Jesse Merriam argues that Engel and Schempp are here to stay because the “matter” of modern-day society has corrupted the “form” of American jurisprudence. Rather than attempting to overturn these cases, conservative legal scholars and judges should learn how to make Founding ideas work in the twenty-first century.
“Incorporation of the Establishment Clause…means that nine elite lawyers with very little connection to or understanding of vast portions of the nation will be making decisions for millions of children about how their school day begins. The consequence of this paradigm, as I wrote in a recent piece on why state courts matter, is ‘that all the public schools in the nation would be tugged by the gravitational pull of the nation’s most secular elements,’ so that ‘the most Christian parts of the country, namely the American South, would be subject to the cultural norms of New York City.'”
“Both Kendall and Bozell understood that a Supreme Court that oversees state involvement in religious affairs will inevitably take on the role of managing public schools – dictating which subjects may be taught, where public school teachers may offer instruction, and yes, how the school day may begin. When we debate Engel and Schempp but ignore the incorporation issue, we are betraying the origins of legal conservatism – and more importantly, we are betraying our constitutional order.”
The Supreme Court will not overrule Engel and Schempp because the nation has itself changed. Here, it is useful to consult Hillsdale Professor Thomas G. West’s theory of ‘form and matter‘ in explaining our constitutional order. In West’s outstanding book, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (2017), West explains how ‘natural rights and the laws of nature are the form of the founding, and the facts of colonial America are the matter.’ According to West, ‘[b]oth of them together – matter shaped by form – produced the American regime.’”
“What West does not explore in that book, however, is that when matter changes, form follows. So, although West may be right that the Founding consisted of a form shaping the matter, what we have today is the converse: a form that has been shaped by matter. In other words, we now have a different form of law because we now have a different people.”
“That a non-originalist like Justice Kagan and an originalist like Justice Scalia reasoned in essentially the same way – constructing a constitutional principle from contemporary demographics – reveals the power of matter in shaping form. This power of matter is what I believe makes Engel and Schempp ‘settled law.’ Just as it was unimaginable that the Court would interpret the Establishment Clause to ban school prayer when this was putatively a Christian nation, it is unimaginable that the Court will interpret the Establishment Clause to permit school prayer now that our nation is no longer a Christian nation. Constitutional form is driven by, in Justice Kagan’s words, ‘who we are’ – not who we were.”
“The task for conservative legal scholars and advocates, and for conservatives in general, is figuring out how to make our Founding ideals work in this America. That will require getting over our bad habit of thinking that because a particular Supreme Court decision got the law wrong, we can fix the problem by getting the Court to get the law right. We cannot restore a pre-Engel America by overruling Engel. What we can do, however, is sustain our Founding ideals through a better legal conservatism – one that seeks to empower federalism and local governance, to restore the freedom of association and religious liberty, and to strengthen our support structures and mediating institutions. These tasks, I believe, will be the defining challenge for conservatives in the 21st century.”
Read the full piece here.