Trinity Lutheran Church and Unconstitutional Conditions

The recent case of Trinity Lutheran Church v. Comer raises the question of whether a church can be excluded from a competitive process for awarding state aid—in this case funding rubber floors on playgrounds to protect children when they fall.

The most powerful doctrinal argument for the Church is that a decision in its favor treats the Free Exercise Clause like other constitutional rights.  A citizen (or other bearer of rights) cannot be forced to give up something provided by the state because he is exercising a constitutional right, absent a compelling state interest. As Justice Elena Kagan said at oral argument, “it is as strong as any constitutional principle that there is, that when we have a program of funding — and here we’re funding playground surfaces — that everybody is entitled that funding, to — to that particular funding, whether or not they exercise a constitutional right.”

Justice Kagan was describing the so-called unconstitutional conditions doctrine and she was correct that it is regularly applied across the range of constitutional rights. It is the pull of this doctrine and the felt need to make its application consistent that it is likely to move a very large majority of the Court, including Justices Kagan and Breyer, to rule in favor of the Church.

The arguments made in the oral argument against the doctrine of unconstitutional condition in this case are weak.  One was that the program at issue here was competitive rather than universal. 

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Federalism By Judicial Press Release

I’m a little late with this but why am I always right? Back in February, I commented on the “sanctuary city” litigation: [L]awsuits filed by San Francisco and some other jurisdictions are, at best, wildly premature—“unripe,” as the lawyers say. That doesn’t necessarily mean they are stillborn. The Ninth Circuit’s recent travel ban decision strongly suggests that the ordinary rules governing preliminary injunctions, standing, statutory interpretation, and other lawyerly distractions no longer apply in these sorts of cases—perhaps because immigration is now, like climate change or gay marriage, one of those issues that “arouses the judicial libido,” to purloin a fine phrase of Justice Scalia’s. Or perhaps on…

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Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the…

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The Judicial Behavior We Never Observe

Wood judge's gavel over a legal book with white space top.

Outcomes that occur with probability zero are more relevant, and more confounding, to what we do see than we often think they are. Take, for example, the absence of nuclear war during the Cold War era. One side argued from the absence of war that the Soviet government was a pacific regime, and the West could safely demilitarize Western Europe without fear of Soviet aggression. The other side argued that the absence of war resulted from deterrence: eliminate the deterrent and they predicted we’d observe Soviet aggression.

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How Do You Enforce Responsibility?

One of the great difficulties of consistent libertarianism is that of making people bear the full consequences of their own actions and choices. Another great difficulty, indeed, is whether we should much care to live in a society that found a way of doing so.

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This Is Your Brain on Scientism

The problem with convening a March for Prudence is that the prudent—being otherwise occupied and believing public views should be mediated through representation—would never attend. But after the unbounded rhetoric of the March for Science, one wonders if prudence dictates, on this one occasion, marching after all.

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Kate O’Beirne, In Memoriam


Kate Walsh O’Beirne, conservative grande dame with tons of class and zero pretensions, died this past Sunday. Mutual friends who knew her up-close—Bill Kristol, Ramesh Ponnuru, Jonah Goldberg—have posted affectionate, moving tributes. But she inspired and will be missed by countless others who, like me, knew Kate only much more casually. Eons ago, Grover Norquist introduced me to her: “Mike, meet my leetle yellow friend, Kato Beirne.” Thank you, Inspector Clouseau. There ensued the first of many thoroughly enjoyable exchanges about current affairs. Kate loved repartee, cigarettes, and snark, and she had no patience for claptrap. Conservatism’s version of Lauren Bacall, with…

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A Debate over the Meaning and Perfection of Education in America

Student bubbling in answers on a standardized test form with a shallow depth of field

One of candidate Donald Trump’s biggest applause lines when campaigning was his promise to end the Common Core national K through 12 standards. For the first time in any presidential campaign, an education issue claimed a place of importance with grassroots citizens. What was it about Common Core that so excited the passions of ordinary Americans that they demanded answers in a national campaign? And what are the implications for American education?

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Focusing on Flat Incomes Obscures Fundamental Economic Changes

Economic growth concept

In General Sherman’s memoirs, he reports that in 1850 the U.S. Army reassigned him from San Francisco to the east coast of the United States. He mentions that the passage from San Francisco back to the east coast of the U.S. cost him $600. I priced a ticket from SFO to NYC for a flight next month. It came in from between $200 and $550 on So today, we can get from one end of the country to the other end for about the same nominal cost, and for stratospherically less time — several hours instead of several months.

The qualitative improvements considered by themselves are astounding. But we shouldn’t compare nominal cost of transportation. Annual income in the U.S. in 1850 (in 2005 dollars) was around $2,500. So it took about a quarter of a year’s oncome (around 88 days at average wages) to pay for the travel from San Francisco to the east coast of the U.S. Today average income in the U.S. is around $45,000 (in 2005 dollars). It takes the average worker about three days of wages to pay for a ticket to cross the U.S. in a matter of hours.

To point out the obvious: the change for society and for economics is simply revolutionary.

The data got me thinking about comparing household wealth across time.

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Google and Facebook Provide Innovations that Make Us More Equal

Seo Concepts (included Clip Path)

The New York Times publishes many silly opinion pieces on law and economics but a recent article by Jonathan Taplin, Isn’t it Time to Break Up Google, plumbs new depths of folly.  The title understates the breadth of its ambition: the author wants to break up or regulate as public utilities Facebook and Amazon as well as Google.

His unproven premise for acting against these successful companies is that they are monopolies.  For instance, he contends that Amazon has a monopoly in e-books. But it is not at all clear that Amazon has market power once the market is correctly defined: hardcovers and paperbacks provide substitutes that discipline prices for e-books.  Google has a large market share in online search but its competitors are only a click away.

But, more importantly, it is great mistake to break up or bring under comprehensive regulation companies simply because they are monopolies. There is a reason that our antitrust laws attack only monopolization, not the mere possession of monopoly power. As Justice Antonin Scalia observed in Verizon Communications v. Trinko, one of his great but less well-known opinions: “monopoly is what attracts ‘business acumen’ in the first place; it induces risk taking that produces innovation and economic growth. To safeguard the incentive to innovate, the possession of monopoly power will not be found unlawful unless it is accompanied by an element of anticompetitive conduct.”

The desire for monopoly gives life to the economy no less than the desire to procreate gives life to the natural world.

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