Natural Rights rationale for Separating Church & State:

[Timothy Sandefur wrote me asking for my thoughts on the originalist rationale for Disestablishment-Separation of Church & State doctrine. The following is based on the email that I sent him in response.]

I think that the rationale behind the doctrine of "separation of Church & State" is that both liberty and equality of conscience are the utmost unalienable of rights. The religion clauses of the Federal Constitution attempt to secure such rights at the federal level, and the 14th Amendment secures them against the states.

I was skimming through Akhil Amar's book on the Bill of Rights and he notes that while he endorses a meaning of the Establishment Clause, where it should properly act as a non-incorporated federalism only provision, he also notes that much of the doctrine of Separation of Church & State is legitimate, but rather should be done through the Free Exercise and Equal Protection clauses.

I saw Phillip Hamburger speak at Princeton where he noted "the Establishment Clause is not an equal protection clause," to which a subsequent speaker replied, "but the Equal Protection Clause is an equal protection clause."

I think one of the flaws of Randy Barnett's otherwise excellent book (and Lawrence Solum linked to an article review making this exact point) is that he refers to 9th & 14th's Amendment natural rights, only as "liberty" rights, whereas there are also natural "equality" rights as well.

We libertarians perhaps rightly fear the concept of "natural equality rights" because of the horrors and injustices of radical egalitarianism. Therefore, we need to put equality, liberty, and property together into a coherent, consistent natural rights theory.

But I think the bottom line is respecting the free and equal rights of conscience of all men invariably requires a secular state with a great deal of separation of Church & State.

PS: Check out these past posts as well:

http://jonrowe.blogspot.com/2004/05/randy-barnett-is-wrong-this-time-wow.html

http://jonrowe.blogspot.com/2004/10/mcconnell-at-princeton-last-night-my.html

http://jonrowe.blogspot.com/2004/06/constitutional-ideals-compromises-on.html

http://jonrowe.blogspot.com/2004/06/establishment-clause-is-more-than-just.html

http://jonrowe.blogspot.com/2004/06/is-establishment-clause-necessary-to.html