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Nonestablishment, Standing, and the Soft Constitution

51 Pages Posted: 24 Nov 2010  

Steven Douglas Smith

University of San Diego School of Law

Date Written: November 22, 2010

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

Suggested Citation

Smith, Steven Douglas, Nonestablishment, Standing, and the Soft Constitution (November 22, 2010). San Diego Legal Studies Paper No. 10-045. Available at SSRN: https://ssrn.com/abstract=1713465

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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