The Constitution, Religion, and American Public Life

Authors

Gerard V. Bradley, Notre Dame Law SchoolFollow

Document Type

Article

Publication Date

Winter 1988

Publication Information

20 This World, Winter 1988, at 40.

Abstract

From the Introduction

Even a nonspecialist familiar with all of the contiguous disciplines - religious studies, theology, all facets of American history, the history of Christianity, sociology of knowledge, even constitutional and legal history up to World War II - would never guess what American constitutional law of church and state really is. The temptation after reading the actual cases concerning church and state is to dismiss them as stupid. Church-state is the realm of "legendary inconsistencies," as one sympathetic scholar put it.

The sorriest scene in this legal wonderland is a recurring one, and plays in the public schoolroom. The faintest acknowledgment of spiritual reality, like a moment of silence for meditation, is forbidden religious indoctrination of "impressionable youngsters."

Yes, the decisions in the cases seem dumb if you take them seriously as history, theology, sociology, or even as the principled, reasoned discourse usually (or ideally) associated with constitutional law. It is none of those things. It is in the form of judicial opinions, but the reality is legislative.

About the only thing worse than taking the cases seriously at the wrong levels is not to take them seriously at all. We must take heed because the stakes are high.

So much, I hope, explains the organization of what follows. One must treat judicial opinions largely as rhetorical posturing by courts making policy but unwilling to admit it. The decisions must therefore be mercilessly teased to yield the information that matters: What is the desired national policy, and why is it desired? I propose that a dialectical approach be used, as that would best enable the necessary penetration. I will organize the questioning around three discrete episodes and a final blockbuster query. The episodes are the birth of the constitutional ban on religious tests for federal office, the 1947 Everson case, and the 1987 creation science decision. The blockbuster is: If the preferred policy is to privatize religion - as I think it is - why privatization?

Recommended Citation

Gerard V. Bradley, The Constitution, Religion, and American Public Life, 20 This World, Winter 1988, at 40..
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1769