It is not often that one gets such immediate (and lengthy) written responses to one’s work. It is both humbling and a blessing. My five interlocutors have offered me the opportunity to gaze at my own work as it is reflected in five different pools. I like some of what I see, do not recognize some of it, and will refine other aspects in this brief reply. My only regret is that I simply cannot in the space of a reply respond to many of the interesting and worthy points raised.
I suppose I should start by explaining what was not terribly clear to me when I wrote the lead article, but has become much clearer as I have read the responses: what it is I hoped my vouchers article would accomplish. It is to a large degree a descriptive piece–descriptive of a core underlying principle of the Establishment Clause and descriptive of the case law that has followed. I am pointing out a phenomenon that has colored the establishment cases from the beginning but that has been pushed to the background by doctrine-talk. That phenomenon is that religion wields power and that it can do so inappropriately. Judging by the tone of some of my interlocutors, I have hit a nerve with a position I worried was too obvious to justify expression.
I have heard via the academic rumor mill (in fact, the source may have been him, but I cannot remember) that Professor, now Dean, Stanley Fish was giving one of his usual lively presentations one time and he received many questions. Toward the end of the questioning, one of his questioners declared, “The problem with your theory is that it is just one tiny idea–meaning is impossible to nail down.” His challenger sat down, obviously well-pleased with himself. Fish smiled, peered at him for a minute, and said, “Precisely.” One can just see Fish’s face broadcasting the coda, “But it is an important idea.” The same can be said of my first extended foray into establishment waters. It is but one idea that I am advocating–religion  can misbehave and therefore deserves to be distrusted like all other social entities. It may be, as Professor Brownstein seems to suggest, just a “tiny” idea in the pantheon. 1 Nonetheless, like Fish’s idea, the distrust of all entities that underlies the entire Constitution, including the Establishment Clause, is a tiny idea with powerful ramifications. It is a neglected idea in our society, which too often underestimates religion’s real power by treating it as an unalloyed benign or positive presence.
To the charge leveled by some that I have not covered the entirety of the Establishment Clause waters, I answer only “mea culpa.” Rather, I have taken one theme that was present in the culture at the time of the framing of the Constitution and apparent at the Convention, pulled the thread, identified its presence in the cases, and tried to interpolate it. On this first run with it, I am quite confident I have hit constitutional bedrock. I am less confident that my interpolation is correct; Mark Tushnet’s and Allan Brownstein’s musing whether it can carry the load it is assigned is more than justified. As with all academic theories, only time will tell.
In the following, I will briefly reply to what I view as the three most important bases of disagreement between myself and my colleagues: differences over the appropriateness of distrusting religion, the difference between doctrine and judgment, and the usefulness of “equality” as a measuring rod for establishment offenses.
I. THE CASE FOR DISTRUST OF RELIGION
Two of my interlocutors accuse me of being hostile to religion and “fearing” it. 2 The concept of “distrust” is being caricatured when my interlocutors recast it as the emotion of “fear.” The Constitution’s distrust is a pragmatic expectation schooled by history that all those holding power, even religion, may abuse it. The Constitution’s prescription for this empirical reality is to divide and balance power. As a theological matter, this is a Protestant perspective, and–without a doubt–permeated the mindset of the founding generation, especially James Madison. This is an ineradicable element of Protestantism: The Church can stray. It did so in the sixteenth century. Only historical revisionism would explain the Constitution’s separation of church and state as a tool solely intended to limit the power of the state. 3 Religion, too, has been guilty of serious misdeeds and  abuses of power that threaten liberty.
Religious persecution in early America frequently was at the hands of religion. Sometimes religion used the state to further its goals; sometimes it persecuted on its own. 4 When Madison wrote the following oft-quoted statement, he was speaking about a persecution that resulted from government and religion:
That diabolical, hell-conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their Quota of Imps for such business. This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. 5
Indeed, nothing seems to have bothered Madison so much as religious bigotry, a vice of those who are religious. 6 Thus, the more plausible reading of history and the Constitution is that both religion and the state must be checked to some degree to avoid tyranny.
The charge that I am advocating “subordination of church to state” 7 is an unfortunate misreading of the body of my work, which emphasizes a balance and division of power, and certainly does not endorse hegemony  of the state. 8 The Constitution gives neither church nor state a free ride. 9
I regret that my friends’ message is too clear: she is a heretic, an infidel to the cause of religion. At least the charge puts me in good company. James Madison’s adamant opposition to any kind of state aid for religion, including the Virginia tax assessment bill, 10 state payment of chaplains for Congress and the armed forces, 11 and other statements made throughout his life, have led some to accuse him of being “hostile to religion” because he believed that its “effect in society [can be] a pernicious one.” 12
Like Madison, I do not believe that religion is necessarily a negative in society, but that does not mean one ought to take a pollyanna view of it.  Rather, it can be a positive good, but when it gets a “handle on the levers of power,” the Constitution warns caution. 13 Madison was concerned not only about the union of church/state power but also the raw accumulation of too much power in the hands of religion or a consortium of religions. 14 Following in Madison’s footsteps, I have refused to give religion a white-wash so long as it is practiced by humans.
I am advocating an honest assessment of the interplay of religion and power. Even the briefest perusal of church/state history (one does not even need to leave our shores) proves that religion can overreach. Where have we arrived that it is now heretical to make this rather mundane historical point?
The age-old temptation to deride those who distrust religion as infidels trivializes the important paradox that lies at the base of the Constitution’s pervasive separation of powers principle. 15 In defending Madison against the charge that his strong belief in separation and his distrust of religious entities meant that he disvalued religion, Ralph Ketcham nicely captured the double-sided quality of Madison’s thought (and the Constitution’s presuppositions) as follows:
It would be difficult to find a neater and more compassionate balance between hopeful optimism on the one hand and pessimistic despair on the other. . . . His tough assessment of the frailty of man’s nature, the finiteness of human understanding, and the occasional  inclination of the world to be simply “out of joint,” would have warmed the heart of Presbyterian John Witherspoon. 16
It is not my position that “power will always be abused for evil ends.” 17 The Calvinist assumption underlying the Constitution and especially the Establishment Clause is that power can be and is even likely to be abused by those who hold it, not that it definitely will be. If the Framers believed, or the Constitution rested on the assumption that all power will always be abused, there would have been precious little reason to construct the system in the first place. A republican form of government can only operate to the extent that the system can be structured to reduce representatives’ temptation to abuse their power in a majority of instances. Distrust is coupled to deep hope, which is admittedly a paradox, but one that has served us very well.
I should have made this point more clear in my opening article, but I did not, so let me say it now: Religion is an essential and existential presence in the society that is vital to keep all other centers of power in check. 18 Indeed, I am a devout believer. My vigorous opposition to the Religious Freedom Restoration Act, its progeny, and now vouchers is an opposition to overreaching by religion, not religion per se.
To my happy surprise, Professor Michael McConnell finds considerable common ground with my separation of powers approach. I am grateful for his thoughtful response. Having started from similar principles, we reach opposite conclusions on vouchers, however, because we employ different empirical assumptions about the baseline of church/state power. He takes my decentralization concept seriously but states:
Educational choice decentralizes control over the dissemination of ideas, values, and opinions; promotes pluralism and diversity; eliminates the need for divisive political battles over the content of the curriculum; respects the rights of minorities and dissenters; and leaves decisions about the role of religion in education to private judgment. Educational choice would be a great advance for civil liberties–for ‘avoiding undue concentrations of power.’ 19
This is pretty heady stuff. Vouchers’ proponents obviously have a worthy advocate in Professor McConnell.
It would seem to me, however, that there is an equally compelling  argument that vouchers may also invite the government to permeate the private marketplace of education, thereby ridding us of the one truly independent source of education in the society. Because education is one of the most potent weapons for battling governmental (and other) tyranny, the existence of a private source of education is an insurance policy against despotism. Thus, Professor McConnell is with me on decentralization, but we part company on the necessity of thedemarcation of power centers. Under a vouchers regime, religious decisions are not necessarily “insulated . . . from government control,” 20 but rather religious institutions become part of the lobbying process for increased voucher payments, for the timing of such payments, and for other favors that are justified on the ground that the private school is now serving a public function. Indeed, voucher lobbyists have become a powerful and well-heeled interest in politics already.
McConnell sees a certainty in the Court’s establishment jurisprudence as it applies to vouchers that I cannot decipher. No matter how many times one reviews the aid cases, the irreducible issue in this context appears to be whether the aid is “direct” or “indirect.” That is where Agostinileft it, quite explicitly, and it is the brave soul that can read into that decision a clear indication on any particular voucher scheme. 21 “Directness” is a factual question colored by a court’s presuppositions about the church/state balance of power. Surely, a parental pass-through does not automatically make such payments indirect. Even if the vouchers’ monetary stream passes through parents’ hands, its source is the government, its intended goal usually includes religious schools, and it then empties into a fathomless ocean of sectarian coffers. 22 McConnell believes that “when the government acts neutrally toward religion, any religious consequences are attributable to the choices of private individuals and not to the state. If that is true, it cannot matter whether those choices are numerous or few.” 23 He cannot mean for this reasoning to be taken to its logical conclusion. If a city, or a school board, is paying a significant portion of its tax proceeds into a vouchers scheme that is dominated by religious schools, surely there is a constitutional problem of large proportions! McConnell’s formulation elevates form (the concept of neutrality) over substance (the real balance of power).
McConnell’s insistence that the family must be considered as a social  entity worthy of power deserves careful consideration, but the introduction of the family into the constitutional calculus does not displace the church/state issue, as he seems to imply. 24 I would think that the Constitution more properly requires us to consider the family as an additional factor in the complex play of social forces we are to be balancing.
II. JUDGMENT VS. DOCTRINE
From my point of view, Professor Tushnet’s response is the most exciting of those offered, because it identifies a theme in my scholarship that I had not identified in this particular context. Having read his response and especially its conclusion, I had one of those “Aha” insights for which I owe him a great deal of gratitude. He says:
Professor Hamilton’s project will have a greater effect in the long term than what might initially appear. It is not that her article will help us understand how the courts ought to resolve the voucher controversies that are currently on the table, but that it will–to the extent that it succeeds–contribute to our sense of what the common sense of the matter is.” 25
Tushnet is right on the money when he translates my approach: “No doctrinal approach will do the job.” 26 What he is saying, and he is right, is that my approach is not about doctrine but rather about the complex context against which doctrine must be deployed. It is about what he calls “common sense,” 27 but what I would call “judgment.”
There is an irreducible middle to every legal judgment made in the United States, whether by a legislature or a court. The success of the common law judicial system and the republican form of government in serving the public’s interest depend inevitably on the quality of judgment reached in each arena. 28 Madison recognized the consequences of resting the constitutional scheme on judgment: If there were a deficit of virtuous rulers, the system simply would not work. As hard as law professors and other scholars (consciously or subconsciously) labor to expand their sphere of power by attempting to control legal outcomes through reducing issues to formulae, there is no avoiding the necessity of judgment. The  establishment cases make particularly clear that connect-the-dots just won’t do.
I take Brownstein’s comment that I have written a “think piece . . . rather than a doctrinal analysis” as a compliment. 29 Within a page, though, he reverts to the law professor’s temptation to turn all legal discussions into doctrinal discussions that belong in a brief when he accuses me of not even “considering the arguments on the other side.” 30 He was right the first time–this is a think piece in which I am reviving an important element of the Establishment Clause and leaving doctrinal pigeonholes to the side for a moment. Criticizing my article for not covering all of the doctrinal bases is like criticizing Mark McGwire because he does not block passes. I am not particularly interested in “defeating . . . a constitutional argument” but rather have endeavored to cast a fresh eye on an age-old problem. 31
As we see in Brownstein’s contribution to this exchange, the ineluctable necessity of judgment is an element that gets shoved aside when the law is treated as though it can be defined by doctrinal categories that direct particular results in particular cases. Though perhaps unintentionally so, too much of legal academic scholarship is an attempt to transform judges into puppets operated by the Wizards of Law who operate from the law review bases. I suppose I am an infidel again, but this time to the legal academy.
What I am grappling with here, and probably not terribly coherently, because it walks outside the prescribed bounds for legal discourse in our era, is the legal academy’s attempt to reduce Brown v. Board of Education to a finite set of predictable factors. 32 That case is a miracle in legal discourse because the Court stepped boldly outside its previous jurisprudence, and even outside society’s readiness, and declared that the Constitution mandates racial equality. It has generated an almost desperate desire to copy that moment, to force its recreation, and to erect signposts that will point the way to another miracle. Yet, miracles are not subject to such controlling behavior. Brown is the best example we have of gutsy, visionary judgment. No doctrinal formula led the Court by the nose to the result. To the contrary, the Court leapt where others might have feared to tread. In Planned Parenthood v. Casey, 33 three members of the Court attempted to articulate the ground rules for reaching such a startling judgment.  But their efforts to reduce the use of right judgment in a particular context to particular criteria is deeply unsatisfying. The fact is that Brown is a prime example of the right judgment in the right context at the right time in the absence of controlling doctrine. The same courageous judgment is required in the establishment cases, which makes them no easy load for the courts to bear.
A catalogue of doctrinal pigeonholes fails to take seriously the Court’s own acknowledgment that there is no Grand Unified Theory, no single calipers, and no perfect multi-part formula that is up to the task of figuring out whether the Establishment Clause has been violated. 34 The courts need a great deal of latitude to be able to divine the appropriate balance of power between church and state in each arena. Tushnet fairly asks what a separation of powers-centered establishment jurisprudence can contribute to a “good constitutional order.” 35 In my book, his answer is gratifying, that it can contribute to discovering the “common sense” of the matter. If I have written off doctrine alone (and therefore a great deal of the legal scholar’s purchase in this arena), it is more than fair for a law professor to ask me what good can come of it. There are two answers, I suppose. First, there are many contributions legal scholars can make beyond spinning out doctrinal platforms. Good judgment rests on awareness of how laws affect humans and institutions and on knowledge about history, human character, and culture.
Second, by letting judgment transcend doctrine, the separation of powers approach makes it possible for judges to hear the Constitution’s call to shoulder the heavy mantle of responsibility they must bear in the establishment cases. Doctrinal constructs too often obstruct the view to the sociological and political realities that shape the current play of power in the society and lead to wooden conclusions. As the Rev. John Witherspoon taught his students, including James Madison, a successful constitutional scheme can only be derived from a pragmatic approach that reasons up from the facts. 36 Given the Constitution’s directive to disperse and limit power and the reality of power’s plasticity, especially when one is  dealing with church or state, judges should not be permitted to hide behind towers of doctrinal rules, but rather should acknowledge their very powerful and crucial role in dispersing the centers of power. This is precisely the role that Justice O’Connor has carved out, and one that I admire for its forthrightness on the point.
III. THE SIREN SONG OF EQUALITY IN THE ESTABLISHMENT CONTEXT
The force behind most defenses of voucher schemes that include religion is that it is unfair to treat religion less well than secular organizations. Professor McConnell plays on this theme while Professor Brownstein embraces it. Why should religion be denied public funds if nonreligious organizations can have them, especially when government funding has become so pervasive and so lucrative? Religious individuals pay taxes, too, the argument goes.
The problem with the approach is its appeal: To argue that religion must be treated equally with all other entities in the society is to argue that religion is similarly situated. That is precisely the argument that led the Court to its conclusion in Rosenberger, where it held that a proselytizing Christian group could not be denied student activity funds if such funds were available to other student groups as well. 37 I tip my hat to Professor McConnell for his powers of persuasion in winning that case. It is the same sort of reasoning that led to the Equal Access Act, 38 which was upheld in Board of Education v. Mergens. 39 A victory for the equality principle in this arena, however, is a diminution in the power of the Establishment Clause to curb inappropriate accumulations of power by religion.
The struggle between equality and establishment principles is well-articulated in the debate between the five-member majority in Rosenberger, which embraced the equality argument, 40and the four-member dissent, which espoused the establishment approach to reach an opposite conclusion. 41 If we start from the assumption that any money handed out by the government must be handed out to religious entities if it is given to nonsectarian entities, then every distribution of government wealth must also be had by religion. From a perspective of distrust, equality is being used as a wedge to open the door to direct payments from the government to religion.
The First Amendment makes clear that religion is different. As Professor  McConnell, Professor Brownstein, and Marc Stern are fond of saying when speaking about free exercise principles, religion is special and the First Amendment singles it out for special treatment on purpose. Madison did not stop drafting the First Amendment at the Free Exercise Clause, however. It was not enough to protect the church from the state. A disestablishment principle was necessary as well, to protect the society from religion cloaking itself in state power or leveraging state resources to its own ends. 42
By emphasizing equality and shifting the debate to a debate about families and the government, Professor McConnell attempts to have his cake and eat it, too. On the one hand, religion is special (for free exercise purposes and because it is a capable values inculcator, unlike the public schools), but on the other hand, religion is no different from any other entity (for establishment purposes when state funds are at stake). This masterful move draws attention away from the reality that “equality” permits religion to pan for new gold, all of it coming from government coffers. The best example of this phenomenon resides in the Medicare context, where the Christian Scientist “healers” have reaped fifty million dollars and defended it as justified because they pay taxes just like everyone else. Translation: the Christian Science Church is just like every other social institution receiving Medicare funds, so it is only fair to give them a fair share of the program’s largesse. 43 Madison would be concerned. Surely the dissenters in Rosenberger are right on this one: “Conformity with the marginal or limiting principle of evenhandedness is insufficient of itself to demonstrate the constitutionality of providing a government benefit that reaches religion . . . .” 44
My intellectual distrust of the “equality” defense to establishment violations may seem outright curmudgeonly to some. What could possibly be wrong with “equality,” a question that is a variation on the question I hear all the time regarding the Religious Freedom Restoration Act; what could possibly be wrong with giving religion more liberty? The answer is that more equality and more liberty too often translate into too much power. I see another theory being pushed by religious interests, however, that if coupled to the equality principle would seal religion’s supremacy in  this era. It is the “church autonomy doctrine,” which was articulated most recently in an amicus brief filed on behalf of a number of churches in a Colorado clergy misconduct case. 45 They argued that the Supreme Court has observed a “church autonomy doctrine,” which precludes the government from interfering in the employment decisions of churches. In that case, they particularly argued that the courts could not hold the churches responsible for the oversight and misconduct of their employees and therefore could not be subject to damages in cases involving priests who sexually abuse disabled congregants or children. The equality theory plus the church autonomy doctrine spells trouble. If churches have a right to the government’s money, and the government has no power to oversee how that money is being handled, public funds will fall into the hands of completely unaccountable institutions. This is a recipe for the abuse and misuse of power by religion about which Madison was rightly concerned.
Even assuming that the equality defense should work against establishment attack, the principle generates unintended and troubling consequences for the accommodation of religion. If religion is not truly distinctive, then the justification for granting exemptions from generally applicable laws has disappeared. 46 A religious exemption is nothing other than different treatment for religion because religion deserves special treatment. Why should a legislature give special treatment to the burden placed on a religion by a general law if it will not give the same treatment to nonsectarian institutions also burdened, if the two are equally situated in front of government for financial purposes? 47 In a strange way, the “equality” theory is religion’s way of acquiescing in the popular social myth that religion is trivialized in society. Ironically, by reducing the force of the Establishment Clause, the equality principle whittles away at religion’s constitutional status.
Could it be that a healthy distrust of religion and a vigorous reading of the Establishment Clause are good for religion? 48 Could be.
Connecticut Law Review