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Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck
Uses And Abuses Of Textualism And Originalism In Establishment Clause Interpretation, Carl H. Esbeck
Faculty Publications
This article takes up the curious tale as to why the text and drafting record in the House and Senate were ignored by the Court in Everson, as well as what the text and debate can tell us about contemporary theories making the rounds. One theory of conservatives is that the Establishment Clause was not intended to prohibit support for religion so long as no religion is preferred.
Protestant Dissent And The Virginia Disestablishment, 1776-1786, Carl H. Esbeck
Protestant Dissent And The Virginia Disestablishment, 1776-1786, Carl H. Esbeck
Faculty Publications
In Everson v. Board of Education (1947), the Supreme Court elevated the events surrounding the disestablishment of the Anglican Church in Virginia during and soon after the American Revolution as a principal guide for the meaning of the Establishment Clause. The rule to come out of the Virginia experience is that support for religion should be voluntary thus, no active support by the government. An in-depth examination of James Madison's Memorial and Remonstrance opposing Patrick Henry's Assessment Bill is undertaken here not only because of its role in the Virginia disestablishment, but because it is the most important document on …
The 60th Anniversary Of The Everson Decision And America's Church-State Proposition, Carl H. Esbeck
The 60th Anniversary Of The Everson Decision And America's Church-State Proposition, Carl H. Esbeck
Faculty Publications
Sixty years ago the U.S. Supreme Court handed down Everson v. Board of Education of Ewing Township, which for the first time incorporated the Establishment Clause through the Fourteenth Amendment and made it binding on state and local governments. The case marks the beginning of the Court's modern era with respect to church-state relations. In Everson, the Justices said that the restraints on federal power represented by the Establishment Clause were the same as the ideas that emerged from the disestablishment struggles in the several states, with special attention to the Virginia experience. The disestablishment effort in the states, which …