Marc DeGirolami at Mirror of Justice writes that “Constitutions serve several functions, but …, I’m interested in one in particular: to entrench the idea that there is a law above the state’s law — a law that cannot be changed by ordinary legislation.” He then asks “Could one say this about established religions in constitutional states?”
If I’ve understood his argument, the First Amendment’s prohibition against an established religion is less about religion or the relationship between church and state and more an acknowledgment of the limits of the State. An established Church–as for example the Anglican Church in England or the Orthodox Church in Greece or Russia–makes a far reaching claim about the power of the State, specifically that the State is sacred and that through its legislators or executive it has the right to pass judgment on the truth claims of religion. Or as DeGirolami puts it “Establishments of religion sacralize the state.”
But a sacred State is also a State, again as DeGirolami argues, that claims that it is “above its ordinary law, and … thereby control and restrain (the reach of) ordinary law.”
The First Amendment of the US Constitution, however, makes a radically different claim. “It enshrines limits on the ordinary power of government, and … even subordinate the ordinary acts of government to higher law.” While DeGirolami is concerned in his post with religion, his argument is I think equally applicable to the other rights enumerated in the amendment: “the freedom of speech, … of the press; … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” In each of these rights an argument is being made that there are vast areas of human society which, like religion, are “remove[d] from the purview of ordinary law.”
The American Experiment, as I said yesterday (here), is based on certain anthropological presuppositions chief of which is that the human person is a creature and so is necessarily a religious being. But while persons are religious, governments are not. There is a higher law to which event a secular government is accountable. On this point, I think, the American Experiment and the Orthodox notion of the symphonia of Church and Empire are in anthropological agreement even if they diverge practically.