Carl H. Esbeck (University of Missouri School of Law) has posted Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation (Utah Law Review, Vol. 2011, No. 2) on SSRN. Here is the abstract:
-
The Supreme Court’s decision in Everson v. Board of Education (1947) is regarded as ushering in the modern era of jurisprudence in church-state relations. Instead of looking to the record of the debates of the First Federal Congress of 1789, the Everson Court adopted the principles animating the disestablishment struggles in Virginia and other newly formed States to give substantive content to the Establishment Clause. Indeed, there was not in the Everson majority even so much as an acknowledgment that the text (“… make no law respecting an establishment …”) was the hard-won effort of Federalists in the House and Senate laboring the summer of 1789 to report amendments that became the Bill of Rights.
This article takes up the curious tale as to why the more obvious text and the drafting record in the House and Senate were ignored by the Court in Everson and what it can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred over others. This is called “nonpreferentialism.” A second theory is that the clause was only intended to deny the national government power to disturb how States arranged their church-state affairs. I call this “specific federalism.” Neither theory is supported by the text or the congressional record.
As the scholarship has unfolded liberals are just as eager to array the congressional debates on their side. One recent initiative is to relegate the Establishment Clause to safeguarding only liberty of conscience. A more common claim, seemingly sensible to the uninitiated, is that the free exercise and no-establishment principles are in “tension,” as if the Establishment Clause was somehow promulgated to hold organized religion in check rather than to hold the government in check. Again, this article demonstrates why these claims do violence to the text and debates of 1789 in Congress.
Answers to textual and original-meaning inquiries cannot resolve all of the interpretive questions about church and state. However, they do narrow the range of issues that are properly disputed by closing the door to certain errant interpretations of the Establishment Clause. With distractions such as “specific federalism” and “tension between the clauses” confidently put aside, the courts can focus on determining those government actions that bring about the sorts of evils associated with religious establishments in 1789.
Lots to chew on in this very interesting pies. Recommended!
I do have one minor reservations, which is that the theoretical framework is sparse, limited almost entirely to a single footnote, which reads:
-
The focus of originalism has evolved from the ―original intent of the drafters, to the ―original understanding of those who gave their approval to the law in question, to the ―original meaning of the final text that also considers the conduct of those who first applied the Constitution. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution‟s Secret Drafting History, 91 GEO. L.J. 1113, 1134-48 (2003). It is not that original intent or original understanding are no longer relevant. Rather, they remain major factors under the umbrella of original meaning.
But quibbles aside, this belongs on the reading list of anyone interested in the religion clauses.