A Political History of the Establishment Clause

Abstract

Tilton v. Richardson was "pervasively sectarian"). Reliance on this factor can be seen, for example, in Bowen v. Kendrick, 487 U.S. 589, 610 (1988) (explaining that a factor in determining whether aid has the impermissible effect of advancing religion is "whether, and to what extent, the statute directs government aid to pervasively sectarian institutions"); Aguilar v. Fe lton, 473 U.S. 402, 412 (1985) (strik ing down a program because aid was provided "in a pervasively sectarian environment"); and Lemon v. Kurtzman, 403 U.S. 602, 636-37 (1971) ("A school which operates to commin gle religion with other instruction plainly cannot completely secularize its instruction. Paro chial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching."). 4. Mitchell, 530 U.S. at 828. 5. Id. 279 21. "Imagine the past" comes from Sir Lewis Namier by way of Alexander Bickel. See LEWIS B. NAMIER, CONFLICTS: STUDIES IN CONTEMPORARY HISTORY 69-70 (1942) ("[W]hen discoursing or writing about history, [people] imagine it in terms of their own ex perience, and when trying to gauge the future they cite supposed analogies from the past: till, by double process of repetition, they imagine the past and remember the future."); see also

Theorizing the Submerged State: The Politics of Private Schools in the United States

“…I control for regional fixed effects in order to minimize the risk of omitted variable bias stemming from region‐specific factors: for example, the South's relationship with religious schooling, vouchers, race and segregation, and the West's history of public schooling, lack of establishment, and recent entrance to the Union under stringent federal Enabling Acts (Forman, ; Jeffries & Ryan, ; Meyer, Tyack, Nagel, & Gordon, ). The error terms are likely to be heteroskedastic because court cases are not evenly distributed across U.S. states: 9 states account for more than half of all court cases; there have been 18 cases in New York and Pennsylvania alone; 11 states have never had a court challenge to an aid program.…”

Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools

“…In the law reviews, Jack Balkin (2004) and Richard Primus (2004) have likewise emphasized that the justices generally share the preferences of national political elites and hence that the Court is only likely to defend the rights of racial minorities when those rights are supported by the governing regime. The account has been less fully developed outside the race context, but the influential treatments by Klarman and Powe are starting to bear fruit in broader fields as well (see, e.g., Jeffries and Ryan 2001).…”

Legal Geographies—Legal Sense and Geographical Context: Court Rulings on Religious Activities in Public Schools

“…This was intended to ensure that the common schools had a Christian foundation, while at the same time no child was forced to understand the Bible in a manner contrary to his or her parents' beliefs. Interpretation was left, at least in theory, to the private realm of homes, pulpits, and Sunday schools (Jeffries and Ryan, 2001). Moreover, in most jurisdictions, parents had the right to withdraw their children from the classroom during Bible-reading, and related activities such as teacher-led prayer and recitation of the Ten Commandments.…”

“…While this is necessarily a small sample of a large case law, it encompasses judicial pronouncements on a range of exercises (legislatively prescribed prayer, Bible-reading, student religious clubs, prayer at special events, and student-led prayer), from across four decades of often intense debate and controversy. Initial rulings against religious activities in schools gave far-reaching practical effect to the Establishment Clause for the first time (Jeffries and Ryan, 2001), and were met with widespread, sometimes feverish, popular and legislative opposition. This opposition translated into prolonged, but ultimately unsuccessful, campaigns to enshrine a constitutional right to organized prayer in public schools (Alley, 1994).…”