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1 West Virginia v. Barnette, 319 U.S. 624 (1943), at 642. 83 Chapter 3 Conventional vs. Radical Establishment Clause Jurisprudence Whatever the religion clauses of the U.S. Constitution represent and however they function in particular cases and controversies, from the standpoint of American political and constitutional theory they have to do with the relation between an individual’s religious orientation and his or her status as an American citizen. Regarding government, the religion clauses stand for the proposition, as we saw Justice Robert Jackson put it in chapter 1, that “[i]f there is any fixed star in our constitutional constellation , it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”1 Regarding the individual, the religion clauses stand for the proposition that the affirmation of a particular religion, religious belief, or religious practice cannot be a condition of full participation in the rights and responsibilities of American citizenship (Establishment Clause), and the rejection of a particular religion, religious belief, or religious practice cannot be a condition of full participation in the rights and responsibilities of American citizenship (Free Exercise Clause). However, the devil, as they say, is in the details. It is easy enough to say that any law or government action that establishes religion or prohibits the free exercise thereof is unconstitutional , but the question is, what counts as the establishment of religion or an infringement of its free exercise? Even at this level of generality and abstraction, however, the religion clauses entail that the Constitution rules out any possibility of what I call a hard theocracy. To take an extreme example, consider the principles of the American Heritage Party and the American Constitution Party, the two minor, essentially theocratic American political parties to which we referred in chapter 2. According to the American Heritage Party, “[T]he Bible is the highest and final authority to which all other authorities and ideas must ultimately yield.”2 In particular, the rule of law “is rooted in an authority higher than man; ultimately in God himself. The rule of law in a Christian order requires that all government policy must be consistent with God’s law and the Christian-based common law.”3 Any political-legal system, the American Heritage Party argues, is necessarily a theocracy: “All power and authority is ordained of God for His glory and for the government and welfare of His creation. All law and government is therefore religious, being founded upon basic presuppositions about God, man & law. Every government legislates the morality of its underlying religion, whether of belief or of unbelief toward God.”4 A hard theocracy, then, would be a political order in which the fundamental law is itself or at least immediately a religious text, religious revelation, or religious institution, such that the legitimacy and legality of law and social practices are to be assessed in terms of their conformity to a fundamental law of a religious nature. According to The Catholic Encyclopedia, a theocracy is [a] form of civil government in which God himself is recognized as the head. The laws of the commonwealth are the commandments of God, and they are promulgated and expounded by the accredited representatives of the invisible Deity, real or supposed—generally a priesthood. Thus in a theocracy civic duties and functions form a part of religion, implying the absorption of the State by the Church or at least the supremacy of the latter over the State.5 Article 1 of the Saudi Arabian Constitution states, for example, “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution, Arabic is its language and Riyadh is its capital,” while Article 23 states, “The state protects Islam; it implements its Shari’ah; it orders people to do right and shun evil; it fulfills the duty regarding God’s call.”6 Understood in these terms, then, the American Heritage Party conceives of the American polity as a hard theocracy. What, however, about a polity in which the government is permitted, even while guaranteeing everyone the right to the free exercise of his or 2 On September 18, 2010, the American Heritage Party formally changed its name to the Christian Liberty Party. See http://www.christianlibertyparty.org/ (retrieved...

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