Abstract

http://ssrn.com/abstract=1369350
 


 



An Expressive Jurisprudence of the Establishment Clause


Alex C. Geisinger


Drexel University College of Law

Ivan E. Bodensteiner


Valparaiso University Law School

March 27, 2009

Penn State Law Review, Vol. 112, No. 1, 2007
Drexel College of Law Research Paper No. 2009-A-13

Abstract:     
Scholars recognize that government acts are expressive; that is, they affect the social meaning of behavior. Nowhere are the expressive effects of government acts more significant than when they affect an individual's understanding of her ability to practice her religion. When government allows a creche to be placed on public property or provides educational vouchers that are used primarily at religious schools, its acts send signals to the population about what the community and the government prefer. As Justice O'Connor has observed, a religious symbol displayed on government property carries a message that affects one's understanding of him or herself as an insider or outsider, favored or disfavored by the political community.

Yet while scholars have recognized that Establishment Clause cases are best understood as analyzing government's expressive acts, they have yet to develop a comprehensive theory of just how government acts actually express particular meanings. Without such a theory, efforts to develop a meaningful Establishment Clause jurisprudence remain unsuccessful. The purpose of this article is to provide such an expressive theory. The article turns to both social and cognitive psychology to develop a model of expressive effects based on the way in which government acts affect beliefs about one's relationship to community or government. This belief-change theory suggests that the primary means by which government acts can affect belief is through the process of inference. When the government places a creche on public property, for example, such an act can lead to reasonable inferences about the religious preferences of both government and the community. Such changes in belief can, in turn, affect the utility of acting in accordance with religious beliefs not preferred by the government or community. By understanding the way in which inference works - in particular the effects of pre-existing beliefs and logical consistency on one's inferential processes - a full expressive theory will be developed.

Once the theory is developed, the article applies it to a number of Establishment Clause cases and ultimately, discusses the theory's implications for Establishment Clause jurisprudence. The article will proceed as follows: Section Two will provide a short introduction to existing Establishment Clause jurisprudence to highlight some of the difficulties and shortfalls of the way in which such cases are currently handled. Section Three will provide a detailed model of the expressive theory while Section Four will apply the theory to a number of Establishment Clause cases. Finally, we will discuss the implications of the expressive theory for Establishment Clause jurisprudence in Section Five. It is our hope by the end of the article to have established a different, more comprehensive and intuitively satisfying test of Establishment Clause violations. We hope also to shed some significant light on current problems in existing Establishment Clause jurisprudence along the way.

Number of Pages in PDF File: 61

Keywords: Norms, Social Norms, Rational choice, Social Psychology, Cognitive Psychology, Expressive Law

Accepted Paper Series





Download This Paper

Date posted: March 28, 2009  

Suggested Citation

Geisinger, Alex C. and Bodensteiner, Ivan E., An Expressive Jurisprudence of the Establishment Clause (March 27, 2009). Penn State Law Review, Vol. 112, No. 1, 2007; Drexel College of Law Research Paper No. 2009-A-13. Available at SSRN: http://ssrn.com/abstract=1369350

Contact Information

Alex C. Geisinger (Contact Author)
Drexel University College of Law ( email )
3320 Market Street
Philadelphia, PA 19104
United States
215-571-4792 (Phone)
Ivan E. Bodensteiner
Valparaiso University Law School ( email )
656 S. Greenwich St.
Valparaiso, IN 46383-6493
United States
Feedback to SSRN


Paper statistics
Abstract Views: 369
Downloads: 32

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.282 seconds