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Peabody on Religion & Constitutional Interpretation

By Lawrence Solum

Bruce Peabody (Fairleigh Dickinson University at Madison) has posted Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

In this essay, I respond to a debate between Geoffrey Stone, Seth Barrett Tillman, Alan Brownstein, and others about the complex relationships between the authors of the 1787 Constitution, contemporaneous religious practices and beliefs, and the enterprise of constitutional interpretation and textual exegesis. I identify religion and other ?partial? constitutional phenomena as concepts alluded to in the Constitution but not given a more complete, direct articulation. In order to describe our political system accurately, and sustain the general project of constitutionalism, we need to understand partial constitutional text by adopting a somewhat novel hermeneutic approach. First, we should assume a somewhat abstracted and ahistorical ?framer?s perspective? that contrasts rather sharply with the ?Framer?s intention? or ?originalist? stance holding such a prominent place in today?s constitutional analysis. Second, in reconciling religion and God as concepts incompletely contained within our supreme law, we need to consider the power and utility of constitutional analogies.

Full post as published by Legal Theory Blog on January 19, 2010 (boomark / email).