Giving Up on the Founding: The Separation of Church and State and the Writing of Establishment Clause History

POLITICS AND RELIGION 6.2 (2013): 402-434

Abstract: Examination of the First Amendment’s establishment clause in the post WW II period is unique in American constitutional interpretation because virtually all voices had agreed on one point, originalism. Few if any significant writers on the establishment clause had doubted the centrality of the founders’ original intent for interpreting the clause’s meaning. Yet this has now changed. Unlike their predecessors, leading advocates of church-state separation have now moved away from an original meaning interpretation of the establishment clause. Yet these separationists continue to try to ground their normative policy prescriptions in establishment clause mandates. The attempt this balancing act by employing narrative strategies of evolutionary processes in history. They do not simply track changes in constitutional doctrine, but characterize changes yielding greater separation between church and state through the nation’s history as incipient in the Republic’s founding. Their accounts thus often reflect less an attempt to track historical developments in fundamental law than an attempt to construct fundamental law narratives.