More or Less Bunk: The Establishment Clause Answers That History Doesn't Provide

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Gey, Steven G

II. THE LESSONS OF HISTORY

The only incontestable statement that one can make about the historical materials reviewed by Professor Esbeck is that the history of religion in the early republic is varied and often contradictory.29 What other lessons can be drawn from Professor Esbeck's account of the various themes in the country's early history? Professor Esbeck draws three conclusions from his historical account.

First, Esbeck notes that the history of the American religious experience is defined largely by the victory of voluntarism. He concludes that separationism has a legitimate pedigree to the extent that it draws on this voluntarist tradition, but he also argues for a particular kind of separationism-one that protects individual conscience but is at the same time intended primarily to protect the independent prerogatives of the church. Under this version of separationism, the government remains amenable to "moral values based on religion [that are welcome] in the marketplace of ideas and in the formation of public policy and law."30

The second general conclusion Professor Esbeck draws from his historical account is that "American liberals" have been unfaithful to the American religious settlement by "attempting to drive the religious voice out of the public square."31 According to Professor Esbeck, examples of this phenomenon include restrictions on religious speech in public buildings and schools.32 Esbeck argues that the Supreme Court should respond to these actions by saying "once and for all" that it is not possible to use Establishment Clause concerns as a compelling interest to justify "overrid[ing] free speech or free exercise rights."33

Finally, the third lesson Professor Esbeck draws from history is the idea that the Establishment Clause is primarily a structural provision intended to impose a "one-way restraint" against governmental intrusion into the realm of religious organizations.34 From Professor Esbeck's perspective, therefore, the separation of church and state is properly viewed as separation of the state from the church, but not the other way around. "When separation of church and state is taken to mean a socially or juridically enforced separation of religious values from public affairs and governmental policy formation, such separation has no antecedent in the early American republic."35

Some of Professor Esbeck's conclusions are unexceptionable. Certainly the need to protect individual religious conscience is a logical outgrowth of the early religious disputes that led to the voluntarist religious settlement. Likewise, the introduction of religious ideas into the intellectual marketplace and the welcoming of religious speakers into the public forum are equally laudable. Even the structuralist interpretation of the Establishment Clause is not problematic, at least if the theory is described at a fairly high level of generality and not used as the basis for denying individuals the right to enforce the protections of the Clause.36 But some of Professor Esbeck's conclusions are more dubious, and his attempt to link these conclusions with the country's early religious history-and thereby give them legitimacy and an added jurisprudential heft in modern constitutional debates-illustrates how treacherous such constitutional historicism can be.