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Religion in the New Republic

54 Pages Posted: 29 Jun 2009 Last revised: 15 Sep 2017

Richard Albert

Boston College - Law School; Yale University - Law School; Universidad Externado de Colombia - Facultad de Derecho; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: 2006


Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine - incoherent though it may be - is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate - a conversation that has yet to cede center stage in the American public square.

Keywords: Establishment Clause, Religion, Freedom of Religion, Established Church, Supreme Court, Disestablishment, Colonial History, Bill of Rights, American History

Suggested Citation

Albert, Richard, Religion in the New Republic (2006). 67 Louisiana Law Review 1 (2006). Available at SSRN:

Richard Albert (Contact Author)

Boston College - Law School ( email )

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Boston, MA 02459-1163
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Yale University - Law School ( email )

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Universidad Externado de Colombia - Facultad de Derecho

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University of Toronto - Faculty of Law ( email )

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Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150

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