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In these reflections presented at a Symposium hosted by Duquesne University School of Law on "The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?" I examine the constitutional politics driving the interpretation of the Establishment Clause. I suggest that the Supreme Court’s recent case law on taxpayer standing may signal a return to the founding design of the Establishment Clause. At the founding, the Establishment Clause constrained the actions of only the national government, disabled only Congress from establishing a religion, and vigorously protected the sovereignty of states. Each of these three signposts - national interdiction, congressional disability, and state sovereignty - may yet again soon hold true if the Supreme Court continues on what appears to be its current path toward de-incorporating the Establishment Clause.


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7 Sep 2022
405 kB



  • Subject
    • Civil Procedure

    • Constitutional Law

    • Courts

    • First Amendment

  • Journal title
    • Chicago-Kent Law Review

  • Volume
    • 87

  • Issue
    • 3

  • Pagination
    • 867-897

  • Date submitted

    7 September 2022