The Constitution of the United States contains two of the major standards appropriate to a liberal democracy. Both are expressed in the First Amendment: one clause prohibits Congress’s establishing religion; the other prohibits its restricting the free exercise of religion. The present age is witnessing an apparently increasing tension over the meaning of these clauses, and the problem of interpreting them is intensified by the possibility of their apparently supporting conflicting directives in certain situations. In the United States (which is the primary setting of concern in this essay), the problem has been especially difficult and divisive. A major current issue is how science should be taught in public schools. Evolutionary biology has been the focus of most of the controversy here, but the place of religion in history, civics, and other areas of the curriculum also raises difficult questions about how, both constitutionally and ethically, teachers should deal with either religion itself or the religious implications of their subject matter. For many years Professor Kent Greenawalt has published well-argued, influential scholarly works on the relations among law, religion, and politics. His most recent book, Does God Belong in Public Schools?, is his first full-scale comprehensive treatment of the subject of religion and education in a liberal democracy (with the U.S. as the central example). My aim here is to bring out some of its distinctive points and to discuss a number of them in the hope of promoting further inquiry into the issues and, if only indirectly, better ways of teaching in the public schools.
Anticipated Judicial Vacancies and the Power to Nominate
In July 2005, Justice Sandra Day O’Connor retired, but her retirement was expressly effective only upon the nomination and confirmation of her successor. As such, Justice O’Connor served on the Court for more than six additional months while the President nominated three different individuals to her seat and secured the confirmation of Justice Samuel A. Alito.
This Note addresses a simple, but unaddressed question: what triggers the President’s constitutional power to nominate under the Appointments Clause? The Note argues that there is a vacancy prerequisite to the operation of the Appointments Clause that requires either an actual vacancy in the office to be filled, or a sufficiently definite and irrevocable anticipated vacancy in such an office.
After briefly discussing the relatively recent development of the judicial retirement option, this Note turns to unique issues presented when life-tenured, Article III justices and judges retire. When an irremovable federal judge announces the intention to retire on some future date, that mere announcement does not create a sufficiently definite and irrevocable vacancy to trigger the operation of the Appointments Clause. Instead, the nomination and confirmation of successors upon anticipated judicial vacancies generate tension with the intended operation of the appointments process as well as underlying constitutional norms of judicial independence. Triggering the appointments process on a justice or judge’s intention to retire in the future may allow an “incumbent’s veto” over nominated successors, skew the advice and consent role of the Senate, delegate a removal-like power to the political branches, and establish a kind of “holdover judge” where vacancies would otherwise allow for the operation of the Recess Appointments Clause.
This Note concludes that due to the considerable constitutional difficulties that are presented, the Executive should not assume the power to nominate is constitutionally triggered by anticipated judicial vacancies.
Entrapment, Punishment, and the Sadistic State
The entrapment defense is a uniquely American institution, adopted in all American jurisdictions, and almost nowhere else. But while case law and scholarly literature dwell at length on entrapment’s what (what constitutes entrapment; the legal test to be applied), and sometimes on its who (who should rule on entrapment, judge or jury; who qualifies as a state actor), they have comparatively neglected its why—the underlying justification for a defense that, on further examination, seems to violate some of the most basic principles of criminal law jurisprudence. Why should someone who commits a crime, with a criminal state of mind, be found not guilty because the one who tempted him to commit the crime, an otherwise irrelevant fact, was—entirely unbeknownst to him—a police agent?
This Note first shows the insufficiency of existing justifications of the entrapment defense, then provides a more comprehensive explanation for the doctrine. This explanation reveals entrapment to be not a procedural “technicality” protecting a value extrinsic to the underlying prohibition, but rather a substantive defense whose roots run right to the criminal law’s heart: our reasons for punishment. A “punishment-centered” view reveals entrapment to be a manifestation of a totalitarian “sadistic state,” which treats the infliction of punishment not as a means of giving the guilty their just deserts, but as an end in itself, and shows the entrapment defense to be not only a limit on police investigatory technique, but an assertion of individual liberty against the state’s ability to punish.