Trinity Lutheran and a Response to Michael Stokes Paulsen and NRO

On May 3, The Wall Street Journal posted a short op-ed I wrote on the Trinity Lutheran case.  (Sorry, but the op-ed is behind a pay wall; however, here is a blog post that gives some background to the case and my first impressions.)  Professor Michael Stokes Paulsen, alleging I was “wrong on every count” with my opinions, took to NRO where he describes my op-ed as “bizarre” and says I lack basic knowledge of federal claims and federal jurisdiction.  I especially liked his dig that his first semester law students have a better understanding of a plaintiff’s right to choose a forum than I do.

Rather than fire back with insults, I prefer to give the Professor the benefit of the doubt.  The Journal imposed word-count of 550 and I confess it was difficult to make my points and adhere to this limit.  So, I’ll just assume that this restriction and my choice of what to cut from the original piece, which was twice the length of the final version, led a fine scholar such as Paulsen to miss the entire point of the op-ed.

At base, I wanted to tackle the issue of why acrimony reigns in our law and politics.  Trinity Lutheran Church v. Comer, in my opinion, provided a microcosm of what ails us.  In modern American politics, every issue is a national issue where the winners take all.  We no longer have a functioning federal system where states can serve as laboratories of democracy.  Health care, the regulation of “controlled substances,” and marriage are all examples of the one-size-fits-all system.  Because of the demise of the federal system, opposing parties fight to the death and give no quarter to opponents.

Trinity Lutheran is but another example of this.  Much of the chatter on the internet about this case looked at long-term national policy implications of the decision.  In general, conservatives wanted the decision of the lower courts overturned in hopes this would further open the door for right-wing pet programs such as use of vouchers in religious schools.  The Left, distrustful of the “opiate of the masses” and still believing that more money is the answer to the education crisis, wants to keep children in government schools and preserve a wall of separation between church and state.  Many on the Left, in opposing the Gorsuch nomination, warned that he could be the deciding vote in the case.

I found it lamentable that no one had questioned why this was a federal case. (A “stupid” question according to Paulsen).  Trinity Lutheran is a Missouri church challenging the state’s application of a state constitutional provision that prohibits tax dollars going directly to a religious institution. Moreover, the grant program is funded by in-state tire sales. Missouri is not establishing a church nor interfering with worship. Common sense tells us the First Amendment should not be implicated.

Similarly, I argued that the Fourteenth Amendment should be inapplicable in a sane constitutional world. The Equal Protection Clause was meant to ensure that states treated whites and blacks the same regarding civil and legal rights. For years federal courts held that outside of a racial discrimination case, the Clause was the last resort of a losing constitutional argument.  See Buck v. Bell 274 U.S. 200, 208 [1927].

Despite what Paulsen alleges, I do recognize that there is federal question jurisdiction.  Based on the evolution of Supreme Court precedent, no district court in the country would dismiss the church’s complaint as failing to state a federal claim.  Under Supreme Court case law there are First Amendment and Fourteenth Amendment claims.  (I also know that Barron v. Baltimore [1833] is no longer “good law” and that SCOTUS has incorporated, that is, applied the First Amendment to the states.)

My op-ed was an effort to get people to think outside of the Supreme Court’s constitutional exegesis and ponder the role of adjudication in a truly federal system.  I wanted people to debate whether every issue should be a national issue requiring congressional action or a U.S. Supreme Court decision.  In making my point here, I cited a 1823 letter in which Thomas Jefferson observed that “[t]he capital and leading object of the Constitution was to leave with the States all authorities which respected their citizens only, and to transfer to the United States those which respected citizens of foreign or other States.” Jefferson further noted that when a dispute arises between “a citizen and his own State, and under the law of his State,” this is “a domestic case” over which the federal courts lack jurisdiction.

I obviously failed, at least with Professor Paulsen, in my task.  In asking people to consider a Jeffersonian federalism, my thinking is called “bizarre,” my legal acumen is rated as less than a first-year law student, and the questions I dare to ask are “stupid.”  My arguments are met with a blog post citing multiple Supreme Court cases and black letter law on modern federal question jurisdiction.  I don’t disagree with any of Paulsen’s interpretations of those cases or statutes.  As our current system stands, the Supreme Court is the great and final oracle of constitutional interpretation and has authority to hear this case, cases about state marriage laws, etc.  I also agree with him that the Court will likely reverse the Circuit Court and decree a result with which Professor Paulsen will be well pleased.

I just lament that Professor Paulsen and I cannot have a discussion about first principles and what a true federal system (such as was promised to us by The Federalist Papers and by many other friends of the Constitution) would look like.  Would a Missouri case—a domestic case as Jefferson called it—be a proper one for federal adjudication?  I think it is a question worth debating.  Paulsen, on the other hand, seems much too comfortable with the current system and a legal culture that does not give a second thought to any argument that is not based on what five lawyers on the High Court have blessed as “constitutional law.”

Lastly, Paulsen seems most exercised by my statement that the case was moot because of a policy reversal by the state governor.  This was not a big issue at oral argument, but it was meritorious enough that the High Court asked the parties to brief the issue at the last minute.  If mootness was so beyond the pale, why would the Court ask for assistance in deciding this issue?  Moreover, I’m not the only person to raise the mootness issue, a number of commentators have. (E.g., see here and here).

Paulsen’s NRO response makes me see just how much law professors have in common with our modern social justice warriors.  Both are so confident in the correctness of their positions that anyone disagreeing  is, according to the former, bizarre, stupid, etc., and for the latter, a racist, bigot, or oppressor.  They both depend on forms of modern orthodoxy to frame issues that may be discussed.  For the professors, SCOTUS is the end-all and be-all; for the SJWs it is cultural Marxism.  But, I don’t really blame either of them–they are both the products of an institutionalized environment that flourishes in the academy.

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William J. Watkins, Jr. is a Research Fellow at the Independent Institute and the author of the Independent book, Crossroads for Liberty: Recovering the Anti-Federalist Values of America’s First Constitution.

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