Part II | Outline

Category A | Frameworks

Topic 2 | Constitutional Space

A primary goal of principled pluralism is to create “constitutional space” for diverse communities to live in peace and harmony. “Constitutional space” is a metaphor to illustrate the principled application of constitutional protections afforded religious freedom and other fundamental rights as they converge in the public square.

Key ideas  

• Constitutional frameworks. A constitution serves as a general framework governing social interaction and the exchange of ideas. Constitutional provisions afford individuals the protection necessary to freely explore their thoughts and express their beliefs. Constitutionally guaranteed religious freedom increases the confidence of adherents of all religions to manifest their beliefs publicly without fear of backlash.

• Expansive zones of freedom. The constitutional space metaphor elicits a visual understanding that constitutions should attempt to create expansive zones of freedom where people can live their lives and exercise freedom and creativity. The right to freedom of religion is one right that will benefit from a capacious conception of constitutional space.

• Constitutional religion-state relationships. Varying forms of religion-state relations can be thought of as comprising a spectrum or continuum. Between theocratic regimes (fully shared identity between religion and state) and abolitionist regimes (state prohibition of religion) is a range of regimes that exhibit varying degrees of space between religion and state. Iran, India, and Spain offer examples of three different types of regimes.

Critiques  

• Constitutional imprecision. Critics of the constitutional space theory assert that written constitutions may be intentionally vague or imprecise, leaving legislators to fill in the gaps or judiciaries to piece together the meaning of the framers. This places fundamental rights at the mercy of popular politics or subject to judicial interpretations.

Responses

• Longevity and continued applicability. The intentional use of broad constitutional terms ensures longevity and applicability over time.

• Expansive interpretation. The use of broad constitutional terms aligns with the principle of expressio unius in legal interpretation: When specific items are enumerated, the resulting list of items is presumed to be exhaustive. When general terms are used and items are not explicitly enumerated, the list is understood to be expansive and inclusive of other related, unmentioned items. Thus, the use of broad terms in constitutions suggests that the protection afforded religious freedom should be interpreted expansively rather than narrowly.

• Limitations. When limitations must be placed on the manifestation of one’s religion or beliefs because it would infringe other fundamental rights, the limitations should be narrow and principled. The International Covenant on Civil and Political Rights suggests that the following elements serve as a threshold in determining whether restrictions are warranted:

  • A state must demonstrate that a proposed limitation is prescribed by law. This has come to mean not only that the limitation is firmly grounded in legal principles but also that it is consistent with the rule of law and is not arbitrarily motivated.
  • A state must demonstrate that the proposed limitation is made to serve important public interests such as public safety, public order, public health, public morals, or the fundamental rights and freedoms of others. Limitations that serve other interests are presumptively illegitimate.
  • Additionally, and perhaps most importantly as a matter of application, a state must demonstrate that the proposed limitation is genuinely necessary and not merely convenient. If a less restrictive means is available to obtain the same end, the limitation is not appropriate.