Document Type

Working Paper

Publication Date

10-16-2008

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Public Choice & Political Economy eJournals; *Humanities - Forthcoming Areas; Religious Studies Research Network; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; ERN Subject Matter eJournals; Humanities Network

Abstract

This Article offers a novel way of approaching the role of churches and other religious institutions within the First Amendment framework Beyond that it offers a broader organizing structure for the legal treatment of First Amendment institutions entities whose fundamental role in shaping and contributing to public discourse entitles them to substantial autonomy to organize and regulate themselves without state interference Drawing on the work of the neoCalvinist writer Abraham Kuyper it encourages us to think about churches and other First Amendment entities as sovereign spheres nonstate institutions whose authority is ultimately coequal to that of the state In the sphere sovereignty model a variety of spheres including the church and other nonstate institutions enjoy substantial legal autonomy to carry out their sovereign purposes The state is limited in its authority to intervene in these spheres A sphere sovereignty conception of the legal order retains a vital role for the state however the state mediates between the spheres and ensures that they do not abuse their power with respect to the individual subjects of their authority The Article provides a detailed introduction to both the general field of First Amendment institutionalism and the conception of sphere sovereignty offered by Kuyper It argues that these two seemingly disparate projects when combined offer a richer understanding of our constitutional structure and the role of First Amendment institutions such as churches within it It also argues that sphere sovereignty is closely related to many aspects of our existing constitutional history and to constitutional thought about the relationship between the state and nonstate associations more generally It offers a number of applications of this approach to current churchstate doctrine It demonstrates that a sphere sovereigntyoriented approach to the treatment of churches as First Amendment institutions offers a legitimate consistent and conceptually and doctrinally valuable way of resolving some of the most pressing issues in the law of church and state

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