Document Type

Working Paper

Publication Date

11-9-2008

SSRN Discipline

PSN Subject Matter eJournals; *Humanities - Forthcoming Areas; Religious Studies Research Network; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Political Theory eJournals; Law School Research Papers - Legal Studies; REL Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Political Institutions eJournals; Humanities Network; Political Science Network

Abstract

This is a short commentary on Kent Greenawalts recent major contribution to law and religion the twovolume work Religion and the Constitution stemming from a roundtable discussion of his work at Notre Dame Law School This commentary makes two arguments about Religion and the Constitution First it questions whether the bottomup approach that Greenawalt advocates for law and religion questions can succeed absent an explicit theory of the Religion Clauses Greenawalt proceeds in the careful fashion of a legal philosopher setting out a range of values that underlie the Religion Clauses and offering a sensitive casebycase examination of various Religion Clause issues It is a philosophers brief for the Religion Clauses as it were But it lacks a clear philosophy it does not ultimately tell us how to rank and reconcile competing Religion Clauses values Such a philosophy may in fact ultimately be unattainable But without it we are left without clear standards for evaluating the reasonableness of Greenawalts conclusions in particular cases Second it argues that Greenawalts work may be insufficiently attentive to the institutional nature of religious institutions and their role in the social and constitutional constellation An alternative bottomup method rather than attempting to reconcile abstract Religion Clause values might instead proceed by considering the role practices and capacity for selfregulation of various religious entities at an institutional level and considering the legal implications of such an approach

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