Some Reflections on Fundamental Questions about the Original Understanding of the Establishment Clause

Kent Greenawalt

in No Establishment of Religion

Published in print November 2012 | ISBN: 9780199860371
Published online January 2013 | e-ISBN: 9780199950164 | DOI:
Some Reflections on Fundamental Questions about the Original Understanding of the Establishment Clause

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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.

Keywords: Everson v. Board of Education; Establishment Clause; nonestablishment; federalism; original intent; separation of church and state; Philip Hamburger

Chapter.  11009 words. 

Subjects: Religious Studies

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