Establishment of Religion

Arguing that “[r]eliance on the Virginia disestablishment experience, even when supplemented by Madison’s broader work, is inadequate to understanding the original public meaning of the Establishment Clause” and then reviewing research into the First Congress to determine the original public meaning of the Establishment Clause.

Reviewing the Establishment Clause jurisprudence of Chief Justice Rhenquist and Justice Scalia to show that “the main trouble that permeates originalist Establishment Clause urisprudence is squaring the historical practices of the Founders with the command of the Establishment Clause itself.” Then arguing that this can be rectified by using inquiries into historical practice, as it is in free speech jurisprudence, to “limit the scope of the ‘exceptions’ to the Establishment Clause.”

Providing a corpus linguistics analysis (“using the tools of a corpus and a sufficiently large and representative body of data drawn from the relevant time period to provide additional information about probable founding-era meaning”) to determine how the terms “establishment of religion” were used in common writing at the time of the Founding.

A speech by the Ninth Circuit’s Chief Judge Emeritus exploring the original meaning of the Establishment Clause and arguing that the Clause meant “no federal church would be established and that Congress would not give preferential treatment to an individual sect, not a complete and absolute separation of church and state.”

Arguing that much of the Court’s “bad history” related to the Establishment Clause is the result of its not properly analyzing and assigning weight to the importance of historical practices.

“[O]utlin[ing] the ways in which the Establishment Clause has been applied as an individual dissenter’s right” and arguing that this conflicts with original meaning.

Reviewing what the 1787 Constitution said about religion, what the states’ debates of that Constitution can tell us about religion, what the members of the First Congress intended the Establishment Clause to mean, what the plain meaning of the text was, and early applications of the Clause to argue that “the uses of the word ‘establishment’ during the founding were sufficiently multiple that we cannot be certain of its intended definition” and that “the word ‘establishment’ meant different things to different figures at the political center of the formative law-making process.”

Scrutinizing the Establishment Clause jurisprudence of Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas to argue that “[t]heir arguments are a remarkable congeries of historical error and outright misrepresentation” of the historical record.

Arguing that the Religion Clauses in the First Amendment reflect the Founders’ preference for limited government, not an impulse toward secularization or anti-religiosity.

Reviewing the Founding debates and early commentaries in order to argue that “dispensing with the Lemon test altogether in favor of an express principle of deference to state action regarding public displays of symbols having religious significance” would more closely track with the original meaning of the clause.

Arguing that “opponents of regulatory exemptions for religious practice [who] claim that exemptions prefer religion and thus violate the Establishment Clause . . . [are] inconsistent with the original understanding.”

Reviewing the roles played by various religious sects in building the Founding Era’s disestablishment principles. “[P]ointing to the religious influences that planted seeds later to blossom into the following core disestablishment principles: (1) church and state are functionally distinct158 (the Congregationalists); (2) government may not prefer any religion over any other159 (the Presbyterians); (3) government may not coerce believers into any religious belief160 (the Baptists); (4) the government must be tolerant of all beliefs161 (the Quakers); and (5) the believer may believe in a church order that is not like the civil order, but still can embrace the principles *1789 of democratic republicanism in the civil sphere162 (the Roman Catholics).”

Reviewing the competing originalist theories of the Establishment clause, then arguing that “Justice Thomas’s federalism interpretation most accurately captures the Establishment Clause’s original meaning,” but concluding that this meaning forecloses incorporation of the Clause against the states.

Looking beyond Jefferson and Madison to argue that the Establishment Clause provides an exception to the necessary and proper clause and requires government to treat all faiths in a non-discriminatory manner.

Looking beyond the Virginia Assessment controversy to a thorough historical review of what establishment meant in the colonies more broadly at the time of the Founding in order to argue that “establishment” was specifically about government control of religion.

Arguing that “religion” in 1791 meant “at least what we would think of today as a traditional theistic belief in a God with concomitant duties, which imply a future state of rewards and punishments.”

Reviewing the drafting of the First Amendment to argue that that “singling out religion” by allowing for special protections for religious claimants and believers is fully consistent with our constitutional tradition and does not violate the Establishment Clause, as “religion-blindness” is not.

Reviewing the intellectual history of separation of church and state through the Founders as well as the Enlightenment thinkers who influenced them, like Locke, to argue that Religion Clauses are a key part of the Founders’ vision of a limited liberal government.

Arguing, in Part III, that both the text and historical underpinnings of the Religion Clauses of the First Amendment show that these clauses did nothing to add to the powers of the Congress and instead “were meant to foreclose the possibility that Congress’s necessary and proper powers might reach the subject of religion.”

Reviewing the text, historical origins, Founding Era views, incorporation, and jurisprudence in order to offer an overview of the origins and history of the First Amendment’s Religion Clauses.

Reviewing the Clause and determining it is primarily concerned with federalism.

“Viewing problems of establishment and free exercise through the lens of equality of religious choice brings into sharpened focus the original meaning of the Religion Clauses, and demonstrates that nonestablishment and free exercise are but two sides of the same coin used to purchase liberty of voluntarism in the area of religion.”

Arguing that the original Establishment clause reflected federalism, prohibiting federal power over religion and reserving that power to the states, many of whom did have established churches. However, also reviewing the subsequent history to show that a strong sentiment of antiestablishmentarianism had emerged in both the North and South by the time of the Civil War amendments, suggesting that the Establishment Clause has just as much a claim to be incorporated based on original meaning as the other clauses of the First Amendment.

Reviewing history to argue that the “framers of the religion clauses certainly did not consciously intend to permit nonpreferential aid, and those of them who thought about the question probably intended to forbid it.”

Reviewing the Framers’ intent to argue that the Establishment Clause “was concerned with limiting government and not with limiting or enhancing ecclesiastical institutions.”

Arguing that coercion is the essence of the original meaning of establishment.