Author: Anna Su

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Book Review: Hirschl’s Constitutional Theocracy

Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010), pp.249, $45.00

Religion-state relations have always been a staple topic in comparative constitutional law scholarship. This is, however, the first work that takes a broad and comprehensive overview of a not-so-new but largely ignored landscape which Ran Hirschl calls “constitutional theocracy.”  This term describes and at the same time, zeroes in on the basic issue that form part of every dilemma with regard to the proper relationship between religion and state.  How does one reconcile divine and man-made law?

In this counterintuitive, rich and fascinating book, Hirschl identifies the prevalence of a new form of political phenomenon called a constitutional theocracy which he situates at the intersection between a pure theocracy and a liberal constitutional democracy. According to him, constitutional theocracy has four elements: first, it adheres to elements of modern constitutionalism including judicial review, second, there is usually an established state religion, third, the religion and its corresponding texts are considered sources of state legislation, and lastly, parallel religious tribunals exist alongside the civil adjudication system.

The conventional understanding is that we should view this development with caution. Hirschl identifies that view with local secular elites who see religion with disdain, both for its seeming irrationality and its propensity for unpredictability. Paradoxically, the solution that secular elites came up with is to embrace this development. To constitutionally incorporate religious symbols and directives is ultimately the most prudent and rational response to the pressures brought about by the rise of political religion. For one, it facilitates the deployment of various means of political control, such as delegation and cooptation. To get from one to the other, Hirschl’s previous work on the origins and consequences of new constitutionalism offers a clue.

In Towards Juristocracy, Hirschl advanced the hegemonic preservation thesis in which threatened political elites who seek to preserve or enhance their hegemony empowered the judiciary to decide even highly political matters in order to insulate policy-making processes from the vicissitudes of democratic politics. One can see similar themes at play in his new book, particularly the divide between secular elites and the religious masses, and the peculiar role of constitutional courts in managing political hot potatoes, which, in this setting, refers to religion.

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Book Review: Barringer-Gordon’s The Spirit of the Law and Eisgruber and Sager’s Religious Freedom and the Constitution

Sarah Barringer-Gordon, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Belknap/Harvard University Press: Cambridge, 2010) pp. 316

Christopher Eisgruber & Lawrence Sager, Religious Freedom and the Constitution (Harvard University Press: Cambridge, 2010, Paperback) pp. 352

Everson v. Board of Education is one of the most important and well-known Supreme Court cases for two reasons. First, it finally incorporated the Establishment Clause to apply to both the states as well as the federal government and second, it ushered in Thomas Jefferson’s “wall of separation” metaphor into the jurisprudence of the Religion Clauses. Both of these developments are at the heart of the two books we have under consideration.

Sarah Gordon’s engaging new book, The Spirit of the Law, takes a look at the flesh-and-blood stories surrounding some of the cases that flooded the Supreme Court in the post-Everson period, or what the author calls the “new constitutional world.” Through five distinct but interwoven histories of people and groups which have shaped the ever-fluid contours of the constitutional law of religion, we are invited to view the present constitutional world through the struggles of those who fought to have the law protect the mandates of their respective faiths. These stories would not have been possible without the collapse of the old regime that was largely powered by state law.

As Gordon describes in the first few pages, there are three distinct constitutional landscapes in American history that is more or less reflected in the trajectory of the nation’s religious history. The first period covers the Founding up to more or less the middle of the nineteenth century while the second period covers mostly the period after the last state disestablishment up to the promulgation of Everson. Gordon situates the stories of the Mormons, the Salvation Army and the Jehovah’s Witnesses during this second period. Interestingly, this long nineteenth century also saw the rise of a moral establishment where, despite the earlier state disestablishments, laws and other social reform measures were undergirded by the notion that Christianity formed part of common law. State attempts to enforce their monopoly on adjudicating religious issues were met by the persistence and creativity of believers who sought to bring to life the promise of liberty embedded in the Religion Clauses.

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