Progressive Constitutionalism: Conceptions of Interpretation and the Religion Clauses

In this paper, I concentrate on the narrower, more typical topic of judicial interpretation. At least in regard to the religion clauses, this may be warranted because any progressive constitution would probably include something similar to the Free Exercise and Establishment Clauses, and these would be judicially enforceable to some degree. The first part of this essay explores relations between progressive values and interpretive approaches. When I asked myself how a judge, committed to progressive values, would interpret the Federal Constitution, I was troubled by whether a progressive approach would be activist or restrained in relation to legislative authority. I concluded that how one would answer that question depends partly on the time frame one chooses for evaluation. I have ambivalently chosen to look forward roughly half a century. The remainder of the essay argues that as far as the religion clauses are concerned, the government should adhere to the present constitutional and legislative approaches of leaving great autonomy to religious institutions, even when they are far from being progressive in their governance. If you agree that progressive constitutionalism faces serious problems concerning how retrogressive religious groups should be treated, and you further agree about how these problems should be resolved, then you will conclude either (a) that progressive constitutionalism is not an apt prescription for every subject, or (b) that progressive constitutionalism contains a plurality of sometimes competing values that yield treatment of religion that is unusual in comparison to the treatment of many other subjects of law