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Notre Dame Law Review, 2023
American courts apply “church autonomy doctrine” to protect the self-governance of religious inst... more American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to articulate them, leaving the case law in a state of ferment.
This article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.
After presenting the theoretical case for the coexistence of autonomy and accountability principles, this article presents a doctrinal roadmap for how courts can locate the limits of church autonomy. Drawing on doctrinal elements already present in the case law, the approach outlined here can be applied to provide accountability and limit church autonomy in key cases—and it can be done without contradicting any existing Supreme Court doctrine.
University of Chicago Law Review (forthcoming)
In its first century and a half, the Supreme Court never used the term “federalism” in its opinio... more In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction.
This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.
The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
in Michelle Evans and Augusto Zimmermann, eds., Global Perspectives on Subsidiarity, 2014
Sphere sovereignty is a social theory based on theological principles. Its starting point is the... more Sphere sovereignty is a social theory based on theological principles. Its starting point is the absolute sovereignty of God. From this principle, sphere sovereignty denies that any single human institution can claim absolute sovereignty. As a result, sphere sovereignty principles support an institutionally pluralistic society, where all kinds of power and authority are divided among various “spheres.” First propounded by Reformed theologians in the Netherlands, sphere sovereignty initially focused on the limitation of state power so as to preserve the independence of various social “spheres,” especially the church, from the state. While sphere sovereignty is rightly opposed to improper consolidation of state power, it does affirm the place of civil government in the social order. The model of society affirmed by sphere sovereignty has certain resonances with the Catholic social teachings on subsidiarity. Some have argued that sphere sovereignty is fundamentally different from its Catholic counterpart. But it is more helpful to see sphere sovereignty and subsidiarity as complimentary, each recognizing a distinct aspect of social relationships within healthy and well-functioning society.
University of Chicago Law Review, 2017
The Supreme Court held in Heien v North Carolina (2014) that police can have “reasonable suspicio... more The Supreme Court held in Heien v North Carolina (2014) that police can have “reasonable suspicion” for a search or seizure even when that suspicion is based on a mistake of law, so long as the mistake is reasonable. But lower courts have applied the Heien rule inconsistently - as it turns out, it is far from self-evident how a court is to recognize when a mistake of law is reasonable. This Comment proposes an analytical approach for courts to apply in considering whether a police mistake of law was reasonable. On this approach, a court confronted with an alleged instance of a reasonable mistake of law should ask, first, whether the predicate criminal statute (on which the police officer mistakenly relied) would be held ambiguous for purposes of lenity. Only if the statute would be ambiguous in that context should the police officer be able to get the benefit of Heien’s reasonable mistake rule. Linking Heien to the rule of lenity provides a way to draw on an already-developed jurisprudence about ambiguity in the criminal law. And it also develops the Heien doctrine in such a way as to limit the police discretion about which the Heien decision’s critics have been worried.
This article begins by examining the theological underpinnings of the concept of separation of ch... more This article begins by examining the theological underpinnings of the concept of separation of church and state. Second, it proceeds to review the church-history context in which this theology was developed. It focuses especially on the Protestant Reformation’s concept of independent jurisdictions of church and state, and how that perspective influenced the American view of church and state. Finally, it suggests that the historic theological position on the jurisdictional separation of church and state is reflected today in the church autonomy cases.
Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. I... more Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. It was not until the 20th century that the courts began to deal extensively with the Bill of Rights, and because of the court enforcement of the rights embodied in that document, the Bill of Rights has come to be the best-known part of the United States Constitution. There have been thousands of cases interpreting and applying the Bill of Rights in the 20th century, and there will undoubtedly be thousands more as our era continues to be permeated with “rights talk.”
This raises two important questions. First, why did Bill of Rights litigation wait a century to really begin to play an important part in American culture? Second, does the upsurge in judicial enforcement of the Bill of Rights indicate a corresponding increase in liberty? This essay examines both of these questions by examining the interplay between personal rights and structural constraints on the federal government throughout American constitutional history.
Book Reviews by Lael Weinberger
Canopy Forum, 2020
This is, in short, a volume with a strong (though not unanimous) sense of perspective. It is not ... more This is, in short, a volume with a strong (though not unanimous) sense of perspective. It is not a sampler of all the viewpoints there are on the First Amendment’s religion clauses. (In any case, no single volume could bear such a burden.) It is, instead, an outstanding collection of voices that together affirm the importance of religious liberty, appreciate the complexities of its history, and are interested in rethinking its philosophical foundation. Along the way, it surveys the state of the field. It serves as both an excellent introduction to an enormous literature and an important contribution to the conversation.
New Rambler Review, 2016
A review of Exporting Freedom: Religious Liberty and American Power, by Anna Su
New Rambler Review, 2016
A review of Confident Pluralism: Surviving and Thriving through Deep Difference, by John D. Inazu
Constitutional Commentary, 2019
The Bill of Rights is one of those texts that seems to stand for principles as old as the nation.... more The Bill of Rights is one of those texts that seems to stand for principles as old as the nation. Gerard Magliocca's recent book, The Heart of the Constitution, unsettles this assumption. Magliocca reminds us that the Bill of Rights was not always just one thing—indeed, for a while, it wasn’t a “thing” at all. Its name, its recognition as a single, thematically-coherent document, its rise to the status of venerated text—all were products of history. Magliocca has provided a rich account of the Bill of Rights’ place in American culture across two centuries in this crisp, concise, eminently readable book. One need not agree with every detail of Magliocca’s account to recognize that it is a valuable contribution to our understanding of constitutional history. This review essay highlights three of Magliocca’s key arguments before concluding with thoughts about the questions future scholarship on this subject might address.
Notre Dame Law Review, 2023
American courts apply “church autonomy doctrine” to protect the self-governance of religious inst... more American courts apply “church autonomy doctrine” to protect the self-governance of religious institutions, based on both of the First Amendment’s religion clauses. Church autonomy’s defenders have sometimes described the doctrine as establishing distinct spheres of sovereignty for church and state. But critics have argued that church autonomy puts religious institutions above the law. They contend that church autonomy doctrine lacks limiting principles and worry that the “sphere sovereignty” theory of church and state leaves no room for accountability for wrongdoing in religious institutions. The courts, for their part, have recognized that church autonomy must have limits but have struggled to articulate them, leaving the case law in a state of ferment.
This article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.
After presenting the theoretical case for the coexistence of autonomy and accountability principles, this article presents a doctrinal roadmap for how courts can locate the limits of church autonomy. Drawing on doctrinal elements already present in the case law, the approach outlined here can be applied to provide accountability and limit church autonomy in key cases—and it can be done without contradicting any existing Supreme Court doctrine.
University of Chicago Law Review (forthcoming)
In its first century and a half, the Supreme Court never used the term “federalism” in its opinio... more In its first century and a half, the Supreme Court never used the term “federalism” in its opinions. The Court had talked about federal-state relations before but the concept had gone unlabeled. That changed in 1939. Something new was happening, thanks in large part to Justice Felix Frankfurter. Just a month after joining the Court, Frankfurter authored the Court’s first opinion using the term “federalism.” Frankfurter introduced federalism as a key concept for analyzing the relationship between state courts and federal courts. Before long, Frankfurter would rely on federalism to fashion an original and enduring doctrine of judicial federalism: abstention, requiring federal courts to sometimes refrain from hearing cases that were within their jurisdiction.
This article provides a historical study of Frankfurter’s contribution to the modern law of judicial federalism. It documents Frankfurter’s theory of federalism in his judicial opinions with a focus on the abstention cases. It also shows how the abstention cases and their concept of federalism were rooted in Frankfurter’s Progressive politics. They were a reaction to what he perceived as the federal courts’ anti-regulatory and anti-labor attitudes.
The history—relevant again today, as the political discussion around the courts again echoes the Progressive era—sets the stage for considering the future of abstention. I suggest three possibilities. The first, an originalist future, would more or less maintain the contemporary Supreme Court’s current status quo on abstention, somewhat more modest than what Frankfurter envisioned: a cautious use of abstention in a relatively small number of equitable cases. A second possibility would be a liberal future that backtracks from abstention, as legal liberals recognize a cautionary lesson in Frankfurter’s hostility to an assertive, rights-protecting judiciary. The third future would one of embracing Frankfurter’s vision of abstention in the name of judicial restraint. Abstention has potential to curb federal court power and, at least on the margins, put more adjudicative power in state courts. This possibility might bring together modern progressives, who are wary about a largely-conservative federal judiciary, with conservatives who want to promote judicial restraint and an increase in democratic accountability.
in Michelle Evans and Augusto Zimmermann, eds., Global Perspectives on Subsidiarity, 2014
Sphere sovereignty is a social theory based on theological principles. Its starting point is the... more Sphere sovereignty is a social theory based on theological principles. Its starting point is the absolute sovereignty of God. From this principle, sphere sovereignty denies that any single human institution can claim absolute sovereignty. As a result, sphere sovereignty principles support an institutionally pluralistic society, where all kinds of power and authority are divided among various “spheres.” First propounded by Reformed theologians in the Netherlands, sphere sovereignty initially focused on the limitation of state power so as to preserve the independence of various social “spheres,” especially the church, from the state. While sphere sovereignty is rightly opposed to improper consolidation of state power, it does affirm the place of civil government in the social order. The model of society affirmed by sphere sovereignty has certain resonances with the Catholic social teachings on subsidiarity. Some have argued that sphere sovereignty is fundamentally different from its Catholic counterpart. But it is more helpful to see sphere sovereignty and subsidiarity as complimentary, each recognizing a distinct aspect of social relationships within healthy and well-functioning society.
University of Chicago Law Review, 2017
The Supreme Court held in Heien v North Carolina (2014) that police can have “reasonable suspicio... more The Supreme Court held in Heien v North Carolina (2014) that police can have “reasonable suspicion” for a search or seizure even when that suspicion is based on a mistake of law, so long as the mistake is reasonable. But lower courts have applied the Heien rule inconsistently - as it turns out, it is far from self-evident how a court is to recognize when a mistake of law is reasonable. This Comment proposes an analytical approach for courts to apply in considering whether a police mistake of law was reasonable. On this approach, a court confronted with an alleged instance of a reasonable mistake of law should ask, first, whether the predicate criminal statute (on which the police officer mistakenly relied) would be held ambiguous for purposes of lenity. Only if the statute would be ambiguous in that context should the police officer be able to get the benefit of Heien’s reasonable mistake rule. Linking Heien to the rule of lenity provides a way to draw on an already-developed jurisprudence about ambiguity in the criminal law. And it also develops the Heien doctrine in such a way as to limit the police discretion about which the Heien decision’s critics have been worried.
This article begins by examining the theological underpinnings of the concept of separation of ch... more This article begins by examining the theological underpinnings of the concept of separation of church and state. Second, it proceeds to review the church-history context in which this theology was developed. It focuses especially on the Protestant Reformation’s concept of independent jurisdictions of church and state, and how that perspective influenced the American view of church and state. Finally, it suggests that the historic theological position on the jurisdictional separation of church and state is reflected today in the church autonomy cases.
Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. I... more Before the American Civil War, very few U.S. Supreme Court cases dealt with the Bill of Rights. It was not until the 20th century that the courts began to deal extensively with the Bill of Rights, and because of the court enforcement of the rights embodied in that document, the Bill of Rights has come to be the best-known part of the United States Constitution. There have been thousands of cases interpreting and applying the Bill of Rights in the 20th century, and there will undoubtedly be thousands more as our era continues to be permeated with “rights talk.”
This raises two important questions. First, why did Bill of Rights litigation wait a century to really begin to play an important part in American culture? Second, does the upsurge in judicial enforcement of the Bill of Rights indicate a corresponding increase in liberty? This essay examines both of these questions by examining the interplay between personal rights and structural constraints on the federal government throughout American constitutional history.
Canopy Forum, 2020
This is, in short, a volume with a strong (though not unanimous) sense of perspective. It is not ... more This is, in short, a volume with a strong (though not unanimous) sense of perspective. It is not a sampler of all the viewpoints there are on the First Amendment’s religion clauses. (In any case, no single volume could bear such a burden.) It is, instead, an outstanding collection of voices that together affirm the importance of religious liberty, appreciate the complexities of its history, and are interested in rethinking its philosophical foundation. Along the way, it surveys the state of the field. It serves as both an excellent introduction to an enormous literature and an important contribution to the conversation.
New Rambler Review, 2016
A review of Exporting Freedom: Religious Liberty and American Power, by Anna Su
New Rambler Review, 2016
A review of Confident Pluralism: Surviving and Thriving through Deep Difference, by John D. Inazu
Constitutional Commentary, 2019
The Bill of Rights is one of those texts that seems to stand for principles as old as the nation.... more The Bill of Rights is one of those texts that seems to stand for principles as old as the nation. Gerard Magliocca's recent book, The Heart of the Constitution, unsettles this assumption. Magliocca reminds us that the Bill of Rights was not always just one thing—indeed, for a while, it wasn’t a “thing” at all. Its name, its recognition as a single, thematically-coherent document, its rise to the status of venerated text—all were products of history. Magliocca has provided a rich account of the Bill of Rights’ place in American culture across two centuries in this crisp, concise, eminently readable book. One need not agree with every detail of Magliocca’s account to recognize that it is a valuable contribution to our understanding of constitutional history. This review essay highlights three of Magliocca’s key arguments before concluding with thoughts about the questions future scholarship on this subject might address.