Preliminaries to a concept of constitutional secularism

Constitutional arrangements, today, are facing the challenge of new forms of strong religion that have the apparent goal of reconquering the public space. These movements’ strategies typically involve Trojan horses designed to smuggle religion into constitutional law by arguing that a democratically achieved religious takeover of legislation, for the purposes of imposing divine command, is not constitutionally suspicious per se. Constitutionalism looks vulnerable to certain claims of strong religion when presented in terms of the free exercise of religion and pluralism. As a fi rst step toward a more robust theory of constitutional secularism, this paper reviews some inherent diffi culties of the concept. Constitutionalism relies on the use of the human faculty of reason and on popular sovereignty. The fi rst consideration translates into the duty of public reason giving in law and denies the acceptability of divine reasons; the second precludes any source of law but the secular. A robust notion of secularism, animated by these considerations, is capable of patrolling the borders of the public square. … the French people recognizes the existence of God — French national convention, 1794 Strong religion is back in the public square. 1 Constitutional arrangements are now facing new forms of religiousness due to mass emigration and, also, because the religion of both migrants and locals is changing to stronger versions that aspire to control or reclaim the public space. Strong religion is a social fact. Religious movements organize themselves politically and, in so doing, they challenge secular arrangements directly. In this regard, their chances of success vary considerably, but they are certainly capable of undermining the legal arrangements that claim to be neutral and generally applicable to all people living in the national community. This is a fundamental challenge to secularist processes including constitutionalism.