Lexington Books
Pages: 250
•
Trim: 6½ x 9½
978-0-7391-4677-4 • Hardback • February 2011 • $128.00 • (£98.00)
978-0-7391-4678-1 • Paperback • May 2013 • $59.99 • (£46.00)
978-0-7391-4679-8 • eBook • July 2012 • $57.00 • (£44.00)
Ellis M. West is emeritus professor of political science at the University of Richmond in Virginia.
Preface
Introduction
Clarification of the Issue
The Origin of the "Substantive" Versus "Jurisdictional" Terminology
The Problem with the Word "Substantive"
The Problem with the Word "Jurisdictional"
Must the Religion Clauses Be Either Normative or Federalist?
The Different Federalist Interpretations of the Clauses
A Critical Analysis of the Federalist Interpretation
An Overview of the Arguments
An Assessment of the Arguments' Logic
The Ratification Debate and Proposed Religion Clauses
The Significance of the Debate
Issues: What Kind of Laws Pertaining to Religion Did Both Federalists and Anti-federalists Want to Prohibit, and Why?
The Views of the Federalists
The Views of the Anti-federalists
The Drafting of the Religion Clauses
The Role and Views of James Madison
A Summary of What Happened in the First Congress
The Meaning of the Debate in the House on August 15
Changes in the Wording of the Clauses
The Final Wording of the Establishment Clause
The Relevance of Madison's Amendment to Protect Religious Liberty in the States
Summary
Were the Framers Hopelessly Divided over Government and Religion?
The Case for Lack of Consensus
An Assessment of the Case for Lack of Consensus
The Case for the Existence of Consensus
Conclusion
The Early American Understanding of the Religion Clauses
Comments on the Clauses during Their Ratification
Interpretations of the Clauses by the Clergy
Interpretations of the Clauses by Other Public Figures
Commentaries on the Constitution
The Widespread Belief that the Bill of Rights Applied to the States
Jefferson and Madison's Interpretation of the Clauses
Conclusion
The Federalist Interpretation of the Religion Clauses: A Concluding Assessment
West (emer., Univ. of Richmond) tackles the issue of whether the free exercise and establishment clauses of the First Amendment to the US Constitution have any real meaning or whether they merely leave to the states, as opposed to the federal government, the authority to regulate religious activity (i.e., the jurisdictional interpretation). That this seems even in doubt is odd to those who have studied the clauses and the jurisprudence around them. Nonetheless, the author takes on the logic for the jurisdictional interpretation, as opposed to the substantive interpretation of the religion clauses, and examines the historical evidence, including the views of the Federalist and anti-Federalist, presented by its defenders. Ultimately he concludes that there is very little historical evidence to support the jurisdictional interpretation. Highly recommended for scholars and advanced students of public law. Summing Up: Highly recommended.
— Choice Reviews
This book addresses the question whether the two religion clauses, Establishment and Free Exercise, should be understood as merely 'jurisdictional,' that is, as merely precluding Congressional action over religion without conveying any substantive understanding of religious freedom. West has done a thorough job of examining the evidence and demonstrating that the 'jurisdictional' interpretation of the religion clauses fails, regardless of what one thinks about using the due process clause of the Fourteenth Amendment to apply the Establishment Clause against the states.
— Murray Dry, Middlebury College
West's book is a carefully argued and persuasive rebuttal of the jurisdictional interpretation of the religion clauses and is therefore an important contribution to church-state constitutional debates.
— Journal of Southern History