Religion, the Public Square, and the Presidency

I. INTRODUCTION In addressing what advice on issues of religious liberty a practitioner in religious liberty field might give to new President, it almost seems rude to dwell on another branch of government. It would seem more appropriate that advice to Chief Executive on furthering religious liberty focus on executive branch, entailing questions such as those which faced Clinton Administration: whether military chaplains are free to preach about partial-birth abortion,(1) whether to retain a display about Native American worship in a national park visitor's center despite an Establishment Clause challenge,(2) or how to deal with suppression of student religious speech in public schools.(3) Another proper area of focus would be President's legislative opportunities, such as whether to support school vouchers and charitable choice as measures that enhance freedom and equality of religious people and institutions, or to adhere to view that they are threats to religious freedom. Try as I might to focus on these issues, one clause of Article II, Section 2 refuses to be ignored: [A]nd he shall nominate, and with Advice and Consent of Senate, shall appoint Ambassadors, public Ministers and Consuls, Judges of supreme Court, and all of United States, whose Appointments are not herein otherwise provided for, and which shall be established by law. Two powers within this clause-the power to appoint Justices of Supreme Court and power to appoint federal judges (hidden in catch-all other Officers language) -- have arguably become primary engine of federal government's policy on religious liberty issues. Things were not supposed to be so. The Framers certainly intended Constitution to be supreme law of land and legislative will subservient to it. As Hamilton wrote, [T]he constitution ought to be preferred to statute, intention of people to intention of their agents.(4) But Framers nevertheless conceived of judiciary as the least dangerous branch.(5) Madison observed in Federalist No. 68 that because of specificity with which judiciary's role is defined in Constitution projects of usurpation ... would immediately betray and defeat themselves(6) Hamilton was even more optimistic. He remarked in Federalist No. 81 that supposed danger of judiciary encroachments on legislative authority, which has been upon many occasions reiterated, is, in reality, a phantom. Particular misconstructions and contraventions of will of legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect order of political system.(7) Experience has not been kind to Madison and Hamilton's prognostications. As Abraham Lincoln observed in response to Dred Scott decision: [T]he candid citizen must confess that if policy of government, upon vital questions affecting whole people, is to be irrevocably fixed by decisions of Supreme Court ... people will have ceased to be their own rulers, having to that extent practically resigned their government into hands of that eminent tribunal.(8) Nor have Federalists' predictions held true in twentieth century, particularly on issue of religion in public life. Since incorporation of Establishment Clause in Everson v. Board of Education,(9) it has been federal courts that have largely determined national, state, and local policy on proper role of religion in public life. The issues of whether prayers(10) or moments of silence(11) are appropriate in school, what types of holiday decorations will be seen in towns each December,(12) and whether disadvantaged children attending parochial schools will receive same special educational services public school children receive(13) are but a sampling of areas in which Supreme Court has co-opted field. …