Richard Albert (Boston College Law School) has posted The Constitutional Politics of the Establishment Clause. This article is based on his remarks at “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” a symposium recently held at Duquesne University School of Law. Here is an earlier post on that Symposium. The abstract of Albert’s article follows. – ARH
In these reflections presented at a Symposium hosted by Duquesne University School of Law on “The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?” I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts – national interdiction, congressional disability, and state sovereignty – may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.