The Establishment Clause: Corollary of Eighteenth-Century Corporate Law?

Abstract:     
This article offers an analysis of the original meaning of the Establishment Clause. The thesis of this article is that the framers understood the term establishment in a very technical sense. Establishing a religion was essentially equivalent to granting a special corporate charter to a particular religious denomination. In the eighteenth and nineteenth centuries, states often granted corporate charters that were accompanied by exclusive privileges or monopolies that prohibited others from engaging in certain businesses. This was no different in the case of organizations that had a religious purpose. Accordingly, in prohibiting Congress from issuing laws respecting an establishment of religion, the framers sought to prohibit the federal government from passing laws relating to such corporate charters. Because corporate law was at the time viewed as being solely the province of the states (it was the states, and not the federal government, that had the power to confer such corporate charters), this interpretation is consistent with the evidence indicating that the Establishment Clause was designed to function primarily as a jurisdictional provision -- i.e., the primary effect of the provision was to keep the federal government from interfering with the state governments' activities in the area of religion.

Keywords: Establishment clause, first amendment, religion, originalism, corporate law, corporate charter, establishment

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