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Unformatted text preview: Schrödinger’s
Cross:
The
Quantum
Mechanics
of
the
Establishment
Clause
 * Joseph
Blocher 
 
 Perhaps
the
most
famous
character
in
modern
physics
is
Schrödinger’s
Cat,
an
unfortunate
 feline
trapped
in
a
box
alongside
a
flask
containing
deadly
poison
that
may
or
may
not
have
been
 released.
Thanks
to
the
wonders
of
quantum
mechanics,
the
cat
is
both
alive
and
dead—“mixed
or
 smeared
out
in
equal
parts”—until
the
box
is
opened,
at
which
point
the
act
of
observation
causes
its
 state
to
collapse
into
either
life
or
death.

 Far
away1
in
the
Mojave
Desert,
the
“life”
of
a
six‐foot‐tall
cross
is
disputed:
it
is
either
a
religious
 symbol
or
it
is
not.2
Like
the
cat,
it
has
spent
much
of
its
life
(or
non‐life)
in
a
box
that
makes
direct
 observation
impossible.3
Is
the
cross,
like
the
cat,
both
alive
and
dead?
And
does
opening
the
box— either
metaphorically
or
otherwise—cause
it
to
become
one
or
the
other?
This
short
Article
argues
that
 recent
forays
into
“constitutional
physics”
may
have
over‐emphasized
the
role
of
box‐opening
judges,
 and
thereby
elided
the
cat’s
predicament
and
the
relationship
between
legal
and
social
reality.

 I. Schrödinger’s
Cat
 One
of
the
many
mind‐bending
implications
of
quantum
mechanics
is
that
of
the
quantum
 superposition:
the
simultaneous
combination
of
all
possible
states
of
a
subatomic
system.
In
such
a
 superposition,
a
particle
occupies
all
positions
at
once—it
is
both
here
and
not‐here,
there
and
not‐ there,
all
at
the
same
time.
According
to
the
Copenhagen
interpretation
of
quantum
mechanics,
which
 was
ascendant
in
the
1920s,
the
superposition
collapses
into
a
definite
state
only
at
the
point
of
 observation.4
The
observer
and
the
observed
are
therefore
intertwined,
and
it
is
the
act
of
observation
 that
causes
the
superposition
to
take
one
state
or
another.
 Many
physicists
found
this
explanation
baffling.
Albert
Einstein,
for
one,
famously
refused
to
 accept
it,
writing
that
“one
cannot
get
around
the
assumption
of
reality—if
only
one
is
honest.”5
In
 1935,
Austrian
physicist
Erwin
Schrödinger
came
up
with
a
brilliant
thought
experiment
to
illustrate
the
 odd
implications
of
the
Copenhagen
interpretation’s
observer‐centered
reality:
 One
can
even
set
up
quite
ridiculous
cases.
A
cat
is
penned
up
in
a
steel
 chamber,
along
with
the
following
device
(which
must
be
secured
against
direct
 




























































 * 
Assistant
Professor,
Duke
Law
School.
Special
thanks
to
Thomas
Dominic
for
research
assistance,
and
to
David
 Blocher
for
his
patient
tutelage
in
quantum
mechanics.
Any
remaining
errors
are
my
own
and
not
my
own,
mixed
 or
smeared
out
in
equal
parts.
 1 
One
hopes.
Schrödinger
doesn’t
indicate
where
his
diabolical
cat
trap
is
located.
 2 
Salazar
v.
Buono,
559
U.S.
___
(2010).
 3 
Nick
Allen,
Mojave
Cross
Memorial
to
WWI
Dead
“Violates
First
Amendment,”
DAILY
TELEGRAPH,
Oc.
9,
2009,
 available
at
http://www.telegraph.co.uk/news/worldnews/northamerica/usa/6266291/Mojave‐Cross‐memorial‐ to‐WWI‐dead‐violates‐first‐amendment.html.
 4 
Quantum
Mechanics,
1925‐27:
Triumph
of
the
Copenhagen
Interpretation,
 http://www.aip.org/history/heisenberg/p09.htm
(last
visited
July
7,
2010).
 5 
Letter
from
Albert
Einstein
to
Erwin
Schrödinger
(Dec.
12,
1950),
in
LETTERS
ON
WAVE
MECHANICS:
SCHRÖDINGER,
 PLANCK,
EINSTEIN,
LORENTZ,
39
(K.
Przibriam
ed.,
Martin
J.
Klein
trans.,
1967).
 1
 
 Electronic copy available at: http://ssrn.com/abstract=1663322 interference
by
the
cat):
in
a
Geiger
counter,
there
is
a
tiny
bit
of
radioactive
substance,
 so
small
that
perhaps
in
the
course
of
the
hour,
one
of
the
atoms
decays,
but
also,
with
 equal
probability,
perhaps
none;
if
it
happens,
the
counter
tube
discharges,
and
through
 a
relay
releases
a
hammer
that
shatters
a
small
flask
of
hydrocyanic
acid.
If
one
has
left
 this
entire
system
to
itself
for
an
hour,
one
would
say
that
the
cat
still
lives
if
meanwhile
 no
atom
has
decayed.
The
psi‐function
of
the
entire
system
would
express
this
by
 having
in
it
the
living
and
dead
cat
(pardon
the
expression)
mixed
or
smeared
out
in
 equal
parts.6
 The
purpose
of
the
thought
experiment
was
not
to
suggest
that
a
cat
can
be
simultaneously
 alive
and
dead,
but
to
highlight
the
bizarre
implications
of
the
Copenhagen
approach
when
applied
to
 large‐scale
(i.e.,
cat‐sized)
systems.
Schrödinger
hoped
that
his
example
would
prevent
people
from
“so
 naively
accepting
as
valid
a
‘blurred
model’
for
representing
reality.”7
 II. Constitutional
Physics
 Constitutional
scholars
have
occasionally
turned
to
physics
to
inform
their
craft.8
Perhaps
most
 importantly,
in
a
Harvard
Law
Review
article
notable
both
for
its
innovative
approach
and
for
the
 distinguished
research
assistants
who
helped
assemble
it
(one
in
particular
has
had
a
constitutionally
 significant
career9),
Laurence
Tribe
argued
that
“the
metaphors
and
intuitions
that
guide
physicists
can
 enrich
our
comprehension
of
social
and
legal
issues.”10
 Tribe
focused
on
two
major
developments
in
physics.
First,
the
theory
of
general
relativity
 demonstrated
the
interconnectedness
of
physical
masses
and
space‐time,
showing
that
there
is
no
such
 thing
as
a
“foreground”
of
physical
objects
and
a
“background”
of
space.11
Space
itself
is
curved
by
 physical
objects,
and
it
is
that
curvature—not
a
“flat”
universe—through
which
objects
move.

 Tribe
argued
that
as
it
is
with
space‐time,
so
is
it
with
“the
Curvature
of
Constitutional
Space.”
For
 example,
he
suggested
that
the
search
for
specific
state
action
regarding
a
particular
individual
(the
 approach
taken
in
cases
like
DeShaney
v.
Winnebago
County12)
is
misguided.
Instead,
it
is
the
pervasive
 influence
of
the
“legal
structure
itself”13—not
necessarily
any
particular
act—that
demonstrates
the
 state’s
involvement
in
Poor
Joshua’s
situation.
In
other
words,
as
with
relativity,
it
is
simply
impossible
 




























































 6 
Erwin
Schrödinger
(John
D.
Trimmer,
trans.),
The
Present
Situation
in
Quantum
Mechanics:
A
Translation
of
 Schrödinger’s
“Cat
Paradox
Paper”,
available
at
http://www.tu‐harburg.de/rzt/rzt/it/QM/cat.html.
 7 
Id.
 8 
See,
e.g.,
MICHAEL
KAMMEN,
A
MACHINE
THAT
WOULD
GO
OF
ITSELF:
THE
CONSTITUTION
IN
AMERICAN
CULTURE
(1986);
Brian
 Koukoutchos,
Constitutional
Kinetics:
The
Independent
Counsel
Case
and
the
Separation
of
Powers,
23
WAKE
FOREST
 L.
REV.
635
(1988).
 9 
http://www.whitehouse.gov/administration/president‐obama
 10 
Laurence
H.
Tribe,
The
Curvature
of
Constitutional
Space:
What
Lawyers
Can
Learn
from
Modern
Physics,
103
 HARV.
L.
REV.
1,
2
(1989).
 11 
Id.
at
5‐7.
 12 
489
U.S.
189
(1989).
 13 
Id.
at
12.
 2
 
 Electronic copy available at: http://ssrn.com/abstract=1663322 to
separate
foreground
(i.e.,
state
action,
or
the
movement
of
a
physical
object)
from
background
(i.e.,
 private
ordering,
or
the
space
through
which
a
physical
object
moves).

 Tribe
turned
next
to
quantum
theory,
focusing
on
Heisenberg’s
Uncertainty
Principle,
which
holds
 that
one
cannot
simultaneously
measure
the
precise
position
and

momentum
of
a
particle—the
more
 accurately
one
measures
the
former,
the
more
impossible
it
is
to
know
the
latter.
Tribe
extended
this
 principle
into
constitutional
law
by
extracting
from
it
two
related
ideas:
“[F]irst,
that
any
observation
 necessarily
requires
intervention
into
the
system
being
studied;
and
second,
that
we
can
never
be
 certain
that
the
intervention
did
not
itself
change
the
system
in
some
unknown
way.”14
Thus
“courts
 must
take
into
account
how
the
very
process
of
legal
‘observation’
(i.e.,
judging)
shapes
both
the
judges
 themselves
and
the
materials
being
judged.”15
 John
M.
Bickers
explores
this
second
idea
in
his
recent
article
“Of
Non‐Horses,
Quantum
Mechanics,
 and
the
Establishment
Clause.”16
Bickers
argues
that
courts
must
“acknowledge
their
own
role
in
the
 process,
and
admit
that
their
actions
cannot
be
neutral
between
religion
and
nonreligion.”17
Like
Tribe
 and
the
physicists
of
the
Copenhagen
school,
he
breaks
down
the
supposed
division
between
observer
 and
observed,
and
demonstrates
quite
convincingly
that
courts
inevitably
shape
the
world
in
which
they
 operate.

 III. The
Quantum
Mechanics
of
the
Establishment
Clause
 Tribe
and
Bickers
implicitly
embrace
a
Copenhagen
interpretation
of
constitutional
physics.
They
 pick
up
quantum
theory
at
the
point
of
observation—the
point
at
which
the
superposition
collapses
into
 a
classical
state—and
use
it
to
argue
for
increased
focus
on
the
interdependence
of
object
and
 observation
(which
they
equate
with
judging)
in
the
constitutional
context.

 This
is
precisely
the
kind
of
thinking
that
drove
Schrödinger
to
(perhaps)
kill
his
cat.
The
very
 purpose
of
his
thought
experiment
was
to
show
the
difficulty
of
accepting
a
“blurred
reality”
of
the
type
 Tribe
and
Bickers
describe.
The
jarring
thing
about
Schrödinger’s
Cat,
after
all,
is
not
simply
that
it
is
 either
alive
or
dead
once
the
box
opens,
nor
even
that
opening
the
box
blesses
or
dooms
it,
but
that
 before
the
box
is
opened
it
is
both
dead
and
alive.
If,
as
Tribe
suggests,
“the
metaphors
and
intuitions
 that
guide
physicists
can
enrich
our
comprehension
of
social
and
legal
issues,”
18
what
can
they
tell
us
 about
the
superposition
of
legal
reality?
What
reality
exists
before
judges
render
judgment?
 These
questions
implicitly
arise
in
Establishment
Clause
cases
regarding
government
involvement
 with
religious
iconography.
As
in
Schrödinger’s
thought
experiment,
such
cases
implicate
a
fundamental
 and
binary
choice:
A
government‐maintained
symbol
is,
in
a
sense,
either
“live”
(predominantly
 




























































 14 Id.
at
18.

 
Id.
at
20.
 16 
John
M.
Bickers,
Of
Non‐Horses,
Quantum
Mechanics,
and
the
Establishment
Clause,
57
U.
KAN.
L.
REV.
317
 (2009).
 17 
Id.
at
394.
 18 
Tribe,
supra
note
10,
at
2.
 15 3
 
 religious,
and
therefore
unconstitutional)
or
dead
(secular,
and
therefore
acceptable).19
Moreover,
as
 Tribe
and
Bickers
argue,
the
very
act
of
observation—however
one
chooses
to
define
it—has
an
impact
 on
whether
the
symbol
is
alive
or
dead,
in
both
a
legal
and
social
sense.
But
what
is
the
status
of
the
 iconography
before
judges
make
their
observation?
And
why
should
it
be
the
judges’
observation
that
 counts?
 a. Legal
and
Social
Superpositions
 Because
Tribe
and
Bickers
pick
up
their
analysis
at
the
point
of
observation,
they
inevitably
focus
 on
the
role
and
importance
of
that
observer—that
is,
of
the
judge.
But
what
is
in
the
box
before
the
 judges
open
it?
Did
the
framed
copy
of
the
Ten
Commandments
in
the
McCreary
County
courthouse
 only
“become”
religious
after
the
Court
decided
McCreary
County
v.
American
Civil
Liberties
Union20?

 In
a
purely
legal
sense,
the
answer
may
be
a
straightforward
“yes”:
Nothing
is
unconstitutional
 until
a
court
rules
it
so.
But
if
that’s
all
there
is
to
the
physics
analogy,
it
wouldn’t
be
very
interesting.
It
 would
prove
only
the
obvious
point
that
courts’
judgments
have
legal
effect
in
particular
cases.

 Of
course,
there
is
more
to
the
analogy
than
that.
The
real
insight
of
the
Tribe/Bickers
analysis
is
 that
courts
as
legal
actors
cannot
be
separated
from
courts
as
social
actors,
any
more
than
law
can
be
 separated
from
the
supposed
“background”
of
social
meaning.
Thus
a
cross
may
be
a
popular
religious
 icon
even
if
a
court
rules
that
it
is
not.
In
Van
Orden
v.
Perry,21
for
example,
Justice
Breyer’s
controlling
 concurrence
concluded
that
a
Ten
Commandments
monument
displayed
at
the
Texas
State
Capitol
had
 “a
predominately
secular
message.”22
But
that
doesn’t
mean
that
the
people
of
Austin
see
it
that
way.

 In
other
words,
a
cross
isn’t
nothing
until
a
court
“observes”
it,
nor
is
the
court’s
ruling
the
only
 thing
that
determines
its
meaning.
The
legal
and
social
“lives”
of
a
religious
icon
are
intertwined
but
 distinct.
For
example,
some
threads
of
Establishment
Clause
doctrine
indicate
that
courts
should
base
 their
legal
determinations
on
social
understandings—this
is
the
essence
of
the
endorsement
test,
which
 defines
legal
reality
as
a
“reasonable
observer”
would
see
it.23

 And
just
as
social
reality
may
intrude
on
legal
meaning,
so
too
can
the
reverse
be
true.
For
 example,
when
Alabama
Judge
Roy
Moore
refused
to
remove
a
Ten
Commandments
monument
from
 his
courthouse,
the
monument
became
an
important
religious
icon
for
many
Christian
evangelicals24— not
because
the
federal
courts
found
it
to
be
an
impermissible
government
endorsement
of
religion,
but
 because
they
ordered
it
to
be
removed.
In
other
words,
it
was
not
the
court’s
“observation”
of
the
icon
 




























































 19 
In
order
to
limit
variables,
I
have
focused
on
cases
in
which
the
only
question
is
whether
or
not
a
particular
icon
 is
religious—I
assume,
therefore,
that
the
other
Establishment
Clause
variables
are
satisfied.
See
Lemon
v.
 Kutrzman,
403
U.S.
602,
612–13
(1971)
(laying
out
a
three‐prong
test
to
determine
constitutionality
under
the
 Establishment
Clause).

 20 
545
U.S.
844
(2005).

 21 
545
U.S.
677
(2005).

 22 
Id.
at
692.
 23 
County
of
Allegheny
v.
Greater
Pittsburgh
ACLU,
492
U.S.
573,
620
(1989).
 24 
Jeffrey
Gettleman,
Supporters
of
Ten
Commandments
Rally
On,
N.Y.
TIMES,
Aug.
24,
2003,
available
at
 http://www.nytimes.com/2003/08/24/us/supporters‐of‐ten‐commandments‐rally‐on.html.
 4
 
 that
gave
it
life
or
death,
but
rather
the
legal
consequences
of
that
observation.
If
Schrödinger’s
 observer
killed
every
live
cat
he
found
in
a
box,
for
example,
we
would
not
say
that
his
observation
also
 “caused”
the
cats
to
die.

 One
might
object
to
the
cat/cross
analogy
on
the
grounds
that
it
is
easy
to
tell
the
difference
 between
living
and
dead
cats,
but
not
necessarily
between
religious
and
nonreligious
crosses.
Or
 perhaps
the
latter
is
a
“matter
of
opinion,”
whereas
the
cat’s
vital
signs
are
not.
But
this
difference
is
not
 as
great
as
it
seems,
at
least
not
in
a
legal
sense,
because
courts
must
give
determinate
answers
to
legal
 questions—their
“opinions”
are
legal
reality.
As
Bickers
points
out,
“[a]t
the
end
of
the
case,
the
court
 must
decide.
It
may
grant
the
injunction,
or
it
may
deny
it.
It
can
allow
the
state
to
prohibit
the
teaching
 of
evolution
or
it
can
forbid
the
state
from
doing
so.”25

 A
court’s
ruling
therefore
resolves
the
superposition
with
regard
to
specific
legal
questions:
It
 creates
one
reality
or
another.
But
the
binary
and
definite
nature
of
a
cross’s
legal
state
does
not
mean
 that
its
social
meaning
must
follow
suit—a
cross
can
have
socially
recognized
religious
significance
no
 matter
what
a
court
rules.
And
this
parallel
reality
complicates
matters,
for
Tribe
and
Bickers
have
 convincingly
shown
that
the
legal
and
social
lives
of
religious
icons
cannot
be
totally
separated.
Perhaps
 we
would
do
well
to
focus
on
who
is
opening
the
box,
rather
than
what
is
inside
it.
 b. Thinking
Outside
the
Box
 The
dramatic
moment
in
Schrödinger’s
thought
experiment
(especially
for
the
cat)
is
the
point
 of
observation—the
point
at
which
the
box
is
opened
and
the
superposition
collapses
into
a
definite
 state
of
life
or
death.
Clearly
the
cat
is
the
star
of
the
show.
But
what
of
the
mysterious
observer?
Who
 is
he
or
she,
and
who
is
her
legal
analogue?
Tribe
and
Bickers
implicitly
equate
“observation”
with
the
 act
of
judging.
But
why
should
that
be
the
case?

 Some
strains
of
Establishment
Clause
doctrine
suggest
that
in
fact
judges
are
not
the
relevant
 observers.
The
endorsement
test,
for
example,
asks
whether
a
reasonable
and
fully
informed
observer
 would
consider
a
particular
symbol
to
be
a
government
endorsement
of
religion.26
On
the
one
hand,
this
 seems
refreshingly
analogous
to
Schrödinger’s
experiment:
It
does,
after
all,
involve
an
observer.
But
it
 also
raises
problems
for
the
analogy.
Who
is
the
one
doing
the
observing?
The
judge?
Or
the
 “reasonable
observer”
from
whose
hypothetical
perspective
the
judge
is
evaluating
the
symbol?
Is
it
 even
possible
to
separate
the
two?
 Certainly
if
we
are
to
consider
the
social
meaning
of
religious
icons,
and
not
just
their
legal
 status,
then
we
must
also
take
into
account
the
many
people
who
“observe”
them.
Different
people
are
 bound
to
see
different
things;
indeed,
different
Justices
see
different
things.
Are
they
all
simply
opening
 their
own
boxes?
What
if
a
judge
or
Justice,
hoping
to
“save”
a
cross
he
knows
full
well
to
be
religious,
 pens
an
opinion
saying
that
it
is
not?
(Does
Schrödinger’s
cat
live
if
the
first
observer
relays
a
false
 




























































 25 
Bickers,
supra
note
16,
at
383.

 
Salazar
v.
Buono,
130
S.
Ct.
1803,
1819–20
(2010).

 26 5
 
 report?)
And
how
are
we
to
make
sense
of
the
fact
that
the
life
of
religious
iconography—like
all
of
the
 socio‐legal
objects
Tribe
and
Bickers
discuss—is
constantly
changing
in
response
to
more
than
just
law?
 These
difficulties
help
vindicate
Schrödinger.
His
goal,
after
all,
was
to
show
the
absurd
 implications
of
the
Copenhagen
interpretation’s
belief
that
observation
creates
reality—the
same
belief
 reiterated
by
Tribe
and
Bickers.
So,
too,
must
constitutional
theorists
be
able
to
construct
models
that
 recognize
a
reality
outside
of
that
created
by
judges’
“observation.”
One
answer
may
be
to
say
that
legal
 superpositions
must
resolve
to
a
definite
state
(“observation”
by
judges
makes
this
so);
but
that
social
 meaning
superpositions
cannot
do
so,
for
the
simple
reason
that
there
is
no
observer
capable
of
prying
 the
box
open.
But
this
explanation
puts
a
lot
of
weight
on
the
supposed
division
between
legal
and
 social
meaning,
which
Tribe
and
Bickers
have
convincingly
demonstrated
does
not
exist.
How
can
we
 escape
the
box?
If
it’s
unclear
whose
observation
counts,
and
the
act
of
observation
does
not
fully
 resolve
every
relevant
meaning,
then
the
cat
will
continue
to
be
both
alive
and
dead,
even
after
the
box has
been
opened.
 Conclusion
 In
August
2010,
just
a
few
months
after
the
Supreme
Court’s
decision
in
the
Mojave
Cross
case,
 the
Tenth
Circuit
decided
a
similar
case
involving
an
Establishment
Clause
challenge
to
a
Utah
Highway
 Patrol
Association
practice
of
erecting
twelve‐foot‐high
crosses
on
roadsides
and
other
public
land
in
 order
to
memorialize
fallen
officers.27
Applying
the
endorsement
test—asking,
in
other
words,
whether
 a
reasonable
observer
would
perceive
the
crosses
to
be
a
government
endorsement
of
religion—the
 court
concluded
that
the
cross
displays
were
unconstitutional.28
Its
decision
has
already
been
flagged
by
 some
scholars
as
a
possible
vehicle
for
Supreme
Court
review,
and
likely
retirement,
of
the
endorsement
 test.29
 There
may
be
good
reasons
to
do
away
with
the
endorsement
test,
but
there
is
at
least
one
 reason
not
to—namely,
that
it
helps
avoid
the
seemingly
absurd
implications
of
theories
that
give
judges
 final
say
over
“reality.”
Rather
than
focusing
on
judges
as
the
box‐openers
whose
observations
 determine
whether
a
piece
of
iconography
is
religious
(“alive”)
or
secular
(“dead”),
the
endorsement
 test
attempts
to
move
them
one
step
further
away.
As
in
the
Tenth
Circuit
case,
their
role
is
to
report
 reality,
not
create
it.
In
that
sense,
they
watch
the
people
who
open
the
boxes,
rather
than
doing
so
 themselves.


 Tribe,
Bickers,
and
the
Copenhagen
school
of
physics
are
all
undoubtedly
correct
that
 observation—whether
of
constitutional
or
atomic
phenomena—impacts
reality.
But
their
insight
implies
 the
existence
of
a
pre‐observation
“blurred
reality,”
which
is
as
difficult
to
comprehend
as
Schrödinger’s
 




























































 27 
American
Atheists,
Inc.
v.
Duncan,
__
F.3d
__
(10th
Cir.
Aug.
18,
2010),
 http://www.ca10.uscourts.gov/opinions/08/08‐4061.pdf.

 28 
Id.
slip
op
at
4‐5.
 29 
See
posting
of
Eugene
Volokh
to
Volokh
Conspiracy,
“A
Possible
Endorsement
Test
Case
for
the
U.S.
Supreme
 Court?”
(Aug.
18,
2010
11:59
pm),
at
http://volokh.com/2010/08/18/a‐possible‐endorsement‐test‐case‐for‐the‐u‐ s‐supreme‐court/.
 6
 
 alive/dead
cat.
By
adopting
social
reality
as
legal
reality
in
Establishment
Clause
cases,
the
endorsement
 tests
provides
a
way
to
avoid
this
“mixed
and
smeared
out”
existence.
 
 
 7
 
 ...
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This note was uploaded on 10/24/2011 for the course SCIENCE PHY 453 taught by Professor Barnard during the Winter '11 term at BYU.

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