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Playing Around With Religion's Constitutional Joints
In response to Excluding Religion by Nelson Tebbe
>Download Full Response (PDF file, 89 KB) Start with a very practical, and potentially embarrassing, question: These days, how are you or I—how is anyone—supposed to argue persuasively about constitutional issues of religious freedom? Despite occasional invocations by Justice Souter or Justice Thomas, the “original meaning” of the First Amendment’s religion clauses has long since been left behind in constitutional jurisprudence; it is scarcely an exaggeration to say that the religion clauses as originally understood have effectively been repealed. The modern jurisprudence has instead centered itself on a few basic principles of religious freedom. But these principles—neutrality, voluntarism, separation of church and state—are notoriously indeterminate and manipulable, and they are also often in tension with each other. Unsurprisingly, the case law that has developed does more to ratify than to resolve these contradictory signals and directions. |
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