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The political significance of the religion clauses comes into play most directly with the Establishment Clause. The Free Exercise Clause is important principally regarding the individual, having to do with the individual’s liberty in matters of private religious belief and practice. It thus speaks to the question of what government is required to do— respect the religious freedom of American citizens. The Free Exercise Clause thus speaks to the question of religious freedom in an obvious and explicit manner. The Establishment Clause, on the other hand, speaks to the question of what government is required not to do, with the consequence that its role in the protection of religious freedom is a trickier and more complex issue than we find with the Free Exercise Clause. The Establishment Clause, in particular, raises the issue of the public place, role, and status of religion, which goes to the heart of the question as to the meaning of the religion clauses to the nature of the American political order, the central question of this book. Surveying the similarities and distinctions between rights protected against federal infringement by the Bill of Rights and rights protected against state infringement by the Due Process Clause of the Fourteenth Amendment, Justice Benjamin Cardozo writes in Palko v. Connecticut, “The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence.”1 Such a “rationalizing principle which gives to discrete instances a proper order and coherence” is precisely what the jurisprudence of the Establishment Clause of the First Amendment has lacked 1 Palko v. Connecticut, 302 U.S. 319 (1937), at 325. 181 Chapter 6 The Concept of Position Taking in Establishment Clause Jurisprudence since the Everson decision some sixty years ago.2 Indeed, it is customary to begin an essay on the Establishment Clause in the First Amendment to the U.S. Constitution with a lament about the problematic state of jurisprudence in this important and controversial constitutional field. The typical claim we encounter holds that Establishment Clause doctrine is inconsistent or confusing at best, or even incoherent and contradictory at worst. We lack a “rationalizing principle,” to use Cardozo’s term, because of our ongoing disagreement as to the central principle at the core of the Establishment Clause. For example, with very rare exceptions, we know in our constitutional bones that direct government funding of a church’s facilities and operations violates the Establishment Clause, whereas we do not similarly know that government sponsorship of a clearly religious display does also. We disagree about what principle would cover both sets of circumstances, among many others, clearly and coherently. Moreover, given the prohibitory nature of the clause—“Congress shall make no law respecting an establishment of religion”—determining and coming to a consensus on the central principle of the Establishment Clause is possibly complicated by the fact that any such principle is in fact a nonestablishment principle. As we saw in the previous chapter, one traditional solution to the problem of determining the central principle at the core of the Establishment Clause is tradition. Appeals to tradition as the governing interpretive norm partake of one of two norms Cardozo notes in his Palko discussion of his “rationalizing principle” cited earlier: “The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’”3 Contrary to an appeal to “the very essence of a scheme of ordered liberty” or to what is “implicit in the concept of ordered liberty,” an appeal to what we might call reason or political or even moral theory, the appeal to the “traditions and conscience of our people” would appear to provide a bulwark against the dangers of abstract reason in the concreteness of historical tradition. Nevertheless, there are at least four difficulties with the appeal to tradition for a determination of the central principle at the core of the Establishment Clause. First, how do we determine what counts as a tradition? How long does a practice have...

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