Document Type
Symposium
Abstract
The Supreme Court has said the Establishment Clause should be interpreted in light of history and tradition. This Essay adds to the historical conversation by highlighting an overlooked dimension of religious establishment. Many recent decisions and commentary treat coercion as the central feature of establishment, often drawing on Michael McConnell’s identification of six common features of religious establishments. But McConnell’s categories were never meant to be exhaustive, and coercion alone cannot explain important parts of the historical record.
Religious education was central to religious establishment. Established religions took deliberate measures to secure the intergenerational transmission of the faith, a task too important to be left to chance. In England, the established church used law and public institutions—from the Uniformity Acts and parish catechesis to Oxford and Cambridge and to poor relief—to shape the religious commitments of successive generations. These efforts worked through what this Essay calls soft establishment—formation without compulsion, influence without force. Religious establishments secured religious uniformity not merely by coercing dissenters, but also by shaping the background conditions of belief in ways that made dissent less likely to arise, take hold, or spread. Opt-outs, which frequently coexisted with established churches, underscore the point: establishment did not depend on coercion.
Public schools are often treated as sui generis because widespread public schooling did not exist in America at the Framing. But public authority has long been used to influence the religious formation of the next generation, and modern public schools are the closest functional successors to those earlier forms. Any historically grounded account of religious establishment must reckon with the soft formative power of public institutions, not just their overt exercises of coercive authority.
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Comparative and Foreign Law Commons, Constitutional Law Commons, Education Law Commons, Supreme Court of the United States Commons