The Ten Commandments Case: Constitutional Erastianism

Arvind Kurian AbrahamWhen the Fifth Circuit upheld Texas's law mandating the display of the Ten Commandments in public school classrooms, most legal scholars will reach for the obvious reference points: Establishment Clause, the separation of church and state, the ghost of school prayer. The dissenting judges have dutifully explained the legal flaws of the Court's opinion. Few, however, will think about Erastianism. They probably should. Erastianism, the 16th-century doctrine associated with the Swiss theologian Thomas Erastus, holds that the state possesses supremacy over the church in ecclesiastical affairs, including the power to determine matters of religious doctrine and belief. It is a doctrine most Americans would instinctively recoil from. And yet it is precisely what the Fifth Circuit has quietly endorsed. Consider the precedent. Following Henry VIII's break with Rome, the English Parliament enacted the Statute of the Six Articles in 1539, prescribing the core articles of…