Monday, September 19, 2011

The Establishment Clause Should Be Less Established

Happy belated Constitution Day (Sep 17) to everyone!  To mark this occasion, I will take part in the time honored conservative tradition of complaining about the establishment clause.  The establishment clause of the First Amendment to the U.S. Constitutions states, "Congress shall make no law respecting an establishment of religion."  Liberals and conservatives have been arguing about the meaning of this clause for most of the last century and the debate is as divisive now as it has ever been.  I propose a solution.

Well actually, I propose two solutions, a Plan A and a Plan B.  In plan A, I am installed as dictator, thus rendering any constitutional questions moot.  If that doesn't work out, Plan B should go into effect.  Plan B is the disincorporation of the establishment clause.  Most establishment clause controversies arise at the state level and if we could roll back the incorporation (application to states) of the clause it would prevent a lot of arguments over its application by lifting restrictions upon religious activities within state governments.  This isn't just the crazy idea of a lone nutjob, it's a crazy idea that has been endorsed by Justice Clarence Thomas.  In Elk Grove School District v. Newdow, Justice Thomas had this to say in his concurring opinion:
The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.
I could not agree more.  The text of the clause clearly refers to the power of the federal Congress, not to state governments.  The rest of the First Amendment should however be incorporated, including freedom of speech.  That way, a county judge could display the Ten Commandments in his courtroom, and an atheist would have the right to complain about it.  Sounds like a good solution to me.


  1. IMHO a huge part pf the problem is that the 2nd half of that clause is ignored: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" Much of what they call "government entanglement" is really the free excercise of religion that is allowed.
    But what is the real goal these days isn't simply getting the government out of religion it is about stopping people of faith from speaking out about & living out what their faith teaches. That is what is the ultimate goal of groups like "Freedom from Religion" & most atheistic groups as well.

  2. The whole idea of "government entanglement" was arbitrarily established as holy writ by the Court's decision in Lemon v Kurtzman, the case that spawned the infamous lemon test.