Thursday, October 21, 2010

Supreme Court Should Overturn State Establishment Clause Cases

The establishment clause again has come up for discussion. Delaware Republican Christine O’Donnell brought it up in a debate with her Democratic opponent Chris Coons.

O’Donnell asked Coons (who is a lawyer) exactly where the Constitution requires “separation of church and state.” The law school audience laughed, evidently finding it a stupid question. But in fact “separation of church and state” is not mentioned in the Constitution. Coons’ reply was that “The First Amendment establishes a separation.” And so it does, if we believe the Supreme Court.

But this is a case where we should not believe the Court, which actually found “wall of separation between church and state” in a letter written by President Jefferson. Jefferson’s colorful words are a grossly inadequate generalization about the establishment clause.

The clause reads: “Congress shall make no law respecting an establishment of religion . . . .”; The key word is “respecting,” which means “having to do with” an establishment of religion. This awkward expression was used because the amendment’s drafters intended it to do two things, not just one: 1) prevent Congress from establishing a religion, and 2) prevent Congress from interfering if state governments establish a religion. (Several states had established churches when the First Amendment was written; others had religious tests for public officials.)

Most establishment clause cases challenge actions by state governments (including school districts) rather than by the federal government. If the clause were interpreted as written all these cases would be thrown out of court. Most of them involve actions (monuments in parks, prayer in public schools, Bible reading in schools, etc) which it is a stretch to consider “establishments” of religion. But, assuming that they are indeed establishments, the right of the states and school districts to engage in them would be protected by the establishment clause, not prohibited!

But the Supreme Court has been striking down state government actions under the establishment clause for more than half a century. It has held that although the original Bill of Rights (amendments 1-10) placed limits only on the federal government, the Fourteenth Amendment, added after the Civil War, was intended to place many of these same limits on the state governments.

There is convincing evidence that this was indeed intended when Congress wrote the Fourteenth Amendment. And for the most part this “incorporation” of the Bill of Rights made sense. It did not undermine our protection against federal censorship, for example, to hold that the First Amendment also protects us from state government censorship.

But when the Court “incorporated” the first purpose of the establishment clause to prevent state establishments as well as federal establishments, this totally contradicted the clause’s second purpose, protecting the right of states to establish a religion. The Fourteenth Amendment’s drafters intended no such result. Their report to Congress conspicuously omitted the establishment clause as one of the long list of provisions that would be “incorporated” against the states.

No doubt it would be a bad idea for a state to establish a religion today. But letting nine unelected justices twist a key clause of the Constitution so that it means the opposite of what it originally meant is an even worse idea.

There can be no doubt that the Supreme Court has pulled a fast one here, quite possibly without realizing what they were doing. The proper thing for them to do now would be to recognize their error, overturn all of the cases based on that error, and leave issues of church-state relations to the political and legal process at the state level as our Founders intended.


  1. I posted a link to this in a comment on David Friedman's blog, where I think he oversimplified the issue.

    What is your source for the statement that the founders intended to preserve the ability of states to establish religions? I've never heard that from anyone but you. (But it's not something I've read a lot about.)

  2. Good question. There was not room in the necessarily short article for the reference I originally had in it to Yale Law School professor Akhil Reed Amar's book, The Bill of Rights (Yale University Press, 1998), pp. 32-42. Professor Amar is probably the leading expert on the Bill of Rights, and he is most clear on this point. I did not get the idea from him, though, and he is not unique in understanding this point. He cites, for example, Joseph Story's "celebrated Commentaries on the Constitution" which was published in 1833.

    As I recall I got on to this idea by following up on a remark tossed off in passing in a dissenting opinion by Justice Scalia. I thought to myself that this couldn't be true because if it were it would be a major scandal, but it turned out to be quite true when I investigated it further. Best of all, it makes sense of language and history that otherwise makes no sense.


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