Laura S. Underkuffler

89 Texas L. Rev. See Also 49

PDF Document

In this piece, Professor Underkuffler responds to Professor Schragger’s The Relative Irrelevance of the Establishment Clause.  Schragger argues that the Establishment Clause as judicially enforced law is overrated by scholars, given that few of the Court’s doctrinal rules in this field are enforced.  Underkuffler thinks that if these doctrinal rules, such as nonendorsement or anti-entanglement, are mere political metaphors intended to influence the political branches and the constitutional debate, then this would be a much weakened role for the Establishment Clause as well as the Court.

Underkuffler agrees that a gap exists between rhetoric and reality in the Court’s jurisprudence in this field. However, she argues that, while some aspects of the doctrine do not provide a basis for realistic legal rules, others present eminently workable standards to protect rights.  In the latter case, these are real guarantors of rights.

Schragger identifies the secular-purpose doctrine, the nonendorsement doctrine, and the anti-entanglement doctrine as three core doctrines of the Establishment Clause that the Court has failed to enforce.  Underkuffler notes that this claim should be put into perspective.  While the Court might announce broad principles, it can only enforce these principles in cases that come before it.  Rather, the lower courts and other organs of government must enforce or distinguish the Court’s pronouncements in the vast majority of cases.  So, the Court’s role as an enforcer of constitutional doctrine is overstated.

Underkuffler next addresses Schragger’s arguments for each of the three core doctrines.  She notes that in the abstract, each can be extended too far, to the point of incoherence and unworkability.  In these cases, the doctrines are best viewed as hortatory reminders by the Court of areas of potential danger.  But, argues Underkuffler, it is important that we not go too far.  In many applications, the doctrines articulate rules that are as enforceable as those in any other constitutional context, and in such cases the Establishment Clause is more than a political metaphor—it is a guarantor of rights.