Indeterminacy and the Establishment Clause

Constitutional Commentary, Vol. 25, p. 279, June 2009

5 Pages Posted: 25 Nov 2008 Last revised: 9 Jun 2015

Frederick Mark Gedicks

Brigham Young University - J. Reuben Clark Law School

Date Written: April 18, 2009

Abstract

Prepared for a symposium on Kent Greenawalt, 2 Religion and the Constitution: Establishment and Fairness (Princeton, 2008), this essay responds to Professor Greenawalt's criticism of my argument in The Rhetoric of Church and State (Duke, 1995), that Establishment Clause doctrine is the incoherent residue of conflicting rhetorical discourses of religious communitarianism and secular individualism. Not only are the Supreme Court's Establishment Clause decisions inconsistent at the margins, but there is no identifiable core meaning that can account for these decisions. The essay concludes that, contra Greenawalt, the thesis of conflicting rhetorical discourses remains the most powerful explanation of the Court's doctrine in this area.

Keywords: discourse, establishment clause, financial aid, indeterminacy, neutrality, religious communitarianism, religious symbols, rhetoric, secular individualism

Suggested Citation

Gedicks, Frederick Mark, Indeterminacy and the Establishment Clause (April 18, 2009). Constitutional Commentary, Vol. 25, p. 279, June 2009. Available at SSRN: https://ssrn.com/abstract=1305742

Frederick Mark Gedicks (Contact Author)

Brigham Young University - J. Reuben Clark Law School ( email )

504 JRCB
Provo, UT 84602-8000
United States
801-422-4533 (Phone)
801-422-0391 (Fax)

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