God, Civic Virtue, and the American Way: Reconstructing Engel

If ever a decision embodied the heroic, counter majoritarian function we romantically ascribe to judicial review, it was the 1962 decision that struck down school prayer-Engel v. Vitale. Engel provoked more outrage, more congres- sionalattemptsto overturnit, andmoreattackson theJusticesthanperhapsany other decision in Supreme Court history. Indeed, Engel's counter majoritarian narrative is so strong that scholars have largely assumed that the historical record supports our romanticized conception of the case.Itdoesnot. Usingprimary source materials, this Article reconstructs the story of Engel, then explores the implicationsof this reconstructednarrative. Engel is not the countermajoritarian case it seems, but recognizing that allows us to see Engel for what it is: a re- markablyrich account of Supreme Court decisionmakingthatfurthers a number ofconversationsin constitutionallaw. Engel adds a new strandto a burgeoning body of scholarship on the power of culture in general,and social movements in particular,to generate constitutional change, It presents a rare glimpse of the Justices explicitly engaging in a dialogue with the American public. And it exposes qualitative differences in the forms that popular constitutionalism might take, with implications for the theory itself In the end, Engel still offers valuable in- sights about Supreme Court decision making and the role of judicial review. They just aren't the insights we tend to think