On May 3, the WSJ posted a short op-ed I wrote on the Trinity Lutheran Case. (Sorry, but the op-ed is behind a pay wall; however, here is a blog post that gives some background to the case and my first impressions.) Professor Michael Stokes Paulson, alleging I was “wrong on every count” with my opinions, took to NRO where he describes my op-ed as “bizarre” and says I lack basic knowledge of federal claims and federal jurisdiction. I especially liked his dig that his first semester law students have a better understanding of a plaintiff’s right to choose a forum than I do.
Rather than fire back with insults, I prefer to give the Professor the benefit of the doubt. The Journal imposed word-count of 550 and I confess it was difficult to make my points and adhere to this limit. So, I’ll just assume that this restriction and my choice of what to cut from the original piece, which was twice the length of the final version, led a fine scholar such as Paulson to miss the entire point of the op-ed.
At base, I wanted to tackle the issue of why acrimony reigns in our law and politics. Trinity Lutheran Church v. Comer, in my opinion, provided a microcosm of what ails us. In modern American politics, every issue is a national issue where the winners take all. We no longer have a functioning federal system where states can serve as laboratories of democracy. Health care, the regulation of “controlled substances,” and marriage are all examples of the one-size-fits-all system. Because of the demise of the federal system, opposing parties fight to the death and give no quarter to opponents.
Trinity Lutheran is but another example of this. Much of the chatter on the internet about this case looked at long-term national policy implications of the decision. In general, conservatives wanted the decision of the lower courts overturned in hopes this would further open the door for right-wing pet programs such as use of vouchers in religious schools. The Left, distrustful of the “opiate of the masses” and still believing that more money is the answer to the education crisis, wants to keep children in government schools and preserve a wall of separation between church and state. Many on the Left, in opposing the Gorsuch nomination, warned that he could be the deciding vote in the case.
I found it lamentable that no one had questioned why this was a federal case. Trinity Lutheran is a Missouri church challenging the state’s application of a state constitutional provision that prohibits tax dollars going directly to a religious institution. Moreover, the grant program is funded by in-state tire sales. Missouri is not establishing a church nor interfering with worship. Common sense tells us the First Amendment should not be implicated.
Similarly, I argued that the Fourteenth Amendment should be inapplicable. The Equal Protection Clause was meant to ensure that states treated whites and blacks the same regarding civil and legal rights. For years federal courts held that outside of a racial discrimination case, the Clause was the last resort of a losing constitutional argument.
Despite what Paulson alleges, I do recognize that there is federal question jurisdiction. Based on the evolution of Supreme Court precedent, no district court in the country would dismiss the church’s complaint as failing to state claim. Under Supreme Court case law there are First Amendment and Fourteenth Amendment claims. (I also know that Barron v. Baltimore  is no longer “good law” and that SCOTUS has incorporated, that is, applied the First Amendment to the states.)
My op-ed was an effort to get people to think outside of the Supreme Court’s constitutional exegesis and ponder the role of adjudication in a truly federal system. I wanted people to debate whether every issue should be a national issue requiring congressional action or a U.S. Supreme Court decision. In making my point here, I cited a 1823 letter in which Thomas Jefferson observed that “[t]he capital and leading object of the Constitution was to leave with the States all authorities which respected their citizens only, and to transfer to the United States those which respected citizens of foreign or other States.” Jefferson further noted that when a dispute arises between “a citizen and his own State, and under the law of his State,” this is “a domestic case” over which the federal courts lack jurisdiction.
I obviously failed, at least with Professor Paulson, in my task. In asking people to consider a Jeffersonian federalism, my thinking is called “bizarre” and my legal acumen is rated as less than a first-year law student. My arguments are met with a blog post citing multiple Supreme Court cases and black letter law on modern federal question jurisdiction. I don’t disagree with any of Paulson’s interpretations of those cases or statutes.
I just lament that Professor Paulson and I cannot have a discussion about first principles and what a true federal system (such as was promised to us by The Federalist Papers and by many other friends of the Constitution) would look like. Would a Missouri case—a domestic case as Jefferson called it—be a proper one for federal adjudication? I think it is a question worth debating. Paulson, on the other hand, seems much too comfortable with the current system and a legal culture that does not give a second thought to any argument that is not based on what five lawyers on the High Court have blessed as “constitutional law.”