Establishment and Endorsement

Abstract

The Constitution’s Establishment Clause prohibits government from adopting any official policy “respecting an establishment of religion.” The modern Supreme Court has interpreted this provision as, in some circumstances, forbidding government from making even hortatory endorsements of religion that are not, in any legal sense, coercive. The Court’s holdings to this effect have provoked dissenting opinions from some of its members, most notably Justice Scalia, who generally took the position that the Establishment Clause prohibits only official acts backed by threat of penalty, such as using public funds for the support of religious institutions. Yet the Court has never fully embraced Justice Scalia’s view, and academics, too, have overwhelmingly sided against him. Nevertheless, this Article argues that Scalia’s interpretation of the Establishment Clause is substantially correct, save for a minor concession the Justice made to the opposing camp that seems to have little historical basis. I begin by presenting a thorough historical account of the Establishment Clause’s meaning. I contribute to existing literature by considering not only Framing-era, but also Reconstruction-era, historical evidence—including some sources that, so far as I am aware, have been overlooked in prior scholarship on this issue; as well as by attempting to respond more thoroughly than have other commentators to Akhil Amar’s especially forceful critique of Scalia’s view. Next, I consider whether the existing Establishment Clause precedent that is inconsistent with original meaning deserves stare decisis treatment, and then suggest some changes to existing Establishment-Clause doctrine that I think would bring the law closer to the original meaning of the relevant constitutional language. Finally, I conclude with some reflections on my arguments’ practical implications.