Identities

"We were different/We knew we were different/We were told we were different," stated Chief Flying Eagle of the Mashpee Wampanoag Indians in the course of a trial over their tribal status. The plaintiffs, the Mashpee Indians, asked for a determination that the residents of "Cape Cod's Indian Town" were direct descendants of Native Americans known as the Mashpee, had lived continuously as a tribe, and thus were entitled to regain control of the land in their town despite repeated sales to non-Indians. The defendant, the State of Massachusetts, argued that these people simply were a group with some Indian and some non-Indian ancestors; they had essentially assimilated into mainstream American life through intermarriage and acculturation and thus had no special claim to the land. The tribe's Medicine Man at the time of the trial was named William James. This small detail exemplified the difficulty of the case. Given the same name as one of the most distinguished American philosophers, how could this Medicine Man demonstrate the distinctive identity of his tribe? What would the other William James, the philosopher, say to this question

Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy

Private contractors have played key roles in recent high-profile scandals. These scandals hint at the degree to which the U.S. military has increased the scope and scale of its reliance on private security companies in recent decades. This trend offers many advantages, including nimbleness in the deployment of expertise and geographic flexibility. But it also departs from conventional methods of accountability through both public oversight and private market discipline. The lack of transparency in the use of private contractors compounds the problem of assessing the impact of their increasing role. Failures of basic governmental oversight to ensure contract enforcement by the Department of Defense are welldocumented. Departures from conventional government contracting procedures exacerbate these failures and obscure whether inherently governmental functions are in effect privatized. The large sums of money involved contribute to risks of corruption and a scale of private lobbying that can distort the legislative process. These developments jeopardize the effectiveness of military activities, the professionalism of the military, the integrity of the legislative process and foreign policy decision making, public confidence in the government, national self-interest, and the stability of the world order

Some Realism About Rulism: A Parable for the Fiftieth Anniversary of the Federal Rules of Civil Procedure

When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal law are legitimately applied to such institutions. For example, members of religious organizations cannot commit torts, even if the commission of torts is said to be part of their religious practices. Many people seem to accept what might be called an Asymmetry Thesis, which holds that sex equality principles may not be applied to religious institutions, whereas ordinary civil and criminal law may indeed be applied to them. This essay argues that the Asymmetry Thesis cannot be defended, and that much of the time, sex equality principles are properly applied to religious institutions. Discussion is also devoted to the controversial idea that facially neutral laws may be applied to religious institutions even if they have a severe adverse effect on religious practices

The Government Can't, May, or Must Fund Religious Schools: Three Riddles of Constitutional Change for Laurence Tribe

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

The Constitution and the Subgroup Question

Presented on Nov. 18, 1994, Indiana University School of Law-Bloomington as the 1994 Harris Lecture

Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew It

Reflecting market rhetoric but also potentially advancing spiritual and religious values, school voucher plans dominate current debates on education reform. These voucher plans would enable parents to use public dollars to select private schools, including parochial ones, for their children. Moreover, the recent federal welfare reform includes the "charitable choice" provision, which enables states to issue vouchers to individuals who can redeem them for services and aid from private, including religious, entities. In this Article, Professor Minow predicts that constitutional challenges to these plans under the religion clauses are likely to result in judicial approval of school vouchers and judicial rejection of charitable choice, even though she finds school vouchers the more troubling policy and charitable choice the more promising one. Both kinds of proposals raise challenging questions about individual choice, its reliability, and its importance relative to the need for commonality in society sufficient to bridge plural and potentially divided communities. Yet, both proposals are superior to simplistic alternatives that assign responsibility for schooling and welfare entirely to homogeneous communities, to the federal government, or to each individual. Voucher proposals, if regulated, can establish constructive partnerships between governments and private, including religious, entities at the local, state, and federal levels