13 - Which Original Meaning of the Establishment Clause Is the Right One?

Summary

Debates over the original meaning of the establishment clause have usually revolved around the question of which broad church-state principle is represented by the clause. Strict separationists advocating a “wall of separation” highlight different historical evidence than do non-preferentialists who argue that the clause allows evenhanded government support for religion. A third group asserts that the clause was instead a federalism provision designed to reserve church-state decisions to the states. This chapter assesses these conflicting interpretations and concludes that the framers and the public understood the clause only as banning the establishment of a national church. That understanding did not necessarily represent an anti-establishment principle, however, and it assumed that church-state issues would continue to be resolved by the states. In light of the Supreme Court’s adoption of the incorporation doctrine, the combination of the federalism interpretation and the no-national-religion prohibition best encompasses the original constitutional decision.