Nonestablishment, Standing, and the Soft Constitution

Abstract

This article praises a development that more commentators have criticized – namely, the Supreme Court’s recent tendency to use “standing” doctrine as a device to avoid addressing establishment clause controversies on the merits. Through much of American history, the article argues, American disestablishment flourished through a “soft constitutionalism” (akin to the “popular constitutionalism” described by Larry Kramer) that gave competing secularist and providentialist interpretations of the Republic a secure place at the constitutional table. With the 1960s school prayer decisions, however, the Court elevated the secularist interpretation to the status of “hard” constitutional doctrine, thereby causing or exacerbating a deep cultural divide and effectively undoing the distinctive American version of disestablishment. The contemporary “culture wars” are in part a product of that well-intended but misguided strategy. And if there is any way to undo the damage and move back in the direction of “soft” constitutionalism, it may well be through using justiciability doctrines like “standing” to create room for soft or popular constitutionalism to revive.

Keywords: constitutional law, first amendment, separation of church and state, federal courts, freedom of religion, standing

JEL Classification: K10