Document Type

Article

Publication Date

2002

Abstract

Should the establishment clause be interpreted in terms of "separation between church and state"? If not, how should the establishment clause be interpreted?

At stake, first, is the character of religious freedom in the United States. In particular, will lingering separationist notions continue to affect the interpretation of the First Amendment? Notwithstanding the claims made on behalf of separation, there is reason to fear that it is not the religious freedom guaranteed by the First Amendment. Indeed, it will be seen that the interpretation of the First Amendment in terms of "separation of church and state" has tangibly diminished this amendment's religious liberty and that this interpretation became popular as a result of prejudice. Accordingly, it is argued in Part I that separation should be viewed with skepticism.

At issue is also a second, more general, methodological problem concerning the role of prejudice in interpretation. When interpreting the Constitution, Americans often end up applying their own phrases, which they derive, directly or indirectly, from the words of the Constitution. This in itself hardly seems unusual, and the risks of this approach – particularly when it is pursued by enlightened, open-minded judges – may seem manageable. Nonetheless, the jurisprudence based on separation suggests a need for caution. In Part I, it will be seen that "separation of church and state" has not been as secular, dispassionate, or unprejudiced as many Americans suppose. Insufficiently self-conscious of what they were doing, some of the most progressive and liberal justices in the nation's history adopted the phrase "separation of church and state" without pausing to contemplate the prejudiced and discriminatory character of the phrase. In fact, the phrase became popular in constitutional analysis through deeply felt animosities; it lends itself to discrimination; and it thereby continues to give effect to prejudice even when innocently or at least naively used by unprejudiced judges. Thus separation illustrates a larger problem of interpretation: the direct importation of discriminatory and prejudiced phrases into constitutional law.

With this problem in mind, Part II suggests that, even if only for heuristic purposes, judges and other Americans should experimentally consider the application of the Constitution's words before applying other words of their own selection. By first applying the words of the establishment clause, for example, judges could learn what this clause can accomplish and what it cannot, and they thereby could observe the different effect of the phrase about separation. Such an approach would not by itself prevent prejudice or discrimination. Yet it would at least create an opportunity for judges to become more self-conscious about the words they apply that are not in the Constitution. In this way, it could help them to avoid introducing phrases into constitutional law that perpetuate the effects of prejudice. This methodological conclusion about interpretation does not resolve in detail how the establishment clause should be interpreted. It does, however, suggest how judges could reduce the danger that they themselves will become responsible for adopting prejudiced phrases into constitutional law – a danger illustrated here by the phrase "separation of church and state."

Disciplines

Constitutional Law | Law | Law and Politics

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