Author: Blue Cereal

Back-to-School Motivational Playlist

~ Blue Cereal

I’ve always been one of those people who’s better at sharing a song or playlist with someone than explaining how I feel about something. While I’m not particularly nostalgic in terms of wanting to go back to high school (as a student) or anything, I do miss the golden age of the “mixtape.”

I compiled some serious cassettes in my day, friend. They were completely unappreciated by anyone but myself, but that’s the curse of greatness, I suppose.

Now that I’m well past a half-century old, I don’t do mixtapes anymore. That’s not because I’ve outgrown them. It’s just that people would find it all the wrong kinds of weird. I do find myself still using music as a motivator, however – during exercise (mostly walking these days), cleaning the house, or driving to school in the morning. Honestly, over the past few years, it sometimes takes a few tracks cranked up a bit too loudly just to offset the oppressive sense of madness closing in around us on a daily basis.

And it has fewer calories than drinking. Also, while you may damage your hearing over time, you’re less likely to wake up hungover or naked in the garage with a Chuckie mask on.

In any case, it’s almost time to start a new school year. I’m not dreading it or anything – my need to be intentional about energy and motivation isn’t a reflection on the job or the people involved, exactly. But I suspect I’m not the only one these days who could use a little extra “boost” from time to time in order to remain driven, and focused, and optimistic.

Or at least not crippled by unmitigable despair – that makes it hard to inspire anyone.

With that in mind, I’d like to share my Top Ten List of Motivational Music (Back-to-School Edition). They’re not all specific to school or education or whatever, but for me, they’re at least compatible with the ideals behind what we do. Take it for what it’s worth.

10. These Days (R.E.M.)

This is a live clip, which is fine, but I confess this is one of those rare cases in which the studio version seems more intense and alive. It’s from the very first R.E.M. album I ever owned and still one of my favorites. I feel this one even more deeply as the years go by.

All the people gather, fly to carry each his burden. We are young despite the years – we are concern – we are hope despite the times. All of a sudden, these days – take this joy wherever, wherever you go…

9. Fear of Flying (Farrah)

This is a band I’d have never heard of if it weren’t for – you guessed it – a friend’s mixtape. Granted, it was actually a mixCD, but that doesn’t exactly roll off the tongue, so…

But one day, she’ll get away and see the life she could be living. Make a change, get on a plane because there’s so much she’s been missing. When she gets over the fear of flying…

I’m not one to promise kids they can “be anything they want to be” if they only “believe” or “dream” or whatever. I am 100% certain, however, that most of them have far more potential than they realize if they find the courage to step up and embrace what’s possible.

8. ‘Til the End of the Day (The Verbs)

This is a cover of a classic by the Kinks from the mid-1960s. There’s nothing particularly profound about it – it’s simply a defiant celebration I find compelling. I also like the way it stays faithful to the source material while making it sound fresh and sincere – a handy metaphor for teaching, I suppose.

You know the guy who played drums for the Rolling Stones a year or two ago when Charlie Watts didn’t want to go? This is him and his wife. That means that counting me, and now you, there are roughly four people in the world who’ve heard of The Verbs, and yet here they are throwing all that energy into what they’re doing. I like that little metaphor as well.

Baby, I feel good from the moment I rise – feel good from morning ‘til the end of the day…

7. Blow (Lincoln)

Another obscure band with only a single eponymous album (in 1997) to their name, but a dozen tracks of the best quirky alt-pop ever recorded. I only recently discovered that this band included Danny Weinkauf (bass) and Dan Miller (guitar), who’ve played with They Might Be Giants for something like 25 years now. Honestly, when I was 17 – and still made mix tapes – I would have never missed a connection like that… and we didn’t even have the internet then.

This is one of those tracks that doesn’t ignore the dark futility of it all, but incorporates that despair into the absurdity – thus at least partly negating its sting. It’s a bit counterintuitive for a list like this, but sometimes the dark, cynical stuff mixes well with the joyous – like salt-and-chocolate, rum-and-coke, or Quentin Tarantino.

When the buzzer is broke and you’re given the kiss from your friends who all moved to Los Angeles – the refrigerator’s filled with nothing but ice, some old nail polish, and some orange Slice… When you’re out on a limb, up in a tree, M-I-S-S-I-N-G…

6. Move Into The Light (Southern Avenue)

This band somehow stays relentlessly positive no matter what the subject matter. There’s nothing twisted or subversive hiding behind the optimism here – this is dug in and determined joy.

Sometimes the darkness wraps upon me like an old friend – I mistake the shadow for a comfortable embrace. Sometimes the sadness feels so natural – I get casual – accept and look as factual, when I know that ain’t the case…

They could have held multiple spots on this list with tracks like “Push Now” or “Don’t Give Up” or especially “Keep On”…

Actually, now that I’m thinking about it, I may need a longer list.

5. Stronger / Young and Dumb (Hanson)

I’ve declared these two tracks a tie without them actually taking up more than one slot on the list. (If you don’t like that system, make your own list and you can format it however you like.)

Hanson, for those of you who don’t know, are from Tulsa – my hometown and proverbial stomping grounds for many, many years. After a few big hits (the elderly among you no doubt have “Mmmbop” running through your head already) and a few successful albums in the late 1990s, they faced a dilemma. The record label was willing to continue supporting and promoting them, but it wanted more of a “boy band” flavor to follow up what had already been successful. The lads, on the other hand, were growing up a bit and developing as songwriters and had their own ideas of what kinds of music they wanted to make. It was still very much pop music, much of it positive and fun and bouncy, but they meant it. (They’d meant the early stuff as well, but it turns out when you’re teenagers, your thoughts and feelings can evolve pretty quickly.)

The brothers left their major label and all the security it could provide and started their own independent record label. They recorded the music they wanted to do, and made a documentary about it while having absolutely no idea whether or not they’d be selling real estate or doing burger joint jingles to keep the lights on a year or two down the road.

It’s been 25 years and over a dozen albums since “Mmmbop,” and the Hansons are all grown up with families of their own and maybe a touch of that world-weariness the years can bring – especially when you’ve been used as an easy punchline for several decades by people not creative enough to write their own jokes, let alone their own songs. I’m not the devotee some are (they’re called “Fansons” and they can be… interesting), but I genuinely love this band both for the music they continue to produce and for their story. They are far from perfect (don’t look it up), but anyone who looks corporate music culture in the eye and hands back the check so they’ll be free to do what they think is right is OK with me.

“Stronger” is profound in its simplicity:

But I long to be stronger than this… I long to be Stronger than this… I want to be, I want to be strong.

“Young and Dumb,” on the other hand, reflects the wear and tear of fighting cynicism and despair as the years accumulate:

And when my eyes are clear, I see good intentions are a cheap veneer for every evil justified. I’d rather be young and dumb – surrounded by the possibility. Don’t want to be old and numb – wanna tell myself a lie, wanna tell myself, I’d rather be young and dumb…

4. Light Will Keep Your Heart Beating In The Future (Mike Doughty)

This one is a bit of an enigma given that other than the chorus, it’s not clear that any of it means anything. On the other hand, that makes my commentary a bit more concise. In any case, I played this one rather loudly almost every day on the way to work during one particularly… difficult year. I still turn it up way too loud when it comes on.

3. Opening Up (Waitress, the Musical)

This clip combines numerous elements I wouldn’t normally think of as “my thing.” You’ve got Sara Bareilles, who I love, but who is very much a commercially successful, “name brand” artist (not my usual m.o.). You’ve got stage musicals, for which I actually have quite a soft spot when they’re creatively and musically genuine. You’ve got overtly uplifting-happy-singing-dancing, which I usually hate, even on a countdown of motivational songs. Just to make sure the cheesiness is complete, I opted not to use the audio from the official cast recording and instead found this gem from “Good Morning America” of all nightmares.

And I love this song. This moment. This production. Everything about Waitress: the Musical should annoy the hell out of me, but it brings me joy and optimism and tears of understanding (hey, I’m a crier) – live, on CD, and even some pretty strange YouTube versions.

2. Don’t Feed The Trolls (Jonathan Coulton)

Don’t get me started on Jonathan Coulton. I love his story, his music, his wit, and his willingness to mix intellect, silliness, and sentiment together in ways that simply shouldn’t work but usually do. This one is a live version of a track from 2017’s “Solid State,” but it’s the studio version that most stirs my figurative loins.

And when the bright lights find you, don’t let your heart get lazy. Keep all the worst behind you – that stuff will make you crazy. Don’t read the comments, and don’t feed the trolls… Don’t read the comments, and don’t feed the trolls…

1. The Poisonousness (They Might Be Giants, featuring Robin Goldwasser)

If you haven’t kept up with TMBG since “Particle Man” or “Birdhouse In Your Soul,” you’re seriously missing out. These lads have managed to stay successful enough (largely through their kids’ albums and various theme songs and such) to maintain complete artistic freedom to do whatever their weird little hearts desire. This particular track is from one of their side projects, a concept album based on an obscure comic book series called “The Escape Team” with which I am thoroughly unfamiliar. I thus have no idea what inspired this particular track, but it doesn’t matter – once released into the universe, art is ours to interpret and feel as we see fit, dammit.

I’ve literally played this on repeat up to seven times in a row some days. Loudly.

Can anybody stand up? Dispose of the villainousness? Save us, save us – we can’t break the spell, we can’t leave this hell – Like the end of Lord of the Flies, we can’t tell if we’re going to survive this diet of lies…

(Hand witch) We’re all trapped in this world. (Hand witch) What else can be learned? (Hand witch) These bubbles are disturbing…

Everybody stand up – dispose of the villainousness! This will save us – we can break the spell, we can leave this hell – Like the end of Live and Let Die, I can’t tell just how or just why, but we’ll survive…

Conclusion and Invitation

I’ve found excuses to do music or video lists on this blog before. They’re consistently some of my least-popular posts, plus there’s the added inconvenience that over time some of the videos vanish and so the links no longer work, etc. Music is so personal in terms of its impact and such – perhaps it’s futile to keep putting it out there.

Then again, maybe that’s the whole idea – to keep putting it out there anyway. To believe it matters whether you get warm fuzzies in return or not. (Tell me THAT doesn’t summarize teaching perfectly sometimes.)

But it’s not supposed to only work in one direction – so, what’s your list? That’s not just a formulaic way to wrap up – I really want to know. What song or songs do you put on to bring out the best parts of you? Comment with links, if available, and I promise I’ll listen to every one of them at least once. Heck, I might even like them.

Lemon v. Kurtzman (1971) – from “Have To” History

~ Blue Cereal

NOTE: This is an excerpt from “Have To” History: A Wall of Education. In the 50+ years since this decision was issued, the “Lemon Test” has been clarified, narrowed, reinforced, and finally all but discarded by an evolving Supreme Court. (The recent decision in Kennedy v. Bremerton references it several dozen times – mostly negatively.)

That’s unfortunate, in my opinion, because it was for several decades one of the most straightforward and balanced approaches to avoiding “establishment” problems without overly hindering “free exercise.” The case is still important, however – not only because of the issues involved and the “test” which resulted, but for the erudite arguments and genuine efforts to remain pragmatic without sacrificing fundamental liberties on either side. The majority opinion by Chief Justice Warren Burger is one of the best on this topic in the entire history of the Court. 

Lemon v. Kurtzman (1971): Because Nuns Are Gonna Be Nuns

Three Big Things:

1. Lemon v. Kurtzman addressed the question of whether state financial support for the teaching of secular subjects within religious schools violated the Establishment Clause of the First Amendment. (It did.)

2. Direct State support of religious schools was determined to be unconstitutional because faculty, unlike textbooks or equipment, cannot be reasonably expected to turn their faith “on” or “off” based on the subject they’re assigned that period. Religious schools are by their nature religious, even when teaching non-religious subjects.

3. This case is best known for establishing the “Lemon Test,” a three-part checklist often used to determine whether or not a given government action violates church-state separation.

Background: A Wall of Separation

In Everson v. Board of Education (1947), the Court decided it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

A decade and a half later, in Engel v. Vitale (1962), the Court made clear that the state could not require – or even promote – prayer in public schools as part of the school day, no matter how generic the prayer. This was followed closely by Abington v. Schempp (1963) in which the same was applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In Board of Education v. Allen (1968), the court determined it was perfectly acceptable for New York to provide textbooks free of charge to all secondary students (grades 7–12), including those in private schools. Much like the busses in Everson, textbooks were considered of general benefit to all students. For the government to make it more difficult for students in religious schools to learn Algebra or Science would, in fact, violate the “free exercise” clause.

In none of these cases was the goal to drive faith out of public education. The Court’s concern, rather, was to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. Or, at least, that was how it interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth – a judicial philosophy known as “incorporation.”

The Abington decision included a little checklist by which interested parties could determine whether or not something violated the “wall of separation” established by the First Amendment. That checklist was refined less than a decade later when the Court heard Lemon v. Kurtzman (1971).

Give Me That Part-Time Religion

As of 1969, both Pennsylvania and Rhode Island had plethoras of private schools, the vast majority of which were Roman Catholic. Then, as now, most private schools operated on tight budgets. The average per-pupil expenditure was lower than public schools in the same area – even when numbers were adjusted to reflect only “secular education.” In other words, students in many private Catholic schools weren’t benefitting from the same resources as kids in public schools, even when learning science, math, or other non-religious subjects.

Both states passed legislation to provide supplemental support for these private schools, as long as the extra funds were used only for the teaching of secular subjects and buying non-religious materials. In some cases, this included help with teacher salaries. There were parents in both states, however, who complained that this diverted resources from public schools to support sectarian institutions, thus violating the First Amendment.

It presented an interesting dilemma: Was modest financial assistance for a sectarian school more like including a little prayer and some Bible verses in Engel or Abington, or supplying bus fare and textbooks in Everson or Allen? Does state assistance constitute “establishment,” or would eliminating that assistance violate “free exercise”?

Walz v. Tax Commission of the City of New York (1970)

Only a year before, the Court had addressed a similar dilemma in Walz v. Tax Commission of the City of New York. It wasn’t a public school case, but many of the issues were comparable.

The city of New York had granted property tax exemptions to religious organizations when the property in question was used exclusively for religious worship – putting them in the same general category as schools or charities, who claimed similar tax exemptions on their properties. Some property owners who did pay taxes argued this violated the Establishment Clause.

The Court determined that while government certainly had no business promoting religion, these tax exemptions didn’t actually do that – not quite. They merely allowed the “free exercise” of groups serving the public good by allowing the same tax benefits as any non-religious non-profit serving a similar function. They weren’t “establishing,” the Court said – they were stepping back and letting faithy people do faithy stuff.

The majority opinion in Walz, written by Chief Justice Warren Burger, cited a number of prior cases by way of illumination – many of them involving public schools. In turn, Walz would be cited in subsequent school-related church-state cases. Several of his more salient points, in fact, could have just as easily been prompted by Engel, Allen or Lemon:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute…

In other words, that Separation of Church and State thing is an ideal, a goal – not a clear set of rules for every situation.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other…

The Court thus recognized that the best application of First Amendment values wasn’t necessarily obvious in each and every case. Sometimes, protecting the rights of everyone concerned is an imperfect balancing act.

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. We sponsor an attitude on the part of government that shows no partiality to any one group, and that lets each flourish according to the zeal of its adherents and the appeal of its dogma…

The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited…

Justice Burger was suggesting that the best way to remain faithful to the ideal is to remain flexible with the specifics. Pragmatic, yet poetic.

Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference…

Once one successfully navigates “there is room for play in the joints productive of a benevolent neutrality,” this is either a doggedly practical or maddeningly evasive approach. Burger seems to be confessing a certain degree of “figuring it out as we go” by the Court – although in this case, that “figuring” includes fifteen pages of detailed analysis and historical background.

The Lemon Decision

As with Walz, Chief Justice Burger wrote the majority opinion. He again acknowledged the difficulty of neither promoting nor hindering religion, but this time laid out what would become known as “The Lemon Test” – one of the most enduring bits of jurisprudence from the Burger Court. (Also, it’s fun to say “Burger Court” and mean something totally for real and serious.)

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion” …

Or, rephrased to apply more specifically to the case at hand:

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority…

Justice Burger went on to explain how very clearly religious these private schools were. Most were located on the same grounds or in close proximity to associated churches. Religious symbols pervaded each campus. Roughly two-thirds of the instructors were nuns. To cap it all off, the Catholic faith was pretty explicit about the fact that a large part of the reason they had parochial schools to begin with was to spread their faith. So were they religious?

Well… yeah.

But what about Allen a few years prior?

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books.

Good to know someone realized that. If only he’d added “or online coursework.”

In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.

Despite several more pages of explanation, that pretty much sums it up. The balance between pushing religion and punishing it is a tricky one, yes – but in this specific situation, the Court decided, the state had some seriously conflicted inhering going on.

It wasn’t malicious. It simply wasn’t fair to expect teachers to completely separate their spiritual function from their secular labors.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.

Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

Finally, expecting the state to supervise or punish violations of this unattainable “total separation” created the exact sort of entanglement the First Amendment hoped to circumvent. It made the government into the theology police.

To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions…

Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

In other words, the unacceptable entanglement between state and church starts with a well-intentioned effort to protect both from unconstitutional interaction. That said, one can’t help but wonder whether it was Justice Berger himself or some smirking law clerk who thought “prophylactic contacts” was a great way to express this. Then again, perhaps when it comes to phrasing we should allow written opinions a little play in the joints.

The Aftermath

So, bus fare and math books are OK. Government-led prayer or devotional readings are not. And, after Lemon, direct support to sectarian schools – under whatever formula – was out as well (at least for the next half-century). There would be other church-state cases in subsequent years, but those coming closest to the issues in Lemon involved questions of “school choice” and “vouchers.” Because the aid in question is primarily intended for parents and students, proponents argue these options are entirely constitutional – just like in Allen or Everson. Opponents insist that the intent and actual impact of such programs hurts public schools in favor of sectarian institutions, which seems like it must violate something in the “Lemon Test,” and is in any case has the state once again inching towards entanglement without the appropriate prophylactics.

In short, the “Lemon Test” brought some much-needed clarity to issues involving the separation of church and state. Shortly thereafter, people found a way to complicate it again.

Excerpts from Lemon v. Kurtzman (1971), Majority Opinion by Chief Justice Warren Burger {Edited for Readability}

In Everson v. Board of Education (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There, Mr. Justice Black, writing for the majority, suggested that the decision carried to “the verge” of forbidden territory under the Religion Clauses. Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be “no law respecting an establishment of religion” … A given law might not establish a state religion, but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity” (Walz v. Tax Commission, 1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years… First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion (Board of Education v. Allen, 1968); finally, the statute must not foster “an excessive government entanglement with religion” (Walz).

Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion. On the contrary, the statutes themselves clearly state that they are intended to enhance the quality of the secular education in all schools covered by the compulsory attendance laws. There is no reason to believe the legislatures meant anything else. A State always has a legitimate concern for maintaining minimum standards in all schools it allows to operate…

The two legislatures, however, have also recognized that church-related elementary and secondary schools have a significant religious mission, and that a substantial portion of their activities is religiously oriented. They have therefore sought to create statutory restrictions designed to guarantee the separation between secular and religious educational functions… We need not decide whether these legislative precautions restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses, for we conclude that the cumulative impact of the entire relationship arising under the statutes in each State involves excessive entanglement between government and religion…

Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable… Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz, the State had a continuing burden to ascertain that the exempt property was, in fact, being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a “wall,” is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship…

The church schools involved in the {Rhode Island} program are located close to parish churches… The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities. Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools…

On the basis of these findings, the District Court concluded that the parochial schools constituted “an integral part of the religious mission of the Catholic Church.” The various characteristics of the schools make them “a powerful vehicle for transmitting the Catholic faith to the next generation.” This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose…

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books. In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation…

The teacher is employed by a religious organization, subject to the direction and discipline of religious authorities, and works in a system dedicated to rearing children in a particular faith. These controls are not lessened by the fact that most of the lay teachers are of the Catholic faith. Inevitably, some of a teacher’s responsibilities hover on the border between secular and religious orientation.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral. Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church…

Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life… The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses… The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that, while some involvement and entanglement are inevitable, lines must be drawn.

 

Holt v. Hobbs (2015): Who Then Can Be Shaved?

~ Blue Cereal

Three Big Things

1. The Religious Land Use and Institutionalized Persons Act (RLUIP) passed by Congress in 2000 requires (among other things) that states go a little further than absolutely demanded by the First Amendment to protect inmates’ religious expression. Prison officials may still do what’s necessary to maintain order, but they must make every effort to accommodate faith while they do.

2. Arkansas didn’t allow prisoners to grow beards – even short ones – unless they’d been diagnosed with specific skin disorders making a short beard desirable. Greg Holt, a devout Muslim going by the name Abdul Maalik Muhammed, asked for a religious exemption allowing him to grow a half-inch beard. Prison officials said no.

3. The Supreme Court found in favor of Holt because officials had numerous options to accomplish the same goals (safety and security) without infringing on Holt’s sincerely held religious beliefs.

The Situation

The Arkansas Department of Corrections doesn’t allow prisoners to grow beards (with some exceptions made for inmates with specific skin conditions). The argument was that inmates could conceivably hide contraband in their beards and that shaving them off would allow them to quickly change their appearance should they escape.

One suspects these were largely rationalizations, but prison isn’t primarily intended to be a great place for personal expression, so maybe officials have the right to tweak a few rules for their own purposes.

Greg Holt, aka Abdul Maalik Muhammed, requested an exemption on religious grounds. As a good Muslim, he explained, he shouldn’t be trimming his beard at all, but as a compromise with the system, he wished to maintain a modest one-half inch beard as a symbolic gesture of adherence to his faith. Prison officials said no.

Holt filed suit in the nearest district court. (As a civil rights issue, rather than a criminal complaint, the federal courts were the appropriate venue.) The state argued that the system made allowances for Holt to express his faith in other ways – they weren’t trying to keep him from practicing his religion within reason. It also pointed out that not all Muslims believed the beard thing was a big deal. Most of all, however, much like with questionable police actions, the courts should defer to those doing the actual job and not second-guess every detail from afar.

They put that last bit more professionally, of course.

Holt appealed to the Eight Circuit Court, which affirmed the decision. The general guideline in such cases is that government at any level should avoid restricting free exercise of religion whenever possible. When religious actions conflict with otherwise neutral, reasonable laws or procedures, the government must seek out the “least restrictive means” of satisfying its goals – in this case, prison security. If the result is that some religious behaviors are curtailed, that’s unfortunate, but not necessarily unconstitutional.  

Holt and his advocates appealed to the Supreme Court, who agreed to hear the case during its 2014-2015 session. The Court, in a unanimous decision, found in Holt’s favor.

The Decision

While the case certainly involved the issue of free exercise as protected by the First Amendment, the specific legislation guiding such things was the Religious Land Use and Institutionalized Persons Act (RLUIPA) passed by Congress in 2000 with the dual goals of making it easier for inmates to bring suits just like this one and protecting local churches from zoning regulations and other rules applicable to other businesses or organizations. The Court had struck down parts of an earlier effort, 1993’s Religious Freedom Restoration Act (RFRA), so with RLUIPA Congress focused on two areas it felt were more clearly in its purview – land use and the prison system.

The majority opinion, written by Justice Samuel Alito, begins by acknowledging that the prison system has a right to first consider the issue of “sincerity” when religious claims are made. While the specifics of testing such things could potentially get messy, this has long been one way courts allow institutions to push back against frivolous uses of faux religious claims by prisoners, employees, or the like, to circumvent rules or expectations they simply don’t like. In this case, there was no doubt of Holt’s sincerity; he was a devout Muslim in word and deed and no one on either side was challenging this.

The lower courts had erred, however, in their assumption that because Holt was allowed to practice his faith in other ways, that somehow offset the beard issue. He was still literally being forced to choose between violating his own religious beliefs (by shaving) or being punished by the system. If the issue were purely a free exercise claim based on the First Amendment, the existing accommodations might have been more of a consideration. Under RLUIPA terms, however, the state is required to bend much further than that.

As to the argument that some Muslims didn’t have beards, this seriously missed the point of about a zillion previous Supreme Court decisions. Government entities can consider overt indications that someone is just messing with them (“my religion says I have to get drunk and have sex with beautiful women every Thursday”), but they don’t get to parse the validity of individual beliefs beyond that.  

Now came the issue of “least restrictive means.” The Court was not convinced that a half-inch of beard growth was such a serious threat to prison security that it justified violating free exercise. Even if officials were genuinely concerned about all the items potentially hidden in that half-inch, a quick search here and there wouldn’t consume much in terms of time and resources. If they wanted to know what an inmate looked like without the beard, take a picture of him without it, then let him grow it back. Many other prison systems accommodate beards without it leading to a complete breakdown of security – perhaps Arkansas could get a few tips from them.

Perhaps most damning for the state’s position was the allowance of one-quarter inch beards for prisoners with specific skin conditions and the lack of additional security measures designed to deal with these furry incubators of subversive behavior. In other words, the system accommodated non-religious beards quite easily and only made an issue of beards grown for religious purposes.

That sort of distinction is usually a deal-breaker with the Court these days. It certainly was here.

Concurring Opinions

Alito’s opinion cites several other cases by way of support for various points, but none so often as Burwell v. Hobby Lobby Stores, Inc. (2014) from the previous term. In that case, the Court had ruled (in a 5-4 split) that RFRA allowed companies like Hobby Lobby to deny its employees health coverage for stuff like contraceptives based on the organization’s religious beliefs. Justice Alito had written the majority opinion for the Hobby Lobby case as well, and it was no doubt fresh in his mind. The Holt opinion references it more than every other case it cites combined.  

Thus the very brief written opinion of Justice Ruth Bader Ginsburg, who pointed out that while she agreed with the results, this case was different than Hobby Lobby because “accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief.”

Justice Sonia Sotomayor joined Ginsburg’s concurring opinion but added her own as well. It primarily seeks to clarify that officials still have options for enforcing whatever rules may be necessary, they simply have to do so within the confines of RLUIPA. She also notes that the policies in question were rejected by the Court because they failed to meet the standards required in the legislation – not because the majority (via the words of Justice Alito) thought they were stupid… because let’s be honest, he mostly just loves snippy and critical.

OK, she didn’t come right out and put it that way – but you read it and tell me that’s not what she meant. I dare you.

Holt v. Hobbs (2015): Excerpts from the Majority Opinion by Justice Samuel Alito

We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. Although we do not question the importance of the Department’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we conclude that the Department has failed to show that its policy is the least restrictive means of furthering its compelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit.

Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), “in order to provide very broad protection for religious liberty” (Burwell v. Hobby Lobby Stores, Inc., 2014)  RFRA was enacted three years after our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990), which held that neutral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment…

Section 3 {of RLUIPA} provides that “{n}o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution… even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.” … Congress mandated that {these guidelines} “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise” (Hobby Lobby).
Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which provides that “{n}o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs…

Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” but, of course, a prisoner’s request for an accommodation must be sincerely based on a religious belief and not some other motivation (see Hobby Lobby). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of his religious faith, and the Department does not dispute the sincerity of petitioner’s belief.

{P}etitioner also bore the burden of proving that the Department’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obligation… If petitioner contravenes {prison} policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it substantially burdens his religious exercise. Indeed, the Department does not argue otherwise…

{T}he District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amendment rights (see O’Lone v. Estate of Shabazz, 1987 {and} Turner v. Safley, 1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise… not whether the RLUIPA claimant is able to engage in other forms of religious exercise…

{T}he District Court {also} went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic… But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect” (Thomas v. Review Board of Indiana Employment Security Division, 1981). …

The Department argues that its grooming policy represents the least restrictive means of furthering a “broadly formulated interest,” namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contemplates a “more focused” inquiry and “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ – the particular claimant whose sincere exercise of religion is being substantially burdened.” …

The Department contends that enforcing this prohibition is the least restrictive means of furthering prison safety and security in two specific ways.

(A) The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Department worries that prisoners may use their beards to conceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards.

We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a half-inch beard is hard to take seriously… An item of contraband would have to be very small indeed to be concealed by a half-inch beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a half-inch beard rather than in the longer hair on his head…

Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tantamount to unquestioning acceptance, it is hard to swallow the argument that denying petitioner a half-inch beard actually furthers the Department’s interest in rooting out contraband.

Even if the Department could make that showing, its contraband argument would still fail because the Department cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband… The Department already searches prisoners’ hair and clothing… And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard…

(B) The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities… But even if we assume for present purposes that the Department’s grooming policy sufficiently furthers its interest in the identification of prisoners, that policy still violates RLUIPA as applied in the circumstances present here…

The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as petitioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter… In fact, the Department (like many other States) already has a policy of photographing a prisoner both when he enters an institution and when his “appearance changes at any time during {his} incarceration.” (Arkansas Department of Correction Inmate Handbook)…

In addition to its failure to prove that petitioner’s proposed alternatives would not sufficiently serve its security interests, the Department… has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a half-inch beard, it permits prisoners with a dermatological condition to grow quarter-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a half-inch of hair on their heads… Hair on the head is a more plausible place to hide contraband than a half-inch beard – and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “{t}he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree” (Church of Lukumi Babalu Aye, Inc. v. Hialeah, 1993)…

Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow half-inch beards, either for any reason or for religious reasons, but it cannot… That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks.

We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here…

We emphasize that although RLUIPA provides substantial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security… {For example,} if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic” (Cutter v. Wilkinson, 2005)… {Also,} even if a claimant’s religious belief is sincere, an institution might be entitled to withdraw an accommodation if the claimant abuses the exemption in a manner that undermines the prison’s compelling interests.

In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a half-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Holt v. Hobbs (2015): Concurring Opinion by Justice Ruth Bader Ginsburg

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc. (2014), accommodating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. On that understanding, I join the Court’s opinion.

Holt v. Hobbs (2015): Excerpts of Concurring Opinion by Justice Sonia Sotomayor

I concur in the Court’s opinion, which holds that the Department failed to show why the less restrictive alternatives identified by petitioner in the course of this litigation were inadequate to achieve the Department’s compelling security-related interests. I write separately to explain my understanding of the applicable legal standard.

Nothing in the Court’s opinion calls into question our prior holding in Cutter v. Wilkinson (2005) that “context matters” in the application of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). In the dangerous prison environment, “regulations and procedures” are needed to “maintain good order, security and discipline, consistent with consideration of costs and limited resources.” … Thus, we recognized “that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area” (Cutter)…

Here, the Department’s failure to demonstrate why the less restrictive policies petitioner identified in the course of the litigation were insufficient to achieve its compelling interests – not the Court’s independent judgment concerning the merit of these alternative approaches – is ultimately fatal to the Department’s position. The Court is appropriately skeptical of the relationship between the Department’s no-beard policy and its alleged compelling interests because the Department offered little more than unsupported assertions in defense of its refusal of petitioner’s requested religious accommodation. RLUIPA requires more.

This Post Is Part Of “Have To” History. You can find more rambling and rough drafts there.

 

Federalist #78 and the Importance of Judicial Precedent

~ Blue Cereal

Fed Papers

Excerpts from the Federalist Papers #78 (Alexander Hamilton)

The Federalist Papers were a series of 85 essays written by John Jay (5), James Madison (29), and Alexander Hamilton (51) to explain and defend the new Constitution in hopes of securing unanimous ratification. While not part of the document, they are generally considered one of the most reliable sources of the Framers’ intentions. Hamilton was the original “Federalist” in terms of his commitment to a strong central government and an expansive reading of the Constitution and the powers it grants to the various branches. Unlike Thomas Jefferson, who was primarily concerned with protecting the liberties of individuals, Hamilton’s focus was on strengthening the powers of the federal government sufficiently to ensure its long-term success. And yet, here in Essay #78, he argues that lifetime appointments are essential in the judicial branch in order to assure attention to precedent and consistent protection of individual liberties from legislative abuse.

WE PROCEED now to an examination of the judiciary department of the proposed government…

{T}he judiciary is beyond comparison the weakest of the three departments of power… {T}hough individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” … {Since} liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments… {and since the judicial branch is the weakest of the three,} nothing can contribute so much to its firmness and independence as permanency in office{. T}his quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

We might debate whether or not Hamilton was correct to consider the judicial branch the “weakest” of the three, but what’s important here is the idea that the lifetime tenure of justices was intended to provide consistency in the nation’s highest court. Notice also his assumption that one of the primary purposes of the Court is to protect the “general liberty of the people” and act as the “citadel of the public justice and the public security.” While Hamilton was speaking primarily of national government (it would almost a century before constitutional protections were automatically assumed to apply at the state and local level via the Fourteenth Amendment), this understanding of the judicial branch is antithetical to the idea that “faithfulness” to the Constitution requires stripping away established protections in order to better facilitate state-level abuse of personal liberties.

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority… Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid…

The power of “judicial review” was formally claimed by the Supreme Court in its landmark decision in Marbury v. Madison (1803). The concept, however, was established long before then. One of the primary reasons Jefferson and Madison had so much trouble garnering support for their Virginia and Kentucky Resolutions (1798-1799) which promoted state “nullification” of the Alien and Sedition Acts was that even state legislatures who didn’t love these statutes deferred to the appropriate branch of government for dealing with such things. In this essay, Hamilton is not suggesting “judicial review” as a potential power of the Supreme Court; he’s explaining and justifying it as something clearly granted under the new Constitution… even if it wasn’t spelled out in exactly those words.

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.

Until Justice Clarence Thomas and his ilk manage to effectively neuter the Fourteenth Amendment, it’s reasonable to apply this philosophy to state governments as well as the national Congress. The original purpose of the Fourteenth Amendment, after all, was to decry “states’ rights” when they violated more fundamental (and more important) natural rights.  

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

President Andrew Jackson saw himself as defending the “common man” from the corrupted powers of their elected legislators. According to Hamilton, however, the primary defense of the people from legislative bodies is the courts. That’s not “judicial activism,” according to one of the strongest proponents of powerful central government in our history – it’s one of the judicial system’s primary functions.

This exercise of judicial discretion, in determining between two contradictory laws, is exemplified in a familiar instance. It not uncommonly happens, that there are two statutes existing at one time, clashing in whole or in part with each other, and neither of them containing any repealing clause or expression. In such a case, it is the province of the courts to liquidate and fix their meaning and operation. So far as they can, by any fair construction, be reconciled to each other, reason and law conspire to dictate that this should be done; where this is impracticable, it becomes a matter of necessity to give effect to one, in exclusion of the other. The rule which has obtained in the courts for determining their relative validity is, that the last in order of time shall be preferred to the first. But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing. It is a rule not enjoined upon the courts by legislative provision, but adopted by themselves, as consonant to truth and propriety, for the direction of their conduct as interpreters of the law. They thought it reasonable, that between the interfering acts of an EQUAL authority, that which was the last indication of its will should have the preference…

What Hamilton is essentially talking about here is stare decisis – the importance of maintaining judicial precedents. When laws (or, say… clauses in the First Amendment) clash or pull against one another, it’s the job of the Supreme Court to figure out the best understanding of those laws and establish this as the correct meaning.

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

Hamilton may not have been quite the progressive crusader suggested by his musical, but he’s at least pro-Warren Court here.

It’s worth repeating – a primary duty of the courts is to protect individual liberties (in this case, minority rights specifically) from legislative abuses. That’s not “exceeding” their constitutional role, at least according to the guys who wrote the damn thing.

Surely you can’t get much more “originalist” than that.

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

It’s nice of him to go ahead and validate the January 6th hearings while he’s at it. Alexander “Nostradamus” Hamilton, at your service.

Hamilton continues making his point that lifetime tenure is essential for the judiciary to effectively protect individual liberty against potential abuses by the other two branches (but mostly the legislative). Apparently he doesn’t consider elected representatives to always be the best judges of what the Constitution does and doesn’t protect. Huh.

It turns out there’s even a more important reason for those lifetime appointments – they help protect stare decisis by making justices less likely to overturn established precedents in service of their own ideological whims. At least, that was the idea.

There is yet a further and a weightier reason for the permanency of the judicial offices, which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…

Precedent matters. It’s not inviolable, but it should carry greater weight than “yeah, but we don’t like how the last fifty years or so have gone.” It should certainly trump “you don’t know how long the Federalist Society and rich white evangelicals have been working to reverse course on this stuff!”

Hamilton was concerned that excessive turnover on the bench would produce justices insufficiently schooled in established jurisprudence. He did not account for the possibility that they’d know damn well what’s been said and done before but simply pick and choose selected bits to justify their predetermined outcomes while ignoring context and inevitable impact.

{T}here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And… the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.

You said it, Alexander.

Washing Gravel in the Pool

~ Blue Cereal ~ 1 Comment

Sharknado SignAs many of you have no doubt noticed by now, I’m not what you’d call a “natural” when it comes to manly stuff like changing oil, replacing outlets, or watching Sons of Anarchy. Over time, I’ve learned to do a few basic things like use a fancy snow-blower or change the filter in the dehumidifier, but every new task – however humble – requires disproportionate focus, preparation, and YouTube videos.

Sometimes there’s also an unplanned trip to Menard’s to look for replacement parts for whatever I just broke.

And yet, as is so often the case with career educators, my optimism and enthusiasm constantly break free of the tethers of reality. This past week, this manifested itself in a burning desire to redo the landscaping around the house – some weeding, new weed guard, and a thousand or so tons of fresh mulch. Surely even I could manage such a task without total disaster or neighbors calling the authorities.

Take a moment, if you will, to admire my moxie, audacious hands on lumpy hips with the wind blowing through delusional hair as I stare nobly across a doomed horizon.

The weeding itself went OK, surprisingly. It had rained the day before, so the ground was soft. I even had the right gloves and cute little digging tools. In retrospect, I fear this early success facilitated over-confidence. At the time, however, it was merely a welcome relief that nothing horrible seemed to be happening.

Pulling up the old weed guard was a bit more of a challenge. I’d assumed there’d be holes accommodating the seemingly indestructible plants we’d inherited when we purchased the property several years ago, but clearly the vegetation utilized some sort of time-space rift to sprout forth with no discernible break in the material beneath it. In my efforts to tear out the existing mesh, I managed to pull two immense plants completely out of the ground. They’d survived flooding, droughts, and my efforts to control weeds using old gasoline (don’t ask). Now, it appeared, they’d finally been conquered by my efforts to pretty up the place.

Still optimistic, I stuck them back down into the dirt and piled stuff up around them as best I could. If they’re dead in a few days, I’ll blame the neighbors’ dog.

Somehow, I eventually managed to pull out the old weed guard, overuse the chemicals recommended by the stoner kid at the hardware store, and lay down new materials. I even managed to more-or-less evenly distribute the new mulch. Here’s to moxie!

The side of the house along the driveway was much trickier. See, people in Indiana don’t believe in attaching garages to homes. Why would you want to carry groceries or other purchases directly into the house when you could first navigate ten yards of oppressive rain, blinding snow, or apocalyptic winds instead? There aren’t many categories in which I’d suggest Oklahoma is ahead of anywhere else, but at least most garages there are part of the house – the way God intended.

Our property isn’t particularly extensive, but there’s a long stretch of non-concrete between home and driveway – roughly twenty inches deep for thirty feet or more. There’s enough soil for weeds and other plant life to thrive year-round, but enough gravel that it’s impossible to mow or weedeat. Finally, after all this time, I was going to “fix” it.

As I began shoveling up gravel, it became clear I was never going to get it all – not without digging down far deeper than I was comfortable with. I also wasn’t sure what to do with it once I’d dug it out. I mean, it doesn’t look like THAT much gravel just laying there, but the longer I dug, the more gravel remained. It was like the loaves and fishes of landscaping miracles, only far less convenient.

Remember all that moxie and optimism? Here’s where it kicked up to ten. I recalled yet another project slated for this summer – repairing cracks in the driveway. By cracks, I mean holes. And by holes, I mean huge, gaping craters.

But it’s concrete; how hard could it be? I knew from my repeated trips to Menard’s that several of the mixes – all of which contained warnings I’m certain I can ignore about the size of hole they’ll actually repair – suggest adding gravel to improve durability or something. Perfect! Now I’ve got plenty of gravel!

Only… there’s a LOT of dirt mixed in. I kept trying to separate them by hand, but it just wasn’t working. And I was hot. And tired. And old. And delusional.

Then my inspiration jumped to eleven.

Our back yard is a bit of an oddity. At some point long ago, there was an in-ground swimming pool. Someone decided in the distant past fill it in with dirt, leaving a nice little oval of concrete and a few holes where a diving board or something must have been anchored. The ground had sunk over the years, so we were always dumping extra dirt into the “pool.”

I needed clean gravel in one place and more dirt in another. Easy-peasy. All I needed to do was wash the dirt off the gravel while sitting in the middle of the “pool.”

Those of you with more of a practical streak are at this point probably noticing that this sounds like a LOT of effort to expend on something which would do nothing to improve the stretch of ground I was supposedly landscaping while making little if any difference for the sunken area in the backyard. To that, I can only reply that by this point I’d entered an altered state of consciousness, much like the holy men of old. You’ve probably read about the “flow” – an altered stream of time and focus one enters when reading or painting or otherwise engaging in an activity so deeply that all else falls away.

I was in the flow, my friends. It may not have been the right flow, or even a reasonable flow, but it was a FLOW.

I’d need plastic plant pots. The hose. An ice pick to punch drainage holes in the pots. A colander (not the same one we used to cook – I wasn’t THAT far gone). Lawn chair. Rocks to set the buckets on for better drainage. And enthusiasm. Don’t forget my optimism and enthusiasm! I poured. I shook. I rinsed. I propped. I believed.

An hour and a half later, my neighbor, Larry, who’d noticed I’d been out back for quite a while (and knew how unusual this was), walked over to check on me.

Larry and his wife are an older couple who live across the street. They are wonderful in many ways, not least of which is their encyclopedic awareness of everything happening everywhere in the neighborhood at all times. You’d think “nosy neighbors” would be a negative, but we generally find it comforting. They’re the folks you let know when you’re going out of town or who you ask what happened at that house on the corner the other night when the firetrucks showed up at 2 a.m.

They’re also kind. Rose brings over cookies and a card every Christmas and Larry mows my lawn when I’m sick or out of town (without being asked or ever mentioning it afterwards). I’m certain they’re far more conservative than we are, but we don’t talk politics because… well, you know why. They’ve never mentioned our antagonistic social justice signs in the yard (which are mostly for the benefit of the “F*** Biden” and “Don’t Tread On Me” folks who drive the VBS bus a few doors down) and we don’t phrase things in provocative ways when loaded topics come up.

That said, Larry does like to ask what I’m up to whenever I’m outside and often offers his own insights about whatever it is. I choose to take it in a neighborly spirit. He’s never critical; it’s often genuinely helpful. Plus, he really likes to talk. About anything.

As Larry came around the corner of the house, I had six buckets of gravel balanced on various rocks pulled up during my other landscaping efforts. I was soaked, muddy, and on the verge of heat stroke. The middle of the yard was flooded, water still pouring from the hose as I shook gravel in the colander. At some point I’d retrieved several buckets from the basement to better carry… something. (I no longer remembered exactly what was happening as time passed.) The ice pick lay at my feet like a murder weapon. I suspect my expression was growing increasingly manic as I strove to maintain my enthusiasm for what was beginning to feel like a bit of a ridiculous effort.

To his credit, Larry almost completely masked his shock and concern. Instead, after the briefest of pauses, he asked “So, whatcha doin’?”

I tried to explain, at first with enthusiasm but quickly deteriorating into a rattled defense of my initial thinking and goals. By the time I heard myself explaining why the buckets were propped up on rocks, it was no longer making sense even in my own mind. Were this a court of law, I doubt any reasonable observer would have felt right about holding me legally accountable for my actions at that point.

Larry looked around at the mess a bit, then said something truly good and wonderful.

“The mulch out front looks good. Did you replace the bricks around the edge?”

It took me a moment to grasp the nature of his question given my immediate surroundings.

“Oh, um… yeah. Whatever that stuff was that was there before was getting pretty nasty.”

“Yeah, I never much cared for that plastic stuff myself. I think brick just looks classier. Should keep your mulch in better, too.”

We chatted for a few more moments about, I dunno… mulch and stuff, then he told me he’d figured he should come see how it was going since I’d been outside so long and he knew that wasn’t really my thing. He looked around once more, but never said a word about the state of my backyard or my clothing. I couldn’t detect even a trace of judgement on his face regarding the surrealist nightmare around him.

There’s no doubt in my mind that in that split second after he first rounded the corner, Larry chose grace. Once certain I was in no danger (other than to my own pride), he opted to grant me dignity. He didn’t excuse or try to rationalize my poor choices, but he did focus on the positive – reminding me in the process that some of my efforts had gone quite well. Not this part, back here, of course… but some of them.

I couldn’t quite hear from across the way, but when Larry reached his own porch I’m pretty sure Rose asked him what I was up to. I am certain he didn’t respond – just shook his head a bit and sat down in the rocker where he likes to watch the neighborhood do its thing.

My wife was less amused with the results of my “enthusiasm,” but that’s a story for another time. It does confirm, however, that whatever my other gifts, this was not a great day for me in terms of exercising good judgement or unlocking the magic of creative thinking. If we truly learn from failure, this was a major “learning” day.

I’m also certain there’s a lesson in that afternoon about how we react to students whose energies occasionally trump their abilities or their wisdom. It’s never the wrong time for dignity and grace, even when some degree of correction may be required. That’s what I set out to write about, in any case – what with this being an education blog and all.

But at the risk of being too cheesy, there was also something bigger in the moment – something which has so far eluded my efforts to capture in mere words. It involves being a good “neighbor” (and all that implies) and the power of simple acts done in grace and without fanfare or expectations.

Maybe one day, when I’m a better writer, I’ll be able to do it justice. For now, I need to run to Menard’s. I’m feeling good about fixing the driveway. How hard could it be?