Free Enterprise in Religion, or
How the Constitution Protects
Religion and Religious Freedom
Dean M. Kelley
In every generation there are those who cavil at some current course of constitutional interpretation by the Supreme Court and contend that it has departed from the compact entered into by the founders, leading the nation down some vagrant trail of its own imagining— legislating rather than adjudicating. They wish to restore the pristine, primordial purity of the founders' intent by an appeal to history. (The only trouble is that these various would-be restorationists do not always agree among themselves about where the Court went wrong or what the history appealed to is supposed to prove.)
Two restorationist themes have recently (re)appeared with respect to the religion clauses of the First Amendment. A brief critique of them may help to lead us into a consideration of the main burden of this essay.
"The Founders Intended Only to Prevent the Establishment of a National Church." Several recent writers have reviewed the history of the First Amendment (and of contemporaneous events, state enactments, and the like) and have claimed to discover evidence that persuades them that the founders intended only to prohibit the establishment of a single sect or denomination as the national religion of the United States but did not intend to preclude the government's encouragement of the people's religious proclivities or nonpreferential assistance to all religions. 1 In advancing this view, they are following a series of restorationist writers going back to Edward S. Corwin and Erwin N. Griswold, if not even further back to T. M. Cooley and Joseph Story. 2 They have added an important insight by showing that