Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, November 29, 2010

Smith on the "Constitutional Divide"

Steve Smith has posted an as-per-usual engaging and provocative paper on SSRN, called "Constitutional Divide:  The Transformative Significance of the School Prayer decisions":

This article challenges the standard view in which Everson v. Board of Education was the foundational and most important establishment clause decision and the school prayer decisions of the early 1960s (Engel v. Vitale and Abington School District v. Schempp) were virtually automatic corollaries. In fact, the article argues, it was the school prayer decisions that were foundational, subverting Everson’s “no aid separationism,” and animating not only later establishment clause jurisprudence but much else in constitutional and public discourse besides. Indeed, it is plausible to see the influence of the school prayer decisions and their articulation of secular neutrality as a constitutionally mandated baseline in many of the social conflicts often today placed under the heading of “culture wars.”


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