Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation
Carl H. Esbeck
University of Missouri School of Law
November 18, 2011
Utah Law Review, Vol. 2011, No. 2, p. 489, 2011
University of Missouri School of Law Legal Studies Research Paper No. 2010-19
The Supreme Court’s decision in Everson v. Bd. of Educ. (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 effort of Federalist majorities in the House and Senate 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 text and drafting record in the House and Senate were ignored by the Court in Everson, as well as what the text and debate 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. This is called “nonpreferentialism.” A second theory is that the last minute introduction of “respecting” into the text of the clause was intended to deny Congress the power to disturb how States arranged their religious 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 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 promulgated to hold organized religion in check rather than to hold government in check. Still another liberal thesis would remove the question of interpretation to 1868 and the Fourteenth Amendment, and in doing so remaking no-establishment into a personal right rather than a power-denying structural clause. Again, this article demonstrates why these claims do violence to the original meaning of Congress in 1789.
Answers to textual and original-meaning inquiries cannot resolve all interpretive questions about church and state. However, they do narrow the range of issues that are properly disputed by closing the door to certain errant interpretations. With distractions such as “tension between the clauses” and “specific federalism” confidently put aside, courts can focus on determining those government actions that bring about the sorts of evils associated with the push for disestablishment in the States from 1776 to 1833.
Number of Pages in PDF File: 136
Keywords: textualism, originalism, establishment, Everson, establishment clause, church-stateAccepted Paper Series
Date posted: August 23, 2010 ; Last revised: December 6, 2011
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