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The Anatomy of a Fight

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By Mike Hills | Contributing Photographer

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Published: January 25, 2020

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When you are assessing a boxing match and predicting a winner, you need to progress along several stages of selection. Just picking a winner based on your ‘gut-instinct’ will lead you to more losses than picking a winner.

Part 1: Anatomy of Picking a winner.

Picking a winner in a heavyweight title fight is not an easy thing; there’s no tried and tested algorithm. Heavyweights can be moody and inconsistent.

I’ve been watching the heavyweights for many years; heavies hold a place in my heart. I have been to many world heavyweight title fights and seen Lennox Lewis and Herbie Hide win and lose their titles. I was there when Frank Bruno came so close to winning the heavyweight title but was thankfully also there when he finally achieved his goal after three unsuccessful attempts. I was ringside watching a young Vitali Klitchko smash his way to the world title.

Historically, heavyweights can be extremely boring, or they can be edge of your seat exciting. On social media, boxing fans debate their opinion as to what was the most exciting fight in history for the heavyweight title. Topping those poles is usually George Foreman V Ron Lyle, Michael Moorer V Bery Cooper, or Riddick Bowe V Evander Holyfield. Most of Mike Tyson’s fights were not overly exciting; at his peak, Mike was just too dominant for them to be thrilling. Tyson would smash his opponents with ease. He was too fast, too mobile, too skilled, too powerful, and very aggressive. Much of Mike Tyson’s excitement came in the event build-up, not the fight itself.

Through my close friendship with Hall of Fame boxing judge and HBO’s Unofficial judge Harold Lederman, I became an HBO groupie. I was part of the HBO fight crew. This provided me with unique access to all areas of the fight process, i.e., rules meetings, fighter meetings, press conferences. I remember in the mid-1990s, HBO was in town for Naseem Hamed V Paul Ingle. HBO boss Lou Dibella came up to me and said: “Ok, Mike, where is the next Naseem Hamed in England?” I responded, “Well, we have people like Michael Brodie and….”. Lou quickly and aggressively (as only a brash New Yorker can) interjected, “No! No! I want the next Naseem Hamed.” What he meant was the next “special” talent to come through from England. He was not interested in world-class fighters; he wanted elite fighters. Ever since then, I used Lou’s yardstick as my barometer on which to grade world champions. Michael Watson, Nigel Benn, and Chris Eubank were already stars. Herbie Hide was a talented cruiserweight/heavyweight, yet he could be inconsistent. I was ringside with HBO when Joe Calzaghe made his professional debut. I spent days researching amateur and professional rankings looking for the next ‘Naseem Hamed.’ I made a few errors when passing on my picks to HBO. Carl Froch and David Haye were elite champions that will one day enter the Hall of Fame, but they were not the next ‘Naseem Hamed.’

One day this incredibly athletic heavyweight began making huge strides as an amateur. I began to watch his career closely. The Adonis looking heavyweight seemed to have it all, speed, skills, athleticism, size, charisma, looks, and the right amount of nastiness in his work. I quickly contacted Harold Lederman at HBO. I was sure this was the next ‘Naseem Hamed.’ He agreed to follow the fledgling career of this talented, yet unproven heavyweight. Whenever I read about this new heavyweight, I would pass on articles, DVDs, and www.youtube.com clips of this sensational amateur. Eventually, Harold contacted me and said, “Mike, based on your seal of approval, HBO is interested in signing ANTHONY JOSHUA to a contract.” Sadly for HBO, they were not able to gain the signature of Anthony Joshua. Who knows; if HBO had Joshua’s signature under contract, they might still be in the business of boxing.

Part 2: The Anatomy of a “Shock” Loss.

There have been many shock losses in heavyweight boxing. It’s part of what makes the division so exciting; it's also what makes the sport so frustrating in equal measure.

I can say with my hand on my heart that I did not see Anthony Joshua losing to Ruiz. I was visually aware of how uninterested he seemed when he entered the ring on June 1st, 2019.

https://www.youtube.com/watch?v=EBK4fieXn-4

I do not own a crystal ball, and I also do not profess to be a boxing expert. However, if you pay close attention to press articles, it is possible to gain an insight into how a fight is going to go. I remember seeing Buster Douglas lose to Tony Tucker. Douglas was slated because of the way he pretty much ran out of steam and gave up against Tucker. Yet, I saw something different. I saw Douglas as a talented fighter with many quality skills. I wondered if the occasion rather than the fighter had gotten to Buster. I had this belief that without the pressure of winning, Douglas could be a very dangerous foe for anyone.

Around this time in 1999, one of the most dominant heavyweights in history was starting to crumble. In the time leading up to a fight with the underestimated Frank Bruno, Tyson was involved in a series of events. Tyson marries Robin Givens and then is accused of domestic violence. He sues his manager Bill Cayton. Tyson fights with Mitch Green at 4 am and breaks his hand. Tyson is knocked out cold as his car hits a tree in an alleged suicide attempt, because of a ‘chemical imbalance’ in his brain. Next, there is the infamous television interview where Robin Givens rips and belittles Mike Tyson in front of a worldwide audience. This concludes with Robin Givens suing Tyson for divorce. Mike’s next signs with promoter Don King. There were misconduct accusations against Mike Tyson. The fight with Frank Bruno is postponed a few times. Finally, when Bruno enters the ring with Mike Tyson, Tyson’s performance is patchy at best. Mike would then go onto knockout Carl Williams early, but to be fair, Tyson was capable of doing this to anyone.

This leads us to the Buster Douglas fight in Tokyo, Japan, in 1990. Leading up to the fight, the reports on the erratic behavior of Mike Tyson kept rolling on. The night of the fight, I believed Tyson was going to lose. I didn’t even bother watching the fight. I do not believe it is such a shock as scribes will have us believe, I think history has been reinvented by some of the press.

When Mike Tyson weighed in for the first Holyfield fight, we all knew that Tyson was a shell of his former self. Sure he could still hit hard and had some speed, but he was not the monster that destroyed the heavyweight division in the 1980s. He was still favored to beat the excellent Evander Holyfield. Holyfield had been struggling during recent fights; he struggled with career middleweight/light-heavy Bobby Czyz. Yet, when I saw Tyson strip down for the weigh-in, I strongly suspected something was not right with Tyson physically, so I again refused to watch the fight. Tyson lost. Was it a monumental shock loss to me? No, it was not.

When Mike Tyson signed to fight Danny Williams, my American friends told me it was an easy night for Tyson. I told them Danny would win. What the Americans did not know was that Danny Williams was a very talented heavyweight with the ability to beat most fighters. Danny’s Achilles heel was his self-esteem in the ring. Danny didn’t handle pressure well. However, for this fight, I knew Danny would not be feeling the pressure, he was expected to lose, plus add in the fact that Mike Tyson was not Mike Tyson anymore and you have the right ingredients for a shock. My American friends doubted my ability to read the noble art when I told them Mike Tyson could not win this fight. Again, was this fight a shock? Not to me.

Let’s look at Lennox Lewis. In the 1990s through HBO, I had attended Lennox Lewis’ fights. I had been in his training camps, etc. Lewis was an excellent champion, big, strong, powerful, and athletic. Lewis outsized most heavyweights in the division. In September 1990, Lewis was making the defense of his title against the teak-tough Mike Tyson sparring partner Oliver ‘The Atomic Bull’ McCall. It was a routine defense for Lennox. Or was it? I was in town, having just spent four months in America. The night before the fight, I went with Harold Lederman for a Johnny Armour fight at the historic York Hall in Bethnal Green. Amongst the fight crowd at ringside, the talk was that Lennox was believing in his own hype and perhaps had taken his eye off McCall. People were talking of Lewis losing to Oliver McCall. I remember the night of the fight watching an unmotivated Lennox Lewis being stopped by Oliver McCall. Was it the shock people now say it was? Probably not. By the way, I believe the stoppage was a good judgment call.

Moving onto April 2001, Lennox Lewis was signed to fight the big punching Hasim Rachman. Lewis was on a good run and had developed into a dominant champion. This fight was a formality, or was it. I was in Virginia, visiting a friend when the fight was happening. I had been reading reports about Lewis not being motivated and showing more interest in a part in the motion picture Oceans 11. He was also arriving late to become acclimatized to the altitude he was going to be fighting at. As with earlier fights, I believed Lennox Lewis was going to lose and so did not watch the fight. Was this fight the huge shock we are now led to believe it was? I don’t think it was.

This now leads me to say, from a personal perspective, the legendary shock losses described above, were not that shocking. They were just the natural occurrences that a series of events led them to be. It would have been shocking if Mike Tyson and Lennox Lewis won those fights. To me, as an outsider in the sport now, the Anthony Joshua loss is far more shocking than the Tyson or Lewis loses. Mike Tyson was never able to recover from those losses; he peaked early and had a sensational career before his lifestyle and mindset reduced him from an elite world champion to a dangerous contender. However, Lennox Lewis used the losses to help guide him toward even more perfection inside the ring. To Lennox, the losses were not significant; they were just blips on his career path.

I wonder where this leads Anthony Joshua. Is the loss to Ruiz just a blip, and will it help guide Anthony to make him a better champion? Alternatively, have we seen the best of Anthony Joshua. Has he reached his zenith? Can Anthony improve his ring generalship, or is he a talented yet flawed champion? Time will tell, but with Eddie Hearn steering the ship, it’s going to be an exciting ride.

Part 3: The Lead-up to the fight

I will hold my hand up and say that I do not now devour fight reports the way I used to do back in the day. I do read the facts and stats before the fight and listen to the multiple excellent podcasts that are currently available. Unlike in the past, I was reluctant to make my big fight prediction for the Joshua V Ruiz rematch. The fights above, I was extremely confident Mike Tyson and Lennox Lewis were ready to lose, yet this rematch left me baffled.

During a recent Sky Television interview with Anna Woodhouse, Anthony Joshua didn’t seem to have the usual media-savvy presence normally on display. The veil had slipped, he seemed angered by some of the things Lennox Lewis said and as such called Lewis a ‘clown.’

I often find it hard to read Anthony Joshua. His time on the GB Elite amateur boxing squad has allowed him to be media savvy, something other fighters are not. It is often hard to know how Joshua truly feels. Joshua is full of quotes and anecdotes, yet he’s reluctant to be vulnerable to media interviewers. This left me wondering how Joshua had truly dealt with his defeat. Was he emotionally damaged? Did he need a few more fights to rebuild his confidence? Was he still a mentally robust individual? I always felt that Joshua was a man of strong mental fortitude. He’d been beaten in the World Amateur final, yet the loss didn’t seem to phase him one bit, he went on to win Olympic Gold. The Sky Television interview dented my confidence in Joshua.

https://www.youtube.com/watch?v=FRBRMOdZfo4

I knew Andy Ruiz was a quality fighter, and the way he brushed aside Joshua in their first fight seemed to erode my confidence in the English fighter further. When a fighter wins a world title, many past champions have said it improves their confidence and ring IQ by many percents. This all looked ominous for Joshua.

Several friends contacted me for advice on the rematch. For once in my life, I didn’t have confidence in my answer. I said I believed Joshua would be looking for a large ring. He will not try to engage Ruiz in a shootout. You will not see Anthony’s back on the ropes. If he finds himself on the ropes, he’ll grab Ruiz in a bearhug and walk them both back to the center of the ring. Anthony will stick to the basics; he’ll be jabbing and jabbing and jabbing and then will throw occasional straight right hands.

Meanwhile, the confident and explosive Andy Ruiz will be stalking Joshua and will explode with his faster and powerful punches when Joshua’s hands begin to drop, and his jab starts to lose snap. I thought Ruiz would spend the first six rounds, destroying Anthony’s body to slow down the over-muscled athlete. I had little faith that Joshua could hold the fight plan to fruition. I thought he might tire down the stretch and find himself in a war. Too often in the past, Anthony Joshua has thrown the fight plan away and elected to brawl. This is what makes Anthony such an exciting fighter, but it’s also what makes him vulnerable. Did I think Anthony Joshua would win? Yes, I did, I shakily predicted a points win. Was I confident in my prediction? No, I was not. I thought Ruiz had a good chance of repeating the upset.

Part 4: The Re-Match Weigh-in

I woke up at 5 am Colorado time, ready for the weigh-in. As I explained above, you can sometimes gain an appreciation of both fighters at the weigh-in. I remember when future Hall of Fame fighter Ricky Hatton weighed in for his fight against the naturally bigger fighter Floyd Mayweather. Hatton was an excellent world champion at a weight below Floyd, yet I felt he could give Floyd all kinds of problems. Did I think Ricky could win? Sure, I thought Ricky was slightly past his best and would be utilized by Mayweather, yet he had the gile and skills to beat Floyd. As Hatton weighed in, I realized that Floyd’s schoolyard bully tactics had gotten to Hatton, and now he was in a fit of rage, his amygdala was completely flared up. It was at this point that I knew Hatton was in trouble.

https://www.youtube.com/watch?v=NpF4WyiHvz8

Both Anthony Joshua and Andy Ruiz kept the weigh-in civil. Both men appeared respectful of each other. The elephant in the room was the numbers on the scales. Andy Ruiz had weighed in 283lbs, which was 15lbs heavier than the first fight. Looking at his physique, the extra weight was not formed by muscle. He looked like he’d been skipping his cardio sessions.

Anthony stepped on the scales at 237lbs, which was 10lbs less than last time and his lowest since 2014. Historically, I have never enjoyed fighters losing weight, as it can delete some of the physical strength. Chris Byrd, the former heavyweight champion of the world, dropped weight later in his career and came in at light heavy only to be starched by Shaun George. Roy Jones moved through the weights from middleweight to heavyweight. After winning the heavyweight title, Roy stripped his body back down to light heavyweight and was never even close to being the same again. Losing this weight took something away from one of the greatest fighters ever to step in the ring. Roy Jones began to suffer some worrying knockout losses.

https://www.youtube.com/watch?v=U97xim63XJ0

Part 5: The Prediction

After the weigh-in, my predictions on the fight began to oscillate. Ruiz was obesely overweight, yet had looked powerful and impressive on the pads during the media workout. However, was he fit enough to be able to close the ring down on the skinnier and more agile Anthony Joshua? How was the weightloss going to affect Joshua, there have been whispers around Anthony’s ability to take a shot for a few years. Surely losing the weight would only lessen his ability to hold a punch? Did Anthony have the physical endurance to be able to jab and move his way around the ring for 12 rounds? Let’s not forget, Anthony won his title very early in his career and, at such, is still learning his craft. Historically, Anthony has been too easily dragged into a “dog-fight.” This would be a dangerous tactic against a man as powerful as Andy Ruiz. Leading up to the fight, ex-champion, and a man that both men had fought, Joseph Parker weighed in on the fight. Parker selected Ruiz to repeat the win over Joshua. Parker claimed Ruiz had hit him harder than anyone he had fought. Joseph Parker claimed that Andy Ruiz’s power was special.

https://www.youtube.com/watch?v=f_p6gP80XsQ

As explained in detail above, what makes the heavyweight division so exciting is its unpredictability. Picking a winner can seem like crystal ball gazing. Historically, I have developed a knack of predicting a winner. It is my belief that if you listen to the whispers enough and pay close attention to the fighters’ behaviors in the lead-up to the fight, you can have around a 90% accuracy of picking the right winner. As I explained, Tyson V Douglas, Tyson V Holyfield, Tyson V Williams, Lewis V McCall, Lewis V Rachman were not the shocks the boxing press have you believe. Start paying close attention to the media, yet have the discipline to believe in your own decisions.

When making a prediction, you also need to look at the men surrounding a fighter. Mike Tyson was given much criticism for sacking his trainer Kevin Rooney and his management of Bill Cayton (his other close friend/manager Jim Jacobs had sadly died) leading up to the Buster Douglas fight. The press criticized Tyson’s training team during the Douglas fight. They failed to bring an enswell into the corner, inside they filled a condom with ice and used it unsuccessfully to reduce the swelling around Tyson’s eye. Andy Ruiz has Manny Robles in his corner. Manny is an excellent boxing trainer. He’s a man I’ve admired for a while now.

On the other hand, Anthony has Robert McCracken in his corner. Robert was a world-class fighter, and since becoming a trainer had made the British amateur scene envied around the world. My only fear with Robert was how distracted he was his by the GB Amateurs; surely, they must take up much of his time. I was also worried by a comment Robert had said, saying his main interest lay in his amateur boxers, not the professional fight scene.

My prediction for Ruiz V Joshua II was a wide points decision for Anthony Joshua. Was I secure in my decision? Not at all. I could see Andy Ruiz knocking out Anthony Joshua at any point in the fight. All it would take for this to happen would be the athletic Anthony Joshua to leave an opening for the faster Andy Ruiz to land a punch. Or maybe the slow-footed Andy Ruiz would walk Anthony Joshua down. Ruiz may cut the corners off and wear the muscled Anthony Joshua down.

Looking at the weigh-in, I didn’t feel Andy Ruiz had the same fire in his belly. Sure, Ruiz would want to win, but certainly not to the same degree as he wanted it in the first fight. I believe Anthony Joshua would be so “up” for the rematch. He’d not allow himself to be lackluster this time. This was the fighter I’d boldly predicted to Harold Lederman and HBO as the next coming of ‘Naseem Hamed.’ He was a sure hit to be a megastar. I had total belief in Anthony Joshua from his amateur days; it was time for me to continue backing my man.

I did back my fighter, yet with much trepidation. I was certainly not secure in my decision. At some point, you have to draw a line in the sand and make your statement of how a fight would finish. However, I do often change my mind a few seconds after the bout has begun.

Part 6: The Fight.

The fight turned out to be a boxing masterclass by Anthony Joshua. Anthony used his feet to move in and out. Anthony didn’t allow himself to be drawn into a shoot-out with Andy Ruiz. The weight loss helped Joshua; he kept his hands up, jabbed, and moved. He used his ramrod jab to set up his straight right hand. Was the fight boring? No, not at all; at no point could Anthony relax and become complacent. Occasionally Andy Ruiz would get through with a flurry of strong punches. Anthony would respond, yet in the past, he would plant his feet and unload. This time he moved out of range and or grabbed hold. What was surprising was, every time Anthony Joshua would grab hold of Andy Ruiz, Andy would manhandle Joshua with ease.

Anthony Joshua cruised to a decision. He showed speed, power, strength, stamina, and the ability to stick to a game plan. Maybe, like Lennox Lewis, Anthony Joshua will use the initial loss as a catalyst for improving himself inside the ring?

During the post-fight interviews, Andy Ruiz interrupted Sky TV and demanded a rematch with Anthony Joshua. I’m sorry to say the third fight will not or should not be on the fight calendar. Andy came into the ring overweight and undermotivated; he disrespected this unique event. Eddie Hearn, at Matchroom Boxing, had brought boxing to the Middle East. They had built a 20,000 seat arena to host the fighters. Fans had flown in from all over the world. This could have led Andy Ruiz to be a global icon, yet he couldn’t get himself motivated to take advantage of an incredible opportunity.

https://www.youtube.com/watch?v=mnuWA-jBOrU

So what next for Andy Ruiz? Fans will not be clammering for a rubber match. Andy will need to go back to America and find his motivation again. Anthony Joshua is now mandated to take on the top contender by the world governing bodies. Should Andy have a few more wins, and if Deontay Wilder gets past the maverick, Tyson Fury, I can see Wilder offering a title shot to Andy Ruiz. I think that’s an acceptable fight for both men.

What next for Anthony Joshua? He’s now in line to satisfy the governing bodies. They have number 1 contenders that Anthony is mandated to fight. This should keep Anthony busy for the first half of 2020. Firstly, he needs to take on Kubrat Pulev. Pulev is a solid contender and the number 1 contender for the IBF title. I see Anthony beating Pulev either on points or via late stoppage. The WBO number 1 contender is Oleksandr Usyk. Usyk is gaining almost mythical respect from the fight press. I agree that Usyk, the former undisputed cruiserweight champion, is an excellent athlete and fighter, yet I’m not 100% sold on him. I remember Usyk losing to welterweight Shawn Porter. Anyway, this debate is for a later blog.

Thank you for enduring this extended blog. I wanted readers to begin to understand how my brain operates regarding fight predictions.

(Featured Photo: Oliver Weiken/picture alliance via Getty Images)

#MH #Boxing #Anthony Joshua #Andy Ruiz Jr.

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benrleeusa · 5 years

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[Eugene Volokh] "The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard"

An analysis of the amicus briefs in the Establishment Clause / cross monument case, from Eric Rassbach at the Becket Fund.

I've been backlogged on various projects recently, so I haven't blogged as much as I'd have liked about many things, including the Court's latest Establishment Clause case. But I thought that I'd pass along this analysis of the briefs in the case from Eric Rassbach of the Becket Fund; unsurprisingly, it track some of the analysis in the Becket Fund's own brief, but I still found to be an interesting, if opinionated, guide.

My own view is that both the Lemon v. Kurtzman test and the endorsement test have ultimately failed to deliver workable legal rules; and I think they have exacerbated religious tensions in American life, even though they have often been advocated as means of supposedly reducing such tensions. I'm also generally inclined towards Becket's history-based approach; though it can yield its own uncertainties, I think it's likely to be better than the current mess. (I have no firm views on the standing argument that Becket makes in Part II of its brief.) In any event, though, here's Eric's analysis; I'd also be glad to post other interesting perspectives from people who have been closely following the case, if anyone wants to pass them along.

The American Legion Briefing: Four Characters in Search of an Establishment Clause Standard [by Eric Rassbach]

The Maryland Peace Cross case, American Legion v. American Humanist Association, will be argued on February 27. The briefs are now in, and the arguments are shaping up much as my colleague Luke Goodrich predicted they would: some people still want the Supreme Court to save the notorious Lemon test from a well-deserved death, some want the Court to punt, some want the Court to adopt a coercion standard, and some want the Court to focus on the historical elements of an establishment of religion. There are thus four main groups of characters searching for an Establishment Clause standard:

The Diehards

First, the plaintiffs American Humanist Association and some of their amici want to save the Lemon test, arguing at times fantastically that Lemon "has brought clarity and consistency to religious-display cases." But there is an air of defeat surrounding this position; it feels like a last stand. Typical in this regard is the amicus brief of Professor Douglas Laycock, which dwells at length (pp. 31-37) on how the Court might uphold the Peace Cross without changing much else in Establishment Clause doctrine. Professors Walter Dellinger and Marty Lederman even filed in support of neither party, saying that this particular Peace Cross ought not be a problem, but other ones they can imagine probably would be. If they think an Establishment Clause case is a loser, it's a loser.

More fundamentally, the Diehards' position is doctrinally adrift. Because Lemon doesn't provide a coherent rule, but the Diehards can't let Lemon go, their briefing often devolves into "here's a bunch of facts about why we should win." These repeat church-state litigants would be better served by renouncing Lemon and starting anew with a more intellectually coherent foundation for their position. In any case, they haven't offered one to the Court here.

The Punters

Another possible outcome for American Legion is a punt. That is, the Court could again avoid dealing with Lemon and apply a totality-of-the-circumstances test. As with previous decisions in this genre (e.g., Van Orden, Buono), such a decision would be valid for one journey only, and would provide no meaningful guidance to the lower courts.

Nevertheless, the Maryland-National Capital Park and Planning Commission defendants ask the Court to do just that—arguing that "the Court should not revisit [its] precedents here," but should instead uphold the cross "under existing law," which "would provide substantial clarity for lower courts" and would avoid "generat[ing] deep religious divisions."

Whatever the motive behind this position, it is willfully blind to the reality of Establishment Clause litigation nationwide. As multiple Justices and lower court judges have lamented, the Court's precedents already "generate deep religious divisions." And far from providing "clarity," using existing law (read: Lemon) to decide American Legion would keep lower courts and local governments in the state of Establishment Clause purgatory they've been lamenting for decades.

The Abstract Expressionists

By contrast, the American Legion defendant-intervenors offer a rule, but it is still not quite right. They say that history—and specifically Town of Greece's "historical practices and understandings"—ought to be the Court's guiding principle. So far, so good. But then they take a second step, attempting to reduce all of that history to a single principle: no coercion. There are three problems with this approach.

The first is that as a matter of history it simply isn't true. Professor McConnell's scholarship identifies six characteristics of a religious establishment during the founding era, and in their opening brief the American Legion defendants dwelled at length on those characteristics and Professor McConnell's scholarship. But not every one of the six characteristics of historical establishments is in fact rooted in coercion.

For example, a formal government proclamation of an official state church, with nothing more, is not coercive, though it would certainly have been a problem for the founding generation. The American Legion defendants say in their reply brief that such actions, though "arguably non-coercive," should nevertheless be treated as coercive. But relying on "arguably non-coercive" actions to be deemed coercion simply demonstrates the standard's unworkability. Similarly, government funding—particularly from non-tax revenue streams like park fees or rental income—is not always coercive, even though from a historical perspective the source of the funding would be largely irrelevant.

Second, even where coercion could be alleged, a coercion test does not provide a clear rule of decision. For example, all taxes can in some sense be viewed as coercive, but not all tax-supported funding of religious organizations is unconstitutional. Some funding is problematic—like when the government gives aid exclusively to religious groups for religious purposes. But other funding is permissible—like when government broadly funds both religious and nonreligious groups. The "coercion" test can't distinguish among these types of funding.

Third, like abstract art, abstract legal terms like "coercion" can mean different things to different people. That makes them poor rules of judicial decision. Take the idea of government "endorsement"—the Jackson Pollock of legal ideas. Different courts have taken radically different views about whether a particular government practice "endorses" religious belief or practice. To a certain degree, endorsement is in the eye of the beholder, which is why the endorsement test vexes lower courts and local governments alike.

But the American Legion defendants would replace one Rorschach test with another, because "coercion" is almost as abstract an idea as "endorsement." It is not too hard to imagine scenarios where almost any challenged practice—the Pledge of Allegiance, "In God We Trust" on the currency, or Moses in the courtroom frieze—would be seen as coercive by some (very sincere) litigants. Indeed, in this very case the plaintiffs argue that the Peace Cross is coercive. The upshot is that adopting a coercion standard would put the Court back into the "heaven of legal concepts" it is trying to escape.

The Historians

A simpler rule is the one we offered in our amicus brief: a government practice violates the Establishment Clause only if it shares the characteristics of a historical establishment—as determined by objectively known "historical practices and understandings" at the time of the Founding. And as Professor McConnell has demonstrated, history discloses six main characteristics of a historical establishment: (1) government control over doctrine and personnel of the established church; (2) mandatory attendance in the established church; (3) government financial support of the established church; (4) restrictions on worship in dissenting churches; (5) restrictions on political participation by dissenters; and (6) use of the established church to carry out civil functions.

The historical approach gets the balance between church and state correct. It forbids the state from controlling religious doctrine, compelling religious observance, or providing exclusive funding for religious institutions. But it also avoids needlessly hostility toward religion in the public square.

Several of the briefs criticize our proposed approach. The American Legion defendants say their "general coercion standard" is superior to a historical test for three reasons: (1) "because coercion is the common denominator underlying" the six hallmarks of a religious establishment; (2) because a general coercion test "would likely be more manageable to apply, and (3) because a general coercion test "has already been adopted in this Court's cases[.]" None of these distinctions has merit.

First, as noted above, coercion is not a common denominator of the six characteristics of a historical establishment. Coercion offers no basis for distinguishing between permissible and impermissible types of government funding of religion. It also fails to address non-coercive actions like the use of non-tax government revenues or a government proclamation that "Zeus is Lord of America." Since coercion and history are not coextensive, and the coercion principle is based on history, coercion cannot be a common denominator because it is underinclusive.

Similarly, in practice coercion will also be overinclusive, because the abstract nature of the coercion inquiry will mean that many practices—including passive displays like the Peace Cross—will, for some judges in some locations, be considered coercive. In short, the American Legion defendants are incorrect when they state that "either formulation will lead to the same results."

Second, for the reasons stated above, a coercion test will not be more manageable because its abstract nature would divorce the judicial inquiry from concrete historical fact.

Third, a historical approach has been used by the Supreme Court both in deciding cases like Everson and more recently in cases like Town of Greece. The problem is not that the test has never been used—it is that it has been used inconsistently.

There a few other criticisms of the historical approach. At one point, Doug Laycock claims it is an "anything goes" standard. But this is also not true. As we have pointed out, the historical approach aligns with the outcomes in this Court's Establishment Clause cases since 1947.

Similarly, one of the amicus briefs decries the idea that "eighteenth century apples" can be compared to "twenty-first century oranges". But this is a silly attack on the judicial use of history altogether and belies the general trend in Bill of Rights jurisprudence towards a historical approach, not to mention Town of Greece. If one cannot look at eighteenth century apples, then much of the Supreme Court's jurisprudence in many other areas of the law must go.

In short, there are good reasons to adopt the historical approach, and no plausible reason not to adopt it.

The End, or A Beginning?

As the briefing shows, there are four main paths the Court can follow with respect to the governing Establishment Clause standard. Those paths lead in very different directions. Lemon is a dead end. Punting would leave the courts stuck in the Lemon dead end. A reductio ad coercion would mean decades of wandering in a different wilderness of abstraction.

Only the historical approach offers a method of deciding Establishment Clause cases that can be built out over the long term. Future cases can investigate how the founders thought about funding, or government proclamations, or displays on coinage, and the like. But for now it is enough to undertake a new beginning for Establishment Clause jurisprudence by grounding it in history.

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