Not Childâ•Žs Play: A Constitutional Game of Pass the Story in Dobbs, Shurtleff, and Kennedy

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Not Child’s Play: A Constitutional Game of Pass the Story in Not Child’s Play: A Constitutional Game of Pass the Story in

DobbsDobbs

, ,

ShurtleffShurtleff

, and , and

Kennedy Kennedy

John V. Orth

University of North Carolina School of Law

, [email protected]

Paul T. Babie

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Not Child’s Play: A Constitutional Game

of Pass the Story in Dobbs, Shurtleff, and

Kennedy

John V. Orth

and Paul T. Babie

ABSTRACT

This Article suggests that in the effort to find fixed standards for

rights, working with vague, indeterminate, silent text, the Supreme

Court engages in a constitutional game of pass the story. No one

outcome concludes the story; it merely adds another chapter, to which

the next set of judges will add their own installment. The quest for

standards never ends. The Court’s decisions in Dobbs v. Jackson

Women’s Health Organization, Shurtleff v. City of Boston, and

Kennedy v. Bremerton School District are merely the latest

installments in stories that began with the founding. And as with any

such story, what happens next cannot be predicted at the outset. This

ongoing quest, though, comes with a cost: certainty. Adding to a story

might be a good literary device to keep a listener or reader interested,

but it is of little use in a system that at least pays lip service to stare

decisis and the rule of law.

Table of Contents

I.INTRODUCTION ........................................................................................ 51

II.PASSING “UNENUMERATED RIGHTS” FROM ROE TO DOBBS ................... 55

A. Blackstone’s Commentaries ........................................................ 57

B. The Court’s Use of the Commentaries ........................................ 58

1. Right to Life ......................................................................... 58

2. Homicide .............................................................................. 60

C. Blackstone on Law and the Constitution ..................................... 63

1. Law ....................................................................................... 63

2. Constitution .......................................................................... 64

III.PASSING “ENTANGLEMENT” FROM LEMON TO SHURTLEFF AND

KENNEDY ..................................................................................... 65

A. Grand Unified Theory Invites Chaos and Produces Needless

Litigation ..................................................................................... 66

1. Citizens as Reasonable Observers ........................................ 68

2. Judges Applying the Standard .............................................. 69

B. Exchanging Policy for Original Meaning as Found in History and

Tradition ...................................................................................... 73

*William Rand Kenan Jr. Professor of Law Emeritus, UNC School of Law, The

University of North Carolina at Chapel Hill.

**Bonython Chair in Law and Professor of Law, Adelaide Law School, The

University of Adelaide.

2022 NOT CHILD’S PLAY

IV.CONCLUSION ......................................................................................... 76

I. INTRODUCTION

Written constitutions contain vague language impervious to ease

or simplicity of change.

These twin, yet unremarkable, facts carry

with them the necessity for someone or some entity to interpret what

the vague language means when disagreements arise and changing the

formal text itself proves difficult (which it always does).

Many actors

must wrestle with difficult text containing “these great silences of the

Constitution”:

lawyers, policymakers, legislators, in a word, citizens.

Each, using their own idiosyncratic “image of the [C]onstitution,”

must choose a particular course of action, knowing that they have little

guidance from the words of the Constitution itself.

Almost always, the efforts of the many actors who must choose a

constitutional meaning make their way to the courts, to judges, who

assume the final, ultimate responsibility to validate those choices, to

give meaning to the vague, silent words.

And what the judges must

do is search for, as much as can be possible given the indeterminacy

of the primary text given them, a “fixed standard”

for use in applying

its vague words to actual disputes between a government and its

citizens. Faced with vague and indeterminate text, judges must

“struggle for standards.”

What can judges do? “Constitutional analysis must begin with the

language of the instrument, . . . which offers a ‘fixed standard’ for

ascertaining what [the] founding document means.”

This takes on

. See Stephen L. Carter, Constitutional Adjudication and the Indeterminate

Text: A Preliminary Defense of an Imperfect Muddle, 94 YALE L.J. 821, 821 (1985).

. See John V. Orth, John Gava, Arvind P. Bhanu & Paul T. Babie, No

Amendment? No Problem: Judges, “Informal Amendment,” and the Evolution of

Constitutional Meaning in the Federal Democracies of Australia, Canada, India, and

the United States, 48 PEPP. L. REV. 341, 344–45 (2021).

. H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 535 (1949); see LAURENCE

H. TRIBE, CONSTITUTIONAL CHOICES 29–44 (1985).

. See generally BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 1: FOUNDATIONS

(1993); BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 2: TRANSFORMATIONS (2000);

BRUCE ACKERMAN, WE THE PEOPLE, VOLUME 3: THE CIVIL RIGHTS REVOLUTION

(2018).

. See generally WILLIAM E. CONKLIN, IMAGES OF A CONSTITUTION (1989).

. See generally REXFORD G. TUGWELL, THE EMERGING CONSTITUTION (1974).

. Calder v. Bull, 3 U.S. (3 Dall.) 386, 399 (1798) (Iredell, J., concurring).

. LESLIE ZINES, THE HIGH COURT AND THE CONSTITUTION 1 (1997); J. Bruce

McDonald, The Struggle for Standards, U.S. DEP’T OF JUST. (Apr. 1, 2004),

https://bit.ly/3z5H5Lx.

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2244–45 (2022)

(citations and internal quotation marks omitted); see 3 JOSEPH STORY, COMMENTARIES

ON THE CONSTITUTION OF THE UNITED STATES § 399 (1833) (“Let us, then, endeavour

to ascertain, what are the true rules of interpretation applicable to the [C]onstitution;

so that we may have some fixed standard, by which to measure its powers, and limit

its prohibitions, and guard its obligations, and enforce its securities of our rights and

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

even greater importance when rights are involved. As Justice James

Iredell argued, “[t]he ideas of natural justice are regulated by no fixed

standard: the ablest and the purest men have differed upon the

subject”;

only the text, Iredell insisted, provided the necessary “fixed

standard.”

With a text, judges can “identify the contents of . . .

constitutional commitments, and the fact that the Constitution and its

amendments become authoritative through a formal process enables

[judges] to put the text in historical context.”

Unlike an unwritten

constitution, the text of a written constitution makes clear that when

the text is silent on a matter, any meaning which might be ascribed to

it only becomes so when the judges say the rights are there.

What seems less well-understood by many, though, is that any one

interpretation of vague constitutional language fails ever to complete

the “story” of that constitution, which begins with its promulgation.

The doctrine of precedent is another way of describing this storytelling

process. And added to that is the doctrine of stare decisis, that a

precedent, once set, should not be undone. But is that really true? The

story, of course, does not end with the writing of the text; it does not

end with the many actors that have a role in its interpretation over time,

each of whom adds their own parts to that story, sentence by sentence,

paragraph by paragraph, chapter by chapter, until that process of

interpretation itself becomes a part of the ongoing story. Adding to the

story means that any interpretation, at any moment in the history (the

story) of a constitution, simply represents the meaning of a particular

clause or term for the time being. The story never ends. Any future

court, or group of judges on that court, can, and frequently does,

change the story which a previous generation thought settled. It is a

continuing process by which the Constitution continues to emerge over

time.

We can see this process of adding to the story another way. It is an

elaborate, and never-ending, form of the child’s game of pass the story,

or build the story—an interactive storytelling game where one person

begins a story and “passes” it to the next person to add a part, and so

on. Assuming the children playing kept their interest in it, the game

could theoretically go on forever. And that is precisely what happens

with a written constitution. The various actors and judges never lose

their interest, and so continue to add their parts to the story before

passing it on to the next generation.

liberties.”).

. Calder, 3 U.S. (3 Dall.) at 399 (Iredell, J., concurring).

. A modern biographer attributes Justice Iredell’s rejection of “natural-law

theory” to his “passion for certainty.” See WILLIS P. WICHARD, JUSTICE JAMES IREDELL

131–35 (2000).

. Amy Coney Barrett, Showcase Panel II: Why, or Why Not, Be an

Originalist?, FED. SOC’Y (Nov. 14, 2019), https://bit.ly/3ePdYp.

. See AKHIL REED AMAR, THE WORDS THAT MADE US: AMERICA’S

CONSTITUTIONAL CONVERSATION, 1760-1840, at ix–xiv (2021).

. See generally TUGWELL, supra note 6.

2022 NOT CHILD’S PLAY

At the end of the 2021 Term, two long-standing precedents

became the latest chapters in the story that the Supreme Court began a

half-century ago: the first, Roe v. Wade,

established a constitutional,

albeit unenumerated, right to an abortion; while the second, Lemon v.

Kurtzman,

established a test used in assessing purported violations

of the First Amendment Establishment Clause. One could view their

fate many ways. Overdue correction. Sage reassessment of both the

text in which the rights are found and the principles underlying the

earlier decisions interpreting it. Unduly harsh critique of judicial

predecessors. Egregious violation of long-standing rights. There is no

doubt that the movement from Roe to Dobbs v. Jackson Women’s

Health Organization,

and from Lemon to Shurtleff v. City of Boston

and Kennedy v. Bremerton School District,

shows the Court engaged

in the struggle for standards. While one’s view of the Court’s rejection

of what was thought to be settled precedent depends largely on

political commitment, Justice Thomas’ view that the outcome in

Dobbs means that “in future cases, [the Court] should reconsider all of

[its] substantive due process precedents”

is gravely concerning,

particularly when the earlier precedents that he identifies establish

important protections for many citizens.

Yet we prefer to see the

Court’s treatment of Roe in Dobbs, and of Lemon in Shurtleff and

Kennedy,

as part of an ongoing story, as the latest installments or

chapters in a game of constitutional pass the story. We might not feel

good about these recent outcomes; we might hold grave concerns for

the rights which have been lost, and which might be lost in the future

should further precedents be rejected. But we find ourselves unable to

deny the reality of what has happened: this is part of an ongoing

process of constitutional pass the story. It is equally possible that the

next chapters will be ones that restore rights lost in previous stages,

and which add new ones, too.

Of course, by likening these outcomes to a game of pass the story,

we in no way seek to make light of the importance of the Court’s work

and the serious implications of that work for all Americans. But in

seeing what the Court did as part of a long process, one extending into

the past before any of us were here and into the future after those of us

here now are gone, we can see that drawing the conclusion about this

. Roe v. Wade, 410 U.S. 113 (1973).

. Lemon v. Kurtzman, 403 U.S. 602 (1971).

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

. Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

. Dobbs, 142 S. Ct. at 2301 (Thomas, J., concurring).

. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (right of

married couples to contraception); Obergefell v. Hodges, 576 U.S. 644, 681 (2015)

(right to same-sex marriage).

. A third case in the 2021 Term, Carson v. Makin, 142 S. Ct. 1987 (2022),

dealt directly with religion, but because it did not address Lemon, we do not consider

it here.

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

being a constitutional game of pass the story has equally important

implications both for those who perceive themselves to be the “losers”

in what transpired, and for those who consider themselves to have

“won.” Neither group is right. The winners have won, but only for

now; the losers have lost, but only for now. For the Court’s current

interpretations are nothing more than that: the latest additions to the

story begun in the Philadelphia summer of 1787, which we see playing

out before us today, and which will go on long after we are gone. The

Court’s pronouncements on reproductive rights and religion are not the

final outcome; they are merely the latest chapters of the story, which

will go on, passed on to the next group of actors and judges playing

this constitutional game of pass the story.

This Article contains our somewhat eclectic reflections on the

Court’s latest additions to the ongoing story, the struggle for standards,

in reproductive rights and Establishment Clause cases. We aim not for

comprehensiveness, but to highlight the way in which the Court

rejected an earlier set of standards for what is claimed to be a more

faithful reading of the vague, indeterminate, silent text. What we hope

to demonstrate, though, is that this is not the end of the story, but part

of the ongoing struggle for standards, the attempt to find a fixed

standard. And that quest goes on. Dobbs, Shurtleff, and Kennedy are

merely the latest installments in this serial. We also want to suggest,

though, that while playing pass the story with constitutional precedent

may be inevitable—continuing the story—it comes at a cost: the

flexibility of endlessly morphing meaning is a loss of predictability.

As with any conversation, or a story that develops over time, what

happens next cannot be predicted from the outset. While that might be

a good literary device to keep a listener or reader interested in a story,

it is of little use in a system that at least pays lip service to the rule of

law.

The Article contains three parts. First, we consider the Court’s

treatment of unenumerated rights in Dobbs’ rejection of Roe. Our

focus is the use of Sir William Blackstone’s Commentaries on the

Laws of England in the Court’s opinion. We pick up on Blackstone’s

distinction between written and unwritten constitutions and go on to

consider Justice Alito’s use of the key Blackstone quotation on this

point. Second, we consider the rejection of the Lemon test, and

especially the entanglement standard, in Shurtleff and Kennedy. We

suggest that the grounds for the Court’s rejection of this long-standing

precedent, and its replacement with a “history and tradition” test, may

not be as obvious as the Court would have us believe. The third part

concludes.

. See The Supreme Court Has Weakened Legal Predictability in America, FIN.

TIMES (July 12, 2022), https://on.ft.com/3SlLSz9.

2022 NOT CHILD’S PLAY

II. PASSING “UNENUMERATED RIGHTS” FROM ROE TO DOBBS

Before the Revolution, American colonists looked to their royal

charters for the arrangement of offices and the distribution of power.

For their civil rights, they looked to the common law as developed by

judges. After the Revolution and the adoption of written constitutions

with embedded bills of rights, Americans continued to look to judges

for the protection of their civil rights, many of which were now

codified (“enumerated”) in the Constitution. Other rights, not

expressly mentioned in the Constitution (“unenumerated”), were

identified over the years by judges in their decisions in individual

cases.

How to recognize such rights while maintaining faith to the

constitutional text, ever receding into the past, has been the subject of

intense debate.

In Dobbs, the Court determined to locate a fixed standard for

identifying unenumerated rights: it would recognize only those that

were “deeply rooted in this Nation’s history and tradition.”

As to any

right claimed to be implicit in the Fourteenth Amendment, “the most

important historical fact” was how it was regarded “when the

Fourteenth Amendment was adopted.”

To recover that history, the

Court examined the state of the law on abortion as established by

“eminent common-law authorities” like Bracton, Coke, Hale, and

Blackstone.

To Henry de Bracton, a thirteenth-century English judge,

is ascribed the earliest general survey of English law, De Legibus et

Consuetudinibus Angliae (“On the Laws and Customs of England”).

Sir Edward Coke, one of the most important figures in English legal

history, was a seventeenth-century judge, author, and political leader

against Stuart absolutism. The four volumes of his Institutes of the

Laws of England were devoted to property law,

statutes, criminal law

(pleas of the Crown), and the jurisdiction of the courts. Sir Mathew

Hale, an important seventeenth-century judge, authored an early work

. See John V. Orth, The Enumeration of Rights: ‘Let Me Count the Ways,’ 9

U. PA. J. CONST. L. 281, 288–89 (2006).

. Dobbs, 142 S. Ct. at 2242 (quoting Washington v. Glucksberg, 521 U.S. 702,

721 (1997)). In addition to the requirement of being “deeply rooted in this Nation’s

history and tradition,” there is an added requirement of being “implicit in the concept

of ordered liberty,” id. (quoting Glucksberg, 521 U.S. at 721), but the latter

requirement was not discussed in Dobbs.

. Id. at 2267.

. See id. at 2249; see also id. at 2254 (referring to “great common-law

authorities like Bracton, Coke, Hale, and Blackstone”). Because English common law

formed the basis of American law, the Court in Dobbs relied on English judges and

scholars for “this Nation’s history and tradition.”

. Bracton’s authorship of De Legibus has been questioned. See S.E. Thorne,

Translator’s Introduction to 3 HENRY DE BRACTON, ON THE LAWS AND CUSTOMS OF

ENGLAND, at xxx–lii (S.E. Thorne trans., 1977).

. Volume one of the Institutes is Cokes’ COMMENTARY ON SIR THOMAS

LYTTLETON’S FIFTEENTH-CENTURY TREATISE ON TENURES, a short summary of

English land law, written in Law French, a legacy of the Norman Conquest. Coke’s

English translation and extensive annotations made COKE ON LITTLETON the

foundational book of English property law.

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

of legal history, The History of the Pleas of the Crown, which

influenced Blackstone. Sir William Blackstone was successively a

pioneering law teacher, member of Parliament, and judge, but his

enduring fame rests on his four-volume Commentaries on the Laws of

England, the single most important book in the history of the common

law.

This Part focuses on the Supreme Court’s reliance in Dobbs on

Blackstone’s Commentaries for information on the “history and

tradition” of abortion. Blackstone is singled out not only because he

conveniently summarizes the views of Bracton, Coke, and Hale, but

also because the Court has previously accepted his Commentaries as

“the preeminent authority on English law for the founding

generation.”

After a close study of the Court’s use of quotations from

the Commentaries, this Article argues that Blackstone’s account is

more nuanced than appears from the opinion of the Court, but

essentially supports the Court’s conclusion that the framers and

ratifiers of the Fourteenth Amendment could hardly have

contemplated a constitutional right to an abortion.

After the textual

analysis, Blackstone’s general views on law and historical

development are contrasted with the constitutionalism that developed

in America after the Revolution.

We conclude with the observation that the disagreement between

the majority and the dissenting Justices in Dobbs was not about the

historical record at all. The dissenters conceded that “[i]n 1868, there

was no nationwide right to end a pregnancy, and no thought that the

Fourteenth Amendment provided one.”

On that, all nine Justices

agreed. Instead, the disagreement between the majority and the

dissenters was about the proper way to identify constitutional rights

not expressly mentioned in the text. While the majority would limit

unenumerated rights to those supported by history and tradition at the

date of the adoption of the Constitution and its amendments, the

dissenters would recognize additional rights that the Court developed

over time by the application of the traditional common law method:

reasoning from “successive judicial precedents—each looking to the

last and each seeking to apply the Constitution’s most fundamental

commitments to new conditions.”

. See John V. Orth, Blackstone, in THE OXFORD HANDBOOK OF LEGAL HISTORY

359 (Marcus D. Dubber & Christopher Tomlins eds., 2018).

. Alden v. Maine, 527 U.S. 706, 715 (1999); see also District of Columbia v.

Heller, 554 U.S. 570, 593–94 (2008) (quoting Alden, 527 U.S. at 715).

. Bracton, Coke, Hale, and Blackstone are most relevant for the historical

context of the Bill of Rights, but the incorporation of the Bill of Rights in the Due

Process Clause of the Fourteenth Amendment connects the two provisions, and there

is no evidence of a significant change in the legal position on abortion between 1791

and 1868.

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2323 (2022)

(Breyer, J., dissenting).

. Id. at 2326.

2022 NOT CHILD’S PLAY

A. Blackstone’s Commentaries

Sir William Blackstone’s Commentaries on the Laws of England,

the product of lectures delivered to Oxford undergraduates beginning

in 1753, were published in four volumes between 1765 and 1769.

Blackstone’s plan for his book was simple, by modern standards

simplistic. In words at least as old as Cicero, he defined law as “a rule

of civil conduct prescribed by the supreme power in a state,

commanding what is right and prohibiting what is wrong.”

Around

this distinction between right and wrong, the four volumes of the

Commentaries are arranged: the first two devoted to rights, the final

two to wrongs. Volume one, on the “rights of persons,” contains what

to modern readers appears an ill-assorted collection of topics.

Constitutional law in the broadest sense is discussed under the

headings of the rights of king, lords, and commons. Private rights

based on personal relationships—husband and wife, parent and child,

guardian and ward, master and servant—cover disparate topics today

known as domestic relations, fiduciary obligations, and employment

law. The second volume, on the “rights of things,” is misnamed—

things have no rights—but treats of the rights of persons with respect

to things, principally land; that is, it is devoted to what is now known

as property law. The last two volumes of the Commentaries are

concerned with wrongs and their remedies: volume three, on “private

wrongs,” that is, torts and civil procedure; volume four, on “public

wrongs,” that is, crimes and criminal procedure.

Blackstone was an indefatigable editor, constantly revising his text

for greater clarity and accuracy. The Commentaries evolved over eight

editions published during his lifetime;

at the time of his death in

1780, he was still at work. A posthumous edition, the ninth, advertised

as including Blackstone’s final corrections, was published in 1783

with marginal notes by Richard Burn.

Two further editions appeared

until, in 1793, Edward Christian published a twelfth edition of the

Commentaries, indicating that “the pages of the former editions are

preserved in the margin.”

Each subsequent edition indicated the

standard pagination either in the margin or with an asterisk (“the star

. 1 WILLIAM BLACKSTONE, COMMENTARIES *44.

. There are first editions of each of the four volumes of the COMMENTARIES:

volume one (1765), volume two (1766), volume three (1768), and volume four (1769).

Blackstone published a second edition of volume one in 1766 and a third edition of

volume one in 1768. In 1767, he published a second edition of volume two; in 1768,

a third edition of volume two. In 1769, when volume four was published, the four

volumes were issued as a set and labelled the “fourth edition.” There was no second

or third edition of volumes three and four.

. 1 WILLIAM BLACKSTONE, COMMENTARIES, at xi (Richard Burn ed., 1783)

(“ADVERTISEMENT concerning this ninth edition.”).

. 1 WILLIAM BLACKSTONE, COMMENTARIES, at ix (Edward Christian ed.,

1793). In fact, as Frederick Pollock explained in a note, Christian preserved the paging

of the tenth edition (1787), “which corresponds nearly but not quite with that of the

ninth edition.” Frederick Pollock, Executor’s Right to Appointed Land, 50 SOLICITORS’

J. 800, 800 (1906).

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

edition”). When the star page is cited, legal editorial practice dictates

the omission of the date and edition, unless the citation is to material

added by a particular editor.

B. The Court’s Use of the Commentaries

The Court in Dobbs relied on two passages from the

Commentaries: the first from volume one on the “rights of persons”

(right to life), the second from volume four on “public wrongs,” that

is, crimes (homicide). Rather than follow the standard legal system of

citation, however, the Court cites the seventh edition, published in

1775, describing it as written “near the time of the adoption of our

Constitution.”

Here, we quote each reference to the Commentaries in

Dobbs, followed by the corresponding passage in the seventh edition

of the Commentaries. Variations among successive editions of the

Commentaries are then noted.

We conclude this Part with a comment

on the Court’s use of Blackstone.

1. Right to Life

Volume one of the Commentaries is devoted to the Rights of

Persons. Cataloging the “absolute rights” of Englishmen as life,

liberty, and property, Blackstone examines each right successively.

Addressing the beginning of life, he includes a discussion of abortion

as a violation of the right to life. Later, in Volume four on Public

Wrongs, he considers abortion as a crime (homicide). Relying upon

Blackstone, Justice Alito wrote: “And writing near the time of the

adoption of our Constitution, William Blackstone explained that

abortion of a ‘quick’ child was ‘by the ancient law homicide or

manslaughter’ . . . and at least a very ‘heinous misdemeanor’. . . .”

Justice Alito cited the seventh edition of Blackstone’s Commentaries,

which stated:

For if a woman is quick with child, and by a potion,

or otherwise, killeth it in her womb; or if anyone beat

her, whereby the child dieth in her body, and she is

delivered of a dead child; this, though not murder, was

. See THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 15.8(b), at 153–54

(Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020). For modern developments

complicating citations of the COMMENTARIES, see John V. Orth, “Catch a Falling

Star”: The Bluebook and Citing Blackstone’s Commentaries, 2020 U. ILL. L. REV.

ONLINE 125, 126–28 (2020).

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2249 (2022). While

the seventh edition was published near the time of the adoption of the American

Declaration of Independence, the ninth edition (1783) was nearer the time of the

adoption of the United States Constitution.

. The Oxford Edition of Blackstone prints the first edition of each volume and

notes in the rear all changes (“varia”) Blackstone made in later editions. See generally

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (Wilfrid Prest ed.,

2016).

. See 1 BLACKSTONE, supra note 35, at *129–40.

. Dobbs, 142 S. Ct. at 2249 (citations omitted).

2022 NOT CHILD’S PLAY

by the antient [sic] law homicide or manslaughter. But

sir Edward Coke doth not look upon this offense in

quite so atrocious a light, but merely as a heinous

misdemesnor [sic].

This quotation, in turn, contained a footnote quoting Bracton:

Si aliquis mulierem praegnantem percusserit, vel ei

venenum dederit, per quod fecerit abortivam; su

puerperium, jam formatum fuerit animatum, facit

homicidium. [If anyone strikes a pregnant woman, or

administer poison to her by which abortion shall

ensue, if the child shall be already formed, and

particularly if it be alive, that person is guilty of

manslaughter.]

One finds three variations among editions of the Commentaries.

In the first edition of the Commentaries,

the first sentence is the same

as that found in the seventh edition cited by the Court. The second

sentence, however, reads: “But at present it is not looked upon in so

atrocious a light, though it remains a very heinous misdemesnor

[sic].”

In Blackstone’s second through eighth editions, again, the

second sentence differs: “But sir Edward Coke doth not look upon this

offense in quite so atrocious a light, but merely as a heinous

misdemesnor [sic].”

The second sentence has been changed again in

the Commentaries’ ninth edition: “But the modern law doth not look

upon this offense in quite so atrocious a light, but merely as a heinous

misdemesnor [sic].”

Over all editions, Blackstone traced the changing legal treatment

of abortion, from the medieval view (“antient [sic] law”) that

intentionally aborting a quick child was “homicide or manslaughter,”

to the later law that it was a “heinous misdemesnor [sic].” Although in

the first edition he described abortion as “a very heinous misdemesnor

[sic],” in the second edition one year later, and in subsequent editions

until 1778, he referenced Sir Edward Coke as looking upon it “merely

as a heinous misdemesnor [sic].”

In the final edition, he describes

. 1 BLACKSTONE, supra note 35, at *129–30.

. Id. (citation omitted).

. The pagination of the first edition varies from the pagination of later editions

because of material added by Blackstone after the first edition.

. 1 BLACKSTONE, supra note 35, at *125–26.

. Id. at *129–30. Blackstone corrected the erroneous citation to COKE’S

INSTITUTES in the first edition.

. Id.

. Coke did not use the phrase “heinous misdemesnor,” but instead referred to

the offense as a “great misprision.” See 3 EDWARD COKE, INSTITUTES 50 (“If a woman

be quick with childe, and by a potion or otherwise, killeth it in her wombe; or if a man

beat her, whereby the childe dieth in her body, and she is delivered of a dead childe;

this is a great misprision, and no murder . . . .”).

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

this as “the modern law.”

Having quoted the seventh edition, Justice Alito cited St. George

Tucker and concluded that “[i]n this country, the historical record is

similar. The ‘most important early American edition of Blackstone’s

Commentaries,’ . . . reported Blackstone’s statement that abortion of a

quick child was at least ‘a heinous misdemeanor . . . .’”

St. George

Tucker was Professor of Law and Police at the College of William and

Mary from 1790 to 1804. Because he based his book, Blackstone’s

Commentaries: With Notes of Reference to the Constitution and Laws,

of the Federal Government of the United States, and of the

Commonwealth of Virginia, on a posthumous edition of the

Commentaries, the second sentence appears as: “But the modern law

doth not look upon this offense in quite so atrocious a light, but merely

as a heinous misdemesnor [sic].”

Tucker appended a note to the

sentence, citing Coke’s Institutes: “But if the child be born alive, and

afterwards die in consequence of the potion, or beating, it will be

murder . . . . But quere [sic], how shall this be proved?”

2. Homicide

The Court cited Blackstone on homicide in three instances. In the

first, Justice Alito wrote:

Hale and Blackstone explained a way in which a pre-

quickening abortion could rise to the level of a

homicide. Hale wrote that if a physician gave a

woman “with child” a “potion” to cause an abortion,

and the woman died, it was “murder” because the

potion was given “unlawfully to destroy her child

within her” . . . . As Blackstone explained, to be

“murder” a killing had to be done with “malice

aforethought, . . . either express or implied” . . . . In

the case of an abortionist, Blackstone wrote, “the law

will imply [malice]” for the same reason that it would

imply malice if a person who intended to kill one

person accidentally killed a different person:

[I]f one shoots at A and misses him,

but kills B, this is murder; because of

the previous felonious intent, which

the law transfers from one to the

other. The same is the case, where

one lays poison for A; and B, against

whom the prisoner had no malicious

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2251 (2022) (citing

2 ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES 129–30 (1803)).

. 2 TUCKER, supra note 51, at 129–30.

. Id. (citation omitted).

2022 NOT CHILD’S PLAY

intent, takes it, and it kills him; this is

likewise murder. So also, if one gives

a woman with child a medicine to

procure abortion, and it operates so

violently as to kill the woman, this is

murder in the person who gave it.

The passage from the seventh edition of the Commentaries reads:

“Lastly, the killing must be committed with malice aforethought, to

make it the crime of murder. This is the grand criterion which now

distinguishes murder from other killing . . . . [I]t may be either express

or implied in law.”

Two variations can be found among the editions. In Blackstone’s

seventh edition, one finds the second part of the quote above: “If one

shoots at A . . . .”

The first through sixth editions, however, lack the

final sentence concerning abortion, which first appeared in the seventh

edition and was repeated in all subsequent editions. Blackstone did not

use the word “abortionist,” which did not appear until the nineteenth

century and is used especially to refer to one who performs illegal

abortions.

The situation in which a pre-quickening abortion “could rise to the

level of a homicide” is if “the medicine to procure abortion” results in

the death of the woman. That is, the law transfers the intent to kill the

child to the woman. It appears that the intent to kill the child is

“felonius,” although there is no mention of a penalty for killing the

child. The Court emphasized that the sentence is not limited to the case

of a quick child: “Notably, Blackstone, like Hale, did not state that this

proto-felony-murder rule required that the woman be ‘with quick

child’—only that she be ‘with child.’”

The second instance in which the Court relied upon Blackstone for

the meaning of homicide is this:

And it is revealing that Hale and Blackstone treated

abortionists differently from other physicians or

surgeons who caused the death of a patient “without any

intent of doing [the patient] any bodily hurt” . . . . These

other physicians—even if “unlicensed”—would not be

“guilty of murder or manslaughter” . . . . But a physician

. Dobbs, 142 S. Ct. at 2250 (emphasis removed) (citations omitted).

. 4 BLACKSTONE, supra note 35, at *198 (emphasis added).

. Id. at *200–01.

. See Abortionist, BLACK’S LAW DICTIONARY (10th ed. 2014) (“[A]bortionist,

n. (1844) Pejorative. A person who performs abortions, esp[ecially] illegal ones.”).

. Dobbs, 142 S. Ct. at 2250 (citation omitted).

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

performing an abortion would, precisely because his

aim was an “unlawful” one.

The seventh edition of Blackstone’s Commentaries reads:

If a physician or surgeon gives his patient a potion or

plaister [sic] to cure him, which contrary to

expectation kills him, this is neither murder, nor

manslaughter, but misadventure; and he shall not be

punished criminally, however liable he might

formerly have been to a civil action for neglect or

ignorance; but it hath been holden that if he be not a

regular physician or surgeon, who administers the

medicine or performs the operation, it is manslaughter

at least. Yet sir Matthew Hale very justly questions

the law of this determination since physic and salves

were in use before licensed physicians and surgeons;

wherefore he treats this doctrine as apocryphal, and

fitted only to gratify and flatter licentiates and doctors

in physic; though it may be of use to make people

cautious and wary, how they meddle too much is so

dangerous an employment.

And one variation exists among the editions, found in the

Commentaries’ eighth edition, which omits this final clause:

[S]ince physic and salves were in use before licensed

physicians and surgeons; wherefore he treats this

doctrine as apocryphal, and fitted only to gratify and

flatter licentiates and doctors in physic; though it may

be of use to make people cautious and wary, how they

meddle too much is so dangerous an employment.

The point of this passage is to distinguish between a death caused by

“a regular physician or surgeon” and one caused by others who

undertake to cure a person. Blackstone comments that Sir Matthew

Hale “very justly” criticized this distinction because “physic and

salves were in use before licensed physicians and surgeons,” and the

distinction was maintained “only to gratify and flatter” the latter.

. Id. (emphasis removed) (citations omitted).

. 4 BLACKSTONE, supra note 35, at *197 (emphasis added).

. Id.

. Hale explained that “if that opinion should obtain, that if one not licensed a

physician should be guilty of felony, if his patient miscarry, we should have many of

the poorer sort of people, especially remote from London, die for want of help, lest

their intended helpers might miscarry.” 1 MATTHEW HALE, HISTORY OF THE PLEAS OF

THE CROWN 430 (1736).

2022 NOT CHILD’S PLAY

The Court’s third and final use of Blackstone is this: “In this

country, the historical record is similar . . . . [St. George Tucker’s

Blackstone’s Commentaries] included Blackstone’s discussion of the

proto-felony-murder rule.”

Because he based his edition on a

posthumous edition of the Commentaries, Tucker does not include

Hale’s explanation why he questioned the distinction between licensed

medical practitioners and others.

C. Blackstone on Law and the Constitution

1. Law

In seeking a fixed standard for determining whether a right to

abortion was established by history and tradition at the time of

American Independence, the Court turned to Sir William Blackstone.

The seventh edition of his Commentaries on the Laws of England—

like all editions before and after—characterized abortion not as a right

but as a wrong: “a heinous misdemesnor [sic].” Blackstone addressed

it first in volume one (rights of persons) as a violation of the right to

life, and then in volume four (public wrongs) as a crime. Consistent

with his project not just to state the laws but also “to deduce their

history,”

Blackstone recognized that over time the law’s treatment of

abortion lessened in severity: from felony to misdemeanor. His

coverage of abortion in each edition of the Commentaries began with

the “antient [sic] law,” which regarded abortion as homicide or

manslaughter, and continued through the time of Sir Edward Coke to

“modern law.” At first, Blackstone characterized abortion in his day as

a “very heinous misdemesnor [sic],” but within a year he moderated

that to “merely” a heinous misdemeanor.

Like the Court in Dobbs, Blackstone in his Commentaries was

careful to insist on the importance of maintaining a distinction between

law and the personal opinions of judges. If judges could decide cases

based on their private views, it would “make every judge a legislator,

and introduce most infinite confusion; as there would then be almost

as many different rules of action laid down in our courts, as there are

differences of capacity and sentiment in the human mind.”

Blackstone’s unease with judicial discretion and preference for hard-

and-fast rules influenced his actions as a judge.

In his most famous

decision, he warned against “vague discretionary law.”

The court in Dobbs sought to restrain judicial discretion by

. Dobbs, 142 S. Ct. at 2251 (citing 2 TUCKER, supra note 51, at 129–30).

. See 12 WILLIAM S. HOLDSWORTH, HISTORY OF ENGLISH LAW 745–46 (1938).

. 1 BLACKSTONE, supra note 35, at *62 (referring to the distinction between law

and equity).

. See Orth, supra note 30, at 373–74.

. 1 A COLLECTION OF TRACTS RELATIVE TO THE LAW OF ENGLAND 489, 491,

496 (Francis Hargrave ed., 1787) (discussing Blackstone’s 1770 decision in Perrin v.

Blake, reaffirming the rule in Shelley’s Case).

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

imposing a fixed standard for the recognition of unenumerated rights

based on history and tradition. Ironically in the context of Dobbs,

Blackstone located that restraint in the doctrine of precedent: “what

before was uncertain, and perhaps indifferent, is now become a

permanent rule, which it is not in the breast of any subsequent judge

to alter or vary from, according to his private sentiments.”

In defense

of Roe, the dissenters in Dobbs cited Blackstone in support of stare

decisis: “Blackstone called it the ‘established rule to abide by former

precedents’ . . . . And as Blackstone said . . . : It ‘keep[s] the scale of

justice even and steady, and not liable to waver with every new judge’s

opinion.’”

However, as might be expected, Blackstone added the

(unquoted) qualification: “Yet this rule admits of exception, where the

former determination is most evidently contrary to reason; much more

if it be clearly contrary to the divine law.”

2. Constitution

Near the beginning of the Commentaries, Blackstone described the

common law as lex non scripta, or unwritten law.

By this, he meant

that the common law was not found in a single authoritative written

source such as a code or a statute. Like the common law, the English

Constitution in Blackstone’s day was unwritten. It still is. “Although

the United Kingdom does not have a single document entitled ‘The

Constitution,’” explained Britain’s highest court in 2019, “it

nevertheless possesses a Constitution, established over the course of

our history by common law, statutes, conventions and practices.”

And because it has never been codified, the judges continued, “it has

developed pragmatically, and remains sufficiently flexible to be

capable of further development.”

Blackstone would have agreed. He

recognized that the law—both common and constitutional—continued

to develop over time. Indeed, he summarized this ideal in a final

chapter entitled “Of the Rise, Progress, and Gradual Improvements, of

the Laws of England.”

For the majority in Dobbs, Blackstone was a convenient source for

“history and tradition.” And Blackstone would have sympathized with

their insistence on the need for a fixed standard to curb judicial

discretion. But he would have been uncomfortable with an approach

that denied any potential for further development beyond a certain

. 1 BLACKSTONE, supra note 35, at *69. Concerning the role of the judge,

Blackstone explained: “he being sworn to determine not according to his own private

judgment, but according to the known laws and customs of the land; not delegated to

pronounce a new law, but to maintain and expound the old one.” Id.

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2333 (2022)

(Breyer, J., dissenting).

. 1 BLACKSTONE, supra note 35, at *69–70. In the eighth (and subsequent)

editions, Blackstone qualified “contrary to the divine law” with the adjective “clearly.”

. Id. at *63.

. R (Miller) v. Prime Minister, [2019] UKSC 41, at ¶ 39.

. Id.

. See 4 BLACKSTONE, supra note 35, at *407.

2022 NOT CHILD’S PLAY

point in the past. Whatever he would have thought of the result in Roe,

Blackstone would have understood the process by which it was

reached: “successive judicial precedents—each looking to the last,” as

the dissenting Justices expressed it.

In the end, the dispute in Dobbs

was not about history. It was about whether to develop constitutional

protections the “common law way”—reasoning from case to case—or

to treat the constitutional text itself as a fixed standard. In Part III, we

consider the way in which the Court, rather than using this “common

law way” of reasoning from case to case, rejected established

precedent in Lemon for “history and tradition.”

III. PASSING “ENTANGLEMENT” FROM LEMON TO SHURTLEFF

AND KENNEDY

The Lemon test represented a refinement of the “purpose and

effect” test in Everson v. Board of Education,

as modified by the

addition of the “excessive government entanglement” prong in Walz v.

Tax Commission.

Writing for the Court in Lemon, Chief Justice

Burger enunciated a three-prong test for assessing purported

Establishment Clause violations: “First, the statute must have a secular

legislative purpose; second, its principal or primary effect must be one

that neither advances nor inhibits religion . . . ; finally, the statute must

not foster ‘an excessive government entanglement with religion.’”

While Lemon can be seen as part of a long search for a fixed standard,

controversy swirled around its test for over half a century, some

broadly supportive,

others less so.

Much-maligned, in Shurtleff v.

City of Boston

and Kennedy v. Bremerton School District,

the Court

seemingly overruled the Lemon test.

. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2326 (2022)

(Breyer, J., dissenting).

. Everson v. Bd. of Educ., 330 U.S. 1 (1947).

. Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970).

. Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971) (citing Bd. of Educ. v.

Allen, 392 U.S. 236, 243 (1968); Walz, 397 U.S. at 674).

. See, e.g., Stephanie H. Barclay, Untangling Entanglement, 97 WASH. U. L.

REV. 1701, 1720–22 (2020); ROBERT S. ALLEY, THE CONSTITUTION & RELIGION:

LEADING SUPREME COURT CASES ON CHURCH AND STATE 82–96 (1999); Herbert M.

Kritzer & Mark J. Richards, Jurisprudential Regimes and Supreme Court

Decisionmaking: The Lemon Regime and Establishment Clause Cases, 37 L. & SOC.

REV. 827, 835–39 (2003).

. See, e.g., William E. Thro & Charles J. Russo, Lemon v. Kurtzman:

Reflections on a Constitutional Catastrophe, CANOPY F. (Nov. 1, 2021),

https://bit.ly/3Dt45qF; Nicholas Tomaino, The Conservative Supreme Court Has

Arrived, WALL ST. J. (July 1, 2022, 4:28 PM ET), https://on.wsj.com/3sfJUFU.

. Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

. Given that there were no Establishment Clause claims in either Shurtleff or

Kennedy, in a technical sense, the whole of the opinions as they concern Lemon may

be obiter dictum. See Josh Blackman, Why Didn’t Kennedy Formally Overrule

Lemon?, VOLOKH CONSPIRACY (July 3, 2022, 1:44 AM), https://bit.ly/3SDwlLz

[hereinafter Blackman, Formally Overrule]; Josh Blackman, SCOTUS Eliminates the

Lemon Defense, and Smokes Joints with Play, VOLOKH CONSPIRACY (July 3, 2022,

1:03 PM), https://bit.ly/3TDH0GK [hereinafter Blackman, SCOTUS Eliminates].

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

Both Shurtleff and Kennedy raised free exercise concerns, which

trigged possible Establishment Clause violations. In the former,

Harold Shurtleff sought to fly a “Christian flag” in City Hall Plaza in

front of Boston City Hall, a public space often used for events held by

third parties. The commissioner of Boston’s Property Management

Department worried this act could violate the Establishment Clause.

In the latter, Joseph Kennedy, a high school football coach in the

Bremerton School District, knelt at midfield after games to offer a

personal prayer; by allowing the prayer, it was suggested that the

school district could be seen to be endorsing religious views,

potentially violating the Establishment Clause.

In a technical sense, because the Establishment Clause was not

directly raised in either Shurtleff or Kennedy, and because no party in

either case sought its rejection, any treatment of Lemon, both in the

majority opinions and certainly in the dissenting or concurring

opinions, is nothing more than obiter dictum and not a precedential

statement of law.

Nonetheless, one would be hard-pressed to rely on

this technical dismissal of Shurtleff’s and Kennedy’s effect on Lemon.

Far greater “revolutions” in the development of law, both

constitutional and common, arrive through the back door of dictum,

not least the very power of judicial review itself in Marbury v.

Madison,

and the tort of negligence for faulty goods in the landmark

English case of Donoghue v. Stevenson.

We assume here, then, that

Lemon was properly engaged.

Justice Gorsuch provided the only sustained treatment of Lemon

in a concurrence in Shurtleff and writing for the Court in Kennedy. The

only other member of the Court to give Lemon any attention was

Justice Sotomayor in her Kennedy dissent. It seems clear that Justice

Gorsuch intended his detailed critique of Lemon in the Shurtleff

concurrence as a prologue to Kennedy’s full-frontal attack. We

organize our reflections here around two common themes that form

the core of Justice Gorsuch’s critique: the rejection of the

“entanglement” test and its replacement with the “history and

tradition” test.

A. Grand Unified Theory Invites Chaos and Produces Needless

Litigation

In Lemon, Justice Gorsuch wrote, “this Court attempted a ‘grand

unified theory’ for assessing Establishment Clause claims.”

The

. See Shurtleff, 142 S. Ct. at 1588.

. See Kennedy, 142 S. Ct. at 2415–16.

. See Blackman, Formally Overrule, supra note 83; Blackman, SCOTUS

Eliminates, supra note 83.

. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

. Donoghue v. Stevenson, [1932] AC 562 (HL).

. Kennedy, 142 S. Ct. at 2427.

2022 NOT CHILD’S PLAY

product of a bygone era, this one-size-fits-all “neat checklist” approach

to Establishment Clause claims asked more questions than it answered,

including

[h]ow much religion-promoting purpose is too much?

Are laws that serve both religious and secular

purposes problematic? How much of a religion-

advancing effect is tolerable? What does “excessive

entanglement” even mean, and what (if anything)

does it add to the analysis? Putting it all together, too,

what is a court to do when Lemon’s three inquiries

point in conflicting directions?

For Gorsuch, the fact that additional inquiries accompanied the

application of the test “‘invited chaos’ in lower courts, led to ‘differing

results’ in materially identical cases, . . . created a ‘minefield’ for

legislators,”

and produced a garble of results. This, in turn, according

to Justice Gorsuch, produced “needless litigation.”

In a misguided effort to overcome these apparent flaws, Justice

Gorsuch argued, the Court modified the effects test so as “to ask

whether a ‘reasonable observer’ would consider the government’s

challenged action to be an ‘endorsement’ of religion.”

This, though,

according to Justice Gorsuch, merely compounded the problems, as

“some argued that any reasonable observer worthy of the name would

consider all the relevant facts and law, just as a judge or jury must . . .

. Others suggested that a reasonable observer could make mistakes

about the law or fail to consider all the facts.”

Such mistakes only

raised further questions for Justice Gorsuch about “just how mistake-

prone might an observer be and still qualify as reasonable?”

Three

examples demonstrate the anomalous results in materially identical

cases: (i) “May a State or local government display a Christmas

nativity scene? Some courts said yes, others no”;

(ii) “How about a

menorah? Again, the answers ran both ways”;

(iii) “What about a

. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1604 (2022) (Gorsuch, J.,

concurring).

. Kennedy, 142 S. Ct. at 2427 (citation omitted).

. Shurtleff, 142 S. Ct. at 1605 n.4 (Gorsuch, J., concurring).

. Id. at 1604; see also Kennedy, 142 S. Ct. at 2427.

. Shurtleff, 142 S. Ct. at 1605 (Gorsuch, J., concurring).

. Id.

. Id. at 1604. In footnote one, Justice Gorsuch cited Lynch v. Donnelly, 465

U.S. 668, 671–72 (1984) (yes); Am. C.L. Union of Ky. v. Wilkinson, 895 F.2d 1098,

1099–1100, 1104 (6th Cir. 1990) (yes); Cnty. of Allegheny v. Am. C.L. Union, 492

U.S. 573, 578–79 (1989) (no); Smith v. Cnty. of Albemarle, 895 F.2d 953, 955, 958–

60 (4th Cir. 1990) (no).

. Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring). In footnote two,

Justice Gorsuch cites Allegheny, 492 U.S. at 578–81 (yes); Skoros v. New York, 437

F.3d 1, 3–4 (2d Cir. 2006) (yes); Kaplan v. Burlington, 891 F.2d 1024, 1025–26,

1030–31 (2d Cir. 1989) (no).

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city seal that features a cross? Good luck.”

Justice Gorsuch’s treatment of the Lemon test seems, at best,

disingenuous, at worst, deliberately misleading. It consists of two

related criticisms of the reasonable observer component of the

excessive government entanglement prong. The first concern raised by

Justice Gorsuch is that citizens find it confusing and difficult to apply

the reasonable observer standard when called upon to decide whether

a given course of conduct might amount to endorsement of religion,

thus running afoul of the Establishment Clause. Justice Gorsuch puts

it this way:

Faced with such a malleable test, risk-averse local

officials found themselves in an ironic bind. To avoid

Establishment Clause liability, they sometimes felt

they had to discriminate against religious speech and

suppress religious exercises. But those actions, in

turn, only invited liability under other provisions of

the First Amendment. The hard truth is, Lemon’s

abstract and ahistoric test put “[p]olicymakers . . . in a

vise between the Establishment Clause on one side

and the Free Speech and Free Exercise Clauses on the

other.”

And, related to this, Justice Gorsuch suggested that the standard

required of the reasonable observer—one of a “checklist” of elements

among which a judge can pick and choose—is one which judges find

difficult to apply, leading in turn to anomalous results in materially

similar cases. We consider both of these criticisms in turn.

1. Citizens as Reasonable Observers

All citizens interact constantly with law, placing each of us in

Justice Gorsuch’s vise, at least in the sense that, every day, we must

choose a course of conduct from multiple competing possibilities. In

doing so, very few citizens have a full grasp of the dizzying array of

laws which must be complied with in order to navigate daily activities.

And yet, Justice Gorsuch seems to suggest that whatever test is

applied, it ought to be one that every person, and certainly every person

charged with making decisions about establishment, will be readily

familiar with.

Surely, though, to suggest that every citizen has at their fingertips

the state of the various bodies of law that govern their conduct, which

will answer definitively the questions facing them as they decide on a

. Shurtleff, 142 S. Ct. at 1604 (Gorsuch, J., concurring). In footnote three,

Justice Gorsuch cites Murray v. Austin, 947 F.2d 147, 149 (5th Cir. 1991) (yes); Harris

v. Zion, 927 F.2d 1401, 1402 (7th Cir. 1991) (no).

. Shurtleff, 142 S. Ct. at 1605 (Gorsuch, J., concurring) (citation omitted).

2022 NOT CHILD’S PLAY

course of conduct, borders on absurdity. What Lemon required was

really no more than what any test requires: that those charged with

acting according to the test carefully examine the facts of each case so

as to determine whether the test controls a given dispute. True, a court

may later assess that conduct as part of litigation, but that is no more

and no less burdensome than any of the myriad decisions that we make

each day concerning how to conduct ourselves. No standard provides

a certain answer for citizens about to embark on a course of conduct.

100

2. Judges Applying the Standard

Justice Gorsuch’s concerns with the judicial application of Lemon

seem to be, as one commentator puts it, that “[u]ltimately, excessive

entanglement is in the eye of the beholder.”

101

But is that really what

is happening? Common law courts have long used the very sorts of

standards established in Lemon to assess a wide range of conduct, in

both the public and private spheres. And in so doing, when applied to

a novel set of facts, even those cases that seem very similar may, given

slight variations, produce different outcomes, with some coming out

on one side of a standard, some on the other. Certainty of outcome

cannot be assured; indeed, it is the very nature of law that outcomes

will differ based upon very subtle factual differences. Every case will

and must turn on its own facts, with cases that seem to deal with the

same facts nonetheless producing different results because, on closer

analysis, distinguishing factors exist.

102

Yet if different results follow

in cases otherwise indistinguishable, senior appellate courts exist to

resolve them, to standardize results, and, if the tests or standards set by

lower or earlier courts are the culprits in producing such outcomes, to

modify or clarify those tests.

If the “reasonable observer” standard causes problems, the

obvious solution is to define the reasonable observer. It may not be

possible to do that in one decision, but over time, the test’s meaning

and application would be refined and clarified. And in doing so, courts

would make use of a standard with which they are already familiar:

reasonableness. Consider the tort of negligence. Throughout the

common law world, for a very long time, the standard of care in

negligence “adopt[s] an abstract formula, that of the ‘reasonable

person,’ and has left to the jury, or to a judge in their stead, the task of

concreting and applying the standard in individual cases,”

103

which

“convert[s] the problem of conduct into an abstraction sufficiently

intelligible to guide [the jury] on the legal considerations which they

100

. See DUNCAN KENNEDY, SEXY DRESSING ETC.: ESSAYS ON THE POWER AND

POLITICS OF CULTURAL IDENTITY 90–91 (1993).

101

. Richard L. Pacelle, Jr., Lemon Test, FIRST AMEND. ENCYCLOPEDIA (2009),

https://bit.ly/3MSVvV0.

102

. On the importance of reading cases in chronological order so as to determine

legal rules and the lines they draw, see generally KARL N. LLEWELLYN, THE BRAMBLE

BUSH: THE CLASSIC LECTURES ON THE LAW AND LAW SCHOOL (2008).

103

. JOHN G. FLEMING, THE LAW OF TORTS 117 (9th ed. 1998).

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

ought to apply in assessing the quality of the defendant’s conduct.”

104

While few citizens either know or can explain the standard to be

achieved by the reasonable person, all are expected to conduct

themselves in their daily activities according to it, and are judged ex

post facto by it.

Yet Justice Gorsuch seems to suggest that the standard of the

reasonable observer in establishment cases is entirely novel for most

judges. Is that really so? As Justice Sotomayor noted in dissent, “for

decades, the Court has recognized that, in determining whether a

school has violated the Establishment Clause, ‘one of the relevant

questions is whether an objective observer, acquainted with the text,

legislative history, and implementation of the [practice], would

perceive it as a state endorsement of prayer in public schools.’”

105

Still,

Justice Gorsuch asks

[w]ould the assigned judge’s imagined “reasonable

observer” bother to learn about [a] generous policy for

secular groups? Would this observer take the trouble to

consult the long tradition in this country allowing

comparable displays? Or would he turn out to be an

uninformed passerby offended by the seeming

incongruity of a new flag flying beside those of the city,

State, and Nation? Who could tell.

106

In fact, yes, the reasonable observer, as found in the common law,

would do all of that, or at the very least, could be told to do so by a

court. In objectifying the reasonableness standards for negligence,

common law courts everywhere provide the biography of the

hypothetical “person of ordinary prudence”—in the United Kingdom

this has become “the passenger on the Clapham omnibus”;

107

Australia, that person rides the Bondi tram;

108

in Hong Kong, the

Shaukiwan tram;

109

in the United States the standard is contained in

the celebrated “Hand Formula.”

110

Whatever the label that is applied,

“the reasonable person is the embodiment of all qualities we demand

of the good citizen: and if not exactly a model of perfection, yet

104

. Id. at 118.

105

. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2447 (2022) (Sotomayor,

J., dissenting).

106

. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1605 (2022) (Gorsuch, J.,

concurring).

107

. FLEMING, supra note 103, at 118 (citing Vaughan v. Menlove (1837) 132

Eng. Rep. 490 (CP); Blyth v. Birmingham Waterworks Co. (1856) 156 Eng. Rep. 1047

(EC)). Blyth has been cited with approval in the United States. See ROBERT E. KEETON,

LEWIS D. SARGENTICH & GREGORY C. KEATING, TORT AND ACCIDENT LAW: CASES

AND MATERIALS 13 (4th ed. 2004).

108

. See Re Sortirios Pandos & Commw. of Austl., [1991] AATA 18; FLEMING,

supra note 103, at 118.

109

. See Ng Chiu Mui v. Sec. & Futures Comm’n, Application No. 7 of 2007

(HKC).

110

. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).

2022 NOT CHILD’S PLAY

altogether a rather better person than probably any single one of us

happens, or perhaps even aspires, to be.”

111

Given its ubiquity in the common law, there need be nothing

especially problematic with reasonableness as a standard for

establishment claims, nor with its use by the sorts of public authorities

charged with considering whether government involvement

constitutes endorsement. Indeed, the examples of such authorities

given by Justice Gorsuch—colleges, public transit authorities, and

governments themselves—would undoubtedly take legal advice prior

to “exclud[ing] religious groups from using public facilities or

designations available to others.”

112

The actors identified by Justice

Gorsuch are hardly the sorts of Gideon v. Wainright

113

litigants that

one might classify as incapable either of understanding the standard

or, if not, obtaining legal advice.

How might a judge go about applying the standard? An example

assists, which we draw from Australian law. Why? Certainly many

American decisions at every level of court, federal and state alike,

demonstrate the ease with which judges apply Lemon’s reasonable

observer test. What we want to show, though, is that even without a

thoroughgoing knowledge of the American authorities, the Lemon

standard presents little difficulty for judges seeking to apply it. More

importantly, American jurisprudence is relevant to Australia because

the text of the First Amendment Establishment Clause is replicated,

almost word for word, in the Australian Constitution.

114

In Attorney-

General (Vic); Ex Rel Black v. Commonwealth,

115

the High Court of

Australia—Australia’s functional equivalent to the Supreme Court of

the United States—was faced with a purported Establishment Clause

violation; in deciding it, the High Court adverted to the Lemon test.

116

While Justice Gibbs noted that controversy surrounded the

entanglement prong,

117

it could nonetheless be demonstrated that

American cases fell “on both sides of the borderline.”

118

As such, “it

[was] clear that the Supreme Court ha[d] not taken the view that the

111

. FLEMING, supra note 103, at 118.

112

. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1605 n.4 (2022) (Gorsuch, J.,

concurring).

113

. Gideon v. Wainwright, 372 U.S. 335 (1963).

114

. The First Amendment reads: “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof”; while section 116

of the Australian Constitution provides: “The Commonwealth shall not make any law

for establishing any religion, or for imposing any religious observance, or for

prohibiting the free exercise of any religion, and no religious test shall be required as

a qualification for any office or public trust under the Commonwealth.”

115

. Attorney-General (Vic); Ex Rel Black v. Commonwealth (1981) 146 C.L.R.

559.

116

. See Paul T. Babie, What Happened When DOGS Tasted Lemon: Australian

Reflections on the Contemporary Relevance of Chief Justice Burger’s Opinion in

Lemon v. Kurtzman, 49 RUTGERS L. REC. 154, 157 (2022).

117

. See Black, 146 C.L.R. at 602.

118

. Id.

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

[E]stablishment [C]lause entirely forbids the grant of any financial aid

to [religious] schools.”

119

In other words, it was clear to an Australian

judge, reviewing American law, that Lemon did not forbid any

entanglement whatsoever, but only that which became excessive. Put

another way, Lemon did not demand strict separation. Rather, Justice

Gibbs found, it allowed for an accommodationist stance, with the third

prong being applied by judges to determine on which side of the

borderline a given set of facts falls.

120

For Justice Gibbs, this seemed

entirely unremarkable, a task squarely within the judicial mandate; one

that involved nothing more than what any common law judge would

do.

In fact, the conclusion reached by Justice Gibbs is precisely what

Justice Gorsuch pointed to in the cases he cited as examples of

“differing” or “garbled” results—nothing more and nothing less than

the application of a standard of reasonable objectivity to subtly

differing sets of facts, reaching outcomes that fall on either side of

what Justice Gibbs called a “borderline.” Justice Sotomayor, in

dissent, wrote that “Lemon summarized ‘the cumulative criteria

developed by the Court over many years’ of experience ‘draw[ing]

lines’ as to when government engagement with religion violated the

Establishment Clause.”

121

The only way to know on which side of that

line a new case might fall is to “read the [previous] opinion[s]” and

“consider the court’s reasoning before making judgments about the

outcome,” as Justice Amy Coney Barrett recently suggested,

122

and as

Karl Llewellyn long ago admonished every student of law.

123

constitution cannot require a judge to give a final definitive answer

that will apply to every case. What it can require is that judges apply

standards with which they are well-versed and entirely familiar.

Reasonableness and objectivity are such standards.

124

If, then, reasonableness is a standard regularly deployed by law, it

can hardly be said that when a litigant makes use of it that it produces

“needless litigation.” Any test adopted by law leads to outcomes, some

of which fall on one side of a line, and some on others. But is to pursue

litigation to determine on which side a claim falls the pursuit of

needless litigation? Will any test prevent litigation because the parties

119

. Id.

120

. See id. (citing Tilton v. Richardson, 403 U.S. 672 (1971); Hunt v. McNair,

413 U.S. 734 (1973); Roemer v. Md. Bd. of Pub. Works, 426 U.S. 736 (1976); Comm.

for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980)).

121

. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2449 (2022) (Sotomayor,

J., dissenting) (citation omitted).

122

. See Amy Coney Barrett Discusses Free Speech on College Campuses, How

COVID-19 Affected Supreme Court, FORBES BREAKING NEWS (Apr. 12, 2022),

https://bit.ly/3VSNqUk; With Divisive Supreme Court Rulings Coming, Barrett Says:

‘Read the Opinion,’ POLITICO (Apr. 5, 2022, 12:20 AM EDT),

https://politi.co/3gp8cKZ.

123

. See generally LLEWELLYN, supra note 102.

124

. See Kennedy, 142 S. Ct. at 2447 (Sotomayor, J., dissenting).

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agree on their own which side of a line the conduct in dispute falls? Of

course not. And, even if that was not so, by what standard is needless

litigation assessed? The only way to resolve a legal dispute—and

establishment issues produce legal disputes—requires the application

of a test, and there is only one way to determine how that test applies:

litigation. To pursue such a claim using the relevant test is hardly

needless.

The suggestion that reasonableness invites chaos and needless

litigation is, frankly, strange. Moreover, if the reasonable observer

standard found in Lemon is to be replaced, the irony is that what Justice

Gorsuch demands—a test to settle all disputes in a way that judges

seem unable to provide—is something, as Dobbs tells us, that only

legislatures can do. Yet seek to replace Lemon the Court does.

B. Exchanging Policy for Original Meaning as Found in History

and Tradition

For Justice Gorsuch, the grand unified theory of “Lemon ignored

the original meaning of the Establishment Clause, . . . disregarded

mountains of precedent, and . . . substituted a serious constitutional

inquiry with a guessing game.”

125

As such, “Lemon has long since been

exposed as an anomaly and a mistake,”

126

an “ahistoric alternative

[that] quickly proved both unworkable in practice and unsound in its

results,”

127

the “‘shortcomings’ associated with this ‘ambitiou[s],’

abstract, and ahistorical approach to the Establishment Clause . . . so

‘apparent’ that this Court long ago abandoned Lemon and its

endorsement test offshoot.”

128

As such, the Court rejected “the policy

outcomes Lemon can be manipulated to produce”

129

in favor of a test

based upon original meaning, in which one finds a “more humble

jurisprudence.”

130

The Court turned to “history and tradition,”

131

a test

that makes “reference to historical practices and understandings,”

132

which “contains some helpful hallmarks that localities and lower

courts can rely on.”

133

125

. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1610 (2022) (Gorsuch, J.,

concurring).

126

. Id. at 1606.

127

. Id. at 1606–07.

128

. Kennedy, 142 S. Ct. at 2427 (2022) (citation omitted). Justice Sotomayor

challenges this assertion, writing that “the Court chiefly cites the plurality opinion in

American Legion v. American Humanist [Association] to support this contention. That

plurality opinion, to be sure, criticized Lemon’s effort at establishing a ‘grand unified

theory of the Establishment Clause’ as poorly suited to the broad ‘array’ of diverse

establishment claims . . . . All the Court in American Legion ultimately held, however,

was that application of the Lemon test to ‘longstanding monuments, symbols, and

practices’ was ill-advised for reasons specific to those contexts.” Id. at 2449

(Sotomayor, J., dissenting).

129

. Shurtleff, 142 S. Ct. at 1608 (Gorsuch, J., concurring).

130

. Id. at 1604.

131

. Kennedy, 142 S. Ct. at 2434 (Sotomayor, J., dissenting).

132

. Id. at 2428 (majority opinion) (citation omitted).

133

. Shurtleff, 142 S. Ct. at 1609 (Gorsuch, J., concurring).

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Justice Gorsuch, who seemed unwilling to use the concept in

reference to the Lemon test, proposed that there exists a “line” that

courts and governments “must draw between the permissible and the

impermissible,” which must “accor[d] with history and faithfully

reflec[t] the understanding of the Founding Fathers.”

134

An analysis

focused on original meaning and history, Justice Gorsuch suggested,

“has long represented the rule rather than some ‘exception’ within the

‘Court’s Establishment Clause jurisprudence.’”

135

Does constitutional history really provide such guidance in

Establishment Clause claims? No. Howard Gillman and Erwin

Chemerinsky write that “history does not provide an answer to the

specific questions that arise in applying the Establishment Clause.

Asking what the framers would have allowed in terms of giving

computers to parochial schools is a meaningless question when

education is so vastly different today than in 1791.”

136

Gillman and

Chemerinsky quote Justice Robert Jackson: “Just what our forefathers

did envision, or would have envisioned had they foreseen modern

conditions, must be divined from materials almost as enigmatic as the

dreams Joseph was called upon to interpret for Pharaoh.”

137

Justice

Gorsuch merely rejects a test well-known to the common law

tradition—the reasonable observer—for one unknown to it, one more

familiar to those in the humanities disciplines.

Justice Gorsuch recounted three historical events as examples of

the hallmarks he expects would be helpful to courts in addressing

possible violations of the Establishment Clause. First, “when

designing a seal for the new Nation in 1776, Benjamin Franklin and

Thomas Jefferson proposed a familiar Biblical scene—Moses leading

the Israelites across the Red Sea . . . . The seal ultimately adopted by

Congress in 1782 features ‘the Eye of Providence’ surrounded by

‘glory’ above the motto Annuit Coeptis—‘He [God] has favored our

undertakings.’” Second, “President Washington’s 1789 Thanksgiving

Day Proclamation referred to “‘a day of public thanksgiving and

prayer’ and the role of a ‘Supreme Being’ in the foundations and

successes of our young Nation.” And finally, “President Jefferson

allowed various religious groups to use the Capitol for weekly worship

services.”

138

Would most Americans have even passing familiarity

with those events? It seems unlikely.

139

As Gillman and Chemerinsky

134

. Kennedy, 142 S. Ct. at 2428 (citation omitted).

135

. Id. (citation omitted).

136

. HOWARD GILLMAN & ERWIN CHEMERINSKY, THE RELIGION CLAUSES: THE

CASE FOR SEPARATING CHURCH AND STATE 59–62 (2020).

137

. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952)

(Jackson, J., concurring).

138

. Shurtleff, 142 S. Ct. at 1610 n.11 (Gorsuch, J., concurring).

139

. The last time we checked, the main event of, and focus of attention on,

Thanksgiving was not only two, but more recently three, NFL games, followed by

turkey!

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conclude, what such examples really demonstrate is simply that

“research will reveal little more than competing quotations about

religion that each side cites to support its position.”

140

Historical

hallmarks might be useful for one engaged in historical research

treating law as a humanities discipline in an academic setting, but it

seems less helpful for litigants, lawyers, and judges charged with

resolving claimed establishment violations and the potential for

infringement of free exercise. What seems much more probable is that

history and tradition will be far more novel to most lawyers and judges

than the existing reasonableness and objectivity standards found in the

common law.

141

Still, Justice Gorsuch is right about one thing; there is something

that history might be able to assist with. And that is in answering

whether government has become excessively entangled with religion!

Justice Gibbs showed us how that question could be answered in

looking at the prior case law—by looking at each case, one is looking

at history. And if you feel constrained in accepting what an Australian

might have to say about it, Justice Sotomayor makes the same point,

writing that the “historical practices and understandings” test is one in

which “this Court’s settled precedents offer guidance to assist courts,

governments, and the public in navigating [Establishment Clause]

tensions.”

142

Yet, it cannot be a general test, nor one that should be the

exclusive focus of a court,

143

because it

offers essentially no guidance for school

administrators. If even judges and Justices, with full

adversarial briefing and argument tailored to precise

legal issues, regularly disagree (and err) in their

amateur efforts at history, how are school

administrators, faculty, and staff supposed to adapt?

How will school administrators exercise their

responsibilities to manage school curriculum and

events when the Court appears to elevate individuals’

rights to religious exercise above all else? Today’s

opinion provides little in the way of answers; the

Court simply sets the stage for future legal changes

that will inevitably follow the Court’s choice today to

upset longstanding rules.

144

History and tradition cannot be the sole test, but it can undoubtedly

work in concert with the Lemon test, providing historical examples of

140

. GILLMAN & CHEMERINSKY, supra note 136, at 59.

141

. See Marcia Coyle, With Guns, Abortion and Religion, Judges Become the

New Historians, NAT’L L.J. (June 27, 2022), https://bit.ly/3F2oMKX.

142

. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2445 (2022) (Sotomayor,

J., dissenting).

143

. Id. at 2450.

144

. Id.

PENN STATE LAW REVIEW PENN STATIM Vol. 127:2

government involvement with religion that falls on either side of

excessive entanglement. Seen this way, it may very well be possible to

salvage Lemon, reconciling it with history and tradition. What Lemon

did, quite appropriately, was attempt, in the face of indeterminate and

vague language, to establish a fixed standard; one which might require

greater elaboration by the Court over time, true, but one well-known

to the law. The Lemon test sets a fixed standard, one capable of

application so as to reach the accommodationist outcomes of Shurtleff

and Kennedy. What Justice Gorsuch would use, however, is a standard

that will require just as much elaboration over time, with just as many

anomalous outcomes flowing from more purportedly “needless”

litigation, and which is entirely unknown to the history of the law

itself.

IV. CONCLUSION

Justice Gorsuch said that the application of the Lemon test

“ultimately . . . devolve[s] into a kind of children’s game.”

145

We agree

with this much: what happened in Dobbs, Shurtleff, and Kennedy can

be seen as a game, but not of the kind that Justice Gorsuch sees.

Instead, the Court’s rejection of Roe and Lemon are the latest chapters

in two ongoing constitutional stories: passing the story of

unenumerated rights relating to reproductive freedom from Roe to

Dobbs and passing the story of entanglement in deciding

Establishment Clause violations from Lemon to Shurtleff and Kennedy.

The result at any stage in this constitutional game of pass the story will

never, indeed it cannot be, one of certainty, a settled outcome for all

time.

The Court in Dobbs, Shurtleff, and Kennedy has written the latest

chapter of these two ongoing stories. But the stories are ongoing. What

the Court decided in Dobbs, and what it decided in Shurtleff and

Kennedy, will not be the end of those two stories, just as Roe and

Lemon were not. Before Roe, the story, as far as the Court sees it today,

can only be found in history, in Blackstone’s Commentaries. Before

Lemon, the story was found in Walz, and before that in Everson, and

before that, the story had yet to be told. There will be new cases with

new facts with which new courts—a newly constituted Supreme

Court!—will have to grapple. And there will be new installments, new

chapters, added to those stories. Moreover, those two stories are not

the only constitutional stories being told. They are myriad, and every

day courts across the country are adding their own sentences,

paragraphs, and chapters. That is simply part of the game of

constitutional pass the story. It began with the founding. It never ends.

145

. Shurtleff v. City of Boston, 142 S. Ct. 1583, 1605 (2022) (Gorsuch, J.,

concurring).