Richard C. Schragger

89 Texas L. Rev. 583

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Despite the heated legal, political, and scholarly battles that rage around the Court’s Establishment Clause decisions, Professor Schragger contends that these decisions are quite tangential to the maintenance of the nonestablishment norm. He argues, first, that a pervasive feature of modern Establishment Clause jurisprudence is that the Court’s stated doctrine is underenforced; second, that there are some legitimate reasons for that underenforcement; and, third, that the Court’s decisions serve mostly as political markers that leave much pertinent activity wholly unregulated by law.

By focusing not on what the Court is doing but on what it concertedly seeks not to do, Schragger hopes to illuminate the relationship between law and politics in an era in which religious-political movements have become increasingly sophisticated. In light of these movements, the important question for scholars of the Establishment Clause is how the Court “manages establishment” in the political/legal space beyond constitutional law.

The author assesses four potential answers to this question and discusses a number of recent Establishment Clause decisions, paying special attention to disputes about the Ten Commandments, the Pledge of Allegiance, and faith-based initiatives. Schragger concludes by suggesting how a self-conscious Justice might help maintain the constitutional settlement of nonestablishment despite the Court’s limited doctrinal influence.