Questioning Strict Separationism in Unsettled Times: Rethinking the Strict Separation of Church and State in United States Constitutional Law

Joseph G. Prud’homme ()
Additional contact information
Joseph G. Prud’homme: Department of Political Science and Director, Institute for Religion, Politics, and Culture, Washington College, Chestertown, MD 21620, USA

Laws, 2022, vol. 11, issue 5, 1-26

Abstract: Contemporary case law in the United States surrounding the establishment clause of the federal Constitution has entered a period of remarkable uncertainty. Now is an appropriate time to revisit the legal foundations of the Supreme Court’s seminal cases of Everson v. Board of Education (1947) and McCollum v. Board of Education (1948). These cases initiated the Court’s strict separationist construction of the establishment clause. In response to critics who see these cases as without judicial warrant, I argue that the holdings rest on a particular form of substantive due process. Further, I defend the methodology the Court deploys in these cases. Recognizing the legal foundations of Everson and McCollum and the tenability of the method the Court deploys in these cases improves our understanding of important Supreme Court case law. However, it also highlights new lines of critique of the Court’s strict separationist jurisprudence—a conclusion especially relevant today, given the Court’s willingness to revise long-standing precedents.

Keywords: church and state; establishment clause; Everson; McCollum; separationism; accommodationism; substantive due process; Justice Hugo Black (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2022
References: View references in EconPapers View complete reference list from CitEc
Citations:

Downloads: (external link)
https://www.mdpi.com/2075-471X/11/5/74/pdf (application/pdf)
https://www.mdpi.com/2075-471X/11/5/74/ (text/html)

Related works:
This item may be available elsewhere in EconPapers: Search for items with the same title.

Export reference: BibTeX RIS (EndNote, ProCite, RefMan) HTML/Text

Persistent link: https://EconPapers.repec.org/RePEc:gam:jlawss:v:11:y:2022:i:5:p:74-:d:930550

Access Statistics for this article

Laws is currently edited by Ms. Heather Liang

More articles in Laws from MDPI
Bibliographic data for series maintained by MDPI Indexing Manager ().