Every time a church-state issue pops up – school vouchers or prayer, the Pledge, you name it – everyone runs to the establishment clause to see what the answer is.  And I’m wondering why we’re asking that clause to do so much work.

You’ll think the answer is obvious.  That’s where the Constitution’s governing statement about religion and government is found.  Just look at all those Supreme Court cases.

And you’re right.  The Supreme Court has, for the last 60 years or so, created its church-state jurisprudence around the first few words of the First Amendment.  But it didn’t have to be that way.  And, in fact, it most often wasn’t that way for 160 years before that.

Try this as a thought experiment.  Suppose, just for the sake of argument, that all the establishment clause did when it was adopted was say that there would be no national “Church of the United States.”  (I’ve devoted 1500 footnotes to saying just that in Church, State, and Original Intent, but you don’t have to agree with me.  This is just an experiment.)  In that case, the establishment clause per se wouldn’t have much, or anything, to say about all our hot-button church-state issues.

It seems to me that there could be interesting questions of delegated powers for federal church-state issues (see the Affordable Care Act litigation), and a chance to mull over equal protection issues for state ones (and perhaps federal ones if you favor reverse incorporation).  How about those largely ignored privileges and immunities, and the last couple of provisions in the Bill of Rights?  You can no doubt think of others.

I’m not proposing an answer here – just suggesting that, as a diversion from the inevitable less-filling/tastes-great debates between the strict separationists and their establishment clause foes, it might be intellectually freeing (and, at least in my view, more historically accurate) to think about church-state issues without all those layers of establishment clause doctrine.

Don Drakeman

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