Document Type

Book Chapter

Publication Date

2012

DOI

https://doi.org/10.1093/acprof:oso/9780199860371.003.0012

Abstract

This chapter begins with an analysis of Everson v. Board of Education, where it argues that the although the original intent of the Establishment Clause and the Fourteenth Amendment should be given some weight, the original intent should not be determinative. The chapter rejects the argument that the Establishment Clause was exclusively designed to prevent the federal government from interfering with state establishments. While federalism concerns may have been one such purpose, the Establishment Clause also necessarily prevented the federal government from establishing religion in the District of Columbia, on federal territories, and on federal property — including embassies abroad. This reveals that at least one purpose of “nonestablishment” was to protect values that were tied to the underlying arguments against establishments of religion that were made by Madison and Jefferson. The chapter argues that to understand the Establishment Clause it is better to look to the underlying principles of opponents of establishments rather than the specific laws and practices that existed in the 1780s and 1790s. The values underlying the “separation of church and state” do not differ markedly from the values underlying “nonestablishment.” The effort by Philip Hamburger and others to suggest the contrary is mistaken.

Disciplines

Fourteenth Amendment | Law | Political Science | Religion Law

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