The Constitution of Religion

Abstract

As legal scholars know, the constitutional law of religion is a mass of intellectual confusion. The author argues that the confusion results from the tensions between the liberal and republican traditions of American public life. He points out that the liberal tradition — the one that predominates in our law and political theory — is incapable of developing “a concept of politics into which religion would comfortably fit,” in part because of liberalism's hostility toward religion. He concludes by “suggest[ing] some ways in which a reconstituted law of religion” — rooted in the republican tradition — might provide a better accommodation between the interests of believers and nonbelievers. This essay appeared originally inThe Connecticut Law Review(Vol. xx). The editors are grateful to Professor Tushnet andThe Connecticut Law Reviewfor permission to reprint it in this special issue.