Stephanie H. Barclay
Notre Dame Law School
Brady Earley
Brigham Young University
Annika Boone
Harvard University, Law School, Students
Abstract: Debates about the original meaning of the Establishment Clause are gaining increased attention in light of the Supreme Court’s recent cert grant in The American Legion v. American Humanist Association, a case about government displays of religious symbols. Scholars have long relied on a host of different methodologies to advance various theories about what the Establishment Clause means. But these methods, often relying on isolated historical examples or unrepresentative samples of language, provide limited insights about how language was understood by the greater population during the founding era. And some proponents of various historical interpretations declare that supporters of other theories have cherry-picked sources or misinterpreted them. Corpus linguistics provides another method of revealing important historical information about the Establishment Clause’s original meaning, but in a systematic and data-driven way. This Article provides the first corpus linguistics analysis of the Establishment Clause, using the tools of a corpus and a sufficiently large and representative body of data drawn from the relevant time period to provide additional information about probable founding-era meaning. This Article does not discount other Mamethodologies or claim to definitively prove the meaning of the Establishment Clause. But this Article does add a piece to the Establishment Clause puzzle, providing information about the most salient characteristics of an established religion, or in other words, those characteristics implicated most often (or not at all) in founding era mentions of established religion. This Article also provides a more rigorous and transparent method for investigating original public meaning than has been employed by other scholars. And by sifting through hundreds of results discussing establishment in a religious context, our Article is able to bring to light new historical sources that have been previously overlooked. This Article’s findings indicate that by far the most common characteristic discussed in the context of an establishment of religion involved legal or official designation of a specific church or faith. Beyond that, the most common characteristics of an establishment of religion involved (1) government coercion of individuals involving prohibitions or mandates on religious practices enforced by legal penalties or government persecution of dissenters, (2) government interference with affairs of both the established churches and non-established churches, (3) preferential public support of the established church (particularly in the form of direct taxes levied for the church), and (4) restrictions of civic or political participation to members of the established church. Our results are thus consistent with a modern constitutional theory that treats any one of these characteristics as a necessary condition for an Establishment Clause violation. On the other hand, our data did not reveal confirming evidence for a number of current theories regarding the original meaning of the Establishment Clause, including (1) concerns about government display of religious symbols, (2) enactment of Sunday closing laws, (3) prayers or religious practices in public schools, (4) providing religious exemptions to religious believers in an even-handed way to protect conscience, or (5) providing preferential treatment to religion in general over non-religion. Our results only indicated that public support of religious organizations was concerning historically in certain limited circumstances, such as when provided preferentially only to the established church. Of note for religious symbols, our findings indicate when concerns about such symbols or imagery did arise, they arose in the context of government suppressing or destroying symbols of dissenting churches. The pending American Legion case may provide an important vehicle for the Supreme Court to revise much of its current jurisprudence that is out of step with an approach that focuses on historic hallmarks of established religion that gave rise to the Establishment Clause.
Last revised: 17 Sep 2019
