Skip to main content Accessibility help
×
Home
Hostname: page-component-99c86f546-zzcdp Total loading time: 0.578 Render date: 2021-12-06T02:05:31.904Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

4 - The Establishment Clause

Published online by Cambridge University Press:  05 October 2015

Boris I. Bittker
Affiliation:
Yale Law School
Scott C. Idleman
Affiliation:
Marquette University, Wisconsin
Frank S. Ravitch
Affiliation:
Michigan State University
Get access

Summary

Introduction

The Establishment Clause of the First Amendment textually provides that “Congress shall make no law respecting an establishment of religion.” In the period since its framing and ratification, now extending well over two centuries, the meaning and reach of the clause have moved beyond a strict understanding of its text. Three developments in particular warrant mention at the outset. The first is that the clause has been held to apply to all branches of government – legislative, executive, and judicial – not simply to the first of these, as the term “Congress” might suggest. The second is that by virtue of a doctrine called “Fourteenth Amendment incorporation,” the clause also has been held to apply to all levels of government – federal, state, and local – such that today it essentially applies to virtually every form of legal or governmental action. From the Congress and the president of the United States, to the agencies, universities, and court systems of the fifty states, to the school districts and police departments of every municipality, all are bound by the limits and prohibitions of the Establishment Clause. State and local governments are further constrained, moreover, by the analogous provisions of their own state constitutions. These provisions, though largely not addressed in this chapter, can differ markedly from the Establishment Clause, and several state constitutions, either by these or other provisions, specifically restrict the relationship between religion and public education or the use of public revenue for religious institutions or purposes.

The third development, which is as much cultural as legal, is that the contemporary reach and impact of the clause are also a product of developing notions of what counts as “law respecting an establishment of religion,” which itself reflects changing understandings of the American political community. Concerns that animated the clause's inclusion – ”the church exercising the coercive power of government,” “direct financial support of the church … through general tax revenue,” and “control by the state over the church” – still persist but for many may not seem like looming threats. Conversely, institutions and practices that may today immediately arouse establishment concerns – breaches in the metaphorical wall of separation between church and state – were or would have been mostly unproblematic within the world of Protestant Christianity and limited government that largely defined early America.

Type
Chapter
Information
Publisher: Cambridge University Press
Print publication year: 2015

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

Available formats
×