Former Federal Judge and Professor Philip Hamburger Discuss ‘The New Establishmentarianism’

Federalist Society Talk Explores Risks to Freedom of Political and Religious Association
New York, December 9, 2013—American society is veering dangerously close to a modern form of establishmentarianism, or state-enforced homogeneity, that conflicts with founding constitutional ideals, said former Tenth Circuit Judge Michael W. McConnell in a Dec. 3 presentation at Columbia Law School. Professor Philip Hamburger, a distinguished scholar of constitutional law and religious liberty, provided commentary.
McConnell, director of the Stanford Constitutional Law Center, explained that the First Amendment’s emphasis on freedom of speech and assembly emerged from specific historical circumstances that concerned the founders of the U.S. Constitution. In 17th and 18th century Britain, he said, the dominant establishment protected itself by controlling public space and access to certain official roles, professions, and schools.
“Establishmentarianism was the glue of the monarchical system,” McConnell said. “The leadership class was loyal to the ideology, and ambitious people had incentives to stay in line.”
Whereas political thinkers from Plato to Rousseau had envisioned republics based on common sets of values, McConnell contended, America was built upon pluralism amongst competing “factions,” to use James Madison’s term.
In 2010, McConnell argued before the U.S. Supreme Court in Christian Legal Society v. Martinez, representing a religious student group that had been denied recognition by the UC Hastings College of the Law because it restricted voting membership to those who shared its beliefs. The Christian Legal Society lost the case, which McConnell said set a troubling precedent.
“Freedom of assembly and association demands that people organize around differences. You can’t have dissent if all groups are representative of all society,” McConnell said. “If Jews can’t gather together with a Jewish rabbi for a Jewish service, then there is no freedom of religion.”
McConnell also discussed Elane Photography, a case recently appealed to the U.S. Supreme Court, in which New Mexico’s high court ruled that a Christian photographer must pay a large fine because she had refused to shoot a same-sex commitment ceremony on account of her religious beliefs.
“It’s a basic compelled speech problem,” McConnell said. “This case could be really important to calming the waters and allowing people with different views to live together harmoniously. Liberal democracy is about how we get along when we don’t agree on presuppositions.”
The talk was sponsored by the Columbia Law School Federalist Society.