The Relative Irrelevance of the Establishment Clause
University of Virginia School of Law
February 21, 2011
Texas Law Review, Vol. 89, p. 583, 2011
Virginia Public Law and Legal Theory Research Paper No. 2011-15
Despite the heated legal, political, and scholarly battles that rage around the Court’s Establishment Clause decisions, this Article contends that these decisions are actually quite tangential to the maintenance of the nonestablishment norm. The Article argues, first, that a pervasive feature of modern Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced; second, that there are some legitimate reasons for that underenforcement; and, third, that the Court’s decisions serve mostly as political markers that leave much pertinent activity wholly unregulated by law. By focusing not on what the Court is doing but on what it concertedly seeks not to do, the Article hopes to illuminate the relationship between law and politics in an era in which religious–political movements have become increasingly sophisticated. In light of these movements, the important question for scholars of the Establishment Clause is how the Court “manages establishment” in the political/legal culture outside constitutional law. The Article assesses four potential answers to this question and discusses a number of recent Establishment Clause decisions, paying special attention to disputes about the Ten Commandments, the Pledge of Allegiance, and faith-based initiatives. The Article concludes by suggesting how a self-conscious Supreme Court Justice might help maintain the constitutional settlement of nonestablishment despite the Court’s limited doctrinal influence.
Number of Pages in PDF File: 70
Keywords: First Amendment, church-state, Establishment Clause, religionAccepted Paper Series
Date posted: February 22, 2011 ; Last revised: March 25, 2011
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