Religion, Public Morality, and Constitutional Law
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Description
The proper balance between moral pluralism and community is, I believe, a pervasive interpretive issue in American constitutional law in the constitutional jurisprudence of state neutrality required by the religion clauses, free speech, and constitutional privacy. State abridgements of religious liberty, for example, are justifiable, if at all, only on a strong showing of neutral state purposes. In a recent book, Toleration and the Constitution, I develop a general position on the role of history, interpretive conventions, and political theory in constitutional interpretation in general and try to show the interpretive fertility of this approach in terms of a unified theory of the value of constitutional neutrality pervasive in the interpretation of the religion clauses, free speech, and constitutional privacy. My analysis here elaborates an aspect of that argument, namely, how interpretations of religion-clause neutrality, shifting over time, can be plausibly understood in terms of an approach to constitutional interpretation that takes seriously the distinctive role of a certain kind of moral and political theory in making the best interpretive sense of our history and our changing interpretive conventions. On that basis, I make some correlative suggestions about how to understand comparable shifts in the interpretation of neutrality argument fundamental to the modern law of free speech and constitutional privacy. My larger theme is that the distinctively American constitutional commitment to liberties of religion, speech, and privacy self-consciously embodies an associated theory of constraints on state power that radically departs from traditional conceptions of enforceable public morality.
Source Publication
Religion, Morality, and the Law
Source Editors/Authors
J. Roland Pennock, John W. Chapman
Publication Date
1988
Recommended Citation
Richards, David A. J., "Religion, Public Morality, and Constitutional Law" (1988). Faculty Chapters. 1923.
https://gretchen.law.nyu.edu/fac-chapt/1923
