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Friday, November 13, 2009

First Amendment Institutions as Part of the "Unique National Institution" Canon?

Anita S. Krisknakumar of St. John's has posted in interesting paper on SSRN called The Hidden Legacy of Holy Trinity Church: The Unique National Institution Canon.  Here is an excerpt from the abstract:

While Holy Trinity has been much-discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion, which declares that the "spirit" of a statute should trump its "letter" and relies on legislative history to help divine that spirit. In th[e] [neglected] second half, the Court tells a detailed narrative about the country's historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church-because the United States "is a Christian nation."  This Article maps the methodology of the Holy Trinity Court's "Christian nation" argument and contends that that methodology constitutes an interpretive canon in its own right -- one which perhaps aptly can be called the "unique national institution" canon. The Article goes on to demonstrate that this interpretative canon has reared its head in a number of statutory interpretation cases decided since Holy Trinity. In Flood v. Kuhn, for example, the Court, in determining whether the antitrust laws govern baseball's reserve system, paid lengthy tribute to the historical and national significance of baseball in a manner (methodologically) reminiscent of the Holy Trinity Court's Christian nation argument. 

This paper should be of interest to those of us who have written about so-called "First Amendment institutions," and conversely Krishnakumar might learn from that literature that the kind of phenomenon she is discussing may be more widespread than she supposes.  Her discussion cannot help but evoke, for First Amendment scholars and institutionalists, echoes of the Court's discussion of universities in Grutter v. Bollinger as occupying a special niche in the constitutional tradition, or its suggestion in the American Library Association case that public forum doctrine was out of place in the case, which instead called on it to reflect on the special nature and purpose of libraries.  It also evokes the ministerial exception doctrine in law and religion, which has always been difficult to locate in a particular portion of the Religion Clauses and which also has much to do with the statutory backdrop in which it occurs.  By discussing these kinds of phenomena specifically within the tradition of statutory interpretation, Krishnakumar may lead First Amendment institutionalists to think about institutionalism as an interpretive canon or strategy, one that has quasi-constitutional status but is not necessarily tied to particular constitutional provisions.

Conversely, Krishnakumar might take something from the institutionalist literature.  Although her intuitions about how and why this canon of statutory interpretation has developed is thoughtful, it might benefit from work that has already been done on First Amendment institutions.  The "unique national institution" canon might have much to do with the questions of epistemic and legal authority that sometimes compel courts to defer to other "institutions," broadly understood, a point I develop in my paper Three Faces of Deference.  And Krishnakumar might, in the First Amendment literature, both find further examples of the unique national institution canon and think about how this canon can function at the level of constitutional interpretation as well as statutory interpretation.  In short, there's much we can learn from each other.  I encourage folks who are interested in First Amendment institutions to read this valuable paper, just as I encourage Krishnakumar to explore the First Amendment institutions literature.

Posted by Paul Horwitz on November 13, 2009 at 08:46 AM in Paul Horwitz | Permalink


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Matthew, I appreciate the comment. I certainly don't want to overstate either her article or my suggestion that it might be useful to thinking about First Amendment institutions and vice versa. A couple of responses, though. First, the idea that in analysis of this nature the court is examining the history and traditions of an entity in order to exclude it from the sweep of a statue is actually very consistent, in my view, with what I mean when I talk about First Amendment institutions; in cases involving those institutions the courts in effect identify them as having a history and tradition that justifies carving out a substantial scope for institutional autonomy. Second, although I'm not sure either that Krishnakumar would describe what she's analyzing as deference, for me deference is not only something that courts accord to other courts, as in appellate standards of review, but also to administrative agencies, legislatures, and (arguably) First Amendment institutions.

Posted by: Paul Horwitz | Nov 14, 2009 7:44:58 PM

I don't know, Paul. I read Prof. Krishnakumar's article, and it seems a little too hedged to really say anything worthwhile. I mean, yes, the phenomenon she's describing seems to exist, but she constantly says that the cases don't turn on her analysis (in other words, baseball would be exempt from the Sherman Act even if it wasn't the national pastime). And more importantly for your point, she explicitly notes that this canon, if it is an important analytical tool, is a reversal of similar constitutional analysis. I don't have the article in front of me, but she says something like "in constitutional analysis, the court is examining the history and traditions of a claimed right to determine whether it is included in the rights protected by the Constitution; in statutory analysis of this nature, the court is examining the similar history and traditions of an entity to exclude it from the clear sweep of a statute."

I guess it's not an unfair characterization to describe what she's analyzing as "deference," although deference implies (to my mind) a judge whose judgment is being deferred TO. That seems to be missing in the "unique national institution" method.

Posted by: Matthew Reid Krell | Nov 14, 2009 12:36:42 PM

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