Threading between the Religion Clauses

14 Pages Posted: 18 Jan 2001

See all articles by Ira C. Lupu

Ira C. Lupu

George Washington University Law School

Abstract

A number of constitutional provisions point in more than one direction. This is true of the First Amendment's Religion Clauses, which enjoin both establishment of religion and prohibitions on its free exercise; the Second Amendment, which focuses on a collective interest in well-regulated militias as well as individual rights to bear arms; and the Suspension Clause, which protects the writ of habeas corpus even as it creates criteria for the writ's suspension. Interpretation of such constitutional provisions might take the form of radical subordination of one of the pair of competing themes, or, alternatively, it might tend toward the ground that integrates and accommodates these apparently divergent values. What is surprising to behold is how often legal scholarship on these subjects chooses the former route over the more balanced, lawyer-like, and textually respectful approach of taking all parts of the relevant provisions into account.

The articles in this symposium by Professors Randy Lee and Marci Hamilton represent subtle illustrations of this phenomenon. Professor Lee claims that the Clinton Administration's concern for religious liberty and free exercise values, as manifested in its position on partisan political activity by tax-exempt religious organizations, is inadequate. Professor Hamilton, on the other hand, claims that the Clinton Administration's solicitude for free exercise values, as revealed in a host of episodes she cites, is excessive and, hence, insensitive to Establishment Clause values. These two efforts at critique of the Clinton Administration bring to mind nothing so much as Goldilocks: Lee's porridge burns the tongue, and Hamilton's chills the belly. To make matters worse, neither offers the crucial perspective of comparison of this Administration with any of its predecessors. A careful review of the overall record suggests that the Clinton Administration has been more solicitous of the Religion Clauses as a whole than can normally be expected of elected national officials and their appointees.

Suggested Citation

Lupu, Ira C., Threading between the Religion Clauses. Available at SSRN: https://ssrn.com/abstract=256870 or http://dx.doi.org/10.2139/ssrn.256870

Ira C. Lupu (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7053 (Phone)

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