You Have Been in Afghanistan: A Discourse on the Van Alstyne Method

Abstract

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool and the results of the application of the graphic analysis, I argue, suggest that "Smith" is a gravely flawed decision, inconsistent both with precedent and with sophisticated textual analysis of the sort that much of Van Alstyne's own distinguished scholarship holds before us as a model of principled and neutral constitutional application.