Academic

Flanders on a Secular First Amendment

By Lawrence Solum

Chad Flanders (Yale Law School) has posted The Possibility of a Secular First Amendment (Quinnipiac Law Review, Vol. 26, 2008) on SSRN.  Here is the abstract:

In a series of articles and now in their new book, Religious Freedom and the Constitution, Lawrence Sager and Christopher Eisgruber (E&S) defend an interpretation of the religion clauses of the First Amendment which, they write, "denies that religion is a constitutional anomaly, a category of human experience that demands special benefits and/or necessitates special restrictions." While not a book review in the traditional sense, my essay takes E&S's defense of a secular First Amendment as a starting point and asks, how did we get to the point where an interpretation of the First Amendment which denies that religion is "special" came to seem plausible and even desirable?

My essay proceeds in three parts. In the first part, I look at contemporary liberal political theory, in order to understand why it might be a desideratum of contemporary constitutional interpretation that the religion clauses of the First Amendment be read as denying any special place to religion. In part two, I describe E&S's project of interpreting the religion clauses in a secular manner as borrowing heavily from liberal political theory.

In the third part, I present the beginnings (but only the beginnings) of a theory of religion's value, one that I believe is opposed to the theory I ascribe to E&S. According to Ronald Dworkin's theory of Constitutional interpretation, the best interpretation of a constitutional word or phrase is that it best "fits" with the Constitutional text and best captures the "value" underlying the word or phrase. I suggest that that treating religion as no more special than any other system of belief does not give the best interpretation of religion, neither in terms of fit with the text of the Constitution nor in terms of capturing the unique value of religion.

Full post as published by Legal Theory Blog on March 18, 2008 (boomark / email).