Academic journal article Texas Review of Law & Politics

The Nineteeth-Century Understanding of the Establishment

Academic journal article Texas Review of Law & Politics

The Nineteeth-Century Understanding of the Establishment

Article excerpt


The past fifty years of the Supreme Court's Establishment Clause jurisprudence reveal a radical departure from the constitutional text ratified in 1791. Whereas the Establishment Clause as written had two purposes-to prevent the national government from establishing an official religion and from interfering with state establishments-the current doctrinal model sets up a heckler's veto, allowing federal courts to intervene whenever some citizen is displeased over even the slightest governmental benefit, accommodation, or approval for religion. This dramatic expansion of the Establishment Clause was never debated or ratified by the people, the ultimate source of the Constitution's authority. In the following sections, I describe how the Establishment Clause was understood for the first 150 years and then argue that modern doctrine has departed from that understanding, has become illogical, has undermined the values of both democracy and community, and has exacerbated political divisiveness.


At virtually any time prior to the 1950s, the idea of a religious establishment involved four main characteristics, which were all features of the established Anglicanism opposed by the Founders.1 These were: (1) institutional mingling between government and religion, (2) direct governmental support for a particular religion, (3) special privileges for a particular religion, or (4) coercion of religious belief, including the punishing of non-adherents. For example, Justice Joseph Story wrote, regarding the Commonwealth of Virginia, that "the legislature could not create or continue a religious establishment which should have exclusive rights and prerogatives, or compel the IMAGE FORMULA14

citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they could not conscientiously believe."2 An 1853 Senate Judiciary Report on congressional chaplains offered a definition similar in spirit:

If Congress has passed, or should pass, any law which, fairly construed, has in any degree introduced, or should attempt to introduce, in favor of any church, or ecclesiastical association, or system of religious faith all or any one of these obnoxious particulars-endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communions-such law would be a 'law respecting an establishment of religion,' and therefore in violation of the constitution.3

I will consider these four characteristics in turn.

A. Mingling Between the State and a Religious Institution

Direct mingling is the paradigmatic example of a religious establishment. One early nineteenth-century court described early religious establishments in this country as making religion "an engine of the state," and as involving the government's "superintendence over the ecclesiastical affairs of the Commonwealth."4 Another court noted that in England, the "head of the church is the head of the State."5 Justice Marshall described the English religious establishment as granting the IMAGE FORMULA17

church "peculiar rights and privileges, not as a corporation, but as an ecclesiastical institution under the patronage of the state."6

Outside of direct identification of church and state, one sign of impermissible mingling was the state's involvement in internal church affairs, such as enforcing or adjudicating matters of church doctrine. Consider President Madison's famous message to Congress explaining his veto of an act incorporating an Episcopal church in Alexandria, Virginia.7 In that message, President Madison explained that the act would be an establishment insofar as it "establishes by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the Minister of the same. …

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