[Editor’s Note: In this installment of I•CONnect’s Book Review/Response Series, Markus Thiel reviews Claudia Haupt’s recently-published book Religion-State Relations in the United States and Germany: The Quest for Neutrality. Claudia Haupt then responds to Markus Thiel’s review.]
—Markus Thiel, Professor of Public Law, University of Applied Sciences for Public Administration North Rhine-Westphalia, Cologne, and Associate Professor, Faculty of Law, Heinrich-Heine-University Düsseldorf, reviewing Claudia Haupt, Religion-State Relations in the United States and Germany: The Quest for Neutrality (Cambridge 2012).
Some topics traditionally tend to be a permanent battleground for conflicting notions and beliefs. The relation of religion and state–deeply intertwined for centuries–is one of the most prominent controversial subjects in several countries with a constitutional tradition. The controversy has an effect on a bundle of practical problems, but can be focused on some core questions: What do “neutrality” and separation in religion-state issues mean? Is the state obliged to comply with, guarantee, and protect neutrality? And to what extent, and with which limitations and exceptions?
Claudia Haupt has illuminated these and other questions in her doctoral thesis in Political Science which is the basis of the reviewed book. It proves to be a gain that the author is both a scholar in jurisprudence and political sciences, and has rich insights in the German constitutional framework as well as in the United States’ political and legal system. It is difficult to critically challenge a book in a substantive way that is methodically skilled, appealing in style and language, and clear and cogent in reasoning. In addition to that, a reviewer from Cologne is not able to resist to be a little bit biased by a picture of the Cologne Cathedral’s twin towers on the book’s cover. Nevertheless, I will try to point out a small selection of aspects that may be considered as a–quite benevolent–critique, and predominantly are of methodical kind.
The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.
In addition to that, some terms in Claudia Haupt’s book remain somewhat blurred. A central question it deals with is–as a subquestion of the comparative approach’s benefit–the controversy over the “citation” of foreign law in interpreting the US constitution. It is not quite clear what “citation” means in this context–does it cover the simple mention of or reference to foreign constitutional provisions, or an argumentation aid, or an adoption of results? The spectrum of the impact by foreign interpretation and application of law is wide–the mere note on foreign law (as “citation” would be understood in Germany) is the least problematic influence. Here, some more distinctions should have been drawn.
Moreover, the specific German situation seems „underexposed“ for a comparative monograph, compared to the comprehensive analysis of the neutrality in the United States. Claudia Haupt provides a well-founded depiction of neutrality in the United States, including the historical, theoretical and philosophical background. The eminently important constitutional regulations and the judicature of the German Bundesverfassungsgericht (which has adopted a well-defined, restrictive position regarding the influence of foreign law on the Grundgesetz’ interpretation and application) have not been given the same attention as the legal situation in the United States. For example, Claudia Haupt describes the debate on “American exceptionalism”, but does not present a summary of the opinions regarding foreign influence in Germany. She broadly and vividly discusses the Supreme Court’s decisions on school prayers, on religious symbols in class- and courtrooms, and on religious clothing in school, but only briefly traces the cases the Bundesverfassungsgericht had to decide. The rich sources of the academic debates on these questions in Germany remain unconsidered. The “Supreme Court”-centric view is transferred to the German legal system, fading out a comprehensive arsenal of arguments provided by constitutional law scholars in Germany. The reviewer is aware of the fact that one should not count, but weigh research outcome, but it is yet another proof of the author’s affinity for the United States’ legal system that the descriptions of the role of history in constitutional interpretation amounts to three pages for Germany (which–once more–only deal with the Federal Constitutional Courts’ practice) and seventeen for the USA. This imbalance gives the slight impression of a “one way”-comparison; however, it is adjusted in the following, far more balanced chapters on the origin of neutrality in Germany and the USA.
Those few points of critique are not able to dilute the positive impression of Claudia Haupt’s book. The final chapter–“delineating neutrality”–is a brilliant tour de force through the main aspects of state neutrality regarding issues of religion. For example, the German conception of a limping neutrality, which allows several conveniences for religious denominations acknowledged as a statutory body (for instance the collection of church taxes by the state’s financial administration), and is described as a “benevolent” neutrality and an institutional separation and cooperation of state and church by the author, is discussed in detail. On the other hand, the interesting question if and how the idea or principle of neutrality can be used as an interpretive guide despite its vagueness, would have deserved a more in-depth analysis. Especially in German constitutional theory, the importance and role of constitutional principles (for example, the principle of a “militant democracy”) are discussed controversially. “Difficult to define, but important”–this description of neutrality Claudia Haupt provides in the summary of her book applies to a large number of legal institutions. Regarding neutrality, the author succeeds in promoting the task of definition and in showing the significance of a balance between state and religion in a legal system based on a constitutional tradition of freedom.
—Claudia Haupt, Columbia Law School
I would like to thank Markus Thiel for his generous and insightful review of my book. He thoughtfully raises several interesting questions relating to comparative constitutional law. Indeed, I am delighted that he identifies himself as an “avowed skeptic” of comparative constitutional law, but does not confine his critique to first order issues. In my response, I would like to focus on the three methodological points he raises: first, the place of doctrine in comparative constitutional law; second, the role of case law and weight of authority in comparing common law and civil law traditions; and finally, the balancing of materials in a two-country comparison.
Blackletter law tends to dominate in the German law schools; hence, Markus Thiel appropriately, and to my mind correctly, points out that “[a] German reader with a legal background misses the presentation of the relevant constitutional law ‘dogmatics’ to a certain extent.” As a descriptive matter, I have no qualms with his contention. This insight, of course, results in a strategic dilemma: should a legal scholar engaged in comparative analysis spend more time writing on the historical, social, and political context—as was my approach—or the doctrinal details of each system? In my assessment, doctrinal comparisons are perhaps the least useful approach to comparative constitutional law, where “law in action” rather than “law on the books” tends to yield more valuable insights. Note, though, that “law” is the key component of both.
Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.
Insofar as Markus Thiel detects a case law bias—a focus on judicial decisions at the expense of a perhaps more detailed discussion of the legal academic literature—the institutional focus on the judicial body charged with constitutional decisionmaking most readily provides the political scientist’s explanation. But there is more to the critique; indeed, Markus Thiel’s observation goes to the core of comparing judicial decisionmaking in the common law and civil law traditions. Therefore, this part of his critique is best addressed with another observation he makes regarding the meaning of “citation” in the U.S. context. Here, too, the distinct traditions provide much of the explanation.
In the U.S. tradition, case law is at the heart of legal argument. Questions of weight of authority and precedent, however, only arise with respect to judicial decisions. The role of scholarship is much less pronounced than in the civil law tradition, and particularly the German tradition of judicial writing. In the United States, non-judicial writing is unequivocally merely secondary authority. In comparative perspective, then, the question of selection of materials arises. A focus on judicial opinions likely undervalues the influence of academic writing in Germany as much as extended discussion of academic writing would overestimate its influence in the United States. The tradeoffs, of course, could be mitigated by expanded explanatory notes on methodology; alas, I fear that readability would suffer.
Related to the role of cases as primary authority, the “citation” issue arises. As Markus Thiel rightly points out, there are many ways to “cite” foreign law; he identifies three, ranging from “mere mention” to “argumentation aid” to “adoption of results.” Indeed, as he submits, the German understanding of “citation” differs from that in the United States. From the U.S. perspective, “citation” includes a bundle of connotations related to weight of authority and precedent that is almost entirely absent from its meaning in the German context. The key distinction here is that between mandatory and persuasive authority. References to foreign law in the debate over comparative constitutional law recounted in the introductory chapters of my book were never intended by its proponents to take the form of mandatory authority. Yet, much of the discussion was waged as if there was such a thing as binding foreign precedent implied in foreign law citation, in the shadow of rules governing weight of authority and precedent.
The practice of “citing” foreign law in the German sense, by contrast, would not have generated much—if any—controversy. As one former judge of the German Federal Constitutional Court pointed out, “[a] discussion like the one in the United States [regarding references to international and foreign sources in constitutional adjudication] is plainly unthinkable in Germany.” Moreover, there seems to be somewhat of a stealth practice of considering foreign law in place at the Federal Constitutional Court. While the court will only explicitly reference its own cases, it may consult foreign sources without overt mention in the judgments themselves. The mechanics of judicial reasoning, a function of the tradition of common law judging as distinct from civil law judging, thus account for a profound difference in the understanding of the terminology of “citation.”
Finally, any comparative study has to consider the balance of the materials it engages with, and imbalances are sometimes difficult to avoid. As Markus Thiel aptly notes, “one should not count but weigh research outcome.” The imbalance he perceives in the “role of history in constitutional interpretation” chapter, for instance, is the result of an at least arguably particularly American debate concerning originalism. This debate has captivated American constitutional law discourse for the better part of the last thirty years; a parallel debate is largely absent in Germany. Other perceived imbalances may result from the length of judicial opinions, their narrative—traditionally more prominent in the writing of the Supreme Court—or doctrinal focus, and inclusion of outside materials, a topic already addressed. There is always a desire to expand the discussion, to be sure, but the point I would add to Markus Thiel’s observation is that sometimes, these factors also dictate the choice and scope of discussion. Overall, none of this should be taken as detracting from the value of comparative constitutional inquiry; though I suspect the reviewer and the author might reasonably differ on that point.
 Lemon v. Kurtzman, 403 U.S. 602 (1971). The classic formula of this three-prong test states: “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.” Id. at 612-13 (internal citations omitted).
 Brun-Otto Bryde, The Constitutional Judge and the International Constitutionalist Dialogue, 80 Tul. L. Rev. 203, 205 (2005).
 Id. at 206.
 See Jamal Greene, On the Origins of Originalism, 88 Tex. L. Rev. 1 (2009). For a response from a comparative constitutional law perspective, see David Fontana, Comparative Originalism, 88 Tex. L. Rev. See Also 189 (2010).
 Major contributions to the American debate arguably “would be a non-starter in the constitutional culture that has become the most influential in the world, the one anchored by the post-World-War-II German constitution.” Kim Lane Scheppele, Jack Balkin is an American, 25 Yale J. L. & Human. 101, 101 (2013).