Hastings Constitutional Law Quarterly


Miriam Galston


Recent attempts to craft constitutions in Iraq and Afghanistan have focused attention on problems that emerge in countries with a governmentsponsored religion that attempt to organize as constitutional democracies. The tension inherent in combining theocratic and democratic principles seems foreign in the United States because of the nation's longstanding commitment to the First Amendment's guarantee of free exercise of religion for individuals and disestablishment of religion on the part of government entities. Yet the United States is not totally immune from this tension.

In the last several decades, there has been increasing pressure to adopt amendments for the purpose of constitutionalizing religious beliefs held by a portion of the citizenry. Although the proposals for religiously motivated amendments to date fall far short of the intrusiveness of the theocracies in the Middle East and Central Asia, they constitute a genuine threat to the free exercise of religion by members of the public who do not share those beliefs and, if ratified, would amount to a partial establishment of religion by the national government.

This Article explores two legal strategies to combat the threat posed by this development by making the religion clauses of the First Amendment unamendable: first, relying on substantive values implicit in the Constitution and, second, adopting explicit entrenching amendments. The Article examines the theoretical justification and practical feasibility of each of these strategies, focusing on contemporary proposals to amend the Constitution to stipulate that life begins at conception. It concludes that institutional difficulties will likely preclude implementing either strategy and, as a result, recommends reinforcing existing First Amendment norms by enlarging the public's understanding of and commitment to constitutional principles opposed to elevating religious beliefs and practices to constitutional status.