Through the statutory mechanisms of RFRA and RLUIPA, Free Exercise jurisprudence has expanded the scope of religious protection. In the absence of a clear legal definition of religion, however, this protection has an unknown and biased reach. In particular, courts and legal scholars embody a misunderstanding of a burgeoning group of Americans who identify as “spiritual but not religious,” excluding them from religious protection. This Note uses a recent case, which dismissed as nonreligious the beliefs of a plaintiff whose beliefs are paradigmatic of this growing cohort, to analyze how the law defines religion. It argues that while such belief systems reject the institutional characteristics of organized religion, they are sufficiently analogous to religious belief systems to deserve the same legal protection.
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Judicial Capacity and Executive Power
The budget of the United States executive branch is roughly 500 times greater than that of the judicial branch. The executive workforce is more than fifty times greater. How do these enormous disparities affect the practical ability of courts to police executive power? Our judicial capacity model of Supreme Court decision making is the first attempt to take this question seriously. Briefly, in most executive power domains, the limits of judicial capacity create strong pressure on the Supreme Court to adopt hard-edged categorical rules, defer to the political process, or both. The reason is straightforward. In these domains, a departure from deferential or rule-based decisions would invite more litigation than the Court could handle without sacrificing minimum professional standards.
Our model explains why the Supreme Court has historically deferred to congressional delegations of power and avoided interfering with presidential administration, despite significant ideological temptations to intervene. It also explains the few areas of executive power in which the Court has been willing to act aggressively, as well as the one area in which the Court has employed indeterminate standards—as opposed to categorical rules—to invalidate government action. In so doing, the judicial capacity model clarifies when, if at all, it is sensible to urge the courts to constrain executive power in future cases. Finally, the judicial capacity model sheds light on some of the most significant issues in constitutional theory, including judicial competence, judicial independence, and the formalist-functionalist divide over separation of powers. For all of these reasons, judicial capacity deserves a central place on the agenda of executive power scholarship and constitutional theory more generally.
“Necessary AND Proper” and “Cruel AND Unusual”: Hendiadys in the Constitution
Constitutional doctrine is often shaped by the details of the constitutional text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.” Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: First ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship. That assumption is incorrect.
This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, work together as a single complex expression. It is found in many languages, including English: For example, “rise and shine,” “nice and fat,” “cakes and ale,” “open and notorious.” When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual. Rather, it prohibits punishments that are unusually cruel, that is, innovative in their cruelty. If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action. The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, while “proper” instructs us not to interpret “necessary” in its strictest sense. “Proper” also reminds us that the incidental power Congress is exercising must belong to an enumerated power.
To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland. The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses