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Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel us to Disown our Past?

35 Pages Posted: 24 May 2005  

Steven Douglas Smith

University of San Diego School of Law

Date Written: May 2005

Abstract

Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that [w]e are a religious people whose institutions presuppose a Supreme Being. What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's Supreme Being assertion be reconciled with the no endorsement prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. Douglas lecture at Gonzaga Law School, addresses those questions.

Keywords: constitution, freedom of religion, first amendment, no endorsement prohibition

JEL Classification: K10

Suggested Citation

Smith, Steven Douglas, Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel us to Disown our Past? (May 2005). San Diego Legal Studies Research Paper No. 06-17. Available at SSRN: https://ssrn.com/abstract=728663 or http://dx.doi.org/10.2139/ssrn.728663

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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