82 Pages Posted: 26 Jun 2006
This article develops a general theory of the Establishment Clause that is grounded on a direct consideration of the relationship between the Supreme Court's constitutional doctrine and various theoretical models of judicial review. The Court's Establishment Clause doctrine is primarily separationist, but it includes a contradictory subtheme permitting the government to favor religion in certain circumstances. The author concludes that this doctrine cannot be defended on the basis of originalism, largely because the Establishment Clause was originally designed to serve the policy of federalism and because originalism cannot justify the Court's "incorporation" of the Establishment Clause into the Fourteenth Amendment for application to the states. The article also addresses process-oriented and common values theories of nonoriginalist judicial review, but concludes that these relatively nonactivist theories likewise cannot support the Court's doctrine.
The author then advances his own theory of nonoriginalist judicial review under the Establishment Clause, a concededly activist theory of political-moral reasoning. He argues that at least in its broad features, the Supreme Court's Establishment Clause doctrine, including both its dominant separationist component and its contradictory subtheme, can be explained and justified as a resolution of church-state issues that makes America stronger, both politically and morally. More specifically, he contends that the Court's doctrine works to ensure a proper respect for the religious and irreligious beliefs of individuals, supports our important societal interest in maintaining a religiously inclusive political community, and, at the same time, does not disserve the valuable role of religion in our country.
Keywords: Constitutional Law, Constitutional Theory, Establishment Clause, Religion Clauses, Religious Liberty
JEL Classification: K00, K10, K19, K30, K39
Suggested Citation: Suggested Citation
Conkle, Daniel O., Toward a General Theory of the Establishment Clause. Northwestern University Law Review, Vol. 82, pp. 1113-94, 1988 (Reprinted by special permission of Northwestern University School of Law); Indiana Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=911649