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.
Issue 2
Prosecuting Federal Crimes in State Courts
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is “yes.” From the Progressive era to the present, scholars have urged that state courts be allowed to entertain federal criminal prosecutions—prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.
A close review of the evidence—including the Constitution’s framing and ratification, the early practices of Congress and the state courts, as well as more modern developments—suggests that there is far less support for the possibility of concurrent state court jurisdiction over federal crimes than is often assumed. In addition to these jurisdictional concerns, doubts would surround the question whether state prosecutors could be compelled or even authorized to exercise federal prosecutorial power, absent compliance with the Constitution’s Appointments and Take Care Clauses. Even assuming such compliance, cross-jurisdictional prosecutions also raise the question whether criminal defendants facing federal charges in state court would enjoy various constitutional protections still applicable only in federal courts, as well as questions respecting the operation of double jeopardy and the location of the pardon power. While the constitutional problems may not be insurmountable, this article concludes that they are sufficiently pervasive and difficult that proposals for state court prosecutions of federal crimes should be rejected.
Confusion and Coercion in Church Property Litigation
This Note argues that by allowing states to apply their own idiosyncratic common and statutory law to disputes over church property between supercongregational denominations and local parishes, the “neutral principles” approach that the Supreme Court validated in Jones v. Wolf inevitably creates inconsistency in the results of these disputes. This inconsistency in turn coerces denominations such as the Protestant Episcopal Church and the United Presbyterian Church into abandoning either their method of property management or traditional control over parishes. In effect, mainline supercongregational Protestant denominations are forced, in violation of their Free Exercise right to choose their own form of governance, to become either more “Catholic” or more “Baptist.” As a remedy to this problem, this Note proposes a novel solution—a federal statute to standardize and simplify the decision rules for church property disputes. Although such a statute would raise constitutional issues of its own, this Note concludes that such a statute would be within Congressional jurisdiction and permissible under both the Establishment Clause and the Free Exercise Clause.