University of Chicago Law Review

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Religion and constitutionalism often collide on both substantive values and policy preferences. Moving beyond the familiar angle of divergent value sets, this Essay critically highlights the structural, “clash of orders” features that make religion a credible rival and a serious challenger to modern constitutionalism. We identify three additional dimensions of the potential clash between religion and constitutionalism in a world of resurgent populist nationalism: (1) the structural logic of competing orders; (2) the strategic reliance on religious identity markers to generate unequal civic standings among formally equal citizens; and (3) the transnational nature of religious solidarity and affiliation, which permits escape from, and may destabilize, the project of the territorially bounded constitutional state. Comparative examples reveal how the confluence of these factors has played out in various settings—north and south, national and international—to present a serious threat to the constitutional domain. Taken together, the conjunction of these ideational and structural sources of friction positions religion as one of today’s main challenges to the constitutional order as a whole, but especially to its liberal iterations.

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