marriage equality hasn’t sparked anything close to the backlash that followed Goodridge v. Dept. of Public Health, 798 N.E.2d 941, the 2003 decision that legalized same-sex marriage in Massachusetts. In fact, the most recent adoptions of marriage equality statutes have seemed almost routine.

Hence a second reason to favor a state-by-state approach: it provides models to counter public fear-mongering. In other words, federalism isn’t just useful to progressives as a vehicle for legal experimentation; it’s also a sound vehicle for social experimentation. To the extent that Massachusetts, Connecticut, Iowa, New Hampshire, Maine, and Vermont survive their transitions to marriage equality with their social fabric intact (and we’re not seeing any reason to ring the alarm), it will become increasingly difficult for trumped-up fears of moral collapse to deter further progress.

A third reason to favor an incremental approach is that the political process of legislating change, state by state, is itself a catalyst for the evolution of public attitudes toward marriage equality. In West’s model of the legislated constitution, the “conscientious, idealized legislator” looks to the Equal Protection Clause as a dictate “to do her moral, political, and constitutional duty by the citizenry.” That process of defining equality, and understanding its mandate, is central to a robust democracy. As Resnik argues, “Jurisdictions do not make rights, but people do . . . . [and] only when many actors, at national and local levels, in and outside formal legal structures, fully embrace propositions like racial and gender equality do such understandings become constitutive . . . .” Incrementalism, then, represents a democratic embrace of the constitutional mandate for equality—not a retreat from it.

A New Use for Federalism? The Benefits and Constitutionality of Randomness in Federal Policymaking

Determining whether progressives should pursue change through the legislatures or the courts depends on our understanding both of what each of these institutions should do and of what these institutions are capable of doing... and they might be more versatile than we've come to assume. As Adam Chandler explains, social science methods point to some interesting uses Congress could make of federalism.


Where laws and regulations differ across state borders, researchers are provided with natural tests of the impacts of those policies. For instance, folks with statistical training can use geographical panel data techniques to discover the effect of a law that is enacted in multiples states at staggered times. Such studies have been done on the deterrent impact of capital punishment and the impact of right-to-carry laws on crime rates to give just two examples. These analyses, however, are necessarily retrospective and constrained by inference techniques. Extensive and careful effort must be used to control for, among other variables, the underlying reasons some states enacted the laws and others did not. More often than not, the resulting answer is that there is not enough evidence to draw a conclusion.

Consider, in contrast, a federal law designed to apply only to randomly selected states (or congressional districts, etc.). Controlled randomized experiments are often described as a “gold standard” in social science research. Adapted from clinical trials, they attempt to isolate the effects of some intervention — say, a new sex ed program — from the environment’s chaotic soup of natural influences and trends. That’s done by comparing a randomly constituted “experimental” group’s experience under the intervention to the natural, everyday changes that a second randomly constituted group experiences when left alone (this second group is the “control” group). These comparisons can help us measure the causal link between a policy and an outcome. And where do the groups come from? I suggest we randomly assign geographical regions, like states, into one or the other.

Perhaps the law could grant twenty random states the funding for a new sexual education curriculum. Then some years later, we could determine the new curriculum’s impact on teen pregnancy rates by comparing the twenty “experimental” states’ teen pregnancy rates to the rates in the thirty “control” states. In this way, such a law could provide one of the first nationwide experimental tests of a policy’s effectiveness. That is, perhaps our country’s federalist structure could allow us to use the states as policy laboratories. Could this be a new use for federalism?

It’s rarely the case that government policies are purposefully applied to some people and not others for the sake of comparison. Even more rarely are policies randomly applied to some and not others, but there are a few impressive examples. In the fall of 1994, the Department of Housing and Urban Development began an experimental housing mobility program in five urban centers based explicitly on random assignment. Families were randomly selected to receive assistance in moving to wealthier neighborhoods. As a result of the randomization, and to the surprise of many, this “Move to Opportunity” program was convincingly deemed to be much less successful than had been previously argued. The National Job Corps Study in 1993 convinced a skeptical Department of Labor that the Job Corps, a training program for disadvantaged 16- to 24-year-olds, is effective for increasing earnings, increasing educational attainment, and decreasing criminality. The random assignment at the core of the study essentially saved the Job Corps from elimination. More recently, the “No Child Left Behind” Act called for the use of “scientifically based research” as the basis for many education programs, indicating at least some appetite for randomization in a recent Congress, if only implicitly.

Inevitably in a geographically-randomized scheme like this, there are concerns about state sovereignty to consider. Of course, the federal government regularly discriminates among the states in funding and regulation, but it rarely does so randomly. In the criminal sentencing arena, there could be Eighth Amendment arguments about “unusual punishments” if people committing identical crimes are subjected to different sentencing guidelines because of their state of residence. And indeed, the U.S. Supreme Court’s primary basis for selecting its cases is to smooth out differential interpretations of federal law among Circuits.

There are also potential Equal Protection complaints about such a randomization scheme. Because geography does not constitute a subject class and as long as no fundamental rights are implicated, such “randomization of application” laws would probably only have to pass the “rational basis” bar. But does the randomization built into the laws make them by definition "arbitrary" or "capricious," undermining their rationality? Or alternatively, when would the laws be rationally related to a legitimate government purpose? Is determining the effectiveness of a certain policy or program, like a new sex ed curriculum, “legitimate”? Such an inquiry has the potential to put courts in a role analogous to research funding bodies, answering the question: Does the potential result of this trial intervention justify its cost in arbitrariness and unfairness (for courts) or in dollars (for funders)?

Setting aside constitutional and ethical objections for the moment, the value of such a nationwide randomized study is easy to see. Political candidates often campaign on the promise of eliminating programs that do not work and expanding those that do. If they truly seek to know which is which, more randomization in federal policymaking is a powerful solution.

What objections to this randomization scheme, constitutional or otherwise, can you see?  Drop a comment below. Or, if you email me at Adam.C2020@gmail.com, I might highlight them in a future post.

Welcome to the Constitution in 2020 Website

Welcome to the Constitution2020.org, a companion site for The Constitution in 2020 (Oxford University Press 2009), edited by Jack M. Balkin and Reva Siegel.
This website will contain blog posts about constitutional issues of the day related to the themes of the book. It has sample chapters from the book for you to download and read. And it will eventually contain a library of suggested readings and documents about the Constitution and constitutional issues.
Take a look around and we hope you will come back to visit us regularly.