The hidden legacy of Holy Trinity Church: the unique national institution canon.

• Author: Krishnakumar, Anita S.

ABSTRACT

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion--which declares that the "spirit" of a statute should trump its "letter"--and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's historically Christian roots and explains that, other interpretive rules aside, the statute simply cannot be construed against the church because the United States "is a Christian nation."

This Article maps the methodology of the Holy Trinity Court's Christian-nation argument and contends that that methodology constitutes an interpretive canon in its own right--one which perhaps aptly can be called the "unique national institution" canon. The Article goes on to demonstrate that this interpretative canon has reared its head in a number of statutory interpretation cases decided since Holy Trinity.

TABLE OF CONTENTS INTRODUCTION I. HOLY TRINITY'S OTHER INTERPRETIVE PRECEDENT II. HOLY TRINITY'S UNIQUE NATIONAL INSTITUTION DESCENDANTS A. Flood v. Kuhn B. Leo Sheep v. United States C. FDA v. Brown & Williamson D. Morton v. Mancari III. THE UNIQUE NATIONAL INSTITUTION CANON IN CONTEXT A. "Canons" Unpacked B. Normative Considerations CONCLUSION INTRODUCTION

In his dissenting opinion in Zuni Public School District No. 89 v. Department of Education, (1) Justice Scalia lamented that the majority's statutory analysis resurrected "Church of the Holy Trinity ... Phoenix-like, from the ashes." (2) He was referring, of course, to Holy Trinity Church v. United States, (3) an 1892 case that has become a titan in the field of statutory interpretation. At issue in Holy Trinity was the Alien Contract Labor Act of 1885, (4) which made it illegal for employers to pay the migration costs of aliens under contract to perform "labor or service of any kind" in the United States. (5) The government sought to apply the statute against a church that had paid the migration costs for an English clergyman under contract to become the church's rector. Relying in part on House and Senate committee reports, the Supreme Court famously declared that "a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers." (6) The Court went on to conclude that the church's conduct was not prohibited because Congress intended for the statute to apply only to contracts to import manual laborers--not to contracts involving the importation of "brain toilers." (7)

Holy Trinity is known, in the annals of statutory interpretation, as a turning point in the judicial use of internal legislative history (8) to trump a statute's clear text. (9) As Justice Scalia's Zuni dissent suggests, the case is a perennial target for textualists seeking to confine statutory interpretation to the text and nothing but the text (10) and, conversely, a beacon for intentionalists seeking to emphasize legislative purpose and intent as the touchstones of the interpretive process. (11)

In accord with its contentious place in legal history, scholars and judges have spilt considerable ink analyzing Holy Trinity. Adrian Vermeule has argued that the Holy Trinity Court misread the relevant legislative history and suggested that the case should serve as a cautionary example of judicial incompetence accurately to decipher legislative history. (12) Carol Chomsky has argued that Holy Trinity was decided correctly when viewed in light of both the historical context within which the Alien Contract Labor Act was enacted and the jurisprudential context within which the Court rendered its decision. (13) Justice Scalia has addressed Holy Trinity in countless lectures and in his book on statutory interpretation, calling it the "prototypical" example of how a statute ought not to be interpreted and deriding it as the precedent cited 'Whenever counsel wants us to ignore the narrow, deadening text of the statute, and pay attention to the life-giving legislative intent. It is nothing but an invitation to judicial lawmaking." (14) Justice Kennedy similarly has criticized Holy Trinity as a case that empowers courts "to rummage through unauthoritative materials to consult the spirit of the legislation in order to discover an alternative interpretation of the statute with which the Court is more comfortable." (15) Perhaps most instructively, Philip Frickey tolls his students that "Holy Trinity Church is the case you always cite when the text is hopelessly against you." (16)

The conventional wisdom, upon which critics as well as admirers of the case agree, is that Holy Trinity's interpretive legacy lies in the directive that courts should privilege the spirit, as illuminated by legislative history, over the letter of the law. (17) This Article suggests that Holy Trinity has another, underappreciated, legacy: its Christian-nation argument. The little-discussed second half of the Court's Holy Trinity opinion presents an impassioned, lengthy overview of the United States' history and status as a Christian nation and reasons that against this backdrop, Congress simply could not have intended for the Alien Contract Labor Act to prohibit contracts by churches to pay the passage of Christian ministers. (18) As this Article explains, that national-history-invoking approach to interpreting statutes--which I shall call the "unique national institution" canon--has endured, even if the Holy Trinity Court's characterization of the United States as a Christian nation has not.

In fact, since its inauguration (19) in Holy Trinity, the unique national institution canon has reared its head in at least four prominent Supreme Court cases. (20) Like Holy Trinity, all four of these cases resulted in controversial statutory constructions excepting one class of 'Unique national" litigants from the relevant statute's reach. And although none of the later cases directly referenced Holy Trinity--likely because the Christian-nation language offended twentieth-century sensibilities (21)--each case relied significantly on arguments cast in the "Christian nation" mold to justify the creation of a statutory exception.

Part I of this Article examines the overlooked second half of the Holy Trinity opinion. Upon inspection, the opinion's Christian-nation passages emerge as more than just an unabashed admission of the judicial prejudices underlying the Court's statutory interpretation. In fact, they amount to a carefully-constructed narrative about the unique national status of the Christian religion, employed as an authoritative guide to legislative intent. Part II explores the Court's adaptation of the unique national institution exception in four leading twentieth-century statutory interpretation cases. Section A discusses parallels between Holy Trinity's Christian-nation construct and the ode to baseball that opens the Court's opinion in Flood v. Kuhn. Section B locates Justice Rehnquist's homage to railroads in Leo Sheep v. United States within Holy Trinity's unique national institution tradition. Section C illuminates the role that tobacco's unique historical stature played in FDA v. Brown & Williamson. And Section D examines the Native American usurpation narrative undergirding the Court's opinion in Morton v. Mancari. Part III then considers the theoretical implications of the unique national institution canon, situating it within larger interpretive debates about text versus intent and the proper scope of judicial inquiry in statutory interpretation cases.

1. HOLY TRINITY'S OTHER INTERPRETIVE PRECEDENT

   To the extent that it has been discussed at all, the Christian-nation portion of the Holy Trinity opinion generally has been dismissed as a nineteenth-century embarrassment beyond which we as a nation have grown, (22) or as a declaration by one religious justice (23) that has had little impact on the subsequent development of American law. (24) In a curious but telling tic, commentators tend to refer to "Justice Brewer's" opinion rather than "the Court's opinion" when talking about the Christian-nation argument. (25) But in their rush to distance the Court and the law from the Christian-nation argument, commentators have missed the forest for the trees. That is, they have missed the methodological innovation underlying the Holy Trinity Court's second, independent basis for its ruling.

   Remarkably, the second half of the Holy Trinity opinion declared that, irrespective of all the interpretive rules discussed earlier in the opinion, including "spirits" and legislative history, the Alien Contract Labor Act could not be read to prohibit the church's action because "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people." (26) This was, the Court explained, "historically true." (27) The Court then launched into what can only be described as a history lesson, complete with documentary exhibits, marshaled to prove the Court's point that the United States is a Christian nation.

   Exhibit 1 in the Court's history lesson was the commission given to Christopher Columbus by Ferdinand and Isabella, which invoked "the grace of God," and expressed the "hope[] that by God's assistance some of the continents and islands in the ocean will be discovered." (28) Exhibit 2 was the first colonial grant, made to Sir Walter Raleigh in 1584 from "Elizabeth, by the grace of God" and conveying the authority to enact statutes, provided that the statutes "be not against the true Christian faith nowe professed in the Church of England." (29) The next several...