The most plausible reading of the original Establishment Clause–based on its text, the history leading up to its enactment, and legislation enacted by Congress–is that Congress could not establish a national religion, could not enhance or interfere with state establishments, and could not establish religion within exclusively federal domains. A purely “jurisdictional” reading that Congress could have established religion within federal domains is mistaken. Actions by the First Congress under the Constitution do, however, suggest that its members did not have an expansive view of what measures were “respecting an establishment of religion.”
Because any jurisdictional aspect of the Establishment Clause that protected state establishments had vastly diminished in significance by the time of the Fourteenth Amendment, that clause, as well as the Free Exercise Clause, has sensibly been incorporated against the states–assuming that incorporation of other clauses of the Bill of Rights is appropriate. The modern Supreme Court’s treatment of the scope of the religion clauses cannot be justified on originalist grounds, whether one concentrates on the original understanding of forbidden practices at the time of the adoption of the Bill of Rights or the original understanding of forbidden practices when the Fourteenth Amendment was adopted, but the latitude with which the Supreme Court has departed from these original understandings is no greater than it has exhibited with other parts of the First Amendment and with other guarantees in the Bill of Rights. Whatever bases one may have to criticize the Supreme Court’s religion clause jurisprudence, it is not distinctly unfaithful to original understandings.
This is an interesting way of looking at the Court's unfaithfulness to the written Establishment Clause. Is Prof. Greenawalt saying that since the Court has been unfaithful to other provisions of the Constitution, it is okay to be unfaithful to the EC as well.
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