Amar on the Establishment Clause as a Westphalian Resolution

Since the Treaty of Westphalia seems to be in the air here at CLR Forum, I thought I’d report a neat quote by renowned constitutionalist and Yale law professor Akhil Amar about the original Establishment Clause:

The original establishment clause, on a close reading, is not antiestablishment but pro-states’ rights; it is agnostic on the substantive issue of establishment versus nonestablishment and simply calls for the issue to be decided locally.  (In this respect it is the American equivalent of the European Peace of Augsburg in 1555 and the treaty of Westphalia in 1648, which decreed that religious policy would be set locally rather than imperially.) 

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 34 (1998).  Others have, of course, challenged Amar’s conclusion that the Establishment Clause did not create any substantive right at all (Donald Drakeman’s excellent book does this quite nicely), but I thought the Westphalian analogy was thought-provoking.  — MOD

Leave a Reply

%d bloggers like this: