Texas
passed
a
law
mandating
that
schools
must
display
the
Ten
Commandments
in
classrooms.
Because
nothing
says,
“we’re
not
establishing
a
religion”
like
forcing
students
to
learn
under
the
watchful
eye
of
a
legislature’s
preferred
scripture.
The
law
inspired
a
swift
legal
challenge
because
the
First
Amendment
is,
to
its
credit,
unambiguous
on
this
point.
And
this
challenge
carried
the
day
until
it
ran
into
a
divided
Fifth
Circuit.
In
Nathan
v.
Alamo
Heights
Independent
School
District,
the
en
banc
Fifth
Circuit
decided
9-8
that,
when
it
talks
about
protecting
the
inviolable
right
of
parents
to
direct
the
religious
education
of
their
own
children
from
state-sponsored
interference,
it
means
the
inviolable
right
of
parents
to
teach
their
kids
about
Texas
Jesus.
And
quite
literally
“Texas
Jesus,”
because
as
noted
by
dissenters,
the
statute
mandates
a
specific
Protestant
translation
of
the
Ten
Commandments
with
substantive
deviations
from
even
other
Judeo-Christian
traditions.
To
recap,
schools
teaching
kids
not
to
bully
gay
people
equals
bad,
public
schools
teaching
kids
the
Protestant
Old
Testament
equals
good.
Second
graders
can’t
know
that
gay
people
exist,
but
they
must
understand
adultery,
by
gum!
Judge
Stuart
Kyle
Duncan,
last
seen
getting
frazzled
trying
to
answer
questions
from
Stanford
Law
students,
wrote
the
majority
opinion
and
it’s
quite
the
tour
de
farce.
Citing
Kennedy,
the
case
where
the
Supreme
Court
got
caught
falsifying
the
factual
record,
Duncan
rejects
on
point
precedent
for
having
been
decided
under
the
abandoned
Lemon
test.
Could
the
Supreme
Court’s
ahistorical
new
standard
also
prohibit
a
state
law
requiring
the
Ten
Commandments
in
public
schools?
Kennedy
was,
after
all,
in
large
part
dependent
on
the
idea
that
the
school
policy
curbed
a
football
coach’s
free
exercise
rights
—
an
issue
not
implicated
here.
Well,
we’ll
never
know,
as
Duncan’s
analysis
is
that
without
Lemon‘s
three-prong
test
(and,
specifically,
its
emphasis
on
a
law
having
a
secular
purpose),
there
are
no
meaningful
limits
at
all
on
state
promotion
of
religion
as
long
as
no
student
is
forced
into
religious
exercise
or
observance
or
catechized
or
taught
the
text.
One
might
wonder
what
the
point
of
the
law
even
is
if
the
state
is
so
confident
that
students
will
never
even
notice
these
displays.
The
Fifth
Circuit
responds:
shut
up,
nerd.
As
for
infringing
the
free
exercise
rights
of
parents
trying
to
raise
their
children,
the
majority
handwaves
that
students
don’t
have
to
believe
the
display.
I,
for
one,
am
looking
forward
to
the
response
from
the
state
of
Texas
when
a
teacher
hangs
a
Cliff’s
Notes
version
of
Sharia
law
next
to
the
Commandments
and
points
out
that
no
student
is
required
to
believe
it:
Duncan’s
attempt
to
forge
a
new
explanation
of
the
Establishment
Clause
follows
the
familiar
pattern
of
selectively
citing
secondary
source
quasi-history.
It’s
becoming
a
cottage
industry
for
conservative
former
law
clerks,
without
training
in
the
historical
method,
to
compile
a
string
of
historical
factoids
into
an
article,
publish
it
in
some
student-edited
journal,
and
then
watch
judges
run
with
it
as
though
it’s
historical
scholarship
laying
out
a
definitive
account.
Which,
of
course,
invites
some
tension
when
the
real
historians
show
up
with
receipts.
The
correct
analysis,
as
the
Supreme
Court
has
explained,
is
to
ask
whether
a
challenged
law
shares
the
“hallmarks
of
religious
establishments
the
framers
sought
to
prohibit
when
they
adopted
the
First
Amendment.”
Kennedy,
597
U.S.
at
537;
see
also
Hilsenrath,
136
F.4th
at
491
n.54
(asking
whether
plaintiffs
have
“prov[en]
a
set
of
facts
that
would
have
historically
been
understood
as
an
establishment
of
religion”).
Emphasis
added.
The
district
court
allowed
expert
testimony
from
religious
scholars
and
historians,
a
prudent
decision
if
one
actually
believed
that
the
standard
involves
figuring
out
what
“would
have
historically
been
understood
as
an
establishment
of
religion.”
But
that
testimony
did
not
work
out
for
the
majority’s
preordained
outcome,
and
so
they
needed
Duncan
to
handwave
it
all
away.
What
the
founding
generation
understood
as
an
establishment
of
religion
is
a
legal
question
to
be
decided
by
a
court,
not
a
“fact”
question
to
be
decided
by
experts,
no
matter
how
credentialed.
This
is
a
mere
two
paragraphs
removed
from
the
quote
about
having
to
prove
“a
set
of
facts.”
Beyond
parody.
So
how
can
the
majority
navigate
this
hybrid
not-a-fact-set-of-facts?
As
always,
“JD
Hubris”
comes
to
the
rescue.
For
once
you
have
a
law
degree,
you
can
be
an
expert
in
every
subject!
Indeed,
your
law
school
education
makes
you
even
more
of
an
expert
than
someone
who
devoted
their
entire
professional
career
to
a
subject.
[Judges]
do
so
by
consulting
articles,
books,
and
historical
sources
and
bringing
their
own
independent
judgment
to
bear
on
them—not
by
appointing
an
“expert,”
whose
“findings”
are
insulated
by
clear-error
review
on
appeal.
It’s
the
“IvE
dOnE
mY
oWn
ReSeArCh”
meme
made
flesh.
But,
in
fairness
to
Duncan,
without
committing
the
air
quotes
to
print,
this
sentence
might
read
as
a
serious
person’s
analysis.
We
would
be
remiss
not
to
thank
him
for
being
honest.
Of
course,
he’s
unintentionally
hit
on
the
problem
with
originalism.
In
the
effort
to
disguise
that
they’re
just
reverse
engineering
decisions
to
match
their
policy
priorities,
they
contrived
a
factual
basis
for
their
whole
interpretive
project.
By
dressing
it
up
this
way,
they
tried
to
cynically
borrow
legitimacy
by
claiming
their
philosophy
was
“fact,”
but
they
never
had
a
plan
to
deal
with
the
reality
that
factual
questions
invite
the
need
for
historians
who
practice
with
the
sort
of
intellectual
rigor
that
eludes
Duncan.
This
is
where
he
should
retreat
to
some
sort
of
neo-textualism
and
try
to
argue
—
somehow
—
that
a
state
law
forcing
public
schools
to
display
the
Ten
Commandments
does
not
amount
to
an
official
expression
of
religion.
Instead,
he
tries
to
square-peg-round-hole
reject
the
factual
record
in
a
case
about…
a
set
of
facts.
Plaintiffs
would
rely
on
this
practice
to
resolve
“fact
issues”
about
the
Ten
Commandments’
role
in
American
history.
But
they
confuse
the
kind
of
facts
experts
can
help
determine
(so-called
“adjudicative
facts”)
from
facts
that
are
decided
by
courts
(so-called
“legislative
facts”).
See,
e.g.,
Moore
v.
Madigan,
702
F.3d
933,
942
(7th
Cir.
2012)
(distinguishing
“‘legislative
facts,’
which
.
.
.
bear
on
the
justification
for
legislation,
as
distinct
from
facts
concerning
the
conduct
of
parties
in
a
particular
case
(‘adjudicative
facts’)”
(citing
Fed.
R.
Evid.
201(a))).
As
Judge
Posner
has
explained,
“Only
adjudicative
facts
are
determined
in
trials,
and
only
legislative
facts
are
relevant
to
the
constitutionality
of
[a
challenged
law].”
I
am
once
again
begging
Fifth
Circuit
judges
to
ACTUALLY
READ
THE
CASES
THEY
CITE.
This
came
up
in
Rahimi,
when
Judge
Ho
wrote
a
concurrence
citing
a
pair
of
cases
that
actually
concluded
the
opposite
way.
Here,
Duncan
cites
Judge
Posner
—
hoping
to
bask
in
the
borrowed
glory
of
a
respected
jurist
—
to
categorize
the
historical
record
as
“legislative
facts,”
which,
despite
the
name,
pose
a
question
of
law
and
not
fact.
Except,
that’s
not
what
Posner’s
decision
says.
Moore
v.
Madigan
challenged
an
Illinois
gun
regulation.
Writing
for
the
majority,
Judge
Posner
made
two
separate
conclusions.
Regarding
history,
Posner
wrote
that
the
Seventh
Circuit
could
not
relitigate
the
history
of
the
Second
Amendment
in
light
of
Heller
and
McDonald
—
for
better
or
worse.
“The
Supreme
Court
rejected
the
argument,”
Posner
wrote.
“The
appellees
ask
us
to
repudiate
the
Court’s
historical
analysis.
That
we
can’t
do.”
Posner
does
not
dismiss
the
analysis
of
expert
historians
as
improper
—
he
writes
that
the
matter
is
settled
above
his
pay
grade.
So
what
are
“legislative
facts?”
After
establishing
that
the
Seventh
Circuit
would
not
revisit
the
historical
underpinnings
of
the
Second
Amendment,
Posner’s
opinion
concludes
that
there’s
no
further
evidentiary
issue
for
a
trial
court
to
determine,
because
“The
key
legislative
facts
in
this
case
are
the
effects
of
the
Illinois
law;
the
state
has
failed
to
show
that
those
effects
are
positive.”
Continuing,
Judge
Posner
explains
that,
“Illinois
had
to
provide
us
with
more
than
merely
a
rational
basis
for
believing
that
its
uniquely
sweeping
ban
is
justified
by
an
increase
in
public
safety.
It
has
failed
to
meet
this
burden.”
Note
how
the
“legislative
facts”
were
not
the
history
of
the
right.
The
generous
reading
of
Duncan
invoking
Moore
v.
Madigan
is
that
he’s
just
trying
to
bootstrap
history
onto
this
convenient
category
of
non-fact-facts.
But
to
do
that
requires
characterizing
the
relevant
historical
issue
as
an
assessment
of
the
Framers’
legislative
intent.
But
true
originalists
have
spent
years
telling
us
that
legislative
intent
is
the
wrong
inquiry,
instead
elevating
“original
public
meaning”
or
a
more
vague
concept
of
“history
and
tradition.”
And
they
did
this
for
good
reason:
legislative
intent
narrows
the
paper
trail
too
much.
Expanding
the
historical
inquiry
to
the
public
at
large
makes
it
a
lot
easier
to
cherry
pick
historical
nuggets
from
long-forgotten
pamphleteers
and
sepia-toned
newspapers.
The
downside
is
that
it
requires
judges
to
treat
history
the
way
Richard
Epstein
treats
epidemiology
—
by
declaring,
based
on
pure
legal
intuition,
that
COVID
wouldn’t
kill
more
than
500
people.
Pinning
the
law
to
history
was
supposed
to
provide
a
veneer
of
credibility.
Telling
the
public
that
judges
will
“bring[]
their
own
independent
judgment
to
bear”
on
writing,
or
rewriting,
history
throws
that
out
the
window.
It
is
an
empty
husk
at
that
point,
stripped
of
its
already
flimsy
faux
intellectual
justifications.
(Full
opinion
on
the
next
page…)
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