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Washington Law Review

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.

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