Abstract
Three linked puzzles arise with the constitutionality of public funding private schools - where the funding scheme excludes religious schools: how can the demands of both the Establishment and Free Exercise clause be satisfied; what does respecting precedent mean when there is a recent reversal of one line of cases, and when does federalism demand deference to the supremacy of the federal constitution or instead respect for state autonomy? The puzzling conjunction of the free exercise and establishment could lead government actors has led the Supreme Court to call for play-in-the-joints, allowing some distance between government aid and religious institutions even at if it limits the free exercise of some individuals who at the margin may choose a non-religious path in order to get the public subsidy. The second puzzle - how to respect precedent when a recent new precedent overturns an older one - suggests some respect people's reliance on surrounding precedents, here governing the pre-existing relationship between religion and government. The third puzzle, federalism's Janus-faced tribute to state autonomy, requires federal supremacy but should permit the variety that decentralization enables. Given these puzzles, consideration of policy effects is justified; it is relevant to consider how mandating public funding of vouchers and tax credits redeemable at parochial schools as part of any public educational aid would likely lead many more families to opt for private religious schools, schools - and would alter the character of schooling and socialization in America. Taken together, stare decisis and the religion clauses suggest that federal courts now should leave room for state experimentation and variety rather than a uniform national solution on the issue of compelled public aid to religious schools. This approach is informed by Professor Tribe's approach to constitutional doctrine not a straight-jacket but instead a tool for addressing complex difficulties in light of past resolutions of analogous difficulties as well as past and enduring normative commitments.
Highlights
In a 1975 article, Laurence Tribe explored how three separate puzzles of constitutional law might seem more solvable when viewed together. 1 It was an arresting claim, especially as puzzle designers ratchet up levels of difficulty when they combine two or more puzzles into one. 2 Tribe's use ofjoint riddles to solve problems is mirrored in recent scientific work joining computational biology and genetics
3 In that hope, and inspired by the scholarship and advocacy of Professor Tribe, I tackle here quandaries of constitutional change surrounding the constitutionality of public funding for private schools-where the funding scheme excludes religious schools
The first puzzle concerns the relationship between the Free Exercise Clause and the Establishment Clause in addressing public aid reaching religious schools
Summary
In a 1975 article, Laurence Tribe explored how three separate puzzles of constitutional law might seem more solvable when viewed together. 1 It was an arresting claim, especially as puzzle designers ratchet up levels of difficulty when they combine two or more puzzles into one. 2 Tribe's use ofjoint riddles to solve problems is mirrored in recent scientific work joining computational biology and genetics. 2 Tribe's use ofjoint riddles to solve problems is mirrored in recent scientific work joining computational biology and genetics. Scientists in those fields proceed with the hope that a difficult problem can be understood, if not resolved, by locating it as a part of a bigger problem. He addressed childhood, suspect classifications, and conclusive presumptions, Professor Tribe's own proposal for dealing with his three puzzles reverberates in the analysis of these issues. Even though case-by-case decision-making allows for mistakes and produces uncertainty, it permits evolving and practical responsiveness to the multiple priorities relevant to religion, schooling, and democracy
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