Academic

Smith on the Establishment Clause

By Lawrence Solum

Steven Douglas Smith (University of San Diego School of Law) has posted The Establishment Clause and the 'Problem of the Church' on SSRN. Here is the abstract:

This essay, presented at a conference on Law and Religion at Princeton in April 2009, argues that Thomas Jefferson was right - the establishment clause was intended to erect a 'wall of separation between church and state' - but that those today (such as Justice Souter) who are wont to invoke Jefferson routinely misconceive this purpose. The establishment clause is best understood as a response to the age-old problem of delineating the separate jurisdictions of church and state, and it effectively disavowed the Erastian power of the state to control the church. For modern interpreters, however, the classical, jurisdictional problem has largely disappeared from view, and they have accordingly seen the clause as a response to a different problem - namely, the problem of secularization. They have accordingly construed the clause as a mandate for the secular state. But this construction not only mistakes the clause?s original purpose; it puts the (misconceived and redirected) clause in tension with much in the American political tradition and culture. Hence the notoriously unsatisfactory state of establishment clause jurisprudence today. The essay urges a recovery of the clause?s original and real purpose.

Highly recommended.

Full post as published by Legal Theory Blog on August 14, 2009 (boomark / email).