The Establishment Clause is often interpreted as prohibiting taxation to promote religion on the grounds that such taxation infringes on taxpayers’ freedom of conscience. Critics have argued that this idea, called the “Jeffersonian proposition,” is open to two objections. The equality objection says that taxation to promote religion does not violate the freedom of conscience any more than taxation to promote other views to which taxpayers may conscientiously object. But if the Jeffersonian proposition is construed broadly to cover any government speech with which taxpayers disagree, it faces an anarchy objection. No government can function properly without support for government speech. So proponents of the Jeffersonian proposition face a dilemma: either discriminate against those with non-religious conscientious claims or confront the anarchical consequences of a general right of conscientious objection to government speech. Most proponents of the Jeffersonian proposition have grasped the first horn of this dilemma by denying the equality objection. Rejecting that approach, this Article confronts the anarchy objection by developing a balancing account of the freedom of conscience. According to this account, the state may override claims of conscience when it has a legitimate interest in compelling support for speech. When it comes to religious speech, however, the state may not have any countervailing interest to balance against freedom of conscience. Under those circumstances, the Jeffersonian proposition may be vindicated. By showing how this argument is consistent with much of existing compelled support doctrine under the Free Speech Clause of the First Amendment, and by defending it against objections that compelled support does not implicate the freedoms of conscience, association, or speech, this Article argues for the Jeffersonian proposition’s continued place in our understanding of the First Amendment.
Note
Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause
In 2009, the Supreme Court in Melendez-Diaz v. Massachusetts, interpreted the Confrontation Clause to require forensic analysts to testify in court before a forensic analyst’s report can be admitted into evidence against a criminal defendant. Ever since, law enforcement groups, lower federal courts, state supreme courts, and commentators have been asking the same question: Who can fulfill the role of the testifying analyst? Put more specifically, would allowing a “surrogate witness” like a laboratory supervisor or a single member of a team of forensic analysts satisfy the Confrontation Clause? It is an issue that is currently before the Court, thanks to a petition for a writ of certiorari filed on behalf of Richard Pendergrass, who is seeking review of a decision of the Indiana Supreme Court permitting the use of surrogate witnesses.
This note seeks to answer this question by tracking the ongoing debate between originalist interpretation and policy in the context of the Confrontation Clause. It argues that given the role policy has played in the analogous right to counsel context, the continuing debate over the reliability of forensic science, and the pressure from law enforcement groups who suggest surrogate witnesses are a necessary tool to mitigate the impact of Melendez-Diaz, policy arguments will need to be addressed, and may even prove decisive in the battle over surrogate witnesses. Finally, this paper proposes a compromise approach, where the Court could allow surrogate witnesses who have direct contact with the testing process as part of the laboratory’s standard procedure.
Structural Exceptionalism and Comparative Constitutional Law
For over the past two decades, there has been an ongoing debate over whether the Supreme Court should rely on comparative constitutional law when interpreting the U.S. Constitution.This Note offers an exceptionalist critique of the practice. Specifically, it argues that the U.S. Constitution’s exceptional view of the role of the judiciary cautions against this use of comparative constitutional law. The U.S. Constitution is rare among contemporary charters in its reflection of the belief that the judicial branch should be confined to matters of law instead of questions of policy. This separation of law and politics is primarily expressed in the relative absence of institutional safeguards to control the federal judiciary. Whereas architects of foreign constitutions expected some judicial policy-making and consequently built in ex ante and/or ex post controls into their systems, the U.S. Constitution treats the judiciary as a relatively unthreatening institution. This Note contends that when the Supreme Court draws on the constitutional law of these countries without their accompanying safeguards, it risks that the reasoning of foreign judges will operate unconstrained by the checks they took for granted and lead to unintended costs for American society.