The Founders and religion . . . who cares? Cont'd

Adding to Steve Smith's, Tom Berg's, Chris Eberle's, and Rob Vischer's earlier remarks, Prof. Eric Claeys writes:

I think Steve Smith's arguments explain why history is interesting to people who incline toward points of view conventionally viewed as conservative in interpretation or law & religion.  But in most areas of individual rights con law, Steve's arguments don't respond to the concerns that animate the progressives who most often ask Eberle's question -- who cares how it was done 180 years ago if the reasons for doing it the old way can't earn their own keep today[?] 

IMHO, Everson and McCollum have to be part of the explanation.  Constitutional religion law is slightly odd.  It has always relied less on normative political philosophy and more on history than other areas of individual rights law -- say, free speech or family law/reproductive rights.

I this is primarily the result of an accident.  By the 1960s, the Warren Court and some academics had made "living Constitution" interpretation respectable enough that judges could repudiate earlier and non-progressive constitutional doctrines using Eberle's argument   But religion law started going secularist in the late 1940s -- before Warren was Chief Justice and before living Constitution interpretation was respectable.  In their own way, Robert Jackson, Hugo Black, & other Justices on the Court thought of themselves as originalists.

So the important opinions from Everson and McCollum used Jefferson's Danbury Baptist letter and other historical sources to make legally respectable doctrines that broke significantly with earlier case law.  The interpretive choices made in those cases stayed in religion doctrine even as the Warren Court used living Constitution interpretive methodology to change doctrine elsewhere.  And since a lot of academic scholarship is at least a little reactive to what the Supreme Court is doing, a lot of historians and legal scholars to assume that Founding Era history has normative authority it doesn't get elsewhere in con law.

It will be interesting to see whether the scholarly discussion changes in the next five or so years.  Everson and McCollum have been taking a beating in Philip Hamburger's book, Noah Feldman's book, & other scholarship.  My bet is that the conversation shifts away from history to normative political theory straight up.