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06/19/2021

Mark David Hall on the Original Meaning of the Establishment Clause
Michael Ramsey

At Law & Liberty, Mark David Hall (George Fox University - Politics): Getting Back to Original Meaning (commenting on this essay by Francis Beckwith).  From the introduction: 

Francis Beckwith has provided an excellent account of the development of the Lemon Test. I agree that it is an ahistorical and analytical test that was applied in an “ad-hoc, counter-intuitive” manner. He is also correct that if justices had attempted to remedy the ad-hoc problem by applying it rigorously, the test would have institutionalized “both a government preference for secularism as well as a hostility toward religion.”

Beckwith observes that the Lemon Test “is rooted in post-1947 Court opinions and not on how the “establishment of religion” was generally understood when the First Amendment was ratified.” I largely agree, but think it important to remember that a surprising range of justices have argued that the Establishment Clause must be interpreted in light of its “generating history.” I focus only on a few justices and cases in this brief essay, but I provide a far more detailed overview elsewhere, which demonstrates that both liberal and conservative justices regularly made such claims. Remarkably, in select cases, even separationists like Black and Brennan offer not-unreasonable accounts of what the Establishment Clause was originally understood to prohibit. If these and other jurists had stuck with their inclination to rely on the original public meaning (a phrase they did not use) of the First Amendment rather than cobble together an ahistorical analytical test, much of the Court’s muddled Establishment Clause jurisprudence, especially of the 1970s and 1980s, would have been avoided.

And in conclusion:

Justices as diverse as Black, Rutledge, Brennan, and Rehnquist have argued that the Establishment Clause should be interpreted in light of its original public meaning. Opponents of originalism often claim that it is difficult, if not impossible, to discern the original public meaning of constitutional provisions. This may be true in some cases, but with respect to the Establishment Clause, it seems clear that it was originally understood to prohibit the evils associated with established churches. And jurists as different as William Brennan, in Abington, and Michael McConnell, in an influential 2003 law review article, agree that it was understood to prevent a remarkably similar list of practices. In McConnell’s account, the Establishment Clause was originally understood to prohibit six categories of government action:

1. government control over the doctrine and personnel of the established church

2, mandatory attendance in the established church;

3, government financial support of the established church;

4, restrictions on worship in dissenting churches;

5. restrictions on political participation by dissenters;

6. use of the established church to carry out civil functions. 

Such findings have been confirmed by recent scholarship, including my own Did America Have a Christian Founding? and these fine works.

If justices had faithfully interpreted the Establishment Clause in light of its original public meaning, the absurd results that Rehnquist listed in his Wallace dissent would have been avoided. And contemporary arguments that religious exemptions and religious monuments on public land somehow violate the Establishment Clause would get little traction, at least among the current Supreme Court justices. 

The Lemon ghoul had a long life, but it may well now be dead. Justices should ensure that it remains in a deep grave where it may rest in peace.