Friday, February 23, 2007

It's Not the Court's Fault: Albert on Religion in the New Republic

Richard Albert, Oxford University, has posted an article that was published recently in the Louisiana Law Review, Religion in the New Republic. Here's the abstract:
Establishment Clause case law is incoherent in many consequential ways. Many point directly to the Supreme Court of the United States for this lamentable state of affairs. I disagree with this diagnosis. It is an inaccurate and incomplete criticism to blame the Supreme Court for the current landscape of establishment jurisprudence. Modern establishment doctrine - incoherent though it may be - is more properly viewed as an evolving product of the continuing public constitutional discourse among Americans and between public and private forces about the proper role of religion in the American polity. Just as early Americans debated among themselves, armed with their differing hopes and visions about how to mediate the intersection of religion and the state, so too Supreme Court decisions have, on a parallel track, reflected the changing contours of this important debate - a conversation that has yet to cede center stage in the American public square.

Albert has also recently posted a couple of earlier articles, American Separationism and Liberal Democracy, and Beyond the Conventional Establishment Clause Narrative.