The Constitutional Structure of Disestablishment
This article appears in 2 NYU Journal of Law and Liberty 311 (2007).
This article proceeds in the structuralist tradition, which Professor Charles Black describes as "the method of inference from the structure and relationships created by the Constitution." The article takes a structural approach to the Establishment Clause: it reexamines the theoretical foundations of disestablishment, and infers a constitutional structure designed to create a dialectical relationship between political institutions and social institutions. The structural thesis requires that our political institutions safeguard individual liberty of conscience by bracketing all religious questions. The antithesis ensures the existence of free and independent social organizations dedicated to building public virtue. The article then applies the structural model to two modern Establishment controversies: the funding of faith-based charities, and religious speech in public schools. The first application concludes that aid to religious charities violates the constitutional structure by injecting political motives and restrictions into the life of important social institutions. The second application concludes that public schools are actually social institutions that public aid has transformed into political institutions. While, theoretically, schools should not receive state funding, this article makes the (somewhat) less radical suggestion that we simply allow them to act as free and independent social institutions: that is, allow them to present whatever moral or religious messages they choose.
Ian C. Bartrum. "The Constitutional Structure of Disestablishment" NYU Journal of Law and Liberty 2.2 (2007): 311.
Available at: http://works.bepress.com/ian_bartrum/2