Separation as a Tradition

77 Pages Posted: 13 Nov 2002


Understandings of constitutional commitments obviously change over time, and those changes are typically accounted for in one of two ways, which might be called the "evolving principle" account and the "it's all just politics" account. This paper develops a third, more Burkean account of constitutional change, in which constitutional commitments are understood as rooted in traditions which reflect ethical commitments that are more than mere "politics" but are not reducible to articulable principles. "Tradition" thus challenges and seeks to dissolve standard polarities between "principle" and "politics," "reason" and "custom," "theory" and "practice," and "top-down" versus "bottom-up." The paper then explores the implications of this more tradition-oriented approach to the constitutional commitment to "separation of church and state," arguing that the best judicial expression of a traditionalist perspective occurs in the much maligned religion clause opinions of Chief Justice Warren Burger.

JEL Classification: K10, K19, K40

Suggested Citation

Smith, Steven Douglas, Separation as a Tradition. Journal of Law and Politics, Forthcoming. Available at SSRN: or

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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