The Separation of Higher Powers

67 Pages Posted: 5 Nov 2011 Last revised: 15 Sep 2017

Richard Albert

University of Texas at Austin - School of Law; University of Toronto - Faculty of Law; Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law

Date Written: November 4, 2011


The very first words of the very first amendment to the United States Constitution continue to frustrate the quest for constitutional clarity. The Bill of Right’s Establishment Clause commands in plain terms that “Congress shall make no law respecting an establishment of religion,” but the legal interpretation and political implications of the Clause remain contested today as ever before. What may government require of religion? What may religion demand of government? How much of its independence must religion cede to government? And how closely may government collaborate with religion? These enduring questions admit of no definitive answers, at least not without an organizing logic that can bring coherence and purpose to the Establishment Clause. In this Article, I suggest that the concept of the separation of powers can help do just that. Using separation of powers theory, I construct a framework for clarifying the meaning of the Establishment Clause, giving political actors guidance for crafting policy pursuant to it, and making predictable its interpretation in courts.

Keywords: Separation of Powers, Establishment Clause, Bill of Rights, Federalism, Congress, Religion, Church and State, God and Man, Lemon Test, Endorsement Test, Neutrality Test, Sandra Day O'Connor

Suggested Citation

Albert, Richard, The Separation of Higher Powers (November 4, 2011). 65 Southern Methodist University Law Review 3 (2012). Available at SSRN:

Richard Albert (Contact Author)

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512.213.1113 (Phone)


University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5


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

P.O. Box 167
Herzliya, 46150

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