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.

Tuesday, June 8, 2021

Gillman and Chemerinsky’s Masonic Religion Clauses

In 1948, Justice Stanley Reed pithily proposed that a “[r]ule of law should not be drawn from a figure of speech.” Justice Reed was referring to President Thomas Jefferson’s reference, in an 1802 piece of constituent-service correspondence, to the “wall of separation between church and State” supposedly built by “the whole American people” when the First Amendment to the Constitution was ratified.

Chancellor Howard Gillman and Dean Erwin Chemerinsky insist, in The Religion Clauses, that “Thomas Jefferson got it right” and that “the First Amendment was meant to create a wall that separates church and state.” The better view, though, was expressed in 1985, by then-Justice William Rehnquist, who warned that “[i]t is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Full book review by Rick Garnett at Law & Liberty: https://lawliberty.org/book-review/gillman-and-chemerinskys-masonic-religion-clauses/


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