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The Future of Locke v. Davey

The Supreme Court’s decision, in Zelman v. Simmons-Harris, to uphold a voucher program allowing state funds to be diverted to sectarian schools, did not address the question whether such programs are constitutionally required to include religious institutions. Locke v. Davey had the potential to resolve this question, but a surprisingly lopsided 7-2 majority decided the case without squarely addressing it. Davey upheld Washington’s refusal to allow a student to apply a state scholarship towards a degree in “devotional theology,” and it appeared, on its face, to be limited to “the State’s interest in not funding the religious training of clergy.” Yet the Court’s asserted principle of “play in the joints” between the Establishment and Free Exercise Clauses suggested a rationale with much broader implications: A mere denial of funding does not by itself create a cognizable burden on religious practice. Davey did not make clear which line of reasoning should control, and the first two federal appellate court decisions addressing the case are in fundamental disagreement about its meaning and scope.

This Note responds to these developments, and concludes that a circumscribed version of the no-burden rationale should control Davey’s future application. The opinion’s discussion of the clergy is a red herring, because ultimately the Court found no violation of any constitutional right, meaning that the exclusion required no more than a merely “legitimate” justification. And while the Court suggested that the program created no problem for the sometimes-asserted constitutional requirement of neutrality, it did so in such a way as to highlight the fact that neutrality is an incoherent concept unsuited to a sound understanding of the religion clauses. The no-burden rationale should ultimately control because it is founded on a theory—free exercise as an autonomy right—that is of a piece with our understanding of other similar rights. Of course, the state’s power is not unlimited, and the paper concludes by offering four important restrictions. This reading of Davey harmonizes the case with other Religion Clause doctrine, and protects religious liberty while allowing local governments the freedom to adapt policy to local conditions. 
 

The Invisible Hand in Legal and Political Theory

Theorists have offered invisible-hand justifications for a range of legal and political institutions, including the separation of powers, free speech, the adversary system of litigation, criminal procedure, the common law, and property rights. These arguments are largely localized, with few comparisons across contexts and no general account of how invisible-hand justifications work. This essay has two aims. The first is to identify general conditions under which an invisible-hand justification will succeed. The second is to identify several theoretical dilemmas that arise from the structure of invisible-hand justifications and that cut across local contexts. These are the dilemma of norms, which arises because norms of truth-seeking, ethical action or altruism can both promote and undermine the workings of the invisible hand; the dilemma of second best, which arises because partial compliance with the conditions for an invisible-hand justification can produce the worst of all possible worlds; and the dilemma of verification, which arises where theorists claim that an invisible-hand process functions as a Hayekian discovery procedure — a claim that is empirical but pragmatically unverifiable.

Habeas Corpus, Due Process and the Suspension Clause: A Study in the Foundations of American Constitutionalism

Ever since the attacks of September 11, 2001, constitutional scholars have been exploring the controversial issues surrounding the so-called “Emergency Constitution.” One of the very few provisions of the Constitution that explicitly contemplates such emergency situations is Article I, section 9, concerning the writ of habeas corpus. That provision prohibits suspension of the “Great Writ,” except “when in cases of [r]ebellion or [i]nvasion the public [s]afety may require it.”

The writ of habeas corpus has long stood as the primary weapon against the development of tyranny. It enables a court to demand that the executive produce individuals it is detaining and explain the lawful basis for that detention, and to order the detainees’ release if it finds the confinement to be unlawful. Absent the availability of habeas corpus, there would exist no legal means of preventing those in power from arresting any individual they want, for as long as they want, regardless of the legitimacy of the arrest. Yet pursuant to the so-called Suspension Clause, in times of rebellion or invasion the government is authorized to suspend the writ.

Highly respected scholars have recently engaged in an intense debate over the meaning and implications of the Suspension Clause. All of them, however, have seriously missed the mark, because all have assumed the continuing validity of that Clause. In this Article, we argue that the Due Process Clause of the Fifth Amendment effectively repeals the Suspension Clause. We reach this conclusion for two reasons: first, the Suspension Clause indisputably authorizes summary detention without the availability of any form of hearing before a neutral adjudicator. Whatever “due process” means at its outer fringes, there is no doubt that such a practice deprives an individual of liberty without due process of law. Yet the Due Process Clause, on its face, is unlimited in its application; it contemplates no exceptions, when an individual is to be deprived of life, liberty or property. Thus, purely as a matter of textual construction, the Due Process Clause, contained in an amendment, supersedes the Suspension Clause, which appears in the body of the Constitution. Moreover, it is important to recognize that the Suspension Clause authorizes tyrannical practices wholly inconsistent with and undermining of foundational precepts of American Constitutionalism. This concept dictates a governmental commitment to the rule of law and to limited governmental authority over its citizens. The Due Process Clause should be deemed to protect these core values. After establishing the supremacy of the Due Process Clause, the Article carefully explores the manner in which the Due Process Clause should be found to limit coercive governmental authority in times of national crisis.

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