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Establishment Clause Federalism and the Structures and Constituencies of Religious Liberty

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Abstract:

In several recent Supreme Court cases Justice Clarence Thomas has sought to link his interpretation of church-state relations to the Court’s states’ rights interpretation of federalism. Briefly, Justice Thomas argues that the 1st amendment Establishment Clause should be interpreted as a federalism provision that allows states and local communities to determine how religion and politics interact at the subnational level.

Justice Thomas’s argument is not new, however, and has been articulated by many constitutional scholars over the past 30 years. In this paper I detail the intellectual development of this argument and show how Justice Thomas’s view of religious liberty is an extension of the high court’s decade-long focus on federalism in general. Using current federalism scholarship that focuses on the structure and constituencies of American federalism, I assess “establishment clause federalism” in the context of the structure and constituencies of religious liberty in the United States. Using interest group litigation strategies, public opinion polls, and national and subnational responses to religious liberty issues, I argue that the main constituents of religious liberty doctrine tend to use and prefer federal courts, congress, and federal agencies to resolve disputes over religious liberty instead of local and state institutions. Thus, I argue that establishment clause federalism has no supporting constituency outside of the Supreme Court and a select group of legal scholars, and is unlikely to cause a significant shift in church-state relations.

Most Common Document Word Stems:

state (255), feder (255), religi (250), claus (169), court (159), govern (157), establish (148), local (107), church (94), religion (85), policymak (82), group (67), constitut (66), may (60), law (59), school (59), liberti (59), public (58), polit (57), justic (52), congress (51),

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religion, law, establishment clause, federalism
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Name: American Political Science Association
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http://www.apsanet.org


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MLA Citation:

Blakeman, John. "Establishment Clause Federalism and the Structures and Constituencies of Religious Liberty" Paper presented at the annual meeting of the American Political Science Association, Hyatt Regency Chicago and the Sheraton Chicago Hotel and Towers, Chicago, IL, Aug 30, 2007 <Not Available>. 2013-12-15 <http://citation.allacademic.com/meta/p210552_index.html>

APA Citation:

Blakeman, J. C. , 2007-08-30 "Establishment Clause Federalism and the Structures and Constituencies of Religious Liberty" Paper presented at the annual meeting of the American Political Science Association, Hyatt Regency Chicago and the Sheraton Chicago Hotel and Towers, Chicago, IL Online <PDF>. 2013-12-15 from http://citation.allacademic.com/meta/p210552_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In several recent Supreme Court cases Justice Clarence Thomas has sought to link his interpretation of church-state relations to the Court’s states’ rights interpretation of federalism. Briefly, Justice Thomas argues that the 1st amendment Establishment Clause should be interpreted as a federalism provision that allows states and local communities to determine how religion and politics interact at the subnational level.

Justice Thomas’s argument is not new, however, and has been articulated by many constitutional scholars over the past 30 years. In this paper I detail the intellectual development of this argument and show how Justice Thomas’s view of religious liberty is an extension of the high court’s decade-long focus on federalism in general. Using current federalism scholarship that focuses on the structure and constituencies of American federalism, I assess “establishment clause federalism” in the context of the structure and constituencies of religious liberty in the United States. Using interest group litigation strategies, public opinion polls, and national and subnational responses to religious liberty issues, I argue that the main constituents of religious liberty doctrine tend to use and prefer federal courts, congress, and federal agencies to resolve disputes over religious liberty instead of local and state institutions. Thus, I argue that establishment clause federalism has no supporting constituency outside of the Supreme Court and a select group of legal scholars, and is unlikely to cause a significant shift in church-state relations.

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Document Type: PDF
Page count: 46
Word count: 15447
Text sample:
The Supreme Court and Establishment Clause Federalism Paper Presented at the APSA National Meeting August 2007 John C. Blakeman University of Wisconsin-Stevens Point The Supreme Court’s fundamental changes to federalism doctrine over the past two decades is well trod scholarly ground. Although interpretations of the Court’s federalism doctrine vary as do explanations for its genesis and impact the federalism revolution is not only a prominent part of the legacy of Chief Justice William Rehnquist’s leadership but it also appears
which may in turn have negative effects on the policymaking process. That is devolving more authority to engage in religious policymaking at the state and local level may actually have unanticipated consequences far beyond what those who advocate Establishment Clause federalism intend. 98 See Robert Wuthnow America and the Challenges of Religious Diversity (Princeton: Princeton University Press 2005) 99 See Roger Finke and Rodney Stark The Churching of America: Winners and Losers in Our Religious Economy (Camden N.J.: Rutgers


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