Abstract: The Establishment Clause of the First Amendment to the United States Constitution prohibits the government from establishing a state religion. The U.S. Supreme Court has developed different tests to determine whether a government action complies with this principle. Over the past few decades, the Court gradually turned to whether the challenged practice is consistent with the history and tradition of the nation.
Meanwhile, the separation of church and state is not a notion unique to the United States. After centuries of Confucian monarchy, Korea drafted a modern constitution with a similar provision. Nevertheless, the Constitutional Court of Korea has upheld several laws of pre-modern origin on the ground that the Confucian values they embody have become part of Korean tradition. Such language is strikingly similar to the national-tradition standard devised by the United States Supreme Court.
The Establishment Clause is an oft-discussed topic, but this Comment aims to offer novel insights from a comparative constitutional law perspective. The case of Korea uniquely illuminates the infirmities inherent to the national-tradition standard. This Comment concludes that courts should not use history or tradition to determine whether a government practice violates the constitutional mandate of the separation of church and state.
Other Articles from WLR Online
Time as a Constitutional Constraint: Resolving the Circuit Split on Prolonged Fourth Amendment
A Dormant (Commerce Clause) Challenge to Washington’s Green Energy Laws?
Facial Recognition Technology and Wrongful Arrests in the Digital Policing Era
Involuntary: How a Lack of Analysis of Age Under the Fifth Amendment Highlights the Intersectionality of Age and Race
Abstract: This Article argues that trusts and estates (“T&E”) should prioritize intergenerational economic mobility—the ability of children to move beyond the economic stations of their parents—above all other goals. The field’s traditional emphasis on testamentary freedom, or the freedom to distribute property in a will as one sees fit, fosters the stickiness of inequality. For wealthy settlors, dynasty trusts sequester assets from the nation’s system of taxation and stream of commerce. For low-income decedents, intestacy (i.e., the system of property distribution for a person who dies without a will) splinters property rights and inhibits their transfer, especially to nontraditional heirs.
Holistically, this Article argues that T&E should promote mean regression of the wealth distribution curve over time. This can be accomplished by loosening spending in ultrawealthy households and spurring savings and investment in low-income households.
T&E scholars are tackling inequality with greater urgency than ever before, yet basic questions remain. For instance, what do we mean by “inequality”? How can we remediate inequality? And what goals should we advance in redressing inequality? This Article contributes to these conversations by articulating a comprehensive framework for progressive inheritance law that redresses long-term inequality.
