Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy
![handle is hein.journals/jlp18 and id is 397 raw text is: Religion, the Rule of Law, and the Good of the
Whole: A View from the Clergy
Marci A. Hamilton*
I. INTRODUCTION
The separation of church and state is a malapropism, in the
sense that it awkwardly captures the constitutional arrangement
between church and state. While it rightly captures the notion that
church and state are to have distinguishable identities, and
distinguishable interests, it fails to come to grips with the reality that
religion and the state must and do coexist in the lives of the people.
This coexistence was not questioned in the latter half of the
eighteenth century, leading up to the framing of the Constitution.
Nor should it be today. While the debate over the meaning of
Thomas Jefferson's phrase separation of church and state' may
continue indefinitely, there can be little question that the Framers,
the text of the Constitution, and its realization in American society
point to one fact: the two were intended to and do in fact exist
together in a dialectical relationship of difference and interaction.
This principle is a direct application of the larger principle used
to explain church-state relations in the Supreme Court's decision in
Lynch v. Donnelly: No significant segment of our society and no
institution within it can exist in a vacuum or in total or absolute
isolation from all the other parts, much less from government. 'It
has never been thought either possible or desirable to enforce a
regime of total separation . '.2. -2
Yet, how may government and religious entities coexist and
interact under the First Amendment? To admit their mutuality does
* Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo, Yeshiva University. Copyright
© 2002, Marci A. Hamilton. I would like to thank Philip Hamburger and William Marshall for
their insightful comments and Sandy Levinson for various discussions of the issues. I would
also like to thank Mary Lynne Frey of Benjamin N. Cardozo School of Law for her outstanding
research assistance.
1 Letter from Thomas Jefferson to Danbury Baptist Association (Jan. 1, 1802), iv 8 THE
WRITINGS OF THOMASJEFFERSON 113 (H. A. Washington ed., 1854).
2 Lynch v. Donnelly, 465 U.S. 668, 673 (1984); see also PHILIP HAMBURGER, SEPARATION OF
CHURCH AND STATE 111 (2002) (stating that eighteenth-century clergymen ... underst[ood]
their religion as a fully integrated part of the life of the nation) [hereinafter HAMBURGER,
SEPARATION OF CHURCH AND STATE].](ViewImageLocal?handle=hein.journals/jlp18&div=18&collection=&method=preview&ext=.png&size=3)
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Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy
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