Esbeck on the Establishment Clause

This paper, by church-state scholar Carl Esbeck, will likely be of interest to many readers:

 

Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation

Carl H. Esbeck
University of Missouri School of Law



Utah Law Review, Vol. 2011, No. 2
University of Missouri School of Law Legal Studies Research Paper No. 2010-19

Abstract:
The Supreme Court’s decision in Everson v. Board of Education (1947) is regarded as ushering in the modern era of jurisprudence in church-state relations. Instead of looking to the record of the debates of the First Federal Congress of 1789, the Everson Court adopted the principles animating the disestablishment struggles in Virginia and other newly formed States to give substantive content to the Establishment Clause. Indeed, there was not in the Everson majority even so much as an acknowledgment that the text (“… make no law respecting an establishment …”) was the hard-won effort of the Federalists in the First Congress laboring the summer of 1789 to report amendments that became the Bill of Rights.

This article takes up the curious tale as to why the more obvious text and the drafting record in the House and Senate were ignored by the Court in Everson and what it can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred over others. This is called “nonpreferentialism.” A second theory is that the clause was only intended to deny the national government power to disturb how States arranged their church-state affairs. I call this “specific federalism.” Neither theory is supported by the text or the congressional record.

As the scholarship has unfolded liberals are just as eager to array the congressional debates on their side. One recent initiative is to relegate the Establishment Clause to safeguarding only liberty of conscience. A more common claim, seemingly sensible to the uninitiated, is that the free exercise and no-establishment principles are in “tension,” as if the Establishment Clause was somehow promulgated to hold organized religion in check rather than to hold government in check. Still another thesis would remove original meaning of the Establishment Clause when applied to the states to 1868, and in doing so remake the clause into an individual right. Again, this article demonstrates why these claims do violence to either the text or debates of 1789 in Congress.

Answers to textual and original-meaning inquiries cannot resolve all of the interpretive questions about church and state. However, they do narrow the range of issues that are properly disputed by closing the door to errant interpretations of the Establishment Clause. With distractions such as “specific federalism” and “tension between the clauses” confidently put aside, the courts can focus on determining those government actions that bring about the sorts of evils associated with religious establishments in 1789.