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In his book, Levy refutes the nonpreferentialists' claim that the First Amendment clause, "Congress shall make no law respecting an establishment of religion," merely prohibits Congress from providing preferential aid to one church. If "an establishment of religion" meant only single-church establishments, Congress would only be prohibited from exclusively benefiting one church but not prohibited from aiding religion impartially. But, as Levy points out, history does not support the nonpreferentialists' interpretation.

Although the five southern colonies did have exclusive Anglical establishments, the colonies of New York, Massachusetts, Connecticut, and New Hampshire came to have multiple religious establishments, and, indeed, the colonies of Rhode Island, Pennsylvania, Delaware, and New Jersey never had establishments of any kind. After the Revolution, opposition to establishments increased, resulting in states having to replace their exclusive or dual establishments or even ending their establishments altogether. Thus, the historical fact of multiple establishments of religion contradicts the nonpreferentialists' interpretation that "an establishment of religion" referred only to single-church establishments, and, therefore, does not support their claim that the establishment clause only prohibits Congress from making laws preferring one church. Nor is their interpretation supported by the debates between the Federalists and Anti-federalists.

Anti-federalists feared loss of liberty and pressured Federalists to accept recommendations for amendments to the new Constitution, which included protection of religious liberty. But Federalists countered that such amendments were superfluous because, as Levy succinctly restates the argument, "[T]he unamended Constitution vests no power over religion." Moreover, Madison stated in an October 17, 1788 letter to Jefferson that these amendments ought to be "so framed as not to imply powers not meant to be included in the enumeration." Thus, Levy concludes, "To argue, as the nonpreferentialists do, that the establishment clause should be construed to permit nondiscriminatory aid to religion leads to the impossible conclusion that the First Amendment added to the powers of Congress even though it was framed to restrict Congress. It is not only an impossible conclusion; it is ridiculous."

From his demolition of the nonpreferentialists' interpretation of the establishment clause and his statement in the Preface that his "sympathies are clearly with the separationists," one might conclude that Levy is a strict advocate of an impregnable wall of separation between church and state. However, he is not. Of zealous separationists who interpret every crack in the wall as disaster, Levy says, "[They are] like Chicken Little, screaming, 'The wall is falling, the wall is falling.' It really is not and will not, so long as it leaks just a little at the seams. If it did not leak a little, pressure on the wall might generate enough force to break it."

Examples of leaks which Levy feels need not be repaired are the Supreme Court beginning its sessions with "God save this honorable Court," the money motto "In God We Trust," the words "under God" in the Pledge of Allegiance, tax-supported chaplains for military and legislative bodies, etc. Although Levy is aware of the concern of separationists that "big oaks grow from small acorns," he invokes for "trivial" leaks an aphorism which was also advocated by Madison: "De minimis non curat lex" ("The law does not bother with trifles"). A more controversial leak, however, is Levy's advocacy of tax aid for parochial schools.

Although he agrees that the "claim of 'double taxation' is a misnomer," he asserts that the Supreme Court "ought to relieve the burden of so called double taxation on those who pay to send their children to private school." He also says, "If proper restraints exist on the funds for parochial schools so that tax monies are not spent for religious purposes, and the aid rendered is comparable to the value of the secular education provided by the schools, fairness seems to be on the accomodationist side." To say the least, Levy's leaky wall is problematic. It is impossible that parochial school aid would not set free additional dollars for sectarian indoctrination, and the idea that, with "proper restraints," taxpayers' dollars could be secure from misuse is too good to be true.

In the course of discussing establishment-clause cases, Levy amuses his reader with some pot shots at the High Court. He says, for example, that "the Court has managed to unite those who stand at polar opposites on the results that the Court reaches: a strict separationist and zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices."

Levy obviously writes with passion, and his scholarship is as good as his views are controversial. Notwithstanding my disagreement with him over parochial school aid, I found his book both provoking and educational.