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13 - Which Original Meaning of the Establishment Clause Is the Right One?

from Part III - Law, Politics, and Economics

Published online by Cambridge University Press:  17 December 2019

Michael D. Breidenbach
Affiliation:
Ave Maria University, Florida
Owen Anderson
Affiliation:
Arizona State University
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Summary

Debates over the original meaning of the establishment clause have usually revolved around the question of which broad church-state principle is represented by the clause. Strict separationists advocating a “wall of separation” highlight different historical evidence than do non-preferentialists who argue that the clause allows evenhanded government support for religion. A third group asserts that the clause was instead a federalism provision designed to reserve church-state decisions to the states. This chapter assesses these conflicting interpretations and concludes that the framers and the public understood the clause only as banning the establishment of a national church. That understanding did not necessarily represent an anti-establishment principle, however, and it assumed that church-state issues would continue to be resolved by the states. In light of the Supreme Court’s adoption of the incorporation doctrine, the combination of the federalism interpretation and the no-national-religion prohibition best encompasses the original constitutional decision.

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Publisher: Cambridge University Press
Print publication year: 2020

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