Foreword: On Religious Constitutionalism

Abstract

This essay is the Foreword to a remarkable symposium sponsored by the Rutgers Journal of Law and Religion. The editors of the Journal asked three distinguished American legal scholars to engage in a thought experiment, to try to describe the principles that could undergird a religiously-grounded constitution for a religiously-committed society. Each of the three articles in this symposium — by Patrick McKinley Brennan, Steven Friedell, and Asifa Quraishi-Landes, giving their accounts of, respectively, Catholic, Jewish, and Islamic constitutions and constitutionalism — is a thought-provoking and powerful document in its own right. Together, they engage each other and the rest of us in a fascinating and important exchange of ideas.

My Foreword explores some of the common themes and uncommon insights in the three essays. It particularly analyzes whether any of these accounts of religious constitutionalism might fairly be called “theocratic,” under any of several possible definitions of the term, and concludes that the answer might be “no.” More generally, it argues that the larger conversation of contemporary constitutional theory can only be enriched and clarified by treating religious constitutional discourse as legitimately within its domain.

Keywords: Religious constitutions, religious constitutionalism, constitutionalism, constitutional theory, Jewish law, Halakhah, Jewish constitutionalism, Islamic Law, Sharia, fiqh, Islamic constitutionalism, Catholic jurisprudence, Catholic constitutionalism, Establishment Clause, Religion and Law