The Establishment Clause and the 'Problem of the Church'

32 Pages Posted: 13 Aug 2009

Date Written: August 5, 2009

Abstract

This essay, presented at a conference on Law and Religion at Princeton in April 2009, argues that Thomas Jefferson was right - the establishment clause was intended to erect a 'wall of separation between church and state' - but that those today (such as Justice Souter) who are wont to invoke Jefferson routinely misconceive this purpose. The establishment clause is best understood as a response to the age-old problem of delineating the separate jurisdictions of church and state, and it effectively disavowed the Erastian power of the state to control the church. For modern interpreters, however, the classical, jurisdictional problem has largely disappeared from view, and they have accordingly seen the clause as a response to a different problem - namely, the problem of secularization. They have accordingly construed the clause as a mandate for the secular state. But this construction not only mistakes the clause’s original purpose; it puts the (misconceived and redirected) clause in tension with much in the American political tradition and culture. Hence the notoriously unsatisfactory state of establishment clause jurisprudence today. The essay urges a recovery of the clause’s original and real purpose.

Keywords: freedom of religion, constitutional law, separation of church and state

JEL Classification: K10, K39

Suggested Citation

Smith, Steven Douglas, The Establishment Clause and the 'Problem of the Church' (August 5, 2009). San Diego Legal Studies Paper No. 09-024. Available at SSRN: https://ssrn.com/abstract=1444606 or http://dx.doi.org/10.2139/ssrn.1444606

Steven Douglas Smith (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States
619-260-7969 (Phone)
619-260-2492 (Fax)

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