This paper offers a defense of the idea that taxation to promote religion 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 conscientiously object. But if the Jeffersonian proposition is construed broadly to cover any government speech with which taxpayers disagree, it faces an anarchy objection, since no government can function properly without support for its 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 paper 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 government 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 paper argues for the Jeffersonian proposition’s continued place in our thinking about the First Amendment.
During times of crisis, governments often consider policies that may promote safety, but that would require overstepping constitutionally protected...
For the over half-million people currently homeless in the United States, the U.S. Constitution has historically provided little help: it is strongly...
This essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the...
Scholars regard the 1923 League of Nations experts’ report as the origin of the international tax system as we know it. The experts’ report noted the...
This Chapter discusses citizenship taxation as a potential solution to the challenges posed by increasing global mobility and the digitalization of...
This Article develops a new way of understanding the law in order to address contemporary debates about judicial practice and reform. The...
It has been a big moment for court reform. President Biden has proposed a slate of important if vaguely defined reforms, including a new ethics regime...
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Neil Siegel has written a grand...
In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court acknowledged the difficulties in applying its constitutional originalism to the...
In an earlier article titled The Executive Power of Removal, we contended that Article II gives the President a constitutional power to remove...
The Supreme Court has twice held since 2020 that statutory restrictions on the President’s removal power violate Article II of the U.S. Constitution...
Fifty years ago, federal and state lawmakers called for the regulation of a criminal justice “databank” connecting federal, state, and local agencies...
Celebrating Charles Ogletree, Jr. comes naturally to so many people because he served not only as a tireless champion of equality and justice, but...
The recent mass arrests of pro-Palestinian demonstrators have left many asking how such suppression can be justified in a free society. Yet—despite...
In recent years, several popularly elected leaders have moved to consolidate their power by eroding checks and balances. Courts are commonly the...
Does the U.S. Constitution protect the affirmative right to vote? Those focusing on the Constitution’s text say no. Yet, the Supreme Court has treated...
On Thursday afternoon, in an important lawsuit seeking to clarify which religious objectors will be taken seriously when they seek legal exemptions, a...
In their article, The “Free White Person” Clause of the Naturalization Act of 1790 as Super-Statute, Gabriel J. Chin and Paul Finkelman make a...