The worst-understood passage in our Constitution’s Bill of Rights is probably the first: “Congress shall make no law respecting an establishment of religion.” That such a simple provision is the source of so much uncertainty is hardly the fault of regular Americans failing to understand the text’s plain meaning, nor is it due to changes in language that often turn the words of the Constitution into an impenetrable puzzle. Rather, as Michael McConnell and Nathan Chapman show in their outstanding new book, Agreeing to Disagree, blame for muddling the meaning of the Establishment Clause falls squarely on the robed shoulders of Supreme Court justices of the mid-to-late twentieth century. Whether the justices were more confused or confusing is a close competition. More certain is that Americans will have to steady themselves as the current Court moves towards a healthier and historically grounded—yet painfully unfamiliar—interpretation of the First Amendment. Not content to provide the context for the ongoing sea change, McConnell and Chapman argue with concision and common-sense appeal that reading the Establishment Clause as a pluralism-fostering device is both constitutionally authorized and workable.
The authors provide jurisprudential context crucial for framing that argument. Plagued by judge-made tests that proved unworkable, “zombie precedents” whose demise and resurrection make litigation unpredictable, and reliance on the reductive axiom of “separation of church and state,” the Establishment Clause has done a poor job of fostering pluralistic coexistence since World War II. Instead, it has been a source of animosity. As long as the “wall of separation” between church and state was the law of the land—as the Court declared it was in 1947—First Amendment jurisprudence incentivized Americans to characterize opposing views as impermissibly tainted by religious belief rather than argue with them on the merits. Rather than putting religious conflict to rest, the Court’s interpretation of establishment stoked battles between various sects and factions over which beliefs are religious in nature and which are simply common sense. Least workable of all—and completely historically—the Court reshaped the Constitution into a brass ring for secularists who wished to purge American public life of religious symbols and teachings.
Continue reading the entire piece here at Law & Liberty
______________________
Tal Fortgang is an adjunct fellow at the Manhattan Institute and a fellow at SAPIR: Ideas for a Thriving Jewish Future.
Photo by imagedepotpro/iStock