Benjamin L. Berger (York University – Osgoode Hall Law School) has posted Liberal Constitutionalism and the Unsettling of the Secular (“Liberal Constitutionalism and the Unsettling of the Secular” in Rex Adhar, ed., Research Handbook on Law and Religion (Northampton, Mass: Edward Elgar, 2018), 198-220) on SSRN. Here is the abstract:
This chapter argues that certain features of our constitutional theories and practices have been more dependent than we have heretofore acknowledged on an implicit faith in the character and success of secularism. An assumption about the “secular” nature of the social world has lent certain resources to liberal constitutional theory and made possible particular ideas about the nature of contemporary constitutionalism. Yet the conviction that our political and social lives can be satisfyingly described as secular has been seriously destabilized by experience and theory alike. A simple faith in secularism thus unsettled, certain gaps or shortcomings in prevailing accounts of liberal constitutionalism are exposed. This chapter explores how this unsettling of secularism troubles claims about the centrality of proportionality analysis and rights constitutionalism in constitutional thought and practice, and ultimately raises questions about the ground for legitimacy and role of sovereignty in modern constitutionalism.