Question for Professor Solum on Formalism and Public Legal Reason

Larry Solum's short paper (posted by Rob) defending judicial formalism as a corollary of public legal reason is interesting and helpful.  I appreciate his distinction between the exclusion of comprehensive moral/theological arguments from judicial opinions and from political/legislative debate; for the reasons he notes, the arguments for exclusion are much stronger as to judicial opinions.

I have a question, with apologies if Professor Solum has answered it elsewhere.  Among his lexically-ordered set of formalist principles of constitutional interpretation -- beginning with the text and ending with "default rules" such as "minimize judicial discretion and maxmize predictability" -- suppose that in a given case, the crucial level of analysis itself reflects a comprehensive moral or theological conception that would otherwise be excluded under a  formalist approach?  The most likely such instance would be original meaning, and for subject matter let's take the Religion Clauses, where I believe that this is a very live question.

Suppose we conclude for some current Religion Clause question that precedent, plain meaning, and overall textual structure give no clear answer, so that we must move to the next principle, original meaning.  And suppose we conclude that the original meaning embodies, and cannot be stated without setting forth, one or more theological affirmations: for example, that God exists, that following God is the most important calling of human beings, but that such following must always be voluntary.  This is essentially the conclusion of works like Steve Smith's excellent The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa L. Rev. 149 (1991); the conclusion can of course be challenged, but assume it for purposes of argument.  (Although original meaning might in many cases be found from sources, such as dictionaries, more prosaic than arguments of theology, it may also be -- and let's assume -- that we cannot explicate how words such as "free exercise of religion" or "establishment of religion" were used in 1791 without setting forth and directly applying the theological understandings that underlay them.)

If original meaning necessarily embodied and required application of such a comprehensive (theological) conception, should the judicial formalist apply that principle notwithstanding its comprehensive nature?  A number of scholars essentially say that this conception, even if embodied in and necessary to the original meaning, cannot ground constitutional interpretation in today's religiously pluralistic society because it is too "partial," i.e. it fails the test of public reason in the Rawlsian sense.  But what is left after original meaning if, by hypothesis, prior levels of formalist analysis, such as precedent and plain meaning, have also proven insufficient?  (What in fact has happened in the Religion Clause instance is that scholars, and the Supreme Court, have turned to constructing their own theories based on "the best understanding of religion in modern society" or similar criteria (which may or may not satisfy the test of Rawlsian public reason but which are certainly controversial and widely disputed).)  Compared with such efforts, is it preferable to stick to original meaning even if explicating that meaning requires explicitly setting forth and applying a theological or other comprehensive conception?

Tom B.