All Greek

On Monday, the Supreme Court of the United States delivered its judgment in the case of Town of Greece v. Galloway, finding constitutional the town’s practice of opening the monthly meetings of its board with a prayer read by a “chaplain of the month,” chosen from among the town’s religious congregations. I have blogged about this case here and here, because the issue it presented seems, at first glance anyway, very similar to that which the Supreme Court of Canada will have to decide in Mouvement Laïque Québécois v. City of Saguenay, which is also about a town opening its council meetings with a prayer. However, the decision of the Supreme Court of the U.S. is further proof of what I had already noted: the two cases are more different than they might seem, not only in their facts but also in the relevant precedents and legal traditions, so that there relatively few lessons to be drawn from one to the other.

Briefly, there are two main components two Justice Kennedy’s majority opinion in Town of Greece. One is an originalist or, perhaps more accurately, historicist argument to the effect that, because legislative prayer has always been a feature of American life, since the very first Congress, the same one which adopted the constitutional protections of religious freedom, paid a chaplain to open its sessions with prayer, these constitutional protections cannot be read to render such prayer impermissible. Indeed,

it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. (8)

The second component of Justice Kennedy’s opinion is his insistence that “non-establishment” of religion requires not the removal of religion, whether sectarian or generic, from the public sphere, but something like non-discriminatory access for different religious sects. Legislative prayers need not be generic; they can be as sectarian as the chaplains delivering them wish them to be, at least so long as they do systematically exclude or demean people of other faiths. Indeed, it would be impermissible for government (whether the Town’s authorities or a court) to police a chaplain’s words in order to expunge from them impermissible sectarianism. Short of systematic disparagement and exclusion, it is enough that the authorities inviting chaplains not unduly favour those of one religious group.

Justice Kagan’s dissent disputes not the majority’s general arguments, but its view of the practice in the case at bar. She too thinks that history justifies and validates legislative prayer. She too thinks that prayer need not be cleansed of sectarian elements. Unlike Justice Kennedy, she thinks that the Town’s almost unvarying choice of Christian chaplains amounted to an alignment of the Town with one religion, breaching the principle not so much of separation between church and state as of equality. With more diversity, including efforts to reach out to minority religious groups, the prayer would have been fine.

None of this will be very helpful to the Supreme Court of Canada when it considers the,  prayer in Saguenay. At the level of facts, Saguenay’s prayer practice is almost the opposite of that approved in Town of Greece. The text of Saguenay’s prayer is a purportedly ecumenical one, mandated by a municipal by-law, and it is read by the mayor himself. Despite a superficial inclusiveness (more apparent than real, since it excludes non-believers as well the adherents of non-monotheistic religions), it arguably entangles the municipality with religion to a greater extent than the invocations read by invited chaplains. As for reasoning, the American historicist approach is unlikely to be of much assistance to the Supreme Court of Canada, which has consistently rejected it in Charter cases.

The Supreme Court of Canada will thus need to craft its own approach to the issue of prayer before a municipal council. Although it is always best to try to learn from what our neighbours do, it is not always possible. In this case, the American approach cannot provide much, if any, useful guidance. It is, really, all Greek to us.

Searching Freedom

I have already blogged (here and here) about the debate on whether the output of search engines such as Google should be protected by constitutional guarantees of freedom of expression, summarizing arguments by Eugene Volokh and Josh Blakcman. These arguments are no longer merely the stuff of academic debate. As both prof. Volokh and prof. Blackman report, the U.S. District Court for the South District of New York has yesterday endorsed the position (which prof. Volokh and others defend) that search results are indeed entitled to First Amendment protection, in Zhang v. Baidu. Although I do not normally comment on American judicial decisions, this one is worth looking at, because it both gives us an idea of the issues that are likely to arise in Canada sooner rather than later, and can serve as a reminder that these issues will have to be approached somewhat differently from the way they are in the United States.

Zhang was a suit by a group of pro-democracy activists who were claiming that Baidu, a Chinese search engine, is acting illegally in excluding from the search results it displays in the United States results that have to do with the Chinese democracy movement and a number of topics such as the Tiananmen Square protests, including articles the plaintiffs themselves had written. The plaintiffs alleged that, in doing so, Baidu engages in censorship at the behest of the Chinese government. Legally, they claimed that Baidu conspired to violate and violated their civil rights under federal and state law.

Baidu moved to dismiss, arguing that the constitutional protection of freedom of speech applied to its search results, preventing the imposition of liability. Relying on jurisprudence protecting a speaker’s right to choose the contents of his message, and in particular not to convey a message it did not want to convey (whether a newspaper’s right not to print a reply from a candidate for public office whom it criticized or a parade organizers’ right not to allow the participation of a group they disagreed with), the Court agreed:

In light of those principles, there is a strong argument to be made that the First Amendment fully immunizes search-engine results from most, if not all, kinds of civil liability and government regulation. … The central purpose of a search engine is to retrieve relevant information from the vast universe of data on the Internet and to organize it in a way that would be most helpful to the searcher. In doing so, search engines inevitably make editorial judgments about what information (or kinds of information) to include in the results and how and where to display that information (for example, on the first page of the search results or later). (7)

The search engines’ “editorial judgments” are constitutionally protected, in the same way as the editorial judgments of newspapers, guidebook authors, or any other speakers who choose what message or information to convey.

Nor does the fact that search-engine results may be produced algorithmically matter for the analysis. After all, the algorithms themselves were written by human beings, (8)

says the Court, endorsing prof. Volokh’s (and others’) view of the matter.

The Court makes a couple of other points that are worth highlighting. One is that

search engine operators (at least in the United States and given today’s technology) lack the physical power to silence anyone’s voices, no matter what their alleged market shares may be, (12)

and that an internet user who fails to find relevant information with one search engine can easily to turn to another one. (The matter, really, seems to be not so much “physical power” as monopoly.) Another is that the ads displayed by a search engine might be entitled to less protection than the actual search results, at least insofar as “commercial speech” is less protected than others sorts. Last but not least, the Court finds

no irony in holding that Baidu’s alleged decision to disfavor speech concerning democracy is itself protected by the democratic ideal of free speech. … [T]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy (in China or elsewhere) just as surely as it protects Plaintiffs’ rights to advocate for democracy.

I find this largely persuasive. Still, we might want to ask some questions. For instance, the point about search engines not being monopolists, and users having alternative means of finding information is only true so long as the users know what it is they are looking for. If one doesn’t know that, say, there are other views about democracy in China than whatever the Communist Party line happens to be, one will not think that something is missing from Baidu’s search results, and one will not try using its competitors to find it. But, of course, the same could be said about partisan media, or other biased sources of information. For all the problems that these create, we still think that the problems that regulating them would cause would be even worse. Perhaps there is something special about the internet that makes this calculation inapplicable ― but, if so, the onus is on those who think so to prove it.

Quite apart from the constitutional issues, there is also the question ― which the Court does not address ― of whether the plaintiffs’ claims could have succeeded anyway. At first sight ― and admittedly I know little about American civil rights legislation ― they do not seem especially plausible. As I pointed out in a previous post on this topic, it is by no means clear that there is, whether under anti-discrimination law or otherwise, “some kind of baseline right to have Google [or another search engine] take notice of you”.

This brings me to the point I wanted to make about the differences between American and Canadian law in this context. As the Supreme Court of Canada held in RWDSU v. Dolphin Delivery, [1986] 2 S.C.R. 573, the Charter does not apply to purely private disputes resolved under common law rules (although its “values” are to be taken into account in the development of the common law). This is in contrast to the situation in the United States, where courts consider themselves bound by the First Amendment even when resolving disputes between private parties. If a case such as Zhang arose in Canada, and the plaintiffs formulated their claims in tort (rather than as violations of, say, the Canadian Human Rights Act), the defendant search engine would not have been able to invoke the Charter‘s guarantee of freedom of expression. This doesn’t mean that the outcome would, or should, be different ― but the route by which it could be reached would have to be.

Is It in the Constitution?

How much does an entrenched constitutional text have to do with, you know, the actual constitution? I have argued (here and here for example) that a text is, at best, a partial and incomplete statement if what a constitution really is. It is quite possible to have a constitution without an entrenched text. But even if a polity does in fact have an entrenched constitutional text, much of its constitution will be found elsewhere ― in ordinary legislation, in constitutional conventions, in judicial decisions. A recent debate (in the U.S. context of course) between Eric Posner and Will Baude provides further support for my claim.

Prof. Posner argues that

the [U.S.] constitution in practice is just what the various branches of government agree are the rules of the game at any given time. In their hands, the founding-era document is little more than a rhetorical flourish, used strategically.

Now this, I suspect, is an exaggeration. If nothing else, the constitutional text is surely relevant to what “the various branches of government agree” on. And it would be difficult for them to agree on something that flatly contradicts the text, at least when it is clear enough.

But for my purposes, it is prof. Baude’s reply that is most interesting. Prof. Baude

see[s] our government strictly following the founding-era document a huge amount of the time, even when its answers are a little wacky. (How do we know that those 500-some folks who keep telling us what to do are “Congress”? How many Representatives and Senators are there, and how many votes do they get? When do we hold elections? How is the President selected? How do we know that federal law trumps state law? Etc.)

The remarkable thing about prof. Baude’s list of examples demonstrating the continued relevance of the “founding-era document” is that most of them are not actually in that document. That the “folks who keep telling us what to do are ‘Congress'” is indeed the indubitable consequence of Art. I, s. 1 of the U.S. Constitution, which provides that “All legislative powers herein granted shall be vested in a Congress of the United States.” The constitutional text also specifies that “[t]he Senate of the United States shall be composed of two Senators from each state” (Art. I., s. 3, § 1) and that “each Senator shall have one vote” (a clause that appears both in the original text of Art. I., s. 3, § 1 and in the 17th Amendment). But then, things get complicated.

The founding-era document does not say, for instance “how many Representatives … there are,” nor “how many votes they get.” All that it says is that “[t]he number of Representatives shall not exceed one for every thirty thousand, but each state shall have at least one Representative” (Art. I, s. 2, § 3). It also specifies the initial distribution of representatives between the states ― but the current number of representatives is fixed by ordinary legislation. And nothing in the founding-era document speaks to how many votes each representative has. The one-man-one-vote principle seems to be simply assumed. 

Similarly, the U.S. Constitution does not have much to say on the subject of election dates. With respect to congressional elections, it provides that

[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

As for presidential elections, the constitutional text provides that

[t]he Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

Election dates, as well the number of representatives, are regulated by ordinary law.

The founding-era document provides much more detail about the manner in which “the President is selected.” Yet reading it will not make one understand the crucial fact about presidential elections in the United States ― that these are popular, democratic elections in effect if not in form. The U.S. Constitution provides that “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors,” (Art. II, s. 1, § 2), who then vote for the President and Vice-President. It is a constitutional convention, not the text, that requires states to hold presidential elections at which all citizens can vote, and to make “electors,” originally expected to be the people choosing the President, mere mouthpieces of the voters.

Finally, while the constitutional text does provide that

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding (art. VI, § 2)

exactly what it means for federal law to be “supreme” over state law is not so clear. Federal law trumps state in the event of a conflict ― but when is there a conflict? Is there, for instance, a conflict between a permissive federal and a restrictive state law? This is not an obvious question, and the answer to it must be found in judicial decisions rather than the constitutional text.

In his response to prof. Baude, prof. Posner insists that

[T]he modern system of governance in this country is vastly different from what existed in the eighteenth and nineteenth centuries. If it is consistent with the text, that can only be because the text is so vague and full of holes, undefined terms, and so on.

That is not entirely so. The text is specific on some points at least. But, like any constitutional text, it must be supplement by legislation, conventions, and judicial decisions in order to make for a viable system of government. What is in a constitutional text matters. So does what isn’t.

Living Next to You

Despite living so close, and despite our constitution (not only the main documents, but also the Supreme Court’s constitutional jurisprudence) being substantially influenced (including a negative influence ― attempts not to repeat perceived mistakes) by the American experience, Canadians tend not to know, or not to understand, American constitutional law and theory as well as we sometimes think. Two of the most puzzling, misunderstood, and caricatured elements of that law and theory are originalism and the constitutionally protected right to bear arms. In Canadian legal discourse, both tend to be peremptorily dismissed not only as utterly alien to our constitutional tradition, but also as dangerous, and ― sotto voce anyway ― rather stupid.

Yet peremptory dismissals of ideas, especially ideas in which many intelligent people actually believe, are usually unwise. We don’t need to agree with them, but if we disagree, we should at least try to ensure that our disagreement is somewhat informed. So, if you have a few of hours to spend on learning more about these strange American ideas, here are a couple of links:

About the right to bear arms, an Intelligence Squared debate involving professors Sandy Levinson and Alan Dershowitz (arguing that it has outlived its usefulness), and David Kopel and Eugene Volokh (arguing that it has not).

And about originalism, a discussion between professors Randy Barnett, Mitchell Berman, John McGinnis, and Richard Primus.



This Will Be Good

I wrote last summer about the issue whether a federal legislature could enact a statute in order to implement a treaty despite the fact that, absent the treaty, the statute would be ultra vires (because provincial or state, rather than the federal legislatures have jurisdiction over its subject matter. If so, I said, this would give states the ability to act “like a child who, denied by one parent, asks the other to let them stay up late,” with other states playing the role of the lenient parent. I think that, in public policy (as, I suppose, in parenting) this is a bad idea. And, in Canada, the constitution has been interpreted as preventing such schemes, in the Labour Conventions Reference

The leading case on this issue in the United States is Missouri v. Holland, 252 U.S. 416 (1920), I always thought that it stood for the contrary proposition, that Congress can legislate to implement a treaty regardless of whether its subject-matter is within its enumerated powers. But now people better-informed and wiser than I, namely Nick Rosenkranz and NYU’s own Rick Pildes, will take up the question of whether this is right over at the Volokh Conspiracy, in anticipation of, maybe, the US Supreme Court eventually hearing a case where it arises. (Their first stab at it is here.)

It should be very interesting, and too much for any effective summary here, so I thought I’d alert however many (or, more likely, few) readers I have.