In these brief reflections, I explore the connection among the founding design of the Establishment Clause, its modem interpretation and reinterpretation, and the doctrine of taxpayer standing. I argue that the creation and evisceration of the taxpayer standing doctrine under the Establishment Clause is the bridge that connects the Clause's founding design with its modem incarnation, rendering the two more similar than we might suppose. I begin with the colonial era and the early years of the American republic, examining the intensity of religious faith at the founding, which manifested itself in a pervasive culture of religious establishment even after the adoption of the Bill of Rights. State establishments of religion abounded, as did religious tests and restrictions. But the eventual move toward disestablishment in the several states ultimately spurred federal courts to create the taxpayer standing doctrine to conform American constitutional law to the new reality in the United States: that the modem premise had shifted away from religious establishment and the fusion of church with state toward pluralist democracy and the separation of religion from government. I subsequently trace the development and demise of the taxpayer standing doctrine. Its emergence is attributable to the same forces that have since quickened its decline: the impulse to recognize the specialness of religion and to grant a measure of autonomy in the choice to adhere, or not, to religion. Courts were concerned that the effect of compelling a nonadherent to support a religion, or religion period, would be to ascribe to her beliefs that are not necessarily her own. In a good-faith effort to establish a sanctuary for citizens and their beliefs, courts therefore carved out a permissive exception for taxpayer standing from the customarily uncompromising rules of federal standing. The consequence of enforcing these new rules governing taxpayer standing under the Establishment Clause was to localize religious beliefs within the individual and away from the several states, where it had been anchored at the founding. [ABSTRACT FROM AUTHOR] Copyright of Chicago Kent Law Review is the property of Chicago Kent Law Review and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)
The Constitutional Politics of the Establishment Clause,
Chi.-Kent. L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol87/iss3/8