How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do. Nonbelievers and believers should receive comparable protection in some situations but not in others. The method I apply is polyvalent—it seeks to capture the full range of values that should matter, recognizing that the mix of relevant concerns may differ from doctrine to doctrine. Two arguments push against this piecemeal approach, however. First, scholars argue that the term religion should simply be defined to include (or exclude) nonbelievers in advance and for all purposes. Second, leading thinkers have recently criticized the special place of religion in American law. For them, even if nonbelief is not a religion, it should always be treated with similar solicitude. Rejecting both of these positions, I contend that definitional approaches are unlikely to be helpful, and that careful judges will determine the specialness of religion in a variegated way. Applying this method to several doctrines—including antidiscrimination, free exercise exemptions, church autonomy, government endorsement, and public funding—I propose protecting nonbelievers only in some of these areas. In conclusion, I suggest that adjudication of religious freedom claims generally is neither impossible nor senseless, despite the fears of some.
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A Unified Approach to Extraterritoriality
This Article develops a unified approach to extraterritoriality. It uses the source of lawmaking authority behind a statute to discern the proper canon for construing that statute’s geographic reach and to evaluate whether application of the statute violates due process.
The approach holds important implications for a variety of high-stakes issues with which courts are presently wrestling, including: the proper role of the presumption against extraterritorial application of U.S. law, whether international law or federal common law should supply the rule of decision in Alien Tort Statute cases, the scope of U.S. jurisdiction over terrorism offenses, and the viability of due process objections to the application of U.S. law abroad.
Rethinking Proportionality Under the Cruel and Unusual Punishments Clause
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefitted from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.
This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.