The clearest evidence that the framers of the First Amendment's establishment clause intended only to prohibit the creation of a national church is the virtual absence of any judicial decisions applying the clause in the first century and a half following its adoption despite countless state and federal accommodations of religion.[1] This construction is also amply supported by historical evidence. See, e.g., Wallace v. Jaffree, 472 U.S. 38 (1985) (dissenting opinion of Justice Rehnquist); R. Cord, SEPARATION OF CHURCH AND STATE: HISTORICAL FACT AND CURRENT FICTION (1982); chapter 11, supra. Prior to 1940, the Supreme Court interpreted the establishment clause on only two occasions. In 1890, it rejected a claim that an Idaho law prohibiting polygamy constituted an impermissible establishment of religion.[2] Davis v. Beason, 10 S. Ct. 299 (1890). The Court observed that the purpose of the ...
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