June 23, 2022

TEXTS ARE STUBBORN THINGS:

Restoring The Founders' Vision Of Religion (FRANK DEVITO, 6/23/22, American Conservative)

The original public meaning of the Establishment Clause is modest and limited: It prevents Congress from making a law respecting an establishment of religion. This means both that Congress is unable to establish a church at the national level and that it cannot interfere with individual states' decisions to establish a religion (or not). 

There are two important takeaways often forgotten in modern discussion of the Establishment Clause. First, the Establishment Clause was uncontroversial at the time of the First Amendment's ratification because it only applied to Congress and not the states. The states were extremely diverse in their establishments of religion. Some states avoided having an established church; others did not. Maryland directly aided the Church of England, while New England states favored the Congregational denomination. Massachusetts kept the Congregational Church as its established state church until 1833. The Founders would have been quite perplexed that in 21st-century Maine, the state government would claim giving tax dollars to sectarian schools violated the Establishment Clause, when the Founders thought it quite consistent to have both an Establishment Clause and established state churches. 

Second, we need to acknowledge the vast distinction between favoring one denomination at the expense of others, and favoring non-religion over religion. These are very different. For the sake of argument, let's accept both that the Establishment Clause now applies to the states as well as Congress, and that the "spirit" of the Establishment Clause is not merely to prevent a state-established church, but to prohibit a state from favoring one denomination over others (the logic of both of these points is disputable and problematic, especially the application of the Establishment Clause to the states). Granting both of these points, there is still no reason that governments cannot subsidize religious education, encourage prayer and religious reading in schools, allow religious symbols in public places, etc. There is nothing in the text or history of the First Amendment, or the traditional practice of the states, that would lead us to believe it is unconstitutional to have Judeo-Christian prayers, readings, symbols, and customs as part of our public institutions. Far from trying to keep religion away from American public life, the Founders thought religion was necessary in our public life. John Adams proclaimed that "[o]ur Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other." 

Posted by at June 23, 2022 6:08 AM

  

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