The Jurisdictional Establishment Clause: A Reappraisal

Abstract

Debates about the original meaning of the First Amendment's establishment clause have typically featured opposition between "separationists" and "accommodationists" of various shapes and sizes, but an altogether different interpretation holds that the establishment clause was not intended to constitutionalize any substantive principle of religious freedom at all: rather it was simply intended to affirm that religion would remain within the jurisdiction of the states (where virtually everyone at the time assumed it was and should be) and would not be placed within the jurisdiction of the new national government. In recent years, this jurisdictional interpretation has gained the support (in one or another version) of scholars including Akhil Amar and Philip Hamburger and of Justice Clarence Thomas, but it has been criticized by other scholars including Kent Greenawalt, Douglas Laycock, and Noah Feldman. This article carefully reviews the arguments and evidence, pro and con, and concludes that the jurisdictional interpretation provides the most persuasive account of the original meaning of the establishment clause. At least some of the objections from Greenawalt, Laycock and others reflect an assumed dichotomy between "jurisdictional" and "substantive" constitutional provisions. This article criticizes that assumption and reflects on what it means for a constitutional provision such as the establishment clause to be "purely jurisdictional" in nature.

Keywords: Establishment Clause, Freedom of Religion, Separation of Church and State, Constitutional Law, Jurisdiciton, First Amendment, Originalism

JEL Classification: K10