Summum and the Establishment Clause

Bernadette Meyler[*]

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Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.  If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments?

Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem.  I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem.

Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument].  And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument].  You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause.  Isn’t that what’s—I mean, that’s okay with me.  I don’t see that as an illegitimate object.  I was a Van Orden dissenter . . . .[1]

I.  A Ghostly Dialogue

A specter haunts Pleasant Grove City v. Summum[2]—the specter of religion.  Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview.  The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding.  Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter.[3]

Property and Speech in Summum

Joseph Blocher[*]

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Introduction

City of Pleasant Grove v. Summum[1] is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment.[2]  Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause.[3]  This brief Article addresses yet another feature of Summum—what it draws from, and says about, the relationship between speech rights and property ownership.[4]  This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, which often involve speech that is less physical than the monuments at issue in Summum.[5]

Part I of this Article discusses the intersection of property rights and government speech in Summum.  Part II explores how that intersection illuminates three often-hidden characteristics of all speech: ownership, rivalry, and excludability.  Focusing on these concepts may help explain the property-like characteristics of speech (even when it takes forms less physical than the monuments in Summum), and whether property ownership is itself a communicative act.

Privatizing and Publicizing Speech

Nelson Tebbe[*]

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I.

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations?  Two cases this year call that question to mind.  They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city.[1]  The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the monument itself.[2]  The Justices therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument—The Seven Aphorisms of Summum—alongside the Ten Commandments.  Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment.  The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives.[3]  (Of course government endorsement of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated, as I will explain.[4])  You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Salazar v. Buono, which the Court will hear in the fall.  It concerns a white cross that has long stood in the Mojave National Preserve.[5]  After a lower court ruled that the cross was an unconstitutional establishment,[6] Congress intervened and conveyed the small parcel of land containing the cross to a private organization.[7]  Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message.  Yet Congress retained ties to the land, including a property interest and certain regulatory power.[8]  The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.[9]

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument.  In fact, another religious group—a Buddhist organization—initially sparked the controversy over the white cross when it wrote to the National Park Service and requested permission to display its monuments nearby.  Although the Buddhists never brought legal action, it is not totally inconceivable to imagine them arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms.  As things turned out, however, only one constitutional issue is before the Court—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

Keeping the Government's Religion Pure: Pleasant Grove City v. Summum

Christopher C. Lund[*]

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In January, the Supreme Court decided Pleasant Grove City v. Summum.[1]  Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park.  At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display.  But this was a Free Speech case, not an Establishment Clause case.  The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well.

Most people expected the plaintiffs to lose.  And they did, clearly and unanimously.  I publicly predicted that Summum would lose on the day the Supreme Court granted certiorari,[2] and suggested that it might be unanimous a few hours after oral argument.[3]  But I do not claim any special powers of foresight.  My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb.  They were asking for a sweeping change in the law, and it was no surprise that they did not get it.

This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case.  Summum, again, was decided on Free Speech grounds.  It was not an Establishment Clause case.  But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

Imperfect Oaths, the Primed President, and an Abundance of Constitutional Caution

Bruce Peabody[*]

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Introduction

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries.  The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .”[1]  During the recitation, Chief Justice John Roberts (who was administering the oath) prompted Obama with both an incorrect word and several improper word sequences.  At the end of their verbal exchange, Obama had uttered an inexact version of the presidential oath, including a pledge to execute “the office of President of the United States faithfully” rather than promising to “faithfully execute” that office.[2]

The errors in the oath-taking prompted immediate and widespread speculation and commentary: did problems with the administration and recitation of the presidential oath somehow render it invalid?  If so, had Obama failed to become President, perhaps leaving us with some other Chief Executive, or even no President at all?[3]

Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality

Bidish J. Sarma,[*] Robert J. Smith,[**] & G. Ben Cohen[***]

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Introduction

The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana[1] and Kansas v. Ventris.[2]  Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves.  Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment[3] prophylactic rule with the Sixth Amendment right to counsel.[4]  The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda[5] framework.[6]  This short essay explains why the Court should resist the temptation to do so.

Lost in Space: Laurence Tribe's Invisible Constitution

Eric J. Segall[*]

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For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution.  As early as 1798, Justices Chase and Iredell differed over whether Supreme Court Justices should employ natural law principles to decide the cases before them.[1]  Almost one hundred years later, James Bradley Thayer argued for greater judicial deference to political institutions by suggesting that judges should invalidate decisions by the elected branches only when those decisions were clearly inconsistent with unambiguous constitutional text.[2]  In the 1960’s, Alexander Bickel wrote of the “counter-majoritarian difficulty,”[3] spawning hundreds of law review articles written by the legal academy’s most esteemed scholars trying to justify decisions such as Brown v. Board of Education, Baker v. Carr, and Roe v. Wade[4] against the charge that the rights protected in those cases could not be gleaned through constitutional text and history.[5]  And in 1975, Thomas Grey wrote his seminal article Do We Have an Unwritten Constitution?,[6] which helped spark a volume of responses on this question from eminent scholars on both the left and the right.[7]  Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution.[8]  Given my inclination to agree with Professor Tribe’s politics, and in light of his substantial reputation as a teacher, scholar, and constitutional litigator, it would be wonderful to report that his new book adds to the considerable literature on this subject.  Unfortunately, The Invisible Constitution fails to advance the debate.

Keeping Tillman Adjournments in Their Place: A Rejoinder to Seth Barrett Tillman

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

Seth Barrett Tillman’s reply[1] warrants a rejoinder on two points.  First, I reject Tillman’s defense of his claim that the Senate can unilaterally terminate its half of a regular session of Congress.  Second, Tillman argues that the Senate can terminate a special Senate-only session called by the President, and claims that I disagree.  I did not and do not.

Keeping Recess Appointments in Their Place

Brian C. Kalt[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

The federal appointment process has degenerated in recent decades.  As the Senate has become more comfortable ignoring nominations instead of rejecting them, Presidents have become more comfortable pushing their recess-appointment powers to their fullest extent—and perhaps beyond.[1]  In his piece on the Recess Appointments Clause, Seth Barrett Tillman offers a clever way for the Senate to respond, which I will call the "Tillman adjournment."[2]  This response suggests some reasons why the Senate is unlikely to try a Tillman adjournment.  In brief, the tactic suffers from both constitutional problems and even deeper practical problems.

Terminating Presidential Recess Appointments: A Reply to Professor Brian C. Kalt

Seth Barrett Tillman[*]

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[Eds. Note: In light of the interest in our presidential transitions colloquy and the continuing debate over recess appointments, we would like to highlight a debate between Seth Barrett Tillman and Brian C. Kalt that occurred in the first volume of the Colloquy.]

In my opening article,[1] I took the position that although the Recess Appointments Clause[2] is traditionally imagined as merely a grant of authority to the President, it grants a coordinate power to the Senate.  If the Senate chooses to end its next session, the President's recess appointment has been terminated.

Professor Kalt acknowledges that the end of the Senate's session terminates a recess appointment, even if the recess is made only for an instant and only for the purpose of terminating recess appointees.[3]  Beyond that, he voices some thoughtful constitutional objections to my proposal.  Finally, he suggests that the proposed innovation, which he colorfully calls a "Tillman adjournment," is muddled by "practical problems" rendering it "pointless at best."[4]