The Original Meaning of the Establishment Clause
Posted: 30 Dec 2005
Much of the confusion over the original meaning of the Establishment Clause has arisen because courts and commentators have been looking in the wrong places. The true meaning of the Clause can be found in the religion terms of the 1788 Gentleman's Agreement by which the Constitution was ratified in exchange for a promise of early amendment. Additional clues to the meaning of the Clause can be gathered from the state of the pre-existing common law (especially the law that would govern the Constitution's oaths of office) and from contemporaneous usage of the term establishment of religion.
Professor Natelson concludes that the principal purpose of the Establishment Clause was to ensure equal federal treatment of all theists. The historical record is clear, however, that the Clause did not protect atheism or agnosticism. Thus, under the original meaning of the Clause, the federal government, while acting under its express or implied powers, may assist theism in general - so long as the government's treatment of different religions is evenhanded.
Keywords: establishment of religion, first amendment, separation of church and state, ten commandments, religion, constitutional law, freedom of religion, supreme court, Newdow, Mccreary, Van Orden
JEL Classification: K10, K19, K30
Suggested Citation: Suggested Citation