The whole point of this sixteen-page detour (197) into antidisestablishmentarian
theory is to legitimate the use of governmental institutions, especially schools, to promote secularism or irreligion and to discriminate against religious speech.
, colonization of the new elective affinities.
In the projects, the popular kids are the ones who can deliver the meanest "snaps." The Greenwich Village princes of intellect demand that Dalton define "antidisestablishmentarian
" before they'll talk to him.
Not only was RFRA unconstitutional, but any congressional enactment designed to deter states from abridging the free exercise of religion -- regardless of the evidence of state transgressions -- violates the antidisestablishmentarian principle and therefore the Establishment Clause.(16) According to Rubenfeld, laws that protect free exercise disestablish religion, and laws that disestablish religion offend the First Amendment.
Far from being "essential to the fundamental constitutional separation of religion and government,"(17) as Rubenfeld claims it to be, in my view the antidisestablishmentarian principle today serves no constitutional function whatsoever, and does not stand in the way of responsible congressional efforts to remedy or deter violations of the Free Exercise Clause.
The ratification of the Fourteenth Amendment, and the subsequent application of the Establishment Clause to the states,(24) formally eradicated the specific concerns underlying the original antidisestablishmentarian aspects of the First Amendment: States no longer have religious establishments with any constitutional claim to protection from federal interference.
The Clause prevented Congress both from establishing a national religion and from interfering with certain local religion laws, defended by their champions in the name of religious freedom but condemned by their detractors as establishments.(3) The paradigm case here was the ecclesiastical system common throughout New England, where each town was permitted to install by majority vote a Protestant ministry to be supported by tax revenues (with exemptions provided for some dissidents).(4) This second aspect of the Establishment Clause, prohibiting Congress from interfering with local pro-religion laws, is its antidisestablishmentarian component.
Instead, the Establishment Clause, in its antidisestablishmentarian aspect, was merely a "sop thrown to" the unprincipled New England states.(5) "[A]ntidisestablishmentarianism became part of the First Amendment as a result of parochial Realpolitik and not a debate over the meaning and content of religious liberty."(6)
For the antidisestablishmentarian principle never merely prevented Congress from abolishing state laws that were constitutionally deemed, or judicially deemed, to be religious establishments.
In this way, RFRA violated the First Amendment's specific antidisestablishmentarian requirement.(20) RFRA would therefore have been unconstitutional even if it had fallen within Congress's section 5 powers, and it will still be unconstitutional if reenacted along the lines its supporters now propose.
Thus New Hampshire's ratifying convention proposed as an amendment that "Congress shall make no Laws touching Religion, or to infringe the rights of Conscience."(52) This proposal "grew out of antifederalist fears that the national government was insufficiently devoted to Christianity" and was specifically designed to guarantee "protection from congressional intermeddling with New Hampshire's regime of publicly maintained orthodoxy."(53) As Professor Amar has pointed out, of all the state-proposed amendments on religion, New Hampshire's antidisestablishmentarian proposal most closely tracked the actual language eventually adopted in the First Amendment.(54)
He credited the Puritan divine Byfeld with incircumscriptibleness, Doctor Benson with antidisestablishmentarians
, and William Gladstone with disestablishmentarianism.