chapter  2
27 Pages

The Uses of History

WithTed G. Jelen

This chapter analyzes the different interpretations attached to the history of the religion clauses of the First Amendment, attempting to account for the explosion of church–state controversies that occurred after World War II. Religion is a constitutionally protected freedom; yet the Constitution provides ambiguous guidance to the makers of law and public policy regarding religion. The dilemma of church–state relations has some important historical dimensions. The principal intellectual issue dividing contemporary constitutional originalists from others involves the level of generality at which particular constitutional provisions are to be interpreted and applied. Most church–state litigation in the post–World War II era has focused on the meaning of the Establishment Clause. Separatists have derived a broader, more general reading of the Establishment Clause from the same historical record. Their analyses suggest that a non-preferentialist reading of the Establishment Clause is much too narrow an interpretation, and that even non-discriminatory government assistance to religion is inconsistent with the intentions of the Constitution’s framers.