Religion, Federalism, and the Boundary Problem

Description

We use a recent decision by the Fifth Circuit upholding a Texas statute requiring the display of the Ten Commandments in public school classrooms as a jumping off point to discuss not only the religion clauses but a much more general problem of constitutional theory, which we frame as a problem of federalism but actually ranges much more broadly: What body of people gets to make decisions that govern “themselves”? City councils, state legislatures, Congress? Mark proposes a partial solution in which the courts set a “default rule” identifying the first mover and then that body can choose from the entire range of decision-makers to set policy. Mike finds this interesting but is skeptical and, as Mark works out the account, wonders whether the courts contribute anything to making policy under Mark’s scheme. (Mark thinks they do!)