December Responses


PENNumbra’s featured works are now available at This issue contains responses to an article from the print edition of the Law Review and a debate.

Thomas Berg, Richard Garnett, and Steven Smith respond to Nelson Tebbe’s Excluding Religion, 156 U. PA. L. REV. 1263 (2008). In his article, Professor Tebbe analogizes free exercise to other constitutional rights such as speech and privacy and argues that the government may single out religious activities and entities for exclusion from its support programs without offending the Constitution. Though Tebbe explains that this power is consrtained by several limits, he maintains that “the government need not remain neutral toward religion in its support programs,” even if doing so “may skew private incentives toward nonreligious activities and messages.” Tebbe concludes by exploring the implications of his argument for how a government ought to be permitted to “influence private choices concerning matters of conscience.”

Professor Berg, in his Response, Religious Choice and Exclusions of Religion, argues that Professor Tebbe’s justifications for his argument fail because religious choice is a central purpose of the Religion Clauses. After rejecting Tebbe’s justifications and criticizing Tebbe’s interpretation of legal precedent, Berg concludes that “Tebbe’s argument for government discretion to exclude religion succeeds only if preserving the religious choice of individuals and groups is not a fundamental First Amendment value.”

While Professor Garnett generally expresses his appreciation of Tebbe’s “thorough and thoughtful examination . . . of important and difficult questions,” his Response, Excluding Religion: A Response, expresses “some doubts and reservations.” First, while he agrees that “governments may and should, sometimes and for some purposes, treat religion in a special or distinctive way,” he questions whether the reasons Tebbe gives for exclusion are actually “Establishment Clause reasons.” Second, Garnett expresses reservations that “Tebbe’s conclusions are not as bracing or radical as one might have expected, or even hoped.” Specifically, Garnett takes issue with the limits that Tebbe would place on this power of exclusion and questions why Tebbe’s analysis “does not carry him further, to a somewhat more ‘muscular’ liberalism.”

Professor Smith, in his Response, Playing Around with Religion’s Constitutional Joints, begins by arguing generally that, when it comes to the Religion Clause, “there just is not much to say . . . that could or should convince anybody who is not independently inclined toward a particular advocate’s point of view.” Tracing at least “three clusters of authorities and arguments” with regard to government support for religion, Smith argues that no side is in a position to be convinced by the arguments of the others. While he finds himself siding with Tebbe’s position, he “can see no reason why anyone not so inclined should be persuaded.”

Finally, in The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, Seth Barrett Tillman and Professor Steven Calabresi debate whether there is a constitutional bar to joint senate-presidential office-holding. Treating the text formalistically, Tillman carefully parses the text of the Constitution’s Incompatibility Clause and other related clauses to reach the conclusion that the presidency is not “an Office under the United States.” However, citing other constitutional provisions and the history of presidential practice, Professor Calabresi counters that Tillman has “made an ingenious argument for an utterly implausible proposition” that “is contrary to the plain meaning of the constitutional text and to the way we have done things for eight hundred years.”

As always, please click on the PENNumbra link to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.

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