The Meaning of the Words: Yesterday and Today
A rigorous historical inquiry into the adoption of the Establishment Clause has shown that it prohibits sect preferences in the government's dealings with religion--including state efforts to promote, encourage, and assist faith--but does not forbid those efforts altogether. The Court has therefore been fundamentally in error since 1947, and condemnably so. The right answer--sect equality--was strenuously pressed upon the Everson Court and also by Edward Corwin in an important article published almost before the ink on that opinion was dry. 1 Since then various commentators 2 and an occasional jurist 3 have reminded the Court of this fundamental alternative, but the Court has never looked back. It also has never articulated a convincing justification for either its brusque dismissal of these entreaties or for its no-aid regime, beginning with the preemptorial Everson opinions. Still, the justices should confess their sin and embark at the earliest opportunity on the path first forsaken in 1947.
A major objection to this departure--stare decisis, or respect for precedent-- is insufficient to stay the change of course. The chief virtue of stare decisis is its assurance that individuals who organize their affairs in the light of the law will be protected in their understandable and reasonable reliance on it. 4 But that purpose is hardly served by fortifying the Everson regime. First, the precedents are so erratic and so often inscrutable that few responsible actors rely heavily on them, a factor that belies the other main reason for stare decisis: avoiding the appearance given by conflicting results that mere judicial will, and not constitutional principle, is at work. Second, many of the rulings have been so contrary to American culture and popular sentiment that repudiating the cases will harmonize rather than disturb expectations. Third, and unlike most other