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Saturday, October 29th, 2011Finding a Ceiling in a Circular Room: Locke v. Davey, Religious Neutrality, and Federalism
The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, it may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem concluding that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not apparent from the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, the Court has tread the line between the clauses carefully, holding that if the government opposes the establishment of religion too vigorously it will burden religious exercise, and if the government seeks to accommodate religious exercise too liberally, it will establish religion. However, while these propositions — that religion is distinct and that there is tension between the Religion Clauses — are clear and settled, the Court has struggled mightily to reconcile them. That is, the Court has not been able to answer the following question: how differently may the government treat religion from non-religion under one clause without violating the other?
This article attempts to answer that question. My answer is inspired and informed by Locke v. Davey, 540 US 712 (2004), a case in which the Court held that at least in certain contexts the Free Exercise Clause permits the government to exclude an individual from a funding program on the basis of religion. In answering this question, I hope to accomplish three goals: (1) to defend the holding and reasoning in Davey; (2) to assuage the concerns of Davey’s critics; and (3) to develop a paradigm that grants states discretion over how they partner with religious organizations but still limits states in a way that is consistent with the guarantees in the Religion Clauses. Given the extensive criticism of the Davey opinion, and the normative and practical significance of the question addressed in this article, this analysis is particularly timely and important.
Source: works.bepress.com
ESTABLISHMENT CLAUSE-TROPHOBIA: BUILDING A FRAMEWORK FOR ESCAPING THE CONFINES OF DOMESTIC CHURCH-STATE JURISPRUDENCE
Does the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” apply to United States conduct abroad? For years, this question has been lurking in the background of discussions of the Constitution’s extraterritorial application. Indeed, while the U.S. Supreme Court has ruled that the Fifth and Sixth Amendments apply abroad in some circumstances, and that the Fourth Amendment’s warrant requirement generally does not apply abroad, the Court has never considered the transnational applicability of the Establishment Clause. In fact, only one case has directly addressed whether the Establishment Clause applies abroad, Lamont v. Woods, a Second Circuit U.S. Court of Appeals decision holding that the Establishment Clause always applies abroad but less strictly than it does domestically.
Although several scholars have recently explored more generally whether and to what extent the Constitution applies abroad, the specific issue of whether and how the Establishment Clause applies abroad has risen barely above a whisper in scholarly discourse. Indeed, although some prominent church-state scholars have commented on the Lamont decision, none has thoroughly analyzed it, leaving a law student Note as the most significant work to engage the Lamont reasoning. The issue is now screaming for scholarly and judicial treatment, as evidenced by a July 17, 2009 audit by the USAID inspector general’s office questioning whether some of USAID’s programs violate the Establishment Clause. This audit, as well as recent reports on this issue by the Chicago Council on Global Affairs and the Center for Strategic and International Studies, indicate the need for legal clarity on this important policy question. This Article seeks to provide that clarity by comprehensively analyzing whether and to what extent the Establishment Clause applies abroad.
Source: works.bepress.com
Where Do Constitutional Modalities Come From? Complexity Theory and the Emergence of Intradoctrinalism
This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt's modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt's framework, though helpful, fails in two respects: it fails to explain where these modalities come from and it fails to explain how courts resolve modal conflicts (i.e., cases involving conflicts between two methods of interpreting the Constitution).
Here, we come to a central purpose of my article, to fill in these two holes in Bobbitt's framework. To the best of my knowledge, there is only one other article that takes on this task, an article by Ian Bartrum recently published in the William and Mary Bill of Rights Journal.
Part II summarizes how Bartrum’s article seeks to use metaphor theory to resolve these two problems in Bobbitt's framework. Part II concludes that although Bartrum's use of metaphor theory represents a significant advancement in the debate over this issue, Bartrum's account is still incomplete because it does not capture the unpredictability and randomness in the emergence of new modalities.
Part III proposes that complexity theory, with its focus on the unpredictability and non-linearity of complex systems, provides a better way of understanding the creation of new modalities. After providing some background on the leading complexity theories, this section argues that modal conflicts are instances of legal chaos, analogous to far-from-equilibrium systems in thermodynamics, in which complex forces resonate to produce outcomes that are ex ante unpredictable.
The final section, Part IV, explores precisely how complexity theory can apply to cases involving modal conflicts. In describing different types of modal conflicts, Part IV argues that some conflicts create so much legal chaos that they generate new modalities altogether. Part IV offers an example of such an emerging modality, a modality that I have named "intradoctrinalism." When a court applies this modality, it interprets a particular doctrine in a way that makes all of the court's doctrines logically cohere. I argue that this modality might explain a very important case in church-state law, Locke v. Davey, 540 U.S. 712 (2004).
The paper concludes with some reflection on how complexity theory can apply to other legal problems, such as how courts can reconcile conflicts between competing legal regimes. The paper thus has both a narrow purpose, to use complexity theory to fill in the gaps in Bobbitt's modal approach, as well as a broader purpose, to advance complexity theory as a means of examining legal problems in general. With this broader purpose, the paper stands alongside recent efforts to place complexity theory at the forefront of the debate over how to explain social phenomena.
Source: works.bepress.com
