Wednesday, February 21, 2007

Dr. Gunn: Continuing Viability of History in the Establishment Clause Debate

In his talk, Dr. Gunn responded to the historical arguments made by critics of the separation of church of state. Gunn roughly separated the Establishment Clause scholars into two camps: (1) the separationists, who interpret the Establishment Clause as a “wall” blocking both the federal and state government from advancing or censoring the activities of religious groups; and (2) the accomodationists, who interpret the Establishment Clause to prevent only the federal government from interfering with individual or state-established religions.

According to Dr. Gunn, the seminal case Everson v. Board of Education established the separationist view as the American legal status quo. In the 1970’s, however, the accommodationists began questioning the separationist view and promoting their counter-history of the Establishment Clause.

Today’s accommodationists, represented by Phillip Hamburger and Michael McConnell, have focused on developing a counter-history to support a narrow reading of the Establishment Clause. According to Dr. Gunn, the accommodationist arguments fall into four categories: first, the term “establishment of religion” was a contemporary term of art for a federally-sanctioned Church, such as the Church of England; second, the words and actions of the Framers demonstrate their support for governmentally sponsored religious activity; third, the Clause was motivated by Federalist desires to prevent federal regulation of state sponsored religious activity; and fourth, the metaphor of a “wall between Church and State” is a modern metaphor with no historical basis.

Dr. Gunn responds to the accommodationist arguments on historical, interpretative, and positive grounds. Contrary to the accomodationists’ position, Gunn argues that the phrase “establishment of religion” did not have a clear contemporary meaning; rather, it was a loosely defined term of approbation used to condemn political-religious interactions across the spectrum. Given the ambiguity of the phrase, Gunn argues that modern interpreters have to look beyond the plain meaning of the text. He makes an interpretative argument that the words by themselves should not incapsulate or control meaning, and that the subsequent acts of Congress should not conclusively be viewed as their interpretation of the text. Finally, Dr. Gunn obliquely promotes a positive argument: the Bill of Rights was intended to protect natural rights, and implicitly, government-sponsored religious activity is inconsistent with natural rights.

The primary value of Gunn’s position is his willingness to confront accommodationalist arguments within the positivist framework. While his interpretative arguments are not necessarily more persuasive, Gunn begins to introduce doubt into the accomodationalist position. The accomodationalist position critically assumes that the Establishment Clause embodied a fixed concept and that a narrow methodology arrives at the most accurate results. Gunn attacks these two tenets, arguing that the “establishment of religion” lacked a fixed definition and introducing the viability of other interpretative methodologies. By merely introducing doubt into the accomodationalist framework, Gunn forces the debate outside of the positivist account of history and onto either fundamental or contemporary grounds.

Dr. Gunn briefly touched on the fundamental theory of the Establishment Clause, arguing that the Bill of Rights derives from a respect for natural rights and implying that a government-sponsored Church would violate the foundational natural rights. However, he didn’t flesh out the argument or set forth an affirmative interpretation for the Establishment Clause.

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