DOCSLIB.ORG

Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation Carl H

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation Carl H University of Missouri School of Law Scholarship Repository Faculty Publications Fall 2011 Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation Carl H. Esbeck University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Constitutional Law Commons, and the Religion Law Commons Recommended Citation Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489 (2011) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. USES AND ABUSES OF TEXTUALISM AND ORIGINALISM IN ESTABLISHMENT CLAUSE INTERPRETATION Carl H. Esbeck* TABLE OF CONTENTS I. INTRODUCTION ........................................................... 490 II. RELIGION AND RELIGIOUS FREEDOM DURING THE CONSTITUTIONAL CONVENTION OF 1787.................................................496 A. Religion and Religious Freedom in the 1787 Constitution...... ..... 496 B. Religion and Religious Freedom at the Convention ........... ..... 498 C. The Constitution's Overall Theory ...................... ..... 499 D. Historians and the Business of Over-Reading the Constitution.................504 E. The Religious Test Clause & FailedProposals .................... 506 III. RELIGION AND RELIGIOUS FREEDOM DURING THE STATE RATIFICATION OF THE 1787 CONSTITUTION ................................................ 508 IV. DRAFTING THE PHRASES ON RELIGIOUS FREEDOM IN THE FIRST FEDERAL CONGRESS, MAY TO SEPTEMBER 1789, AND ENSUING STATE RATIFICATION.....525 A. Before the House ofRepresentatives ................................527 B. Before the United States Senate.............................555 C. Back to the House ofRepresentatives........................... 560 D. Back to the United States Senate............................561 E. The Committee of Conference.............. ................ 561 F. FinalAction in the House ofRepresentatives..................... 564 G. FinalAction in the United States Senate .................. ..... 565 H. Refuting the Theory of Specific Federalism......... ............. :567 1. Grammar....................................... ..... 568 2. Reason......5........................569 3. Answering the Proponents ............................... 571 L Ratification in the States, October 1789 to March 1792......... ........ 575 V. PLAIN MEANING OF THE TEXT OF THE ESTABLISHMENT CLAUSE..................583 A. The Establishment Clause Does Not Codify a PreexistingRight ............... 583 B. The Establishment Clause Is Not Limited to Protecting Only Conscience..................................... ...... 587 C. The Establishment Clause's Negation ofPower Is Limited and Permits Regulatory Exemptions ............................ ............... 593 VI. THE CONSTITUTION'S OVERALL STRUCTURE AND UNDERLYING POLITICAL THEORY AS BEARING ON THE MEANING OF THE ESTABLISHMENT CLAUSE........596 A. Incorporatingthe Establishment Clause: Confusing a FederalistClause with a JurisdictionalClause.................................. 596 B. The Impossibility of Tension between the Religion Clauses..... ..... 601 ©C 2011 Carl H. Esbeck, R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri. 489 HeinOnline -- 2011 Utah L. Rev. 489 2011 490 UTAH LAW REVIEW [No. 2 C. The FirstAmendment Restrains Government, Not the Private Sector ....... 608 VII. EARLY APPLICATIONS OF THE ESTABLISHMENT CLAUSE BY FEDERAL OFFICIALS ........................................... ..... 612 VIII. CONCLUSION ............................................. ........621 I. INTRODUCTION The text and original meaning' of the Establishment Clause 2 as drafted by the First Federal Congress was diminished in its importance when the United States Supreme Court handed down its decision in Everson v. Board of Education of the Township of Ewing in 1947.' Instead of looking to the record of the debates and journals of the First Congress, the- Everson Court adopted the principles animating the disestablishment struggle in Virginia, and less so the disestablishment experiences in other newly formed states, to give substantive content to the Establishment Clause.4 The dissenting justices in Everson would have taken the The focus of originalism has evolved from the "original intent" of the drafters, to the "original understanding" of those who gave their approval to the law in question, to the "original meaning" of the final text that also considers the conduct of those who first applied the Constitution. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1134-40 (2003). It is not that original intent or original understanding are no longer relevant. Rather, they remain major factors under the umbrella of original meaning. 2 The First Amendment reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. CONST. amend. I (the Establishment Clause appears in italics). 3 330 U.S. 1 (1947). 4Id. at 11-13. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia ... provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group. Id. at 11. In order to capture the states' disestablishment history in a single phrase, the Court drew upon Thomas Jefferson's letter of January 1802 wherein he had written the Danbury Baptist Association in Connecticut that "the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State."' Id. at 16 (citation omitted). However, Jefferson's metaphor was not precise enough an image to actually resolve the difficult church-state cases of the sort that were litigated after Everson. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984) ("The concept of a 'wall' of separation is a useful figure of speech .... But the metaphor itself is not a wholly accurate HeinOnline -- 2011 Utah L. Rev. 490 2011 2011] ESTABLISHMENT CLAUSE INTERPRETATION 491 matter even a step further by generally conflating the beliefs of James Madison of Virginia with the meaning of the Establishment Clause. The imputation of the disestablishment experience in Virginia to the adoption of the Establishment Clause by the First Federal Congress is open to question as a matter of history. Not only were these two experiences very different law-making events, separated by four years, but the Virginia House of Delegates of 1784-1785 and the First Congress of 1789 were also elected by very different constituencies, composed of quite different legislative officials, bore different responsibilities, and harbored different ambitions and allegiances. The one common denominator in the two events was the active involvement of James Madison, a highly capable statesman with well-developed and strongly held views on church-government relations. Even Madison, however, was not singularly focused on religious freedom as Congress assembled itself in New York City in the spring of 1789. As a member of the House of Representatives and someone who had the ear of President George Washington, Madison was as much or more devoted to the implementation of a federated government of robust powers to replace the ineffectual Confederation Congress. When he did focus on religious freedom, Madison had the good sense to take into account that the First Congress was an description of the practical aspects of the relationship that in fact exists between church and state."). As matters have developed from Everson going forward, the meaning the Court would give to "the wall" metaphor was to be found in the ideas animating the Virginia and other state disestablishments. See McGowan v. Maryland, 366 U.S. 420, 442 (1961) ("[T]his Court has given the Amendment a 'broad interpretation ... in the light of its history and the evils it was designed forever to suppress."' (quoting Everson, 330 U.S. at 14-15)). 5Everson, 330 U.S. at 33-43, 52, 57, 63 (Rutledge, J., dissenting): No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history. The history includes not only Madison's authorship and the proceedings before the First Congress, but also the long and intensive struggle for religious freedom in America, more especially in Virginia, of which the Amendment was the direct culmination. In the documents of the times, particularly of Madison, who was leader in the Virginia struggle before he became the Amendment's sponsor, but also in the writings of Jefferson and others and in the
Load more

Recommended publications
  • Separation of Church and State: a Diffusion of Reason and Religion
    East Tennessee State University Digital Commons @ East Tennessee State University Electronic Theses and Dissertations Student Works 8-2006 Separation of Church and State: A Diffusion of Reason and Religion. Patricia Annettee Greenlee East Tennessee State University Follow this and additional works at: https://dc.etsu.edu/etd Part of the Political History Commons, and the United States History Commons Recommended Citation Greenlee, Patricia Annettee, "Separation of Church and State: A Diffusion of Reason and Religion." (2006). Electronic Theses and Dissertations. Paper 2237. https://dc.etsu.edu/etd/2237 This Thesis - Open Access is brought to you for free and open access by the Student Works at Digital Commons @ East Tennessee State University. It has been accepted for inclusion in Electronic Theses and Dissertations by an authorized administrator of Digital Commons @ East Tennessee State University. For more information, please contact [email protected]. Separation of Church and State: A Diffusion of Reason and Religion _________________ A thesis presented to the faculty of the Department of History East Tennessee State University __________________ In partial fulfillment of the requirements for the degree Master of Arts in History _________________ by Patricia A. Greenlee August, 2006 _________________ Dr. Dale Schmitt, Chair Dr. Elwood Watson Dr. William Burgess Jr. Keywords: Separation of Church and State, Religious Freedom, Enlightenment ABSTRACT Separation of Church and State: A Diffusion of Reason and Religion by Patricia A.Greenlee The evolution of America’s religious liberty was birthed by a separate church and state. As America strides into the twenty first century the origin of separation of church and state continues to be a heated topic of debate.
    [Show full text]
  • Why the Late Justice Scalia Was Wrong: the Fallacies of Constitutional Textualism
    Louisiana State University Law Center LSU Law Digital Commons Journal Articles Faculty Scholarship 2017 Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism Ken Levy Louisiana State University Law Center, [email protected] Follow this and additional works at: https://digitalcommons.law.lsu.edu/faculty_scholarship Part of the Constitutional Law Commons, and the Fourteenth Amendment Commons Repository Citation Levy, Ken, "Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism" (2017). Journal Articles. 413. https://digitalcommons.law.lsu.edu/faculty_scholarship/413 This Article is brought to you for free and open access by the Faculty Scholarship at LSU Law Digital Commons. It has been accepted for inclusion in Journal Articles by an authorized administrator of LSU Law Digital Commons. For more information, please contact [email protected]. +(,121/,1( Citation: Ken Levy, Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism, 21 Lewis & Clark L. Rev. 45 (2017) Provided by: LSU Law Library Content downloaded/printed from HeinOnline Fri Mar 16 15:53:01 2018 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: Copyright Information Use QR Code reader to send PDF to your smartphone or tablet device WHY THE LATE JUSTICE SCALIA WAS WRONG: THE FALLACIES OF CONSTITUTIONAL TEXTUALISM by Ken Levy * The late justice Scalia emphatically rejected the notion that there is a general "right to privacy" in the Constitution, despite the many cases that have held otherwise over the past several decades.
    [Show full text]
  • The "Public Trust" As It Is Used in Article VI
    THE "PUBIC TRUST" JenniferAnglim Kreder ABSTRACT It seems as if no one really knows the meaning of the term "public Trust" used in the Religious Test Clause of Article VI of the U.S. Constitution. 7iis Article is the first scholarly attempt to define the term by exploring historical evidence pre-dating the nation's jounding through the Constitution's adoption, including British and colonial trust law that influenced the Founders' conception of the term. Today, one can find the term used only in the cases and scholarship concerning environmental law, tax law and museum law. After a thorough analysis of the old and new sources, this Article proposes the following original definition of term "public Trust": "Any entity given special privilege by the government, beyond the simple grant of a state corporate charteroften coupled with state or federal tax waivers, so long as that entity is legally obligated to engage in conduct that could traditionally have been performed by the government itself for the public's benefit." TABLE OF CONTENTS INTRODUCTION ..................................... ..... 1426 I. HISTORICAL BACKGROUND OF ARTICLE VI............ .... 1428 A. The Stuart Period & Colonial Era......... ............... 1429 B. The Foundingand Early Republic ................... 1430 C. InterpretationalFoundations .................. ..... 1434 D. Fiduciary Underpinnings .......................... 1438 II. MODERN SIGNIFICANCE OF THE PUBLIC TRUST....... ..... 1440 A. Judicially Recognized Trusts and Non-Profit Corporations.. 1441 B. EnvironmentalRegulation ......................... 1443 1. Historical Origins of the Environmental "PublicTrust * Professor of Law, Salmon P. Chase College of Law. The author wishes to disclose that she has done a limited amount of legal work for American Atheists, Inc., including in Ameri- can Atheists, Inc.
    [Show full text]
  • Law Review Articles
    Law Review Articles 1. Church and State in the United States: Competing Conceptions and Historic Changes Indiana Journal of Global Legal Studies 13 Ind. J. Global Legal Stud. 503 This article explains the separation of church and state in the United States. 2. Crowns and Crosses: The problems of Politico-Religious Visits as they Relate to the Establishment Clause of the First Amendment Harvard Journal of Law and Public Policy 3 Harv. J.L. & Pub. Pol’y 227 This article examines whether the Pope or any similar leader should be treated as a head of state or as the representative of a religious group. 3. Damages and Damocles: The Propriety of Recoupment Orders as Remedies for Violations of the Establishment Clause Notre Dame Law Review 83 Notre Dame L. Rev. 1385 In Americans United for Separation of Church & State v. Prison Fellowship Ministries, the court required “a private party, at the behest of another private party, to reimburse the public treasury when the government itself ha[d] not sought reimbursement” for a violation of the Establishment Clause. This Note offers background about taxpayer standing, restitution lawsuits, and background on the Establishment Clause. 4. Accommodation of Religion in Public Institutions Harvard Law Review 100 Harv. L. Rev. 1639 This artcile examines establishment clause problems attaching to government efforts to recognize religion in public institutions under an ‘accommodation’ rationale. Section A introduces the justification for allowing government recognition of religion in public institutions and discusses the difficulty of applying traditional establishment clause analysis to actions taken under this justification. It then proposes that the ambiguities in establishment clause analysis should be explicitly resolved so as to prevent majoritarian infringements of the religious autonomy of minorities.
    [Show full text]
  • A Tale of Two Textualists: a Critical Comparison of Justices Black and Scalia Michael J
    College of William & Mary Law School William & Mary Law School Scholarship Repository Faculty Publications Faculty and Deans 1994 A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia Michael J. Gerhardt Repository Citation Gerhardt, Michael J., "A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia" (1994). Faculty Publications. 990. https://scholarship.law.wm.edu/facpubs/990 Copyright c 1994 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/facpubs ARTICLES A TALE OF TWO TEXTUALISTS: A CRITICAL COMPARISON OF JUSTICES BLACK AND SCALIA MICHAEL J. GERHARDT* The idea that Justices Hugo Black and Antonin Scalia have anything in common jurisprudentially is counterintuitive. Justice Black is associated with the progressive social and economic legislation symbolized by the New Deal and with judicial activism in protecting the poor and disen­ franchised.1 He is beloved by many liberals as a champion of individual rights, especially freedom of speech and of the press. In contrast, Justice Scalia is revered by conservatives as a true believer-combating the rising tide of liberalism, big government, and judicial activism-set on restoring traditional notions of federalism and judicial restraint.2 Any effort to liken these two Justices makes both liberals and conservatives recoil. * Professor of Law, Marshall-Wythe School of Law, The College of William and Mary. B.A. Yale University; M.Sc. London School of Economics; J.D. University of Chicago. I am grateful for the encouragement and helpful comments on earlier drafts I received from Marc Arkin, Erwin Chemerinsky, George Cochran, Neal Devins, Jill Fisch, Tracy Higgins, Michael Herz, Sandy Levinson, Chip Lupu, Tracey Maclin, John McGinnis, Peter Shane, Bill Treanor, Steve Wermiel, and Ron Wright.
    [Show full text]
  • Under God" to the Pledge of Allegiance Offends the Original Intent of the Establishment Clause Matthew .C Berger
    University of St. Thomas Law Journal Volume 3 Article 12 Issue 3 Spring 2006 2006 One Nation Indivisible: How Congress's Addition of "under God" to the Pledge of Allegiance Offends the Original Intent of the Establishment Clause Matthew .C Berger Bluebook Citation Matthew C. Berger, Comment, One Nation Indivisible: How Congress's Addition of "Under God" to the Pledge of Allegiance Offends the Original Intent of the Establishment Clause, 3 U. St. Thomas L.J. 629 (2006). This Comment is brought to you for free and open access by UST Research Online and the University of St. Thomas Law Journal. For more information, please contact [email protected]. Throughout American history, public officials, religious leaders, scholars, and ordinary citizens have debated the proper relationship between religion and government. Despite the volume of discussion on this topic, a commonly-accepted answer remains elusive-the is- sue remains one of the primary wedges dividing the American popu- lace. In the past, this debate has centered on taxpayer support for religious institutions' and Sunday operation of postal service^.^ To- day, the discussion has shifted to controversies over the display of religious symbols on public pr~perty,~the use of school vouchers to subsidize religiously-affiliated private school^,^ and the inclusion of "intelligent design" in public school science c~rricula.~Few of these issues have flashed as suddenly into the national consciousness, how- ever, as the constitutionality of the words "under God" in the Pledge of Allegiance. Despite United States Supreme Court dicta alluding to the Pledge of Allegiance as unquestionably con~titutional,~on June 26, 2002, the Ninth Circuit Court of Appeals held that both the 1954 Act * J.D.
    [Show full text]
  • Is Textualism Doomed?
    RESPONSE IS TEXTUALISM DOOMED? † ILYA SOMIN In response to Jonathan R. Siegel, The Inexorable Radicalization of Tex- tualism, 158 U. PA. L. REV. 117 (2009). In a provocative recent article, Jonathan Siegel argues that textual- ism is ultimately doomed to irrelevance because its “inexorable radica- lization . will cause it to lose the interpretation wars.”1 Siegel con- tends that textualism’s commitment to the “axiom” that “the statutory text is the law” renders it blind to all competing considerations, the- reby forcing textualist judges to enforce “absurd” interpretations of statutes and ones based on “scrivener’s errors.”2 Over time, textualism will “work itself pure,” eliminating any constraints on its inherent log- ic.3 This in turn is likely to make the results of textualism so unattrac- tive that it will lose out to rival approaches such as purposivism and in- tentionalism.4 Siegel has made a compelling argument and identified some poss- ible genuine weaknesses of textualism. I believe he is correct to con- clude that textualism is unlikely to win a decisive victory in the longstanding debate over interpretation. But both his normative cri- tique of textualism and his positive prediction about textualism’s fu- ture are overdrawn. In Part I of this Response, I take issue with elements of Siegel’s normative analysis. I argue that textualism’s adherence to text is † Associate Professor of Law, George Mason University School of Law. 1 Jonathan R. Siegel, The Inexorable Radicalization of Textualism, 158 U. PA. L. REV. 117, 178 (2009). 2 Id. at 144-45. 3 Id. at 153.
    [Show full text]
  • Textualism, Contract Theory, and the Interpretation of Treaties
    CURTIS J. MAHONEY Treaties as Contracts: Textualism, Contract Theory, and the Interpretation of Treaties ABSTRACT. With the nation's treaty obligations proliferating and foreign affairs cases taking up a growing share of the Supreme Court's docket, it is surprising how undertheorized the field of treaty interpretation remains. To fill this void, some have suggested that textualism, which has had a major impact on statutory interpretation over the past two decades, should be applied to treaty interpretation. This Note rebuts that notion and suggests instead that courts draw from modern contract theory in developing canons of treaty interpretation. AUTHOR. Yale Law School, J.D. zoo6; Harvard College, A.B. 20oo. The author wishes to thank Professor William N. Eskridge, Jr., for introducing him to the field of statutory interpretation and for advising the research project that led to this Note. He also wishes to thank Professor Akhil Amar, Aaron Crowell, Justin Florence, Kate Wiltenburg Todrys, and Kimberly Gahan for their comments on earlier drafts. Finally, he wishes to thank Rebecca Iverson Mahoney for all of her love and support. 824 Imaged with the Permission of Yale Law Journal NOTE CONTENTS INTRODUCTION 826 I. STATE OF THE DOCTRINE 827 A. Treaty Interpretation in the Supreme Court 829 B. The Theoretical Problem 833 II. THE CASE FOR TEXTUALISM APPLIED TO TREATIES 834 A. Originalism and Treaty Interpretation 834 B. Public Choice Theory and the Structural Case for Textualism in Statutory Interpretation 838 C. The Structural Argument Applied to Treaty Interpretation 841 D. The Practical Application of Textualism to Treaty Interpretation 844 III.
    [Show full text]
  • The Political Process, Equal Protection, and Substantive Due Process
    ARTICLES THE POLITICAL PROCESS, EQUAL PROTECTION, AND SUBSTANTIVE DUE PROCESS Jesse H. Choper* Stephen F. Ross** ABSTRACT In its landmark decision in Carolene Products, the Supreme Court crafted a uniquely American solution to the counter-majoritarian dilemma present in any constitutional democracy: when unelected judges should substantively review policy choices made by elected legislators and executives. The political process theory underlying that decision is that a court with a history of decisions based on judicial ideology should limit close review of government actions to three situations: (1) when the action contravenes a specific provision of the Bill of Rights, (2) when the action threatens to improperly limit the political process, or (3) with regard to the broadly worded Due Process and Equal Protection Clauses, when courts determine that the political process does not work normally. The Supreme Court has not faithfully implemented this approach over the years. However, neither Justices nor commentators have developed a superior alternative approach. We believe that most Americans ought to prefer a return to Carolene Products, as superior (either philosophically or because of risk aversion) to leaving important constitutional precedents subject to the vagaries of highly partisan politics. Our approach builds upon insights of Justices Harlan Fiske Stone, Robert Jackson, and Thurgood Marshall. First, courts should consider challenges initially under the Equal Protection Clause. Second, the category of cases warranting heightened judicial scrutiny should be expanded to include those in which claimants can prove that they are excluded from the Madisonian factional “wheeling and dealing” that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can demonstrate that animus or prejudice precludes their ability to use the political process to redress their grievances.
    [Show full text]
  • Antonin Scalia's Textualism in Philosophy, Theology, and Judicial
    Antonin Scalia’s Textualism in philosophy, theology, and judicial interpretation of the Constitution* Herman Philipse** 1. Introduction In his forceful and beautifully written essay ‘A Matter of Interpretation’, Justice Antonin Scalia proposed two interrelated theses, a minor and a major one.1 The minor thesis is a causal or historical conjecture and it says that the great liberty taken by judges of the Supreme Court in interpreting statutes and the Constitution is largely due to the influence of the common-law tradition upon legal training in American law schools.2 According to the major thesis, which is normative, this liberty of interpretation is undesirable, because it infringes upon the separation of powers in a modern democracy. If, under the pretext of interpreting laws, judges of the Supreme Court in fact revise the Constitution and promulgate new laws, they are usurping the legislative power that is exclusively assigned to the legislature. For this reason, the Supreme Court, and indeed all courts, should adopt a method of interpretation called ‘Textualism’ or ‘Originalism’, according to which the aim of judicial interpretation is to establish the original meaning of a statutory text.3 As Justice Scalia urges, the question of whether ‘life-tenured judges are free to revise statutes and constitutions adopted by the people and their representatives’ is ‘a question utterly central to the existence of democratic government’ (p. 133). However, both in the United States and in Europe the vast majority of judges reject Justice’s Scalia’s methodology of Textualism, so that the issue of Textualism is a central controversy in the philosophy of law.
    [Show full text]
  • The Establishment Clause, State Action, and Town of Greece
    William & Mary Bill of Rights Journal Volume 24 (2015-2016) Issue 2 Article 5 December 2015 The Establishment Clause, State Action, and Town of Greece Nathan S. Chapman Follow this and additional works at: https://scholarship.law.wm.edu/wmborj Part of the First Amendment Commons, and the Religion Law Commons Repository Citation Nathan S. Chapman, The Establishment Clause, State Action, and Town of Greece, 24 Wm. & Mary Bill Rts. J. 405 (2015), https://scholarship.law.wm.edu/wmborj/vol24/iss2/5 Copyright c 2015 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmborj THE ESTABLISHMENT CLAUSE, STATE ACTION, AND TOWN OF GREECE Nathan S. Chapman * The Establishment Clause forbids the government from engaging in the same religious exercise that the law protects when performed by a private party. Thus, an establishment case often turns on whether religious activity is “state action.” Too often, however, courts ignore the state action analysis or merge it with the substantive Establishment Clause analysis. This muddles both doctrines and threatens individual religious liberty. This Article argues that the state action doctrine should account for the govern- ment’s distribution of private rights. Accordingly, the Constitution applies to the government’s distribution of rights, but not to a private party’s use of those rights. This account of state action sharpens the substantive constitutional question in a variety of constitutional contexts, but it is an especially powerful tool in religious lib- erty cases. For instance, in Town of Greece v. Galloway the Court focused on whether the prayers offered by chaplains before town meetings ran afoul of the Establishment Clause because either they were too “sectarian” or the setting was too coercive.
    [Show full text]
  • WHAT IS TEXTUALISM? Caleb Nelson* VER the Past Two Decades
    NELSONBOOK 3/18/2005 5:21 PM WHAT IS TEXTUALISM? Caleb Nelson* VER the past two decades, eminent scholars and judges have O devoted renewed attention to both the goals and the methods of statutory interpretation. In the academy, indeed, “theories of statutory interpretation have blossomed like dandelions in spring.”1 The range of theories is not quite so broad in actual American courtrooms, but judges too are of different minds about how to ap- proach statutes. One of the leading approaches, championed by Justices Scalia and Thomas on the Supreme Court and by Judge Easterbrook on the Seventh Circuit, goes by the name of “textualism.” Although its advocates accept that label,2 they did not choose it; the approach was named more by critics than by adherents.3 Perhaps not surpris- * Professor of Law and Albert Clark Tate, Jr., Research Professor, University of Virginia. I thank Barry Cushman, Earl Dudley, John Harrison, Paul Mahoney, John Manning, Tom Merrill, Tom Nachbar, Kent Olson, Jim Ryan, and workshop partici- pants at Virginia for helpful conversations and comments. 1 William N. Eskridge, Jr., Dynamic Statutory Interpretation 1 (1994). 2 See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 23 (Amy Gutmann ed., 1997); Herrmann v. Cencom Cable Assocs., 978 F.2d 978, 982–83 (7th Cir. 1992) (Easter- brook, J.). 3 The earliest usage of “textualism” reported by the Oxford English Dictionary comes from 1863, when an author used the term to criticize Puritan theology.
    [Show full text]