Boerne and Treaty Power

[Steven D. Jamar]

Jim Henderson wrote:

> Of course, depending on one's definition of establishment there may be some
> way to justify saying only four states had establishments.  But if we work at
> defining establishment in a backwards way, using the modern Court's Est. Cl.
> decisions to identify such "establishments," the number would certainly
> swell, undoubtedly to, oh, say, about thirteen.
>

I'm not at all sure I agree here.  I agree that there were laws "respecting
and establishment", but that is, it seems quite different from saying the
states had established religions.  And it seems to be often forgotten that
the first amendment and the S Ct test is not about whether a religion has
been established by a particular law, but whether the law could be
considered one improperly tending to favor a religion - or tending to
establish - or respecting establishing a religion.  So I think the idea of
using the modern test to determine whether a religion was established is
rather grossly misleading as to what the first amendment says and requires.

But, if one were to somehow take the term established and twist it as Jim
Henderson has suggested, then, I think he would be right.  But leaving out
the critical concept of "laws respecting"  or relating to or tending to
establish seems to be a pretty seriously distorting approach.

Cheers,
Steve Jamar

Steven D. Jamar
Professor of Law
Director LRW Program
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar at law.howard.edu

The more you know, the more you know you don't know.