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Conclusion: The Founders and Church-State Jurisprudence

Published online by Cambridge University Press:  05 June 2012

Vincent Phillip Muñoz
Affiliation:
University of Notre Dame, Indiana
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Summary

A sanction is essential to the idea of law, as coercion is to that of Government.

James Madison, Vices of the Political System of the United States (1787)

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them. …

Publius, Federalist 78 (1788)

In 1878, the Supreme Court turned to Jefferson to adjudicate its first significant Free Exercise Clause case. Nearly seventy years later, in 1947, the Court turned to Jefferson and Madison to resolve its first significant Establishment Clause case. While not always in the foreground of the Court's deliberations, the Founders have been invoked time and time again to guide church-state jurisprudence, including in 2005, when Jefferson, Madison, and Washington were cited in opinions both for and against the constitutionality of state-sponsored postings of the Ten Commandments. The Court, however, has never gotten the Founders right. Most of the justices who have turned to history – and many of the scholars and litigators who have done the research on which those interpretations are based – have assumed that the Founders shared a uniform understanding of the right to religious liberty and that this understanding should be used to adjudicate the First Amendment's religion clauses. But the leading Founders disagreed about the proper separation of church and state. We cannot simply ask, “What would the Founders do?” and then follow their example.

Type
Chapter
Information
God and the Founders
Madison, Washington, and Jefferson
, pp. 206 - 222
Publisher: Cambridge University Press
Print publication year: 2009

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