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Churches as First Amendment Institutions: Of Sovereignty and Spheres

2008; RELX Group (Netherlands); Linguagem: Inglês

1556-5068

Paul Horwitz,

Multicultural Socio-Legal Studies

This Article offers a novel way of approaching the role of churches and other religious within the Amendment framework. Beyond that, it offers a broader organizing structure for the legal treatment of First Amendment institutions - entities whose fundamental role in shaping and contributing to public discourse entitles them to substantial autonomy to organize and regulate themselves without state interference. Drawing on the work of the neo-Calvinist writer Abraham Kuyper, it encourages us to think about churches, and other Amendment entities, as spheres: non-state whose authority is ultimately coequal to that of the state. In the sphere sovereignty model, a variety of spheres, including the church and other non-state institutions, enjoy substantial legal autonomy to carry out their sovereign purposes. The state is limited in its authority to intervene in these spheres. A sphere sovereignty conception of the legal order retains a vital role for the state, however; the state mediates between the spheres and ensures that they do not abuse their power with respect to the individual subjects of their authority. The Article provides a detailed introduction to both the general field of Amendment institutionalism, and the conception of sphere sovereignty offered by Kuyper. It argues that these two seemingly disparate projects, when combined, offer a richer understanding of our constitutional structure and the role of Amendment institutions, such as churches, within it. It also argues that sphere sovereignty is closely related to many aspects of our existing constitutional history, and to constitutional thought about the relationship between the state and non-state associations more generally. It offers a number of applications of this approach to current church-state doctrine. It demonstrates that a sphere sovereignty-oriented approach to the treatment of churches as Amendment offers a legitimate, consistent, and conceptually and doctrinally valuable way of resolving some of the most pressing issues in the law of church and state.