The Constitutional Politics of the Establishment Clause

Richard Albert

Boston College - Law School; Yale University - Law School

November 4, 2011

Chicago-Kent Law Review, Vol. 87, No. 1, 2012

In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts - national interdiction, congressional disability, and state sovereignty - may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.

Number of Pages in PDF File: 31

Keywords: Establishment Clause, Separation of Powers, Religion, Church and State, Constitutional Politics, Neutrality, Prudential Standing, Nonjusticiability, Flast, Valley Forge, Hein, Winn, Incorporation, Bill of Rights, Supreme Court, Elena Kagan, Clarence Thomas, Passive Virtues

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Date posted: November 5, 2011 ; Last revised: April 29, 2012

Suggested Citation

Albert, Richard, The Constitutional Politics of the Establishment Clause (November 4, 2011). Chicago-Kent Law Review, Vol. 87, No. 1, 2012. Available at SSRN: https://ssrn.com/abstract=1954809

Contact Information

Richard Albert (Contact Author)
Boston College - Law School ( email )
885 Centre Street
Boston, MA 02459-1163
United States
617.552.3930 (Phone)
HOME PAGE: http://www.richardalbert.com

Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
HOME PAGE: http://www.richardalbert.com

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