![The key phrase—“an establishment of religion”—was readily
understandable to founding-era citizens. See District of Columbia v. Heller,
554 U.S. 570, 576–77 (2008) (relying on a phrase’s “[n]ormal meaning . . .
known to ordinary citizens in the founding generation”). The reason is
simple. At the time, establishments were “a familiar institution.”
McConnell, Establishment, supra note 12, at 2107.13 Someone on the streets
of 1789 Boston, reading that phrase, would have instantly thought of the
Church of England, the colonial established churches, or the current state
establishments—in other words, a polity’s official church or religion. Ibid.](https://cdn.bsky.app/img/feed_thumbnail/plain/did:plc:aw426jbgw7drhivb4ijrizlu/bafkreiduhdy2udsogi6jjhgxmz764ne7a25cvulptoeqmzq2kevp6pe66e)
The key phrase—“an establishment of religion”—was readily understandable to founding-era citizens. See District of Columbia v. Heller, 554 U.S. 570, 576–77 (2008) (relying on a phrase’s “[n]ormal meaning . . . known to ordinary citizens in the founding generation”). The reason is simple. At the time, establishments were “a familiar institution.” McConnell, Establishment, supra note 12, at 2107.13 Someone on the streets of 1789 Boston, reading that phrase, would have instantly thought of the Church of England, the colonial established churches, or the current state establishments—in other words, a polity’s official church or religion. Ibid.
Although the colonial establishments became more tolerant of dissenters as independence approached, their essence remained unchanged. The original state constitutions reflect as much. Far from rejecting establishments, many states preserved the core components of their establishments, such as public financial support for the official church, regulation of religious institutions, and religious qualifications for civic participation.36 Most explicit was South Carolina, whose 1778 Constitution declared that “the Christian Protestant religion” was “the established religion,” requiring religious societies to subscribe to enumerated articles of faith to receive legal recognition. S.C. Const. of 1778, art. XXXVIII, reprinted in Poore, State Constitutions, supra note 36, at 1626.
The Fifth Circuit flatly states that when the First Amendment says Congress may not create an "establishment of religion," it means the Church of England. They then argue the Founders intended states to have their own churches unaffected by the First Amendment (!!!).
