Against Obligation: The Multiple Sources of Authority in a Liberal Democracy
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Do citizens of a nation such as the United States have a moral duty to obey the law? Do officials, when interpreting the Constitution, have an obligation to follow what that text meant when ratified? To follow precedent? To follow what the Supreme Court today says the Constitution means?
These are questions of political obligation (for citizens) and interpretive obligation (for anyone interpreting the Constitution, often officials). Abner Greene argues that such obligations do not exist. Although citizens should obey some laws entirely, and other laws in some instances, no one has put forth a successful argument that citizens should obey all laws all the time. Greene’s case is not only “against” obligation. It is also “for” an approach he calls “permeable sovereignty”: all of our norms are on equal footing with the state’s laws. Accordingly, the state should accommodate religious, philosophical, family, or tribal norms whenever possible.
Greene shows that questions of interpretive obligation share many qualities with those of political obligation. In rejecting the view that constitutional interpreters must follow either prior or higher sources of constitutional meaning, Greene confronts and turns aside arguments similar to those offered for a moral duty of citizens to obey the law.
all such claims determined to be bona fide? If so, should each have equal weight, or are there factors we can use to determine weight? Are there concerns about the ability to make case-by-case exemption decisions that should give us pause? First let’s look at the issue of bona fides, i.e., whether a claim for exemption is sincerely based in a religious or other comprehensive view. Kent Greenawalt argues that self-selection for exemptions is preferable to officials’ deciding who qualifies, adding
exemption is unlikely to put them in a superior position to others from an overall cost perspective. (This is putting aside the complex matter of what counts as a cost here.) Also, when we pass legislation that benefits large numbers of citizens, should we also insist on some reciprocal sacrifice from them? If one agrees with my arguments about political obligation (and perhaps also political legitimacy) and permeable sovereignty, we can see exemptions as correcting the social cost balance,
that the law constitutionally exempted hiring not only for religious positions, but also for secular nonprofit activities (in Amos, a building engineer in a Mormonrun gymnasium). It’s difficult to see how the exemption lifts a burden on religious practice, and therefore difficult to see how the law is properly deemed an accommodation of religion. The Court and Justice Brennan’s concurrence in the judgment focused on the difficulty in predicting and determining which religious institutional
I discuss the separation of powers aspect in Chapter 4. For now, note that Boerne did not include an Establishment Clause holding. And RFRA stands as applied to the federal government. The Court could uphold the federal applications of RFRA (or state versions of RFRA) by relying on the second Texas Monthly factor, permitting legislatures to alleviate legal burdens on religious practice by delegating to courts the duty to craft exemptions. (Undercutting this would be the alternative reading of
time of the drafting and ratification.”109 Finally, consider the efforts of Jack Balkin, a liberal constitutional theorist who has nonetheless advanced a brand of originalism. According to Balkin, “we do not look to history because we are bound by the original or intended purposes of either the framers or the ratifiers. We look to history because we want to know what standard or principle the text they produced enacts.”110 Says Balkin, “When we interpret a written Constitution, we work on the