Church, State, and Original Intent 9780521119184, 9780511658457, 9780521134521

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Church, State, and Original Intent This provocative book shows how the United States Supreme Court has used constitutional history in church-state cases. Donald L. Drakeman describes the ways in which the justices have portrayed the framers’ actions in a light favoring their own views about how church and state should be separated. He then marshals the historical evidence, leading to a surprising conclusion about the original meaning of the First Amendment’s establishment clause: the framers originally intended the establishment clause only as a prohibition against a single national church. In showing how conventional interpretations have gone astray, he casts light on the close relationship between religion and government in America and brings to life a fascinating parade of church-state constitutional controversies from the founding era to the present. Donald L. Drakeman is a Lecturer in the Department of Politics at Princeton University. He is the author of Church-State Constitutional Issues, and his writings have appeared in Constitutional Commentary, Journal of Church and State, American Journal of Legal History, The Christian Century, Religion and American Culture, and several law reviews. He is also co-editor of Church and State in American History. He has served as legal counsel for a coalition of religious organizations acting as friends of the Court in federal church-state litigation, and he has been a member of the Religious Liberty Committee of the National Council of Churches and the Civil Rights Committee of the Association of the Bar of the City of New York. He is a co-founder and chairman of the Advisory Council of the James Madison Program in American Ideals and Institutions at Princeton University and a former co-chair of the Advisory Council for Princeton’s Department of Religion.

Church, State, and Original Intent

DONALD L. DRAKEMAN Princeton University

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521119184 © Donald L. Drakeman 2010 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13

978-0-511-65845-7

eBook (NetLibrary)

ISBN-13

978-0-521-11918-4

Hardback

ISBN-13

978-0-521-13452-1

Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Contents

Preface

page vii

1 2 3 4

Introduction Reynolds: The Historical Construction of Constitutional Reality Everson: A Case of Premeditated Law Office History The Battle for the Historical High Ground

1 21 74 149

5 6

Original Meanings: Where Is the Historical High Ground? Incorporating Originalism

196 263

7

Conclusion

326

Bibliography

347

Index

369

v

Preface

Nowhere have the intentions of the American Constitution’s framers been more important than in church-state cases. The United States Supreme Court’s devotion to the original meaning of the First Amendment’s “establishment clause” began in the 1870s and continues to the present, as constitutional questions regularly arise over issues ranging from aid to religious schools and courthouse Christmas displays to children pledging allegiance to one nation “under God.” This book seeks to address two critical questions in the realm of “church, state, and original intent”: (1) Why did the Supreme Court pursue this quest for the First Amendment’s original meaning, and once it did, where did the justices find the history they have so firmly grafted onto the text of the establishment clause? (2) What is a reasonable originalist interpretation of the establishment clause in light of all of the relevant materials? The first chapter sets the stage by introducing the Supreme Court’s “wall of separation” jurisprudence, which first appeared in the 1870s in the Reynolds Mormon polygamy case. This interpretation was based on locating the origins of the establishment clause in the church-state views of Thomas Jefferson and James Madison. Chapter 1 then outlines the three principal schools of thought that have emerged in scholarly works, judicial opinions, and the popular press to compete for attention in this arena, all of which are focused on discerning the intentions of the framers of the Bill of Rights. Chapter 2 examines the Reynolds case in considerable detail, and it shows that the Supreme Court’s view of history can be traced back through prominent historian George Bancroft to evangelical Baptist and Presbyterian historians writing in nineteenth-century Virginia whose texts were driven by theological commitments to a strict separation of church and state. vii

viii

Preface

Chapter 3 focuses on the Supreme Court’s 1947 Everson decision, which is widely acknowledged to be the single most important establishment clause case, in large part because all nine justices were committed to building a wall of separation between church and state based on their understandings of the framers’ intentions. By analyzing the justices’ files and private papers, this chapter shows that Justice Wiley Rutledge dominated the opinion writing and historical analysis, not Justice Hugo Black, as is commonly thought. Moreover, correspondence and memoranda in Justice Rutledge’s papers show that one of his primary goals was to minimize the threat of Roman Catholic influence in the public schools and that he employed his arguments about the framers’ intentions to shield that motivation from public view. This chapter reviews the historical sources cited by both Rutledge and Black and concludes that they do not fully support the historical claims made by the justices. Chapter 4 describes the explosion of the church-state historical literature that was touched off by the Everson Court’s emphasis on original intent. These works by scholars and constitutional lawyers have attempted either to shore up the Court’s analysis or to replace it with an entirely different historical understanding, and many of the arguments are inconsistent with each other. A critical element of this chapter is to identify the specific historical claims underlying the various interpretations so that these claims can be evaluated in light of the documents constituting the original record. Chapter 5 presents and analyzes the primary source material and historical context from the eighteenth century, and it seeks to provide as full a picture as can be obtained of the origins and meaning of the establishment clause at the time it was adopted by Congress and ratified by the states. It then tests each of the three dominant originalist interpretations against the historical data, and finds all of them wanting. Chapter 6 explores how the establishment clause was interpreted by presidents, legislators, judges, and the public during the period from its adoption until the Reynolds case discussed in Chapter 2. This chapter includes an analysis of how the establishment clause may have been understood by Congress and the American public around the time that the Fourteenth Amendment was adopted, an action that the Supreme Court has interpreted as causing the mandates of the establishment clause to apply to the states as well as to the federal government. Chapter 7 advances a fresh interpretation of the historical evidence, leading to a new approach to the establishment clause. While some aspects of the evidence can be employed to support each of the various conventional interpretations, the only reading of the clause that is persuasively supported

Preface

ix

by all of the relevant data shows that its original meaning was to forbid the establishment of a single national religion. It is unclear whether such a prohibition only applied to an entity like the Church of England or whether more ecumenical forms of governmental financial aid might also have been included within the original meaning of the phrase “an establishment of religion.” On this latter point, the record is (and probably always will be) too murky to tell for sure. Interestingly, this no-national-religion interpretation is not the conclusion that I expected to reach when I began this project, nor is it necessarily in line with my personal views of how church and state should interact, but it appears to be compelled by an as-objective-as-possible analysis of the history. Earlier versions of portions of Chapters 2 and 3 appeared in the following journal articles, and I would like to thank the journals’ editors for permission to use those materials here: “Reynolds v. United States: The Historical Construction of Constitutional Reality,” Constitutional Commentary 21, no. 3 (2004): 697–726; “The Church Historians Who Made the First Amendment What It Is Today,” Religion and American Culture: A Journal of Interpretation 17, no. 1 (2007): 27–56; and “Everson v. Board of Education and the Quest for the Historical Establishment Clause,” American Journal of Legal History 49 (2007): 119–68. In the course of this effort, I have managed to disagree on one point or another with just about everyone who has written on these topics, including teachers, friends, and colleagues who have been enormously helpful in my educational development, in particular, Robert P. George, Kent Greenawalt, and John F. Wilson. I am hopeful that this exercise in biting the scholarly hands that have fed me will be seen as the compliment that was intended. I would like to thank those who were kind enough to review and comment on drafts of the entire manuscript, especially Daniel Dreisbach and Phillip Munoz, ˜ with whom I have had numerous lively, enjoyable, and immensely productive discussions, as well as Lewis Bateman and Emily Spangler and their external reviewers at Cambridge University Press. Many thanks are also due to those who graciously provided helpful insights in discussions, debates, and conference sessions, or who thoughtfully commented on various aspects of the material that has found its way into this book, including Akhil Reed Amar, Gerard Bradley, Mark Brandon, Nicole Davida, Thomas Davis, Richard Garnett, Nils Lonberg, Raj Parekh, Leigh Schmidt, Christine Whelan, Stephen Whelan, Keith Whittington, and Eric Yun, as well as more than fifteen years’ worth of Princeton students who have helped me wrestle with all manner of complex constitutional concepts. Special thanks are due to Thomas Clark, whose terrific research work, including trips to

x

Preface

the Library of Congress, provided much of the raw materials for Chapters 2 and 3. And there would have been no manuscript at all if it were not for the impressive editing skills of Stephanie Sakson and Katherine Rick, and the word processing and cryptographic talents of JoAnn Feiner, Kathy Gryzeski, Melissa Marks, Diane Morrison, and Phyllis Nicholson. Most of all, I was inspired, informed, and intellectually challenged by Amy, Cindy, and Lisa Drakeman. It was Lisa’s wonderful work on nineteenth-century religion that convinced me that those of us who focus on church-state constitutional issues too often overlook more than 100 years of rich and fertile American history; and Amy’s studies in psychology and social work have provided a critical reminder that, however important they may have been, framers are people too. And then there is Cindy, whose pursuit of a classical archaeology D.Phil. was the muse that reawakened and renewed my interest in the life of the mind and the pursuit of scholarship. Our worlds were an ocean and millennia apart, but our common devotion to asking “What do we know and how do we know it?” while musing about parallels between Romano-Celtic religion and American church-state practices sharpened my thinking, sustained my efforts, and made this a labor of love.

1 Introduction

Those of us who contribute to the relentlessly expanding literature on the Constitution imagine that our exhaustive research and cogent analysis will enliven scholarly debates, advance the cause of higher education, and, perhaps, help justify the existence of hundreds of law journals. At the same time, we often harbor ambitions that our work will extend its reach beyond the narrow confines of academia, perhaps even influencing the Supreme Court’s thinking when the next case arises under whatever constitutional article or amendment we have so brilliantly illuminated. The visible signs of our election to this heady realm may be found in a brief footnote reference in a Supreme Court opinion or even mirabile dictu a mention in the text itself along with glorious words like “seminal” or “landmark.” Such recognition is rare indeed, although it does occur from time to time, and in 2003, Frank Schechter posthumously entered this scholarly promised land when Justice Stevens called upon his “seminal discussion” of trademark law in a 1927 Harvard Law Review article. Schechter’s graduate studies at Columbia Law School, combined with his practical experience as trademark counsel for the BVD Company (where preparing briefs has a long history), helped the modern Court resolve a case involving trademarks used for “moderately priced, high quality, attractively designed lingerie sold in a store setting designed to look like a wom[a]n’s bedroom,” namely, Moseley v. Victoria’s Secret Catalogue, Inc.1

1

Moseley v. Victoria’s Secret Catalogue, Inc., 537 U.S. 418 (2003), citing Frank I. Schechter, “Rational Basis of Trademark Protection,” Harvard Law Review 40 (1927): 813. Although Schechter was unable to appreciate this twenty-first-century recognition, the Supreme Court was cognizant of his contributions to trademark law several generations earlier. The Supreme

1

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Church, State, and Original Intent

Relatively few scholars achieve even the minor fame of a footnote appearance, and fewer still the Olympian heights of a text reference, but even those pale beside the historical import of a letter dated January 17, 1879, from Morrison R. Waite, chief justice of the United States, to one of the nineteenth century’s most distinguished historians, George Bancroft. The letter related to the recent decision by the Supreme Court in Reynolds v. United States, a landmark case interpreting the free exercise clause of the First Amendment as it applied to Mormon polygamy. In pertinent part, it reads as follows: “As you gave me the information on which the judgment in the Utah polygamy case rests, I send you a copy of the opinion that you may see what use has been made of your facts.”2 The balance of the short letter makes it clear that the “facts” elicited from Dr. Bancroft had nothing to do with the practice of polygamy, the Territory of Utah, or the relatively new phenomenon of the Mormon religion; rather, the “information on which the judgment . . . rests” related to the historical origins of the First Amendment’s religion clauses. The background of the First Amendment is featured prominently in Justice Waite’s opinion for the Court, which states that since there is no definition of religion in the Constitution, the Court “must go elsewhere . . . to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.”3 Ultimately, Justice Waite, relying heavily on Bancroft’s clue that the amendment’s inspiration could be found in Thomas Jefferson’s Virginia Statute for Religious Freedom, happened upon “histor[ies] of the times” written by two Virginia historians, both of whom were ordained ministers with a deep-rooted theological Court Historical Society has published the following summary from an oral history account by Milton Handler about his time as Justice Harlan Fiske Stone’s clerk: At one point, Holmes observed that in the course of writing the opinion in the recent trademark case, Beech-Nut Packing Co. v. P. Lorillard Co., he had occasion to read a fascinating book on the history of law and usage of trademarks. Stone asked whether Holmes was referring to a doctoral dissertation by Frank Schechter. The senior Justice nodded. Stone told him that he had persuaded Schechter, who was a trademark counsel for BVD Co., to take a year off from practice to stand as the first candidate for a doctorate in law at Columbia. Learning that Stone had inspired the writing of this book, Holmes rose, walked across the room and shook Stone’s hand. “I congratulate you on one of the great acts of your life,” he said.

2

3

Supreme Court Historical Society 1988 Yearbook, available at http://www.supremecourt history.org/04_library/subs_volumes/04-c10_g.html, citing Milton Handler, “Are the State Antidilution Laws Compatible with the National Protection of Trademarks?” The Trademark Reporter 75 (1985): 270–1. Transcript of letter in the Manuscript Division; Library of Congress, Washington, D.C. (transcription by Ernest J. Enrich, December 2, 2003). Reynolds v. United States, 98 U.S. 145, 192 (1879).

Introduction

3

commitment to the separation of church and state. The historians who provided the chief justice with more “facts” about the colonial Virginia backdrop to the First Amendment were Baptist Robert Semple, who wrote a highly praised (and periodically reissued) History of the Rise and Progress of the Baptists in Virginia, and Presbyterian Robert Reid Howison, who produced a rapidly forgotten (but in this case, quite influential) two-volume History of Virginia.4 Based on his study of these historical works, Justice Waite interpreted the Constitution’s religion clauses in the light of Virginia’s efforts in the 1780s to eliminate state funding for churches and to protect the freedom of religion. His analysis centered on James Madison’s Memorial and Remonstrance in opposition to a “bill establishing provision for the teachers of the Christian religion” and on the act “‘for establishing religious freedom,’ drafted by Mr. Jefferson.”5 Waite linked these Virginia materials to the Constitution by noting Madison’s role in initially proposing the First Amendment in Congress and Jefferson’s subsequent comments in a letter to a committee of the Danbury, Connecticut, Baptist Association, where he described the amendment as building a “wall of separation between Church and State.”6 And to this day, thanks to Chief Justice Waite’s silent partnership with the historian George Bancroft,7 Thomas Jefferson, and James Madison – and their church-state exploits in Virginia and elsewhere – have been the foundation upon which the Supreme Court has erected its church-state jurisprudence. A Findlaw.com search identifies over twenty-five Supreme Court cases mentioning Madison’s Memorial and over twenty cases employing Jefferson’s “wall of separation” language.8 4

5 6 7 8

Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond, Va.: published by the author, 1810); Robert Howison, History of Virginia from Its Discovery and Settlement by Europeans to the Present Time, 2 vols. (Richmond, Va.: Drinker and Morris, 1848). Reynolds, 98 U.S. at 163. Ibid. at 164. Bancroft received the thank-you note described above, but was not cited in Waite’s opinion. Supreme Court opinions looking to the intentions of the framers to shed light on the meaning of the religion clauses are too numerous to list here. The first modern establishment clause case, Everson v. Board of Education, 330 U.S. 1 (1947), reh. denied, 330 U.S. 855 (1947), reaffirmed the statement in Reynolds that the “provisions of the first amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and intended to provide the same protection against governmental intrusion on religious liberty as the Virginia [Bill of Religious Liberty].” 330 U.S. at 15–16. Justice Rutledge’s dissenting opinion even included Madison’s Memorial and Remonstrance as an Appendix. Laurence Tribe has observed that “whether the Black-Rutledge version [in Everson] is accurate history has been disputed vigorously off the court [but] what is indisputable is that, with remarkable consensus, later Courts accepted the perspective of these Justices as historical truth.” Laurence H. Tribe, American Constitutional Law, 2nd ed. (Mineola,

4

Church, State, and Original Intent

There are many remarkable aspects of the Reynolds case; not least among them was the fact that the chief justice even raised the issue of the historical background of the First Amendment to the Constitution. Digging around in the records of the founding era was hardly the common practice in nineteenth-century jurisprudence that it has become in some modern judicial opinions and academic publications. Today, First Amendment interpreters of virtually every political and intellectual stripe endeavor to find support for their views of the religion clauses via appeals to a variety of eighteenth-century luminaries who may have influenced, to one degree or another, the thoughts or actions of the men who wrote, debated, voted on, ratified, or implemented the Bill of Rights, leading historian Gordon Wood to observe that “showing that the Founders would have approved of the writer’s position seems to be essential to any argument over religion and government.” 9 But this kind of originalism was relatively uncommon during the Supreme Court’s early encounters with the Constitution. Early nineteenth-century Supreme Court opinions were relatively brief – extremely so by today’s standards; the dissenting and concurring opinions that are now virtually ubiquitous appeared considerably less frequently; and, perhaps most surprisingly for a generation of jurists who knew some of the framers personally, citations to constitutional history or intent were most noteworthy by their absence. There may have been an occasional reference to common law principles, which were typically derived from English cases, or to Blackstone, Coke, or other distinguished legal scholars, again often imported from England.10 And when traditional English sources were not on point, justices reached out for much higher authorities than their political contemporaries. The eminent and ever quotable Justice Joseph Story, in

9

10

N.Y.: Foundation Press, 1988), p. 1160. More recently, Justice Souter’s dissenting opinion in Mitchell v. Helms, 530 U.S. 793 (2000), in which he is joined by Justices Ginsberg and Stevens, relies heavily on Madison’s Memorial and Jefferson’s Bill for Establishing Religious Freedom. A few years ago, Daniel Dreisbach compiled a list of federal and state cases referring to Jefferson’s Bill and Madison’s Memorial in “Thomas Jefferson and Bills Number 82–86 of the Revision of the Laws of Virginia, 1776–1786: New Light on the Jeffersonian Model of Church-State Relations,” North Carolina Law Review 69 (1990): 173–5 nn. 77–83. For a quantitative analysis, see Mark David Hall, “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review 85 (2006): 563–614. Gordon S. Wood, “American Religion: The Great Retreat,” New York Review of Books 53, no. 10 (June 8, 2006), p. 60. This penchant for looking to common law antecedents extended to state court cases as well. See, e.g., The People v. Ruggles, 8 Johns. 290 (1811), a New York case citing Blackstone; and Maddox v. Maddox’s Administration, 52 Va. 804 (1854), where the court even reached out to a “writer on Scotch Criminal Law.”

Introduction

5

considering an act repealing the charter of the Episcopal Church in the early nineteenth century, appealed to “the common sense of mankind and the maxims of eternal justice,” which, he opined, were fully consistent with the common law understanding that “the division of an empire creates no forfeiture of previously vested rights.”11 He did not, however, offer a single historical source, case reference, or even simple footnote to guide the reader to the source of the maxims of eternal justice. Similarly Chief Justice Marshall’s opinions in blockbuster cases such as McCulloch v. Maryland (1819) and Barron v. Baltimore (1833) invoked no authority beyond the text of the Constitution itself,12 although in Barron he did acknowledge that antifederalist opposition to the Constitution was “universally understood,” and simply “part of the history of the day,” – one of the rare and remarkably brief moments of historical reflection in early nineteenth-century constitutional jurisprudence.13 Even when justices have looked at the origins of various constitutional provisions, Justice Waite’s focus on the intentions of specific framers has not always been the Court’s methodology. In a detailed analysis titled “The Original Understanding of Original Intent,” H. Jefferson Powell argues that the “hermeneutical traditions” of the founding era rejected “intentionalism” – that is, referring to the opinions or actions of the framers to interpret the Constitution. Rather, the interpretation of the Constitution from the time it was ratified through the first few decades of the nineteenth century typically

11 12 13

Terrett v. Taylor, 13 U.S. 43, 50 (1815). McCulloch v. Maryland, 17 U.S. 316 (1819); Barron v. Baltimore, 32 U.S. 243 (1833). In another nineteenth-century use of constitutional history, Marshall himself is cited as a framer by an 1870 New Jersey Supreme Court case, which mentions a speech by Marshall delivered at the Virginia ratifying convention. Martin v. Martin’s Executor, 20 N.J. Eq. 421 (1870). Interestingly, more recent Supreme Court justices and scholarly commentators have credited Marshall with being so much a part of the historical context that his views deserve special deference on issues relating to what the framers may have intended. In commenting on Marshall’s opinion in Marbury v. Madison, Charles Beard wrote: “The great Justice who made the theory of judicial control operative had better opportunities than any student of history or law today to discover the intention of the framers. Marshall . . . was on intimate, if not always friendly, relations with the great men of his state [Virginia] who were instrumental in framing the Constitution.” Charles A. Beard, The Supreme Court and the Constitution (New York: The Century Co., 1912), p. 1, quoted in John G. Wofford, “‘The Blinding Light’: The Uses of History in Constitutional Interpretation,” University of Chicago Law Review 31 (1963–4): 502, 507. See also the opinions cited by Wofford in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 587 (1949) (Justice Jackson: Marshall “wrote from close personal knowledge of the Founders and the foundation of our constitutional structure”; Justice Frankfurter: “Marshall had no mean share in securing adoption of the Constitution”). Wofford, “Blinding Light,” p. 506.

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involved the “standard techniques of statutory construction” that had been well established in English and colonial American common law. The term “original intent” then “referred to the ‘intentions’ of the sovereign parties to the constitutional compact, as evidenced in the Constitution’s language and discerned through structural methods of interpretation; it did not refer to the personal intentions of the Framers or of anyone else.”14 Powell’s conclusion is, of course, open to debate: Raoul Berger has issued a sharp rebuttal of Powell’s thesis, arguing that “from earliest times when courts spoke of ‘intention’ they meant . . . ‘actual intent’”;15 others, such as Charles Lofgren, have argued that there is strong evidence to support the primacy of the ratifiers’ understanding of the Constitution.16 Meanwhile, dedicated originalist (or “textualist”) Justice Antonin Scalia rejects the authority of the framers’ intentions, opting instead to ascertain “what the text would reasonably be understood to mean, rather than . . . what it was intended to mean.”17 As Gary Lawson has written, “Originalist analysis . . . is not

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17

H. Jefferson Powell, “The Original Understanding of Original Intent,” Harvard Law Review 98 (March 1985): 885–948 reprinted in Jack N. Rakove, ed., Interpreting the Constitution (Boston: Northeastern University Press, 1990), pp. 53–115. Powell goes on to note that neither James Madison nor John Marshall “regarded historical evidence of the Framers’ personal intentions as a definitive or even particularly valuable guide to constitutional construction” (p. 85). Raoul Berger, “‘Original Intention’ in Historical Perspective,” George Washington Law Review 54 (1985–6): 296, 336. Charles A. Lofgren, “The Original Understanding of Original Intent,” in Rakove, Interpreting the Constitution, pp. 117–50. As to the establishment clause itself, Gerard Bradley argues that “ratification is the key event. . . . [T]he search for constitutional meaning is for the meaning apprehended by the ratifiers.” Gerard V. Bradley, Church-State Relationships in America (New York: Greenwood Press, 1987), pp. 136–7. Daniel Conkle’s definition of establishment clause originalism embraces both framers and ratifiers: “Originalist constitutional theory would limit constitutional restraints on government to those restraints that were originally intended by the framers and ratifiers of the Constitution including its various amendments.” Daniel O. Conkle, “Toward a General Theory of the Establishment Clause,” Northwestern University Law Review 82 (1987–8): 1115, 1119. He then expands (or perhaps modifies) this definition by indicating in a footnote that the “originalist meaning of a constitutional provision depends in the first instance on its language, read in light of its original context.” Ibid., n. 18, citing Dickerson, “Statutes and Constitution in an Age of Common Law,” University of Pittsburgh Law Review 48 (1987): 773. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton, N.J.: Princeton University Press, 1997), p. 144. “What I look for in the Constitution,” he writes, “is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended” (p. 38). See also Antonin Scalia, “Originalism: The Lesser Evil,” University of Cincinnati Law Review 57 (1989): 849. For a textualist interpretation of the establishment clause, see William C. Porth and Robert P. George, “Trimming the Ivy: A Bicentennial Re-examination of the Establishment Clause,” West Virginia Law Review 90 (1987–8): 110.

Introduction

7

a search for concrete historical understandings held by specific persons.”18 Instead, he asserts that for “most contemporary originalists,” it involves “a hypothetical inquiry that asks how a fully informed public audience, knowing all that there is to know about the Constitution and the surrounding world, would understand a particular provision.”19 Irrespective of whether we focus on the framers’ preconstitutional acts, floor debates, post-adoptive writings, the ratifiers’ views, or the general public’s sense of the text’s original meaning, the fact remains that the early nineteenth-century Supreme Court spent little time consulting any potential sources of original intent or meaning.20 Interestingly, however, as the framers and ratifiers literally died out, their views started to become increasingly important as the Supreme Court’s arsenal of interpretive approaches began to expand. Powell notes, for example, that by midcentury, the tide was 18

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Gary Lawson, “Delegation and Original Meaning,” Virginia Law Review 88 (2002): 327, 398. Ibid. See also Michael Stokes Paulsen, “How to Interpret the Constitution (and How Not To),” Yale Law Journal 115 (2006): 2037. For a detailed study of “originalism” of this type, see Jonathan O’Neill’s Originalism in American Law and Politics: A Constitutional History (Baltimore, Md.: Johns Hopkins University Press, 2005): “First, originalism holds that ratification was the formal, public, sovereign, and consent-conferring act which made the Constitution and subsequent amendments law. Second, originalism holds that interpretation of the Constitution is an attempt to discover the public meaning it had for those who made it law. Third, originalism holds that although interpretation begins with the text, including the structure and relationship of the institutions it creates, the meaning of the text can be further elucidated by extrinsic sources. This includes evidence from those who drafted the text in convention as well as from the public debates and commentary surrounding its ratification. . . . Finally, because originalism regards the sovereign act of lawmaking authority as having ‘fixed’ the meaning of a constitution to be interpreted by ordinary legal methods, consultation of extrinsic evidence is usually limited to historical sources that might reveal the public meaning of the text at the time it became law” (p. 2). Interestingly, there are mixed views from the framers themselves on the extent to which constitutional history should be an authoritative source for future interpretations. Some scholars, for example, quote Madison’s comments in the Congress to the effect that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the Oracular guide in expounding the Constitution. . . . [It] was nothing more than the draft of a plan . . . until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.” Quoted in Powell, “Original Understanding,” p. 83. See also Jack N. Rakove, “Mr. Meese, Meet Mr. Madison,” in Rakove, Interpreting the Constitution, p. 179. But see Donald O. Dewey, “James Madison Helps Clio Interpret the Constitution,” American Journal of Legal History 15, no. 1 (January 1971): 38–5: “Despite his frequent assertions that the Constitution should be allowed to speak for itself, Madison always put more confidence in the historical facts concerning the development of the Constitution than in the verbiage and phraseology of the document” (p. 38). As discussed more fully below, it is not clear that Madison took either of these positions in his effort to interpret the establishment clause during his presidency and thereafter.

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turning, and by “the outbreak of the Civil War, intentionalism in the modern sense reigned supreme in the rhetoric of constitutional interpretation.”21 Evidence of this novel approach to the Constitution can be found in Judge Abel Parker Upshur’s 1840 “A Brief Enquiry into the True Nature and Character of Our Federal Government,” where he wrote, “The strict construction for which I contend applies to the intention of the Framers of the Constitution and this may or may not require a strict construction of their words.”22 Not surprisingly, George Bancroft, constitutional historian and the inspiration for Chief Justice Waite’s originalist technique in the Reynolds decision, adopted this kind of intentionalism. In an 1884 letter to Waite he lambasted the result in the Court’s recent “paper money” case, Juilliard v. Greenman,23 saying, “I have been over the ground again and again and have found only evidence after evidence making clear the intention of the authors of the constitution and the meaning of that instrument on the point which has been questioned.”24 In recent times, professional historians have periodically reviewed the Court’s use of history to interpret the Constitution, and they have assigned poor grades to the effort. Perhaps the most common epithet is “law office history,” the concept that lawyers will excavate the dry, cracked volumes of history comprising the constitutional foundation of a case for one, and only one, purpose: to unearth archival material supporting their clients’ cases. So if their clients seek a strong and resolute division of church and state, they read the history through a “strict separationist” lens and find Jefferson’s wall of separation, whereas opposing counsel will dig up evidence that James Madison not only sat on a committee that appointed a congressional chaplain but, when he was President, also proclaimed national days of prayer.25 In other words, the lawyers are living up to the historical version 21 22

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Powell, “Original Understanding,” p. 87. A. Upshur, A Brief Enquiry into the True Nature and Character of Our Federal Government (Petersberg, 1840), quoted in Powell, “Original Understanding,” p. 87. Juilliard v. Greenman, 110 U.S. 421 (1884). M. A. DeWolfe Howe, The Life and Letters of George Bancroft, 2 vols. (New York: Charles Scribner’s Sons, 1908), vol. 2, p. 299 (emphasis added). In quoting this letter, Waite’s first biographer, Bruce Trimble, notes, “Bancroft’s assistance to the Court, however was not always of so little avail. See his aid in the [Reynolds] Polygamy Case.” Bruce R. Trimble, Chief Justice Waite: Defender of the Public Interest (Princeton, N.J.: Princeton University Press, 1988), p. 288. In an article on the First Amendment’s religion clauses, Philip Kurland cautions: “Care must be taken that the so-called history is not what historians properly denounce as ‘law office history,’ written in the way brief writers write briefs, by picking and choosing statements and events favorable to the client’s cause.” But, a few pages later, when he sets out the Virginia colonial history that he believes to be relevant to his interpretation of the religion

Introduction

9

of the popular joke in which three professionals are asked by their client: “What is 2 plus 2?” The accountant says, “Four”; the engineer says, “Four point zero”; and the lawyer says, “What do you want it to be?” The point of the joke is that, for clever lawyers, even mathematical certainties can be manipulated in service of the argument that best serves the client’s interest, let alone fuzzier and less determinate things like complex historical events. And the Supreme Court justices, trained as lawyers rather than as historians, may have little choice but to adopt one or another version of law office history for lack of any better information, leading to this blunt appraisal by the chief justice of the West Virginia Court of Appeals: “Lawyers . . . who take seriously recent U.S. Supreme Court historical scholarship as applied to the Constitution also probably believe in the Tooth Fairy and the Easter Bunny.”26 Academic historians may use more moderate language (at least some of the time), but their verdicts are generally similar when historical materials are brought to bear on modern cases and controversies. Historian Jack Rakove, in his testimony before the House Judiciary Committee regarding the history of impeachment, commented: “Many historians are uncomfortable with the cruel and unusual use often made of historical materials in contemporary debate. The nuance, subtlety, and respect for ambiguity that we cherish and relish in our research cannot easily be translated into urgent political discussion.”27 In a similar way, historian Gordon Wood observes

26

27

clauses, he writes: “My estimate, perhaps because it satisfies my desires, is that Madison turned to his own experience in Virginia to guide his efforts, rather than looking to the sister states for enlightenment” (emphasis added). Philip B. Kurland, “The Origins of the Religion Clauses of the Constitution,” William and Mary Law Review 27 (1985–6): 839, 842, 853. Richard Neely, How Courts Govern America (New Haven, Conn.: Yale University Press, 1981), p. 18. Or, as Leonard Levy has written, “Two centuries of Court history should bring us to understand what really is a notorious fact: the Court has flunked history.” Leonard W. Levy, Original Intent and the Framers’ Constitution (New York: Macmillan, 1988), p. 300. See also Eric Foner, “The Supreme Court’s Legal History,” Rutgers Law Journal 23 (1991–2): 243–7. Jack N. Rakove, “Confessions of an Ambivalent Originalist,” New York University Law Review 78 (2003): 1346–56, 1347. Despite his concerns about translating historical research into political discussions, even Rakove has entered the church-state originalism debate, albeit with an article whose title reflects some ambivalence: “Once More into the Breach: Reflection on Jefferson, Madison, and the Religion Problem,” in Diane Ravitch and Joseph Viteritti, eds., Making Good Citizens: Education and Civil Society (New Haven, Conn.: Yale University Press, 2001). Rakove notes, “No discussion of the sticky quandary posed by the double helix of the Religion Clause . . . can long avoid some invocation of the authority of the two Virginians [Madison and Jefferson].” Why, he asks, do these two have such a hold on our formulation of the problem? “First, it might well be true that there really is something to be learned from our political ancestors, not because they were patriarchs or

10

Church, State, and Original Intent

that “[i]t may be a necessary fiction for lawyers and jurists to believe in a ‘correct’ or ‘true’ interpretation of the constitution in order to carry on their business, but we historians have different obligations and aims.”28 Ultimately, lawyer/historian Jonathan Martin summarizes the oblique way in which history and law address the same materials, arguing that “[w]hile historians’ logic of evidence acknowledges complexity, nuance, and contingency, lawyers’ logic of authority prizes determinative evidence – the knockout punch.”29 What is perhaps most interesting about studying the Supreme Court’s treatment of the religion clauses is that at crucial moments – Waite’s opinion in Reynolds, which is essentially the first chance the Court gets to apply the religion clauses, and then again about fifty years later in Everson v. Board of Education, a busing-to-parochial-schools case in which the Court returns to the history of the First Amendment to launch the modern era of church-state jurisprudence – the justices have actually looked past the arguments of the litigants and their lawyers for insights into the origins of the First Amendment. In fact, they have sought out some of the most learned historians of their day, men of letters with no interest in the parties or lawsuits, popular and distinguished historians at the peak of their craft, whose insights would be piped directly into the justices’ opinions, in some

28

29

because their opinions are legally authoritative, but simply because they thought deeply and powerfully about the matter in question. Second, the ongoing debate no longer permits us to pretend that their thoughts do not matter” (pp. 234, 236). Thus he avoids directly taking a position on whether Jefferson and Madison should be the authoritative interpreters of the religion clauses but proceeds from the separate historical observation that they have already been put into that position by courts and commentators. Perhaps more interestingly, his characterization of the “religion clause” (expressed in the singular) as a double helix is a far bolder interpretive statement than the straightforward observation that Madison’s and Jefferson’s fingerprints have been placed on the First Amendment irrespective of whether it was, in fact, their handiwork. Rakove may simply have been reaching for an interesting turn of phrase to express a two-component construct, but in the post–Crick and Watson world, it is hard not to call to mind our most famous double helix. And if DNA should be our guide, Rakove may be telling us that the religion clause contains two components such that the Court, playing the role of DNA replicative machinery, could have fashioned each portion of the clause simply from the template provided by the other. That is an interesting interpretive approach that, unfortunately, Rakove does not amplify. I am grateful to Nils Lonberg for helping me try to unravel the double helix analogy. Quoted in Jonathan D. Martin, “Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts” New York University Law Review 78 (2003): 1518–49, 1526. Ibid., pp. 1525–6. For further discussions on the subject of originalism, see the following symposia: “Originalism, Democracy, and the Constitution – Symposium on Law and Public Policy – 1995,” Harvard Journal of Law and Public Policy 19 (1995–6): 237–532, and “Symposium: Fidelity in Constitutional Theory,” Fordham Law Review 65 (1996–7): 1247– 1818.

Introduction

11

cases via long-standing personal relationships between historian and jurist. In researching his opinion in Reynolds, Chief Justice Waite called upon his former next-door neighbor, George Bancroft, whose advice pointed him to Virginia historians Semple and Howison. Half a century later, in the opinions that defined the modern Court’s approach to establishment clause originalism in Everson, Justice Black virtually copied his major interpretive point from well-known historian Charles Beard, and Justice Rutledge drew his inspiration from the biography of James Madison written by his good friend Irving Brant. It is at the feet of these eminent scholars that we can lay responsibility for many of the knockout punches and the Easter Bunny history that has emerged from these First Amendment opinions. If, as Philip Kurland suggests, law office history is “written the way brief writers write briefs by picking and choosing statements and events favorable to the client’s cause,”30 then it seems that the same approach to one-sided interpretative craftsmanship can also be found among historians themselves. In other words, the opinions in Reynolds and Everson look like one-sided, goal-oriented law office history not just because they depict how lawyers write history but because that is the way the historians themselves were writing. At least at that time, it appears that the modern scholar’s commitment to nuance and subtlety in the study of American history had not yet evolved from an earlier era’s desire for clarity and certainty. In fact, constitutional scholar Ken Kersch has pointed to the influence on modern civil liberties thought of a number of highly regarded historians (often called Whig historians) who “endeavor to cut ‘a clean path through . . . complexity,’ through ‘an over-dramatization of the historical story’ that pits the forces of progress against the forces of reaction.”31 To date, establishment clause jurisprudence clearly owes a considerable debt to Whiggish myth-making by a number of respected historians in the 30 31

Philip B. Kurland, “The Origins of the Religion Clauses,” p. 842. Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, U.K.: Cambridge University Press, 2004), pp. 2, 11, quoting Herbert Butterfield, The Whig Interpretation of History (New York: W. W. Norton, 1965), pp. 5, 29, 34. Examples cited by Kersch include the works of Charles A. Beard and Vernon Parrington. Butterfield writes, for example, that it “is part and parcel of the Whig interpretation of history that it studies the past with reference to the present. . . . Through this system of immediate reference to the present-day, historical personages can easily and irresistibly be classed into the men who furthered progress and the men who tried to hinder it. . . . The total result of this method is to impose a certain form upon the whole historical story . . . which is bound to converge beautifully upon the present – all demonstrating throughout the ages the workings of an obvious principle of progress, of which the Protestants and Whigs have been the perennial allies while Catholics and Tories have perpetually formed obstruction.” Butterfield, Whig Interpretation, pp. 11–12.

12

Church, State, and Original Intent

nineteenth and early twentieth centuries. It remains to be seen whether, in light of the current era’s commitment to academic rigor in the profession of history, we will continue to find evidence of this kind of narrativeas-argument style of Whiggish historical scholarship. But, when Reynolds appeared in the late 1870s, and again in the middle of the twentieth century, when Everson was decided, the distinguished historians consulted by the Court not only believed in an originalist approach to the religion clauses, but they were also not bashful in offering up clear, direct, and decidedly unnuanced historical evidence of an original constitutional intent supporting a strict separation of church and state in the mode promoted by some of the writings of Thomas Jefferson and James Madison. In assessing the Court’s originalist jurisprudence, and in analyzing the historiography surrounding it, we should bear in mind that the Reynolds case had a relatively modest effect (except on the Mormons) because, at the time, the First Amendment applied only to actions of the federal government. Several decades later, when the Everson case extended the establishment clause’s reach to the actions of state and local governments, the opinions in that case would fundamentally change how scholars would read and write about church-state interactions throughout the colonial and early national periods. Pre-Everson, when the First Amendment applied only to the rare interactions between the federal government and religion, the historians whose works later appeared in Supreme Court cases may have had grander interpretive goals than merely recounting the facts for the sake of an accurate chronicle of past events – Bancroft to position his hero, Thomas Jefferson, at the center of the action; Semple to glorify God through His people the Baptists, who had been persecuted at the hands of Virginia’s established church; Howison to celebrate the Old Dominion’s contributions to the new nation; and so on – but none wrote with the primary intention that his description of past events would directly inform the Court’s view of the future of constitutional law.32 Their authorial decisions to include some materials and not others, to identify particular cause-and-effect relationships, and the like, may have been motivated by any number of factors,

32

George Bancroft could be an exception here. He later wrote a two-volume history of the Constitution that he may have hoped would influence Supreme Court decisions. Since we do not know how Chief Justice Waite framed his original question to Bancroft about the religion clauses, it is impossible to tell whether his answer, which focused on Jefferson and Virginia, was motivated by a specific desire to influence the Court to pursue any particular interpretation of church-state issues, especially since the context was a Mormon polygamy case. See George Bancroft, History of the Formation of the Constitution of the United States, 2 vols. (New York: Appleton, 1882).

Introduction

13

but influencing the supreme law of the land was not likely to be a primary goal because, as Powell has shown, at least until later in the nineteenth century, the Court did not spend much time inquiring into the intentions of the Founding Fathers. Post-Everson, a new game is afoot. With the religion clauses applicable, essentially for the first time, to many high-intensity church-state issues (such as state aid to parochial schools), and with all nine Supreme Court justices devoting themselves to an originalist approach to the establishment clause, historians of the relevant times cannot help but write in the hot-house environment of constitutional decision-making. Even scholars who do not write with constitutional interpretation foremost in mind are hard-pressed to avoid it, being invariably confronted with the fact, as described by Jon Butler, that “it is no longer possible for historians . . . to pretend that any judgment about [patterns of American religion in the late eighteenth century] is merely an exercise of abstract scholarship. The questions of the last three decades have inevitably politicized scholarship in this area.”33 Meanwhile, a number of commentators have put abstract scholarship aside to address the church-state constitutional issues directly. In fact, the opportunity to pen what could become the seminal work in First Amendment history that fundamentally alters establishment clause jurisprudence (or, alternatively, protects the Court’s current approach from new challenges) has created a cottage industry populated by prolific originalists. Each hopes to emulate the success of Frank Schechter’s BVD-inspired article, which moved the Court to fashion its trademark analysis in the Victoria’s Secret case. These historians, political scientists, legal scholars, judges, and others have contributed to an impressively large body of literature, offering any number of mutually exclusive apologia for particular approaches to church-state issues, every one apparently mandated by the one true reading of constitutional history. Their books and articles are frequently written in what may be termed the first-person argumentative, as in I-can’t-believe-anyone-could-possibly-seeit-any-other-way, a tone emulated by some of the Supreme Court justices as they pick and choose among the histories and the historians.34

33

34

Jon Butler, “Why Revolutionary America Wasn’t a ‘Christian Nation,’” in James H. Hutson, ed., Religion and the New Republic: Faith in the Founding of America (Lanham, Md.: Rowman & Littlefield, 2000), pp. 188–9. Suzanna Sherry uses this establishment debate as an example illustrating the observation that “careful historical analysis of the same historical evidence may yield opposite conclusions,” thus often making history “indeterminate” for the purposes of constitutional interpretation. Suzanna Sherry, “The Indeterminacy of Historical Evidence,” Harvard Journal of Law and Public Policy 19 (1995–6): 437, 440.

14

Church, State, and Original Intent

The vast majority of these commentators share a fundamental belief in the interpretive principle enunciated in Reynolds and Everson – namely, they are all originalists, at least regarding the establishment clause. They believe that church-state issues can and should be resolved by reading the First Amendment in light of its original meaning. Finding this many originalists in one constitutional place is particularly intriguing in a modern era in which construing the Constitution in accordance with views of the framers – deceased, Caucasian, sometimes slave-holding, frequently wealthy men – is often associated with politically conservative platforms and politicians.35 In church-state cases, the defining originalist approach fits this profile: At the outset, it was inaugurated in Reynolds through the efforts of a President Grant–appointed, Republican railroad lawyer, Morrison Waite, the man who declared that corporations were entitled to constitutional protection as “persons” under the Fourteenth Amendment,36 but then it was fully embraced and amplified in Everson by two New Deal Democrats, Justices Hugo Black and Wiley Rutledge. Ever since these landmark cases, those favoring a strict separation of church and state (including a large number who would consider themselves political liberals) have invoked the framers as frequently as those who favor a more accommodating relationship between religion and government (including many political conservatives).37 35

36 37

See, e.g., Judge Robert Bork, who has written, “For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate.” Robert H. Bork, “Slouching Towards Miers,” Wall Street Journal (October 19, 2005), p. A12. Constitutional scholar Keith Whittington has pointed out that originalism has typically been associated with judicial restraint and the “contemporary conservative political views of the New Right,” but he has argued that it is possible to base “originalist theory on more defensible justificatory arguments”; as a result, “originalism can neither be advanced nor defeated with simple arguments for or against judicial passivism or political conservatism but must be debated on its own terms.” Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University of Kansas Press, 1999), p. 167. Justice John Paul Stevens, generally seen as the leader of the Supreme Court’s liberal wing as of this writing, includes originalism in his interpretive toolkit: “Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that’s the Bible and nothing else counts seems to me quite wrong.” Quoted in Jeffrey Rosen, “The Dissenter,” New York Times Magazine (September 23, 2007), p. 79. For an argument against originalism, as well as various other “grand unified theories” of constitutional interpretation, see Daniel A. Farber and Suzanna Sherry, Desperately Seeking Certainty: The Misguided Quest for Constitutional Foundations (Chicago, Ill.: University of Chicago Press, 2002). For a recent celebration of originalism, see Steven G. Calabresi, ed., Originalism: A Quarter-Century of Debate (Washington, D.C.: Regnery Publishing, 2007). Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886). Referring to the “striking consensus” over the “view that interpretation [of the religion clauses] should be guided by the intentions of the Framers and Ratifiers,” Robert P.

Introduction

15

Despite widespread commitment to originalism as the proper interpretative method, the establishment clause debates in the modern era have been heated, and they most frequently boil down to just one underlying substantive issue: Does the First Amendment permit nonpreferential aid to religion – that is, support available to all churches or religions equally – or does it require a “strict separation” of church and state that would forbid essentially any governmental encouragement or funding of religion? The two camps, typically referred to as the “nonpreferentialists” (or accommodationists) versus the “strict separationists,” join the battle in Supreme Court briefs, scholarly publications, and public relations campaigns, and the language is unrestrained. Princeton professor Edward Corwin accused the Court of making up its strict separationist version of establishment clause history,38 and Brooklyn College professor James M. O’Neill, leaping into the post-Everson fray with what has been called the “leading manifesto for the nonpreferentialist position,”39 was “shocked” by the “misunderstanding and confusion in regard to the Bill of Rights” in Everson; he called Justice Rutledge’s strict separationist opinion in Everson “the greatest threat to our civil liberties in recent times.”40 O’Neill’s manifesto prompted a vigorous defense of the Court by the prolific scholar and attorney Leo Pfeffer, who declaimed that “[a]cceptance of the O’Neill [nonpreferentialist] thesis would pervert the First Amendment.”41 Each succeeding generation has inspired yet another matched set of scholarly screeds and diatribes. In the 1980s, when Northeastern University political scientist Robert Cord published a nonpreferentialist book detailing Pfeffer’s “error[s],” Pulitzer Prize–winning Claremont historian Leonard Levy responded with a sharply worded volume condemning Cord’s work as “[m]ostly historical fiction masquerading

38

39

40 41

George notes that “even people . . . who reject originalist readings of, for example, the First Amendment’s free speech provision, or the . . . Fourteenth Amendment’s guarantees of due process and equal protection, tend nevertheless to embrace originalism when it comes to the religion clauses.” Robert P. George, “Protecting Religious Liberty in the Next Millennium: Should We Amend the Religion Clauses of the Constitution?” Loyola Los Angeles Law Review 32 (1998–9): 27, 27–8. Edward S. Corwin, A Constitution of Powers in a Secular State (Charlottesville, Va.: Michie, 1951), p. 116. Daniel Dreisbach, “Everson and the Command of History: The Supreme Court Lessons of History, and Church-State Debate in America,” in Jo Renee Formicola and Herbert Morken, eds., Everson Revisited: Religion, Education and Law at the Crossroads (Lanham, Md.: Rowman & Littlefield, 1997), pp. 34–5; James M. O’Neill, Religion and Education under the Constitution (New York: Harper & Brothers, 1949). O’Neill, Religion and Education, pp. xi–xii. Leo Pfeffer, “Church and State: Something Less Than Separation,” University of Chicago Law Review 19 (Autumn 1951): 28.

16

Church, State, and Original Intent

as scholarship.”42 Then, in 1998, James Hutson, Chief of the Library of Congress’s Manuscript Division, published his analysis of the political intent behind Thomas Jefferson’s “wall of separation” letter, which emerged from the ability to use the FBI’s state-of-the-art laboratory tools to identify words in earlier drafts of the letter that had been crossed out by Jefferson.43 Worried that nonpreferentialists would seize the scholarly moment to proclaim that the newfound evidence of Jefferson’s political motivation meant that the Court’s traditional reading of the letter as a statement of church-state principle was just a myth, twenty-four scholars, led by University of Virginia law professor Robert M. O’Neill and University of Richmond humanities professor Robert S. Alley, issued a public letter vigorously attacking Hutson’s paper as “an unbalanced treatment [based on] questionable analysis [depending on] a flawed premise.”44 The stakes in this debate are high, from tactical victories in the modern culture wars to the flow (or not) of millions of dollars in aid to “faithbased initiatives,” which could include parochial schools as well as churchrun soup kitchens and daycare centers. The debaters often show little, if any, respect for their opponents’ arguments. Law professor Douglas Laycock defends calling nonpreferentialist arguments “false” or “frivolous” because “[s]cholars should not feel constrained to publish only turgid prose in obscure journals. They should not leave the public debate to those who feel no scruples whatever to conform their claims to the evidence.”45 In response, Roman Catholic bishop and historian Thomas Curry, in more restrained but equally pointed prose, counters that Laycock’s certainty that the framers meant to forbid nonpreferential establishments can “only be maintained by projecting a modern concept of non-preferential establishment into the past . . . and ignoring the overwhelming body of historical evidence to the contrary.”46

42

43

44

45

46

Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982), and Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), p. 221. See James H. Hutson, “Thomas Jefferson’s Letter to the Danbury Baptists: A Controversy Rejoined,” William and Mary Quarterly, third series, 56, no. 4 (October 1999): 775–90. The scholars’ letter, which was released by Americans United for the Separation of Church and State, is available at www.atheists.org/flash.line/jeff2.htm. See also “Jefferson’s ChurchState Views Debated: Thomas Jefferson, Library of Congress Exhibit Controversy,” The Christian Century (August 26, 1998). Douglas Laycock, “The Origins of the Religion Clauses of the Constitution: ‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William and Mary Law Review 27 (Summer 1986): 875, 877, 994. Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (New York: Oxford University Press, 2001), p. 119, n. 23.

Introduction

17

The post-Everson church-state literature thus appears as a study in essentially Newtonian argumentation: For every strict separationist action, there is an equal and opposite nonpreferentialist reaction. Throughout these heated debates, and despite blunt aspersions such as false, frivolous, and fiction, the underlying facts are rarely, if ever, in dispute. No one doubts Madison’s authorship of the anonymously circulated Memorial and Remonstrance, all acknowledge Madison’s role in introducing drafts of the religion clauses in the First Congress, everyone cites the same account of the congressional debates, and so on. The differences center on which facts should be embraced as indicative of the framers’ true intentions – or perhaps the text’s original meaning – and which must be discarded as irrelevant, unimportant, or merely idiosyncratic. Do we focus on the national days of prayer declared by Madison when he was President or on his retirement writings opposing the practice? Is our Jeffersonian muse the “wall of separation” letter or the treaty funding Christian missions to Native Americans? Despite the name calling by both camps, church-state disputants do not necessarily differ as to which framers’ vision should inform our interpretation of the establishment clause, but, rather, they seek to invoke different words or deeds of the same Founding Fathers – most commonly Jefferson and Madison – to figure out what those particular framers really meant. In the meantime, others have parsed the precise language (“an” establishment versus “the” establishment, for example), or have taken on the philological task of determining what words such as “establishment” meant at the end of the eighteenth century. It is quite rare in this debate for anyone to make the argument that a fact cited by an opponent is “false” in the sense that a claimed event did not occur or that a logical or mathematical certainty prevents reaching a particular conclusion. No matter how much the client wants two plus two to equal something other than four, “law office math” is not open to interpretation. In church-state debates, however “fiction” and “false” are more broadly used to refer to an interpretation of the (generally undisputed) facts that is not as well supported by all of the available facts as the opposing argument. In trying to avoid the “turgid prose” endemic to scholarship, writers on all sides of this debate tend to encourage their readers to see this controversy as resolvable by a dedicated and objective review of the facts (“true facts” versus “false facts,” as it were) rather than what it is, which is a bitter dispute over which of the largely undisputed facts are the most important ones for interpreting the establishment clause.47 47

In the postmodern academic world, one could ask whether there is such thing as a false interpretation, or even better and worse interpretations. In light of the need for courts to

18

Church, State, and Original Intent

Cutting across the strict separationist/nonpreferentialist debate is yet another school of thought, a group of scholars whose focus on the language that Congress is forbidden from making laws “respecting” – that is, on the subject of – “an establishment of religion” leads them to conclude that this provision merely resolves a jurisdictional issue. That is, the clause was enacted to prevent any federal interference with the states’ power to establish religions if they chose to do so. In its most enthusiastic form, this school of thought would permit both the states and the federal government, even today, to maintain formally established churches. However they emerge on their ultimate interpretation of the establishment clause, and whatever facts they marshal in support of those interpretations, these scholars and jurists are originalists, one and all. They believe that history can and should provide a clear church-state constitutional mandate.48 Meanwhile, there are a few iconoclastic commentators who suggest either that the breathtakingly sparse evidence of the framers’ intentions offers little or no helpful guidance at all49 or that, at the very least, we should recognize, as John F. Wilson has pointed out, that the sharply bifurcated strict separationist/nonpreferentialist interpretations of the framers’ views may be less an accurate description of eighteenth-century debates than “modern positions . . . worked out in the last half-century or so.”50 My goal in this contentious environment is two-fold. First, before delving directly into this historical quagmire, I want to advance our understanding of how the Supreme Court came to adopt what has become its dominant historical approach to church-state questions. Irrespective of whether the Court is right or wrong, the question is: What inspired the Court’s devotion

48

49

50

determine the outcome of constitutional cases, this work will proceed on the assumption that if the court selects originalism as a valid interpretive methodology, that court will also believe that there are, in fact, better and worse originalist arguments based on the persuasiveness of the evidence cited and the arguments offered for consideration. Or, if they are not really committed originalists, they are willing to be originalists-pro-tem in the hopes of influencing the Supreme Court in establishment clause cases. See, e.g., Wood, “American Religion.” “We do not, and cannot, base American constitutional jurisprudence on the historical reality of the Founding. Our constitutional jurisprudence accepts a fiction involving the Founders’ intent – it may have become a necessary legal fiction as the country’s laws have taken shape but it is a fiction nonetheless” (p. 63). See also Steven G. Gey, “More or Less Bunk: The Establishment Clause Answers That History Doesn’t Provide,” 2004 Brigham Young University Law Review (2004): 1617, and Steven K. Green, “‘Bad History’: The Lure of History in Establishment Clause Adjudication,” Notre Dame Law Review 81 (2005–6): 1717. John F. Wilson, “Religion, Government, and Power in the New American Nation,” in Mark A. Noll, ed., Religion and American Politics: From the Colonial Period to the 1980s (New York: Oxford University Press, 1990), p. 77. See also Vincent Phillip Munoz, “Religious ˜ Liberty and the American Founding,” Intercollegiate Review 38, no. 2 (Spring–Summer 2003): 33–43.

Introduction

19

to the intentionalist version of establishment clause originalism and how did the Court settle on the now familiar history, or what we might call the classical mythology, of the First Amendment religion clauses? Then I will take on a second, considerably more challenging task: To determine which – if any – of the competing mythologies and methodologies best represents the original meaning of the clause. That is to say, my goal is not to defend (or attack) originalism but to take that exegetical method as a given.51 If we are to be establishment clause originalists, as so many commentators seem to be, what is the most consistent and supportable approach to originalism based on the many interpretations that have been advanced since 1789? Since it appears that the various groups of originalists do not necessarily agree with each other as to where to look for evidence of the Constitution’s original meaning, for the purposes of this exercise in establishment clause originalism, I use the term “originalism” to refer broadly to an attempt to determine how the establishment clause may have been understood – by any and all – around the time that it was adopted and ratified;52 this analysis will be based on a range of possible evidence, including framers’ and ratifiers’ statements or acts that might shed light either on their intentions or on what they saw as the clause’s purpose or expected meaning, as well as materials that bear on how other Americans at the time might have understood the text.53 Once that analysis is complete, we can decide whether we need to return to the methodological issue of the relative importance for constitutional interpretation of, for example, the views of specific framers versus other evidence concerning the clause’s contemporary meaning.54 51

52

53

54

For a summary of the reasons why the use of history to interpret the religion clauses may have significant shortcomings, see, e.g., Jesse H. Choper, Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses (Chicago, Ill.: University of Chicago Press, 1994), pp. 1–6, and Green, “Bad History.” Since the Supreme Court has decided that the Fourteenth Amendment has caused the establishment clause to apply to the states as well as to Congress, the relevant times for originalist analysis may therefore include the eras of the adoption of both the First Amendment and the Fourteenth Amendment. Powell has set out fourteen rules for “using history responsibly.” H. Jefferson Powell, “Rules for Originalists,” Virginia Law Review 73 (1987): 659, 662. While I have not specifically set out to follow them rule by rule, I have, by the same token, tried to avoid breaking too many of them. As we will see in the chapters that follow, we will need to confront an interesting methodological issue that arises when a “hypothetical inquiry that asks how a fully informed public audience, knowing all there is to know about the Constitution and the surrounding world,” in Lawson’s words, comes up with a possible reading of the text that does not appear to have corroborative evidence of actual use from the records of the time. Lawson, “Delegation and Original Meaning,” p. 398. That is, what do we do when the evidence of an actual public meaning conflicts with an equally reasonable but largely (or entirely) hypothetical original meaning?

20

Church, State, and Original Intent

In the end, it may well be the case that our establishment clause jurisprudence – and much of the commentary surrounding it – misses the historical mark. That is not to say that our quest for the historical establishment clause is necessarily doomed from the start, only that if we focus clearly on both what was and what was not going on at the time the First Amendment was adopted, we may find that modern desires to find useful answers to specific questions have led us to imagine an eighteenth-century debate between competing constitutional creation myths that simply did not take place. We can, in fact, determine with some clarity what the establishment clause meant to the framers, the ratifiers, and the general public, at least in the Founding Era, and if we set aside the strict separationist/nonpreferentialist debate to which we have become so accustomed, it becomes far more visible. But first we need to see how the Supreme Court ended up in the middle of this historical quest.

2 Reynolds The Historical Construction of Constitutional Reality

In the Supreme Court’s first case interpreting the Constitution’s free exercise of religion clause, Chief Justice Morrison Waite endowed the next two centuries of church-state jurisprudence with a generous legacy of constitutional history. In that 1879 case, Reynolds v. United States, the chief justice called upon the Founding Fathers to decide whether polygamous Mormons in the Territory of Utah were immunized by their faith from prosecution under a federal statute outlawing bigamy.1 The Court’s ruling offered Mr. Reynolds, a minor Mormon official, no hope of sanctuary within the First Amendment. More important than this specific decision, however, was the historical approach to interpreting the religion clauses adopted by the chief justice, which has had the effect of essentially writing Thomas Jefferson and James Madison directly into the First Amendment. Not just any aspects of these two influential framers were incorporated into constitutional doctrine, but their writings that have come to stand for the principle of a strict separation of church and state: two documents from colonial Virginia – Madison’s Memorial and Remonstrance against Religious Assessments and Jefferson’s Bill for Establishing Religious Freedom – together with Jefferson’s now-famous letter to a group of Danbury, Connecticut, Baptists, declaring that the First Amendment erected a “wall of separation between church and state.”2 The opinion’s expansive language about “the true distinction between what properly belongs to the church and what to the State,” and its striking

1 2

Reynolds v. United States, 98 U.S. 145 (1879). A search of Supreme Court cases on Findlaw.com identifies more than 25 cases mentioning Madison’s Memorial and more than 20 cases employing Jefferson’s “wall of separation” language.

21

22

Church, State, and Original Intent

assertion that Jefferson’s 1802 letter to the Danbury Baptists represents almost “an authoritative declaration of the scope and effect” of the First Amendment, have created an enduring historical heritage not so much for the free exercise clause but for the First Amendment’s non-establishment provision.3 While the establishment clause itself does not make its Supreme Court debut for another fifty years or so, the legacy of Reynolds is the extent to which it has cast a strict separationist hue on the First Amendment in a manner that has colored church-state constitutional analysis ever since, much to the consternation of those who would prefer an interpretation allowing the government to provide at least nondenominational support for religion. This group, generally called nonpreferentialists or accommodationists, has engaged the historical debate, often arguing that the historical premise in Reynolds was correct – that is, that Jefferson and Madison can tell us what the religion clauses mean – but asserting that a focus solely on the specific documents unearthed by Chief Justice Waite tells only part of the story, since even those framers had a record of approving some state support for religion. Some have even argued that the concept of Madisonian authorship of the religion clauses is wrong-headed and that other members of the First Congress deserve the credit. The chief justice’s opinion raises an interesting question: In an era during which the Supreme Court rarely consulted the Founding Fathers on constitutional issues, where did Chief Justice Waite find the historical sources that led him to such interesting and, ultimately, influential writings? The answer is, briefly: He consulted his neighbor, who coincidentally was probably the greatest American historian of the nineteenth century, George Bancroft. Once directed to Virginia by Dr. Bancroft,4 the chief justice came under the direct influence of two native Virginian historians, Robert B. Semple and Robert R. Howison. These historians shared the view that the Old Dominion was indeed the font of American freedoms. They also happened to be Baptist and Presbyterian ministers whose ardent opposition to ecclesiastical 3

4

The first modern establishment clause case, Everson v. Board of Education (330 U.S. 1 (1947), reh. denied, 330 U.S. 855 (1947)), reaffirmed the statements in Reynolds that the “provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and intended to provide the same protection against governmental intrusion on religious liberty as the Virginia [Bill of Religious Liberty]” (330 U.S. at 15–16). See Chapter 3 below. For a detailed review of the Waite-Bancroft communications concerning the Reynolds case, see C. Peter Magrath, “Chief Justice Waite and the Twin Relic: Reynolds v. United States,” Vanderbilt Law Review 18 (1965): 526–7. Bancroft’s advice to Waite came on December 2, 1878. Ibid., 526, citing “Bancroft to Waite, Dec. 2, 1878” from Waite’s papers, which are available in the Library of Congress Manuscript Division (“Waite Papers”).

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establishments was inspired by the dissenting churches’ persecution at the hands of a legally established church, the “Nebuchadnezzars of the age.”5 And so, to the extent that the history of the First Amendment espoused by the chief justice in Reynolds is responsible for grafting Jefferson’s metaphor of a “wall of separation between church and state” onto the terse language of the establishment clause, the historiographical foundation of that wall can be found in Howison’s two-volume History of Virginia from Its Discovery and Settlement by Europeans to the Present Time, published in 1848, and Semple’s A History of the Rise and Progress of the Baptists in Virginia, which first appeared in 1810.6 Ever since Reynolds, a detailed discussion of constitutional history has frequently been a hallmark of church-state cases, leading advocates on all sides to cite those framers who appear to support their views and to criticize their opponents for misreading or misrepresenting the legislative history. Despite much of this modern commentary decrying the misuse of the historical record, however, what we are witnessing in Reynolds is not really “law office history,” in the classic sense of a litigant (or judge) sifting through 5

6

Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia (Richmond, Va.: published by the author, 1810), p. 11. Robert R. Howison, History of Virginia from Its Discovery and Settlement by Europeans to the Present Time, 2 vols. (Richmond, Va.: Drinker and Morris, 1848) (all references herein are to the second volume); Robert B. Semple, A History of the Rise and Progress of the Baptists in Virginia. Despite their importance to Chief Justice Waite’s opinion in the Reynolds case, the works by Howison and Semple have been thoroughly supplanted by more recent histories as secondary sources detailing patterns of church-state interactions in eighteenthcentury Virginia. The best evidence for this observation is found in the two-volume bibliography, Church and State in America, edited by John F. Wilson and published in 1986: In a comprehensive collection of many thousands of books and articles, Howison is completely absent and Semple rates only a brief appearance as one of hundreds of sources listed (but not discussed) under the general rubric of “Church-State Relations in the Colonial South.” John F. Wilson, ed., Church and State in America: A Bibliographical Guide: The Colonial and Early National Periods (New York: Greenwood Press, 1986). This same pattern – one mention of Semple (in this case, on the subject of Patrick Henry rather than Madison or Jefferson) and none of Howison – can be seen in the earlier three-volume Church and State in the United States by Anson Phelps Stokes (New York: Harper & Brothers, 1950). There is no sign of either Howison or Semple in James E. Wood’s quite recent Church and State in the Modern World: A Critical Assessment and Annotated Bibliography (Westport, Conn.: Praeger Publishers, 2005); or in Albert Menendez’s Church-State Relations: An Annotated Bibliography (New York: Garland Publishing, 1976). Howison is essentially invisible in bibliographies of the church-state literature; in fact, despite being called a rather colorful “controversialist” by a contemporary, he was overlooked as early as 1918, according to the William and Mary Quarterly, which noted, “There is little mention of Robert Reid Howison (a considerable historian of Virginia), in the biographical dictionaries.” A. J. Morison, “Dr. Howison’s Autobiography,” William and Mary Quarterly 26, no. 4 (April 1918): 219.

24

Church, State, and Original Intent

eighteenth-century documents to find historical nuggets in support of a favored outcome in a pending case. Justice Waite was not searching for any particular position along the strict separationist-nonpreferentialist axis, and none was needed to decide how to apply the free exercise clause to the case of a Mormon polygamist. Instead of law office history, what we see in Reynolds might better be termed the historical construction of constitutional reality. That is, Justice Waite offered a good faith, but probably flawed (or at least oversimplified), rendition of the amendment’s origins, and then the history he found became the relevant constitutional background for future cases not because it was an accurate picture of the establishment clause’s original meaning, but because subsequent Supreme Court decisions said that it was. It was only later, in the wake of the Supreme Court’s decisions applying the First Amendment to school prayer and other state and local actions, that litigants, judges, and even historians began to excavate the Jeffersonian-Madisonian landscape to unearth constitutional artifacts that might support their most desired results in hotly contested cases about public aid to religion. The Background Sarah Barringer Gordon tells the story of the Reynolds case7 within the broader context of a volatile time in mid-nineteenth-century America when Mormon polygamy and slavery were often linked in the mind of the public as the “twin relics of barbarism.”8 The Book of Mormon was first published in 1830, and Mormonism flourished in the religious hothouse environment of the Second Great Awakening, an effervescent era of evangelism that swelled the tents of revivalists in the expanding American nation from the late eighteenth century through the early nineteenth. Mark Holloway, who has studied a picturesque range of utopian communities, from Mother Ann Lee and the celibate Shakers to John Humphrey Noyes’s sexually adventuresome Oneida Community, portrays the Mormons in their communitarian

7

8

Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (Chapel Hill and London: University of North Carolina Press, 2002). The Republican platform in 1856 stated that “it is both the right and the operative duty of congress to prohibit in the territories those twin relics of barbarism – polygamy and slavery.” Kirk H. Porter and Donald B. Johnson, eds., National Party Platforms 1840–1960 (Champaign, Ill.: University of Illinois Press, 1966), p. 27, quoted in Magrath, “Chief Justice Waite,” pp. 507–43.

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context as the “rowdy children” of revivalism.9 Unconventional domestic arrangements were hardly unknown during this time of ferment, and polygamous marriages were not exclusively the province of Mormons.10 Mormon polygamy was probably practiced from its early days, although it did not appear in Mormon doctrine for over a decade, and then only in secret. Gordon observes that “[r]umors . . . and evidence of experimentation disclosed by subsequent research, date the practice considerably earlier than 1843,” when Mormon founder Joseph Smith entered into a second marriage. These nuptials created manifest unhappiness in the family – they were opposed by his first wife and denied by his children. Undaunted, Smith then published the Ur-document of Mormon polygamy, the “Revelation on Celestial Marriage,” which was kept confidential by Smith for the remainder of his short life and then by his most trusted church leaders (and, of course, their multiple wives) for nearly ten years; during that time, rumors of polygamy were routinely denied by the Mormon leadership.11 As Mormonism grew rapidly under Smith’s charismatic leadership, the Mormons established communities of saints in the Midwest, where they routinely engendered controversy and violence. Numerous factors contributed to the anti-Mormon hostilities, one of which was that they were not 9

10

11

Mark Holloway, Heavens on Earth: Utopian Communities in America 1680–1880, 2nd ed. (New York: Dover, 1966), p. 216. For another work locating Mormonism within the religious ferment of the times, see Whitney R. Cross, The Burned-Over District: The Social and Intellectual History of Enthusiastic Religion in Western New York, 1800–1850 (Ithaca, N.Y.: Cornell University Pres, 1950). Historian Sydney Ahlstrom notes Joseph Smith’s remarkable success within the broader context of the Great Awakening: “While still in his twenties Smith would found a church which has outlasted or outdistanced every other sect and communitarian movement brought into being in America.” Sydney E. Ahlstrom, A Religious History of the American People (New Haven, Conn: Yale University Press, 1972), pp. 501–2. See also Terryl L. Givens, By the Hand of Mormon: The American Scripture That Launched a New World Religion (New York: Oxford University Press, 2003). As Holloway notes, “Mormon polygamy was part of the general attack that was everywhere being made upon the institution of monogamy. Celibacy among the Shakers and Rappites, and the system of complex marriages . . . at Oneida, are other examples of this attack.” Holloway, Heavens on Earth, 118. See also Lawrence Foster, Religion and Sexuality: Three American Communal Experiments of the Nineteenth Century (New York: Oxford University Press, 1981); Hendrik Hartog, Man and Wife in America, a History (Cambridge, Mass: Harvard University Press, 2000); and Carol Weisbrod and Pamela Shiengorn, “Reynolds v. United States: Nineteenth-Century Forms of Marriage and the Status of Women,” Connecticut Law Review 10 (1977–8): 828. The general attack on monogamy is not just a relic of the nineteenth century. See the cases discussed in Leonard Post, “Lawyers Square Off over Polygamy Case,” National Law Journal (January 20, 2004), p. 4, including Potter v. Murray City, 760 F. 2d 1065 (10th Cir., 1985), involving a polygamous police officer. Gordon, Mormon Question, pp. 22–3.

26

Church, State, and Original Intent

always good neighbors. Their “bloc voting, forming a private militia, and dealing exclusively with approved merchants . . . combined with rumors of sexual irregularities . . . made Mormon settlements unpopular with nearby residents.”12 Ultimately, in 1844, Smith, while technically under the protection of government authorities, fell victim to mob violence in Illinois, the state where, several years earlier, the governor had declared that the Mormons needed to be “exterminated, or driven from the State if necessary for the public peace.”13 (Illinois issued an apology 160 years later, opening up the possibility of “some kind of cultural exchange” between Illinois and Utah, according to an Illinois state legislator.14 ) Following the violence in Illinois, Brigham Young led the Mormon faithful westward to Utah, which belonged to Mexico at the time but subsequently became a territory of the United States. It was a long, bleak, and dangerous trek for the Mormons, but Utah ultimately provided an attractive home that offered a considerable degree of separation from their enemies. The Mormons prospered in the Great Salt Lake Basin, growing to a total of 60,000 members by 1850.15 With a strong local political majority and the comfort provided by a great physical distance from the Mormon’s detractors, polygamy came out of the closet. In 1852, the church acknowledged the practice of polygamy, and Smith’s celestial marriage revelation was finally made public. Throughout the 1850s, Brigham Young frequently extolled the virtues of polygamy in sermons that became widely available in the East, leading to increasing levels of public concern about the flouting of traditional Christian marriage practices and the manifold deprivations suffered by Mormon wives, who were portrayed by polygamy’s many detractors as little more than chattel owned by their domineering patriarchal husbands.16 Polygamy became closely linked in the public eye with slavery, but, unlike slavery, there was little support for the Mormon cause in the halls of power. In the early 1860s, Congress passed the Morrill Act for the Suppression of Polygamy, which went well beyond simply banning multiple spouses. 12

13 14

15

16

Ibid., p. 25. See generally, Kenneth H. Winn, Exiles in a Land of Liberty: Mormons in America, 1830–1846 (Chapel Hill: University of North Carolina Press, 1990). Gordon, Mormon Question, p. 107. Sarah Burnett, “Delegation to Deliver State’s ‘Official Regret’ to Mormon Church in Utah,” Chicago Daily Herald (April 11, 2004). See Jan Shipps, Mormonism: The Story of a New Religious Tradition (Urbana: University of Illinois Press, 1985), p. 107. For a discussion of how Mormons were described as violent and villainous in nineteenthcentury popular fiction, see Terryl L. Givens, The Viper on the Hearth: Mormons, Myths, and the Construction of Heresy (New York: Oxford University Press, 1997).

The Historical Construction of Constitutional Reality

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The Morrill Act not only outlawed plural marriages in the territories, it also sought essentially to divest the Mormon Church of its economic power.17 In particular, the act “annulled the Utah territorial legislature’s incorporation of the Church of Jesus Christ of Latter-day Saints; and prohibited any religious organization from owning real estate valued at more than $50,000.”18 Despite these aggressive provisions, the act was declared a “dead letter” by a congressional committee five years later because it could not be enforced effectively at the Mormon-dominated local level.19 Once the Civil War had dispatched the question of slavery, however, attention was focused again on the remaining relic of barbarism, and the anti-polygamy fires were stoked by what Gordon calls “one of the most spectacularly successful lecture tours of the nineteenth century” – the riveting presentations by “The Rebel of the Harem,” Ann Eliza Young, formerly one of the wives of Brigham Young, who spoke to all who would listen of the Mormon leader’s marriages as involving “a systematic torture of women, driven by jealousies, violence, and deception.”20 Her stirring account of the burdens of being a plural wife was published in 1876 as Wife No. 19.21 In the year after she began her tour, 1874, the federal Poland Act was adopted, and this law cleverly provided the prosecutorial mechanisms that were missing from the somnolent Morrill Act. The Poland Act allowed the U.S. Marshal in Utah to select jury pools that would not necessarily bow to the pressure of the Mormon Church, assigned jurisdiction of polygamy trials to federal territorial courts and provided for polygamy convictions to be appealable to the United States Supreme Court.22 Not long after Congress passed the Poland Act, several Mormon leaders were arrested by a federal prosecutor. They decided that a test case was necessary, preferably one involving someone with a relatively low profile in the community, a defendant who might present a more sympathetic image than 17 18

19

20 21

22

12 Stat. 501–2 (1862). See Gordon, Mormon Question, p. 81. Later in the century, the Supreme Court upheld legislation revoking the charter of the Mormon Church and seizing its property. Mormon Church v. United States, 136 U.S. 1 (1890). The property was returned by Congress several years later. See John Witte, Jr., Religion and the American Constitutional Experiment: Essential Rights and Liberties (Boulder, Colo.: Westview Press, 2000), p. 104. Gordon, Mormon Question, p. 83, quoting the Report from the Committee on the Judiciary, February 28, 1867, responding to the “Memorial of the Legislative Assembly of the Territory of Utah, Praying for the Repeal of [the 1862 Act],” p. 3. Gordon, Mormon Question, p. 112. Magrath, “Chief Justice Waite,” p. 516. The full title was Wife No. 19; Or The Story of a Life in Bondage, Being a Complete Expos´e of Mormonism, and Revealing the Sorrows, Sacrifices and Suffering of Women in Polygamy, by Brigham Young’s Apostate Wife (Chicago, 1876). 18 Stat. 669–71. See also Gordon, Mormon Question, p. 113.

Church, State, and Original Intent

28

one of the Church’s elder statesmen with a bevy of young wives. And so, on October 16, 1874, thirty-two-year-old George Reynolds wrote in his diary that “it had been decided to bring a test case of the law of 1862 . . . before the court and . . . to present my name before the grand jury.”23 Reynolds, the private secretary to a series of Mormon presidents and a polygamist for a grand total of two months at that time, did what he was asked. He was indicted by a grand jury for bigamy on the grounds that in 1865 he had married Mary Ann Tuddenham and then, in August of 1874, “did unlawfully marry and take to wife one Amelia Jane Schofield.”24 At trial, a parade of remarkably forgetful Mormon witnesses, on being quizzed about Reynolds’s alleged multiple marriages, displayed a level of collective amnesia that we have come to associate with events like the Watergate hearings, and denied any knowledge of the two marriages. He was nevertheless convicted on the testimony of his second wife, Amelia Jane Reynolds (ne´e Schofield), who had apparently not been expected to be called as a witness; not knowing to follow the party line, she proceeded blithely to recall that she had, in fact, married George Reynolds on “the third day of August, 1874 . . . [i]n the Endowment House” in Salt Lake City.25 Reynolds’s conviction was reversed on appeal on procedural grounds, and he was tried again. At the new trial, Reynolds’s second wife could not be found to give testimony, so her statements in the first trial were read into the record, and Reynolds was convicted again. With this background, his case reached the Supreme Court late in 1878. The Case The Reynolds case would take the Court into uncharted constitutional waters. Thirty years before, in the one early-nineteenth-century case in which the First Amendment’s free exercise clause had been invoked, the Court made it clear that the states were not subject to the mandates of the First Amendment. This case, Permoli v. New Orleans, involved an ordinance stating that “it shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse, under the penalty of a fine of fifty dollars.” The Supreme Court dismissed a challenge to the ordinance on First Amendment grounds, decreeing that “[t]he Constitution

23 24

25

Quoted in Gordon, Morman Question, p. 114. The indictment is reprinted in full in the brief of the United States, Appendix, p. 4, in Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States (University Publications of America, 1975), vol. 8, p. 4. Quoted in Reynolds brief, in ibid., p. 43.

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29

makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.”26 Nineteenth-century Americans could therefore seek no recourse from the state or federal courts via appeals to the First Amendment for protection from laws promulgated by the states. In Mr. Reynolds’s case, the situation was quite different. Utah was not a state at that time, and, in fact, Brigham Young had unsuccessfully petitioned for the Mormon homeland to become the state of Deseret. Utah was instead a territory of the United States, and subject to federal jurisdiction, thus putting Congress in the position usually occupied by state governments: It could freely legislate on marriage and other matters traditionally left to the states, as it did in the Morrill Act. But, at the same time, such legislation would need to conform to the mandates of the Constitution’s limitations on federal power, thus potentially bringing to bear upon any convictions under the Morrill Act the untested provisions of the First Amendment’s religion clauses. The author of the Morrill Act was not blind to the possibility of such a constitutional challenge to his anti-polygamy legislation. In a speech in the House of Representatives in 1857, Congressman Justin S. Morrill of Vermont observed, “[W]e are told, because our constitution declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ that we must tamely submit to ‘artful’ claims that outrageous practices (i.e., polygamy) are protected by the religion clauses of the First Amendment.”27 But he was certain that the First Amendment could mean no such thing. The “artful” constitutional claims arguably protecting religious polygamists from prosecution did not deter Congress from passing the Morrill Act, and the question in George Reynolds’s case was whether the Supreme Court might form a different opinion of the reach of the First Amendment. And, indeed, the Court took up that very issue, even though it does not appear to have been raised as a major point by Reynolds’s counsel, the prominent Philadelphia lawyer George Biddle, who focused instead on procedural issues and the argument that it is an “excess of power exercised when the Federal government . . . interferes by positive enactment with the social 26

27

Permoli v. Municipality No. 1, New Orleans, 44 U.S. 589 (1845). This case follows Barron v. Baltimore, 32 U.S. 243 (1833), in which Chief Justice Marshall held, “the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.” 32 U.S. at 250–51. Quoted in Gordon, Mormon Question, p. 80.

30

Church, State, and Original Intent

and domestic life of its inhabitants.”28 Of the sixty-three-page brief, only about five pages related to matters of religion, and the First Amendment was not mentioned at all. The religion defense seemed instead to be focused on the concept that Reynolds’s religious beliefs in polygamy vitiated the argument that he had the necessary criminal intent to be convicted. The brief argued in particular that the trial court had “erred . . . in refusing to instruct the jury that if they found that the defendant was married in pursuance of and conformity with what was believed at the time to be religious duty, their verdict should be ‘not guilty.’”29 Here, Reynolds’s attorneys relied on an 1868 English case, Regina v. Wagstaff, in which the court held, according to the brief, that “in the case of one who belonged to a religious community which thought it a violation of God’s commandments to administer temporal aid or remedies to the sick, that there could be no conviction of the crime of manslaughter by reason of neglect to provide medicine and suitable care for a sick child.”30 While Biddle failed to press the constitutional point in Reynolds’s favor in the written briefs, the issue was raised in oral argument by Reynolds’s lawyer, Ben Sheeks of Utah. According to the New York Times report of the proceeding, It was contended by the counsel for the prisoner that polygamy is enjoined as a religious duty, and held as an article of faith by the sect to which Reynolds belongs, and that Congress is forbidden, by the First Amendment to the Constitution, “to make any law respecting an establishment of religion or to prohibit the free exercise thereof.”31

The Times noted that the appeal covered numerous issues, but “only one of them involved a question of general public interest, namely, whether the United States has the constitutional right to prohibit polygamous marriages in the territories.”32 Attorney General Charles Devens, who argued the case personally for the United States, seized upon the opportunity to push the concept of a religious exemption from criminal laws down a harrowing slippery slope: “Hindu 28 29

30

31 32

Reynolds, 98 U.S. at 152. Reynolds brief, in Kurland and Casper, Landmark Briefs, p. 52. Instead, the court had charged the jury “that if the defendant, under the influence of a religious belief that it was right, deliberately married a second time, having a first wife living, the want of understanding on his part that he was committing a crime, does not excuse him, but the law inexorably in such cases implies criminal intent.” Reynolds brief, p. 52. Reynolds brief, in ibid., p. 55, citing Regina v. Wagstaff, Cox’s Criminal Cases, 10, p. 530. The brief further noted that, following this case, “the statute of 31 and 32 Victoria was passed rendering the neglect to provide medical assistance a criminal offense.” Ibid. “Is Polygamy a Crime?” New York Times, November 14, 1878, p. 4. Ibid.

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widows [would] hurl themselves on the funeral pyres of their husbands, East Islanders . . . expose their newborn babes, Thugs . . . commit gruesome murders [in the] name of religion.”33 Anticipating this line of attack, Reynolds’s brief had sought to put the Court on notice that its “line of reasoning” – that is, that religious duty negated any possible criminal intent – “may make it difficult to deal criminally with certain (supposed) infractions of the moral law, as it is admittedly difficult to deal with breaches of the religious law, but it is none the less logical and convincing.”34 Ultimately, these varied arguments on the subject of religious belief led Chief Justice Waite to identify as one of the six questions to be addressed by the Court: “Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty?” Morrison R. “Mott” Waite had been appointed chief justice of the United States in 1874, just a few years before the Reynolds case arrived at the Court, following a relatively successful career at the Ohio bar that had kept him well off the national stage from which a Supreme Court justice might be expected to be drawn.35 Waite had graduated from Yale in 1837, read law in his father’s Connecticut law office, and then moved to Ohio, where the growing economy offered opportunities for bright and ambitious young lawyers. He had strong skills as an attorney and he prospered at the bar; but even at the peak of his career, when he was appointed junior counsel for an international arbitration in Geneva, Waite was, at most, a big fish in a fairly small Midwestern pond. Never until his Supreme Court appointment was he a figure of national notice or prominence. His most recent biographer, political scientist C. Peter Magrath, notes that despite Waite’s legal skills and personal qualities, “[f]ew men . . . have come to the Supreme Court under less favorable circumstances. . . . On the day of his appointment . . . Waite was an obscure Ohio attorney [whose] primary qualification for the chief justiceship was precisely his obscurity.”36 Waite’s status as what we would now call a “stealth nominee” allowed President Grant finally to fill a position that had been embarrassingly vacant for eight months. Ward McAfee notes that in 1874 the Republicans were looking for any advantage in a tight election; in particular, “political outcomes in Ohio were rarely predictable” during Reconstruction, and “the margin for victory in Ohio was paper thin,” 33 34 35

36

Quoted in Gordon, Mormon Question, p. 126. Reynolds brief, in Kurland and Casper, Landmark Briefs, p. 57. For biographical information about Waite, see C. Peter Magrath, Morrison R. Waite: The Triumph of Character (New York: Macmillan, 1963), and Bruce R. Trimble, Chief Justice Waite: Defender of the Public Interest (Princeton: Princeton University Press, 1938). Magrath, “Chief Justice Waite,” p. 507.

32

Church, State, and Original Intent

putting the Buckeye State “on the fulcrum of determining the political course of the nation itself.”37 This was the very year that Grant appointed Morrison Waite as chief justice. Other members of the Court who had hoped to be elevated to the chief justiceship referred derisively to Waite as “His Accidency,” and the press called him a “respectable mediocrity” on an otherwise impressive and strong-willed court.38 Longtime acquaintance Hugh McCullough, secretary of the Treasury, who subsequently lauded Waite for his “character of uprightness and independence,” initially averred that “no appointment made by President Grant seemed to be more unmerited and injudicious.”39 Of Waite’s arrival on the Court, his new colleague, Justice Field, observed: “He is a short, thick-set person, with very plain – indeed rough features. He is gentlemanly in his manners and possesses some considerable culture. But how much of a lawyer he is remains to be seen.”40 Despite this inauspicious inauguration, Waite emerged as an effective chief justice who was blessed with a combination of an impressive work ethic and unusually good “people skills” that served him well on a Court filled with irascible personalities. Moreover, he had a keen sense of his role in the development of the Court’s constitutional jurisprudence; Magrath notes that the chief justice was so concerned about critical constitutional cases that he occasionally “shifted his vote so that he could control the assignment of an important opinion.”41 Such appeared to be the case in Reynolds. After oral argument, five justices voted to sustain Reynolds’s conviction and four, including the chief justice, voted to reverse that judgment.42 Yet Justice Waite assigned himself the task of preparing an opinion for the majority decision, which would sustain the conviction, so at some point he must have switched sides. There is no record even hinting why Waite might have changed his mind, and Magrath speculates that the motivations were not necessarily related to the merits of the parties’ arguments but instead were based on “his dislike of close decisions and the fact that he felt an especially strong responsibility in the assignment of opinions in constitutional cases.”43 Magrath supports this hypothesis with an interesting data set: When in 1881

37

38 39 40 41 42 43

Ward M. McAfee, Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s (Albany: State University of New York Press, 1998), pp. 161–2. Magrath, “Chief Justice Waite,” pp. 507–8. Quoted in Magrath, Triumph, p. 132. Quoted in ibid., p. 107. Magrath, “Chief Justice Waite,” p. 510. Ibid., p. 523. Ibid., p. 524.

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Waite “compiled a memorandum of [seventy-two] significant constitutional cases that had been decided since his appointment . . . Waite aligned himself with the majority – and thus controlled the assignment of opinion – in all but six.”44 The fact that Waite’s majority opinion would interpret the religion clauses of the First Amendment for the first time in their nearly 100-year history certainly made it a landmark constitutional case. Ultimately, even though the Court was sharply divided in the conference vote, when the final decision was announced, only Justice Field contributed a dissenting opinion, and his concern related to the admissibility of certain evidence at trial rather than anything relating to the First Amendment.45 And so, while the conference vote was 5–4 against Mr. Reynolds, the final decision appeared to be weighted much more heavily in support of his conviction. The Opinion Chief Justice Waite’s majority opinion in Reynolds reads, as do his other opinions, as the work of a fairly careful and thoughtful lawyer and justice.46 The prose is neither flashy nor ringing with rhetoric; it holds true to a pattern in Waite’s work described by Felix Frankfurter, who, in commenting on Waite’s opinion in the landmark case of Munn v. Illinois (which allowed Congress to regulate business in the public interest), remarked that “even in his most famous opinion Waite lacked art.”47 And so, much of Justice Waite’s opinion deals straightforwardly with fairly conventional issues of evidence and criminal procedure: Was the grand jury properly constituted, were juror challenges handled properly (one issue was whether a juror could be challenged by the government for responding to the question “Are you living in polygamy,” with “I am only a fornicator”), and was the second wife’s testimony admissible even though it was only given at the first trial because she could not be found for the second trial?48 Finding no reversible error in the manner in which the lower court had handled these issues, the chief justice moves on to the most interesting question for our purposes, namely, “whether religious belief can be accepted as a justification of an

44 45 46

47 48

Ibid. Reynolds, 98 U.S. at 168 (Field, J., dissenting). Trimble comments: “His opinions do not abound in theories. They are straightforward, crisp, businesslike expressions of one who is trying to solve the problem presented in the most logical manner, and for the best interests of all concerned.” Trimble, Chief Justice Waite, pp. 207–8. Magrath, Triumph, pp. 184–5. See Munn v. Illinois, 94 U.S. 113 (1877). See the Reynolds brief, in Kurland and Casper, Landmark Briefs, p. 36.

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overt act made criminal by the law of the land.”49 And from this point, the opinion gets very interesting indeed, for it lays the jurisprudential foundation for all subsequent Supreme Court discussions of the religion clauses. Justice Waite begins his analysis by observing that the First Amendment is in fact implicated by Mr. Reynolds’s appeal. Unlike the situation in the Permoli case, where the Court held that the religion clauses do not apply to state laws, this time the law was federal, and, according to Waite, “Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The First Amendment to the Constitution expressly forbids such legislation.”50 The question before the Court, then, was “whether the law now under consideration comes within this prohibition.”51 To answer this constitutional question of first impression, the chief justice turns to a historical analysis of the origins of the religion clauses. He launches this discussion with the following rationale: “The word ‘religion’ is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted.”52 In particular, he continues, the “precise point of inquiry is, what is the religious freedom which has been guaranteed”? He thus seems to be asking two questions: What does “religion” mean and what scope of constitutional protection is provided for its free exercise? The first question, however, gets short shrift from the chief justice. Although Waite indicates that this historical inquiry would involve the definition of the word “religion,” that precise issue does not seem to be addressed by his analysis nor does it become a critical issue in Reynolds. The question of whether Mormonism constitutes a valid “religion” for First Amendment purposes appears not to have been contested in Reynolds, although it probably could have been: At that point, the Church of Jesus Christ of Latter-day Saints had existed for a scant few decades, and the Book of Mormon had been known for less than fifty years. A Supreme 49 50

51 52

Reynolds, 98 U.S. at 162. Ibid. David Currie points out, “The Court had no difficulty with the application of the Bill of Rights to the territories, notwithstanding the holding of American Ins. Co. v. Canter (26 U.S. 511 [1828]) that Article III’s limitations on the nature of federal courts did not apply there. As the language and the purpose of the amendment suggest, Waite said simply that ‘[r]eligious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned.’ 98 U.S. at 162.” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (Chicago: University of Chicago Press, 1985), p. 439, n. 60. Ibid. Ibid.

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Court that was creative enough to declare that a corporation was a “person” for Fourteenth Amendment purposes – as the Waite Court decreed in Santa Clara County v. Southern Pacific Railroad Company53 – could have just as easily imagined either that the First Amendment should apply solely to religions that were extant at the time of its adoption in 1789 or, at least, that fifty years might not be long enough for a brand new social and political movement (especially one with its own standing army and controversial domestic practices) to achieve the status of a religion entitled to constitutional protection.54 But none of these issues surfaces in Justice Waite’s opinion; rather, he invokes preconstitutional history to help illuminate the range and scope of the First Amendment’s protection of the “free exercise” of religion based on the implicit assumption that Mr. Reynolds’s Mormon faith fell within whatever definitional metes and bounds might establish the outer limits of the First Amendment’s use of the word “religion.” Why did Chief Justice Waite elect to employ a “history of the times” methodology to interpret the First Amendment? It was certainly not a necessary component of First Amendment analysis at that point in constitutional history. In dealing with free speech cases of first impression, the Waite Court did not seek out the framers’ views or intentions,55 and, when Justice Bradley referenced the “views of the first congress” in an 1886 search and seizure case, a concurring opinion joined by Chief Justice Waite made only a vague reference to what was “obvious” that the framers intended without citing any historical evidence.56 And so, the degree to which the chief justice delved 53 54

55

56

Santa Clara County v. Southern Pacific Railroad Company, 118 U.S. 394 (1886). On the subject of defining “religion” for First Amendment purposes, see Jesse Choper, “Defining Religion in the First Amendment,” Illinois Law Review 1982, no. 579 (1982); Kent Greenawalt, “Religion as a Concept in Constitutional Law,” California Law Review 72 (1984): 753; and numerous others. For another way to look at the definition of “religion” question, see Stanley Ingber, “Religion or Ideology: A Needed Clarification of the Religion Clauses,” Stanford Law Review 41 (1989): 233, where he distinguishes between “religious” and “nonreligious” ideologies. See Ex parte Jackson, 96 U.S. 727 (1878), involving mail restrictions on circulars relating to lotteries. According to Currie, “Field’s opinion is wholly conclusory, and in sharp contrast to Reynolds he made no effort to determine what the framers of the First Amendment had in mind.” Currie, Constitution in the Supreme Court, p. 443. See also Ex parte Curtis, 106 U.S. 371 (1882), where neither Waite’s opinion nor Bradley’s dissenting opinion referenced the framers in a case involving political contributions; in fact, Waite overlooked the potential First Amendment issue altogether. Boyd v. United States, 116 U.S. 616 (1886), involved “a compulsory production of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud.” 116 U.S. at 622. Justice Bradley’s majority opinion does not engage in as much historical research as is found in Waite’s Reynolds opinion, but he does cite John Adams and an English case about which “it may be confidently asserted

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into a detailed analysis of the historical background of the religion clauses is quite unusual. Although we do not know why Justice Waite elected to make a foray into constitutional history in Reynolds, we do know where he went to seek out the information he needed – he went next door. Or, more precisely, he went to his former next-door neighbor from his first year on the Court: seventyeight-year-old George Bancroft, an elder statesman of formidable influence and, more importantly, probably the most distinguished and almost certainly the most productive historian of his generation.57 Bancroft, who attended Harvard and received a Ph.D. from the University of Gottingen, published a ten-volume History of the United States from the Discovery of the Continent; served as secretary of the navy and secretary of war; was appointed minister to Great Britain and Prussia; and, at the time of the Reynolds case, made his home in Washington where he had dedicated himself to writing what would become a two-volume History of the Formation of the Constitution of the United States of America, a work that was completed just three years after the Reynolds case was decided.58 Waite’s biographer C. Peter Magrath describes the politically connected historian as a “nineteenth-century Arthur Schlesinger, Jr.,” but even that distinction probably understates the impressive degree of Bancroft’s stature and the extent of his political influence; in 1879, for example, he was given the unprecedented honor of being granted “the full privileges of the Senate floor.”59 George Bancroft could, perhaps, be better imagined as Arthur Schlesinger, Jr., and Henry Kissinger combined

57

58

59

that its propositions were in the minds of those who framed the fourth amendment to the constitution, and were considered as sufficiently explanatory of what was meant by unreasonable searches and seizures.” Ibid., at 626–7. Justice Bradley later suggests that the “views of the first congress . . . may be inferred from . . . the judiciary act of 1789.” Ibid., at 630–1. One explanation of Justice Bradley’s reference to history may be found in a footnote to the opinion in which he notes that one of his brethren on the Court had previously written a relevant history of the subject: “An elaborate history of the writs of assistance is given in the appendix to Quincy’s Reports . . . written by Horace Gray, Jr., Esq., now a member of this court.” Ibid., at 641, n. 4. The notes also include multiple references to commentaries by Cooley and Story. Ibid. Trimble seems to be the first to pick up on Bancroft’s influence on the Reynolds opinion. Trimble, Chief Justice Waite. But the relationship is described in substantially greater detail in Magrath, “Chief Justice Waite.” See George Bancroft, History of the United States from the Discovery of the Continent, 10 vols. (Boston: Little, Brown, 1834–75); George Bancroft, History of the Formation of the Constitution of the United States (New York: Appleton, 1882), 30. For biographical information, see M. A. DeWolfe Howe, The Life and Letters of George Bancroft, 2 vols. (New York: Charles Scribner’s Sons, 1908); and Russell B. Nye, George Bancroft: Brahmin Rebel (New York: Alfred A. Knopf, 1945). Magrath, “Chief Justice Waite,” 525–26.

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into one august and politically hot-wired personage. It would be hard to imagine a more knowledgeable or reputable source for constitutional history than Morrison Waite’s erstwhile next-door neighbor, who described himself as being on “the most friendly terms” with the chief justice.60 There is no record of when or how Waite requested aid from his friend and former neighbor, but Bancroft’s response came on December 2, 1878, about two weeks after the case was argued before the Court. It included two pieces of information, neither of which, on its face, related directly to the language of the First Amendment or to the formation of the Constitution itself. The first, which Waite appears to have completely ignored in the Reynolds opinion, was a 1780 letter from Joseph Hawley to the Massachusetts Senate. In this letter, Hawley refused to take up the seat in the Senate to which he had been elected because of the “absurd,” “unconscionable,” and “dishonorable” provision in the Massachusetts constitution requiring members of the General Court to profess faith in Christianity.61 We do not know why Waite disregarded this letter, although it is possible that he considered it more relevant to the “no religious test” language in Article VI of the Constitution (“no religious Test shall ever be required as a qualification to any Office or public Trust under the United States”) than to the provisions of the First Amendment that were implicated in the Reynolds case.62 There is also a possibility that Waite broadly inquired of Bancroft about the historical origins of the Constitution’s treatment of religion, and the historian thought that it was appropriate to address possible antecedents of Article VI’s “no religious test” provision as well as the background to the religion clauses of the First Amendment. It may also be that Bancroft (or Waite in his request for the information) thought that the “no religious test” language could have been applicable to the issue of whether a juror could be challenged by the government because he may have been a polygamist and, therefore, was likely to have been a Mormon. In an environment in which many provisions of the Constitution, including the “no religious test” language in Article VI, had been subject to little or no judicial interpretation or scholarly commentary, it would certainly have been possible to argue that excluding a juror from service on a federal jury because of his religious convictions or church membership could have constituted an unconstitutional religious test for public office. Whether there were improper juror challenges based on the interrogation 60 61 62

Ibid., at 526. Ibid. See U.S. Constitution, Art. VI.

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of jurors about “the fact of their living in polygamy” was, in fact, an issue raised by Mr. Reynolds’s attorneys;63 it would not have been unreasonable to assume that a polygamous man living in the territory of Utah in the 1870s was a member of the Mormon Church and, therefore, the question about polygamy was tantamount to an inquiry about church membership. The issue surrounding the empaneling of the jury was not raised in the context of Article VI’s prohibition of religious tests for public office, however.64 The chief justice dismissed Reynolds’s arguments on basic principles of criminal procedure and made no reference to Article VI at any point in the opinion. In any event, this issue did not surface in the Reynolds case under the rubric of Article VI, and the Hawley letter makes no appearance in Waite’s opinion, but Bancroft’s second piece of information becomes the centerpiece of the Court’s analysis of the religion clauses. Bancroft referred the chief justice to Thomas Jefferson’s Virginia Statute on Religious Freedom as follows: “The Virginia law, which guided the Virginia members of the [constitutional ratifying] convention, shows the opinion of the leading American Statesmen in 1785. . . . It was accepted alike by the friends of Jefferson, and the Presbyterians of Virginia.”65 Following Bancroft’s clue that the meaning of the First Amendment lay in Virginia’s efforts to establish religious freedom, Waite dug deeply into a study of the history of Virginia at that time. Such an ambitious and timeconsuming approach to legal research was not uncommon for the Yaleeducated jurist. Magrath points out that “Waite characteristically sought assistance from any possibly useful source. Thus, in preparing an opinion in a case involving matters of international law, he asked questions . . . of [a State Department official], examined twenty-two scholarly authorities, and looked at twenty United States treaties with foreign nations.”66 In fact, Magrath goes on to note that when, late in his Supreme Court career, Chief 63

64

65 66

See the Reynolds brief, in Kurland and Casper, Landmark Briefs, pp. 4, 9, 35–8. The brief argues as follows: “The present law, in regard to the examination of a juror on challenge, is laid down in the early English cases, viz.: that a juror can never be himself examined as to any criminal or infamous matter in order to sustain a challenge.” Ibid., p. 35. The United States government’s brief cleverly replies: “Polygamy is not an infamous offense under the United States law. . . . It is even suggested upon the record that in [the territory of Utah] it is even a religious observance.” Ibid., pp. 69–70. For a more recent discussion of religion-based jury challenges under the Equal Protection Clause and the First Amendment, see Benjamin Hoorn Barton, “Religion-Based Peremptory Challenges After Barton v. Kentucky and J.E.B. v. Alabama: An Equal Protection and First Amendment Analysis,” Michigan Law Review 94 (1995): 191–216 and Robert T. Miller, “A Jury of One’s Godless Peers,” First Things, no. 141, March 2004, pp. 11–13. Quoted in Magrath, “Chief Justice Waite,” p. 527. Ibid.

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Justice Waite presided over the Telephone Cases, “which dealt with the exceedingly complex and technical questions raised by the suits over the infringements of the Bell telephone patents,” he dedicated several months to becoming “educated . . . on the principles of electricity.”67 We do not know all the sources Waite may have consulted to form his opinion about the Virginia antecedents of the First Amendment, but his historical research must have represented a significant amount of effort over the Christmas holidays, since Bancroft’s advice came on December 2 and the chief justice’s docket book shows that the Supreme Court approved his opinion in the Reynolds case one month later on January 4, just prior to its announcement on January 6.68 On January 4, presumably shortly after the Court approved the opinion, Waite wrote to Bancroft thanking him “again” for “the information given as to the history of the free religion clause in the constitution. . . . With your assistance, I have been able to set forth, somewhat clearly, I hope, the scope and effect of that provision.”69 Based on his research into the First Amendment’s antecedents, Waite’s majority opinion in the Reynolds case launches into a relatively detailed discussion of those aspects of preconstitutional history to which he had been referred by Bancroft. In particular, the chief justice addresses the time when “attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well.”70 He notes that people were taxed to raise money for the support of churches other than their own and that “[p]unishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining heretical opinions.”71 Ultimately, he observes that “controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia,” where, in 1784, the legislature first considered “a bill establishing provision for teachers of the Christian religion.”72 The bill, known as a General Assessment, was postponed and copies were distributed so that people could “signify their opinion” at the next session.73 In response, there was, according to Waite, a “determined opposition” that included what would become the very famous Memorial and Remonstrance by James Madison “in which he demonstrated 67 68 69 70 71 72 73

Ibid. Ibid., p. 523. Quoted in ibid., p. 527. Reynolds, 98 U.S. at 162. Ibid. Ibid., at 163. Ibid.

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‘that religion, or the duty we owe the Creator,’ was not within the cognizance of civil government.”74 Here Waite cites the Appendix to Semple’s Virginia Baptists, which contains a complete copy of Madison’s Memorial. He then notes not only that the General Assessment bill was, in fact, defeated, “but another, ‘for establishing religious freedom,’ drafted by Mr. Jefferson, was passed.”75 At this point, Waite cites both Jefferson’s collected works and Howison’s History of Virginia.76 Then Waite quotes directly from the preamble to Jefferson’s Virginia statute, boldly stating that in “these two sentences is found the true distinction between what properly belongs to the church and what to the State.”77 His description of Jefferson’s preamble reads as follows: After a recital “that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,” it is declared that “it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.”78

Waite later returns to the topic of what to do when religious actions, in Jefferson’s words, “break out into overt acts against peace and good order,” but first he needs to establish a link between the efforts to secure religious freedom in Virginia and the mandates of the First Amendment to the United States Constitution. Bancroft’s correspondence had mentioned only that Jefferson’s statute “guided the Virginia members of the [constitutional ratifying] convention [and] shows the opinion of the leading American Statesmen in 1785.”79 The first link proffered by Waite picks up on Bancroft’s reference to ratification. The constitutional convention, Waite comments, occurred “a little more than a year after the passage of this [Virginia] statute.”80 Then, noting that Thomas Jefferson was minister to France at that time, and therefore unavailable to play a direct role in the creation of the Constitution, Waite observes that as soon as Jefferson “saw the draft of the Constitution proposed for adoption, he, in a letter to a friend,

74 75 76 77 78 79 80

Ibid. Ibid. Howison, History of Virginia. All references to Howison are to the second volume. Reynolds, 98 U.S. at 163. Ibid. (emphasis added). Quoted in Magrath, “Chief Justice Waite,” p. 527. Reynolds, 98 U.S. at 163.

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expressed his disappointment at the absence of an express declaration insuring the freedom of religion.”81 Nevertheless, Jefferson was willing to support the Constitution, “trusting that the good sense and honest intentions of the people would bring about the necessary alterations.”82 Waite then states that five states proposed adding amendments to the Constitution, and that three of them – New Hampshire, New York, and Virginia – “included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon.”83 Amendments were indeed proposed during the first session of Congress, and “the amendment now under consideration,” according to the chief justice, “was proposed with others by Mr. Madison.”84 This amendment “met the views of the advocates of religious freedom, and was adopted.”85 And then, following this brief summary of the actions of the first Congress, Waite returns to Jefferson, and, in particular, to a letter written to the Danbury Baptist Association of Connecticut. The letter, which contains Jefferson’s oft-quoted statement that the First Amendment built “a wall of separation between church and state,” was penned in 1802, more than a decade after the adoption and ratification of the First Amendment, but in it Waite finds the heart and soul of the religion clauses.86 Quoting at length from the letter, the chief justice proclaims that “[c]oming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.”87 Waite’s extensive quotation of Jefferson’s letter is as follows: Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, – I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the 81 82 83 84 85 86 87

Ibid. Ibid. Ibid. Ibid. at 164. Ibid. Ibid. Ibid.

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nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.88

With this long quotation, and the pronouncement that it stands as “almost an authoritative declaration of the scope and effect of the [first] amendment,” Waite effectively writes Jefferson’s 1802 “wall of separation” language directly into the religion clauses, an emendation that has survived throughout many subsequent cases. Since Jefferson’s letter to the Danbury Baptists appears not to be mentioned in the histories cited by Waite (i.e., Howison and Semple), or in Bancroft’s letter, an interesting question is, where did the chief justice find it?89 The most likely source is the index to the edition of Jefferson’s papers 88

89

Ibid. Justice Waite’s opinion inaccurately transcribes one word of Jefferson’s letter. See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York University Press, 2002), p. 181, n. 71, where he notes that “[m]ost published collections of Jefferson’s writings incorrectly transcribe [“legitimate”] as ‘legislative.’” Dreisbach points out that the mistranscription originated with a mistake by the editor of Jefferson’s works referenced by Waite: H. A. Washington, ed., The Writings of Thomas Jefferson, 9 vols. (Washington, D.C.: Taylor and Maury, 1853–4), vol. 8, pp. 113–14. Dreisbach suggests that “The ‘wall’ metaphor [contained in Jefferson’s letter] might have not entered the American legal lexicon but for this erroneous transcription because Justice Waite was focused on the legislative powers of Congress to criminalize the Mormon practice of polygamy” (p. 98). Since Waite does not discuss this particular language at length, it is impossible to know whether Dreisbach’s suggestion is correct, although Waite could have easily focused on the “legitimate” powers of the government. Neither Magrath, who has studied Waite extensively, nor Dreisbach, who has scrutinized the heritage of the Danbury letter with care, has identified a source who may have brought the letter to Waite’s attention. Dreisbach notes, “Neither the Danbury letter in general nor the ‘wall’ metaphor in particular appeared in the formal record before The Court, including lower court rulings and the parties’ legal briefs.” Dreisbach, Thomas Jefferson, p. 98. Magrath comments as follows: “Exactly how Waite came across the letter to the Danbury Baptists is not clear. Bancroft may have referred him to it in a conversation, or Waite, who worked very systematically, may have decided to track down Jefferson’s later statements on the First Amendment once he had looked at the Virginia Statute on Religious Freedom.” Magrath, “Chief Justice Waite,” p. 530, n. 111. Philip Hamburger has pointed out that the “Danbury Baptists did not publish or quote the letter either in their printed minutes or elsewhere.” Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), 164. William McLoughlin, who has written extensively about the Baptists in New England, notes that “No [New England] Baptists . . . ever utilized Jefferson’s phrase about the wall of separation, though he has obviously coined this term with the Connecticut Baptists specifically in mind.” William G. McLoughlin, New England Dissent, 1630–1833, vol. 2 (Cambridge, Mass.: Harvard University Press, 1971), p. 1013. Dreisbach has found copies of the Danbury Baptist correspondence in 1802 in “New England Republican newspapers, but concludes that “the letter was not reprinted in a forum accessible to a wide audience for another half century,” when it entered H. A. Washington’s collection of Jefferson’s papers. Dreisbach, Thomas Jefferson, p. 96.

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employed by Waite, that is, the nine-volume compilation edited in the midnineteenth century by Professor H. A. Washington of the College of William and Mary. In Washington’s index, there is a heading for “Religion,” under which there is a subheading titled “Religion Should Be Free”; and appearing as the first of three letters listed under that highly relevant subheading is a reference to the “wall of separation” letter to the Danbury Baptists.90 And thus entered into the First Amendment lexicon Jefferson’s elegant but enigmatic phrase. After this enduring contribution to constitutional history, the chief justice commences a relatively detailed discussion of the history of laws against polygamy, dating back to the common law (for which he cites Kent’s Commentaries) and the “earliest history of England.”91 But he is not finished with his invocation of the history of Virginia; “it is a significant fact,” he notes, “that . . . after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution . . . the declaration in a bill of rights that ‘all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,’ the [Virginia] legislature substantially enacted the [antipolygamy] statute of James I., death penalty includes,” there being apparently some doubt “whether bigamy or polygamy be punishable by the laws” of Virginia.92 Based on the fact that Virginia’s great leaders of religious freedom passed such a draconian anti-polygamy law, Waite concludes that “we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society. . . . In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.”93 Waite then reflects on the nature of marriage, which is both a “sacred obligation” and a “civil contract,” and “[u]pon it society may be said to be built.”94 Moreover, Waite notes that polygamy “leads to the patriarchal 90

91

92 93 94

H. A. Washington, ed., The Works of Thomas Jefferson: Published by Order of Congress from the Original Manuscripts Deposited in the Department of State (J. C. Riker, 1853–56), 9 vols. The index is in volume 9. Washington’s index appears to be the source for essentially all of the Jefferson materials cited by Waite. The index heading for “Constitution, Federal” leads the reader to the letter mentioned by Waite in “2 Jeff. Works 355,” and the “1 Jeff. Works 79” reference is to the section titled “Autobiography.” Reynolds, 98 U.S. at 164. He cites James Kent, Commentaries on American Law 2 (William Kent, 1851): 79. Reynolds, 98 U.S. at 165. Ibid. Ibid.

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principle . . . which, when applied to large communities, fetters the people in stationary despotism,” citing Professor Francis Lieber, whose comments on polygamy he found strongly endorsed in Kent’s Commentaries.95 Ultimately, Waite concludes that “there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.”96 Since the United States thus has the power to outlaw polygamy, according to Justice Waite, “the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute.”97 The possibility of creating an exemption to the criminal laws for religiously inspired conduct “would be introducing a new element into criminal law,” which Waite was unprepared to do.98 “Laws,” he writes, “are made for the government of actions, and while they cannot interfere 95

96

97 98

Ibid. at 166, citing “2 Kent Com. 81, note (e).” Waite does not employ quotation marks here, but he is quoting Kent, who is, in turn, quoting Lieber. The seventh edition includes this material in volume 11, p. 45, note (h): “Lieber, in his Political Ethics, Vol. ii, p. 9, says that polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot exist long [Waite’s opinion reverses the order of the two preceding words] in connection with monogamy. The remark is equally striking and profound.” In the text, Kent observes, “Polygamy may be regarded as exclusively the feature of Asiatic manners, and of half-civilized life, and to be incompatible with civilization, refinement and domestic felicity.” Ibid. Magrath notes that Waite read Kent’s commentaries as early as his undergraduate days at Yale. Magrath, Triumph, p. 31. Reynolds, 98 U.S. at 166. Trimble calls this section “one of the most scathing indictments of what [Waite] considered an immoral practice which he ever delivered from the bench,” noting that “Waite himself spoke of this decision as his ‘sermon.’ ‘I send you enclosed my sermon on the religion of polygamy. . . . I hope you will not find it poisoned with heterodoxy.’ To the Rev. D. Walbridge. January 20, 1879.” Quoted in Trimble, Chief Justice Waite, p. 244. In light of the fact that Waite is mostly quoting Kent’s Commentaries, it is not clear how scathing he was intending to be, and his reference to a “sermon” not “poisoned with heterodoxy,” sounds tongue-in-cheek to me, but Trimble is the expert on Waite. Reynolds, 98 U.S. at 166. Ibid. Perhaps the best known recent case discussing the issue of religious exemptions to generally applicable laws is Employment Division v. Smith, 494 U.S. 872 (1990), in which the Supreme Court denied such an exemption to two drug rehabilitation counselors who had been fired for ingesting peyote as part of a Native American religious practice. Justice Scalia’s majority opinion in that case cites Reynolds as one of the cases supporting his observation that “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” 494 U.S. at 878–9. For a review of the colonial and early national approach to religious exemptions, see the contrasting views of Michael W. McConnell, “The Origins and Historical Understanding of the Free Exercise of the Religion,” Harvard Law Review 103 (1990): 1409–1517; and Philip A. Hamburger, “A Constitutional Right of Religious Exemption: An Historical Perspective,” George Washington Law Review 60 (1992): 915.

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with mere religious belief and opinions, they may with practices.”99 Waite then reviews the parade of potentially outrageous results that could flow from allowing religious exemptions to otherwise valid criminal laws: “Suppose one believed that human sacrifices were a necessary part of religious worship . . . [o]r if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent” these beliefs to be carried out into practice? he asked.100 No, he concludes, to permit “a man to excuse his practices” contrary to the laws “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”101 Despite Waite’s thoughtful analysis of the efforts of Madison and Jefferson to establish religious freedom first in Virginia and subsequently in the United States of America, George Reynolds lost his case. He did not receive an exemption from the federal laws criminalizing bigamy in the territories, and the Mormon’s test case was lost. For Reynolds himself, the loss was more than a matter of religious principle or constitutional interpretation. Although Gordon records that the United States attorney “reportedly agreed to . . . waive all ‘infliction of punishment’ should Reynolds be convicted,” the lower court had sentenced Reynolds to be imprisoned at hard labor despite the fact that the Morrill Act made no provision for such harsh sentencing.102 On petition for rehearing by the Supreme Court on this point, the Court remanded the case to the lower court “for the purpose of correcting the only error which appears in the record,” that is, the sentencing.103 The Court, in a brief opinion by Chief Justice Waite, issued “instructions to cause the sentence of the District Court to be set aside and a new one entered on the verdict in all respects like that before imposed, except so far as it requires the imprisonment to be at hard labor.”104 The History What then should we think about Chief Justice Waite’s use of history in his interpretation of the First Amendment’s religion clauses? On its face, it 99 100 101 102 103 104

Reynolds, 98 U.S. at 166. Ibid. Ibid. at 166–7. Gordon, Mormon Question, p. 114. Reynolds, 98 U.S. at 169. Ibid.

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sounds fairly persuasive. Except in one instance, every statement he makes about the clause either is supported by a citation to a historical source or is, according to his argument, derived from the sources he cites and the flow of the argument he is making. And, as noted above, legions of modern interpreters of the religion clauses have beaten the path to Jefferson, Madison, and Virginia first blazed by the Reynolds opinion. Yet Madison and Jefferson were not the only framers to opine on church-state issues, and Virginia was only one of the states participating in the constitutional compact, so there remains the possibility that the chief justice did not provide a full and fair rendition of the ideological origins of the First Amendment. And so, in assessing Waite’s opinion, it may be useful to consider in some detail both the historical sources he employed and some of the materials he might have chosen instead had his friend George Bancroft not steered him toward Jefferson’s bill for establishing religious freedom and through that bill to a broader set of Virginia antecedents of the religious clauses.105 Unfortunately, Chief Justice Waite’s papers do not disclose a clear research plan for his historical efforts, but, by examining the sources cited in the opinion, it is possible to outline a reasonable approximation of such an effort. There is little doubt that Bancroft provided the springboard for Waite’s plunge into Virginia’s history, and Waite said as much in his January 17, 1879, letter to Bancroft: “As you gave me the information on which the judgment in the Utah polygamy case rests, I send you a copy of the opinion that you may see what use has been made of your facts.”106 Why did Bancroft cite Jefferson and his religious freedom statute? We cannot know for sure, but we can glean some insights from other statements in Bancroft’s writings. Although Bancroft was a New Englander, and at one point ran for Governor of Massachusetts, he was a deeply devoted admirer of Thomas Jefferson. In fact, in what biographer M. A. DeWolfe Howe calls Bancroft’s “first public political utterance” at the Northampton Massachusetts Fourth of July Celebration in 1826, he described Jefferson as the person “whose principles are identified with the character of our Government and whose influence with the progress of civil liberty throughout

105

106

There is also the question that will undoubtedly remain open for lack of sources to consult for answers: Why did Waite bother to create a history of the establishment clause as well as the free exercise clause? As one commentator has observed, “the court upheld Reynolds’s conviction for bigamy. Clearly, such a holding did not need the mythic context of American religious history that Waite had provided. If Reynolds’s actions were not protected by the First Amendment, why did Waite spend so much time explaining its meaning?” David Reiss, “Jefferson and Madison as Icons in Judicial History: A Study of Religion Clause Jurisprudence,” Maryland Law Review 61 (2002): 94, 111. Waite to Bancroft (January 17, 1879), quoted in Magrath, “Chief Justice Waite,” p. 528.

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the world.”107 If Waite had spoken to Bancroft in person about his desire for information about the origins of the Constitution’s treatment of religion (and he may have done so, since we have no record of a letter from Waite to Bancroft requesting this historical information despite the fact that the records of Waite’s correspondence at that time seem quite complete),108 it is certainly possible that Bancroft would have also passed along the views that he subsequently included in his published history of the Constitution, which he was composing at that time. In that work, he devoted a significant amount of material to the Virginia Statute for Religious Freedom, noting, among other things, that it played a leading and catalytic role in securing religious liberty throughout America. Among other ringing tributes to Virginia’s embracing of religious liberty (and Bancroft’s effusive and florid style could make tributes ring at high decibels), he wrote, “The principle on which religious liberty was settled in Virginia prevailed at once in Maryland. In every other American state oppressive statutes concerning religion fell into disuse, and were gradually repealed.”109 For Bancroft, Virginia held a special place in the annals of freedom. In discussing Virginia’s adoption of a Declaration of Rights protecting the freedom of religion and various other civil liberties, he proclaimed it as “a move . . . from charters and customs to primal principles. . . . [T]he Virginia declaration came directly out of the heart of nature, and announced governing principles for all peoples in all future times.”110 That George Bancroft was the greatest American historian of his day does not mean that he was the most accurate chronicler of specific aspects of the relatively young country’s exploits. His strength was synthesis, not analysis,

107

108 109 110

Howe, Bancroft, vol. 1, pp. 185–6. Nye goes further and tracks Jeffersonian influences throughout the speech: “‘with the people the power resides, both theoretically and practically. . . . The popular voice is all powerful with us; this is our oracle; this, we acknowledge is the voice of God’ – strange words for the son of a New England Federalist, and strange words in conservative Massachusetts.” Nye, George Bancroft, p. 87. Magrath, “Chief Justice Waite,” p. 526, n. 90. Bancroft, History of the Formation of the Constitution, vol. 1, pp. 216–17. Ibid., vol. 8, p. 383. Principles for “all peoples in all future times” would be quite a legacy, but there is little doubt that the Declaration of Rights was enormously influential in colonial America. Historian Robert Rutland has observed that “by the time the last cannonade of the Revolution sounded, every state either had fashioned a separate bill of rights or had passed statutes with similar provisions. In a good many cases the work was done with scissors, paste pot, and a copy of the Virginia Declaration.” Robert A. Rutland, George Mason: Reluctant Statesman (Baton Rouge: Louisiana State University Press, 1961), p. 67, quoted in Daniel L. Dreisbach, “Church-State Debate in the Virginia Legislature: From the Declaration of Rights to the Statute Establishing Religious Freedom,” in Garrett Ward Sheldon and Daniel L. Dreisbach, eds., Religion and Political Culture in Jefferson’s Virginia (Lanham, Md.: Rowman & Littlefield, 2000), pp. 135–51.

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and he was famous for refusing to allow factual details to spoil a good story or an important conclusion. He was also notorious for modifying the text of statements despite the use of quotation marks.111 But there is no question that he caught the spirit of the times. As distinguished historian J. Franklin Jameson commented in 1891, not long after Bancroft died, in reviewing the introduction to Bancroft’s multivolume work: “[I]t was redolent of the ideas of the new Jacksonian democracy – its exuberant confidence, its uncritical self-laudation, its optimistic hopes.”112 To illustrate this point, Jameson quotes from the introduction a passage that shows Bancroft’s reverence for the Constitution as the centerpiece of American democracy: “our Constitution . . . neutralizes the influence of foreign principles, and fearlessly opens an asylum to the virtuous, the unfortunate, and the oppressed of every nation.”113 Bancroft’s discussion of religion continues this tone of American triumphalism but it is focused on the development of religious liberty in the states rather than appearing as an important element of his discussion of the Constitution. In reviewing the forces responsible for religious liberty, he credited both the dissenting (i.e., non-established) churches and the natural love of freedom: “The establishment of freedom of conscience, which brought with it absolute freedom of mind, of inquiry, of speech, and of the press, was, in the several states, the fruit, not of philosophy, but of the memories of the plebian Protestant sects and the natural love of freedom.”114 He goes on to describe the treatment of religion in each of the state constitutions, including “Virginia, where alone there was an arduous struggle in the legislature.”115 Here, he has the opportunity to highlight Jefferson’s role, but he does not overlook the critical contributions of the Presbyterians and other Protestants: [T]he presbytery of Hanover took the lead for liberty, and demanded the abolition of the establishment of the Anglican Church and the civil equality of every denomination; it was supported by the voices of the Baptists and Quakers and all the sects 111

112 113

114

115

See the numerous attacks on Bancroft’s accuracy described in J. Franklin Jameson, The History of Historical Writing in America (Boston and New York, 1891), p. 109. One historian notes, “Numerous instances of very broad statements unsupported by ascertainable facts – a form of inaccuracy to which Bancroft was especially prone – are readily found.” Watt Stewart, “George Bancroft,” in William T. Hutchinson, ed., The Marcus W. Jernegan Essays in American Historiography (Chicago: University of Chicago Press, 1937), p. 20. Jameson, History of Historical Writing, p. 104. Ibid., p. 106. It should be noted that Jameson grades Bancroft’s later volumes less harshly, noting “a great improvement in the workmanship” (p. 107). George Bancroft, History of the United States from the Discovery of the Continent, 10 vols. (Boston: Little, Brown, 1834–75), vol. 9, p. 274. Ibid., p. 278.

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that had sprung from the people; and after a Contest of eight weeks, the measure carried, by the activity of Jefferson.116

In this quotation, Bancroft provides a somewhat amplified version of his brief communication to Justice Waite in which the Presbyterians and Jefferson are linked in their efforts to achieve the separation of church and state. Following Bancroft’s reference to Virginia’s history and its legal protection of religious freedom, in particular, Waite undoubtedly sought a detailed and reliable historical review of the passage of Jefferson’s bill. Based on the books cited in the Reynolds opinion, the most influential work he consulted was written by Robert Reid Howison, described by a recent biographer as a “nineteenth-century lawyer, minister, historian and author.”117 In Howison’s History of Virginia from Its Discovery and Settlement by Europeans to the Present Time, Chief Justice Waite found a relatively recent and generally well-regarded source (it was published just thirty years earlier in 1848) to provide the historical background of Virginia’s disestablishment of the Episcopal Church and its statutory protection of religious freedom.118 116

117

118

Ibid. Bancroft subsequently notes the role of the Presbyterians in New Jersey, observing that “it was from Witherspoon of New Jersey that Madison imbibed the lesson of perfect freedom in matters of conscience.” See Jeffry H. Morrison, “John Witherspoon and ‘The Public Interest of Religion,’ ” Journal of Church and State 41 (1999): 551–73; and Jeffry H. Morrison, John Witherspoon and the Founding of the American Republic (Notre Dame, Ind.: University of Notre Dame Press, 2005), pp. 38–9. For more along these lines, see Joseph Loconte, “Faith and the Founding: The Influence of Religion on the Politics of James Madison,” Journal of Church and State 45 (2003): 699–715; and Mary-Elain Swanson, “James Madison and the Presbyterian Idea of Man and Government,” in Sheldon and Dreisbach, eds., Religion and Political Culture, pp. 119–32. William Lee Miller points out that at the time of Madison’s attendance, “Princeton was a kind of West Point for dissenting Presbyterians opposed to ecclesiastical and political authority.” In fact, Samuel Davies, a leader of Virginia’s Hanover Presbytery, had briefly been president of Princeton. William Lee Miller, The First Liberty: Religion and the American Republic (New York: Alfred A. Knopf, 1986), pp. 88–9. Trina A. Stephens, “Twice Forty Years of Learning: An Educational Biography of Robert Reid Howison (1820–1906),” Ph.D. dissertation, Virginia Tech, 1998, Abstract. I am indebted to Stephens for the biographical information about Howison included in this chapter. Portions of Howison’s autobiography can be found in Morrison, “Dr. Howison’s Autobiography.” Contemporary reviewers complained about Howison’s “weak and florid” style. Southern and Western Literary Messenger and Review 13, no. 1 (January 1847): 14 (reviewing volume one of Howison’s two-volume history). But they generally lauded his accuracy. The Princeton Review called it “incomparably the best history of Virginia that has ever been written,” and the Richmond, Virginia–based Southern Literary Messenger opined that “[a]s to the perspicuity of arrangement, the harmony of proportion between the parts, and the accuracy of facts, of Mr. Howison’s history, there can be but one opinion. In these

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At the same time, Waite came into contact with the work of an able historian, an ardent admirer and native son of the Commonwealth of Virginia, and an advocate of the disestablishmentarian view that “liberty is weakened by any contact between church and state.”119 In his multifaceted career, Robert Reid Howison demonstrated an abiding devotion to both church and state – in particular, the Presbyterian Church and the state of Virginia. Born in 1820, he began the practice of law in Richmond at the age of twenty-one. Shortly thereafter, Howison felt called to the Presbyterian ministry, which led to two years at Virginia’s Union Theological Seminary. A nervous breakdown during his first pastorate sent him back to the bar in Richmond, where he practiced law and became involved in a variety of Confederate affairs during the Civil War. It was fairly soon after his return to his law practice that he wrote the History of Virginia. Then, after twenty-five years of the law, Howison returned to the active ministry, serving as pastor of various Presbyterian churches in and around Fredericksburg. Late in life, he became a lecturer in American history at Fredericksburg College, and he was awarded an LL.D. by Hampden Sidney College at age seventy-seven. Howison had an impressive publication record throughout his peripatetic career. In addition to the two-volume history of Virginia, his books included A History of the United States (1891) and God and Creation, an 1893 volume of theology that was censured by his Presbytery for being lax on “the eternity of matter, the federal headship of Adam, and the human nature of Christ.”120 His many articles ranged from “Sir Walter Scott and Presbyterianism,” “The Roman Church and the North American Indians,” and “The Old Presbyterian Church Building, Fredericksburg, Virginia” to “Chief Justice Taney and the Dred Scott Decision” and “Dueling in Virginia.”121 Not

119

120 121

particulars he has performed his task in a manner altogether unexceptionable.” Princeton Review, no. 2 (April 1848): 187; Southern Literary Messenger 14, no. 6 (June 1848): 342–3 (apparently written by a friend at Howison’s request – see Stephens, “Twice Forty Years,” p. 70). Historian Thomas Buckley cites Howison on Virginia’s religious situation in the 1840s and calls it a “reliable contemporary view.” Thomas E. Buckley, S.J., “After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia,” Journal of Southern History 61, no. 3 (August 1995): 446. Howison, History of Virginia, p. 298. He also opined that “Christianity needs no legal taxes to sustain her life.” Stephens, “Twice Forty Years,” p. 98. Ibid., pp. 120–4. In a 2001 law review article on anti-dueling laws in antebellum America, C. A. Harwell Wells cites Howison’s “Dueling in Virginia” article several times, noting that Howison “was a witness to many duels and related to several famous duelists.” C. A. Harwell Wells, “The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America,” Vanderbilt Law Review 54 (2001): 1807. Howison’s article is “Dueling in Virginia,” William and Mary Quarterly 4 (1924); it was published after his death.

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long after Howison’s death, a Richmond judge called him “a distinguished and prominent lawyer,” amplifying the description by observing that while Howison was not “regarded as a safe lawyer, he was certainly a fertile and ingenious one.”122 Howison apparently brought his creative legal skills to ecclesiastical matters once he returned to the ministry; according to the same judge, “He was a great controversialist, and being a skilled parliamentarian, and presbyter, was a terror to some of the ‘loose jointed’ in the church courts.”123 Howison clearly shared Bancroft’s opinion that Jefferson’s statute was a profound statement following “the highest reason,” and further believed that, in pressing for amendments to the federal constitution, Virginia was “instrumental in securing liberty for America.”124 Unlike Bancroft, however, Howison did not read this history as necessarily reflecting a personal triumph of Thomas Jefferson himself, or even the preeminence of Jeffersonian republicanism, but, rather, the contribution of Virginia to the new nation. Howison, a devout Presbyterian minister, kept some distance from Jefferson, whose relationship with religion was controversial at best within the evangelical community. Howison observes that “Thomas Jefferson was not a believer in Christianity as divine, or in Christ as God. It is doubtful whether he was a simple Deist or a Unitarian.”125 Nevertheless, Jefferson, “though infidel in his opinions,” had applied sound reason to the question of religious liberty, and “[t]hus may it happen that the most learned of infidels, and the most enlightened of Christians, may attain to the same conclusions as to religious liberty.”126 As Howison tells the story, even while “Jefferson was embodying his views in definite form [in the Statute for Religious Freedom], a number of consecrated minds were at work on the same subject.”127 In fact, the Virginia Presbyterians to whom Bancroft had referred his letter to Waite (Bancroft had said that the Statute for Religious Freedom was “accepted alike by the friends of Jefferson, and the Presbyterians of Virginia”) had been inspired to send a series of five memorials to the General Assembly of Virginia between 1775 and 1786 concerning the proper 122

123 124 125

126 127

George L. Christian, “Reminiscences of Some of the Dead of the Bench and Bar of Richmond,” Virginia Law Register 14, no. 10 (February 1909): 747. Ibid. Howison, History of Virginia, pp. 299, 333. Ibid., pp. 298–9. The Presbyterian Princeton Review had an even harsher view of Jefferson’s relationship to religion: “if there was any one man in Virginia whose influence for evil, in the matter of religion, is to be compared with that of [Presbyterian leader] Samuel Davies for good, that man was Thomas Jefferson. . . . In statesmanship he had the intellect of a giant, in religion that of a child.” Princeton Review 11 (April 1848): 200. Ibid. Ibid.

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relationship of church and state; according to Presbyterian Howison, “a careful analysis of these documents will draw from them every material argument and principle, that will be found embodied in the ‘Act for Establishing Religious Freedom,’ written by Mr. Jefferson.”128 Howison does not further explore whose ideas actually informed the drafting of the statute, be they inspired or infidel, but whatever their source, “all who love liberty have admired it, and will support it unto the end.”129 Howison’s description of the adoption of Jefferson’s religious freedom bill in 1784 begins with a discussion of the legislative proposals for a general assessment, essentially a broad-based tax for the support of religion. According to Howison, the “bill required that all taxable persons should, at the time of giving in a list of their tithes, declare to what religious society they wished their assessments appropriated; and if they failed so to declare, the sums assessed on them were to be appropriated to the seminaries of learning in their counties.”130 This bill had the blessing of the extremely influential Patrick Henry, who not only gave it his “cordial support,” but also urged the “incorporation of all societies of the Christian religion,” a legal device that would permit religious organizations themselves to hold title to property.131 Until that point, the property of churches was subject to legislative action, in the case of the legally established church, or to the whims of the lay leadership of any church not so established. Following its legal disestablishment, the Episcopal Church had applied to be incorporated. Howison describes the potential for abuse from incorporation as follows: “[T]he Episcopal Church would now be confirmed by law in the 128

129

130 131

Howison, History of Virginia, pp. 299–300. The Princeton Review makes a point of noting that “The Act of Religious Freedom . . . drawn by the pen of Jefferson, [embodied] substantially the principles and reasonings contained in [the Hanover Presbytery] memorials.” Princeton Review, p. 199. Howison, History of Virginia, p. 301. He goes on to say that “had such a law always prevailed throughout Christendom, what an amount of human suffering would have been prevented. Rome would never have seen Christians torn by wild beasts in her amphitheatres; the iron chair would not have consumed the tortured body,” and so on for a dozen more examples throughout history. Ibid., pp. 296–7. Ibid., pp. 294–5. Patrick Henry’s endorsement of the general assessment bill was a formidable obstacle for its opponents. Daniel Dreisbach describes their reaction as follows: “Alarmed at the growing support for Henry’s assessment campaign and the perceived threat to religious liberty, Jefferson uncharitably suggested to Madison: ‘what we have to do I think is devo[u]tly to pray for his [Henry’s] death.’ Madison, however, had a less final solution: remove Henry from the legislature by having him elected governor. Thus, with Madison’s calculated support . . . Henry was elected to the governor’s seat in an uncontested election.” Dreisbach, “Church-State Debate in the Virginia Legislature,” p. 150.

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possession of property, the great body of which had been taken from the people under the requirement of the old system [i.e., when it had been the legally established church]. And farther, its ministries and vestries were furnished with a legal energy which would incessantly prompt them to measures for acquiring property and gaining temporal power.”132 In response, “[t]he friends of liberty took the alarm, including both the Presbyterians and the Baptists, especially as the “question of assessment had become prominent.”133 The legislature deferred the assessment bill “in order that by the next session, the popular feeling respecting it might be known,” thus “[e]xciting debates” in many counties.134 Amidst these debates came a “memorial against the bill prepared by James Madison,” which, in Howison’s estimation, is “one of the best compositions ever produced, even by his great mind.”135 Howison then goes on to summarize at some length Madison’s Memorial against the assessment, noting, in a footnote, that it could “be seen in Appendix to Semple’s Va. Baptists.”136 This footnote is undoubtedly the source of Chief Justice Waite’s reference in the Reynolds opinion that Madison’s Memorial could be found in Semple’s work. Ultimately, Howison extols Madison’s document, showing an enthusiasm unrestrained by the concerns he expressed toward Jefferson’s unconsecrated mind. Referring to Madison’s Memorial, he writes, “Transparent in style, moderate yet firm in temper, graceful in proportion, strong in argument, it treats its subject with a power not to be resisted.”137

132

133 134 135

136

137

Howison, History of Virginia, p. 296. These types of passages led an Episcopalian in the Southern Churchman to accuse “Howison of being partial to the Presbyterian Church and exhibiting a spirit of aggression towards the Episcopal Church.” Quoted in Stephens, “Twice Forty Years,” p. 71. Howison defended himself in the next issue of the journal, stating that he has personal friends in the Episcopal Church and he intended no “sectarian spirit.” Ibid. Ibid. Howison, History of Virginia, p. 296–7. Ibid., p. 297. It should be noted that Madison was one of several authors of popular memorials against the bill. As Judge Noonan writes, Madison’s “Memorial and Remonstrance gained 1,552 signatures. . . . Another anonymous petition, asserting the assessment to be against ‘The Spirit of the Gospel,’ obtained 4,899 signatures, no doubt chiefly Baptist. In all, 10,929 petitioners indicated their opposition.” John T. Noonan, Jr., The Lustre of Our Country: The American Experience of Religious Freedom (Berkeley: University of California Press, 1998), p. 74. See also William T. Hutchinson et al., The Papers of James Madison, 13 vols. (Chicago, Ill.: University of Chicago Press, 1962–9), vol. 8, pp. 195, 297, 401 (ed. notes). Howison, History of Virginia, p. 297, n. b. In fact, Howison cites Semple’s volume three separate times in his two-page description of the assessment controversy. Ibid.

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Later in the volume, Howison makes the case for Virginia’s catalytic role in bringing about the Bill of Rights.138 His analysis begins with the 1788 debates in Virginia concerning the ratification of the Constitution, in which James Madison, “the successful champion of the Constitution,” and others “who defended the Constitution, presented it as a system beautifully adapted to their wants, and well fitted to cover the chasm left by the Confederation,” whereas “those who opposed it [most notably Patrick Henry] declaimed against it as a monster, dangerous in his single traits, and in his fully development.”139 One of the principal objections to the Constitution by Patrick Henry and the anti-federalists was its lack of a Bill of Rights, which Howison notes, in a footnote, “was [also] Mr. Jefferson’s leading objection. He was in Paris at the time, but he wrote a letter about the New Government to James Madison.”140 Some Virginians, such as Patrick Henry and his followers, wanted their ratification of the Constitution to be conditioned on the inclusion of certain amendments, whereas others favored amendments but only as a recommendation for the future. At this point, Howison makes a genuinely remarkable statement about Virginia’s unique role in First Amendment history. He says that he does not have to comment at length on the specific elements of the Virginia proposals for a federal Bill of Rights because, in his view, they are “reflected in the Amendments to the Constitution, which Virginia advised.”141 A number of proposed amendments, which “were nearly identical with those previously offered by Patrick Henry,” in his unsuccessful effort to obtain only a conditional ratification of the Constitution, “were assembled by a committee and proposed to the new government.”142 Ultimately, Howison concludes,

138

139

140 141 142

The Southern Literary Messenger – published in Richmond, Virginia – proudly makes a point of noting that “[o]ne of the best written portions of the second volume, is that in which Mr. Howison very concisely, but forcibly, presents to our notice that part which Virginia took in the formation and adoption of the Federal Constitution. . . . Such a brilliant galaxy of genius and worth was never assembled before from a single state.” Southern Literary Messenger 14 (June 1848): 341. Howison, History of Virginia, pp. 321, 325. He notes that the “combatants . . . used every weapon that the laws of honorable warfare would admit, the pointed sarcasm, the witty jest, the vivid flash of repartee, the trenchant blade of argument, the thunder of declamation” (p. 321). Ibid., p. 330, n. b. Ibid., p. 331. Ibid., p. 332. Howison lists the committee members, who comprise a Who’s Who of Virginia statesmen: “Hon. George Wythe, Paul Carrington, and John Blair, Governor Randolph, Messrs. Harrison, Matthews, Henry, George Mason, Nicholas, Grayson, Madison, Tyler, John Marshall, Monroe, Ronald, Bland, Meriwether Smith, and Simms” (p. 332, n. b).

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“Nearly every material change suggested by Virginia was adopted. For, one article of amendment provided for freedom in religion, and of speech, and of the press.”143 Howison is so certain of the Virginia origins of this constitutional amendment that he urges his readers, in a footnote to the preceding sentence, to “Collate Amend. Art. iii [that is, the provision adopted by the First Congress that becomes the First Amendment] with Virginia proposed Bill of Rights, art. 15, 16, 20.”144 Virginia’s proposed amendment relating to religion (proposal number 20) began with a quotation from Virginia’s 1776 bill of rights (“That religion or the duty that we owe to our creator . . . can be directed only by reason and conviction”) and ended as follows: “therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law, in preference to others.”145 After linking Virginia’s proposed amendment about religion directly to the First Amendment, Howison goes on to list the other elements of the Bill of Rights and likens them to their Virginia forebears.146 While there are certainly linguistic differences between the Virginia proposals and the final form of the Bill of Rights, especially in the religion clauses, Howison looks past the semantic issues to the broader question that seemed also to be at the heart of Bancroft’s advice to Waite – that is, what were the ideological or political origins of the provisions, rather than who wrote the specific language. In this regard, it is intriguing to follow the stream of Howison’s commentary back to its source. For, in his view, the specific amendments proffered by Virginia emerged initially not from Jefferson or Madison, but from Patrick Henry, who had originally proposed them as part of an effort to bring about a conditional ratification. Since much of the modern research into the ideological pedigree of the First Amendment has been designed to determine whether there should

143 144 145

146

Ibid., p. 333. Ibid., p. 333, n. a. Quoted in Bernard Schwartz, The Bill of Rights: A Documentary History (New York: Chelsea House, 1971), vol. 2, p. 842. Schwartz notes that Virginia was, in fact, the first state to propose “a specific Bill of Rights” and that when the time came for Madison to draft his amendments in the First Congress, he naturally chose as his model the Bill of Rights recommended by the convention of which he was an active member (p. 76). Michael McConnell is not so sure. He writes, “James Madison’s initial draft of the free exercise clause did not follow the language of the state proposals.” Michael W. McConnell, “Free Exercise as the Framers Understood It,” in Eugene W. Hickok, Jr., ed., The Bill of Rights: Original Meaning and Current Understanding (Charlottesville: University of Virginia Press, 1991), pp. 54–69. See Howison, History of Virginia, p. 333, nn. b, c and d.

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either be a strict separation of church and state or a more accommodationist stance – in either case, based on an analysis of the writings and actions of the most relevant framers – it is interesting to note here that Howison traces the lineage of the Virginia amendments back to Patrick Henry, who had championed the general assessment bill, which sounds more like modern nonpreferentialism than a strict separationist approach. Virginia’s proposed amendment (“no particular religious sect or society ought to be favored or established by law, in preference to others”) certainly reads broadly enough on its face to permit the kind of nondenominational assessment that Henry had supported147 but that Howison himself did not favor. Chief Justice Waite, of course, is searching for signs of Jefferson and Madison, so he overlooks Patrick Henry’s contribution to the Virginia debate.148 In the conclusion of Howison’s two-volume History of Virginia, when he seeks to encapsulate the contributions of the Old Dominion to the new nation, freedom of religion – and the transmission of that commitment to liberty of conscience from Virginia to the national government – again holds pride of place: We have seen that when she first became independent of the mother country, she adopted, with singular directness of purpose, measures necessary to secure civil and religious freedom within her own borders. We have seen that when the proposed union was presented, she . . . subjected it to the ordeal of minds keen, brilliant, learned, and ardently in love with liberty. . . . We have seen that even in the act of receiving it, she . . . sought with success, to infuse into its soul some of her own healthful qualities; that she procured amendments guarantying the natural rights and the first interests of man.149

147

148

149

Vincent Phillip Munoz ˜ argues that Henry’s earlier “bill Establishing a Provision for Teachers of the Christian Religion” may not be as nondenominational as suggested above. See Vincent Phillip Munoz, “James Madison’s Principle of Religious Liberty,” American Polit˜ ical Science Review 97, no. 1 (February 2003): 17–32. As Thomas J. Curry argues, it would not necessarily be appropriate to assume that tracing the First Amendment back to a Henry-focused pedigree would provide support for modern nonpreferentialists. Whatever Henry may have believed about church-state relations on the local level, “interpreting [his] demand that ‘no particular religious sect or society ought to be favored or established by law in preference to others’ as furnishing a ‘loophole for financial support to all churches’ by the federal government contradicts his most vehemently held beliefs. Henry . . . feared, almost to the point of paranoia, the power of the federal government.” Thomas John Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), p. 209, quoting Irving Brant, “Madison: On the Separation of Church and State,” William and Mary Quarterly 8 (1951): 13. Howison, History of Virginia, p. 334.

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Howison’s history thus not only reinforced Bancroft’s opinion that the ideological origins of the First Amendment’s religion clause could be found in Virginia but also provided a wealth of impressively footnoted material locating Virginia as the wellspring of the Constitution’s respect for individual rights. These rights were cast both in constitutional language and in the cadence and phrasings of the Baptists’ and Presbyterians’ enduring commitment to religious freedom and, in Howison’s view, its necessary corollary, the complete separation of church and state.150 While it is possible that Howison was Chief Justice Waite’s sole published source for his historical background, it is likely that for the specific history of the development of religious freedom in that state, the jurist followed Howison’s footnote trail to the work of a Baptist minister and native son who similarly found the inspiration for religious freedom and disestablishmentarianism in Virginia: Robert Semple, whose Virginia Baptists contained a complete copy of Madison’s Memorial and Remonstrance.151

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Much later in life, writing in opposition to parochial schools, Howison listed “his tenents of Americanism, which are namely, a rejection of monarchic power, overthrow of privileged order and nobility, separation of church and state, and regulated self-government.” Stephens, “Twice Forty Years,” p. 102, citing the Rev. R. R. Howison, “Sectarian Colleges, Holy Scripture, Fact and Principle Are Against Sectarian Universities and Colleges and Parochial Schools,” Christian Observer (August 2, 1899). While it is worth asking whether Howison’s views may have been motivated by concerns over Roman Catholicism or Roman Catholic immigrants, his anxieties appear to have been focused elsewhere. The strict separationist language in his history of Virginia does not appear to relate especially to his experience of Roman Catholicism; rather, Howison seems particularly exercised by the debates over incorporating religious entities that raged in Virginia in the late 1840s as he was writing (p. 296). His concerns are principally focused on “High Churchism” among the Episcopalians, which, he worries, may cause a renewed attempt to link the Episcopal Church and the state in Virginia (pp. 298–9). For further discussion of this controversy, see Thomas E. Buckley, “After Disestablishment,” pp. 445–80. Buckley describes Howison as someone who could offer a “first-hand account” of the Virginia incorporation controversy (pp. 445, 446, 458). Philip Hamburger’s study of the various conceptions of religious liberty and the separation of church and state from the eighteenth century through the present demonstrates that in the eighteenth century, “American religious dissenters distrusted civil establishments of religion, but they were unlikely to embrace a position that also seemed to evince hostility towards churches and their clergy. Accordingly . . . it is difficult to find dissenting denominations or even many individuals in America prior to 1800 who clearly advocated the separation of church and state.” Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), p. 64. But the Baptists chronicled by Semple may be the one exception. Hamburger notes, “The closest American dissenters came to demanding separation of church and state may have been in a Virginia memorial of 1783 from the General Association of Separate Baptists” (p. 58). And so, the historiographical trail from Bancroft to Howison to Semple ended up exposing Justice Waite to a genuinely exceptional view of eighteenth-century opinion on the subject of church and

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Semple’s Virginia Baptists is a wonderfully engaging, learned, and felicitously written 400-page chronicle of the exploits of the Baptists in Virginia, from their arrival early in the eighteenth century until 1810, when the volume was published. While the thought of a lengthy church-by-church, county-by-county litany of preachers and penitents might seem soporific to all but the most dedicated church historians, Semple’s warm and affectionate descriptions of his fellow Baptists, combined with his sharp and detailed analysis of the history of their persecution by Virginia and its established church, make for fascinating reading. Semple was a devoted Virginian and a devout Baptist minister; and although he was certainly partial to the Baptist cause, at the same time, he engages in thoughtful commentary about the evidentiary material supporting his description of various historical events, including the likely veracity of contemporary records, eyewitness accounts, and the like.152 He was raised as an Anglican, but, during his legal training, he became “strongly tinctured with the sentiments of infidelity” and engaged in the “frivolities of the ball room,” according to an early biographer.153 Then, in 1789, shortly after he had a conversion experience at the age of twenty, he was ordained to the Baptist ministry. From that time until his death in 1831, he was an active minister and denominational leader. A

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state, although it was a view that, by the late nineteenth century, sounded quite reasonable. See Hamburger, Separation of Church and State, chapter 3, pp. 191–284. Semple, Virginia Baptists, p. 355. This is not to say that the volume never wanders into a bit of hagiography: The story of the conversion of the Elder Caleb Fisher from his wayward path reads as follows: “Previous to his profession of religion, Mr. Fisher was very fond of the fashionable vices of the age. Racing, dancing, gambling, and keeping wild and wanton company, were the objects of his most intent pursuit. Serious reflections, though sometimes forced upon his mind, were never welcome. God, in the midst of his wild career, marked him as an object of invincible grace. The arrows of the Almighty stuck fast in him; and although he was at first as an ox unaccustomed to the yoke, he finally found that the yoke of Jesus was easy and his burden was light” (p. 284). Fisher’s former drinking and gambling buddies came back to mock him, and, when he was proselytizing, had him arrested for disturbing the peace. The main accuser was testifying against Fisher, when heaven struck, as Semple tells it: “When lo! He fell speechless by a paralytic stroke, [a] display of divine vengeance [that] had an awful effect upon the minds of the surrounding people” (p. 285). There is no doubt on whose side Semple resides in the cause of evangelism. But at the same time, Semple was unafraid to balance his commentary with notes about “backsliders.” He even told the story of Baptist minister William Goodall of Norfold, who “fell into the sin of polygamy.” James B. Taylor, Lives of Virginia Baptist Ministers (Richmond, Va.: Yale and Wyatt, 1838), pp. 271–2, quoted in Reginald S. Mills, “Robert Baylor Semple: A Study in Baptist Denominational Development, 1790–1831,” Ph.D. diss., Southern Baptist Theological Seminary, 1986, pp. 77–8. Most of what we know about Semple can be traced back to Taylor’s early work.

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few years after the initial publication in 1810 of his History of the Rise and Progress of the Baptists in Virginia, Semple was awarded the honorary A.M. and D.D. degrees by Brown University. Both his contemporaries and more recent commentators describe his work in terms of an “uncommonly useful life.”154 In addition to his long and devoted service to the Baptist Church, he served as President of the Board of Trustees of Columbian College (now known as the George Washington University), which he brought back from the edge of insolvency, in part by convincing Congress to cancel a number of undesirable contracts.155 The first section of Semple’s book is a “General History” of the Baptists in Virginia, and he has done careful research into primary source materials: letters, minutes of Baptist association meetings, published statutes, and interviews with participants, not to mention his own participation in some of the activities. While he was ostensibly penning an ecclesiastical history, the fate of the Baptists was so tied up with their unhappy interactions with the governing authorities that it also chronicles the history of the relationship of church and state in Virginia, as seen by one of the major dissenting religious groups. Perhaps more importantly for our purposes, it tells the story of the religious persecution meted out to the Baptists and their ultimately successful battle for disestablishment that Chief Justice Waite refers to as the origins of the First Amendment’s religion clauses. It is not clear how much of Semple’s volume was read by Justice Waite, but his recounting of the history follows the story as told by both Howison and Semple, since Howison’s version relies heavily on Semple’s earlier work.156 Semple’s history begins with a brief discussion of the “Origin of the Separate Baptists,” dating to 1714, with waves of Baptist immigration from England, Maryland, and New England. In the middle of the eighteenth century, the evangelical efforts of numerous Baptist preachers – “[m]ost of them illiterate, yet illumined by the wisdom from above”157 – led to the rapid growth of Baptists in the state. These successes brought unwanted attention

154

155 156

157

Joe Madison King, “Introduction,” in Robert Baylor Semple, History of the Rise and Progress of the Baptists in Virginia, rev. ed. (New Orleans: Polyanthos, 1972). See also William Cathcart, ed., The Baptist Encyclopedia (Philadelphia: Louis H. Everts, 1881), pp. 1040–1. Cathcart indicates that Semple declined the D.D. degree from Brown as well as one from the College of William and Mary. Mills, “Robert Baylor Sample,” pp. 146–152. See Howison, History of Virginia, pp. 166–70, where most of the footnote references are to Semple. Semple, Virginia Baptists, p. 11.

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from the “established religion; the Nebuchadnezzars of the age.”158 Chapter 3 of Semple’s tome is then dedicated to a history of the Baptists from “the commencement of Legal Persecution until the Abolition of the Established Church.”159 It is very likely that Justice Waite concentrated on this chapter in his research into Virginia’s preconstitutional church-state battles; its discussion of the treatment of the Baptists and other dissenting groups, culminating in Madison’s Memorial and Remonstrance, is neatly summarized in Waite’s opinion. While Semple sets out to write a history of the Baptists in Virginia, he makes sure to point out that other dissenting groups experienced similar forms of persecution. The Quakers, for example, suffered “the utmost degree of persecution”160 from the time of their arrival many years before the Baptists. At the same time, as early as the seventeenth century, the state provided generous tax support for the established Anglican Church, whose priests were well paid and whose churches amply supported by broad-based taxes. Additionally, by statute, only Anglican ministers could legally perform wedding ceremonies.161 Semple observes that, unlike the harsh treatment of the Quakers, there were no specific laws against the Baptists’ evangelical efforts, but the “law for the preservation of peace . . . was so interpreted as to answer this purpose.”162 The first case reported by Semple was in June 1768, when several Baptist preachers were apprehended on the grounds that “they cannot meet a man upon the road, but they must ram a text of scripture down his throat.”163 They were imprisoned for several weeks, and commenced the practice of preaching through the bars to anyone who would gather near the jail, a practice that seemed to be especially effective, and perhaps increasingly necessary, as more and more Baptist preachers were incarcerated. In the face of harassment and further instances of imprisonment, the Baptists, writes Semple, “were unremitting in their exertions to obtain liberty of conscience, arguing that they were entitled to the same privileges that were enjoyed by the dissenters in England.”164 Since they were not able to avoid these breach-of-the-peace detentions, they reluctantly sought preaching licenses from the state. But even success in securing some official 158 159 160 161 162 163 164

Ibid. Ibid., p. 14. Ibid., p. 29. Ibid., p. 34. Ibid., p. 15. Ibid. Ibid., pp. 23–4.

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preaching licenses did not satisfy the Baptists who “thirsted for the liberty to preach the gospel to every creature.”165 Despite imprisonment and harassment (or perhaps because of this attention), the Baptist ranks swelled so dramatically in the early 1770s that “they began to entertain serious hopes, not only of obtaining liberty of conscience, but, of actually overturning the church establishment, from whence, all their oppressions had arisen.”166 In support of this effort, petitions were circulated, and “[v]ast numbers readily, and indeed eagerly, subscribed to them.”167 The religious and political winds were inexorably shifting in favor of the Baptists and religious freedom. Semple the preacher wanted to be sure to give first credit to the “power of God,” but Semple qua historian made sure to present a more complex and realistic picture of the “subordinate and co-operating causes.”168 The main one, he posits, was the “loose and immoral deportment of the established clergy”169 joined by a growing revolutionary spirit that was embraced by the Baptists, whereas the established church was seen as one of the “inseparable appendages of Monarchy.”170 Finally, whereas Bancroft and Howison award substantial credit to the Presbyterians, Semple observes that although the Baptists were not alone in effecting “this important ecclesiastical revolution,” they were “certainly the most active; but they were also joined by other dissenters.”171

165 166 167 168 169 170 171

Ibid., p. 24. Ibid., p. 25. Ibid. Ibid. Ibid. Ibid., pp. 25–7. Ibid., p. 26. Baptist Semple awards top billing to the Baptists. Presbyterian Howison puts it this way: “While one body of Dissenters [the Baptists] thus advanced to undermine the temple of the Established Church, another [the Presbyterians] arose, and laying a hand guided by learning and nerved by devotion, upon the pillars of the temple, shook them to their very foundation” (History of Virginia, pp. 170–1). For a more recent history of this era, see Thomas E. Buckley, S. J., Church and State in Revolutionary Virginia, 1776– 1787 (Charlottesville: University Press of Virginia, 1977), who writes, “In his ‘Memorial and Remonstrance,’ Madison had contributed a brilliant statement on behalf of religious liberty. Yet to contemporary observers, the work of the evangelicals and particularly the Presbyterians appeared even more decisive for the outcome” (p. 143). See also Rhys Isaac, The Transformation of Virginia 1740–1790 (Chapel Hill: University of North Carolina Press, 1982); Dreisbach, “Church-State Debate in the Virginia Legislature”; and Rhys Isaac, “ ‘The Rage of Malice of the Old Serpent Devil’: The Dissenters and the Making and Remaking of the Virginia Statute for Religious Freedom,” in Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia Statute for Religious Freedom, Its Evolution and Consequences in American History (Cambridge: Cambridge University Press, 1988).

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Ultimately, following the presentation of numerous memorials from a variety of dissenting religious groups, in October 1776 Virginia passed a law “suspending the payment of salaries formerly allowed to the ministers of the church of England.” Semple writes that the memorials “formed the basis of the act,” which exempted “the different societies of dissenters from contributing to the support and maintenance of the church.”172 By 1779, all statutes providing for the payment of Anglican salaries were repealed, and Semple recommends to his readers that the preamble of this law is especially “worthy of consideration, and was probably drawn by Mr. Jefferson.”173 To be fair, Semple notes that “many of the Episcopalians, who voted for abolishing the establishment, did it upon an expectation that it would be succeeded by a general assessment.”174 This was not to be the case in 1776: “the war now rising . . . , they were in too much need of funds to permit any of their resources, to be devoted to any other purpose.”175 Several years later, in 1784, the general assessment proposal returned, leading to a “bill, which had for its object the compelling of every person to contribute to some religious teacher.”176 This bill, referred to by Justice Waite in Reynolds, “drew forth a number of able and animated memorials from religious societies of different denominations.”177 Among all of these documents, according to Semple, “a paper drawn up by Col. James Madison (now President of the United States), . . . ‘A Memorial and Remonstrance,’ will ever hold a most distinguished place. For elegance of style, strength of reasoning, and purity of principle, it has, perhaps, seldom been equaled; certainly never surpassed by anything in the English language.”178 He was so moved by Madison’s Memorial that he attached a copy of the document as the only appendix to the lengthy volume. Interestingly, Semple’s chapter ends with no mention of Jefferson’s religious freedom statute; instead, the dissenters, in combination with the persuasive power of Madison’s Memorial and Remonstrance, were credited by Semple with securing the defeat of the general assessment bill, which appears to be the climax of the entire church-state discussion. It takes another forty pages, during a long and detailed discussion of the lobbying efforts of the General Association of the Baptists, before Semple reaches the bill for 172 173 174 175 176 177 178

Semple, Virginia Baptists, p. 32. Ibid. Ibid., p. 33. Ibid., p. 27. Ibid., p. 33. Ibid. Ibid.

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religious freedom. Noting that the general assessment law did not pass, Semple observes that “on the contrary, an act explaining the nature of religious liberty” was adopted.179 This law, writes Semple, “so much admired for the lucid manner, in which it treats of, and explains religious liberty, was drawn by the venerable Mr. Thomas Jefferson.”180 With this much delayed coda about Jefferson’s bill, Semple concludes his discussion of the battles for religious freedom and returns to the story of the Baptist churches and their leaders. Which History? Thanks to Bancroft’s advice to Waite that he follow the pathway to Thomas Jefferson and Virginia, the chief justice located the heart of the First Amendment’s religion clauses in what we might now call the ardently strict separationist branch of the church-state debate. United in their disdain for the historically established Anglican Church and their belief in religious freedom as a natural right, “infidels” (mostly Jefferson) and the devoutly consecrated Presbyterians and Baptists – with perhaps Madison somewhere in between181 – joined in a battle against a broad-based tax in support of religion that stimulated thoughtful and eminently quotable apologies for religious liberty and disestablishmentarianism. Their effect on the unfortunate Mr. Reynolds’s religious freedom defense was marginal at best, but their influence on the future course of establishment clause jurisprudence is profound indeed. For the chief justice to reach a decision in the Reynolds case – bearing in mind that his assignment was to craft an opinion for the majority who voted to sustain the conviction – he needed to work around the odes to religious liberty he found in the words of Jefferson and Madison as well as in the writings of the Baptists and Presbyterians. Only by drawing on Jefferson’s final qualifying phrases (e.g., when religious actions “break out into overt acts against peace and good order”) in the Virginia Bill for Establishing Religious Freedom, and by citing Virginia’s subsequent action making bigamy a capital offense, does Waite in effect rescue his opinion from the torrent of Virginia writings and history that could easily have pushed the decision in 179 180 181

Ibid., p. 72. Ibid. There has been some controversy over the extent of Madison’s personal religiosity. For a discussion of this topic, see, e.g., Ralph L. Ketcham, “James Madison and Religion: A New Hypothesis,” in Robert S. Alley, ed., James Madison on Religious Liberty (Amherst, N.Y.: Prometheus Books, 1985), 175–96.

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the opposite direction. What is fascinating about the opinion is the degree to which Waite’s historical research drew him so deeply into the Virginia vortex as he searched for the inspiration for the religion clauses. The historians consulted by Waite were never shy about the Old Dominion’s pivotal position in the development of religious freedom. In Bancroft, he found a Jeffersonian who believed, among other things, that the civil rights legislated in Virginia announced “principles for all peoples in all future times.” Moving on to Howison, he encountered a Virginian who believed that the Commonwealth “has exerted an influence upon the fate of America that may well draw to her progress that notice of all who hope to find in the past, lessons for future generations.”182 For Howison, the First Amendment was little more than a reprinting of Virginia’s proposals, which were born of the unhappy experiences of the Presbyterians, Baptists, and other dissenting religious groups. Howison led Waite to Semple and his history of the Virginia Baptists, whose story not only served as a guidepost for the proper relation of church and state for what Howison called “future generations,” but extended to eternal priorities as well; Semple believed that the “rise and rapid spread of the Baptists in Virginia were so remarkable, that there are but few, who do not believe that some historical relation of them will be productive of real advantage to true religion.”183 In light of the degree to which Bancroft, Howison, and Semple link the Virginia experience to the development of civil rights generally, it is easy to see how Chief Justice Waite would become so focused on the Virginia origins of the First Amendment, especially since his entire research effort took place over a few weeks that included the Christmas holidays. At the same time, however, there were equally (or perhaps more) prominent sources available to the chief justice that not only would have amply supported the conclusion he needed to reach – that is, that the bigamy conviction be upheld – but, as raw material for future law office historians, could have taken the establishment clause in a very different direction. The Supreme Court regularly called on any of a number of earlynineteenth-century legal treatises for aid in constitutional cases. Chief Justice Waite might well have reached out to one of the most influential treatises, Supreme Court Justice Joseph Story’s Commentaries on the Constitution, 182

183

Howison sounds quite a bit like Bancroft here, which is not surprising since he made a point of noting that he enjoyed reading Bancroft’s History of the United States of America while attending Virginia’s Union Theological Seminary in the years just before penning his own History of Virginia. Apparently, he later purchased the full twelve-volume set. Stephens, “Twice Forty Years,” p. 61, citing Howison’s manuscript autobiography. Semple, Virginia Baptists, p. v.

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which proffered an opinion about how Americans during the founding era believed that Christianity should “receive encouragement from the State” that sounds quite different from Jefferson’s “wall of separation”: Probably at the time of the adoption of the Constitution, and of the [First] Amendment . . . the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.184

Story’s Commentaries were widely read, and when Waite graduated from Yale, he made a list of books to acquire for his future law practice, two of which were a commentary by Kent (which was cited in Reynolds) and one by Story.185 Chief Justice Waite could have written the constitutional portion of his opinion by drawing only on these two old favorites. Kent provided the opinion with ammunition for the argument that the uncivilized practice of polygamy leads to “despotism” and other social and political ills, while Story could have offered the needed assurance that the First Amendment’s free exercise clause would not bar the government from encouraging civilized (or even “Christian”) behavior in marriage since “the right of a society or government to interfere in matters of religion will hardly be contested by any person, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.”186 If Chief Justice Waite had looked at other constitutional commentaries of the time, he would generally have found the same themes that appeared in Story. Joel Tiffany, writing in 1867, quotes Story’s Commentaries approvingly on the subject of religion, and espouses the view that government must protect society from conduct that “tends directly to destroy public morality and virtue,”187 especially Mormon polygamy. At the same time, Tiffany 184

185 186 187

Joseph Story, Commentaries on the Constitution of the United States (Boston: Charles C. Little and James Brown, 1851), 591. The other major legal commentator of the time, Thomas Cooley, wrote primarily about “constitutional limitations which rest upon the legislative power of the states,” and rarely referenced federal power. He also made generally laudatory comments about Story’s Commentaries. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the State of the American Union, 4th ed. (Boston: Little, Brown, 1878), pp. 586–7. See Magrath, Triumph, 31. Story, Commentaries, p. 591. Joel Tiffany, A Treatise on Government and Constitutional Law (Albany, N.Y.: W. C. Little, 1867), pp. 393–4.

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asserts, the government “can appropriately encourage that faith and practice, which appears to it, to lead to [a] true religious condition or state, and in this way, to encourage religion” without running afoul of the establishment clause.188 A year after Tiffany’s book was published, lawyer and Georgetown professor George W. Paschal issued The Constitution of the United States Defined and Carefully Annotated.189 Paschal’s text is largely in the form of notes and definitions, and he refers the reader to Story’s Commentaries several times in his brief page and a half on the First Amendment. His definition of “establishment,” taken from “Worcester’s Dictionary,” is “a system of religion recognized and supported by the State; as the . . . Established Church of England.”190 The religion clauses get even shorter shrift from John Norton Pomeroy, the Dean of New York University Law School, also writing in 1868, who essentially skips over the First Amendment, and by William Rawle, appointed United States Attorney by George Washington, whose 1829 commentary (cited by Story) simply extols the principle of religious liberty set forth in the First Amendment.191 A similarly brief but laudatory comment on the principle of non-establishment is found in John King’s 1871 commentary.192 Timothy Farrar, Daniel Webster’s law partner and librarian of Dartmouth College, comments only briefly on the religion clauses, and then primarily to engage in something of a harangue on the “plenary powers” of the Congress (i.e., what would be the purpose of having the religion clauses if Congress’s powers were limited to what some “insidiously” call its “enumerated powers”?)193 In summary, we know that Chief Justice Waite was familiar with leading commentators like Story and Kent, and he would undoubtedly have been 188 189

190

191

192

193

Ibid., p. 393. George W. Paschal, The Constitution of the United States Defined and Carefully Annotated (Washington, D.C.: W. H. & O. H. Morrison, 1868). Ibid., 254. While modern constitutional commentaries have updated their discussion of “establishment,” dictionaries have not necessarily done so. The definition of “established church” in Webster’s Dictionary, Revised and Updated (New York: Harper Collins, 2007), is not much different from Worcester’s Dictionary from the nineteenth century. Today’s Webster’s reads: “established church: church officially recognized as national institution” (p. 165). John Norton Pomeroy, An Introduction to the Constitutional Law of the United States (New York: Hurd and Houghton, 1868), and William Rawle, A View of the Constitution of the United States of America, 2nd ed. (Philadelphia: Philip H. Nicklin, 1829). John King, A Commentary on the Law and True Construction of the Federal Constitution (Cincinnati: Robert Clark, 1871), pp. 322–3. Timothy Farrar, Manual of the Constitution of the United States of America, 3rd ed. (Boston: Little, Brown, 1872), pp. 286–7.

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exposed to some of the others in his legal and judicial career. Had the chief justice focused on the contemporary constitutional commentaries instead of reaching out to George Bancroft, his desired conclusion – that is, to uphold Mr. Reynolds’s conviction – would have been easily defended without any reason to invoke Madison, Jefferson, or the Old Dominion.194 Chief Justice Waite, however, did not rely on the commentaries, and by soliciting the aid of a historian instead, he created a novel constitutional theory of the religion clauses in this case of first impression. Conclusion Waite’s analysis of how the free exercise clause should be applied in cases like Mr. Reynolds’s – that is, that it provides no defense to prosecution for criminal acts – has been controversial in modern times,195 but his commitment 194

195

See, e.g., the lectures of Supreme Court Justice William Strong published just a few years before the Reynolds case, in which he writes, “That toleration and that liberty of conscience which the Federal Constitution and the constitutions of the several States have endeavored to secure are not construed so as to excuse acts of licentiousness, or to justify practices inconsistent with the peace or safety of the State.” William Strong, Two Lectures upon the Relations of Civil Law to Church Policy, Discipline, and Property (New York: Dodd & Mead, 1875), pp. 33–4. Referencing specifically the “Mormon church [which] furnishes a good example of what I mean,” Strong writes that it “would be idle for a Mormon indicted for bigamy to plead that his second marriage was recognized as lawful by his church, and sanctioned by his own religious convictions” (pp. 35–6). None of Strong’s analysis touches on Virginia’s church-state history except to note that “there was in Virginia, down to the period of the revolution, a close alliance between civil government and the church” (p. 24). See Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), where the Court said, “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law that the State is free to regulate. . . . We first had occasion to assert that principle in [Reynolds]” (494 U.S. 879). See also the “Religious Freedom Restoration Act” (RFRA), signed into law on November 16, 1993, in response to the Smith case. RFRA prohibited the government from “substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that . . . interest.’” Boerne v. Flores, 521 U.S. 507 (1997). The Court struck down RFRA as applied to state laws on the grounds that it “contradicts vital principles necessary to maintain separation of powers and the federal balance.” Ibid. RFRA still applies to cases involving federal laws. See, e.g., Gonzales v. O Centra Espirita Beneficente Uniao DoVegetal (UDV), No. 04–1084 (February 21, 2006), which involved the use of controlled substances found in Amazon rainforest plants by the UDV church. The Court held that the government had not met its “compelling interest” burden under RFRA. As recently as May 2006, the Utah Supreme Court was asked to strike down a conviction under Utah’s bigamy statute because of the defendant’s free exercise rights under First Amendment to the United States Constitution. The defendant, a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints, argued that “Reynolds is ‘nothing more than a hollow relic of bygone days of fear, prejudice, and Victorian

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to interpreting the establishment clause in light of the words and deeds of Thomas Jefferson and James Madison has essentially been settled constitutional doctrine ever since the opinion appeared. Even when Chief Justice Rehnquist assailed the wall of separation as “a metaphor based on bad history” in a 1985 dissenting opinion, he did not seek to divert attention completely away from Madison and Jefferson; rather, he focused on various events during the term of the First Congress and during Madison’s and Jefferson’s presidencies that were suggestive of a less strict separation between church and state than the attitudes expressed in the materials employed by Justice Waite.196 As recently as in the June 2005 case involving the display of the Ten Commandments on public property, the Supreme Court’s majority and dissenting opinions debated which writings of Jefferson and Madison were the most relevant to the interpretation of the establishment clause.197 It would be difficult to find an area of constitutional law more closely and consistently identified with the views of specific framers than the link forged by Chief Justice Waite between the First Amendment’s religion clauses and the writings of Jefferson and Madison. It is interesting to hypothesize about why Chief Justice Waite went so far out of his way to invoke the strict separationist language from Madison and Jefferson when little, if any, was needed to address Mr. Reynolds’s religious freedom defense. We could, for example, speculate that Waite’s opinion was designed not only to dash the Mormon hopes of a constitutional right to engage in religiously mandated polygamy, but also to send a message that the ecclesiastically dominated Territory of Utah would find the establishment clause to be an inhospitable environment for entry into statehood. In this connection, it is noteworthy that the 1888 Republican platform supported “appropriate legislation asserting the sovereignty of the nation in all territories where the same is questioned, and in furtherance of that end to place upon the statute-books legislation stringent enough to divorce the political from the ecclesiastical power, and thus stamp out the attendant wickedness

196

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morality.’” The Court rejected the argument. State of Utah v. Holm, Supreme Court of Utah, No. 20030847 (May 16, 2006). Wallace v. Jaffree, 472 U.S. 38 (1985). He mentioned, for example, Thanksgiving Day Proclamations by President Madison and a Jefferson administration treaty with the “Kaskaskia Indians” providing, in part: “And whereas, the greater part of said Tribe have been baptized and received into the Catholic church, to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion . . . [a]nd . . . three hundred dollars, to assist the said Tribe in the erection of a church.” Ibid., n. 5. McCreary v. American Civil Liberties Union, No. 03–1693 (June 27, 2005).

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of polygamy.”198 Yet there is no evidence that Waite had any intention of sending this type of message. We could also posit that Waite had a personal commitment to a rigorous separation of church and state, and he seized the opportunity in Reynolds to endow those views with a constitutional mandate. It seems unlikely that Waite was a dogmatic strict separationist, however. In his capacity as chancellor of the Smithsonian Institution, he wrote a note on the subject of whether it would be appropriate to open the museum on Sundays. The correspondence shows more of a pragmatic view than a strictly principled one: “I will go as far as anyone to promote the observance of the Sabbath, and to make it a day of holy thoughts, but I am by no means certain that the opening of the . . . Smithsonian . . . may not conduce to that end. . . . My idea is, if you can’t make people as good as you wish, make them as good as you can. Education at the Smithsonian may send some to church. At any rate it is not likely to make anyone who wants to go there worse.”199 Biographer Magrath, noting that Waite was a lifelong “low-church Episcopalian” and church leader, sees Waite’s position here as very much in keeping with his “great practicality.”200 Alternatively, we could imagine that the chief justice simply wanted to do his friend Bancroft a favor by following his Jeffersonian predilections. But Waite did not always follow Bancroft’s advice or his research into constitutional history. Bancroft strongly opposed paper money, which the Waite court permitted in Juilliard v. Greenman. Knowing Bancroft’s views on the subject, Waite invited him to attend the session of the Supreme Court when the decision was being announced. Shocked that the Court had not followed his guidance, Bancroft wrote the following to Waite afterward: “I never in my life have been so surprised as when I caught the nature of the decision of the Court. I had before its delivery given the most full attention to the subject and had expressed in my History of the Formation of the Constitution the conclusion at which I arrived. I have again examined the question and have been perfectly reassured that the historical statement I had published is entirely correct.”201 198

199 200 201

Quoted in T. H. McKee, National Conventions and Platforms of All Political Parties, 1789–1905: Convention, Popular and Electoral Vote (New York: Burt Franklin, 1972), p. 242. Quoted in Magrath, Triumph, pp. 305–6. Ibid. Quoted in Trimble, Chief Justice Waite, p. 288. See Juilliard v. Greenman, 110 U.S. 421 (1884).

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There may be numerous explanations for why Waite wrote the Reynolds opinion the way he did, but there is scant evidence to support any but the most simple and straightforward: He believed that he had accurately captured the spirit of the religion clauses through his historical research. As his biographer Peter Magrath has documented, Justice Waite felt that he, as chief justice, had a special responsibility for constitutional cases, and it appears that he switched his vote in Reynolds specifically to be able to write the majority opinion. The religion clauses being virgin constitutional territory, he did a reasonable thing and asked George Bancroft, an eminent historian of America and the American Constitution (who happened to be a friend as well), to give him insight into the background of the First Amendment. Bancroft obliged by providing Waite with a reference to Jefferson and Virginia. Once on the path to Virginia, Waite not only happened upon the works of Jefferson and Madison but he also fell under the influence of minister-historians Howison and Semple, who placed Virginia disestablishmentarianism at the center of American freedoms. While Bancroft sought to award the historical accolades to Jefferson, Howison and Semple claimed the operational credit for the Presbyterians and the Baptists but were perfectly happy to embrace Jefferson’s and Madison’s writings because they persuasively and felicitously made the case for the dissenting churches’ approach to religious liberty and disestablishment. It is hard to know whether the writings of these two Virginia historians influenced Bancroft’s views, but, ultimately, it was the combined power of a consistent historical message from all three historians that provided Chief Justice Waite with a full-fledged theory of the Virginia disestablishmentarian origins of the religion clauses of the First Amendment.202 And there is little doubt that this theory meshed 202

In reviewing how the chief justice adopted the Virginia history, it is interesting to see the extent to which Waite redacted from Howison’s and Semple’s accounts the specific roles played by the Baptists and the Presbyterians, thereby excising the theological roots of America disestablishmentarianism and replacing them with Madison’s and Jefferson’s writings. Both Howison and Semple emphasized the specific political and theological contributions of the evangelical community to the general assessment debates, with Madison and Jefferson playing supporting roles. But in the jurist’s hands, the Baptists and Presbyterians essentially drop out of sight. The distinctly religious elements of the Virginia story were replaced by a tale of the exploits of two great statesmen, thus rendering the origins of the establishment clause essentially nonsectarian, again reflecting the tone of the era’s dominant approach to church-state issues. At that time, many Americans believed that the separation of church and state was entirely consistent with practices such as Protestant prayers and Bible reading in the public schools, but it was important that any such activities be nonsectarian, i.e., neither Roman Catholic nor identified with any particular Protestant denomination. In this environment of ecumenism (albeit usually limited to nondenominational Protestantism), the proudly Presbyterian and Baptist contributions to

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well with prevailing opinions on the subject in the late 1870s when the Reynolds case was decided. As Philip Hamburger has demonstrated, the strict separationist view that was adopted by Chief Justice Waite in Reynolds had settled into American zeitgeist by the latter portion of the nineteenth century.203 A combination of liberal secularism, “traditional fears about the anti-Christian character of Catholicism and its union of church and state,”204 and a host of other factors contributed to a widespread belief by people inhabiting a wide range of other positions on the political spectrum that the separation of church and state was one of the cornerstones of American democracy. For example, historian Philip Schaff observed in an influential 1888 essay, “Church and State in the United States,” that “Liberty, both civil and religious, is an American instinct. . . . Such liberty is impossible on the basis of a union of church and state. . . . It requires a friendly separation, where each is entirely independent in its own sphere.”205 As Hamburger puts it, by the 1870s, “the separation of church and state had become an almost irresistible dogma of Americanism.”206 In this environment, it is hardly surprising that Chief Justice Waite found the Virginia disestablishmentarian history of the First Amendment so convincing or that he found Jefferson’s “wall of separation” language so compelling. Hamburger’s analysis suggests that a considerable amount of strict separationist doctrine was espoused by those geographically or politically close to Waite, but there seems to be no evidence that Waite himself had strong views on the subject. President Grant, who was at one time a member of the Know Nothings, proposed in 1875 “a constitutional amendment separating church from state – particularly, the Catholic Church from the American states.”207 Meanwhile, at the opposite end of the political spectrum, the

203

204 205

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Virginia’s church-state debates described in Howison and Semple would have introduced into a Supreme Court opinion the distraction of a distinctly religious element in the otherwise nonsectarian odes to the separation of church and state that Waite chose to quote from Madison and Jefferson. The chief justice’s approach thus neutralized the Virginia church-state history, rendering it more easily acceptable to late-nineteenth-century Americans (and, perhaps, to early twenty-first-century Americans as well). Hamburger, Separation of Church and State, pp. 191–284. See also John Higham, Strangers in the Land: Patterns of American Nativism 1860–1925 (New York: Atheneum, 1973), and Joan DelFattore, The Fourth R: Conflicts over Religion in America’s Public Schools (New Haven, Conn.: Yale University Press, 2004). Hamburger, Separation of Church and State, p. 202. Philip Schaff, Church and State in the United States, vol. 2, Papers of the American Historical Association, no. 4 (1888): 9–16. Hamburger, Separation of Church and State, pp. 270–1. Ibid., p. 322. See Congressional Record, 4 (1): 175, 181 (Senate, Dec. 7, 1875).

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Toledo Liberal Alliance, which became a national movement, made the separation of church and state its unifying theme in the early 1870s, at a time when Waite was living in Toledo.208 By the 1870s and 1880s both liberals and nativists began to shift their strategy from securing a constitutional amendment mandating the separation of church and state to making arguments that “this ideal had been secured in the U.S. Constitution and even the First Amendment.”209 At the same time, Protestant leaders sought ways to claim historical credit for their respective churches for the principle of the separation of church and state, and, in Hamburger’s words, “this seemed to confirm that separation had been guaranteed in American constitutions.”210 Of course, Waite’s own Episcopal denomination – heir to the Anglican Church that had been disestablished in Virginia – was unlikely to compete for these honors. But there can be little doubt that separation was “in the air” during the time the Reynolds case was decided. While the Reynolds opinion undoubtedly captured the spirit of its era, much could be critiqued in Chief Justice Waite’s rendition of the history of the separation of church and state. In his historical summary of the origins of the religion clauses, he left out the debates in the First Congress, the state ratifying debates, any hint of a role played by the anti-federalists, widely read constitutional commentaries from nineteenth-century luminaries such as Story and Cooley, the tax-supported churches in New England that endured well into the nineteenth century, and a host of other documents and events that could potentially be relevant to a comprehensive treatment of the subject. But to his credit, in a single holiday-filled month, he fashioned a plausible political and intellectual history of the religion clauses that has stood the test of time. And with respect to the establishment clause in particular, he did so with no apparent intentions other than to get it right. In doing so, he ultimately fell under the influence of disestablishmentarian historians whose fellow Baptists and Presbyterians, to gain political advantage in their battles against Virginia’s establishment, embraced the bills of the “infidel” Jefferson and rescued Madison’s Memorial and Remembrance from relative political obscurity (since other petitions on the subject had attracted far more signatures). In the end of Justice Waite’s version of the history, the evangelicals who won the political victories – and whose historians told the tale – fall from view, but their commitment to disestablishment endures through the lingering effects of a Madisonian-Jeffersonian 208 209 210

Hamburger, Separation of Church and State, pp. 289–96. Ibid., p. 342. Ibid., p. 352.

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interpretation of the establishment clause. It is perhaps ironic that what we now tend to see as the Enlightenment-inspired doctrine of non-establishment heralded in the Virginia Statute for Religious Freedom and Madison’s Memorial and Remonstrance not only was made politically possible by the active campaigns of evangelical Protestants highly distrustful of Enlightenment thinking, but was shepherded into constitutional doctrine by deeply devout Baptist and Presbyterian historians proudly claiming credit for a First Amendment whose origins were undoubtedly much more complex and variegated than local Virginia battles over a weak and unpopular Anglican establishment. In summary, it would be unfair to accuse Chief Justice Waite of engaging in the law office history of twentieth-century establishment clause controversies. To the contrary, what we see in Reynolds is a case study of constitutional creation ex nihilo. It is the historians Waite consulted who took the churchstate question down a somewhat more narrow path than it deserved, not in hopes of influencing constitutional interpretation in the future but simply to tell the story in a fashion that provided maximum credit to those whom – they believed – most deserved it. And in viewing Waite’s interpolation of that history into the Court’s first foray into the religion clauses, we can see the historical construction of what has become constitutional reality.

3 Everson A Case of Premeditated Law Office History

Justice Rutledge: “You can’t draw the line between a little and a lot of pregnancy. Every religious institution in the country will be reaching into the hopper for help if you sustain this.” Justice Black: “I won’t go in a whole hogically way to contribute to a church – only this far.” From the Supreme Court’s Conference in Everson v. Board of Education1

Introduction For nearly 150 years, from the adoption of the Bill of Rights in 1789 until the middle of the twentieth century, the First Amendment’s establishment clause, which begins, “Congress shall make no law,” was taken at its word as a limitation only on the federal government. Testimonials to that effect come from the most distinguished sources, including Thomas Jefferson, James Madison, and the nineteenth-century Supreme Court. When Thomas Jefferson’s second inaugural speech touched on the issue of the relationship of religion and government, he made a point of saying that the entire topic had been reserved to the states. The speech’s language on this point was originally drafted 1

Del Dickson, ed., The Supreme Court in Conference (1940–1985): The Private Discussions behind Nearly 300 Supreme Court Decisions (Oxford: Oxford University Press, 2001), p. 402. I read Black’s phrase “whole hogically” as a variation on “going whole hog,” which a 1975 dictionary of American slang defines as “thoroughly, completely; to go the limit; to take a bold step.” Harold Wentworth and Stuart Berg Flexner, eds., Dictionary of American Slang (New York: Crowell, 1975), p. 578. A more recent dictionary of slang does not include “whole hog” but lists the substantially similar “whole schmear.” Richard A. Spears, ed., NTC’s Dictionary of American Slang and Colloquial Expressions (Lincolnwood, Ill.: National Textbook, 2000), p. 467.

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by James Madison, Jefferson’s compatriot in enacting the Virginia Bill for Establishing Religious Liberty; Madison’s words read, “religious exercises, could . . . be neither controuled nor prescribed by us. They have . . . been left as the Constitution found them, under the direction and discipline acknowledged within the several States.”2 Then in 1845, the Supreme Court issued an opinion holding that “[t]he Constitution makes no provision for protecting the citizens of the respective states in their religious liberties.”3 Throughout the nineteenth century, state and local matters were simply not governed by the prescriptions of the First Amendment. In a 1902 history of religious liberty, Sanford Cobb, a strong proponent of the separation of church and state, noted: “The constitution . . . bestowed no right of interference with the institutions of a religious character which any state might choose to establish, so long as the moral safety and the integrity of the nation were not involved. . . . If one of the states, even to-day, should change its own constitution and set up a State-Church . . . and should put such Church upon the public treasury for support, the general government has no power to prevent it.”4 Since colonial times, the primary intersections between religion and government have occurred at the local level, and the history of church-state interactions in America through the early twentieth century is told with hardly a nod toward the federal courts, apart from the Reynolds case and a few others relating to Mormons or Native Americans living outside the several states, where acts of Congress more readily touched people’s daily lives. This is not to say that church-state controversies were absent throughout the nation’s formative years – quite the contrary – but 2

3

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James Morton Smith, ed., The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776–1826, 3 vols. (New York: W. W. Norton, 1995), vol. 3, p. 1364. Jefferson’s final version reads: “In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it, but have left them, as the Constitution found them, under the direction and discipline of the Church or State authorities acknowledged by the several religious societies.” Inaugural Addresses of the Presidents of the United States (Washington, D.C.: GPO, 1965), pp. 17–18. This view of the Constitution did not impede Jefferson from also saying in that same address, “I shall need . . . the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His Providence and our riper years with His wisdom and power.” Quoted in Thomas E. Buckley, S.J., “The Religious Rhetoric of Thomas Jefferson,” in Daniel L. Dreisbach, Mark D. Hall, and Jeffry H. Morrison, eds., The Founders on God and Government (Lanham, Md.: Rowman and Littlefield, 2004), p. 73. Permoli v. Municipalty No. 1, New Orleans, 44 U.S. 589 (1845), which involved an ordinance making it unlawful “to carry to, and expose in, any of the Catholic churches . . . any corpse.” Sanford H. Cobb, The Rise of Religious Liberty in America (New York: Macmillan, 1902), p. 510.

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that the First Amendment and the federal courts were rarely active participants in those disputes.5 When they arose, church-state issues were debated and determined by cities, towns, and states throughout the nation, and their outcomes varied from one locale to another. And as each hard-fought local controversy reached resolution, there was, no doubt, an echo of Lyman Beecher’s wildly inaccurate 1820 remarks on the demise of Connecticut’s state-supported religion called the standing order: “It was the last struggle of the separation of Church and State.”6 The first half of the twentieth century brought an abrupt change of forum for resolving church-state issues, leading virtually to one national body for the ultimate resolution of disputes over religion and government interactions, namely, the United States Supreme Court. In the last century, the Supreme Court began to interpret the Fourteenth Amendment’s due process clause broadly enough to suggest that the First Amendment – and many other aspects of the Bill of Rights – had become fully applicable to the states, as if the First Amendment’s phrase “Congress shall make no law” had been revised to read “Governmental authorities of any sort shall take no action.” Thereafter, an attempt by a state or town to provide aid or support for a religious organization, for example, providing bus transportation to religious schools, could become, quite literally, a federal case, and the Supreme Court became the decision-maker-in-chief for the whole nation’s continuing struggle to resolve church-state questions. The First Amendment’s religion clauses were first applied to a state law in 1940 when the Supreme Court subjected a Connecticut antisolicitation law to scrutiny under the free exercise clause in a case involving door-to-door proselytizing by the Jehovah’s Witnesses. In that case, the Court announced that the “fundamental concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties guaranteed by the First Amendment.”7

5

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Rather, as Carl Esbeck has written, “disestablishment was a state-by-state affair, and hard work at that. It was a veritable slog with the path forward marked by local concerns and local personalities, as opposed to an issue that some continental-spanning crisis had elevated to a matter of national importance.” Esbeck has also noted, “[I]t is not too strong to say that during the early republic, the First Amendment was of little use as a standard around which to rally the forces in support of disestablishment.” Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review 2004, no. 4 (February 6/7, 2004): 1385. From his autobiography, excerpted in John F. Wilson and Donald L. Drakeman, Church and State in American History, 3rd ed. (Boulder, Colo.: Westview Press, 2003), p. 88. Cantwell v. Connecticut, 310 U.S. 296 (1940), in which the Court goes on to say: “The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the

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With the free exercise clause thus brought to bear on the states, the stage was set for the Court to consider how the establishment clause might be applied to the variegated relationships between religion and government at the state and local levels that had been developing since before the Republic was founded. Whether such an expansion of the reach of the Bill of Rights was intended by those who framed the Fourteenth Amendment has been vigorously debated,8 but the jurisprudential notion itself is, by now, quite firmly settled. (Or perhaps more accurately stated, the Supreme Court, however much it may be dedicated to principles of federalism and to the powers reserved to the states under the Tenth Amendment, has not suggested that it might relinquish the awesome power assumed by the Court via the nationalization of the Bill of Rights.9 ) As a result, the “incorporation doctrine,” that is, the view that the concept of due process in the Fourteenth

8

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legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion.” Ibid. at 303. Justice Black, in Adamson v. California, 332 U.S. 46 (1947), wrote a much-cited dissenting opinion advocating that the entire Bill of Rights be applicable to the states via the Fourteenth Amendment. This issue has been heavily debated. See, e.g., Charles Fairman and Stanley Morrison, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” Stanford Law Review 2 (1949): 5. To the extent that some have concluded that the original intention of the First Amendment’s establishment clause was to protect existing state establishments from federal interference – or at least that religion was, in Madison’s words, “left as the Constitution found [it]” under state jurisdiction – the concept of applying that same clause in a way that would take away state authority over church-state issues seems especially troubling. See, e.g., “Rethinking the Incorporation of the Establishment Clause: A Federalist View,” Harvard Law Review 7 (1992): 1700–719; Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995); William C. Porth and Robert P. George, “Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause,” West Virginia Law Review 90 (1987): 109; and Akhil Reed Amar, The Bill of Rights (New Haven, Conn.: Yale University Press, 1998), chapter 2. Daniel Dreisbach has listed quite a few books and articles written in opposition to the incorporation doctrine as applied to the establishment clause. See Daniel Dreisbach, “Everson and the Command of History: The Supreme Court, Lessons of History, and Church-State Debate in America,” in Jo Renee Formicola and Hubert Morken, eds., Everson Revisited: Religion, Education and Law at the Crossroads (Lanham, Md.: Rowman & Littlefield, 1997), p. 51, n. 47. The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The one possible current exception to the Court’s enthusiastic embracing of the incorporation doctrine is Justice Thomas’s concern that the text and history of the establishment clause, in particular, “resist . . . incorporation.” See his concurring opinion in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow, 542 U.S. 1, 46 (2004).

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Amendment includes liberties described in the First Amendment, has become firmly ensconced in constitutional law and practice. In light of the twentieth century’s voluminous history of establishment clause challenges to state aid programs for religious schools – usually Roman Catholic parochial schools – it seems appropriate that the Court’s maiden voyage into modern church-state jurisprudence would steer it into the murky depths of “parochiaid” litigation. The first constitutional question raised in the Supreme Court under the establishment clause’s newfound national jurisdiction10 related to a central New Jersey school district with no high school. The district filled that void by paying parents for the transportation costs to send their children on a bus either to other towns’ public high schools or to the Roman Catholic parochial schools in nearby Trenton. After winding its way through the New Jersey state courts, where the notion that the Bill of Rights might be implicated was completely overlooked, the case of Everson v. Board of Education11 arrived at the Supreme Court’s door in late 1946; it provided the initial opportunity for the Court to consider how the establishment clause – which, in the words Madison wrote for Jefferson, left “religious exercises . . . as the Constitution found them, under the direction . . . acknowledged within the several States” – might now be interpreted to nullify that state authority and replace it with a new national standard.12 10

11 12

William Bentley Ball has argued that this case, Everson v. Board of Education (1947), is not actually an establishment clause case. Instead, he asserts that despite all of the “establishment clause dictum in Everson,” it is, in fact, “a free exercise decision.” William Bentley Ball, “Litigating Everson after Everson,” in Formicola and Morken, Everson Revisited, p. 221 (emphasis in original). Irrespective of which of the two religion clauses was more central to the Everson decision, the Court’s interpretive approach has been far more important for subsequent establishment clause cases than for cases arising under the free exercise clause. Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947). More than twenty years later, Justice Douglas, who was part of the Everson majority, commented on the “revolution” brought about by the incorporation doctrine in his dissenting opinion in an establishment clause challenge to tax exemptions for religious property: “That revolution involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely on state law.” Walz v. Tax Commission, 397 U.S. 664, 702 (1970). Interestingly, Justice Douglas uses this observation to reject the majority’s reliance on the history of tax exemption over “two centuries.” He counters, “The question here . . . concerns the meaning of the Establishment Clause and the Free Exercise Clause made applicable to the States for only a few decades, at best.” Ibid. at 703. It would seem that Douglas would then reject a Jeffersonian-Madisonian interpretation of the establishment clause on similar grounds (i.e., that they were not commenting on a national approach to church-state issues, and they had no involvement with the Fourteenth Amendment), but, in fact, he cites that approach favorably, noting that “Madison’s assault on the [colonial Virginia] Assessment Bill was . . . an assault based on the concepts of ‘free exercise’ and ‘establishment’ of religion later embodied in the First Amendment.” Ibid. at 705.

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In the end, the Everson case is less well known for its narrow holding as to the constitutionality of the New Jersey busing program than for how certain works of Madison and Jefferson have become indelibly written into First Amendment jurisprudence: not their comments about leaving religion where the Constitution found it, but what have become the canonical texts of strict separationism, Madison’s Memorial and Remonstrance Against Religious Assessments and Jefferson’s “wall of separation” letter to the Danbury Baptists. Primary credit (or blame) for the Eversonian approach to churchstate history typically goes to Justice Hugo Black, the author of the majority opinion and, in the estimation of one legal historian, “the Supreme Court’s chief practitioner of law office history.”13 John Sexton observes that Justice Rutledge’s lengthy history-laden dissenting opinion “merely restated Justice Black’s [historical] account . . . with different emphasis,”14 while John Valauri notes that “the Everson dissenters . . . proceed[ed] from Black’s historical matrix,”15 and Henry T. Miller concludes that “[t]he present Court’s historical interpretation can be traced to Justice Black’s opinion.”16 But Black was not the Court’s historian-in-chief in Everson; in fact, he was reluctantly dragged into eighteenth-century arcana by Justice – and former law professor – Wiley Rutledge.17 And in following Justice Rutledge’s views of the case – from his remarks at the justices’ conference to his own memorandum after the conference and through his numerous draft opinions and illuminating private correspondence – we can witness the birth of the Court’s own version of law office history in a church-state case. In reviewing the briefs, judicial conference notes, opinion drafts, the justices’ private correspondence, and the historical sources on which the justices based their conclusions, we can see how first Rutledge and then Black set off on a premeditated search-and-employ mission to locate historical 13 14

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John Phillip Reid, “Law and History,” Loyola L.A. Law Review 27 (1993–4): 193, 218. John Sexton, “Of Walls, Gardens, Wildernesses, and Original Intent: Religion and the First Amendment,” in Leslie Berlowitz, Denis Donoghue, and Louis Menand, eds., America in Theory (New York: Oxford University Press, 1988), p. 88. John T. Valauri, “Everson v. Brown: Hermeneutics, Framers’ Intent, and the Establishment Clause,” Notre Dame Journal of Ethics and Public Policy 4 (1989–90): 661, 663. Henry T. Miller, “Constitutional Fiction: An Analysis of the Supreme Court’s Interpretation of the Religion Clauses,” Louisiana Law Review 47 (1986–7): 169, 179. See also Gerard V. Bradley, “Imagining the Past and Remembering the Future: The Supreme Court’s History of the Establishment Clause,” Connecticut Law Review 18 (1986): 827, 832–3: Justice Black “essentially reduced the religion clauses to a codification of Thomas Jefferson’s ‘Bill for Establishing Religious Freedom’. . . . Justice Rutledge . . . pursued the Virginia analogy with still more vigor.” See Roger Newman, Hugo Black: A Biography (New York: Fordham University Press, 1997), p. 362. Black’s “discussion of the background of the . . . establishment clause . . . came only in response to Rutledge’s lengthy discussion.”

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events that would be, in Rutledge’s words, “admirable for the . . . purpose” of letting him express his strong feelings about the case without “pointing what [he] had to say in the direction of any specific sect,” namely, Roman Catholicism:18 “We all know,” observes Rutledge in his memo after conference, “that this [law] is really a fight by the Catholic schools to secure this money from the public treasury. It is aggressive and on a wide scale.”19 It is also possible to see how professional historians aided and abetted the justices’ efforts via a goal-oriented, Whiggish approach to historical interpretation. The views of the justices and the historians they consulted reflected what John T. McGreevy has described as mid-twentieth-century liberal intellectuals’ fears of any form of authoritarianism, especially Roman Catholicism, as “antagonistic to ‘the democratic way of life’ ”;20 they believed that the public schools were essential to democracy and they were frightened that aid to parochial schools, in John Dewey’s words, “might reverse recent victories over ‘centuries of systematic stultification of the human mind and human personality.’ ”21 McGreevy describes these negative attitudes not so much as manifestations of rank religious prejudice or as just a recurrence of the nineteenth-century “Know Nothings” but, rather, as reflecting a deeprooted concern of the intellectual elite.22 As prominent anti-Catholic author 18

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Wiley B. Rutledge to Ernest Kirschten, February 20, 1947, Wiley Rutledge Papers in the Library of Congress (“WR”), Box 143. Rutledge, Memo after Conference, WR Box 143. L. A. Powe observes that Rutledge’s dissenting opinion in Everson “is about as extreme an Establishment Clause conclusion as can be found, and at its best seems to be an unblinking application of a contested Protestant theory of the relation of church and state.” L. A. Powe, Jr., “(Re)introducing Wiley Rutledge,” Journal of Supreme Court History 29 (2004): 337, 341. John T. McGreevy, Catholicism and American Freedom: A History (New York: W. W. Norton, 2003), p. 186, quoting Harvard historian Perry Miller. Ibid., at 182–3, quoting John Dewey. McGreevy also notes, “[E]ven permitting children to attend private schools made liberals uneasy [and] the possibility of governmental aid to parochial schools provoked outrage” (p. 182). See also Philip Hamburger, who argues that “the history of the separation between church and state cannot be understood simply as the history of religious liberty and its protection by American institutions. On the contrary, separation needs to be recognized as part of a much broader social and cultural development. In particular, separation became a popular vision of religious liberty in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), pp. 491–2. See also Ken I. Kersch, Constructing Civil Liberties: Discontinuities in the Development of American Constitutional Law (Cambridge, U.K.: Cambridge University Press, 2004), p. 314: “The Court’s modern doctrine concerning religion . . . was invented during a surge of anti-Catholicism in the 1940s. This surge united intellectuals, liberal Protestants, and Reform Jews, all of whom . . . worked to construct Roman Catholicism as especially divisive and dangerous – in a Cold War context that put a premium on ecumenicism in the service of Americanism.”

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Paul Blanshard remarked in a speech at Harvard in 1949, “the new movement against Catholic aggression is rising not on the fringes . . . but right in the hearts of American University leaders.”23 It is little wonder that in this cultural context Madison’s and Jefferson’s “strict separationist” writings would provide an appealing intellectual and constitutional pedigree for a Court anxious to protect critical democratic institutions, especially the schools, from the sectarian threat that could be unleashed by a breach in the wall of separation.24 Among other things, the Court needed to make sure that, in Justice Rutledge’s hyperbolic words, the public schools maintain an “atmosphere [that] is wholly secular . . . because we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.”25 Chief Justice Waite’s opinion in Reynolds and Justice Rutledge’s dissenting opinion in Everson followed a similar methodology and shared a number of historical conclusions. Both embraced colonial Virginia, as well as Jefferson and Madison, as the crux of the religion clauses, and both invoked the strongest language they could find to support a strict separation of church and state. Each justice cited multiple historians in support of his interpretation, and, interestingly, each was influenced by a personal relationship with a leading popular historian whose historical insight formed the foundation for his interpretive approach. While Chief Justice Waite’s opinion leaned heavily on Jefferson, thanks largely to his neighbor George Bancroft’s affection for the third President, Justice Rutledge’s foundation is James Madison, the subject of a multivolume biography by his friend Irving Brant. For our purposes, studying the use of history by the Justices Rutledge and Black in the Everson case provides an unusually interesting opportunity to explore the dynamics of judicial opinion-writing in a case in which an essentially unanimous approach to the history of the First Amendment emerges from the Supreme Court despite the fact that there is a five to four

23

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Quoted in John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History 84 (1977): 97, 98. See also Richard E. Morgan, The Supreme Court and Religion (New York: Free Press, 1972), pp. 76–90; and John C. Jeffries, Jr., and James E. Ryan, “A Political History of the Establishment Clause,” Michigan Law Review 100 (2001–2002): 312–18. In a 1949 bestseller, Blanshard writes: “My own conviction is that the outcome of the struggle between American democracy and the Catholic hierarchy depends upon the survival and expansion of the public school.” Paul Blanshard, American Freedom and Catholic Power (Boston: Beacon Press, 1949), p. 286. See also McGreevy, “Thinking on One’s Own,” pp. 119–20. Everson, 330 U.S. at 58.

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split among the justices on the underlying constitutional issue.26 Because the midcentury date of the case is serendipitously positioned late enough in the development of the Court’s self-awareness that reasonably extensive personal files of the justices are available, the Everson case offers a unique set of insights into how the opinion-crafting justices developed their historical narratives and sought to apply them to the New Jersey case; and what we see is a series of dueling drafts, each endeavoring to capture the support of a sharply divided Court. In the end, through the course of about a dozen drafts of the majority and dissenting opinions, what emerges is the First Amendment’s Gilgamesh epic, a creation myth based on the establishment clause’s origins in colonial Virginia that has infused First Amendment jurisprudence ever since. Creation myths typically have an enduring influence, and the Everson case is widely perceived to be the birth of the modern church-state era in American law. As political scientist and lawyer Daniel Dreisbach observed fifty years after the case was decided: “In the fifteen years or so I have studied American church-state relations – as a congressional aide, graduate student, public interest lawyer, and academic – I recollect few discussions of the First Amendment religion provisions in which Everson was not mentioned.”27 Even Justice Rutledge observed dryly that “[t]his is not . . . just a little case over bus fares.”28 The Everson approach to establishment 26

27

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Any unanimity of views among the justices in a case involving issues of religion is rare indeed. Robert Alley has noted that between 1940 and 1987, there was at least one dissenting opinion in 32 of the 35 church-state cases. See Robert S. Alley, ed., The Supreme Court on Church and State (New York: Oxford University Press, 1988), p. 27. While Everson represents Justice Rutledge’s only establishment clause opinion in his six years on the court, Justice Black wrote a total of seven opinions – four opinions of the Court, and three dissenting opinions – during his three decades of Supreme Court service. Dreisbach, “Everson and the Command of History,” p. 24. See also, e.g., Paul G. Kauper, who asserts that Everson is the “beginning of an impressive and influential body of case law[;] it nationalized the restrictions embodied in the establishment clause . . . and opened up a new and comprehensive surveillance of state and local law and practices dealing with religious matters.” Paul G. Kauper, “Everson v. Board of Education: A Product of the Judicial Will,” Arizona Law Review 15 (1973): 307. Many scholars have singled out Everson as an unusually important case. Jo Renee Formicola calls it a “judicial specter hovering over Church/State/Education challenges during the last half century,” and John F. Wilson has dubbed it “the foundation of [the] separationist paradigm.” Jo Renee Formicola, “Everson Revisited: ‘this is not . . . just a little case over bus fares,’” Polity 38, no. 1 (Fall 1995): 58; John F. Wilson, “Religion, Government and Power in the New American Nation,” in Noll, Religion and American Politics, p. 78. Gerard Bradley adds that the “practical importance of Everson’s holding is amplified by the Court’s increasing reliance on non-establishment analysis, instead of free exercise inquiry, in cases where they both apply.” Gerard V. Bradley, Church-State Relationships in America (Westport, Conn.: Greenwood Press, 1987), p. 2. Everson, 330 U.S. at 57.

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clause history has been subjected to intense scholarly scrutiny over the years, yielding a considerable literature on all sides of the issues. As usual, the honors for the most memorable comments go to those writing in opposition to the Court’s views, from Harvard’s Mark DeWolfe Howe’s elegant lamentation that “the Court’s distorting lessons” have “woven synthetic strands into the tapestry of American history” to Princeton’s Edward S. Corwin’s pithy jeremiad that while “the Court has the right to make history . . . it has no right to make it up.”29 But despite withering attacks, the Everson history continues to be the jurisprudentially official version, even into the twenty-first century. Religion and Education: The Background The Everson case grew out of a century-long struggle in American politics and education over the often contentious – and sometimes bloody – issue of the relationship of religion and education. The waves of Roman Catholic immigrants arriving in the nineteenth century encountered public schools containing religious activities that Joan DelFattore describes as “by today’s standards . . . pan-Protestant”; these included “daily readings from the King James Bible . . . as well as Protestant hymns and recitations of the [King James] version of the Lord’s Prayer and the Ten Commandments.”30 Some historians have gone as far as to describe the public schools as a “new Protestant establishment, for the schools fulfilled many of the roles that had previously been assigned to the established church.”31 The Roman Catholic churches reacted to this educational environment by petitioning to 29

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Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago, Ill.: University of Chicago Press, 1965), pp. 4–5; Edward S. Corwin, A Constitution of Powers in a Secular State (Charlottesville, Va.: Michie, 1951), p. 116 (emphasis in the original). This literature is comprehensively reviewed in Dreisbach, “Everson and the Command of History,” pp. 23–57, in which Dreisbach lists over two dozen works challenging or supporting the Everson approach pp. (40–1 and n. 87). Joan DelFattore, The Fourth R: Conflicts Over Religion in America’s Public Schools (New Haven: Yale University Press, 2004), p. 14. See, generally, Diane Ravitch, The Great School Wars: New York City, 1805–1973, a History of the Public Schools as a Battlefield of Social Change (New York: Basic Books, 1974); Carl F. Kaestle, Pillars of the Republic: Common Schools and American Society, 1780–1860 (New York: Hill and Wang, 1983); Lawrence A. Cremin, American Education: The National Experience 1783–1876 (New York: Harper & Row, 1980); Ward M. McAfee, Religion, Race and Reconstruction in the 1870s (Albany: State University of New York Press, 1998); and McGreevy, Catholicism and American Freedom, esp. chapter 1. James W. Fraser, Between Church and State: Religion and Public Education in a Multicultural America (New York: St. Martin’s Press, 1999), p. 45, citing Winthrop S. Hudson, The Great Tradition of the American Churches (New York: Harper & Brothers, 1963), p. 108.

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excuse Catholic students from the religious activities or to substitute Catholic ones.32 Failing that, the Roman Catholic churches created a parochial school system in which the Catholic Douay Bible would be used and prayers would follow the church-approved form. Fashioning a parallel school system was an expensive undertaking, and the Roman Catholic hierarchy often sought public support for doing so, arguing, as New York’s Bishop Hughes did, that Catholics “feel it unjust and oppressive that while we educate our children, as well we contest as they would be at the public schools, we are denied our portion of the school fund, simply because we at the same time endeavor to train them in principles of virtue and religion.”33 These requests were generally turned down on the grounds that the public would fund only “nonsectarian” schools, which, DelFattore notes, generally meant “schools whose programs included religious practices common to more than one denomination, such as generic Protestant prayers and readings from the King James Bible. Excluded from public support were schools that used texts and practices distinctive to a particular denomination.”34 These controversies were exacerbated by a host of cultural and economic factors too complicated to be adequately summarized here, but it is fair to say that the result was a heated and sometimes violent conflict between the Roman Catholic immigrants and those who saw the immigrants and their religion as a serious threat to the American way of life.35 When the Catholics

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Philadelphia Bishop Francis Patrick Kenrick argued, based on the Church’s prohibition of interfaith worship: “It is not consistent with the laws and discipline of the Catholic Church for their members to unite in religious exercises with those who are not of her communion. . . . [W]e confine the marks of religious brotherhood to those who are of the household of the faith.” Quoted in DelFattore, The Fourth R, pp. 33–4. Quoted in ibid., p. 16. Ibid., p. 17. DelFattore notes that well before the controversies over parochial schools arose, a similar definition had been used in New York to reject funding requests from Baptist, Presbyterian, and Methodist schools. The educational policy aspects of Bible reading in the public schools are also more complicated than simple Protestant-Catholic acrimony, and Bible reading was not a universal practice throughout the country. R. Laurence Moore concludes as follows: “The legal and constitutional principles of the United States clearly permitted what the nineteenth-century common schools failed to accomplish – the introduction of religion into the classroom as a subject of instruction. Efforts to do that failed, not because of court action, and not only because of Catholic objections, but because of the religious hesitations of Protestant educators. For religious instruction to pass muster as nonsectarian, a principle that prevailed from the outset, religion had to be treated as a secular subject. Doing that occasioned objections from religious communities who in the end preferred to have no religion in the public schools than to have the claims of religion made relative.” R. Laurence Moore, “Bible Reading and Nonsectarian Schooling: The Failure of Religious Instruction in Nineteenth-Century Public Education,” Journal of American History 86 (March 2000): 1581–1600, 1600.

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lost their pleas at the local school board level, their effort to improve the situation through electoral politics led nativists to “claim . . . that Catholic political power was a threat to democracy and could lead to the takeover of America by the Vatican.”36 Bitter political fights took place in numerous locales, and in Philadelphia in the 1840s, in particular, the battles were real, with entire blocks of homes and businesses burned to the ground and a number of lives lost. Although this kind of violence was relatively rare, controversies arose in many cities over religious exercises in the public schools, a situation no doubt intensified by the resolution of the First Plenary Council of American Catholic Bishops in 1852 prohibiting Catholic children from reading the King James Bible.37 Public schools often expelled Catholic children who refused to participate in the forbidden practices, and Catholics sought relief in the courts and legislatures, with mixed results.38 Over time, as Catholic immigrants were seen to be amassing considerable political power in some states, such as in Massachusetts, nativists rushed to propose amendments to the state constitutions to bar public funding for “sectarian education.” An 1855 amendment was enacted in Massachusetts, leading to a clear prohibition on tax monies for Roman Catholic schools but apparently permitting the putatively nonsectarian Bible reading and prayers that continued in the public schools.39 Whereas New York’s superintendent of schools ruled in 1853 that Catholic students could opt out of public school Bible readings, a Massachusetts bill permitting students to be excused from school devotions was initially defeated and became law only in 1864.40 As Roman Catholic voters increased to the point of being “a majority or near-majority of the church-going population in some cities,” and as 36

37 38

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DelFattore, The Fourth R, p. 28. See also Michael Feldberg, The Philadelphia Riots of 1844: A Study of Ethnic Conflict (Westport, Conn.: Greenwood Press, 1975); and Jay Alan Sekulow and Jeremy Tedesco, “The Story Behind Vidal v. Girard’s Executors: Joseph Story, the Philadelphia Bible Riots, and Religious Liberty,” Pepperdine Law Review 32 (2005): 605. DelFattore, The Fourth R, p. 43. For a discussion of how “Catholics in [some] school conflicts . . . held their opponents to a more Jeffersonian standard for separation than the one their opponents proclaimed,” see Tracy Fessenden, “The Nineteenth-Century Bible Wars and the Separation of Church and State,” Church History 74, no. 4 (December 2005): 784–811, 811. See DelFattore, The Fourth R, pp. 46–9, who summarizes the holding of one Massachusetts legal dispute as follows: The King James Bible “is a nonsectarian source of generally accepted moral teachings” (p. 49). For New York, see Donald E. Boles, The Bible, Religion and the Public Schools (New York: Collier Books, 1963), p. 37, citing H. S. Randall, Decision of the State Superintendent of Common Schools on the Right to Compel Catholic Children to Attend Prayers (Dept. of Common Schools, Albany, Oct. 27, 1853), pp. 5–8; for Massachusetts, see DelFattore, The Fourth R, p. 51.

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anti-Catholic nativism declined following the Civil War, “Catholics [in the late 1860s] in many parts of the Northeast and Midwest opened a campaign to eliminate the Protestant tinge that bible-reading gave to the public schools [and] to secure for their own parochial schools a share of the funds that the states were providing for education,” writes historian John Higham in his study of American nativism.41 One battleground was Cincinnati, Ohio, where, in 1869, the Board of Education decided to terminate religious exercises and Bible reading in the public schools. This decision was challenged in the Ohio courts, and the trial judge issued a perpetual injunction to block the Board of Education’s action, thus preserving the place of religion in the classrooms. The court cited the Ohio Constitution, which proclaimed that “religion, morality and knowledge [are] essential to good government” and concluded that the Bible reading was essentially nonsectarian. On appeal, the Supreme Court of Ohio reversed the lower court’s decision, which had the effect of removing religion from the public schools, in part because the lower court lacked authority to “interfere in the management and control of the public schools” and in part because the Supreme Court asserted that the religion that truly promotes good government “can best be secured by adopting . . . the doctrine of ‘hands off.’ Let the State not only keep its own hands off, but let it also see to it that religious sects keep their hands off each other.” According to the Supreme Court, this laissez-faire approach would permit an ecclesiastical survival of the fittest by creating “a fair field, and a free, intellectual, moral, and spiritual conflict. The weakest – that is, the intellectually, morally, and spiritually weakest – will go to the wall, and the best will triumph in the end.”42 With growing political power, Roman Catholics sought and received at least indirect financial support for parochial schools, and Steven Green points out that, according to “Harper’s Weekly, in 1871, the same year it petitioned for the exclusion of the Protestant Bible from New York schools, the Catholic dioceses of New York City received over $700,000 from the public treasury.”43 Ultimately, however, the Catholic victories tended to be limited, and anti-Catholicism resurged in the 1870s, leading the Republican Party to adopt a separation of church and state agenda, especially after the Democratic victory in 1874.44 As Higham records, President Grant’s 41

42 43

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John Higham, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New York: Atheneum, 1973), p. 28. Excerpted in Wilson and Drakeman, Church and State, pp. 122–8. Steven K. Green, “The Blaine Amendment Reconsidered,” American Journal of Legal History 36, no. 1 (January 1992): 38–69, 43. See, esp., Ward M. McAfee, Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s (Albany: State University of New York Press, 1998).

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“annual message to Congress in December [1875] stressed the importance of a constitutional amendment forbidding the appropriation of public funds for denominational schools.”45 Congress entered the fray most prominently a week later when Republican Congressman James G. Blaine proposed a constitutional amendment that would not only have explicitly applied the language of the establishment clause to the states, but would have expressly prohibited tax funds from coming under the “control of any religious sect.” It read: No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.46

Ward McAfee’s study of this period shows how legislative maneuvers by the Democrats, combined with a clumsy response by the Republicans, deflected the church-state issues and defeated the amendment. He points out that Blaine’s original amendment was passed in the House by an overwhelming bipartisan majority (180 to 7) because the Democrats, who controlled the House Judiciary Committee, had cleverly decided to support a substantially weakened version, thus “completely undermin[ing] the Republican strategy of demagogic electioneering.”47 Republicans in the Senate then redrafted the amendment to make it much more detailed and potent, rendering it too confusing to the public to serve its original “demagogic electioneering” purpose and unpalatable to Senate Democrats, whose numbers – on a strict party line vote – prevented passage by the required two-thirds 45

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Higham, Strangers in the Land, p. 29. Three months earlier, Grant had given a speech in Iowa, saying: “Resolve that neither the State nor Nation, nor both combined shall support institutions of learning other than those sufficient to afford to every child growing up in the land of opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. . . . Keep the Church and State forever separate.” Quoted in Green, “Blaine Amendment,” pp. 47–8. Essentially the same message appeared in the December message to Congress (p. 52). Fraser points out that while Grant was blasting public funding for Catholic schools, he followed a lengthy American tradition of trying to bring Christianity to the Native Americans: Grant “became, like many of his predecessors and successors, a firm believer in efforts at civilizing and Christianizing the Indians . . . and using the school to accomplish the task.” Fraser, Between Church and State, p. 85. 4 Cong. Rec., 44th Cong., 1st Sess. 205 (1875), quoted in Green, “Blaine Amendment,” p. 53. For background on the politics of the Blaine Amendment and a review of the floor debates, see Noah Feldman, Divided by God: America’s Church-State Problem and What We Should Do About It (New York: Farrar, Straus and Giroux, 2005), pp. 77–92. McAfee, Religion, Race, and Reconstruction, p. 198.

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majority.48 In the end, this apparent effort in partisan politics, in which Republicans sought to gain power through Catholic-bashing,49 faded into legislative and historical oblivion. Blaine’s autobiography does not even mention the amendment, and a number of years later, when he was the Republican presidential nominee in 1884, he “resurrected memories of his own Catholic upbringing . . . in a vain effort to win at least a few Catholic votes.”50 Two unexpected subsequent events brought the Blaine amendment back to life: the incorporation doctrine dissenters, who cite the initial clause of the amendment (“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof”) as evidence that Congress must not have believed that the Fourteenth Amendment had made the religion clauses of the First Amendment applicable to the states,51 and perhaps more importantly, the twenty-nine states that, by 1890, had adopted Blaine-like amendments as part of state laws or constitutions, including states such as New Mexico, which was required by Congress to do so to be granted statehood.52 Unlike Blaine’s constitutional amendment, these state 48

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Ibid., pp. 208–10. Green notes that Blaine, who had recently been appointed to the Senate, did not attend the session, and thus did not vote for his own amendment. Green, “Blaine Amendment,” pp. 67–8. As Mark Edward DeForrest observes: “The centrality of anti-Catholicism in the debate over the Blaine amendment can be demonstrated even by a short examination of the Congressional Record.” Mark Edward DeForrest, “An Overview and Evaluation of State Blaine Amendments: Origins, Scope and First Amendment Concerns,” Harvard Journal of Law and Public Policy 26 (Spring 2003): 551. See also Green, “Blaine Amendment,” p. 54, quoting The Nation as follows: “Mr. Blaine did, indeed, bring forward at the opening of Congress, a Constitutional amendment directed against the Catholics, but the anti-Catholic excitement was . . . a mere flurry; and all that Mr. Blaine means to do or can do with his amendment is, not to pass it but to use it in the campaign to catch anti-Catholic votes.” Green, “Blaine Amendment,” p. 54; McAfee, Religion, Race, and Reconstruction, p. 220. In Everson, the failure of the Blaine Amendment was cited by the National Councils of Catholic Men and Women’s amicus curiae brief as evidence that federal funds could be used to support “nonprofit private schools.” The argument was that “the Blaine proposal was considered necessary in order to supply a constitutional basis, otherwise lacking for discriminating against such private schools.” Philip B. Kurland and Gerhard Casper, eds., Landmark Briefs and Arguments of the Supreme Court of the United States (Bethesda, Md.: University Publications of America, 1975), p. 19 (p. 945). See also, for example, Bradley, who argues as follows: “The framers of the Blaine amendment (many of them were also in the Congress that passed the Fourteenth Amendment and almost all were politically prominent when that amendment was ratified) evidently contemplated two policies not already binding on the states. That is, they did not believe either that due process liberty contained nonestablishment or that nonestablishment contained a prohibition of nondiscriminatory aid.” Bradley, Church-State Relationships, p. 10. Joseph B. Vitteritti, “Blaine’s Wake: School Choice, the First Amendment, and State Constitutional Law,” Harvard Journal of Law and Public Policy 21 (Summer 1998): 657.

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provisions have continuing vitality, with Joseph Vitteritti noting in 1998 that opponents of school choice still invoke the Blaine Amendments in the state constitutions.53 In the face of Protestant religious activities in the public schools, state Blaine amendments, continued nativism, and other factors, American Catholics renewed their commitment to parochial schools in 1884, with a Plenary Council of Bishops decreeing: “That near every church a parish school, where one does not yet exist, is to be built and maintained in perpetuum within two years . . . [and] [t]hat all Catholic parents are bound to send their children to the parish school.”54 Parochial schools continued to grow into the twentieth century; enrollments rose from about 850,000 students in 1900 to 1.8 million in 1920 and over 5 million in 1963.55 State legislatures, especially in states with significant concentrations of Roman Catholic voters, continued to seek ways to provide financial support to those parochial schools, leading to a series of state court cases – and some federal cases – challenging those subsidies, as in Cochran v. Louisiana State Board of Education56 where, in 1930, the Supreme Court was asked to evaluate the constitutionality of a state law that provided free textbooks to children attending private schools. The constitutional question did not arise under the First Amendment; the issue posed in that case was whether the state program violated the Fourteenth Amendment as “a taking of private property for a private purpose.”57 The Court, following the Louisiana Supreme Court, upheld the state program on the grounds that the “schools . . . are not the beneficiaries of these appropriations. The school children and the state alone are the beneficiaries.”58 Accordingly, Chief Justice Hughes’s brief opinion concluded that even if some of the books are used in religious schools, the “legislation does not segregate private schools, or their pupils, as its beneficiaries or attempt to interfere with any matters of exclusively private concern. Its interest is education, broadly; its method, comprehensive. Individual interests are aided only as the common interest is safeguarded.”59 This 53

54 55

56 57 58 59

Ibid. See also Toby S. Heytens, “School Choice and State Constitutions,” Virginia Law Review 86 (2000): 117. Quoted in Fraser, Between Church and State, p. 60. Ibid., p. 65, citing figures provided by Neil G. McCluskey, S.J., Catholic Education in America: A Documentary History (New York: Teachers College Press, 1964), p. 25. Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930). Ibid. at 374. Ibid. at 375. Ibid. Prior to Cochran, the Supreme Court’s closest encounter with an aid-to-religious education case is probably Reuben Quick Bear v. Leupp, which is a complicated 1908 case involving Indian trust funds used for sectarian education. Quoting approvingly from the

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type of rationale, known as the “child benefit” theory, dominated school aid debates through the 1930s and 1940s until the Everson case arose.60 The Everson Case – The Arguments The specific issue raised in Everson was the constitutionality of a Ewing, New Jersey, program providing parents with reimbursement for their children’s bus fares for transportation to parochial schools. This reimbursement plan was adopted by the local school board in response to recently enacted state legislation. This legislation “emerged out of a four-year struggle in the New Jersey legislature [from 1937 to 1941] over state funding of transportation for parochial school students,” according to political scientist Daryl Fair, who has delved into Everson’s state and local political roots.61 Early in the twentieth century, New Jersey’s legislature had given individual school boards the option to provide for transportation to and from the public schools, and in 1937, “Thomas G. Walker, the speaker of the general assembly, introduced a bill permitting boards of education to furnish transportation for pupils who attended schools other than public schools.”62 It was not until 1941 that legislation finally emerged on this

60

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Court of Appeals decision, Justice Fuller’s majority opinion reads: “the treaty and trust moneys are the only moneys that the Indians can lay claim to as a matter of right; the only sums on which they are entitled to rely as theirs for education . . . ; it seems inconceivable that Congress shall have intended to prohibit them from receiving religious education at their own cost if they desire it; such an intent would be one to prohibit the free exercise of religion amongst the Indians.” Reuben Quick Bear v. Leupp, 210 U.S. 50, 82 (1908). The case involved a contract between the Commissioner of Indian Affairs and the Bureau of Catholic Indian Missions of Washington, District of Columbia, to support the St. Francis Mission Boarding School. See also Bradfield v. Roberts, 175 U.S. 291 (1899), where the Court upheld financial support for a Roman Catholic hospital in the District of Columbia. In his dissenting opinion in Everson, Justice Rutledge disparages the “highly artificial grounding” of the Bradfield decision. Everson, 330 U.S. at 43, n. 35. School battles were fought on other fronts as well, including efforts to nationalize public education and state laws mandating public school education. See, for example, the 1922 compulsory public education law adopted in Oregon after lobbing by the Klan and other nativist organizations; the law was struck down by the Supreme Court in Pierce v. Society of Sisters, 268 U.S. 510 (1925). For a detailed discussion of the school wars as they continued through the 1920s, see Douglas J. Slawson, The Department of Education Battle, 1918– 1932: Public Schools, Catholic Schools, and the Social Order (Notre Dame, Ind.: University of Notre Dame Press, 2005). See also Paula Abrams, “The Little Red School House: Pierce, State Monopoly of Education and the Politics of Intolerance,” Constitutional Commentary 20 (2003–4): 61; and David B. Tyack, “The Perils of Pluralism: The Background of the Pierce Case,” American Historical Review 74, no. 1 (October 1968): 74–98. Daryl R. Fair, “The Everson Case in the Context of New Jersey Politics,” in Formicola and Morken, eds., Everson Revisited, p. 1. See also Daryl R. Fair, “Remote from the Schoolhouse,” New Jersey History 99 (Spring/Summer 1981): 49–65. Fair, “The Everson Case,” p. 2.

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subject, following vigorous legislative and public debate. Supporters of the bill, according to Fair, included state senators known as the “Hague Republicans” (so named because they had previously voted “to confirm Frank Hague Jr., a Democrat, as a lay judge of . . . New Jersey’s highest court”) as well as “New Jersey Democrats, ‘regular’ Republicans, Roman Catholic organizations, and some labor leaders.”63 Opponents included the New Jersey Education Association, the Chamber of Commerce, the State Board of Education, the Junior Order of United American Mechanics (“JOUAM,” which Fair describes as a 100-year-old fraternal benefit life insurance organization that had started as a “secret nativist fraternal organization”), and the Seventh Day Adventists.64 The supporters carried the day, and the New Jersey Education Code was amended to read, effective July 1, 1941: Whenever in any district there are children living remote from any school house, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part.65

Three months later, the Board of Education of Ewing Township in central New Jersey took action based on this new law. Ewing did not have a public high school, so its students were sent, at public expense, to the high schools in neighboring Pennington and Trenton. The Board of Education voted to provide reimbursement of public bus fares for students attending those high schools or the Roman Catholic schools in Trenton.66 After about a year and a half, a suit challenging the transportation program was filed in the New Jersey state courts. It was brought in the name of Arch R. Everson, a Ewing resident, although Fair observes that JOUAM “sponsored and paid for the suit,” continuing its opposition to the program that had first surfaced in the legislative debates; soon thereafter, the American Civil Liberties Union (ACLU) decided to join the fray on Everson’s side by submitting an amicus curiae brief.67 Virtually all of the arguments mustered in opposition to the transportation program pointed to violations of 63 64 65 66 67

Ibid., pp. 3, 5. Ibid., pp. 3, 4. Quoted in ibid., p. 6. See Laws of New Jersey, 1941, chap. 191, sec. 1. Fair, “The Everson Case,” p. 7. Ibid., pp. 3, 7–8. Gregg Ivers observes that “unlike other landmark constitutional litigation involving the First and Fourteenth Amendment freedoms that had been sponsored and controlled by such established, skilled, and powerful public interest and constitutional rights organizations as the NAACP, the ACLU, and later the [American Jewish] Congress, Everson did not materialize because a high-profile interest group believed it would make an ideal test case. . . . In fact, . . . Everson’s origins have much more modest roots than other, better-known developments in constitutional law and litigation.” Gregg Ivers, To Build a

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various provisions of the New Jersey state constitution, although Everson’s attorney, Albert McCay (who also served as counsel to JOUAM) added “a claim that the parochial school bus law violated the Fourteenth Amendment to the U.S. Constitution,” an argument that he, in a letter to the ACLU, admitted was unlikely to find support from the court.68 The parties stipulated that $859.80 had indeed been spent on the transportation of Ewing students who were attending parochial schools during that school year, and the case was heard by the New Jersey Supreme Court, which was not, at that time, the Garden State’s highest court, which bore the infelicitous name of the Court of Errors and Appeals. The Supreme Court held that the law violated a provision of the New Jersey Constitution relating to public school funding.69 The school board appealed, although it had initially suggested that it would not do so since the ruling would allow it to save nearly a thousand dollars a year, a fact cited by Professor Fair as evidence that the case was a “friendly suit” in which the parties on both sides cooperated to test the constitutionality of the law.70 The Court of Errors and Appeals reversed the lower court’s decision,71 but once again, the Court focused on issues arising under the Constitution of the State of New Jersey. The stage was thus set for an appeal to the United States Supreme Court, where the focus of attention would ultimately – and unexpectedly – shift to the United States Constitution’s establishment clause. That the Court decided to hear the case was perhaps a sign that it was ready not only to consider how the establishment clause might be applied to state actions but also to reevaluate its existing approach to aid to religious schools. Although neither the New Jersey courts nor the parties’ briefs

68 69

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Wall: American Jews and the Separation of Church and State (Charlottesville: University of Virginia Press, 1995), p. 17. Ibid., citing a letter from McCay to Roger Baldwin, executive director of the ACLU. Everson v. Board of Education, 132 N.J.L. 98 (1944). The Supreme Court’s opinion appeared to assume that the challenged funds came from a source that made them subject to provisions of the New Jersey Constitution stating, in part: “the fund for the support of free schools, and all money . . . which may hereafter be appropriated for that purpose . . . shall . . . remain a perpetual fund; and the income thereof . . . shall be annually appropriated to the support of public free schools. . . . [I]t shall not be competent for the legislature to . . . use the said fund . . . for any other purpose.” Ibid. at 99–100. Fair, “The Everson Case,” p. 10. Everson v. Board of Education, 133 N.J.L. 350 (1945). The Court’s opinion that there was no evidence that the transportation funds (here described as “$357.74 . . . paid to the parents of twenty-one pupils who were transported to parochial schools in Trenton, five to elementary schools and sixteen to high schools for half of the school year”) had, in fact, come from the Township of Ewing’s share of the fund for the support of free schools. Accordingly, the courts “must assume that the payment was made lawfully, from funds under [the Township’s] control.” Ibid. at 354.

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touched on any First Amendment issues, extensive portions of the amicus curiae briefs raised detailed establishment clause arguments. Presaging the majority and dissenting opinions, amici on both sides invoked the history of the First Amendment and embraced the concept of a wall of separation between church and state, even while reaching opposite conclusions. In particular, the ACLU concluded that the New Jersey program violated the “fundamental doctrine of separation of church and state,”72 whereas the brief of the National Council of Catholic Men and the National Council of Catholic Women averred that the “wall of separation” between church and state is not “undermined, breached or cracked by this Transportation Law.”73 The ACLU’s brief immediately leapt to the establishment clause even though the New Jersey courts and the appellant’s brief all concentrated on either New Jersey law or the argument that Ewing Township’s program was a taking of public property for a private purpose in contravention of the Fourteen Amendment. Somewhat enigmatically, the ACLU blasts the program as a violation of “the fundamental American principle of separation of church and state and the constitutional prohibition respecting the establishment of religion,”74 a wording that might imply that the establishment clause and the fundamental principle of separation of church and state are two distinct mandates. The brief then invokes the incorporation doctrine – citing the Board of Education v. Barnette decision striking down mandatory flag salute ceremonies in the public schools for the point that the First Amendment’s provisions now apply to local school boards along with every other aspect of state government75 – and makes the point that 72

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Kurland and Casper, Landmark Briefs, p. 842. The authors listed were: I. George Kown, James A. Major, Harry V. Osbourne, Frank H. Pierce, Joseph Beck Tyler, of the New Jersey Bar; and Kenneth W. Greenawalt and Whitney N. Seymour, of the New York Bar. Ibid., 924. The authors listed were James N. Vaughan, Jeremiah P. Lyons, George E. Flood, Eugene J. Butler, and George E. Reed. Jo Renee Formicola notes that Roman Catholic theologian John Courtney Murray was the brief’s “primary author,” and he “purportedly wrote most of part 5, which dealt with the philosophy of the First Amendment.” Jo Renee Formicola, “Catholic Jurisprudence on Education,” in Formicola and Morken, Everson Revisited, pp. 85, 99, n. 10. Although the Everson decision was consistent with this amicus brief, its reasoning was not, and Murray later called it “a piece of bad history, muddy political theory, and bad judicial thinking.” Quoted in Formicola, “Catholic Jurisprudence,” p. 87. Rodney K. Smith calls the ACLU’s brief “an artful, albeit adversarial, rendition of the historical intent,” whereas the appellees’ brief was “concededly quite weak on the historical intent issue.” Rodney K. Smith, “Getting Off on the Wrong Foot and Back on Again: A Reexamination of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions,” Wake Forest Law Review 20 (1984): 569, 640, n. 286. Kurland and Casper, Landmark Briefs, p. 849. Ibid., p. 850, citing Board of Education v. Barnette, 319 U.S. 624 (1943).

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the traditionally deferential “rational basis” test employed in the Court’s “due process” jurisprudence should be modified in this case because “the freedoms of religion, which are in a preferred position, may not be infringed on such slender grounds.”76 Citing Justice Frankfurter’s opinion in Barnette, the ACLU commences a historical argument that would later be strongly echoed in Justice Black’s opinion, which must have been irksome to the ACLU since Black took the brief’s argument (sometimes almost verbatim), adopted several of its historical sources, and then reached the opposite conclusion. The ACLU states, “The purpose of the First Amendment, seen in the perspective of history, is clear enough. It was designed to bring about the complete separation of church and state.”77 Confidently applying establishment clause history to parochial school busing is no problem, for “the task of translating the majestic guaranties of the Bill of Rights . . . into concrete restraint on officials dealing with problems of the twentieth century is not difficult in this case, because the problems of today, involved here, were fully known and experienced in essentially similar manifestations in the eighteenth century . . . and had led to the framing . . . of the First Amendment.”78 The brief then recites the history of ecclesiastical establishments in colonial America and announces that Virginia was where the “controversy upon this general subject . . . culminate[d],”79 which is a direct quotation from the Reynolds case but without quotation marks or attribution. This statement sets the stage for a discussion of Virginia’s assessment bill, Madison’s Memorial and Remonstrance, and Jefferson’s Bill for Establishing Religious Freedom. Having flatly asserted the importance of Virginia’s history in colonial disestablishmentarianism, the ACLU sets out to link those Virginia exploits with the adoption of the First Amendment; because there was no direct evidence to offer, the brief fills the holes in this part of its argument with a very lengthy set of citations to Reynolds and a series of historical materials. The Reynolds-like argument, in its entirety, is as follows: About a year after the passage of [the Virginia Religious Freedom] statute, the convention met which prepared the United States Constitution. Jefferson, away in France, expressed disappointment in a letter that the proposed draft contained no provision for religious freedom. A number of states thereafter proposed amendments, including a declaration of religious freedom. At the first session of the first Congress, 76 77

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Kurland and Casper, Landmark Briefs, p. 851. Ibid., p. 852. In Barnette, Frankfurter cited the “doctrine of church and state, so cardinal in the history of this nation and for the liberty of our people.” Barnette, 319 U.S. at 655. Kurland and Casper, Landmark Briefs, p. 852, again citing Barnette, 319 U.S. at 653–4. Kurland and Casper, Landmark Briefs, p. 854.

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the amendment now under consideration was proposed with others by Madison and was adopted. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association, took occasion to speak of the First Amendment as “thus building a wall of separation between church and State.”80

With this argument, Madison’s anti-establishment Memorial, as well as Jefferson’s religious freedom bill and Danbury letter, all flow into the “historical background [that] discloses that nothing is more firmly set forth or more plainly expressed than the determination . . . to preserve . . . religious liberty.” Then, after discussing a slew of state court opinions striking down support for parochial schools, the brief concludes that the “constitutional policy of our country has decreed the absolute separation of church and state, not only in governmental matters, but in educational ones as well.”81 The amicus curiae brief submitted by the National Councils of Catholic Men and Women also uses constitutional history to interpret the First Amendment, but it looks at very different sources and comes to the opposite conclusion. Much of the historical analysis advances the argument that the word “establishment” in the First Amendment specifically referred to the kind of legal privilege enjoyed by the Church of England at the time of the American Revolution. “A real establishment of religion could not occur,” argues the brief, “unless the State singled out one particular church for special public recognition and at the same time denied equal juridical status to the other existing churches.”82 While “[p]ublic authority in the American concept of government . . . cannot enter the pluralistic world of organized believers,” it can and “does take . . . positive steps in a general way to encourage all religions.”83 This concept of the constitutionality of broad-based nondiscriminatory aid to “all religions” becomes a frequently articulated theme of opponents of Everson’s “wall of separation” language in many future cases and publications. Typically referred to as “nonpreferentialism” or “accommodationism,” church-state scholar and strict separationist advocate Leo Pfeffer branded it the “official position of the Catholic Church” in an influential 1951 law review article.84 80 81 82 83 84

Ibid., p. 857. Ibid., p. 880. Ibid., p. 947. Ibid., p. 948. Pfeffer, “Church and State: Something Less than Separation,” 1, 28. For a strict separationist/nonpreferentialist debate, see Leo Pfeffer, “No Law Respecting an Establishment of Religion,” and James M. O’Neill, “Non-preferential Aid to Religion is not an Establishment of Religion,” Buffalo Law Review 2 (1952–3): 225, 242.

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In seeking specific support for its narrow definition of “establishment,” the brief quotes James Madison’s comment in the debates in the First Congress “that he apprehended the meaning of the words on religion to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”85 From this statement, the brief concludes that the final constitutional language “specifically imports the English State Church System which then was known and is still known as The Establishment.”86 The brief then cites Sanford Cobb’s The Rise of Religious Liberty in America, which ultimately becomes influential in the Court’s two major opinions, although not on this point. The brief argues: “That it was not every establishment but a special kind of national establishment of religion which was thought offensive readily appears from the fact that several States ratifying the First Amendment then had and for years thereafter continued to have their respective forms of establishments of religion.”87 These enduring statelevel establishments, combined with the failure of the nineteenth-century Blaine amendment, “show clearly that laws such as the New Jersey Bus Law have never been thought to contain the character of laws ‘respecting an establishment of religion.’”88 To conclude otherwise would be “to make a construction of the First Amendment text wholly independent of historicity.”89 In its final section, the brief confronts the wall of separation, which it depicts, perhaps somewhat surprisingly, as a “metaphor [that] has validity. Like any metaphor, however, it must be closely analyzed in order that its true content may be revealed.”90 It does “reflect definite ethical and social realities,” in that “all citizens are members of a single political community, but not . . . a single religious community.”91 In such an environment, “the State may not go beyond the wall . . . to compel the believer or nonbeliever in matters regarding religious belief . . . so too no church may go beyond the wall . . . to enforce conformity to its beliefs as the condition of full citizenship,”92 as was the case, for example, when the Anglican Church was established in colonial Virginia. To interpret the First Amendment otherwise, especially in light of the development of a public and private

85 86 87 88 89 90 91 92

Kurland and Casper, Landmark Briefs, p. 951. Ibid. Ibid., note∗ citing Cobb, pp. 507, 510, 512. Kurland and Casper, Landmark Briefs, p. 951. Ibid. Ibid., p. 959. Ibid. Ibid., p. 960.

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school system that was unknown when the Bill of Rights was ratified, would transform “the legitimate ‘wall’ into an illegitimate ‘iron curtain’ separating areas between which there should be free passage.”93 This amicus curiae brief from the Catholic Councils demonstrates that by the time of the Everson case there had emerged an American doctrine of the separation of church and state in which the Jeffersonian “wall of separation” metaphor had become so central that it was essentially immune to attack. Whereas Chief Justice Waite in the late 1870s appeared to pick up an otherwise largely unknown quotation about the wall of separation from Jefferson’s collected works, by the Court’s 1946 term, the phrase had such currency that the National Councils of Catholic Men and Women felt compelled not only to address the “metaphor of a ‘wall of separation,’” but to go so far as to admit that it “has validity” and that it “does reflect definite ethical and social realities.”94 While the Catholic Councils then sought to define the wall’s boundaries in as favorable a fashion as possible to promote the parochial school cause, their brief is an impressive piece of evidence that a variety of cultural factors – from nativism and the school wars to more intellectual and theological debates – had coalesced into a recognizable American church-state dogma with a widely accepted lexicon, including the “wall of separation” image in particular. Since Philip Hamburger has persuasively argued that much of the development of the modern American doctrine of the separation of church and state grew out of Protestant-Catholic conflict, it is interesting to see that the Catholic Councils’ brief essentially admitted that the terms of the debate had been set by their opponents, and the best hope for the Roman Catholic position was to try to push the definition of those terms in a more favorable direction.95 With such a background, it is hardly surprising that the two principal opinions in Everson would share the “wall of separation” theme.

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Ibid., p. 961. The brief discusses further the “peculiarity of the field of education. In this field the interests of the State and of the Church interpenetrate. Here no ‘wall’ can be erected, dividing the education field into two areas. . . . As a matter of fact, the same fundamental enterprise goes on in both areas – the promotion of the general welfare through the preparation of an educated citizenry.” Ibid., p. 959. Hamburger writes,“[T]he history of the separation between church and state cannot be understood simply as the history of religious liberty and its protection by American institutions. On the contrary, separation needs to be recognized as part of a much broader social and cultural development. In particular, separation became a popular vision of religious liberty in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Hamburger, Separation of Church and State, pp. 491–2. See also McGreevy, Catholicism and American Freedom, chapter 6.

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By the time oral argument was scheduled in late November of 1946, the amicus curiae briefs had succeeded in shifting the contested terrain of the case away from the “public funds for private use” issue to questions arising under the establishment clause. According to Kenneth W. Greenawalt, the New York attorney who was the primary author of the ACLU’s brief (and thus not necessarily a neutral observer), the appellant’s oral argument “was devoted almost exclusively to the point relating to separation of Church and State as developed in [the ACLU’s brief].”96 In fact, the proud author of that brief observed that “the point relative to the separation of Church and State which was developed only in our brief, was the one point around which the entire oral argument centered.”97 The judicial conference took place on November 23, 1947. Thanks to the fact that two of the sitting justices – Murphy and Burton – kept notes of the discussions during judicial conferences, we have a good sense of the range of views expressed by the members of the Court in the conference that took place following oral argument.98 Interestingly, the arguments raised at the conference bore remarkably little resemblance to the positions later expounded in the justices’ opinions. The chief spoke first, voting to affirm on the “child benefit” theory and arguing that because “[t]here is no discrimination here . . . [t]his case was as strong or stronger than the Cochran case.” Black and Reed simply stated their intentions to affirm, and then Frankfurter changed the tone, stating that he would reverse, but “with difficulty.” While Frankfurter would have seen Cochran as dispositive had the Everson case arisen earlier, he believed that recently decided cases relating to freedom of speech have “shifted our latest views about our democracy.” In the current environment, “[w]hen legislation makes inroads here, the justification must be very compelling. If there is one thing beyond anything else that involves religious freedom, it is the insulation of church and state.” He then emphasized this point by making the only direct reference to the founding fathers in the conference: “The framers wanted complete and absolute separation of church and state.”99 Frankfurter followed this brief appeal to the framers with a historical reference quite remote from the colonial Virginia exploits of Jefferson and Madison that would later

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Kenneth W. Greenawalt to Nannette Dembitz, November 25, 1946, ACLU files (Princeton University), vol. 2755, p. 26. Ibid., p. 27. He noted further that the “briefs of the parties had merely mentioned the point incidentally and had placed no emphasis on it. The main argument of their written briefs was that involving the use of public funds for a private purpose.” Dickson, Conference. All of the quotations included herein from the judicial conference are found on pages 400–402 of this volume. Ibid. Emphasis in the original.

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dominate the majority and dissenting opinions. He referred instead to the instructions written by Secretary of War Elihu Root to William Howard Taft for service as the governor general of the Philippines following the Spanish-American War.100 Root wanted the Bill of Rights fully applicable to the Philippines (except for the Second Amendment’s right to bear arms and the Sixth Amendment’s provision for jury trials), and “he stressed the importance of imposing a separation of church and state,” citing that country’s “long and often unhappy history of close association between secular and ecclesiastical authorities under Spanish rule.”101 Frankfurter concluded his initial remarks by observing that “it makes no difference to me that it is Catholic or Jewish schools involved. . . . [I]t is unjust for education. It leaves out those schools that are run for profit.”102 Chief Justice Vinson queried Frankfurter as to whether he thought that the New Jersey program “establishes religion.” Frankfurter said no, but, nevertheless, he asserted that the “due process clause protects me against the blending of ecclesiastical and state affairs. The establishment clause does not have the fixed meaning of the Episcopal Church, nor merely that of giving money to religious institutions.”103 Next, Douglas voted to affirm, arguing that “this is [not] the same as an endowment of religious groups by the state.” (“During oral argument, Douglas [had] passed a note to Hugo Black that said, ‘If the Catholics get public money to finance their religious schools, we better insist on getting some good prayers in public schools or we Protestants are out of business.’”104 ) Murphy, the only Roman Catholic member of the Court, passed without comment. Jackson then indicated an inclination toward affirming the New Jersey court’s judgment. Despite the fact that a “lot of this argument about ‘child benefit’ is damned dishonest,” he argued that “this Amendment does not stop the states from teaching some forms of activity that are in favor of religion and vice versa.” Justice Rutledge then spoke at some length, but his points bear little resemblance to the arguments that he ultimately made in his dissenting opinion. His first major point was that discrimination in favor of public 100

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The editor includes the following explanatory note: “In 1900, following the SpanishAmerican War, Secretary of War Elihu Root wrote the official instructions for the first American governor of the Philippines, William Howard Taft. Root instructed Taft to govern the Philippines in the interest of the Philippine people and to give them the full benefit of the American Bill of Rights – except for the right to jury trial and the right to bear arms.” Dickson, Conference, p. 401, n. 25. Dickson, Conference, p. 401, n. 5, citing Henry F. Pringle, The Life and Times of William Howard Taft (1939), pp. 182–4. Dickson, Conference, p. 401. Ibid. Ibid., p. 401, n. 26, citing “Ball, Hugo L. Black, 134.”

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and Roman Catholic schools – to the exclusion of other private schools – is a constitutionally fatal flaw. But then he questioned whether even a truly nondiscriminatory school aid law would be acceptable, although his argument sounds more practical than constitutional, especially when he raised the specter of “[e]very religious institution in the country . . . reaching into the hopper for help”: First it was textbooks, now buses and transportation, and next it will be lunches and teachers. . . . You can’t draw the line between a little and a lot of pregnancy. If you can justify this law, then you can go much further. Even if all schools were included, I still might consider it bad. This will throw everything into the legislature. Every religious institution in the country will be reaching into the hopper for help if you sustain this. It forces people to pay for the religious education of others. We must stop this thing right at the threshold of the public schools.105

Rutledge’s extended comments appeared to shift the focus of the debate, and Justice Burton and Jackson responded directly to them. Justice Burton spoke in favor of affirmance, and he chastised Rutledge for making largely prudential appeals rather than constitutional arguments: “We are not considering the wisdom of the law, but whether it is prohibited by the Constitution.” As far as Burton was concerned, “I can’t find that they went that far in the Constitution. This is not an established church.” Jackson then followed with: “All that Wiley [Rutledge] said is true but his conclusion. If the state decided to support private schools, it could do so. . . . If the federal Constitution did stop the states from doing those things, I might have to reverse.” Either Rutledge or Frankfurter (the notes are unclear) then quickly invoked the incorporation doctrine: “The Fourteenth Amendment carries it in,” to which Jackson made no response, although the fact that he later joined Justice Rutledge’s dissenting opinion suggests that he ultimately became convinced that the federal Constitution could “stop the states from doing those things.”106 The conference discussion then shifted back to Justice Black, who proposed a moderate approach in the distinct vocabulary of his southern roots: “I won’t go in a whole hogically way to contribute to a church – only this far.” And then debate ended with an obscure comment from the chief justice, who may have been speculating that any greater aid for religion would have governmental strings attached: “I try to think of the case in front of me. I think that the church itself would probably resist state control.” At that point, the expressed views of the justices tallied six for upholding the 105 106

Ibid. (emphasis in the original). Ibid., p. 402.

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New Jersey transportation program, with two opposed (Rutledge and Frankfurter), and one abstention (Murphy). Apart from Frankfurter’s appeal to Elihu Root’s views on church and state in the Philippines, any history of the establishment clause (or of the American founding period) was conspicuous only by its absence. Ultimately, Murphy cast his vote with the majority to affirm,107 while first Jackson switched sides, and then “[a]fter intense lobbying by Frankfurter, Jackson and Rutledge, Harold Burton changed his mind and joined the dissenters,”108 resulting in a 5–4 decision to uphold the school bus reimbursement program. The chief justice assigned responsibility for the majority opinion to Justice Hugo Black, who circulated an initial draft about two weeks later, with Justice Rutledge’s lengthy draft dissenting opinion appearing shortly thereafter.109 The Opinions: Justices Black and Rutledge The authors of the two major opinions in Everson, Hugo Black and Wiley Rutledge, had much in common. Both were Democrats who were raised as Baptists in the rural South; they shared a liberal populist vision of American democracy that was distrustful of large businesses and supportive of the New Deal; and on the Court, they voted together nearly three-quarters of the time.110 Not surprisingly, their opinions in Everson generally were sung from

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Frankfurter aggressively lobbied Murphy to vote with dissenters, saying, “You have a chance to do for your country and your church such as never has come to you before – and may never come again. . . . For the sake of history, for the sake of inner peace, don’t miss. No one knows better than you what Everson is about. Tell the world – and shame the devil.” Quoted in James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in Modern America (New York: Simon and Schuster, 1989), p. 181. Dickson, Conference, p. 402. Frankfurter encouraged Rutledge to write a dissenting opinion. Sidney Fine describes their colloquy as follows: “Despite his strong feelings about the case, Frankfurter initially thought that he should not write in dissent. ‘I think it is very important in a field which arouses religious tensions at a time when these tensions are so excitable,’ he wrote Rutledge, ‘not to excite them needlessly by a Jew taking a position against the overwhelmingly even if uncritically sectarian sentiments.’ . . . When Rutledge apparently observed that, as a Baptist, he would also be ‘suspect,’ Frankfurter responded that a Baptist, although ‘suspect,’ was ‘less exposed in expounding wisdom and light’ in this instance than a Jew.” Sidney Fine, Frank Murphy: The Washington Years (Ann Arbor: University of Michigan Press, 1984), p. 569. Although both were raised as Baptists, in later periods of their lives they moved toward Unitarianism, and both had Unitarian funerals. James Hitchcock, The Supreme Court and Religion in American Life, vol. 2: From “Higher Law” to “Sectarian Scruples” (Princeton, N.J.: Princeton University Press, 2004), pp. 92, 96. At the time of the Everson case, Rutledge still considered himself a Baptist. See Fine, Frank Murphy, p. 569.

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the same strict separationist hymnbook, even if, in the end, they diverged on how the final chord should resolve. In reviewing their backgrounds and political views, it seems surprising that they fell on opposite sides of this case. Black and Rutledge brought geographical diversity to a Court dominated by northeasterners; they came to the Court as representatives of the South and West, respectively. In fact, Franklin Delano Roosevelt, who appointed both men to the Court, apparently greeted nominee Rutledge with the words, “Wiley, you have a lot of geography.”111 Black, while hardly the “Clay County hillbilly”112 he regularly claimed to be, did, in fact, grow up as the son of a storekeeper in a rural Alabama rife with nativism in general and anti-Catholicism in particular. After a brief enrollment in medical school, he attended the University of Alabama’s law school. Black quickly became a successful trial lawyer, serving at various times as prosecutor, defense attorney, and civil litigator, while, in his spare time, teaching Sunday School at the Baptist Church and joining “every civic club that would have him.”113 His propensity for joining these organizations would lead him not only to political prominence but also to considerable controversy. His political aspirations were focused on a state in which political power was typically controlled by nativist organizations. Black’s biographer Roger Newman details Black’s membership in one such powerful and wellknown Alabama organization, the Ku Klux Klan, which Black later tried to explain away as merely being “the liberal wing of the Democratic Party in Alabama.”114 One significant matter in Black’s career at the bar was a virtual case study of religious prejudices in Alabama at the time. Black successfully defended the Reverend Edwin R. Stephenson, a Methodist minister whose principal occupation was as the “marrying parson”; he claimed to have presided over 1,140 weddings in the two years before his trial. Stephenson was accused of killing Father James E. Coyle, a Roman Catholic priest who, Newman 111

112 113 114

John M. Ferren, Salt of the Earth, Conscience of the Court: The Story of Wiley Rutledge (Chapel Hill: University of North Carolina Press, 2004), p. 219. See Ralph F. Fuchs, “The Judicial Art of Wiley B. Rutledge,” Washington University Law Quarterly 27 (1942–3): 115: “Not previously has there come to the high tribunal a jurist who combines a Western origin and career with legal training and participation as a teacher in the modern legal education of the West. The significance . . . extends beyond mere geography because it involves the emergence on the Court of new currents of thought and experience” (p. 115). Newman, Hugo Black, p. 1. Simon, The Antagonists, 71. Newman, Hugo Black, p. 98. Newman notes that the “Klan controlled the voting machinery in practically every county in Alabama” (p. 99).

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notes, “had been the head of Birmingham’s sizeable Catholic community” for over fifteen years.115 Stephenson, who was a Klan member and rabid anti-Catholic, discovered that the priest had officiated at the wedding of his daughter to “a middle-aged, dark-skinned Puerto Rican paperhanger.”116 The Klan paid for Stephenson’s defense in an environment of “religious animosity that made Birmingham what a local editor later called ‘a cesspool of racial and religious hatred.’”117 In the end, Stephenson was acquitted by reason of self-defense in a trial presided over by a judge who was a Klan member; moreover, according to Newman, a “majority of jurors were Klansmen [and Black] gave jurors the Klan signature” and recited the Klan prayer during the trial.118 In the end, Newman explains that Black “was only doing what a lawyer must do,” but acknowledges that Black “disliked the Catholic Church as an institution” and was certainly willing to take advantage of similar feelings shared by many Alabamans at that time. Black subsequently used Klan support to reach the United States Senate where he exhibited what Newman calls a “thoroughgoing Jeffersonian liberalism.”119 Eventually, his enthusiastic support for the New Deal led to an appointment by FDR to the Supreme Court. Immediately, according to Newman, “Black’s connection with the Ku Klux Klan was a major topic of conversation in the Senate cloakroom.”120 Black refused to comment, and the newspapers were unable to find any records of his membership, despite furious research. When asked directly on the Senate floor, he said that he “had had no affiliations of any kind with the Klan since [he] had come to the Senate.”121 He was silent on his activities prior to joining the Senate, which was good enough for confirmation. In the hope of appeasing Catholics and others worried about the possibility of religious prejudice, he passed over his longtime secretary for a position at the Court in favor of a young Catholic woman who worked in his office.122 He also gave a radio address proclaiming that the “[c]onstitutional safeguard to complete liberty of religious belief is a declaration of the greatest importance” and averring that “[s]ome of my best and most intimate friends are Catholics and Jews.”123 Black’s 115 116 117 118 119 120 121 122 123

Ibid., p. 72. Ibid. Ibid., p. 74. Ibid., pp. 83, 86. Ibid., p. 129. Ibid., p. 239. Ibid., p. 241. Ibid., p. 245. Quoted in Charlotte Williams, Hugo Black: A Study in the Judicial Process (Baltimore, Md.: Johns Hopkins Press, 1950), pp. 27, 29.

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actions did not fully appease wary Roman Catholics; the Catholic World called his appointment “a first class calamity,” while the more measured Commonweal wrote that “the faith and confidence of the American people in our democratic institutions has in no way been strengthened by [Black’s] appointment.”124 In the context of this background, it is not surprising that some early commentators charged that Black, ever the politician, upheld the New Jersey parochial school busing program as a way of currying favor with Catholics.125 It is not clear whether Black did so, although his comments at the Court’s conference about going “only this far” to “contribute to a church” suggests that he might well have hoped to deliver the same type of political message that he did when he proclaimed that some of his best friends were Catholics. Otherwise, it would be hard to find anything in his background that would make him friendly toward laws favoring parochial schools. To the contrary, he was a fan of the works of Paul Blanshard, which were, as Newman notes, “outspokenly anti-Catholic tracts,”126 although they were seen as quite mainstream at the time.127 Years later, Black’s son wrote that his father had harbored deep suspicions of the Roman Catholic Church: “He believed that it was only natural that any church would hungrily welcome a close relationship with the state, and since the Catholic Church enjoyed the privilege of being the state church in Spain, he suspected it of aspiring to the same relationship in the United States.”128 Both Justice Black and Justice Rutledge grew up in environments deeply suspicious of Roman Catholicism. Wiley Rutledge grew up primarily in rural Kentucky and Tennessee, and according to Judge John Ferren’s recent

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Ibid., pp. 34, 19. Williams also notes that a Jesuit priest writing in The America penned an editorial titled, “Old Klan Vermin and the New Court Ermine” (p. 19). If he was seeking approval from Roman Catholics in his opinion, he was largely unsuccessful. Black wrote in 1949: “One of the strange things about [Everson] is that the most severe and consistent criticisms of the opinion have come from leading Catholics. . . . No week passes and few days pass that I do not have criticisms either by way of letters or magazine articles written by members of the Catholic church.” In Newman, Hugo Black, p. 364. Newman reports that Black’s “goal . . . was to make [Everson] a pyrrhic victory and he quoted King Pyrrhus, ‘One more victory and I am undone’” (p. 363–4). Ibid., p. 521. See, e.g., Paul Blanshard, American Freedom and Catholic Power (Boston: Beacon Press, 1949). John T. McGreevy has pointed out that Blanshard’s anti-Catholic works were praised by a widespread group of leading intellectuals, including Albert Einstein, John Dewey, and Reinhold Niebuhr. John T. McGreevy, “Thinking on One’s Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History 84, no. 1 (June, 1997): 97–131. Hugo Black, Jr., My Father: A Remembrance (New York: Random House, 1975), p. 126.

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biography, the jurist’s father was a “circuit-riding [Southern Baptist] preacher who taught family and parishioners alike a religion that reflected literal acceptance of the Christian Bible and an abhorrence of Roman Catholicism. A strong Democrat, Rutledge’s father was once quoted as saying, nonetheless, that ‘he would vote for the blackest man in Africa before voting for [Catholic Democrat] Al Smith.’”129 After law school, Rutledge only briefly practiced law before he was offered a teaching position at his alma mater, the University of Colorado law school. He was lured away to serve as a faculty member, and then as dean of the law school of Washington University in Saint Louis, where he increasingly became what Ferren describes as a “public liberal.” Although Rutledge’s limited scholarly output would not have allowed him to thrive in the modern “publish or perish” academic environment, his progressive views became widely known in Saint Louis through his speeches and editorials on topics such as workers’ compensation, minimum wage laws, and child labor laws.130 “Beginning in 1933,” notes Ferren, Rutledge was “unreservedly critical of the ‘pirates of industry and finance who have brought the country to the point of “dying by inches.”’”131 These efforts in public advocacy brought Rutledge to the attention of Irving Brant, an influential editorial writer for the St. Louis Star-Times who would later successfully manage the campaign to put Rutledge on the Supreme Court. In 1838, after Rutledge had moved to the deanship at the University of Iowa’s law school, a vacancy occurred on the Supreme Court; Rutledge’s name was put forward by Brant, who had been an early and vocal supporter of Roosevelt, leading to a close relationship between the two men.132 Ultimately, Frankfurter received the nomination. Rutledge’s name came up at the time of the next vacancy, and again he lost out, this time to Douglas, but he was given a seat on the Court of Appeals for the District of Columbia Circuit instead.133 There he developed a reputation for laboring over longwinded, heavily researched opinions, a characteristic that would follow him 129

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Ferren, Salt of the Earth, p. 17. For additional biographical information, see Fowler V. Harper, Justice Rutledge and the Bright Constellation (Indianapolis, Ind.: Bobbs-Merrill, 1965). Ferren, Salt of the Earth, p. 68. Ferren notes that in “addition to writing newspaper articles on public policy, Wiley loved to make speeches” (p. 79). He did not love scholarship nearly as much; Ferren reports that Rutledge wrote only two articles that “would be called legal scholarship” (p. 99). Ibid., p. 77. Ibid., p. 140. Ferren notes that “Brant was one of the few major newspaper editors in the country who generally supported the administration day by day.” Ibid., p. 173.

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to the Supreme Court, which is somewhat surprising in light of his low level of scholarly productivity as a law school professor.134 Finally, following another lobbying campaign by Brant, which focused on the need for a justice from west of the Mississippi as well as on Rutledge’s personal qualities, Rutledge was confirmed as a Supreme Court justice in early 1943. Brant’s advocacy efforts included a personal meeting with FDR, and both Justice Douglas’s autobiography and Ferren’s biography conclude that “more than any person, Irving Newton Brant was responsible for the nomination of Wiley Rutledge as a federal appellate judge and, ultimately, a Supreme Court justice.”135 With this background, it is hardly surprising that when Justice Rutledge seized upon an opportunity to write an opinion in a path-breaking church-state case, it not only would be lengthy and densely footnoted but would also rely heavily on Brant’s highly regarded biography of James Madison. Justice Black’s Majority Opinion In its final form, Justice Black’s opinion concludes that the New Jersey law did not violate the establishment clause, although so much of the opinion is dedicated to enunciating a Reynolds-like history of the Virginia-inspired origins of the establishment clause that it seems quite surprising that the actual holding strays from a strict separationist approach, prompting the distinguished Roman Catholic scholar, the Rev. John Courtney Murray, to remark, “[W]e have won on busing but lost on the First Amendment.”136 In fact, in Everson, the majority opinion and Justice Rutledge’s dissenting opinion (which represents the views of all four of the justices who did not 134

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Ferren writes: “Throughout his judicial career, [Rutledge] tended, as they say in the trade, to ‘write long.’ He never denied this. And rather than make any real effort to shorten his prose, this son of a long-winded preacher would offer reason after reason why he felt obliged to supply so much detail” (p. 180). For an ex-professor who never managed to publish much in the way of scholarly materials, it is interesting that Rutledge’s opinions were lauded by a law professor for their “law school–law review flavor.” Ibid., p. 219, citing William O. Douglas, Go East Young Man: The Early Years (New York: Dell, 1974), p. 332. For Brant’s version of the story, see Irving Brant, “Mr. Justice Rutledge – the Man,” Iowa Law Review 35 (1949–50): 544, 555–9. Quoted in Formicola and Morken, Everson Revisited, p. 56, who cites a conversation between Murray and Monsignor William McManus reported by Joseph Komanchak in an unpublished manuscript. Murray wrote extensively on religious freedom issues. See, e.g., the review essay by Kenneth L. Grasso, “John Courtney Murray, ‘The Juridical State,’ and the Catholic Theory of Religious Freedom,” Political Science Reviewer 33 (2004): 1–61. See also Thomas T. Love, John Courtney Murray: Contemporary Church-State Theory (Garden City, N.Y.: Doubleday, 1965).

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join the majority opinion) speak with virtually one voice on the fundamental issue of the appropriateness of an originalist approach to the establishment clause and, in particular, on the importance of Virginia’s history as the interpretive key that unlocks the clause’s true meaning. The majority and primary dissenting opinions appear so similar in their interpretive methodology and historical reasoning (despite their differing conclusions) that Harvard Law Professor Laurence Tribe has referred to a “Black-Rutledge” approach to the clause,137 virtually erasing their fundamental disagreement on whether the State of New Jersey’s school transportation law breached the “wall between church and state” that Black averred “must be kept high and impregnable.”138 While it is not clear that the two opinions fully share one common historical methodology, they certainly both devote considerable attention to church-state issues in the Old Dominion in an effort to determine the intentions behind the religion clauses.139 This consistent historical approach in the two opposing opinions did not happen by accident. Rather, the opinions were crafted in response to each other, and each draft was part of an iterative process that ultimately lasted over two months and encompassed several drafts of Black’s majority opinion and at least seven draft dissenting opinions circulated by Rutledge, who later lamented that he wished he had even more time to refine and expand the historical arguments.140 By contrast, Justice Black’s first inclination was to skirt over any historical analysis, relying instead on precedent and broad principles. The first version of Justice 137

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Tribe compares the “Black-Rutledge focus on pre-adoption history” with subsequent appeals to presidential and congressional activities after the First Amendment was ratified. Laurence H. Tribe, American Constitutional Law, 2nd ed. (Mineola, N.Y.: Foundation Press, 1988), p. 1163. Everson, 330 U.S. at 18. Tribe points out that the two justices “share these essential elements: First, they seek the meaning of the clauses in the background of the period in which they were adopted; second, they view the ideas of Jefferson and Madison as the direct antecedents of the first amendment and as particularly relevant to its interpretation; and third, they accept the postulate that a union between church and state leads to persecution and civil strife. Whether the Black-Rutledge version is accurate history has been disputed vigorously off the Court . . . ; what is indisputable is that, with remarkable consensus, later Courts accepted the perspective of these Justices as historical truth.” Tribe, American Constitutional Law, p. 1160. In a March 18, 1947, letter to Irving Brant, Rutledge wrote, “I could have spent another two or three months refining and possibly expanding the historical phase of our treatment but, as you know, when a thing gets to a certain stage here the most important thing becomes to get it down rather than to continue perfecting and polishing. That policy I don’t like.” WR Box 143. In the same letter, he indicated that he received “more mail about [Everson] than any since I have been on the Court.”

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Black’s opinion was circulated to the entire Court on December 6, 1946; it contained only the slightest mention of the First Amendment’s history, and then only as it had been described by the Court in prior cases; this initial draft was followed by a second version that incorporated some minor changes recommended by the chief justice, with no emendations to the brief historical remarks. A great deal of detailed historical analysis was in the works, however, and it would ultimately dominate the Everson opinions. Rutledge’s first circulated draft, which appears to have been sent to the other justices on New Year’s Eve, about three weeks after Black’s initial draft, expounded at considerable length on the history of the establishment clause, based on several published histories of the relevant times.141 Justice Rutledge must have rung in the New Year with some heavy historical reading because just a week later, he circulated another draft with an even more extensive historical argument. Black then picked up the historical gauntlet, leading to an expanded historical section in his mid-January revised draft, as well as an escalating exercise of dueling footnotes as the two justices competed to determine which of the two could be more faithful to the basic theory of the Virginia disestablishmentarian origins of the First Amendment’s establishment clause. Ultimately, after two more drafts from Justice Black and four more from Justice Rutledge, they both told what sounded like essentially the same story, and both claimed fidelity to Thomas Jefferson’s image of a “wall of separation” between church and state, yet they applied those insights to the New Jersey transportation reimbursement program in opposite ways. In the majority opinion, Justice Black’s discussion of the establishment clause begins by noting that the “First Amendment [has] been made applicable to the states” by the Fourteenth Amendment,142 although no case had yet invoked the establishment clause since the Court had adopted the incorporation doctrine. Then, in the initial draft, Black merely makes a vague reference to the Court’s previous use of history to elucidate the meaning of the religion clauses; he states that the “historical roots of the First Amendment, its meaning and scope, the conditions which prompted its adoption, the evils it was designed forever to suppress, have been several times elaborated by . . . this Court.”143 Without devoting any further effort to describing the nature 141

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There is a prior, handwritten draft in his files, but it appears never to have been typeset or circulated. I am grateful to Thomas Clark for traveling to the Library of Congress and performing the highly valuable service of retrieving the draft opinions and correspondence from the files and putting together a detailed analysis of the chronology. Ibid., citing Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943). Black papers (BP), Box 255, Draft dated December __, 1946, page 5 (marked circulated 12/6/46).

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of those “historical roots” in the initial draft, Justice Black asserts that the clause’s “broad meaning” can be found in a quotation from the Supreme Court’s 1871 case, Watson v. Jones, which was not an establishment clause case but one that dealt with rival claims to property owned by a Presbyterian church in Kentucky. The language he draws from Watson is, unfortunately, as vague as the First Amendment itself. In that case, the Court stated: “‘The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.’”144 That was the end of Justice Black’s historical analysis. But then, after seeing Justice Rutledge’s much more extensive rendition of First Amendment history in the draft dissenting opinions circulated on December 31 and January 8, Justice Black amended his opinion to amplify the historical analysis with a revised (and nearly final) version appearing on January 14. The final version of his opinion relies on history far more than the early drafts, and Black explicitly states that applying the establishment clause to New Jersey’s school transportation law requires “an understanding of the meaning of [the constitutional] language, particularly with respect to the imposition of taxes.”145 With a reference to Justice Waite’s opinion in Reynolds, Justice Black wades into eighteenth-century history, stating, “Once again, therefore, it is not inappropriate briefly to review the background and environment of the period in which that constitutional language was fashioned and adopted.”146 Black does not seem to have done nearly as much historical spadework as Justice Rutledge, and his debt both to Chief Justice Waite’s pioneering First Amendment analysis and to the ACLU’s amicus curiae brief is manifest throughout the opinion. He refers to the Reynolds opinion four separate times, twice in the text itself and twice in the notes. His opinion also tends to follow the same basic argument as the one that was presented in Waite’s Reynolds opinion, especially concerning the critical link between Virginia’s rejection of a general assessment bill providing for “teachers of 144

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Ibid., pp. 5–6, quoting Watson v. Jones, 13 Wall. 679 (1871), which in turn is quoting the South Carolina Court of Appeals. Black’s footnote also cites Reynolds and Davis v. Beason. Ibid., n. 3. Everson, 330 U.S. at 8. Here Justice Black cites in a footnote both Reynolds v. United States, 98 U.S. 145, 162, and Knowlton v. Moore, 178 U.S. 41, 89, the tax case in which the Court, in 1900, noted that its conclusion “is greatly strengthened by considering the state of the law in the mother country and in the colonies, and by the practice of taxation which obtained at or about the time of the adoption of the Constitution.” His citation of this case seems to relate more generally to the Court’s previous use of an originalist approach to constitutional interpretation than to the First Amendment.

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the Christian Religion” and that state’s enactment of Thomas Jefferson’s statute protecting religious freedom, on the one hand, and the adoption of the establishment clause by the First Congress on the other, thus laying the foundation for a Jeffersonian reading of the First Amendment. Yet Black does strike out on his own to offer references to various contemporary historians to provide a heavily footnoted background that supplements Chief Justice Waite’s major conclusion in Reynolds regarding Virginia’s formative role in the development of the religious clauses. Before delving specifically into the Virginia materials, Justice Black recaps the history of European immigration to colonial America, noting that a “large proportion” of the “early settlers of this country [who] came here from Europe [did so] to escape the bondage of laws which compelled them to support and attend government favored churches.”147 He notes further that the European patterns of church-state relations that the settlers had fled “were transplanted to and began to thrive in the soil of the new America.”148 Catholics, Quakers, and Baptists, in particular, bore the brunt of religious persecution in America,149 and “all of these dissenters were compelled to pay tithes and taxes to support government sponsored churches.”150 For this well-traveled historical territory, Justice Black cites a number of historians, including Macauley’s History of England (1849); Beard’s Rise of American Civilization (1937); Sanford Cobb’s lengthy The Rise of Religious Liberty in America (1902), which seems to have provided Black with much of the material that appears in his footnotes; Robert Semple’s Virginia Baptists (which had informed Waite’s opinion in Reynolds); and relatively recently published histories of religion in America by University of Chicago professor William Warren Sweet.151 In considering how much (or how little) original 147

148 149

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Everson, 330 U.S. at 8. He noted that in Europe, “at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of them had from time to time persecuted Jews.” Ibid. at 9. Ibid. at 9. Black calls upon, inter alia, an 1894 edition of Semple’s Virgina Baptists to support this statement. Everson, 330 U.S. at 9, n. 7. Ibid. at 10. In particular, he cites: “Macauley, History of England (1849) I, cc. 2, 4; The Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1937) I, 60; Cobb, Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939) c. II; Sweet, Religion in Colonial America (1942) 320–322.” Everson, n. 5. In a biography of Sweet, historian James Ash notes, “Such was Sweet’s influence that in his 1959 obituary the Christian Century called him the ‘father of American church history. . . . Sweet was . . . the first trained, professional, American historian who specialized

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research Black may have done, it may be instructive to note that references to the works of both Sweet and Cobb appear in the amicus curiae briefs, and Semple was cited in Reynolds,152 leaving Macauley and Beard as the only ones that Black is likely to have identified on his own. Black’s lifelong hobby of reading history may well have put both volumes on his personal bookshelves.153 In painting this broad landscape depicting widespread persecution and governmental support of the churches, Justice Black thus drew from a wide range of distinguished historians, and his footnotes evidence an impressively documented study of the well-known and certainly in this context noncontroversial aspects of the history of religious freedom (or lack thereof) in seventeenth- and eighteenth-century Europe and America. But at this point in the historical narrative, Black needs to link this general background with the First Amendment, and the learned historians on whom he has been relying are unable to help. Neither Beard nor Sweet addresses the issue directly, and Cobb’s book, The Rise of Religious Liberty in America, focuses on state efforts and only briefly mentions the federal Constitution. This dearth of commentary from the historians relating to the Bill of Rights should not be surprising because at the times they were writing (for the most part, 1900–1930s or before), the First Amendment had not, in fact, had much of an effect on religious liberty; it took the incorporation doctrine in the late 1930s and 1940s to rescue the First Amendment’s religion clauses from jurisprudential impotence.154 So Black must forge ahead on his own, and the footnotes abruptly cease referring to distinguished historians, as he tries to pick his way through colonial America to gather evidence to bolster his

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in religion, and as such did have the honor of establishing his field of study as a proper academic discipline free from ecclesiastical interests.” James L. Ash, Jr., Protestantism and the American University: An Intellectual Biography of William Warren Sweet (Dallas, Tex.: SMU Press, 1982), p. xiv. According to Ash, Religion in Colonial America and The Story of Religion in America were both favorably reviewed in scholarly journals, and the latter volume became a widely used college text (pp. 96, 104). Black cites “Semple, Baptists in Virginia (1894),” which is a republication of the earlier 1810 volume referenced by Chief Justice Waite. Everson, 330 U.S. at 9, n. 7. A. E. Dick Howard, one of Justice Black’s law clerks, notes, “A man self-taught in the Greek and Roman classics and in British and American History, Black was fond of advising his law clerks to read Tacitus or Fox’s Book of Martyrs.” Howard, “Up Against the Wall: The Uneasy Separation of Church and State,” in Church, State, and Politics (Washington, D.C.: Roscoe Pound-American Trial Lawyers Foundation, 1981), p. 10. For a discussion of the lack of reliance on First Amendment arguments in post-Fourteenth Amendment nineteenth-century cases involving religion, see Jonathan Laurie, “The Fourteenth Amendment Use and Application in Selected State Court Civil Liberties Cases, 1870–1890 – A Preliminary Assessment,” American Journal of Legal History 28, no. 4 (October 1984): 295–313.

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assertion that religious intolerance and state-supported churches “became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence.”155 In particular, he asserts, the “imposition of taxes to pay ministers’ salaries and to build and maintain churches and church property aroused their indignation,” generating “feelings which found expression in the First Amendment.”156 Justice Black then makes a brief statement that becomes the crux of his constitutional argument, which involves singling out Virginia as the epicenter of American disestablishmentarianism. While he admits that “[n]o one locality and no one group . . . can rightly be given entire credit for having aroused the sentiment that culminated in the adoption of the Bill of Rights’ provisions embracing religious liberty,”157 he promptly ignores that admission and proceeds with an exclusive focus on Virginia. The Commonwealth of Virginia, he argues, “where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement.”158 Although Black cites no source for this critical assertion, his point here mirrors both Chief Justice Waite’s opinion in Reynolds and the ACLU’s amicus curiae brief, which employed Waite’s exact language in Reynolds (but, for some reason, without attribution): The “controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia.”159 Black thus characterizes support for religious liberty and disestablishment as essentially a national movement, which, in his view, encompassed widespread antipathy toward state-supported churches among America’s “freedom-loving colonials” and “reached its dramatic climax in Virginia in 1785–86 when the Virginia legislative body was about to renew Virginia’s tax levy for the support of the established church.”160 Yet he cites no scholars nor does he produce any historical evidence to buttress his claim that the acts and writings of Jefferson and Madison in Virginia were, in fact, fairly representative of a disestablishmentarian movement throughout the 155 156 157 158 159

160

Everson, 330 U.S. at 11. Ibid. Ibid. Ibid. at 11. Kurland and Casper, Landmark Briefs, p. 854, and Reynolds, 98 U.S. at 163. Interestingly, the ACLU’s historical argument closely follows Chief Justice Waite’s Reynolds opinion but while it cites the flag salute case, Board of Education v. Barnette, 319 U.S. 624 (1943), on nine separate pages, Reynolds appears only once as the first of numerous authorities cited to support the invocation of Jefferson’s “wall of separation” language. Kurland and Casper, Landmark Briefs.

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colonies that eventually culminated first in the Old Dominion’s rejection of the general assessment proposal and later in the First Amendment. At this critical juncture in the flow of originalist logic, Black, Waite, and the ACLU all make the same point, which allows them to import the words and deeds of Jefferson and Madison into the establishment clause, but none cites any authority or specific evidence for this historical claim. Justice Black appears to provide collateral support for this Virginiacentric historical reading by making broad statements about colonial attitudes, but every time he offers evidence in support of his generalizations, he can only cite examples from the Old Dominion. Nowhere in Black’s opinion, either in the footnotes or in the text, does Black discuss any “colonial” who was not a Virginian, despite his claim that Virginia was not just important in its own right but was catalyzing and leading a national movement. In fact, the only “freedom-loving colonial” that he specifically references is James Madison himself. Black includes a footnote that is meant to support his claim that there was opposition in various parts of America not only to “widespread persecution” but also to “government-mandated support of the churches,” but he merely cites one Virginian who seems to be commenting only on what we might now call the free exercise of religion, not state support of churches.161 In the footnote, Black writes, “Madison wrote to a friend in 1774: ‘That diabolical, hell-conceived principle of persecution rages among some. . . . This vexes me the worst of anything whatever. There are at this time in the adjacent county not less than five or six well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox.’”162 Madison’s sentiments are noble, indeed, but they do not necessarily back up Black’s argument that the Virginians were speaking for all of colonial America. In another footnote, Black tries to link the concept of a geographically widespread commitment to disestablishment with “Virginia’s resistance to taxation for church support,” which, he asserts, was “crystallized in the famous ‘Parson’s Case’ argued by Patrick Henry in 1763.”163 In this case, which occurred more than twenty years before the event Black calls the “dramatic climax” when the “freedom-loving colonials” acted to separate church and state, future Virginia governor Patrick Henry made his debut as an attorney; he was representing an Anglican church vestry that had taken advantage of a complicated 1758 law about the price of tobacco that had 161 162 163

Ibid. Ibid., p. 11, n. 9. Everson, 330 U.S. at 11, n. 10.

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the effect of dramatically reducing the minister’s statutory salary.164 When Patrick Henry came upon the scene, his client had already lost the case; the Virginia court had invalidated the law because it had not been approved by the King of England. Henry’s successful advocacy in the damages phase of the trial (resulting in a de minimus verdict) was, according to one early historian, “more treason than logic,”165 and Cobb, one of Black’s key historical sources, notes that as a result, “[i]mmense force was added to the feeling against the establishment, the ministers of which were now described as having no concern for the poverty and burdens of the people, and only desirous of obtaining the last penny for themselves.”166 While this case certainly related to the weakening of the established church in Virginia (and perhaps to the revolutionary cause), Black fails to mention that Patrick Henry later became an eloquent voice supporting state aid for Virginia’s churches; in fact, Henry and Madison took opposite sides of the church-state debate on the very issue that is cited by Justice Black as the single most important event – the “dramatic climax” – in Virginia (which later led to the First Amendment’s establishment clause): Patrick Henry was, in fact, the prime supporter (along with George Washington and other prominent Virginians) of the general assessment bill that inspired such vigorous opposition in Madison’s Remonstrance. And once again, although Black is claiming that Virginia represents essentially all of colonial America, he offers no disestablishmentarian evidence other than what he draws from Virginia itself. Ignoring the complicating fact of Patrick Henry’s advocacy in favor of the general assessment bill, Black credits Jefferson and Madison as having “led the fight” against it, and, then, in addressing the First Amendment, he does not refer to any particular reasons why Thomas Jefferson is a pivotal figure 164

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By statute, Anglican ministers were paid an annual salary of 16,000 pounds of tobacco, which was typically worth £400 in cash. The 1758 law (which had a term of only 10 months) provided that all debts payable in tobacco could be settled in cash at a rate that reduced the salary by two-thirds. Cobb, Religious Liberty in America, pp. 108–9. For more recent analyses, see Arthur P. Scott, “The Constitutional Aspects of the ‘Parson’s Cause,’ ” Political Science Quarterly 31, no. 4 (December 1916): 558–77; and Thad W. Tate, “The Coming of the Revolution in Virginia: Britain’s Challenge to Virginia’s Ruling Class, 1763–1776,” William and Mary Quarterly, 3rd ser., 19, no. 3 (July 1962): 323–43. Hawks, Ecclesiastical Contributions I, quoted in Cobb, Religious Liberty in America, p. 110. Cobb points out not only that the “Parson’s Cause” case launched Patrick Henry’s career, but also that Henry’s prior exploits were undistinguished at best: “No well-known lawyer could be found to take [the vestry’s previous attorney’s] place; and the case was well-nigh gone by default, when the defendants took for their advocate a young, unknown, awkward, unfledged lawyer, whose past had been spent in playing the fiddle, keeping a country store, swapping stories in taverns, and in desultory reading” (p. 110). Cobb, Religious Liberty in America, p. 110.

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in the development of the establishment clause; Black simply focuses on Jefferson’s authorship of Virginia’s Bill for Establishing Religious Freedom, which the justice seems to link to the First Amendment principally because it came from Virginia. Without providing any further foundation for the bill’s relevance, Black quotes from it at impressive length, including not only a portion of the statute itself – “[N]o man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened, in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief” – but also a significant part of the bill’s preamble: Almighty God hath created the mind free; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . ; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern.167

As to Madison, the jurist’s archetypical “freedom-loving colonial,” Black notes that he “wrote his great Memorial and Remonstrance” against the general assessment bill, and the Remonstrance received strong support throughout Virginia, leading the Assembly to postpone the bill, which eventually “died in committee.”168 Yet Black elects not to quote directly from Madison’s Remonstrance, which, as can be seen in Rutledge’s dissenting opinion, offers sharp critiques of any state support of religion. Instead, Black prefers to employ Jefferson’s broader, more malleable statements, and he merely summarizes how Madison “eloquently argued that a true religion did not need the support of law; that no person, either believer or non-believer, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free; and that cruel persecutions were the inevitable result 167 168

Ibid., pp. 12–13. Ibid., p. 12. Here Black draws from a 1946 discovery of miscellaneous papers by Madison, in which “Madison recollected that his Remonstrance ‘met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law.’” These papers were published in Elizabeth Fleet, “Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments,” William and Mary Quarterly 3 (1946): 534, 551, 555. See Everson, 330 U.S. at 12, n. 12.

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of government-established religions.”169 And of course Black omits any of Patrick Henry’s opinions on the assessment bill, although Henry’s support of the bill might have helped Justice Black reach his not-so-strict separation conclusion about the bus transportation bill at issue in Everson. In the end, Black’s census of “freedom-loving colonials” totals but two influential Virginians – James Madison and Patrick Henry – one of whom took a harder line in the assessment controversy than Black is willing to take, and the other of whom actually took the pro-establishment view in that debate, which is hailed by Black as the formative controversy leading to the establishment clause. At this point of the opinion, Black abandons his historical arguments altogether. Seeking to cement the connection between the enactment of the Virginia religious freedom statute and the meaning of the First Amendment, he relies instead on precedent to make his case. “This Court has previously recognized,” he recounts, “that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.”170 Here Black cites two Mormon cases (Reynolds and Davis v. Beason) and a church property case (Watson v. Jones) to support the specific claim that the Virginia statute and the First Amendment’s religion clauses are essentially coterminous. A consistent message promulgated in three separate Supreme Court religion cases would seem to be strong support for Black’s argument, but, much as his historical references add more camouflage than persuasiveness to his argument, the cases he invokes also fail to speak clearly on his main point. The reference to Reynolds seems apt since that case does, in fact, delve into First Amendment history in the fashion adopted by Justice Black – and in that case, as in Black’s opinion, the assertions of Virginia’s importance outweigh the supportive evidence – but the citations to the other two cases are perplexing. To be sure, Justice Field’s opinion in Beason, which was decided in 1890, after Chief Justice Waite’s death, relies heavily on the majority opinion in Reynolds for its holding that religious belief will not excuse illegal practices such as polygamy, and Justice Field’s opinion refers generally to the intentions of the First Amendment, but nowhere does he state, or even imply, that the goal of the First Amendment’s religion clauses was, in Justice Black’s words, “to provide the same protection against 169 170

Everson, 330 U.S. at 12. Ibid. at 13.

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governmental intrusion on religious liberty as the Virginia statute.”171 (In fact, Justice Field’s only reference to Virginia relates to Chief Justice Waite’s observation that Virginia prescribed the death penalty for bigamy in 1788, which seems irrelevant to the establishment clause.172 ) As to the Watson church property case, it is a mystery why Black would choose to cite it for the proposition that the Virginia statute and the First Amendment are linked since the opinion in Watson does not mention that issue at all. With the references to Beason and Watson, Justice Black seems to be seeking to gild the Reynolds lily by embellishing it with citations to two irrelevant cases.173 Justice Black then departs from the realms of both history and precedent, opting instead to return to the main theme of his original draft, namely, a declarative statement summarizing the meaning of the establishment clause.174 This summary appeared in the drafts long before Justice Black engaged the historical arguments that were raised by Rutledge’s dissenting opinion, so it would be difficult to explain it as deriving from some form of originalist introspection. Nowhere does he comment on the source of this declaration, nor does he specifically relate it to any prior cases or aspects of constitutional history except, at the end of the final version of this section (but not in the first draft), to quote from Thomas Jefferson’s letter to the Danbury, Connecticut, Baptists: “In the words of Jefferson, the

171 172 173

174

Ibid., citing Davis v. Beason, 133 U.S. 333, 342. Beason, 133 U.S. at 343. Paul Kauper remarks that the “Davis and Beason cases dealt with issues of religious liberty and Watson – a diversity case – rested on the common law. In none of these cases did the Court have occasion to elaborate upon the meaning of the establishment clause.” Paul G. Kauper, “Everson v. Board of Education: A Product of the Judicial Will,” Arizona Law Review 15 (1973): 307–26, 312, n. 25. Separately, he observes that “Justice Black took considerable leeway with the history and language of the establishment clause” (308). At this point in the opinion, Justice Black inserts a brief interlude about cases arising from challenges to parochial school aid under state constitutions. Black summarizes these cases as follows: “The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion.” Interestingly, Justice Black’s summary of the states’ activities in this realm is perhaps oversimplified, and his main source, an 850-page comprehensive review of state programs written in 1937 by Richard L. Gabel, contains numerous examples that run counter to his strict separation thesis. In fact, Gabel’s work began as a doctoral dissertation at Catholic University, and the author takes pains to point out instances where states – including Virginia – had used state funds to support religious educational institutions. Gabel’s state-by-state analysis does, however, support Black’s point that states have had “difficulty in drawing the line.”

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clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”175 Justice Black’s lengthy summary of the reach of the establishment clause, which is substantially unchanged from the first draft to the final version, is as follows: The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.176

While Black fails to cite a source for these definitive statements, Roger Newman, in his lengthy biography of Black, credits Charles Beard’s 1943 work, The Republic, which contains quite similar sentiments.177 One of the critical elements of this Black/Beard interpretation of the First Amendment is Black’s statement that government may not pass laws that “aid all religions” or, as Beard put it, “Nor can Congress any more vote money for the support of all churches than it can establish one of them as a national church.” This clear statement is an explicit rejection of the nonpreferentialist arguments of the Catholic Councils’ brief and is, along with his invocation of the “wall of separation” language, the doctrinal means by which Black ensures that his holding will go “only this far,” stopping well short of going in a “whole hogically way to contribute to a church.” The Black/Beard no-aid formulation does not figure prominently in this case, but it becomes increasingly important in subsequent establishment clause cases. 175 176 177

Everson, 330 U.S. at 16. Ibid. at 16–17. Newman, Hugo Black, p. 363. Newman appears to reach this conclusion by assessing marginal notations in Black’s personal copy of Beard’s work. Beard’s 1943 volume reads, in pertinent part, as follows: “Congress can make no law respecting an establishment of religion. This means that Congress cannot adopt any form of religion as the national religion. It cannot set up one church as the national church, establish its creed, lay taxes generally to support it, compel people to attend it, and punish them for nonattendance. Nor can Congress any more vote money for the support of all churches than it can establish one of them as a national church. That would be a form of establishment.” Charles A. Beard, The Republic (New York: Viking Press, 1943), p. 165. Beard does not provide any sources for these statements.

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Justice Black then sets out to apply his lengthy summary of First Amendment principles to New Jersey’s school busing law. To be sure, he argues, New Jersey cannot “contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of religion.”178 Justice Black argues, therefore, that individuals should not be barred from “receiving the benefits of public welfare legislation” because of “their faith, or lack of it.”179 And so, while “we do not mean to intimate” that New Jersey must extend its transportation program to students in private schools, at the same time, “we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general . . . benefits to all its citizens without regard to their religious belief.”180 Ultimately, Justice Black concludes that the establishment clause does not “prohibit . . . New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as part of a general program under which it pays the fares of pupils attending public and other schools.”181 Even though some of the children might not otherwise be able to attend the parochial schools, he asserts that this type of general welfare program falls into the same category as “ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. . . . [The First] Amendment requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”182 In his conclusion, Justice Black recapitulates the historical theme by invoking Thomas Jefferson for the second time in two pages. Pledging fealty to Jefferson’s constitutional tradition, Black proclaims: “The First Amendment has erected a wall between church and state.” No doubt concerned that the decision upholding New Jersey’s transportation reimbursement 178 179

180

181 182

Everson, 330 U.S. at 16. Ibid. It is interesting that Justice Black twice includes “Non-believers” or those who “lack” faith in the roster of individuals entitled to protection under the free exercise clause. His list includes: “Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith.” Ibid. Although Justice Black here suggests that the New Jersey law is more of a “general welfare” benefit to all citizens, his conference remarks indicate that he understood it to benefit the Catholic Church since he said that he would not “whole hogically . . . contribute to a church – only this far.” Everson, 330 U.S. at 17. Ibid. at 18.

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program will be read as a deviation from a Jeffersonian strict separation of church and state (as Justice Rutledge argues vociferously in his dissenting opinion), Black piles on the bricks and mortar: “That wall must be kept high and impregnable. We could not approve the slightest breach.” And then, earning an oft-quoted rebuke in Justice Jackson’s dissenting opinion – “The case which irresistibly comes to mind as the most fitting precedent is that of Julia, who, according to Byron’s reports, ‘whispering I will ne’er consent’ – consented”183 – Justice Black concludes, “New Jersey has not breached it here.”184 Justice Rutledge’s Dissenting Opinion Justice Black’s often-cited and influential historical analysis in Everson would have never occurred unless Wiley Rutledge had first had a Founding Fathers epiphany. While Justice Black initially set out to interpret the establishment clause with barely a wave in the direction of the framers, somewhere between the time that Justice Rutledge wrote his memorandum after conference and when he penned his first draft opinion, Clio became his muse. In fact, from the onset of his opinion-writing, Justice Rutledge’s goal appears to be to use a vigorously detailed account of the First Amendment’s origins to dismantle the conclusions reached in the relatively brief 183

184

Ibid. Justice Jackson, who joins Justice Rutledge’s dissenting opinion, only briefly refers to history: Religious freedom “was first in the Bill of Rights because it was first in the forefathers’ minds; it was set forth in absolute terms, and its strength is its rigidity.” 330 U.S. at 26. His opinion most clearly speaks about his concerns over parochial schools: “[T]he whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies.” He contrasts Roman Catholicism’s reliance on “early and indelible indoctrination” as opposed to “[o]ur public school,” which is “more consistent with [Protestantism] than with Catholic culture and scheme of values,” and which is “organized on the premise that . . . the school can . . . maintain a strict and lofty neutrality as to religion.” Ibid. at 24–5. Jackson ultimately concludes that “the basic fallacy in the Court’s reasoning, which accounts for its failure to apply the principles it avows, is in ignoring the essentially religious test by which beneficiaries of this expenditure are selected. . . . Could we sustain an Act that said police shall protect pupils on the way to or from public schools and Catholic schools but not while going to and coming from other schools?” Ibid. at 25. Frankfurter expressed his disapproval of Black’s opinion more privately: “In his diary, Felix Frankfurter observed that this case was a ‘beautiful illustration’ of Black’s tendency ‘to utter noble sentiments and then depart from them in practice.’ Lash, Diaries of Felix Frankfurter, 343 (Tuesday, Mar. 9, 1948),” quoted in Dickson, Conference, p. 402. Everson, 330 U.S. at 18. The initial draft is somewhat less forceful. It reads: “the First Amendment requires a complete and permanent separation of Church and State. The wall between the two must be kept high and impregnable if the historic purpose of the First Amendment is to be carried out. We think New Jersey has not breached it here.” BP, Box 255, draft marked circulated 12/6/46, p. 7.

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initial draft of Justice Black’s majority opinion. In the first circulated draft (which actually appears to be his second of at least seven drafts), Justice Rutledge signals that colonial Virginia will serve as the First Amendment’s fulcrum even before he commences the argument. At the head of the opinion, prior to the first paragraph, he reproduces the Virginia “Bill for Establishing Religion Freedom” at considerable length.185 And Rutledge does not tarry before enlisting the author of that bill, Thomas Jefferson, and a raft of Old Dominion dignitaries in the dissenting side of the Everson debate. His opinion begins: “I cannot believe that the great author of those words, or the men who made them law, could have joined in this decision.”186 Playing off Justice Black’s concluding ode to Jefferson’s “wall of separation,” Rutledge continues, “Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia’s great statute of religious freedom and the First Amendment.”187 With this appeal to the authority of Thomas Jefferson as to how the Supreme Court should interpret the religion clauses, Justice Rutledge observes that the Everson case is, in fact, the initial occasion for the Supreme Court “to determine squarely . . . what was ‘an establishment of religion’ in the First Amendment’s conception,”188 pointing out in a footnote that the parties’ briefs did not even address the First Amendment issue. (While Justice Rutledge is correct that the briefs of the actual litigants did not raise a First Amendment issue, he fails to note that some of the amicus curiae briefs dealt with the First Amendment questions at considerable length, including those from the ACLU and the National Councils of Catholic Men and Women.189 ) Justice Rutledge takes up the constitutional issue with enthusiasm, and his opinion reflects a high degree of confidence that he can discern a clear and compelling meaning of the religion clauses by closely examining their preconstitutional history. Two sections of Justice Rutledge’s opinion, comprising over ten pages of the text in the United States Reports, deal directly with the First 185

186

187 188 189

Everson, 330 U.S. at 28. In the final version, he quotes the Constitution’s free exercise and establishment clauses just before the material from the Virginia statute. Ibid. at 29. In the final version of the opinion, because he also quotes from the First Amendment just before the Virginia Bill for Establishing Religious Freedom, it is unclear whether “those words” refers to the First Amendment or to the Virginia Bill, although proximity, context, and the footnote reference to Jefferson suggest strongly that he means the Virginia Bill. The first circulated draft, which quotes only from the Virginia Bill, shows that this interpretation is the correct one. Ibid. Ibid. Ibid., n. 3. In the footnote, he states, “The only [issue] presented was whether the state’s action involved a public or an exclusively private function under the due process clause of the Fourteenth Amendment.”

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Amendment’s history, and, probably as a result of continually adding to the historical analysis while revising multiple drafts of the opinion, the fact-laden argument is ultimately quite repetitive, especially concerning the jurist’s basic thesis statement, which articulates a much clearer rationale for breathing the spirit of the Virginia church-state experience into the body of the First Amendment than had been present in Chief Justice Waite’s opinion in Reynolds or in Justice Black’s majority opinion in Everson.190 Those opinions (especially Black’s final version) enthusiastically embraced a Virginia-centric reading of the religion clauses, and both Waite and Black invoked preconstitutional writings by Madison and Jefferson, as well as Jefferson’s postconstitutional “wall of separation” letter, to provide insights into the First Amendment, but neither devoted any significant effort to providing a rationale for doing so. Waite merely asserted Virginia’s importance, and Black made a half-hearted attempt to position Virginia as the focal point of a national disestablishmentarian movement.191 Rutledge is prepared to fill this void. For Rutledge, James Madison is the human embodiment of the First Amendment tradition, the medium transmitting Virginia’s eighteenthcentury disestablishmentarianism to twentieth-century jurisprudence: “All the great instruments of the Virginia struggle for religious liberty . . . became the warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison’s life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment’s compact, but nonetheless comprehensive, phrasing.”192 Whereas both Chief Justice Waite, in his Reynolds opinion, and Justice Black, writing for the Everson majority, had taken Thomas Jefferson’s “wall of separation” language as their main theme (while certainly paying 190

191

192

One author has noted, “In writing his history of the First Amendment, Rutledge has used a dizzying array of rhetorical devices to combine Jefferson and Madison, Virginia and the United States, the Bill for Establishing Religious Freedom and the First Amendment. In order for him to give a new meaning to the Clause, he could not merely refer to the opinions of Black and Waite, but had to infuse his whole history with a new ethos. This impassioned, complex dissent altered Religion Clause discourse. The result is the first opinion to combine eloquent appeals for religious toleration with a recommendation to actually fortify the wall of separation between church and state.” David Reiss, “Jefferson and Madison as Icons in Judicial History: A Study of Religion Clause Jurisprudence,” Maryland Law Review 61 (2002): 94, 125. Black also relies on precedent, citing Reynolds as well as Watson v. Jones, 13 Wall. 679, and Davis v. Beason, 133 U.S. 333, 342, although, as discussed above, the two latter cases are marginally relevant at best. Chief Justice Waite in Reynolds simply assumes Virginia’s relevance, a historical observation based on advice from constitutional historian George Bancroft. See Chapter 2. Everson, 330 U.S. at 39 (emphasis added).

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obeisance to Madison’s Memorial and Remonstrance), Madison emerges as the central Virginia figure for Rutledge specifically because of his authorship of the Constitution’s religion clauses. Noting that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religion clause,” which is “the refined product and terse summation of that history,” Justice Rutledge proclaims that the relevant “history includes not only Madison’s authorship and the proceedings before the First Congress, but also the long and intensive struggle for religious freedom in America, more especially in Virginia, of which the Amendment was the direct culmination.”193 Or, as Justice Rutledge puts it in another section of his opinion, the First Amendment was “the compact and exact summation of its author’s views formed during his long struggle for religious freedom.”194 Justice Rutledge drives home the point of a direct Madisonian link between Virginia and the First Amendment in the next sentence: “In Madison’s own words characterizing Jefferson’s Bill for Establishing Religious Freedom, the guaranty he put in our national charter, like the bill he piloted through the Virginia Assembly, was ‘a Model of technical precision and perspicuous brevity.’”195 And so, in “the documents of the times, particularly of Madison . . . but also in the writings of Jefferson and others” is found not only the historical meaning of the religion clauses, but “irrefutable confirmation of the Amendment’s sweeping content.”196 Madison’s political activities and writings on church-state issues are so important to Rutledge that the fourth President’s name appears more than fifty times in the opinion’s text and footnotes. Once Justice Rutledge decides to erect his religion clause jurisprudence on the Old Dominion’s disestablishmentarian foundations, his analysis begins with the free exercise clause. To support his argument that the framers of the religion clauses intended them to be very broadly interpreted, Justice Rutledge points out that Madison and Jefferson believed that “religious freedom was the crux of the struggle for freedom in general,”197 citing Madison’s Memorial and Remonstrance. Then, drawing on Irving Brant’s biography of Madison, the jurist observes that “Madison was the coauthor with George Mason of the religious clause in Virginia’s great Declaration of Rights in 193

194 195 196 197

Ibid. at 34. Rutledge appreciates the fact that he is making a historical claim and he includes a lengthy footnote citing not less than three historians to provide historic verisimilitude for his argument. His footnote cites “Brant, cc. XII, XV; James, cc. x, xi; Eckenrode” (n. 12). Everson, 330 U.S. at 31. Ibid., emphasis added. Ibid. at 34. Ibid.

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1776” where he “is credited with changing it from a mere statement of the principle of tolerance to the first official legislative pronouncement that freedom of conscience and religion are inherent rights of the individual,”198 and he even sought unsuccessfully “to have the Declaration expressly condemn the existing Virginia establishment.”199 Three years later, Madison “threw his full weight behind Jefferson’s historic Bill for Establishing Religious Freedom,” becoming its “prime sponsor” in 1784 when Jefferson was in Europe.200 The “fight for religious freedom” continued to be led by Madison – with “Patrick Henry’s powerful opposing leadership” – until the “climax came in the legislative struggle of 1784–85 over the Assessment Bill,” a copy of which is appended to Justice Rutledge’s opinion, along with Madison’s Memorial and Remonstrance.201 Of particular interest to Justice Rutledge is the fact that “‘in its final form the bill left the taxpayer the option of giving his tax to education,’” rather than applying it to a specific church or other “pious uses,”202 thus linking the Memorial’s message directly to an aid-to-religious-education case such as Everson. (The bill provided for funds not otherwise designated to be used “for the encouragement of seminaries of learning.”)203 Rutledge then proceeds to use Madison’s “historic Memorial and Remonstrance”204 as the lens through which the establishment clause should be viewed: It represents “Madison’s complete . . . interpretation of religious liberty [and] a broadside attack upon all forms of ‘establishment of religion,’ both general and particular, nondiscriminatory or selective.”205 Even more importantly for the purposes of interpreting the First Amendment, the Remonstrance “is at once the most concise and the most accurate

198 199 200 201

202

203 204 205

Ibid., citing “Brant, c. xii, particularly at 243” (n. 13). Everson, 330 U.S. at 34–5. Ibid. at 35. Ibid. See the opinion’s Appendix (the Memorial and Remonstrance) and the Supplemental Appendix (the Assessment Bill) (63–74). Justice Rutledge states, “Because of its crucial role in the Virginia struggle and bearing upon the First Amendment’s meaning, the text of the Bill is set forth in the Supplemental Appendix” (n. 17). Later, he describes his rationale in even more definitive terms: “Because it behooves us in the dimming distance of time not to lose sight of what [Madison] and his coworkers had in mind when, by a single sweeping stroke of the pen, they forbade an establishment of religion and secured its free exercise, the text of the Remonstrance is appended . . . for its wider current reference” (Everson, 330 U.S. at 38). Everson, 330 U.S. at 36–7. Justice Rutledge is quoting from Eckenrode, Separation of Church and State in Virginia, p. 100. Everson, 330 U.S., n. 19. Ibid. at 37. Ibid.

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statement of the views of the First Amendment’s author concerning what is ‘an establishment of religion.’”206 Crediting the Remonstrance with killing the Assessment bill (something of an exaggerated claim that he modifies in a footnote207 ), the “way was cleared at last for enactment of Jefferson’s Bill for Establishing Religious Freedom,” which Madison “drove through in January of 1786.”208 A year later, Madison was a delegate to the Constitutional Convention, where he and his colleagues created a document under which “‘there is not a shadow of right in the general government to intermeddle with religion.’”209 Nevertheless, recounts Rutledge, Madison “pledged that he would work for a Bill of Rights, including a specific guaranty of religious freedom,” which Virginia and others required for ratification.210 Success came three years later when he “had proposed and secured the submission and ratification of the First Amendment as the first article of our Bill of Rights,”211 thus making the key Virginia documents about religion the “warp and woof” of the Constitution’s religion clauses, and Madison himself the “unifying force” between Virginia and the First Amendment.212 Having thus filled the void left by Justices Waite and Black as to why Virginia’s preconstitutional history should be so relevant to First Amendment interpretation, Rutledge embraces the Memorial and Remonstrance as if it were the long-playing version of the establishment clause itself. A careful review of that document shows that “Madison opposed every form and degree of official relation between religion and civil authority,” and in “no place was he more unrelentingly absolute than in opposing state support or aid by taxation.”213 After enlisting additional quotations from the Remonstrance that lambast even “three pence” contributions from the 206 207

208 209 210

211

212 213

Ibid. (emphasis added). He says in the note: “The major causes assigned for its defeat include the elevation of Patrick Henry to the governorship in November of 1784; the blunder of the proponents in allowing the Bill for Incorporations to come to the floor and incur defeat before the Assessment Bill was acted on; Madison’s astute leadership, taking advantage of every ‘break’ to convert his initial minority into a majority, including the deferment of action on the third reading to the fall; the Remonstrance, bringing a flood of protesting petitions; and the general poverty of the time. See Eckenrode, c.V, for an excellent short, detailed account” (n. 22). Everson, 330 U.S. at 38. Ibid., citing “V Madison, 176.” Everson, 330 U.S. at 39, citing “Brant, 250.” Rutledge’s footnote states that the “assurance [of a Bill of Rights] was responsible for Madison’s becoming a member of the Virginia Convention which ratified the Constitution. See James, 154–158” (n. 26). Ibid. Rutledge’s footnote at this point in the text notes that Madison’s original version was “modified” in the “process of debate” (n. 27). Ibid. at 39. Ibid. at 40.

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state for religion, Justice Rutledge concludes: “In view of this history no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises.”214 Nevertheless, “if more were called for, the debates in the First Congress . . . supply it.”215 The congressional debates, he avers, “reveal only sparse discussion,” a circumstance that he interprets as a reflection of the fact that “the essential issues had been settled.”216 In other words, no extensive debate was needed, in Rutledge’s estimation, because all of the framers essentially saw the church-state issues as Madison did. In the accompanying footnote, Rutledge refers specifically to what he describes as the ultimate end of establishment in Virginia, which he locates in the December 1785– January 1786 time frame, when the assessment was defeated and Jefferson’s religious freedom bill was adopted, but there is no reference to any churchstate interaction in any other state; in setting out the issue in this fashion, Justice Rutledge omits or ignores any possibility that there might have been any views in the Congress on church-state issues that departed from the strict position taken in Madison’s Memorial and Remonstrance.217 As far as Rutledge is concerned, “the matter had become so well understood as to have been taken for granted in all but formal phrasing.”218 In this analysis, as in Justice Black’s “freedom-loving Colonials,” all of whom turned out to be Virginians (and perhaps consisted only of Madison himself), Justice Rutledge stretches to assert not only that his anti-establishment approach to the history of the religion clauses is an accurate representation of what just about everyone in Virginia thought, but also that the entire nation subscribed to a common understanding and shared vocabulary of church-state separation. He provides no evidence to support this assertion other than a lengthy footnote recapitulating the sparse debate on the establishment clause recorded in the Annals of Congress.219

214 215 216 217

218

219

Ibid. at 41. Ibid. Ibid. at 42. Ibid., n. 33. He notes, for example, that the glebes were not sold until 1802, but he believes that it “would seem more factual . . . to fix the time of disestablishment as of December 1785–January 1786, when the issue in large was finally settled.” Ibid. at 42. He notes that the only “enlightening reference” in the brief debates was a concern voiced by Huntington that the amendment’s language might be read so broadly as to outlaw private gifts to religion. Ibid., n. 34. While Justice Rutledge briefly reports on the debates in the First Congress, it appears that Justice Black may not have even consulted them until months later, following his receipt of a letter from Roman Catholic historian Peter Masten Dunne. See Newman, Hugo Black, pp. 365, 682, n. 4.

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Irrespective of the complexities of late-eighteenth-century American views on church-state issues, Justice Rutledge describes a single Virginia-inspired national philosophy of separation, as articulated in Madison’s Remonstrance, and, thus, his view of the task before the Court in Everson is not to try to divine some otherwise obscure intent behind the First Amendment, but to apply what he calls the “well understood” meaning of the establishment clause to modern issues. Two centuries after the adoption of the First Amendment, Justice Rutledge observes, many of the eighteenth-century church-state issues such as “test oaths and religious qualifications for office” have been eliminated, and “apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion.”220 It is just this latter threat of taxation in favor of religion that the New Jersey program raises, and it “exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck.”221 Whereas Justice Black compared the transportation plan to police and fire protection made equally available to both sacred and secular spaces, Justice Rutledge instead argues that New Jersey’s program is essentially the same as an “appropriation from the public treasury to pay the cost of transportation to Sunday school [and] to . . . meetings of various young people’s religious societies, such as the Y.M.C.A.,” which “could not withstand the constitutional attack.”222 Transportation, in Justice Rutledge’s view, is no “less essential to education, whether religious or secular, than payment for tuitions, for teachers’ salaries, for buildings, equipment and necessary materials.”223 And private education (whether religiously based or not) is just what the name implies, that is, private, and therefore the support of attendance at private schools cannot, in Rutledge’s opinion, be a public function. Specifically in the case of parochial schools, the “‘public function’–‘public welfare’–‘social legislation’ argument advanced by the majority opinion seeks in Madison’s words, to ‘employ Religion (that is, here, religious education) as an engine of Civil policy.’ . . . Our constitutional policy is exactly the opposite.”224 Explaining this point further, Justice Rutledge argues that it “is not because religious teaching does not promote the public or the individual’s welfare, but because neither is furthered 220 221 222 223 224

Everson, 330 U.S. at 43. Ibid. at 46. Ibid. at 47. Ibid. at 48. Ibid. at 51–2.

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when the state promotes religious education, that the Constitution forbids it to do so.”225 It would seem at this point that Justice Rutledge is preparing to wind up the argument and move toward his conclusion, but, in fact, ten pages remain; while the historical arguments have largely been completed, the jurist needs to enlist Madison’s support on an issue that he addressed first in the conference discussions, namely, that transportation reimbursements will be merely the tip of the iceberg and, if upheld, will be followed by aggressive lobbying by Roman Catholics and perhaps other religious groups for other types of financial support for religious schools. “Public money devoted to the payment of religious costs, educational or other,” he avers, “brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any.”226 These types of religiously motivated public battles, a phenomenon the Court subsequently terms “political divisiveness” in aid-to-religious-education cases,227 is, for Rutledge, “the very thing Jefferson and Madison experienced and sought to guard against,” citing, once again, Madison’s Remonstrance.228 Quoting the Remonstrance in each of three successive sentences, Justice Rutledge concludes that in “paraphrase of Madison, distant as it may be in its present form from a complete establishment of religion, it differs from it only in degree; and is the first step in that direction.”229 Religious training and belief, in Rutledge’s view, “remains, as the Amendment made it, the kingdom of the individual man and his God,”230 and not a matter for state legislation. Two sections of Justice Rutledge’s opinion remain, and he devotes one to expressing sympathy for “parents who desire religious instruction mixed with secular for their children” who must bear “the burden [of] our constitutional separation.”231 Yet, he declares, the public schools must maintain 225 226 227

228

229 230 231

Ibid. at 52. Ibid. at 53. For further discussion of the political divisiveness issue, see Bradley, Church-State Relationships, pp. 5–13; and Edward M. Gaffney, “Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy,” St. Louis University Law Journal 24 (1980): 205. Bradley notes that “[d]ivisiveness doctrine may be traced to one sentence in P. Freund, ‘Public Aid to Parochial Schools,’ 82 Harv. L. Rev. 1680, 1692 (1969).” Bradley, Church-State Relationships, p. 16, n. 31. Hitchcock finds it as early as the 1844 opinion by Justice Story in Vidal v. Girard’s Executors, 2 Howard 127 (1844). Hitchcock, Supreme Court and Religion, Vol. II, p. 47. Everson, 330 U.S. at 54 (citing paras. 8 and 11). In note 47, he purports to give examples of such “conflicts,” but he merely cites court cases surrounding these issues; he does not give examples of “strife” beyond the burden of litigation. Ibid. at 58, citing para. 9.53 of the Memorial and Remonstrance. Everson, 330 U.S. at 57–8. Ibid. at 58.

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an “atmosphere [that] is wholly secular . . . because we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.”232 Then returning to his concerns about religious groups aggressively lobbying to feed at the public trough, Justice Rutledge remarks that “only by observing the prohibition rigidly . . . can the state maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys to further religious education, teaching or training in any form or degree, directly or indirectly.”233 Expanding the New Jersey program to include all religious schools would not cure its constitutional infirmity,234 and the law might, as written, be unconstitutional simply because it excludes for-profit private schools. Nevertheless, Rutledge concludes, it is best to recognize the important First Amendment issue: “Now as in Madison’s day it is [a matter of] principle, to keep separate the separate spheres as the First Amendment drew them; to prevent the first experiment upon our liberties; and to keep the question from becoming entangled in corrosive precedents.”235 Confessions of a Law Office Historian In reading Justice Rutledge’s opinion, it would be tempting to believe that his views on the establishment clause emerged directly from his indepth research into the First Amendment’s history; not only does Rutledge expound in great detail on the background of the religion clauses, but, in the flow of his opinion, the ultimate conclusion appears to follow directly from that historical analysis. And in pursuing such an extensive review of the history, he certainly creates the Court’s most sophisticated argument to that time (and since then) for placing at least James Madison, and perhaps Thomas Jefferson as well, at the heart of the religion clauses. But interpreting Justice Rutledge’s opinion as an example of a priori research conducted by an open-minded jurist seeking historical guidance in a case of first impression is simply wrong. As noted above, Rutledge’s comments in the Court’s conference session manifest strong opposition to state aid for religious education, yet they barely touch on any historical topics and are devoid of any mention of James Madison whatsoever. Justice Rutledge’s “memo after conference” largely follows his statements at the conference, and, once again, historical

232 233

234 235

Ibid., citing the Remonstrance, para. 8, 12. Everson, 330 U.S. at 58. He continues with: “Like St. Paul’s freedom, religious liberty with a great price must be bought.” Ibid. at 60. Ibid. at 62.

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analysis is virtually absent.236 His argument in the memo after conference instead centers primarily on the fact that the New Jersey program provides financial aid to religious schools, and he advances the point later made in Justice Jackson’s dissenting opinion that only Roman Catholic schools, and not other religious schools, benefit from the legislation. In the end, however, his argument in the conference memorandum is not in favor of nondiscriminatory aid; rather, in a rare reference to history in that document, he argues that even a broader program encompassing all religions “would in effect involve . . . the very evils against which Thomas Jefferson inveighed when he did so against the established church in Virginia.”237 His memorandum also flags the importance of the Protestant-Catholic educational culture wars in a manner that is never clearly voiced in any of the Everson opinions but nevertheless hovers over the case. Rutledge’s position on this phenomenon is clear: “We all know, as Justice Frankfurter stated, that this [law] is really a fight by the Catholic schools to secure this money from the public treasury. It is aggressive and on a wide scale.”238 Later, in writing his opinion, Justice Rutledge tones down the rhetoric about what the Catholic schools are trying to do, speaking instead about the need to avoid the political strife engendered by various religious groups competing for public funding, but the conference memorandum shows that his concerns had sharper, more sectarian, overtones. In reviewing the evolution of Rutledge’s thinking about the establishment clause, then, it is especially noteworthy that his conference remarks and conference memorandum contain only a few references to Thomas Jefferson; and James Madison, who dominates the final version of the opinion, is entirely missing. At the time that he strongly articulated his opposition to the New Jersey bus program to his judicial brethren, the thrust of his argument had nothing to do with a detailed review of the original intentions behind the religion clauses. Even Justice Rutledge’s first circulated draft did not yet identify Madison as the key linkage between the Commonwealth of Virginia and the meaning of the First Amendment, although it contains a considerable amount of information about Madison’s and Jefferson’s

236

237 238

Christine Compston notes: “The major difference between the conference memo and the published opinion is the Justice’s extensive discussion in the latter of the history surrounding the Virginia Bill for Establishing Religious Freedom and the First Amendment.” Christine L. Compston, “The Serpentine Wall: Judicial Decision Making in the Supreme Court Cases Involving Aid to Sectarian Schools,” Ph.D. thesis, University of New Hampshire, 1986, p. 93. Rutledge, Memo after Conference, WR, Box 143, p. 4. Ibid., p. 5.

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disestablishmentarian activities. Not until Justice Rutledge’s third draft, which is dated January 8, 1947, at least six weeks after the conference was held, does Rutledge fix upon Madison as the “unifying force” that allows the Virginia church-state legacy to be made part of the religion clauses of the First Amendment.239 And so, the critical pieces of evidence that form the foundation of Rutledge’s historical argument do not surface until long after his conclusions had solidified. Once appearing in its final form, Justice Rutledge’s historical argument is undoubtedly more complete than similar efforts by Justices Waite and Black to link Virginia and the establishment clause, but a chronological review of Rutledge’s views and draft opinions shows that his Madisonian interpretation is not the summation of an objective inquiry into constitutional history but is instead a results-driven attempt to append a useful flourish of history to the First Amendment’s vague language in an effort to root the establishment clause firmly in his preferred philosophy of a strict separation of church and state. Justice Rutledge admits as much in a private letter shortly after the decision, writing to Ernest Kirschten of the St. Louis Star-Times: “I felt pretty strongly about the Everson case but tried to keep the tone of what I had to say moderate and also to avoid pointing what I had to say in the direction of any specific sect. The Virginia history was admirable for the latter purpose.”240 In short, history was not, for Rutledge, a guidepost for interpretation but a hermeneutical means to a jurisprudential end. In fairness to Justice Rutledge, it should be noted that his most recent biographer, Judge John M. Ferren, argues that Rutledge did not “exhibit any bias against the Catholic Church.”241 And Sidney Fine, in his biography of the Court’s only Roman Catholic justice at that time, Frank Murphy, observes that Rutledge was “Murphy’s closest friend on the Court.”242 Ultimately, Ferren concludes that Rutledge’s “dissent in Everson came entirely from his historical understanding of the First Amendment.”243 But it is 239

240

241 242 243

WR, Box 144, p. 11. The first circulated draft focuses on “Jefferson and the men who framed the First Amendment, Madison chief among them,” with most of the discussion of Madison in a footnote in which Rutledge states, “Madison, besides being author of the First Amendment and the historical Remonstrance . . . was co-author . . . of the religious clause of the Virginia Bill of Rights.” WR, Box 144, p. 3. Wiley B. Rutledge to Ernest Kirschten, February 20, 1947, WR, Box 143 (emphasis added). This letter came to my attention via Compston, “Serpentine Wall,” p. 98. Kirschten wrote: “All of us here on the Editorial Page staff thought that you did a splendid job in the school bus case.” Ernest Kirschten to Wiley Rutledge, February 14, 1947, WR, Box 143. Ferren, Salt of the Earth, p. 267. Fine, Frank Murphy, p. 195. Ferren, Salt of the Earth, p. 267.

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hard to square Ferren’s conclusion with the record. Even if we give Justice Rutledge the benefit of the doubt on the issue of whether he felt any animus toward the Roman Catholic Church, it is quite difficult, in light not only of Rutledge’s comments at the conference but even more pointedly of his correspondence with Kirschten, to conclude that his dissenting opinion was entirely motivated by his historical analysis. Rather, the “law office history” verdict is unavoidable; as Rutledge put it, the Virginia history was “admirable” for the purpose of allowing the jurist to follow his strong feelings about the outcome without pointing at “any specific sect,” namely, in this case, the Roman Catholic Church. Whatever his personal views of Roman Catholicism may have been, Justice Rutledge certainly came into the Everson case with a preexisting notion of how church schools and state funding should be separated. The historical analysis merely served to validate, and to camouflage, that preordained conclusion. By the same token, there is no evidence to suggest that Rutledge intended to misrepresent or distort the constitutional background solely to serve his purpose. It is quite possible, indeed quite likely, that Justice Rutledge believed that his opinion fairly represented the establishment clause’s origins. Thus, we can imagine a variety of law office historians: At one end of the spectrum would be the cynical advocates who espouse a version of constitutional history that they know to be false in an attempt to convince a na¨ıve court to support their clients’ cases; it is not clear how many lawyers pursue this approach and it may be more common as an accusation than as an accurate description of an argument. At the other end of the spectrum would-be advocates promoting a good-faith but one-sided view of the historical record such that the facts cited support a particular outcome. In this case, it seems reasonable to give Rutledge the benefit of the doubt and place him at the latter end of the spectrum. Even though Justice Rutledge is clearly marshaling specific examples of colonial history to promote a particular outcome in the case, there is nothing in the record suggesting that he set out intentionally to misrepresent the First Amendment’s background. Rather, he knew where he wanted to end up (as seen in his conference comments); he was generally inclined to write long opinions with a historical tinge;244 and when he found reputable historical sources that supported his intended conclusions, he was able to craft an originalist interpretation that allowed him to achieve the result he wanted while avoiding casting sectarian aspersions. His appeal to history was utilitarian, to be sure, but it seems more oversimplified 244

See Albert H. Kelly, who notes that both Frankfurter and Rutledge had a tendency to resort to an approach he describes as the “historical technique of adjudication both by essay and revelation.” Albert H. Kelly, “Clio and the Court,” Supreme Court Review 1965 (1965): 119, 131.

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than consciously inaccurate. In short, he was probably delighted to find a way to describe First Amendment history that would buttress his views, but there is little doubt that his views preceded the historical research. The Justices and the Historians Perhaps the most interesting contrast in how Justice Black drew from historians in Everson compared with Chief Justice Waite’s use of history in Reynolds is that Black does not give the impression that he is following the historians’ leads; instead, he creates his own narrative into which he plugs occasional historical anecdotes and invokes distinguished-looking sources. Chief Justice Waite, when presented with the first chance to interpret the religion clauses, went initially to historian Bancroft, who made Virginia the key to the First Amendment map, and then he found a historian of Virginia who not only supplied the relevant facts but also made explicit his belief in the Old Dominion’s inspiration of the Bill of Rights. That historian may have overstated his case in an effort to claim more influence for his home church and state than the evidence fully supported, but it would be unfair to criticize Waite for believing what the historians were saying. Justice Black, by contrast, appears to have a story he wants to tell, and he calls on historians to bolster his story and to beef up his footnotes, not to guide his thinking. Writing nearly a century after Waite, Justice Black had the opportunity to draw from a burgeoning corpus of works on American history. In some cases, Black employs distinguished contemporary American historians, including former Columbia professor Charles Beard and the University of Chicago’s William Warren Sweet. Beard was a widely read and influential historian and Sweet was credited with establishing the field of American religious history as “a proper academic discipline free from ecclesiastical interests.”245 The Reverend Sanford Cobb was not a professional historian, but he did write what appears to be the first comprehensive treatment of the history of religious liberty in America. Ultimately, this volume, on which 245

Ash, Protestantism and the American University, p. xiv. Fifteen years later, Justice Black was taken to task by historian Paul L. Murphy for his opinion in another establishment clause case, Engel v. Vitale, 370 U.S. 421 (1962), because “for the most part he relied upon works which may be ‘historical’ given the length of time in the past they were written, but which modern scholars would hesitate to suggest an undergraduate rely upon as anything but a once important, although now outdated view.” Paul L. Murphy, “Time to Reclaim: The Current Challenge of American Constitutional History,” American Historical Review 69, no. 1 (October 1963): 64–79. Murphy’s comments are undoubtedly accurate, but they relate primarily to the fact that more recent scholarly sources would be expected, even of an undergraduate, in an academic paper rather than to the issue of whether any scholarly sources directly supported Black’s constitutional arguments.

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Black relies for much of his historical reflections, was not well received by the experts, and Cobb’s reviewers took him to task for a multitude of errors and omissions. Minnesota Professor Willis Mason West wrote in one scathing review: “To speak harshly of a work upon which has been expended so much zealous labor is an unpleasant duty, but it may as well be said at once that the strongest impression the reader carries away is a conviction of the author’s inadequate equipment.”246 It may be too much to ask of a timepressured Supreme Court justice to check the scholarly reviews of books that give every outward appearance of being reputable sources, however. Cobb’s book is nearly 550 pages long, references well over 100 sources, includes multiple footnotes on virtually every page (although Professor West points out that many of those citations are wrong or incomplete247 ), and was cited by at least one amicus curiae brief. And whatever its defects, Cobb’s The Rise of Religious Liberty in America has stood the test of time reasonably well: In 1986, historian Leigh Schmidt called it “the best overall survey” of the “general works covering relations between church and state in the American colonies.”248 Irrespective of how highly regarded or accurate the histories were, the question is whether they, in fact, back up Justice Black’s claims, and the answer is that they supplement his background descriptions but fail to support his main points. These historians could certainly provide color on the interactions of church and state in the colonies; for example, they clearly support his summary of religious persecution in various locales and his discussion of the adoption of Virginia’s Bill for Establishing Religious Freedom. But what they cannot do is provide scholarly cover for his cause-and-effect argument that the Virginia activities “provided a great stimulus and able leadership” for “freedom-loving colonials” to separate church and state throughout the nation, an element of which was the adoption of the religion clauses of the First Amendment. Had Justice Black let his sources speak for themselves, they would not have been especially helpful in making his case that Virginia was the wellspring of a national commitment to religious freedom or that Jefferson

246

247 248

Willis Mason West, “Review of The Rise of Religious Liberty in America,” American Historical Review 8, no. 2 (January 1903): 350–2. Ibid. Leigh Eric Schmidt, “Church-State Relations in the Colonial South,” in John F. Wilson, ed., Church and State in America: A Bibliographical Guide: The Colonial and Early National Periods (Westport, Conn.: Greenwood Press, 1986), p. 75. Schmidt calls it “Whiggish in its orientation,” but notes that “Cobb manages to moderate his satisfaction with the fall of the Anglican establishments, even as he heralds the triumph of religious liberty” (p. 76).

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and Madison were the leaders of that movement. As to the centrality of Virginia, Cobb comes close to providing a useful quotation about colonial church-state interactions: “[V]arious circumstances gave peculiar interest to the final settlement in Virginia. Indeed, the chief interest in all the union centered there; there the issue was this time more sharply drawn than elsewhere, and the answer was more clearly and positively pronounced.”249 This certainly sounds like Justice Black’s historical analysis, but to employ Cobb’s language fairly would demand the addition of the following not-so-helpful language, which appears just a few lines later: “Meanwhile, another and most powerful influence on the whole question of Church and State had been making itself felt. This was the influence of [New England theologian] Jonathan Edwards, who more than any other man, settled the principle while fully justified to the American mind the complete severance of the state from ecclesiastical functions or concern.”250 There is no good reason to adopt Cobb’s comment about Virginia without taking equally seriously his focus on Edwards. And while another one of Cobb’s unhappy reviewers takes him to task for giving Jonathan Edwards too much credit on the subject of church and state, it was not in the interest of promoting the historical positions of Madison, Jefferson, and the Commonwealth of Virginia. Rather, the reviewer, Baptist historian Henry S. Burrage, claims the credit for a different New Englander, Massachusetts Baptist Isaac Backus, arguing that “the work of Edwards in establishing religious liberty was slight in comparison with that of Backus,” who was responsible for “numerous well known and influential speeches and writings on religious liberty.”251 249 250

251

Cobb, Religious Liberty in America, p. 484. Ibid., pp. 484–5 (emphasis added). With respect to Edwards, see, e.g., George M. Marsden, Jonathan Edwards: A Life (New Haven, Conn.: Yale University Press, 2003). Henry S. Burrage, “Review of The Rise of Religious Liberty in America,” American Journal of Sociology 8, no. 2 (September 1902): 273–6. William G. McLoughlin, who has written extensively on church-state issues in New England, has summarized his view on this issue as: “There is no neat way to sum up the respective contributions of Backus, [Roger] Williams, Jefferson, and Madison to the development of American tradition of separation of church and state. Williams, it would appear, was the least influential of the four. . . . Jefferson and Madison spoke for a rationalist-humanist element in American thought that has become increasingly influential in the twentieth century but that throughout most of our history has been the view of a small minority. But Backus probably represents most adequately the evangelical view of Separationism – the ‘sweet harmony’ of a Christian nation – that predominated.” William G. McLoughlin, Soul Liberty: The Baptists’ Struggle in New England, 1630–1833 (Hanover, N.H.: Brown University Press published by University Press of New England, 1991), p. 269. See also William G. McLoughlin, New England Dissent, 1630–1833, 2 vols. (Cambridge, Mass.: Harvard University Press, 1971), and Timothy L. Hall, Separating Church and State: Roger Williams and Religious Liberty (Urbana: University of Illinois Press, 1998).

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Whether Cobb is correct that New England theologian Edwards delivered the “staggering blow which made ecclesiastical establishment impossible in America,”252 or whether instead fellow New Englander Isaac Backus may have more proximately smitten the established church (which, in the case of Connecticut and Massachusetts, may have lingered several decades into the nineteenth century, even if mortally wounded by the earlier theological assaults),253 the point is that neither Cobb nor his reviewers awarded principal credit to Justice Black’s Virginians. Similarly, Professor Sweet’s highly regarded 1930 volume, The Story of Religion in America, cites Virginia’s efforts to provide for religious freedom as an important element of the broader search for religious freedom in America, but, once again, Madison and Jefferson are not necessarily front and center. Sweet points out that “justice compels the admission that Jefferson’s part in [the adoption of the Virginia Bill for Establishing Religious Freedom] was not so great as was that of James Madison, nor were the contributions of either or both as important as was that of the humble people called Baptists.”254 Sweet’s Religion in Colonial America, published more than a decade later in 1943, contains an entire chapter on “America and Religious Liberty,” where the author describes the various forces contributing to the development of religious liberty, including “humble and despised groups” such as the Anabaptists in post-Reformation Europe and the Quakers and Baptists in America, all of whom were consistent proponents of religious liberty. The Baptists and Quakers were joined by an ecumenical and protean collection of self-interested ecclesiastical organizations that, at various times, found themselves to be “religious minorities,” including “Catholics, Anglicans, Presbyterians, Lutherans and the Reformed churches.” These groups were “not opposed in principle to a State-Church, but where they themselves were not the privileged Church, they were to be found in every instance on the side advocating religious liberty.”255 Sweet also focuses on New England, lauding Roger Williams and Rhode Island for creating, “[f]or the first time in modern history the complete separation 252 253

254 255

Cobb, Religious Liberty in America, p. 485, citing “Allen, Life of Edwards.” Bradley points out that when various historians and others have “looked for religious establishments at the time the Bill of Rights was enacted, they are not sure how many there were in America, but, they are sure there were some in New England.” Various possibilities include Massachusetts, Connecticut, New Hampshire, Maryland, Rhode Island, and Vermont. See Bradley, Church-State Relationships, p. 20. Whether New England’s ecclesiastical laws in effect at the time of the Bill of Rights constituted “establishments” was then – and is now – subject to considerable debate. See Chapter 5. Sweet, Story of Religion in America, p. 279. Sweet, Religion in Colonial America, pp. 321, 323.

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of Church and State and liberty of conscience,” and he observes that “almost complete religious liberty flourished” in Pennsylvania, New Jersey, and Delaware, as well.256 Ultimately, Sweet asserts, these mid-Atlantic colonies “were most important in promoting practical situations in which religious liberty found the most favorable opportunity to develop”; other New England colonies “made the smallest contribution, while Virginia was only a little less backward.”257 To these various and shifting groups who supported religious liberty, and with special emphasis on the Baptists, who “were the most active of all the colonial religious bodies in carrying on propaganda for the Separation of Church and State,”258 Sweet adds – at the end of his list – the merchants and, finally, the “unchurched liberals,” who were influenced by “English and French liberal theorists”; this group included Madison, Jefferson, and Franklin.259 Thanks to the efforts of all of these advocates for religious liberty, by the time of the Revolution, “the long struggle for religious freedom and separation of Church and State in America had been virtually won.”260 No one group and no single state is identified by Professor Sweet as the wellspring of religious liberty or the culmination of disestablishmentarian sentiments in America, and none is specifically credited with inspiring the First Amendment’s religion clauses. Rather, the “embodiment of these great principles in the new state constitutions and finally in the Federal constitution itself was simply writing colonial experience into the fundamental law of the land.”261 In short, both Cobb and Sweet credit the dissenting Protestant groups, the Baptists in particular, with primary responsibility for separating church from state in America; Madison and Jefferson make, at most, a cameo appearance, and Virginia is no more prominent than New England. So Justice Black’s core argument that Virginia provided leadership for a national disestablishmentarian movement is based largely on evidence that not only is weak and occasionally inconsistent, but is not supported by 256 257 258 259

260 261

Ibid., pp. 326–7. Ibid., p. 327 (emphasis added). Ibid., p. 333. Ibid., p. 338. Sweet notes, “There can be no doubt as to the influence exerted by Locke upon Madison and Jefferson, since the position both took in the struggle for religious liberty in Virginia is Lockean in every detail.” In a footnote, he takes issue with Gaillard Hunt, an editor of Madison’s papers, who argued that “Cardinal Bellarmine, the seventeenthcentury Jesuit theologian . . . exerted a determining influence on the views of Madison and Jefferson on religious liberty.” See Gaillard Hunt, “The Virginia Declaration of Rights and Cardinal Bellarmine,” Catholic Historical Review 3 (October 1917): 276–89. Sweet, Religion in Colonial America, p. 339. Ibid.

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the historians whose insights he summons on other points, irrespective of whether those historians were distinguished professionals or not-so-accurate amateurs. To be sure, Black borrows a number of highly regarded sources that he found in Reynolds and the amicus curiae briefs, and he cites them extensively where he can. Despite this research, however, he could find no historian to call on to provide credence for his Virginia-centric reading of the First Amendment. Cobb’s Rise of Religious Freedom in America came the closest to providing Black with a quotable statement in support of Virginia’s special role (“[T]he chief interest in all the union centered there”262 ) but to use this language would be either to pull it completely out of context or to require Black to follow Cobb on to his even bolder statement regarding the “most powerful influence on the whole question of Church and State,” namely, New England’s Jonathan Edwards, an assertion that would have been a distraction from the all-Virginia-all-the-time flow of Black’s argument, to say the least, not to mention the need to explain the New England system for supporting churches with tax revenues that continued well past the time of the First Amendment.263 While he lacks a genuinely persuasive argument, Justice Black was nevertheless able to cobble together a superficially appealing narrative of a national search for religious freedom that captured a powerful strain of American thought that had been percolating throughout the ProtestantCatholic school wars. It may not have seemed necessary to Black to have to document it any more extensively than he did. After all, even the brief of the Catholic Councils admitted the validity of the “wall of separation” metaphor. This Jeffersonian phrase, in fact, allowed both the Catholic Councils and Justice Black considerably more flexibility in interpretation than Madison’s uncompromising Memorial and Remonstrance, on which Justice Rutledge seizes. Black’s greater reliance on Jefferson’s vague language allows him to pledge judicial allegiance to a strict separation of church and state while still reaching the compromise position that was preordained by the votes in the Court’s conference. By contrast, Madison’s Memorial contains much stronger and more specific language than Jefferson’s aphorism. Whereas Madison’s dedication in the Memorial and Remonstrance to a strictly enforced principle prohibiting the state from considering even “three pence” contributions to religion sounds more like Justice Rutledge’s view that there is no “line between a little and a lot of pregnancy,” such a strict constitutional theory of the establishment clause would have made it 262 263

Cobb, Religious Liberty in America, p. 484. Ibid., pp. 484–5.

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difficult for Justice Black to go “only this far” but not “in a whole hogically way to contribute to a church.” Well before Justice Black fashioned his version of the First Amendment’s heritage, Justice Rutledge began his search for historical sources that would provide factual or analytical support for his strict separationist views. In the end, his opinion reads like a scholarly work, with sixty-one footnotes, an appendix (the Memorial and Remonstrance), and a supplemental appendix (the assessment bill, complete with its own footnote recording its origin as “one of the hand-bills . . . distributed to the Virginia counties by the House of Delegates”264 ). Two works by Virginia historians are the principal sources for his description of the general assessment controversy: Eckenrode’s Separation of Church and State in Virginia, which is cited nine times by Rutledge, and James’s Documentary History of the Struggle for Religious Liberty in Virginia, which appears four times, usually as part of a string citation with Eckenrode and others.265 While these authors provide useful background information for the facts that form the basis of Rutledge’s story of the establishment clause’s origins in Virginia, they do not address the critical issues of why Virginia is central to American church-state thought or how James Madison played a pivotal role in implementing a nationalized version of Virginia’s colonial disestablishmentarianism via the First Amendment. Eckenrode and James are content simply to record the details of churchstate relationships in Virginia; that they do so from the point of view of historians who strongly favor the separation of church and state made their whiggish tone and style consistent with Rutledge’s, but they did not address any federal constitutional history. As to Virginia’s “formative influence” in the development of the First Amendment’s religion clauses, Rutledge cites two of the historical works that also appear in Black’s majority opinion: Cobb’s Religious Liberty in America and Sweet’s The Story of Religion in America, neither of which can carry the weight of this argument; in the text of his opinion, Rutledge simply asserts that the First Amendment was the “direct culmination” of the “long and intensive struggle for religious freedom in America, more especially in Virginia.”266 In a footnote to this text, he says, “Conflicts in other states, and earlier in the colonies, contributed much to generation of the Amendment, 264 265

266

Footnote ∗ to Supplemental Appendix. H. J. Eckenrode, Separation of Church and State in Virginia (Richmond: Virginia State Library, 1910); Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Lynchburg, Va.: J. P. Bell, 1900). Everson, 330 U.S. at 33–4. Since Cobb and Sweet do not appear in Rutledge’s early drafts, he probably added these historians after seeing them cited by Black for the same point.

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but none so directly as that in Virginia or with such formative influence on the Amendment’s content and wording.”267 As in Justice Black’s opinion (and Waite’s opinion in Reynolds), this statement is more of an assertion than an argument. In the end, however, because Rutledge employs Madison himself as the vehicle for transforming Virginia history into constitutional intention, it is not as important for him to make a point of Virginia’s “formative influence” as it is for Black. While Rutledge and Black are clearly of one mind on this issue – and they share dubiously helpful sources to provide the superficial appearance of scholarly support – Rutledge’s unique contribution to the Supreme Court’s church-state historical analysis was in using Madison’s putative authorship of the religion clauses to position Madison’s activities in colonial Virginia as the defining context for the First Amendment. In short, for Rutledge, Virginia is relevant because that is where Madison was, whereas for Waite and Black, Madison’s and Jefferson’s influence derived from Virginia’s central role in American disestablishmentarianism. Since this Madisonian approach is a novel contribution to establishment clause jurisprudence by Rutledge, the question is whether Rutledge fashioned this argument from whole cloth or adopted it from a prior commentator’s or historian’s theme. The answer appears to be: some of both. Much as Chief Justice Waite’s original research into the religion clauses was heavily influenced by friendly advice from historian (and avid Jeffersonian) George Bancroft, Rutledge’s analysis owes a significant debt to the work of his old friend, Irving Brant, whose affection for James Madison may well have surpassed even Bancroft’s reverence for Jefferson. Brant wrote a multivolume biography of Madison, and one of the volumes, James Madison: The Virginia Revolutionist,268 makes half a dozen appearances in Rutledge’s footnotes. Perhaps most importantly, Brant’s work is the only historical source cited by Justice Rutledge that even comes close to advancing the view that Madison wrote the religion clauses and, by doing so, incorporated Virginia’s history and his own views into the First Amendment. In fact, none of the other historians addresses that particular issue at all. But Brant does. One of his chapters is a detailed description of Madison’s efforts in the 1770s to obtain a strong commitment to religious freedom (and not merely toleration) in Virginia’s Declaration of Rights. During that discussion, Brant notes that Madison sought to have that document also state “that no man or class 267 268

Ibid. at 33, n. 11. Irving Brant, James Madison: The Virginia Revolutionist (Indianapolis, Ind.: Bobbs-Merrill, 1941).

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of men ought, on account of religion to be invested with particular emoluments or privileges,” language that would, in effect, have disestablished the Anglican Church. Brant then latches onto Madison’s later sponsorship of the Bill of Rights in Congress as a way of infusing the Constitution with a Madisonian perspective on church and state. Brant’s argument proceeds as follows: Virginia’s ratification of the Constitution depended on “Madison’s pledge that he would work for a Bill of Rights,” and as a result, “it fell to him to sponsor the amendments in Congress.” Once Madison was in Congress, “he had the satisfaction of developing his own previous declarations into the sweeping prohibition of state support of religion and protection of individual rights found in the first amendment to the Constitution: ‘Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof.’”269 Brant’s analysis thus provides significant support (and perhaps direct inspiration) for Rutledge’s Madisonian reading of the establishment clause, and both men reach the same interpretive conclusion: The religion clauses of the First Amendment reflect the views on church and state that Madison had previously expressed in Virginia. Despite the efforts of other historians such as William Warren Sweet to portray both Virginia’s disestablishment of the Anglican Church and the First Amendment’s establishment clause as the culmination of an array of social, political, theological, and philosophical factors, Brant and Rutledge boldly award virtually sole credit to their favorite founding father. In so doing, they conflate several interesting issues, ranging from whether Madison really did play such a role to whether authorship or sponsorship of a particular constitutional provision necessarily means that the clause’s interpretation by the Court should flow from the sponsor’s previously articulated views on the same general subject matter. Since we have access to Rutledge’s confession to Kirschten that he engaged in a certain amount of premeditated law office history (should we instead call it “judicial chambers history”?270 ), it is not difficult to see this unexamined 269

270

Ibid., p. 250 (emphasis added). Interestingly, the “previous declarations” cited by Brant were made many years before Madison wrote the Memorial and Remonstrance, the document that Rutledge sees as the font of First Amendment wisdom. John Phillip Reid calls it “forensic history,” the use of history by judges “not to learn about the past, but merely to support an outcome. Law office history does not lead the judge to a decision. In almost every instance when history is employed, the decision has already been formulated. Unprofessional history is used to explain the decision, to make the decision more palatable, or, in most cases, to justify the decision.” John Phillip Reid, “Law and History,” Loyola Los Angeles Law Review 27 (1993–4): 193, 204. Such judge-made history “does not meet the canons of historians’ history, but for centuries has made legitimate contributions to Anglo-American law” (p. 205). Thus, Reid argues, the “irrelevant history”

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interpretive approach as Rutledge’s utilitarian effort to support a particular viewpoint on church-state issues. It is perhaps surprising that Brant would do the same in a biographical work on Madison, but in his publications and private correspondence with Rutledge, it is clear that not only was Brant firmly ensconced in the progressive, whiggish school of historians, but he was also an impassioned advocate on religious freedom issues; moreover, he shared Rutledge’s opinion that the proper application of history can – and should – influence the outcome of Supreme Court cases. While the next establishment clause case was pending before the Court, for example, Brant wrote to Rutledge about his soon-to-be-published volume about Madison, which would contain a chapter on freedom of religion. This chapter would provide, in Brant’s opinion, “a good deal of historical material . . . which has a direct bearing on the meaning of the first amendment to the Constitution, and [which] is not likely to be brought out from other sources.”271 Would it be “feasible, or proper,” to get these materials to “the court, either through attorneys in the case or otherwise?”272 Justice Rutledge answered immediately with the address of the appellant’s attorney as well as the suggestion that if “the Civil Liberties Union expects to file a brief . . . that might be a feasible way to get your stuff into the hands of the Court.”273 Ultimately, the page proofs of Brant’s chapter arrived “just too late for use in briefs,”274 so Brant sent the chapter directly to Rutledge, followed by a detailed letter that contained four lengthy quotations from Madison’s writings to the effect that certain of the “Appellees’ contentions as to Virginia are reduced to a joke.”275 Based on this extensive post-Everson correspondence between the justice and Madison’s biographer, it would be tempting to assume that the two men privately worked together to craft Rutledge’s Everson dissenting opinion. There is little doubt from Brant’s subsequent correspondence that Brant would have happily ghostwritten the entire opinion, but there is no evidence to suggest that Brant exerted any personal influence on Rutledge’s efforts in Everson. In fact, Brant wrote to Rutledge two months after the case was decided with a note expressing surprise about the outcome: “when I started

271 272 273 274 275

mustered in support of a Jeffersonian “wall of separation” view of the establishment clause “enjoys a somewhat greater forensic legitimacy than some of the ‘history’ currently being marshaled against it,” citing Leonard W. Levy, Original Intent and the Framers’ Constitution, (1988), pp. 377–80. Ibid., p. 221. Brant to Rutledge, November 10, 1947. WR, Box 12. Ibid. Rutledge to Brant, November 12, 1947. WR, Box 12. Brant to Rutledge, December 25, 1947. WR, Box 12. Brant to Rutledge, January 4, 1948. WR, Box 12.

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to read the Everson case, I flipped the leaves and missed the breaks in it, therefore thought it was a unanimous decision. As I read along through Hugo’s opinion, I got a real lift; it showed a complete understanding of the principles which governed the writing of the First Amendment. . . . Then, by gosh, on a point negatived by his own prior reasoning, he jumped over and affirmed the decision.”276 Brant then went on to express his hope that the dissenting opinions by Rutledge and Jackson would “have an effect in the future.”277 Despite the lack of evidence that Brant directly lobbied Rutledge on historical issues in the Everson case, it seems quite likely that Brant’s work was influential in the development of Rutledge’s thinking. The long-standing relationship between the two men, together with the fact that Rutledge and Brant shared a similar commitment to a strict separation of church and state, made it easy for Rutledge to adopt from Brant’s published work a Madisonian perspective on the meaning of the First Amendment, which Rutledge then embellished through a close reading of the Memorial and Remembrance. Thus, Brant did not appear to have had a direct hand in the Everson case, despite the fact that he would undoubtedly have been anxious to do so.278 Much as Brant initially lobbied Roosevelt to appoint Rutledge to the Court without telling Rutledge,279 the justice wrote Brant’s version of Madison’s views and Virginia’s church-state history into his opinion – and therefore into modern First Amendment jurisprudence – without apparently tipping off his old friend. In both cases, it seems to be a case of “great minds think alike”; that is, less a favor given or returned than two men of similar ideals taking advantage of the other’s work for what each of them undoubtedly saw as the common good. An article by Brant that appears four years later, “Madison: On the Separation of Church and State,”280 adds further support for the Rutledge/Brant point of view. While Brant does not comment directly on Rutledge’s

276 277 278

279 280

Brant to Rutledge, March 11, 1947. WR Box 143. Ibid. In a tribute to Rutledge published after the justice’s death, Brant observes that the “child benefit theory” had been the subject of the “main Everson briefs and oral arguments; it was Rutledge whose research into the history of the First Amendment, and of the earlier defeat of state aid to churches in Virginia, was responsible for putting the issues clearly before the Court.” Brant, “Mr. Justice Rutledge,” pp. 562–3. This tribute overlooks the extensive establishment clause debates in the amici curiae briefs. Ibid., p. 555. Irving Brant, “Madison: On the Separation of Church and State,” William and Mary Quarterly, ser. 3, vol. 8 (1951): 3. It is noteworthy that the highly regarded journal calls Brant “the author of the definitive life of Madison.”

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opinion, his article follows the same logic, adding further historical evidence to shore up potential weaknesses in Rutledge’s opinion. He argues, for example, that the version of the religion clauses approved by the Congress was written by Madison, even though the records show that it was proposed by Fisher Ames of Massachusetts. “It is probable,” he wrote, “that Madison wrote the Ames version and resorted to his common device of submitting it through another,”281 although Brant offers nothing to back up this assertion but Ames’s prior disdain for the concept of a Bill of Rights (and does not address the fact that Madison was, at most, an unenthusiastic proponent of a Bill of Rights.)282 Brant’s published support for Rutledge’s views appears to have enhanced the opinion’s historic verisimilitude. Historian Alfred Kelly, in a 1965 article generally excoriating the Court’s use of history in a wide range of constitutional cases, wrote that the “theory that the Memorial and Remonstrance and Jefferson’s Danbury letter of 1802 best state the aboriginal meaning of the religion clauses of the First Amendment is not an implausible one. It has in fact been accepted whole heartedly by certain historians entitled to great respect,” a statement that he complements with a footnote reference citing Irving Brant.283 Even so, concludes Kelly, this approach “seeks to prove too much from too little evidence and . . . neglects contrary evidence that points in a different direction.”284 281 282

283

284

Ibid., p. 15. See Paul Finkelman, “James Madison and the Bill of Rights: A Reluctant Paternity,” Supreme Court Review 1990 (1990): 301–47; Stuart Leibiger, “James Madison and Amendments to the Constitution, 1787–1789: Parchment Barriers,” Journal of Southern History 59, no. 3 (August 1993): 441–68. Kelly, “Clio and the Court,” p. 239. Although his text mentions “historians,” he mentions only one, viz., Brant. Brant generally enjoyed positive, or at least mixed, reviews in the scholarly journals for his Virginia Revolutionist volume. See James E. Pate, “Book Review,” William and Mary Quarterly Historical Magazine, 2nd ser., vol. 22, no. 2 (April 1942): 95 (“Mr. Brant’s journalistic training has enabled him to produce a book that has a fluent style. But the volume is more than a journalistic work.”); Ray F. Harvey, “Review,” Annals of the American Academy of Political and Social Sciences 220 (March 1942): 241–2; Homer C. Hockett, “Review,” Mississippi Valley Historical Review 29, no. 1 (June 1942): 92–4. Comments critical of Brant tended to focus not on matters of fact but on the observation that on some interpretive issues, or in assigning credit for legislative accomplishments, Brant sometimes “has his own preconceived ideas about his subject.” Harvey, “Review,” p. 242; Hockett, “Review,” p. 93. But Brant’s volumes have survived well over the years. Fifty years later, in a review of books about Madison by William Lee Miller and Jack N. Rakove, Carl Prince concludes: “[F]or both the detail and the flow of Madison’s life and career, if not for an acceptable interpretive context, one still has to go to Irving Brant’s six-volume biography.” Carl E. Prince, “Review,” William and Mary Quarterly, 3rd ser., vol. 50, no. 2 (April 1993): 452–5. Kelly, “Clio and the Court,” p. 239. Kelly’s judgment is that the “closest approach to a sophisticated historical understanding of the problem of church-state relations by any of

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Conclusion Once again, in Everson as in Reynolds, we need to credit an influential and popular historian with inspiring the Supreme Court’s approach to establishment clause history and interpretation. And, again, a personal friendship between a justice and the historian served as the proximate cause for the use of that particular historical analysis and interpretive approach. Professional historians have periodically lambasted the Court for oversimplifying or misrepresenting the constitutional background to provide superficial but unpersuasive support for a foregone conclusion. But in Reynolds and Everson, it is clear that Justices Waite and Rutledge were not doing freelance amateur history at odds with the best published materials they could find. To the contrary, these jurists employed an originalist methodology that was explicitly promoted by the prominent and highly regarded historians they consulted. We do not know exactly what question Chief Justice Waite asked of George Bancroft, but we can see that his response was entirely originalist in nature, an approach he echoed in his correspondence about the paper money case when the Court had declined to follow what he thought was the clear mandate of constitutional history. Similarly, Brant’s post-Everson letters to Rutledge, combined with the intensity of his desire to put his most recent Madisonian materials before the Court in the next case, demonstrate an evangelical zeal for employing a whiggish interpretation of colonial history as the defining context for twentieth-century constitutional interpretation, at least on the subject of the establishment clause.285 One of Justice Black’s key sources, Charles Beard, not only invokes the authority of the framers but also asserts that they were, in fact, committed

285

the justices in recent years is found in Mr. Justice Brennan’s long, rambling concurring opinion in Schemp, 374 U.S. at 230, 237, where he discussed the radical change in the cultural frame of reference with which the Court is faced as against the situation in the late eighteenth century” (p. 142, n. 94). For another endorsement of Justice Rutledge’s use of the Virginia history, see David M. Levitan, “Mr. Justice Rutledge,” Virginia Law Review 34 (1948): 526, who writes, “[I]f any extrinsic aids are to be resorted to in the interpretation of the Amendment it should be to the views of Madison and Jefferson. If that be granted – Mr. Justice Rutledge’s position is unassailable” (533). As to the views of historians, Levitan continues, “I accept the considered judgment of Dumas Malone and Irving Brant – our most distinguished students of Jefferson and Madison respectively – that Jefferson and Madison stood for, and believed that they wrote into the First Amendment, the concept of separation of church and state” (535, citing Malone, Jefferson and His Time (1948) and Irving Brant, James Madison: The Nationalist 1789–1787 (Indianapolis, Ind.: Bobbs-Merrill, 1948)). Ferren writes, “Brant was an activist as much as a scholar. He worked ardently for public housing, for conversation of natural resources, and especially for civil rights and civil liberties.” Ferren, Salt of the Earth, p. 139.

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to his vision of the separation of church and state. In particular, he cites the “attitudes towards religion taken by leaders among the framers of the Constitution and the plain letter of the original document,”286 concluding that one of the “definite propositions” is that “Congress [cannot] vote money for the support of all churches [nor can it] establish one of them as a national church.”287 This proposition, grounded in a “First Amendment [that] merely confirms the intentions of the framers,”288 becomes Black’s “no aid” formulation, which is one of Everson’s most enduring interpretive legacies. In fact, the Black/Beard “no aid” interpretation is, according to A. E. Dick Howard, “the most famous dictum in any Supreme Court opinion on the meaning of the Establishment Clause.”289 And so, while more recent historians have often disowned originalism (and specific examples thereof) as anything from sloppy and oversimplified to flat out disingenuous,290 we can see that one of originalism’s most durable and visible manifestations – namely, the use of Madison, Jefferson, and colonial Virginia to interpret the establishment clause – has venerable roots not merely in the advocacy of self-interested litigants offering up bits of history to bolster their claims but in distinguished historians who were not shy about presenting clear historical answers to complex constitutional questions. Highly regarded historians actively promoted originalism as an interpretative methodology for the establishment clause, and they supplied a favored version of the history itself, in this case, an oversimplified Virginia-centric First Amendment creation myth. Ultimately, it required the enthusiastic embracing of that historical analysis by Supreme Court justices such as Waite, Rutledge, and Black to transform the creation myth into

286 287 288 289

290

Beard, The Republic, p. 170. Ibid. at 165. Ibid. at 170. A. E. Dick Howard, “The Wall of Separation: The Supreme Court as Uncertain Stonemason,” in James E. Wood, Jr., ed., Religion and the State: Essays in Honor of Leo Pfeffer (Waco, Texas: Baylor University Press, 1985), p. 88. Paul Kauper describes the Black/Beard approach as a “sweeping assertion” that is “well known and often repeated.” Kauper, “Judicial Will,” p. 312. See, e.g., historian Gordon Wood’s recent comment: “We do not, and cannot, base American constitutional jurisprudence on the historical reality of the Founding. Our constitutional jurisprudence accepts a fiction involving the Founders’ intent – it may have become a necessary legal fiction as the country’s laws have taken shape but it is a fiction nonetheless.” Gordon Wood, “American Religion: The Great Retreat,” New York Review of Books 53 (2006): 60, 63. Reid observes that “[t]here are no other decisions dealing with American constitutional law that owe more to violations of the canons of historical interpretation than those dealing with the establishment and free exercise of religion.” Reid, “Law and History,” p. 218.

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constitutional law, but primary responsibility for what has become the prevailing school of establishment clause “law office history” must be assigned not to litigants or even just to jurists, but to distinguished “historians entitled to great respect,” such as George Bancroft, Irving Brant, and Charles Beard. In Everson, the law office history of the establishment clause is, in at least one respect, the real thing – that is, history as it was being written by prominent historians in the 1940s, an era in which the separation of church and state was a central tenet in American liberal intellectuals’ battles against all forms of authoritarianism, including the Roman Catholic Church. In the end, Roman Catholic priest John Courtney Murray’s analysis of Everson was right on the mark: “We have won on busing but lost on the First Amendment,”291 which may or may not reflect the framers’ intentions, but is a good summary of Justice Black’s goal of going “only this far” to “contribute to a church.” And so, for Justices Black and Rutledge, whose opinions combined to erect the modern First Amendment’s “wall of separation” between church (particularly the Catholic Church) and state, history had served its “admirable purpose.” When we gaze back on Reynolds and Everson to assess the justices’ exercises in applied originalism, we need to heed the modern historian’s commitment to context. We may well conclude, after extended reflection, that, in historian Kelly’s words, the Court’s version of establishment clause history “seeks to prove too much from too little evidence,” but we must view the justices’ efforts in the context of their own places and times. When they sat down to write their establishment clause histories, they turned to the best experts they could find in an environment in which (and this is hard to believe by modern standards) almost nothing had been written about the history of the establishment clause, even as late as the middle of the twentieth century. And when personal relationships guided them to widely read and highly regarded histories, they found men whose craft had not yet developed the dedication to nuance, to cultural frame of reference, or to the degree of objectivity expected of historians seeking tenure in twentyfirst-century academia. Today it is easy to see Bancroft’s florid prose and hyper-whiggish interpretations as remnants of a long abandoned approach to history as heroic literature and easy to consign Brant to the category of Madisonian hagiographer seeking to locate his subject solidly within the intellectual traditions of mid-twentieth-century progressivism. But viewed in historiographical context, it is clear that they were producing highly 291

Quoted in Jo Renee Formicola, “Catholic Jurisprudence on Education,” in Formicola and Morken, Everson Revisited, p. 86.

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respected, mainstream history, as history tended to be practiced in the era in which they were writing. More recently, justices have not needed to get their First Amendment history over the back fence. The Everson Court’s dual commitments to applying the First Amendment to state and local church-state disputes, and to employing an originalist interpretation, gave birth to a cottage industry of books and articles written with the intention not only of setting the historical record straight but of providing litigants and judges with scholarly support for a variety of specific interpretations of the First Amendment. Originalists one and all, these authors, some of them historians, but also a number of political scientists and constitutional law scholars, have jousted mightily over the appropriateness of a strict separation of church and state versus an interpretation that would permit nonpreferential support for religion. Whereas the origins of the First Amendment’s establishment clause were virtually invisible in the small handful of books addressing churchstate issues prior to Everson, the topic has been nearly inexhaustible ever since. Not all of these authors are paragons of nuance, but there can be no doubt that the paucity of published materials confronting Justices Waite and Rutledge will no longer inhibit First Amendment debate. The question for future establishment clause cases is whether it is possible for the Supreme Court’s opinions to flow naturally and unimpeded from the mandates of the historical record or whether the justices will succumb to the temptation to seek out and employ whatever facts may be, in Justice Rutledge’s words, “admirable for the . . . purpose” of justifying a foregone conclusion. In other words, will the Court’s commitment to establishment clause history in Reynolds and Everson lead to an enduring dedication to reviewing the constitutional facts in their full and fair contemporary context or will it be a vehicle for ever more attempts at the creative application of law office history? And as we are assessing the Court’s commitment to a fair reading of the First Amendment’s origins in light of their historical context, we will need to grade the explosion of scholarly literature on the same scale. It may be that penning works of law office history does not require admission to the bar and that law office/judicial chambers history continues to be supported by the same kinds of utilitarian whiggish histories that inspired Justices Waite and Rutledge in the first place.

4 The Battle for the Historical High Ground

McCollum v. Board of Education The unusual degree of constitutional history appearing in the two major Everson opinions would lead a Court-watcher to predict that the judicial conference in the next establishment clause case would be transfigured into a graduate seminar in American history, with the justices debating the finer points of Madison’s Memorial and Jefferson’s wall. The chance came just a year later, when the Court heard McCollum v. Board of Education,1 a 1948 case challenging an Illinois program releasing students from public school classes to attend religious instruction on school property. And, indeed, counsel for the Board of Education played the professorial role, lecturing (and sometimes haranguing) the justices on the proper way to read the relevant history. The school board’s brief was based on the prepublication manuscript of Professor J. M. O’Neill’s Religion and Education Under the Constitution, an acerbically nonpreferentialist version of First Amendment originalism.2 During the three-hour oral argument, the school board’s attorney scolded “Justice Black [for having] gone beyond the

1 2

McCollum v. Board of Education, 333 U.S. 203 (1948). J. M. O’Neill, Religion and Education Under the Constitution (New York: Harper & Brothers, 1949). O’Neill, Chair of the Speech Department at Brooklyn College and Chair of the Academic Freedom Committee of the ACLU, included in his preface a letter from the appellees’ attorneys to the effect that “similarities between Professor O’Neill’s work and our own printed arguments . . . occurred because . . . by our examining a large section of his manuscripts, we were able to draw freely upon the author’s fertile ideas, careful historical research, and even his felicitous mode of expression” (p. xii). Irving Brant countered by trying to get his forthcoming Madison manuscript into one of the briefs filed in the case and, failing in that endeavor, sent relevant portions directly to Justice Rutledge. See Chapter 3.

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evidence in his Everson ruling where he stated that government may not ‘aid all religions.’”3 One interested observer, Robert Drinan, reported that the justices did not embrace the history lesson warmly: “Justice Black and his associates were clearly not pleased to have their scholarship impugned. In sharp thrusts at counsel during the oral pleadings, . . . Justice Black and others on the Court made it clear that their version of the First Amendment as proscribing aid ‘to all religions’ was not dicta in Everson and was not being withdrawn.”4 The school board nevertheless persisted in its demand for a nonpreferentialist interpretation of the establishment clause, as this snippet from oral argument demonstrates: Justice Black: Do I understand you to take the position that if the State of Illinois wanted to contribute five million dollars a year to Religion they could do so, so long as they provided the same to every faith? Counsel: Yes . . . and the State of Illinois does contribute . . . annually . . . more than five million dollars . . . by tax exemptions.5

Opposing counsel, having seen a far stricter view expressed by essentially all of the justices less than a year before, was more than happy to accept this framing of the constitutional issue. His oral argument concluded as follows: It seems . . . that without any hesitancy it can be said that unless this Court is now prepared to delete from the opinions in that case (Everson) the strong language that was used, unless it is prepared to renounce the principles set out by the majority – and, so far as that is concerned, concurred in by the minority – then the decision in this case must necessarily be in favor of the appellant [McCollum].6

In the end, the historiographical lobbying was largely ignored by the justices. The conference discussions were even more abbreviated than was the case in Everson, and Virginia’s history was notably absent. Neither Madison nor Jefferson made even a cameo appearance at the judicial conference, and the Court’s most active establishment clause historians, Justices Black and Rutledge, merely stated their votes to invalidate Illinois’s released-time religious education program. As in the Everson conference, Justice Frankfurter was the lone voice providing a perspective on the history of church and state, and, again, instead of invoking colonial Virginia’s experiences with religious establishments, he offered up Elihu Root, whose support for a nineteenthcentury New York law banning the use of public funds for religious schools 3

4 5 6

Robert F. Drinan, S.J., Religion, the Courts and Public Policy (Westport, Conn.: Greenwood Press, 1963), p. 76. Ibid. Ibid., p. 77. Ibid.

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eventually makes multiple appearances in Justice Frankfurter’s concurring opinion.7 Thanks to a 1974 Yale Law Journal student note by current Justice Samuel Alito, there is a clear picture of the interplay among the justices as they constructed their opinions in the McCollum case.8 After a seven to one vote in conference, with Justice Reed dissenting and Justice Murphy passing, the chief justice assigned the majority opinion to Justice Black, whose initial draft became the Court’s final version with little change, and it included a vigorous endorsement of his opinion in Everson.9 Meanwhile, the dissenting justices in Everson – Rutledge, Burton, Frankfurter, and Jackson – planned to write a concurring opinion to reiterate their unhappiness with the majority opinion in Everson, and Frankfurter was tapped to draft the concurrence.10 As Alito points out, however, “since one of the members of the five-man Everson majority – Justice Reed – was now in dissent, Justice Black’s draft could not become the opinion of the Court unless at least one of the Everson dissenters endorsed it.”11 Justice Burton, whose ability to bring about consensus was apparently stronger than his commitment to constitutional doctrine, set out to broker the necessary compromise between the two factions.12 The initial proposal was for Black and Frankfurter both to eliminate virtually all references to the Everson case.13 Frankfurter agreed to do so, but then circulated a memorandum calling the Everson opinion “wrong and mischief-breeding,” inciting Black to fire off his own inflammatory memo: I have just been handed a memorandum from Justice Frankfurter to the effect that he will not agree to any opinion in the McCollum case which makes reference to the Everson case. I will not agree to any opinion in the McCollum case which does not make reference to the Everson case.14

Justice Burton, with the help of Justice Rutledge, continued his mediation efforts, and he ultimately reached a solution that Alito dubs “cosmetic,” requiring “complex and protracted negotiations more characteristic of peace 7

8

9 10 11 12 13 14

See, e.g., McCollum, 333 U.S. at 220. While it is possible that the justices’ notes are an incomplete record of the conference discussions, it seems likely that if the references to Elihu Root made it into the notes, arguments concerning more memorable and prominent figures such as Madison and Jefferson would also have been picked up. Note, “The ‘Released Time’ Cases Revisited: A Study of Group Decision Making by the Supreme Court,” Yale Law Journal 83 (1973–4): 1202. Ibid., p. 1212. Ibid., p. 1213. Ibid., p. 1212. See ibid., pp. 1214–15, n. 80. Ibid., pp. 1215–16. Quoted in ibid., p. 1217, n. 85.

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talks than of the normal pattern of interactions of the Court.”15 And, despite all of the sharply worded memoranda and heated discussions, little attention, if any, was paid to what Alito calls “far-reaching Establishment Clause issues.”16 In fact, he notes that throughout both the negotiations and the opinions, “the Justices . . . never identified precisely which factors rendered the [challenged] plan unconstitutional.”17 Despite all of the judicial politicking, Justice Black’s majority opinion is fairly short, and nearly half of it is devoted to a recitation of the facts of the Illinois program providing for “religious teachers, employed by private religious groups . . . to come weekly into the school buildings during the regular hours set apart for secular teaching, and . . . for a period of thirty minutes substitute their religious teaching for the secular education provided under the compulsory education law.”18 Parents needed to consent to their children’s participation in the program, which was administered by a coalition of Protestant, Roman Catholic, and Jewish groups. According to Justice Black, these facts “show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council [responsible for overseeing the program] in promoting religious education.”19 Such use of the “tax-established and tax-supported public school system to aid religious groups to spread their faith . . . falls squarely under the ban of the First Amendment . . . as we have interpreted it in [Everson].”20 Justice Black then quotes his Everson opinion at length, including the Charles Beard–inspired portion announcing, “Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, and all religions, or prefer one religion over another”; he also invokes Jefferson’s newly famous metaphor: “The majority in the Everson case, and the minority . . . agreed that the First Amendment’s language, properly interpreted, had erected a wall of separation between Church and State.”21 15

16 17 18 19 20 21

Ibid., p. 1219. In light of this kind of scholarly commentary on the subject of protracted negotiations and peace accords among the Supreme Court’s members in a difficult case, it will be interesting to see Justice Alito’s future comments on the “normal pattern of interactions” of the Court on which he sits, especially in establishment clause cases. Ibid., p. 1225. Ibid., p. 1226. McCollum, 333 U.S. at 205. Ibid. at 209. Ibid. at 210. Ibid. at. 210–11. He continues, in reference to the two opposing opinions in Everson: “They disagreed as to the facts shown by the record and as to the proper application of the First Amendment’s language to those facts.” Ibid. at 211. He does not indicate which facts were in dispute.

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Finally, Justice Black picks up the nonpreferentialists’ gauntlet, acknowledging the school board’s argument that “historically the First Amendment was intended to forbid only government preference of one religion over another” and its request that the Court unincorporate the establishment clause so that the states would be free to make church-state decisions.22 He gives these arguments extremely short shrift, despite claiming that the Court had given them “full consideration.”23 He merely asserts that the Court’s decision “does not, as counsel urge, manifest a governmental hostility to religion,” and he repeats Jefferson’s “wall of separation” phrase, stating: “[T]he first Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.”24 Justice Frankfurter’s opinion, which was joined by Justices Jackson, Rutledge, and Burton, was considerably longer than the majority opinion, and its recurring theme is that “[s]eparation means separation, not something less.”25 In particular, Frankfurter concludes, the schools are “vital to keep out divisive forces,” and the “‘great American principle of eternal separationism’ . . . is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities.”26 The bulk of the opinion is devoted to a history of education in America, from the religiously oriented colonial schools to the “modern public school [which] derived from a philosophy of freedom reflected in the First Amendment.”27 This commitment to “free and secular schools arose throughout the states despite fierce sectarian opposition” and after “long and fierce” controversies.28 Justice Frankfurter then uses this history of the nineteenth-century school wars to address, albeit indirectly, the incorporation doctrine arguments: “[L]ong before the Fourteenth Amendment subjected the States to new limitations, the prohibition of furtherance by the State of religious instruction became the guiding principle, in law and feeling of the American people.”29 22 23

24 25 26

27 28 29

Ibid. at 211. Ibid. There is no evidence in the conference discussions or in Alito’s study of the postconference opinion negotiations that the Court considered these issues at all. See Note, “Released Time Cases,” 1202–36. McCollum, 333 U.S. at 213. Ibid. at 231. Ibid., quoting, for the second time in the opinion, Elihu Root’s 1894 comments in favor of a New York State law prohibiting the use of public funds for religious education. Ibid. at 220. Ibid. at 214. Ibid. at 214–15. Ibid. at 215.

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As a result, “the Fourteenth Amendment merely reflected a principle then dominant in our national life. To the extent that the Constitution thus made it binding upon the States, the basis of the restriction was the whole experience of the American people.”30 With a nod in the direction of the Blaine Amendment and the issues surrounding the incorporation doctrine, Justice Frankfurter explains that the conviction that public education must be separate from religious influence was so “strong . . . that rather than rest on the comprehensive prohibition of the First and Fourteenth Amendments, President Grant urged that there be written into the United States Constitution particular elaborations including a specific prohibition against the use of public funds for sectarian education.”31 In a footnote, Frankfurter deals further with the Blaine Amendment, arguing that the “reason for the failure of [the amendment and other similar proposals] seems to have been in part ‘that the provisions of the State constitutions are in almost all instances adequate on this subject and no amendment is likely to be secured.’”32 Otherwise, Justice Frankfurter devotes little time to elucidating the meaning of the First Amendment’s text or history, preferring instead to invoke the wall of separation image and to apply “the Constitutional test of Separation.”33 The only dissenter in McCollum was Justice Reed, who is persuaded by some (but not all) of the school board’s nonpreferentialist arguments. At the same time, he seems perplexed by the views expressed by his brethren on the court: “I find it difficult to extract from the opinions any conclusion as to what it is in the [program] that is unconstitutional. Is it the use of school buildings for religious instruction; the release of pupils . . . for religious instruction during school hours; the so-called assistance by teachers [in keeping attendance records]; or the actions of the principals in arranging the opportunity?”34 Justice Reed ultimately concludes that none of these actions constitutes an unconstitutional establishment of religion, and his rationale points, perhaps surprisingly, to the patron saints of strict separationism, Thomas Jefferson and James Madison: “A reading of the general statements of eminent statesmen of former days,” he writes, “will

30 31

32

33 34

Ibid. Ibid., at 218, citing President Grant’s 1876 speech marked by the phrase: “keep the church and state forever separated.” Ibid., citing Ames, “The Proposed Amendments to the Constitution of the United States during the First Century of its History.” McCollum, 333 U.S. at 226. Ibid., 333 U.S. at 240.

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show that circumstances such as those in this case were far from the minds of the authors.”35 Justice Reed skips over Madison’s much cited Memorial and Remonstrance on the grounds that “its historical setting and its language [show] that the Remonstrance was a protest against an effort by Virginia to support Christian sects by taxation,” which is quite different from the issues raised by the multidenominational program in McCollum.36 Far more relevant, in Justice Reed’s view, is how an analogous situation at the University of Virginia was resolved by Thomas Jefferson, as Rector, and the university’s board, one of whose members was James Madison. Reed observes that they were “faced with the same problem that is before this Court today”: “The question of the constitutional limitation upon religious education in public schools.”37 Jefferson’s proposal for dealing with this issue, which was approved by the board and adopted in the official university regulations in 1824, provided, “Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within, or adjacent to, the precincts of the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in time to meet their school in the University at its stated hour.”38 Accordingly, concludes the justice, the “wall of separation between church and State that Mr. Jefferson built at the University which he founded did not exclude religious education from that school,”39 and, therefore, the establishment clause should not be read to bar the released time program in McCollum. Although Justice Reed rejects the school board’s appeal for a broadly nonpreferentialist interpretation of the establishment clause, agreeing with the majority that “none of our governmental entities can ‘set up a church’ . . . or ‘aid’ all or any religions or prefer one ‘over another,’”40 he insists that the 35

36 37 38 39

40

Ibid. at 244. He also briefly cites the debates in the First Congress, noting: “The phrase ‘an establishment of religion’ may have been intended by Congress to be aimed only at a state church. . . . Passing years, however, have brought about acceptance of a broader meaning, although never until today . . . has this Court widened its interpretation to such a degree as holding that recognition of the interest of our nation in religion [as in this program] was . . . an establishment of religion.” Ibid. at 248. Ibid. at 245. Ibid. at 246. Ibid. at 247. He goes on to provide a sound bite for future nonpreferentialists’ attacks on the Danbury letter: “A rule of law should not be drawn from a figure of speech.” Ibid. at 248.

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terms “aid” and “prefer” be strictly defined: “[‘A]id’ must be understood as a purposeful assistance directly to the church itself or to some religious group . . . doing religious work . . . such . . . that it may fairly said to be performing ecclesiastical functions.”41 Similarly, “‘Prefer’ must give an advantage to one ‘over another.’”42 But “aid” cannot, in Justice Reed’s view, mean simply “those incidental advantages that religious bodies, with other groups similarly situated, obtain as a by-product of organized society,”43 such as tax exemptions. Justice Reed argues further that “long-established practice” supports the released time program, and he catalogues similar programs in many other states as well as various “practices of the federal government [that provide] this kind of “‘aid’ by the State to religion,”44 including a congressional chaplain, veterans’ benefits that support training for the ministry, Bible reading and prayers in the District of Columbia schools, and mandatory chapel attendance policies at Annapolis and West Point.45 Ultimately, in concluding that the program does not violate the establishment clause, Justice Reed ends on a methodological point: “This is an instance where, for me, the history of past practices is determinative of the meaning of a constitutional clause not a decorous introduction to the study of the text.”46 The Scholarly Debate After Everson’s extensive reliance on the First Amendment’s origins, numerous scholars leapt into the fray with books and articles designed to set the record straight. In reviewing this eruption of competing histories, it is important to bear in mind that most were written to answer a question far more relevant to twentieth-century church-state disputes than eighteenth-century ones. The critical issue driving much of the literature, at once philosophical, theological, and profoundly economic, was financial aid for religious 41 42 43 44 45 46

Ibid. Ibid. Ibid. at 249. Ibid. at 253. Ibid. at 254–55. Ibid. at 256. He also argues, “This Court cannot be too cautious in upsetting practices embedded in our society by many years of experience.” For a discussion of Reed’s opinion in McCollum and his views in other cases dealing with religion, see F. William O’Brien, S.J., Justice Reed and the First Amendment: The Religion Clause (Washington, D.C.: Georgetown University Press, 1958). Among other observations, Father O’Brien laments the fact that Justice Reed failed to seize the opportunity in McCollum to reject the incorporation of the establishment clause. Ibid., p. 125.

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schools provided by state governments; a large percentage of these schools were Roman Catholic parochial schools. The issue was not framed explicitly in those terms, however. The constitutional battle was contested on the more theoretical terrain of “strict separation” of church and state versus a more accommodating view that would permit “nonpreferential” aid to religious organizations. The principal question, then, was: Does the establishment clause allow the federal and state governments to aid all religions equally, or does it – following the Black/Beard doctrine – prohibit any support for religion, even if made in a nondiscriminatory way? Daniel Dreisbach’s impressively comprehensive review of the post-Everson body of literature identifies O’Neill’s Religion and Education Under the Constitution47 as the “seminal critique” of Everson’s use of history, and he observes that O’Neill’s book, first employed to hammer away at the justices in McCollum, is “still widely regarded as a leading manifesto for the nonpreferentialist position.”48 O’Neill’s view, as summarized in a law review debate with strict separationist advocate Leo Pfeffer, is that the “contention . . . that the First Amendment prohibits nonpreferential government assistance to religion is denied by: A. B. C. D. E. F.

The meaning of the language used. The words and actions of Jefferson. The words and actions of Madison. The official record of all Presidents of the United States. The record of every Congress in our history. The total record of the decisions of the Supreme Court, the McCollum case alone accepted. G. The record of all of the states in the United States. H. The outstanding legal scholars of America.”49 O’Neill’s arguments, which have been amplified by numerous other nonpreferentialists over the years, begin with the question of “what the phrase, ‘an establishment of religion’ meant to eighteenth-century Americans in 47 48

49

O’Neill, Religion and Education. Daniel L. Dreisbach, “Everson and the Command of History: The Supreme Court Lessons of History, and Church-State Debate in America,” in Formicola and Morken, Everson Revisited,” pp. 34–5. Dreisbach notes that others leading the charge on the nonpreferentialist side were Wilfrid Parsons, First Freedom: Considerations on Church and State in the United States (New York: D. X. McMullen, 1948), and Joseph Brady, Confusion Twice Confounded: The First Amendment and the Supreme Court (South Orange, N.J.: Seton Hall University Press, 1954). James M. O’Neill, “Nonpreferential Aid to Religion is not an Establishment of Religion,” Buffalo Law Review 2 (1952–3): 242, 266.

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general, and specifically what it meant to men like Thomas Jefferson, James Madison and the men of the First Congress who were responsible for the language of the Bill of Rights.”50 He asserts that the language itself was primarily directed toward defining who would have the power to pass laws on the subject of religion: The amendment “was designed simply to express (not to create) the constitutional arrangement which left legislative action concerning an establishment of religion in the hands of the several states,” meaning that “Congress could not legislate either for or against an establishment of religion.”51 O’Neill then discusses Thomas Jefferson, who is so important “to the movement against the establishment of any religion in this country . . . that a careful discussion . . . cannot omit . . . Jefferson’s actions and statements.”52 And so, while he might have argued that the wall of separation’s author was irrelevant because Jefferson did not serve in the Congress that adopted the First Amendment, O’Neill prefers to enlist Jefferson in the nonpreferentialist cause. When read properly, the Virginia Bill for Religious Freedom contains, in O’Neill’s view, “not a word . . . that warrants the claim that Jefferson was opposed to impartial government aid to religion”;53 rather, the bill related to matters of “opinion, belief, and worship.”54 Similarly, in creating the “famous figure of speech” – the wall of separation – Jefferson could only have been thinking of “matters which were under the authority of the Congress at that time,” which “did not include authority over religious affairs, education, the relation of religion to education, public support of [religious education], or safety and health provisions for children,” all of which were “exclusively and unambiguously the responsibility of the individual states.”55 In this fashion, O’Neill discards Jefferson’s ostensibly strict separationist statements as irrelevant to school-related issues, including the parochial school debate, and then invokes other Jeffersonian evidence to support the nonpreferentialist position: “Throughout his administration, the United States government used federal funds in aid of religion in various ways with no protest from President Jefferson.”56 These include: “a treaty . . . with the 50

51 52 53 54 55 56

Ibid., p. 247. His commitment to originalism as an interpretive methodology is clear: “We must find the answer to our issue by the method of interpretation in the light of history. This is the only scholarly way to find the meaning of any language in any historical document when the meaning is in doubt” (p. 246). Ibid., p. 247. Ibid. Ibid., p. 248. Ibid., p. 249. Ibid., p. 250. Ibid.

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Kakaskia Indians [providing that] ‘whereas the greater part of said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give annually, for seven years, one hundred dollars toward the support of a priest of that religion . . . and . . . the sum of three hundred dollars, to assist the said tribe in the erection of a church.’”57 Meanwhile, “Madison’s record . . . almost exactly parallels Jefferson’s.”58 In fact, O’Neill announces, “Madison never made a clear explicit statement that he was opposed to any and all (even nonpreferential) aid to religion,” despite what he calls “the Rutledge doctrine.”59 While he shares Rutledge’s views that “the one man who had most to do with the phraseology of the First Amendment was James Madison,”60 he complains that Rutledge “gave us [historian] Eckenrode’s interpretation of something Madison wrote about some other subject, in trying to arrive at what Madison meant in the First Amendment, but he did not quote Madison himself.”61 O’Neill then cites Madison’s statements in the First Congress in which he explained that the amendment meant that “Congress should not establish a religion” as well as Madison’s comments in subsequent writings that in the United States, the people had established “among religious sects a legal equality.”62 Even the Memorial and Remonstrance, in O’Neill’s view, is consistent with nonpreferentialism because not “one of the fifteen [numbered reasons against the Assessment bill] concerns general financial support of religion. Madison objects only to the state forcing ‘a citizen to contribute three pence only of his property for the support of any one establishment.’”63 Madison, in fact, could not have been railing against nonpreferential aid because there “has never been a general non-discriminatory ‘establishment of religion,’ recognized as such in any nation in history.”64 And then, Madison, as President, supported nonpreferential aid to religion, “including chaplains in both houses of Congress and in the Army and Navy, money to missionaries to pay them for ‘teaching the great duties of religion and morality to the Indians.’”65 When read carefully, O’Neill avers, it turns out that the Madisonian statements frequently invoked by the strict separationists have been pulled 57 58 59 60 61 62

63 64 65

O’Neill, Religion and Education, p. 117. O’Neill, “Nonpreferential Aid,” p. 252. Ibid. Ibid., p. 253. Ibid. Ibid., emphasis omitted, citing Elizabeth Fleet, “Madison’s Detached Memoranda,” William and Mary Quarterly 3 (1946): 534–68. O’Neill, “Nonpreferential Aid,” p. 254. Ibid. Ibid., p. 255, citing “4 American State Papers 54, 66 (Lowrie and Clark, ed. 1932).”

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out of context: For example, Madison’s vetoes of “An act incorporating the Protestant Episcopal Church in . . . the District of Columbia” and of a bill “reserving a certain parcel of land . . . for the use of [a] Baptist Church” were motivated by his opposition to “an exclusive, formal, legal arrangement between the United States government and one church,”66 not from any disagreement with the appropriateness of the nonpreferential support for religion. O’Neill’s biggest challenge comes from Madison’s “Detached Memoranda,” apparently written quite late in his life, where Madison opines that the existence of congressional chaplains was inconsistent with the Constitution’s prohibition of “everything like an establishment of a national religion.”67 O’Neill deals with this unpublished document by noting not only that it had nothing to do with “power of the individual states in the realm of religion,” but also that Madison’s principal concern was that a majority-elected chaplain would “shut the door of worship against [those] whose creeds and consciences forbid a participation in that of the majority [including] Roman Catholics and Quakers.”68 Having thus enlisted Madison and Jefferson in his cause, O’Neill broadens his roster of nonpreferentialists to include “The Total Record of the Presidency,”69 namely, all of the legislative and military chaplains adopted by every President “without recommending any change in the Constitution or any change in congressional legislation, or issuing any countermanding orders as Commander-in-Chief.”70 Moreover, George Washington and the First Congress approved aid to missionaries “to Christianize and civilize the Indians,” a practice that continued until 1900.71 In light of these practices, he proclaims, the “Rutledge doctrine . . . makes every President in our history either ignorant of the First Amendment or dishonest.”72 In addition to these kinds of governmental support for religious activities, Congress has rejected many proposed constitutional amendments, including the Blaine Amendment, that would have subjected the states to the strictures of the First Amendment’s religion clauses. The incorporation doctrine thus

66

67 68 69 70 71 72

O’Neill, “Nonpreferential Aid,” p. 256. He discusses Madison’s ambiguous comments on the Baptist church veto at length because they might run counter to his interpretation. See pp. 256–7. Fleet, Detached Memoranda, p. 558. O’Neill, “Nonpreferential Aid,” pp. 257–8, quoting Fleet, Detached Memoranda, p. 558. O’Neill, “Nonpreferential Aid,” p. 258. Ibid., p. 259. Ibid., p. 258. Ibid., p. 259.

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improperly imposes the establishment clause on the states via a “judicial revolution” that reverses the positions not only of Congress but of “fortythree judges of the Supreme Court [who] had passed on the scope of the Fourteenth Amendment in a period of seventy years.”73 O’Neill ducks the question of whether his interpretation would allow the states to set up formal ecclesiastical establishments on the grounds that “no one in any state apparently wants an establishment of religion.”74 O’Neill argues further that while “[a]ll the states prohibit an establishment of religion . . . every [one] has, in various ways, given nonpreferential aid to religion, throughout its history.”75 Such aid has taken the form of tax exemptions for church property as well as a variety of aid programs for religious schools. Finally, O’Neill points to the “outstanding scholars in constitutional law throughout our history [who] have consistently treated the establishment clause simply as a way of saying that the federal government could not grant exclusive favors to one religion over other religions.”76 His three examples are Supreme Court Justice Story (“The real object of the amendment . . . was . . . to prevent any national ecclesiastical establishment”), Judge Cooley (“The [state] legislatures [may not] establish preferences by law in favor of any one religious persuasion or mode of worship”), and Professor Corwin (“An establishment of religion means a state church, such as for instance existed in Massachusetts for more than forty years after the adoption of the Constitution”).77 In conclusion, then, after reviewing the language, consulting the framers, studying the Presidents, the Congress, and the Court, observing the actions of the states, and reading the constitutional commentaries, Professor O’Neill boldly proclaims that it is “inescapable that the First Amendment does not prohibit nonpreferential government assistance to religion.”78 The strict separationists fail to find O’Neill’s conclusion inescapable. “Acceptance of the O’Neill thesis would pervert the First Amendment to an end directly opposite to its purpose,” retorts Leo Pfeffer, “for all in the O’Neill school agree that, absent the First Amendment, the federal

73 74 75 76 77

78

Ibid., p. 262–3. Ibid., p. 264. Ibid. Ibid., p. 265. Ibid., pp. 265–6, citing “II Story, Commentaries on the Constitution of the United States 1872 (5th ed. 1833)”; “Cooley, Constitutional Limitations 584 (4th ed. 1878)”; “Corwin, The Constitution – What It Means Today, 154–156 (9th ed. 1947).” O’Neill, “Nonpreferential Aid,” p. 266.

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government had no power to aid religion on a preferential or nonpreferential basis.”79 Yet, Pfeffer notes, the nonpreferentialist position seems to assume that the government does, in fact, hold such power. Pfeffer, an attorney with the American Jewish Congress, brands the “O’Neill thesis . . . the official position of the Catholic Church” and condemns it as a “cavalier construction of the Constitution.”80 Even worse, the nonpreferentialist interpretation of the First Amendment would pose a severe threat to religious freedom because “if the ‘establishment’ clause is limited to requiring neutrality among sects, but not as between believers and non-believers, the [free exercise] clause likewise protects only believers. In other words, the Constitution does not guarantee freedom of non-belief.”81 Such a view of the Constitution would put at risk “about half of our population today [who] are not members of any church.”82 Pfeffer then takes up the incorporation issue, but he ignores O’Neill’s expansive claim that no aspect of the First Amendment was made applicable to the states via the Fourteenth Amendment. Rather, he prefers to attack other nonpreferentialists (e.g., Corwin and John Courtney Murray), who accept the incorporation of the free exercise clause but not of the establishment clause, a position he dismisses on the grounds that “the struggle in the United States for religious liberty and for disestablishment were parts of the same evolutionary process which culminated in the First 79

80

81 82

Leo Pfeffer, “Church and State: Something Less than Separation,” University of Chicago Law Review 19 (Autumn 1951): 1–29, 28. See also Leo Pfeffer, “No Law Respecting an Establishment of Religion,” Buffalo Law Review 2 (1952–53): 225. For a discussion of Pfeffer’s profound influence on establishment clause jurisprudence through his role at the American Jewish Congress, see Gregg Ivers, To Build a Wall: American Jews and the Separation of Church and State (Charlottesville: University Press of Virginia, 1995). Pfeffer was not alone in his defense of the justices’ strict separationist arguments. Dreisbach cites in particular R. Freeman Butts, American Tradition in Religion and Education (Boston: Beacon Press, 1950), and Conrad Henry Moehlman, The Wall of Separation between Church and State: An Historical Study of Recent Criticism of the Religious Clause of the First Amendment (Boston: Beacon Press, 1951). Dreisbach, “Everson and the Command of History,” p. 35. Pfeffer, “Church and State,” pp. 3–4. He does note that the “narrow interpretation of the First Amendment is by no means limited to Catholics,” citing Professors Corwin and Meiklejohn as well as Attorney General J. Howard McGrath (p. 4). See Edward Corwin, “The Supreme Court as National School Board,” Law and Contemporary Problems 14 (1949), and Alexander Meiklejohn, “Educational Cooperation Between Church and State,” Law and Contemporary Problems 14 (1949): 61. Nevertheless, O’Neill is incensed: Pfeffer’s “article is primarily to be deplored because of its detailed attempt to bring religion into a discussion of a . . . question on which neither Dr. Pfeffer’s religion nor mine . . . has any legitimate bearing.” O’Neill, “Nonpreferential Aid,” p. 273. Pfeffer, “Church and State,” p. 7. Ibid.

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Amendment.”83 If the states are constitutionally bound to respect religious freedom, they must also, in Pfeffer’s view, be subject to the strictures contained within the establishment clause. To address the nonpreferentialist (or, as he puts it, the “O’Neill school”) claim that “establishment” refers only to a single state church, Pfeffer assembles the following four arguments. (1) Such a narrow interpretation would allow a great deal of government support to a church (even a single church) as long as the support fell short of a Church of England–type of arrangement. (2) The phrase in the First Amendment beginning with the word “respecting” imposes a broader prohibition than if the word “establishment” had appeared alone.84 (3) The “term establishment was used much more loosely in 1791 than it is today,”85 citing, for example, Madison’s Detached Memoranda (which expresses dismay at congressional chaplaincies) and Jefferson’s Statute for Establishing Religious Freedom, which “describes a measure as closely approximating nonpreferential aid to religion as could practicably be conceived,” namely, the Assessment Bill.86 (4) In looking at the practices in the states, by the time the Fourteenth Amendment was adopted, the states not only had eliminated their established churches but had adopted laws on church-state issues “that were more consistent with the Everson-McCollum interpretation than with the O’Neill theory.”87 Pfeffer points especially to the proceedings in the Senate where language that would appear to prohibit only preferential establishments was proposed and voted down, including the following language: “Congress shall make no law establishing any particular denomination or religion in preference to another.”88 Since these proposals were explicitly spurned in favor of the “no law respecting an establishment of religion” version, Pfeffer concludes that the First Amendment imposed “a prohibition almost unlimited in scope.”89 83 84

85 86

87

88 89

Ibid., p. 10. Ibid., p. 14, citing, on this point, “Morrison, The Separation of Church and State in America 4.” Ibid. Ibid. He also refers to comments in the congressional debate over the religion clauses and points to the fact that Presidents Jefferson, Madison, and Jackson thought the establishment clause prohibited presidential Thanksgiving proclamations. Ibid., p. 16. At this point, he cites Justice Frankfurter’s opinion in McCollum: “[L]ong before the Fourteenth Amendment subjected the States to new limitations, the prohibition of furtherance by the State of religious instruction became the guiding principle, in law and feeling, of the American people.” Pfeffer, “No Law Respecting an Establishment,” p. 236. Ibid., p. 237. Pfeffer approvingly cites Anson Phelps Stokes’s comment that “the general form which the religious freedom guarantee later took in our Federal Bill of Rights was largely due to Samuel Livermore.” Pfeffer, “Church and State,” p. 18.

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The “most potent argument in support of the O’Neill thesis,” according to Pfeffer, is “the practical construction argument, i.e., that numerous instances of governmental support of religion at the time of the adoption of the Amendment and since then indicate that it could not have been the intent of the Amendment to prohibit such support.”90 Focusing on what he considers to be the ones “most frequently mentioned,” Pfeffer takes up the issues raised by “chaplaincies in Congress; chaplaincies in the armed forces; presidential Thanksgiving proclamations; tax exemptions for religious institutions; compulsory chapel attendance at West Point and Annapolis; and the presence of ‘In God We Trust’ on our coins.”91 He rapidly dismisses the military chaplains, as well as the tax exemptions, as “justified under the ‘free exercise’ clause.’”92 Mandatory chapel attendance policies are not similarly required for free exercise, and their validity is “doubtful under any view of the Constitution”;93 for support, Pfeffer cites the “no religious test” language of Article VI of the Constitution. Finally, Pfeffer asserts that trying to justify “governmental expenditures of tax-raised funds for religious institutions on the basis of so meaningless an act of ceremonial obeisance” as “In God We Trust” on coins is trivial and unpersuasive.94 An even more important argument, in Pfeffer’s view, is the point that “the constitutional validity of every one of these practices was seriously controverted by persons whose views are entitled to great weight in interpreting the First Amendment.”95 Whereas the nonpreferentialists prefer to focus on all of the Presidents who declared days of prayer and thanksgiving, Pfeffer instead points to three who, at some point, opposed the practice, namely, Presidents Jefferson, Madison, and Jackson; he does not, however, make an argument for why those three Presidents should be given more weight than the others. But he does emphasize that all of them “considered [such] proclamations to be violative of the First Amendment.”96 Moreover, the various ways that government has traditionally supported religion are no more significant than the facts that the Constitution makes no mention of God and that “in the 160 years since the First Amendment was adopted Congress has 90 91 92 93 94 95 96

Pfeffer, “Church and State,” p. 22. Ibid. Ibid., p. 23. Ibid. Ibid. Ibid. Ibid. He does not explain why Jackson ranks with Jefferson and Madison in interpreting the First Amendment. He also explains away Madison’s proclamation because “[a]nyone familiar with the American political scene can readily appreciate that what holders of political office do is not an infallible guide to what they believe.” Ibid. at 24.

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never enacted a general appropriation bill for religion on the nonpreferential basis which the O’Neill theory holds constitutionally permissible.”97 Finally, although there may be cases where “practice lags behind principle,” as can be seen in “the widespread unequal treatment accorded to Negroes” despite the Fourteenth Amendment’s “principle of equality,” that fact should not “invalidate the basic principles.”98 Pfeffer then takes on O’Neill’s revisionist interpretation of Madison’s Memorial and Remonstrance in which O’Neill attempts to demonstrate that the document is consistent with nonpreferentialism. While both sides accept “Madison’s role in the drafting and adoption of the first amendment,”99 Pfeffer disputes the conclusions that Madison’s Virginia views are not relevant to the Constitution, and, perhaps more importantly, Pfeffer takes issue with O’Neill’s claim that Madison “would not have opposed [the Virginia assessment bill] if it were truly nonpreferential.”100 Contrary to O’Neill’s assertions, the assessment bill itself cannot “realistically be viewed as preferential,”101 and commentators from George Washington to historian Eckenrode have perceived the bill as one that could have favored religions other than Christianity.102 Had “the Jefferson-Madison group” only been troubled by the potentially preferential nature of the assessment bill, Pfeffer hypothesizes, they could have “propose[d] amending the Bill to provide for all religions, particularly since none other than the Christian religion existed in Virginia.”103 But rather, they brought forth “Jefferson’s Act . . . which . . . represented . . . a growing American tradition of voluntary support of religion which culminated in the adoption of the First Amendment.”104

97 98 99 100

101 102

103

104

Ibid. at 24. Ibid. Ibid. at 25. Ibid. Noting that O’Neill cites one portion of the Memorial (which expresses Madison’s concern about state authority that could “establish Christianity, in exclusion of all other Religions”), Pfeffer asserts that of the “fifteen arguments against the Assessment Bill” in Madison’s Memorial, only “this one can be viewed as referring to the exclusive establishment of ‘Christianity.’” Ibid., citing O’Neill, Religion and Education, p. 89. Pfeffer, “Church and State,” p. 26. Ibid., citing Eckenrode, p. 53, and Washington’s letter to George Mason: “I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denomination of Christians; or declare themselves Jews, Mahomitans or otherwise.” Ibid., n. 126. Pfeffer, “Church and State,” p. 26. In the Buffalo Law Review article Pfeffer notes that there “were probably not a half-dozen Jewish families in the state.” Pfeffer, “No Law Respecting,” p. 269, n. 6. Pfeffer, “Church and State,” pp. 26–7.

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Having vigorously argued that Madison opposed nonpreferential aid at the state level, Pfeffer counters O’Neill’s suggestion that Madison might have had different views about the federal government. There is no reason to believe that Madison would make such a distinction, and, in fact, Madison was committed to the “philosophy, expressed in the remonstrance in the maxim: ‘religion is wholly except from its [government’s] cognizance.’ It was the philosophy of Locke, Roger Williams, Isaac Backus, Tom Paine and Jefferson.”105 This philosophy, writes Pfeffer, was “immortalized in Jefferson’s ‘wall of separation between church and state’ and has become universally accepted in the popular expression that ‘religion is a private matter.’” 106 To accept “the O’Neill Thesis,” Pfeffer warns, would mean the destruction of “an American Tradition.”107 The Pfeffer-O’Neill debate has been replayed throughout the years, as controversial Supreme Court cases have triggered renewed interest in the establishment clause. In his 1997 review of the post-Everson church-state literature, Dreisbach cites well over a hundred books and articles, which seem fairly evenly split between strict separationists and nonpreferentialists.108 More recently, the most influential inheritors of the originalist mantle from O’Neill and Pfeffer appear to be Northeastern University political scientist Robert L. Cord and Claremont constitutional historian Leonard W. Levy. Dreisbach describes Cord’s nonpreferentialist Separation of Church and State: Historical Fact and Current Fiction109 as “the most discussed and referenced study of the last two decades exploring the historical understanding of the constitutional provisions governing church-state relations.”110 Set in sharp contrast is Leonard W. Levy’s The Establishment Clause: Religion and the First Amendment,111 dubbed by Dreisbach as “the

105

106 107 108

109

110 111

Ibid., pp. 27–8. Pfeffer cleverly cites prominent Catholic theologian John Courtney Murray’s views about Madison and “John Locke, his master” to argue against O’Neill’s position, which Pfeffer had called “the official position of the Catholic Church.” Citing John Courtney Murray, Law or Prepossessions, Law and Contemporary Problems 14 (1949): 29. Pfeffer, “Church and State,” p. 28. Ibid. Dreisbach, “Everson and the Command of History.” Carl Esbeck notes that religion clause originalists continue to generate “a hefty monograph at a rate of about one every other year.” Carl H. Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review 2004 (2004): 1385, 1387. Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982). Dreisbach, “Everson and the Command of History,” p. 39. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986).

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most scholarly exposition of the separationist thesis and an angry refutation of the nonpreferentialist brief.”112 Professor Cord’s book targets Pfeffer’s strict separationism in particular, and it overlaps in many respects with O’Neill’s earlier work, which Cord expands with additional eighteenth- and nineteenth-century evidence supporting the nonpreferentialist position. Cord commences with an analysis of the various proposals for a non-establishment clause arising from the state ratifying conventions. He concludes that “the resolutions . . . from Maryland, Virginia, New York, North Carolina, and Rhode Island . . . all urged a constitutional amendment prohibiting a single national religious establishment.”113 Maryland, for example, proposed that “there be no national religion established by law” and the others all used language indicting that no “religious sect or society” should be “favored or established in preference to others.”114 Cord then moves to Madison’s “original wording”: “The Civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.”115 Madison’s intent simply to prevent a single national religion, Cord asserts, is further evidenced by the record of the debates in the First Congress. Roger Sherman asked whether such a provision was necessary since the Constitution had not granted to Congress “any authority . . . to make religious establishments.”116 Madison replied that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law . . . . Whether the words are necessary or not he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that [the necessary and proper clause might enable Congress to] establish a national religion.”117 Thus, Cord concludes that “Madison believed Congress was being denied the power to establish a national religion not religions.”118 Finally, Cord, relying heavily on nonpreferentialist Michael Malbin’s analysis,119 argues that the specific language of the final version of the 112 113 114

115 116 117 118 119

Dreisbach, “Everson and the Command of History,” p. 39. Cord, Separation of Church and State, p. 11 (emphasis in the original). Cord is quoting portions of the proposals from New York and Virginia (emphasis omitted). He notes further that the “North Carolina and Rhode Island conventions echoed Virginia’s proposal.” Ibid. Ibid., p. 7. Ibid., p. 9. Ibid., pp. 9–10 (emphasis omitted). Ibid., p. 11 (emphasis in the original). Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C. : American Enterprise Institute for Public Policy Research, 1978).

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establishment clause “shows an intent to prevent a single and not some pluralistic national religious establishment.”120 This argument hinges on the framers’ choice of the word “the” rather than the indefinite article “an” to modify “establishment.” If the First Congress had prohibited “‘the establishment of religion,’ which would have emphasized the generic word ‘religion,’ there might have been some reason for thinking they wanted to prohibit all official preferences of religion over irreligion,” avers Malbin.121 But instead, by adopting the “an establishment” language, the framers “were showing that they wanted to prohibit only those official activities that tended to promote the interests of one or another particular sect.”122 Cord, then, following O’Neill, summons the support of the great nineteenth-century constitutional commentator Joseph Story, noting in particular that James Madison had appointed Story to the Supreme Court and asserting that “Justice Story held substantially the same view of religion clauses . . . as did the former President when Madison was the Amendment’s initial author and champion in the House debates.”123 Cord quotes extensively from Story’s Commentaries, including the following language, which has become a critical component of the nonpreferentialists’ canon: Probably at the time of the adoption of the Constitution [and the First Amendment], the general if not universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.124

Rather than making religion a matter of governmental indifference, Story continues (as quoted by Cord): The real object of the First Amendment was not to countenance, much less to advance, Mahotmetanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give a hierarchy the exclusive patronage of the national government.125 120 121

122 123

124 125

Cord, Separation of Church and State, p. 11. Malbin, Religion and Politics, p. 14, quoted in Cord, Separation of Church and State, p. 11. Cord, Separation of Church and State, 11. Ibid., p. 12. Cord also cites Cooley’s Constitutional Limitations on the same general subject matter: “[T]he American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a super-intending Providence in public transactions and exercises as the general religious sentiment of mankind inspires” (p. 13). Ibid., p. 13, quoting Story, Commentaries, 2nd ed., Vol. II, p. 591. Ibid. (emphasis in the original).

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Cord highlights the language that seems clearly to support what might be termed “Christian nonpreferentialism” but then leaps to the significantly broader conclusion that Story “saw the First Amendment as prohibitive of a Federal establishment of a national Church or the official preference of a particular religion or religious sect”;126 he does not attempt to deal with Story’s point about not countenancing, “much less” advancing “Mahometanism, or Judaism.”127 Cord continues by calling on Jefferson to make the point that “the First Amendment originally left the entire issue of governmental involvement in religion to the States.”128 In 1808, Jefferson wrote, “Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the State, as far as it can be in any human authority.”129 The same position, Cord records, was espoused by Justice Story, who wrote that “the whole power over the subject of religion is left exclusively to the State government.”130 Having thus made his affirmative case that the “three purposes” of the religion clause were (1) to prevent the establishment of a national church or the preference of any one religious group over others, (2) to protect the freedom of conscience from acts of the federal government, and (3) to allow the states “to deal with religious establishments and aid to religious institutions as they saw fit,”131 Cord sets out to demonstrate that Madison and Jefferson held the same views as he does. He first parses Madison’s Memorial and concludes that “only Madison’s arguments against exclusive religious aid . . . are germane in appraising Madison’s attitude about the appropriate relationships between Church and State.”132 Stricter sounding statements picked up by Leo Pfeffer represent “‘ideological’ arguments [that] seem more derivative of the call to revolution . . . than the proper yardstick against which to measure an appropriate separation between Church and State in a real society where both institutions must exist.”133 Much more relevant, he argues, are Madison’s actions in the Congress and as President when he served on the committee that established a congressional chaplain and declared days of prayer and thanksgiving.134 That he later “out of office

126 127 128 129 130 131 132 133 134

Ibid., p. 12. Ibid., p. 13. Ibid., p. 14. Ibid. Ibid., p. 15. Ibid. Cord, Separation of Church and State, p. 23. Ibid., p. 22. Ibid., pp. 27–36.

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and as an old man regretted some of his past public actions,”135 leading him to write the Detached Memoranda, should not take precedence over his “actions while he was a public servant in the House and in the Presidency making policy and accountable for it.”136 Cord reviews Jefferson’s presidential record with the same degree of diligence to determine whether “Pfeffer’s suggestion is true that in ‘his adult life Jefferson never swerved from his devotion to principle of complete independence of religion and government.’”137 Not surprisingly, he reaches the opposite conclusion, arguing (somewhat facetiously) “that either Jefferson was not an ‘adult’ when in the White House or that he not only ‘swerved’ from his principles [but in some instances] he completely ignored them.”138 Cord’s evidence is Jefferson’s “treaty provision [for the Roman Catholic Church] to build a church and support a priest [for the Kaskaskia Indians], as well as signing federal land grants being given in trust to [the United Brethren] religious society for the purpose of preaching the Gospel to the Indians.”139 And while these actions appear to favor specific religious groups, Cord argues that they were not intended as preferential support for particular religions; rather, the grants were made to those religious organizations who were actively working with the respective Indian tribes.140 Similar actions were taken by “many United States Congresses and Presidents . . . for more than a century, to support ministers of many religions, missionaries, and religious schools” as part of an effort “of bringing ‘Civilization to the Indians.’”141 Finally, Cord points out that Jefferson and Madison were both 135 136

137 138 139 140 141

Ibid., p. 35. Ibid., p. 36. Cord continues: “While ‘foolish consistency’ may indeed be ‘the hobgoblin of little minds,’ the repudiation of one’s actions taken when in public power, by an elderly statesman out of power, is hardly a solid base upon which to build a convincing historical argument, much less constitutional law.” Ibid., p. 45, quoting Pfeffer, Church, State and Freedom, p. 105. Cord, Separation of Church and State, pp. 45–6. Ibid., p. 46. Ibid., p. 47. Ibid., p. 62. Cord documents these efforts on pp. 63–79. He also engages in a detailed debate with Pfeffer about the proper interpretation of the Northwest Ordinance, which many commentators believe was reenacted by the First Congress after the ratification of the Constitution. Douglas Laycock argues, to the contrary, that it is “false” that “the first Congress reenacted the Northwest Ordinance, with its recital that ‘religion, morality and knowledge’ are necessary to good government.” Douglas Laycock, “The Origins of the Religion Clauses of the Constitution: ‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William and Mary Law Review 27 (Summer 1986): 875, 915. Laycock claims instead that the Congress enacted only two “technical amendments” (p. 915, n. 209). He nevertheless admits, “I do not doubt that a large majority of the First Congress would have subscribed to the sentiment” that “religion, morality and knowledge are necessary to

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involved in the development of a Virginia state law “punishing disturbers of religious worship and Sabbath breakers,” a law with clear “religious intent” in its protection of the Sabbath.142 This law was accompanied by a bill (which did not become law, but was introduced by Madison) that provided for “appointing days of public fasting and thanksgiving.”143 Throughout his analysis, Cord’s primary goal appears to be to defeat the strict separationists’ arguments by pointing to Pfeffer’s “absolute” statements and asserting that they can be “logically disproven by the mere showing of one exception.”144 By cataloguing these exceptions – chaplains, days of prayer and thanksgiving, support for missionaries to Native Americans – Cord asserts that “the Pfeffer thesis [is] an incorrect interpretation of the American constitutional doctrine of separation of Church and State.”145 Now, as a result of the incorporation doctrine, which Cord does not challenge, the establishment clause “through the Fourteenth Amendment places the same legislative restraints on the States as it does directly through the First Amendment on the Congress.”146 In short, what both he and Pfeffer call the “narrow,” nonpreferentialist interpretation of the establishment clause is the most historically accurate one, and, therefore, in “most instances, the Court’s decisions involving separation of Church and State are not in accord with American historical fact.”147 Strict separationist Leonard Levy rains brickbats down on Cord and his fellow nonpreferentialists, who, with a “tin ear for history,” distort Madison, “misconstrue the legislative history,” employ “black magic” in lieu of logic, and generally adopt their theories of history as “a pose” because they “think that religion needs to be patronized and promoted by government.”148 Levy seeks to elucidate the proper historical meaning of this portion of “our glorious Bill of Rights,” especially since “[n]owhere in the making of the Bill of Rights was the original intent and meaning clearer than in the case of religious freedom.”149

142 143 144 145 146 147 148 149

good government.” For more extensive discussions of the use of the Northwest Ordinance in establishment clause debates, see Thomas Nathan Peters, “Religion, Establishment, and the Northwest Ordinance: A Closer Look at an Accommodationist Argument,” Kentucky Law Journal 89 (2000–1): 743, and sources cited therein. Cord, Separation of Church and State, p. 216. Ibid., pp. 219–20. Ibid., p. 81. Ibid., p. 82. Ibid., p. 101. Ibid., p. 239. Levy, The Establishment Clause, pp. 93, 104, 92, 115, 118. Ibid., p. xv.

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Levy’s principal argument focuses on the meaning of the term “establishment” as it was understood in 1791 when the Bill of Rights was ratified. Contrary to some of the nonpreferentialists’ claims that the word was understood as representing the kind of single state church that existed in England at the time of the Revolutionary War, Levy asserts that an “establishment of religion meant to those who framed and ratified the First Amendment what it meant in [the seven states that ‘authorized establishments of religion by law’ in 1791], and in all seven it meant public support on a nonpreferential basis.”150 It was, therefore, “this public support on a nonpreferential basis that the establishment clause . . . sought to forbid.”151 Although “conventional establishments” featuring a single state church had at one time existed in colonial Virginia, Maryland, North Carolina, South Carolina, and Georgia, they were disestablished, replaced, or modified such that “American establishments of religion as of about 1790 authorized the taxation of everyone for the support of religion but allowed each person’s tax to be remitted to the church of his choice.”152 Four more states “never had an establishment of any kind: Rhode Island, Pennsylvania, Delaware, and New Jersey.”153 And in the remaining “colonies of New York, Massachusetts, Connecticut, and New Hampshire . . . the pattern of establishment was diversified and uniquely American.”154 Colonial New York was the “first example of . . . an establishment of religion in general – or a least of Protestantism in general – without preference to one church over others,”155 and “throughout New England . . . the law of each colony allowed for the possibility of multiple establishments”156 even if “demographic forces”157 might result in the appearance of an exclusive establishment. In reviewing this pre-First Amendment history, Levy recognizes that his discussion of colonial and state “nonpreferential” establishments in fact provided only for the support of Protestantism or, at most, Christianity, and he needs to defend himself against the counter-argument that they were instead preferential, exclusive establishments favoring Christianity over all other religions. “In [1789 in] each of the six states [Vermont is added in 1791] where multiple establishments existed, the establishment included

150 151 152 153 154 155 156 157

Ibid., p. xvi. Ibid. Ibid., pp. 4–5, 9, 46–60. Ibid., p. 10. Ibid. Ibid. Ibid., p. 24. Ibid., p. 19.

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the churches of every denomination and sect with a sufficient number of adherents to form a church.”158 In states with Protestant establishments, “there were either no Jews and Roman Catholics or too few of them to make a difference; and where Christianity was established, as in Maryland which had many Catholics, Jews were scarcely known.”159 In fact, even where there were Jewish congregations, “state law reflected obliviousness to their presence rather than deliberate discrimination, and no evidence exists to show that Jews were actually taxed to support Christianity.”160 In sum, having discounted the presence of all non-Christians in colonial America, he avers that the word “establishment” at the time of the Bill of Rights meant nonpreferential support of religion. Professor Levy then reviews the proceedings of the Constitutional Convention and the First Congress in light of this background in the various colonies. From the initial form of the Constitution itself, Levy derives a critical element of his overall church-state argument. There was no need for a Bill of Rights because the framers believed that “the new national government possessed only expressly enumerated powers, and no power had been granted to legislate on any of the subjects that would be the concern of a bill of rights.”161 Even when opponents of ratification pointed to the lack of a protection for individual rights as a worrisome omission, calls for a Bill of Rights “were not accompanied by a reasoned analysis of what these rights meant, how far they extended, and in what circumstances they might be limited.”162 In fact, according to Levy, “from the tens of thousands of words exchanged during the ratification controversy on the subject of a bill of rights no illumination can be gained as to the understanding and content attached at that time to particular rights.”163 This lack of specificity applied equally to non-establishment recommendations. “At the very least,” writes Levy, “one would expect frequent expressions of fear and concern on the subject. Yet the startling fact is that it was rarely mentioned at all and then only briefly.”164 He concludes, “One searches in vain for a definition in the 158 159 160 161

162 163

164

Ibid., p. 24. Ibid. Ibid. Ibid., p. 65, citing, in particular, Hamilton’s argument in The Federalist 84: “For why declare that things shall not be done which there is no power to do?” Ibid., pp. 66–7. Ibid., p. 67. He points out that a number of “state conventions . . . even recommended amendments to protect rights not known in their own constitutions.” These included, for example, Virginia and North Carolina, which sought protection for freedom of speech, a right that was absent from their constitutions. Ibid., p. 203, n. 19. Ibid., p. 67.

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rhetorical effusions of leading advocates of a bill of rights and in the debates of the state ratifying conventions.”165 Levy reaches two main conclusions from his review of the ratification debates. The first, which seems to be shared by almost all of the commentators on church-state history, is that “[n]o state or person favored an establishment of religion by Congress,”166 but since no one wanted one, there was no meaningful discussion of what might count as an establishment.167 Second, although four states – Virginia, New York, North Carolina, and Rhode Island – recommended amendments that “used nonpreferential language,” that fact does not mean that they favored nonpreferential aid to religion: Rhode Island, for example, “which never had an establishment and opposed every sort of one, did not likely use the language of nonpreferentialism as an indirect way of recommending that Congress be empowered to aid religion generally.”168 Rather, he concludes, “a widespread understanding existed in the states . . . that the new central government would have no power whatever to legislate on the subject of religion. . . . [R]eligion as a subject of legislation was reserved exclusively to the states.”169 Levy then moves on to the debates in the First Congress, which he describes as “sometimes irrelevant, usually apathetic and unclear. Ambiguity, brevity and imprecision in thought and expression characterize the comments of the few members who spoke.”170 Not surprisingly, he spends little time parsing the congressional dialogue, although he does note that the Senate, without any recorded debate, rejected proposals that contained nonpreferential language.171 “At bottom,” he argues, following his analysis of the ratification debates, “the amendment expressed the fact that the Framers of the Constitution had not empowered Congress to act in the field of religion.”172 He is, therefore, irked that nonpreferentialists make what he calls an “unreasonable even fatuous claim that the amendment permits congressional aid and support to religion in general or to all denominations 165 166 167

168 169 170 171 172

Ibid. Ibid., p. 73. Levy here admits that “most of the few references to an establishment expressly or in context referred to the preference of one church or sect or religion above others.” But, he asserts, “This fact taken by itself proves little.” Ibid. Levy does not expand on why it proves so little. Ibid., p. 74. Ibid. Ibid., p. 79. Ibid., pp. 82–3. Ibid., p. 84.

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without discrimination, [which] leads to the impossible conclusion that the First Amendment added to Congress’s power. Nothing supports such a conclusion,” thunders Levy.173 Although Levy jousts with the nonpreferentialists over wordsmithing issues such as the use of “an” versus “the,”174 whether Madison really voted for a congressional chaplain,175 and other components of the O’NeillCord canon,176 he ultimately returns to his basic theme: “Black magic – not historical evidence, grammatical analysis, or logical deductions – black magic and only that can turn the First Amendment into a repository of government power. Plainly it limits power.”177 Congress, in Levy’s analysis of the historical evidence, did not have the power to aid religion before the First Amendment was adopted, and nothing about the process of ratification or amendment created such a source of power. Having thus identified the crux of the establishment clause as a confirmation that the federal government had no power to support religion, Levy needs to demonstrate how the incorporation doctrine provides the federal courts with the ability to withdraw such power from the state governments as well. His principal argument is an appeal to stare decisis, not the history of the Fourteenth Amendment: “To expect the Supreme Court to turn back the clock by scrapping the entire incorporation doctrine is so unrealistic as not to warrant consideration,” despite the nonpreferentialist “reactionaries [who] indulge their emotions in hoping for its demise.”178 (“[B]agging snarks on the roof of the Court’s building” is more likely.179 ) Levy is a bit more charitable toward Professors Corwin and McCloskey, “eminent scholars [who] have suggested that a principled distinction can be made between the establishment clause and [the First Amendment’s] other clauses” because it does not decrease an “individual freedom.”180 That is, “[f]reedom of religion . . . is unlike freedom from disestablishment.”181 Nevertheless, Levy, citing Madison’s Remonstrance, argues that ecclesiastical establishments 173 174 175

176 177 178

179 180 181

Ibid. Ibid., p. 93. Ibid., p. 97. Not surprisingly, he prefers Madison’s Detached Memoranda over his national days of prayer (pp. 99–100). Ibid., pp. 91–119. Ibid., p. 115. Ibid., p. 166. The “reactionaries” he mentions by name include Attorney General Edwin Meese and Professors James McClellan and Robert L. Cord. Ibid., p. 167. Ibid. Ibid., p. 168 (emphasis in the original).

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do, in fact, violate the principle of religious liberty, and he notes further the anti-Catholic violence of the nineteenth century as evidence of some of the potential ramifications of state-supported religion.182 Before completing his tour of the birth of the establishment clause, Levy stops briefly to address two of the nonpreferentialist’s favorite episodes: the First Congress’s recommendation of a national day of thanksgiving and prayer and the Northwest Ordinance. After acknowledging that even a Congress bereft of power over religion can “benefit or burden religion as an indirect result of the exercise of delegated powers,”183 he avers that the Northwest Ordinance’s proclamation that religion is “necessary to good government” could perhaps be justified (a “plausible pretext,” he calls it) on the basis of Congress’s “express power to make ‘needful rules’ for the governance of the Territories.”184 But Levy’s major not-so-originalist argument is that so many Americans were Protestants that the “values, customs and forms of Protestant Christianity thoroughly permeated civil and political life.”185 As a result, the Congress “acted unconstitutionally – by later standards.”186 This evolutionary theme, which is echoed by many strict separationists, is the simplest way for Levy to explain away some of the nonpreferentialist challenges. He thus concludes – despite 175 pages of detailed historical analysis built upon the foundation of Levy’s assertion that “nowhere in the making of the Bill of Rights was the original intent and meaning clearer than in the case of religious freedom”187 – that “[w]e should not want the ban on establishments of religion to mean only what it meant in 1789 or only what its framers intended.”188 Rather, he argues, we should combine the establishment clause’s “broad purpose” (i.e., to deny Congress power over religion) with a “little common sense,”189 which will find a middle ground between the “passionate separationists,” who can be too rigid, and the nonpreferentialists, who can be insensitive and “overaggressive.”190 In the end,

182 183 184

185

186 187 188 189 190

Ibid., pp. 168–71. Ibid., p. 172. Ibid., p. 173. He makes a similar argument about Jefferson’s treaty providing missionaries and churches for the Kaskaskia Indians, which could be justified under the treaty power at that time (but no longer because American Indians were granted citizenship in 1924) (p. 183). Ibid., quoting Thomas John Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), p. 219. Levy, The Establishment Clause, p. 173. Ibid., p. xv. Ibid., p. 175. Ibid., p. 176. Ibid., pp. 176–8.

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he posits, the Supreme Court must recognize that the “Constitution erected” a “wall of separation between government and religion,” what he calls “the policy embodied by the establishment clause.”191 Despite its “leaks, cracks, and its archways, the wall ranks as one of the mightiest monuments of constitutional government in this nation.”192 Close on the heels of Levy’s book were works by two law professors who believe that Levy’s dismissal of nonpreferentialism was either flatly wrong193 or ultimately right but for largely wrong reasons.194 Nonpreferentialist Gerard Bradley challenges Levy’s concept of multiple establishments; Levy, he asserts, is excessively committed to the Eversonian view that general assessments constituted establishments, “even if generally available and thus sect impartial[, which forces Levy] to invent the term multiple establishment to describe the post-revolutionary era of non-discriminatory assistance to all Protestant sects.”195 Yet the concept of multiple establishments based upon generally available aid, argues Bradley, is “historically an oxymoron” because the correct understanding of the word “establishment” shows that it incorporates sect preference as a necessary condition; if a general assessment was genuinely nondiscriminatory, it was not a multiple establishment; it was no establishment at all.196 Bradley’s analysis leads him to agree with Justice Rutledge on one (and notably only one) point: that the debate in the First Congress was so “sparse” because “the essential issues had been settled” and were universally understood.197 But while Rutledge meant that everyone was essentially channeling Madison’s strict separationist Memorial and Remonstrance, Bradley is equally positive that “everyone knew [non-establishment] meant no sect preference and agreed that it was an appropriate federal norm.”198 He reaches this conclusion by examining the “legal term establishment” as it was found in the states; intellectual history is certainly helpful, he notes, “but the tradition culminating in the religion clauses was legal and political, not speculative.”199 In reviewing the constitutions of various New England states, for example, he writes:

191 192 193

194 195 196 197 198 199

Ibid., p. 181. Ibid., p. 185. Gerard V. Bradley, Church-State Relationships in America (New York: Greenwood Press, 1987). Laycock, “Nonpreferential Aid.” Bradley, Church-State Relationships, p. 13. Ibid. Ibid., p. 19, quoting Everson, 330 U.S. at 42. Bradley, Church-State Relationships, 19. Ibid., p. 20.

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Massachusetts and New Hampshire expressed nonestablishment in precisely the same terms: “no subordination of any one sect or denomination to another shall ever be established by law.” . . . Vermont’s constitutions of 1777 and 1786 [forswear] partiality for or prejudice against, any particular class, sect, or denomination of men whatever. The preamble to the Connecticut organic act of 1784 said: “so . . . may be equally under the protection of the Laws.”200

Bradley concludes from these constitutional texts that the “men who wrote these provisions fully intended to disestablish religion and understood nonestablishment to be the effect of their work.”201 Accordingly, “nonestablishment indisputably meant no sect preference.”202 Similarly, the Anglican Church in the South had been “established because it enjoyed legal and political privileges other subordinate Protestant sects did not.”203 Bradley argues that the “proponents of disestablishment sought equality of Protestant sects, and when that was accomplished, nonestablishment conditions prevailed.”204 Ultimately, after surveying the proponents and opponents of state establishments, Bradley concludes that essentially no one in the 1780s, in any part of the country, suggested that establishment meant anything other than sect preference.205 Levy’s fellow anti-nonpreferentialist206 Douglas Laycock believes that Levy has incorrectly confused multiple establishments in the states with nonpreferential ones, in part because the New England states wanted them to look nonpreferential even though they were not.207 Laycock, noting that the framers appreciated what a true nonpreferential establishment would look like, concludes from an examination of the First Amendment that “when the Framers squarely focused on the choice between nonpreferential establishment and no establishment at all, they chose no establishment at 200 201 202 203 204 205

206

207

Ibid., p. 24. Ibid. Ibid. Ibid., p. 31. Ibid. “From Georgia to Vermont, whatever one’s view of the desirability of an establishment (and almost all were hostile to it by 1789), virtually everyone agreed . . . that establishment meant the legal superiority of one sect, with all others laboring under legal disabilities.” Ibid., p. 55. Multisyllabic nomenclature seems inescapable in church-state debates. Proto strict separationists in England and the colonies were disestablishmentarians, leading to opposition from Christian preferentialists committed to antidisestablishmentarianism, once rumored to be the longest word in the dictionary. Laycock, “Nonpreferential Aid,” p. 912. (“Levy and I agree that New England tried to cover establishment with a veneer of nonpreferentialism. I believe that he is fooled by that veneer and by his desire to show that the Framers were familiar with nonpreferential establishments.”)

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all.”208 The text of the establishment clause is the “best evidence of the Framers’ intent,” posits Laycock, and that text is the final language adopted by the Congress, which he then reads in light of drafts that were explicitly rejected. The Senate “had before it three very clear and felicitous ways of making the [nonpreferentialist] point,” including “Congress shall make no law establishing one religious sect or society in preference to others,”209 which was dropped in favor of the final Senate version (“Congress shall make no law establishing articles of faith or a mode of worship”), which, in turn, gave way to the current wording of the clause, which Laycock characterizes as “one of the broadest versions considered by either House.”210 After reviewing the rejected drafts, Laycock argues, “when the record reflects a textual choice as clear as this one, only extraordinarily clear evidence should persuade us not to follow the text,” which “forbids not only establishments but also any law ‘respecting an establishment of ‘religion.’”211 Laycock then rides roughshod over the nonpreferentialist trail. The Malbin/Cord claim that forbidding “an” establishment is different from forbidding “the” establishment is a mere “figleaf of a textual argument” that is “wrong for at least four reasons.”212 The most important reason, of course, is that Laycock’s textual argument “overwhelms the attenuated inference from the putative an/the distinction.”213 The others are: “second, Malbin assumes that the article in front of one noun – ‘establishment’ – critically changes the meaning of a different noun – ‘religion.’ . . . Third, there is no evidence whatever that anyone thought of Malbin’s hypothesized alternate draft or consciously chose ‘an’ over ‘the.’ Fourth, ‘an’ is perfectly consistent with the view that the amendment forbids any kind of establishment.”214 Cutting across the traditional debate between the nonpreferentialists and the strict separationists is another approach focused on the establishment clause as being merely a jurisdictional device. Steven Smith has made the most extensive argument for the “enhanced federalism” view that the religion clauses were “simply an assignment of jurisdiction over matters of religion to the states – no more, no less.”215 The title of his book,

208 209 210 211 212 213 214 215

Ibid., p. 912. Ibid., p. 881. Ibid. Ibid., pp. 881–2. Ibid., p. 883. Ibid. Ibid., p. 884. Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), p. 18.

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Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom, sums up his analysis of all of the nonpreferentialists and strict separationists who have sought (and found) substance in the substance-free religion clauses. Rather, he argues, “it is implausible to view [the religion clauses] as expressing a decision in favor of any substantive answer to [the] difficult and controversial question” of how either the federal government or the state government should relate to religion: such a “Herculean labor,” he asserts, would have prevented the Congress from reaching any consensus.216 Smith’s interpretation is grounded in his observation that “Americans in the late eighteenth century held contradictory positions at a basic level regarding the religion question.”217 Traditionalists believed that religion was an “essential” component of society and that it should be supported by government. In contrast, the “voluntarist” position, adopted by Jefferson and Madison as well as the dissenting religious groups, “agreed that a religious foundation was vital to the political and social order, but it insisted that governmental support was not essential, and indeed might well be harmful, to the cause of religion.”218 So many Americans held these mutually exclusive positions that agreement on any substantive answer to what Smith calls “the religion question” was virtually impossible, and so the First Amendment solution was solely jurisdictional, leaving the states to sort out any and all substantive issues.219 For Smith, the critical words are “respecting an establishment”; this language forbids Congress from taking any actions on the subject of establishments of religion, thus leaving the states free to make any and all decisions on “the religion question.” Read solely as an exercise in federalism, the establishment clause language could be embraced by both sides: “[V]oluntarists could support the religion clauses because they permitted the states to adopt a voluntarist position, as Virginia had recently done. Traditionalists could support the amendment precisely because it prohibited the national government from interfering with states like Massachusetts and Connecticut that adhered to the traditional portion favoring established religion.”220 While a number of scholars supporting this kind of jurisdictional interpretation of the religion clauses have suggested that the establishment clause 216

217 218 219 220

Ibid., pp. 34, 33. He argues further that “the original meaning is not relevant in principle but unknowable in practice,” as some have suggested, but, rather, “knowable but unresponsive to present demands” (pp. 47–8). Ibid., p. 19. Ibid., p. 20. Ibid., p. 21. Ibid.

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nevertheless contained some substantive limitations on federal power, Smith asserts that “the enactors of the religion clauses simply were not concerned with, and hence did not address, the question of Congress’s power over religion in federally controlled areas.”221 Federalist supporters of the Constitution showed no interest in the religion question because they thought that “Congress had no power to regulate religion in the first place.”222 While anti-federalists “were worried about national power vis-a-vis the ` states, Congress’s power to regulate religion in the territories was not their concern.”223 Smith then employs the nonpreferentialists’ armamentarium of various post–First Amendment cases of federal support for religion (congressional chaplains and Christian missions to the Indians, for example) to point out that since receiving such aid was not “equally available to all religions,” it should more reasonably be interpreted as Congress acting “in an ad hoc manner dictated by the particular circumstances, [since] it did not seem to regard itself as being legally constrained by any substantive principle of religious freedom.”224 Not surprisingly, Smith’s jurisdictional approach to the First Amendment leads him to see the incorporation doctrine as the “repeal of the religion clauses.”225 In fact, Smith asserts that there is “no originalist justification grounded in the First Amendment’s religion clauses . . . for holding even the national government to restrictions grounded in a jurisdictional arrangement that has long since been repudiated.”226 In the end, Smith concludes that the question “What is the meaning and scope of the principle of religious freedom embodied in the Constitution?” is “unanswerable on either historical or theoretical grounds.”227 Whereas Smith points to the intractability of church-state disagreements as the best evidence of the jurisdictional reading of the establishment clause, William Porth and Robert George arrive at a similar interpretive place via the “plain meaning” of the constitutional text itself.228 They focus on the 221 222 223 224 225 226 227

228

Smith, Foreordained Failure, p. 28. Ibid. Ibid. (emphasis in original). Ibid., pp. 30, 34. Ibid., p. 49. Ibid., p. 50. Ibid., p. 6. Smith writes: “My thesis . . . is that religious freedom, like many other matters of both personal and political concern, is inherently a prudential matter” (p. 16). William C. Porth and Robert P. George, “Trimming the Ivy: A Bicentennial ReExamination of the Establishment Clause,” West Virginia Law Review 90 (1987–8): 110. The authors distinguish their textual approach from “original intent,” which “misdirects our attention from something unitary, definite, and permanent – the constitutional text – to

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words “respecting an” as conveying the “obvious meaning . . . then as now [of] ‘regarding,’ or ‘having to do with,’ or ‘in reference to’” an establishment, thus calling “particular attention to the constitutional disentitlement of the federal government to make any law setting up an established church at the federal level or interfering with established churches (and the right of the people to opt to establish churches) at the state level.”229 Since “[n]o one denies that several state establishments existed at the time of the framing and ratification of the First Amendment,”230 and since some of those states had to ratify the establishment clause, the “historical context” allows the reader “to appreciate the prohibition which the establishment clause placed upon the federal government.”231 Meanwhile if the First Congress had sought to reach any of the other interpretative possibilities raised by either the nonpreferentialists or the strict separationists, it could have chosen language plainly reaching that result: “If one wanted to enforce a ‘no aid’ principle, one would forbid the government from making any laws ‘aiding’ or ‘advancing’ or ‘promoting’ a church or a religion.”232 Similarly, eighteenth-century nonpreferentialists could have prohibited “the government from treating different churches or religions unequally.”233 That these “obvious, clear verbal formulations” were not adopted convinces Porth and George that their plain meaning reading is the correct one.234 Such an approach to the establishment clause seems incompatible with the incorporation doctrine, and Porth and George boldly conclude that “nothing in the First or Fourteenth Amendments prohibits the states from establishing religions,” a position they acknowledge may “scandalize strict separationists and nonpreferentialists alike.”235 Unlike Smith, however, Porth and George

229

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232 233 234 235

something diverse indefinite, and changeable – the minds of (at the very least) hundreds of men” (p. 121). For other proponents of the enhanced federalism approach, see, e.g., Akhil Reed Amar, “Some Notes on the Establishment Clause,” Roger Williams University Law Review 2 (1996–7): 1–14 and sources cited therein. Porth and George, “Trimming the Ivy,” pp. 136–7. While they assert that the plain meaning approach is the best way to reach this conclusion, they note that “detailed historical research . . . reaches precisely the same conclusion,” citing, inter alia, Bradley, Church-State Relationships. Porth and George, “Trimming the Ivy,” p. 136. Ibid. Separately, they argue that a “failure to attend to an historical context which includes the significant fact of established churches in many of the ratifying states . . . can render the meaning of the words ‘respecting an’ opaque” (p. 138). Ibid., p. 137. Ibid. Ibid., pp. 137–8. Ibid., p. 138. They note, however, that their “interpretation is unlikely to shock historians.” If the clause is, nevertheless, incorporated, the best interpretation is that “both the federal

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do find a substantive element in the establishment clause, at least with respect to the federal government. Shunning both the strict separationist and nonpreferentialist camps, they argue that “embodied in the establishment clause is a choice to forbid an establishment of religion (i.e., a state church). It is not a choice to prevent federal aid to religions or even to require that such aid be even-handed.”236 Again, they argue, if the First Congress had wanted to incorporate a concept of nonpreferentialism, it could have done so; that it did not leaves a prohibition only of a single, national church. While Porth and George focus on the importance of the original meaning of the words “respecting an,” the battle also continues over exactly what the framers might have been thinking about when they used the word “establishment” – and what they meant to do with any establishments that did come to mind. Thomas Curry brings a cache of primary source materials to these disputes in his 1986 book, The First Freedoms: Church and State in America to the Passage of the First Amendment, an impressively detailed study of the rhetoric surrounding church-state interactions in the various colonies and states as they evolved from early colonial settlements to the enactment of the Bill of Rights.237 Curry not only marshals evidence against the enhancedfederalism school of thought but also launches one of the sharpest recent disputes, which takes place between Curry and law professor Douglas Laycock. Curry asserts that “Americans at the time were unanimous in their understanding of ‘establishment of religion’ as a government preference for one church, sect or religion,”238 while Laycock counters: “That many of the framers’ generation understood the difference between exclusive and nonpreferential establishments seems as certain as can be for a proposition about what people were thinking two hundred years ago.”239 Colonial Americans, writes Curry, inherited a notion of establishment based on the role of England’s Anglican Church, which was “officially approved and supported by the government,” and which “excluded nonAnglicans, who probably constituted less than 10 per cent of the population, from positions of power, privilege and social influence.”240 Modern

236 237 238

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and state governments are prohibited from one thing and one thing only – establishing a religion [meaning] government adoption of one religion as the official state religion” (p. 151; emphasis in original). Ibid., p. 140. Curry, The First Freedoms. Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (New York: Oxford University Press, 2001), p. 15. Laycock, “Nonpreferential Aid,” p. 906. Ibid., p. 105.

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scholars seeking to understand colonial church-state vocabulary prior to the Revolution must look to Massachusetts, Connecticut, and New York, argues Curry, because they were “the colonies that experienced the sharpest controversies between Anglicans and non-Anglicans.”241 The church-state situation was relatively quiet elsewhere. “Virginia, the Carolinas, Maryland, and Georgia established the Church of England and taxed all residents for its support,”242 and four colonies – Delaware, New Jersey, Pennsylvania, and Rhode Island – “established no religion, provided public support for no ministers, and admitted all Protestants on an equal basis.”243 Finally, New Hampshire’s “decentralized system, wherein local towns handled their own religious affairs, did not precipitate colony-wide controversies.”244 Where they did occur, the colonial debates were not in the spirit of what we have come to see as the traditional American battle to separate church and state – in New England, for example, the interested parties primarily clashed over which church should enjoy the benefits of establishment, the Congregationalists or the Anglicans. This is not to say that the New England Congregationalists equated their system for church support with the Church of England; rather, as Curry notes, “their discourses presupposed at least two kinds of establishment, i.e. one good (theirs) and one bad (England’s).”245 But the vocabulary shifted as the revolutionary era approached; Americans became increasingly sensitive to what they believed was “English Tyranny,” creating an environment in which “New Englanders no longer needed to defend their institutions from Anglican aggression, but rather,” as Curry writes, “to disassociate themselves from ecclesiastical tyranny.” 246 In the face of growing attacks from Baptists and others (who were technically exempted from paying to support Congregational churches but often harassed to do so247 ), John Adams and other defenders of New England’s Standing Order asserted that their “mild and tolerant systems had nothing in common with the tyrannizing English establishment, the one Adams [had] identified with ‘creeds, tests, ceremonies, and tithes.’”248 241 242 243 244 245 246 247 248

Ibid., p. 106 Ibid. He notes that these colonies did not limit political office to Anglicans, however. Ibid., p. 106. Ibid. Ibid., p. 106. Ibid., p. 133. Ibid., p. 131. Ibid., p. 133. Curry quotes Adams as saying, the “laws of Massachusetts were the most mild and equitable establishment of religion that was known in the world, if indeed they could be called an establishment” (p. 131).

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By the time of the Revolution, New England Congregationalists had given up the concept of the “good” establishment, arguing instead that the town-by-town support of churches (virtually all of which turned out to be Congregational) was not a religious establishment at all, despite vigorous arguments to the contrary by the Baptists.249 Curry concludes that the Baptists and the Congregationalists had a common definition of establishment – that is, state preference for one church – but the Baptists complained of a de facto establishment of Congregationalism, whereas the Congregationalists pointed to the possibility that support could be provided to various churches, which they contrasted with the establishment of the Anglican Church of England.250 The Revolution precipitated considerable changes in American churchstate interactions, notes Curry, and “no state surpassed Virginia in speed and extent of alterations in Church-State relations.”251 In particular, by the mid1780s, it had “abolished test oaths for office, eliminated state restrictions on religious freedom and put churches on a purely voluntary footing.”252 Curry cautions, however, that Virginia “cannot be said to serve as a model” for other states, since it “did not soon accept the same definitive solutions, especially of abandoning tests.” But the Old Dominion could certainly be seen as “a microcosm of the ferment taking place throughout the new nation.”253 Once Virginia embraced a broad commitment to religious liberty (as opposed to mere toleration of dissenting churches) in the 1776 Declaration of Rights, the critical issue became whether religion would be supported “voluntarily or by a ‘general assessment,’” that is, a tax “permitting each taxpayer to designate the minister to whom he wished his contribution allocated.”254 In looking at these debates, Curry concludes that the word “establishment” meant “exclusive state preference for one sect or church,”255 a definition he finds applicable in revolutionary Virginia as well as throughout the other states. Curry argues that “[w]hether a general assessment constituted an establishment of religion was never a bone of contention.”256 While a few opponents of general assessment (mostly Baptists and Presbyterians) used

249 250

251 252 253 254 255 256

Ibid., p. 175. Ibid. He notes that Connecticut Congregationalists were less reluctant to call their approach an establishment (p. 183). Ibid., p. 134. Ibid. Ibid. Ibid., p. 136. Ibid., p. 146. Ibid.

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the term “establishment,” including Madison – who called the assessment bill “an establishment of Christianity” – they more commonly “tended to see it as merely a covert way of aiding the Anglican Church and consequently, were little interested in the question of establishment at all.”257 Meanwhile, those favoring the assessment, according to Curry, “showed an equal lack of interest in defending it as a basically different kind of establishment. Rather they took pains to demonstrate its liberal, equitable, and non-discriminatory nature.”258 In the end, writes Curry, “the crux of the dispute” was whether the bill “violated the Declaration of Rights.”259 Ultimately, the bill, which was never brought to a vote, was buried under an avalanche of petitions, which ran 90–11 in opposition.260 Massachusetts also generated considerable church-state commentary during the debates surrounding its 1780 constitution, but change was not in the New England air. On financial support for churches, the constitution provided what Curry calls a general assessment, although that term was not used.261 Taxes would be collected for “‘public protestant teachers of piety, religion and morality,’” and taxpayers could designate which minister they chose to support,262 a system that theoretically placed all Protestant churches on an equal footing. Curry argues that the disputes over this provision – led principally by the Baptists – occupied the same intellectual and theological arena as those in Virginia. That is, rather than viewing the Massachusetts system as an establishment (or not) of religion, the “voluminous discourse . . . focused almost entirely on the meaning of freedom of religion.”263 Unlike their Congregationalist predecessors, who defended their “mild and tolerant” system as the ideal form of establishment, Revolutionary-era Congregationalists avoided the language of establishment altogether.264 Meanwhile, the Baptists derided it as an establishment of Congregationalism, in part because the Baptist ministers “could not in conscience claim money that had been collected by force”265 and, therefore, could not participate in the assessment program. And so, Curry concludes, “both 257 258 259 260

261 262 263 264 265

Ibid., p. 147. Ibid., pp. 147–8. Ibid., p. 148. Ibid., p. 143. Curry observes, “Judging by the multitude of other petitions submitted to the legislature, [Madison’s Memorial] did not in its contemporary setting enjoy the preeminence it would acquire over time.” Ibid., p. 164. Ibid. Ibid., p. 172. Ibid., pp. 174–5. Ibid., p. 171.

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parties to the Church-State dispute in Massachusetts agreed that an establishment of religion signified a state preference for one denomination, even as they disagreed on whether the state actually made such a preference.”266 Then, after reviewing church-state debates in other locales, Curry restates his basic definitional point: “[T]he image of an establishment that continues to dominate in the minds of Americans during the revolutionary period was a traditional one modeled on the Anglican establishment in England,”267 and it was this use of the term that would be carried into the debates of the First Congress when the Bill of Rights was introduced. Curry ultimately applies his insights to those debates in the First Congress, which he describes with words such as “inattentiveness and absentmindedness”; in the end, he believes that they, at most, “cast a modicum of light on the meaning of . . . the First Amendment.”268 Pointing out that “Congress was not trying to resolve concrete disputes, but merely strengthening safeguards against possible future adversity,” Curry argues that the provisions of the First Amendment “did not represent the triumph of one particular party or specific viewpoint over a clear or entrenched opposition, but rather a consensus of Congress and nation.”269 The representatives brought a shared vocabulary and a common set of church-state assumptions to the First Congress. These included a view of “Church-State relations within the framework of the Christian or Protestant society.”270 Curry also notes that “contemporary comments on an establishment of religion . . . followed virtually a uniform style[, that is,] an exclusive government preference for one religion.”271 This observation leads Curry to what he calls “a paradox to the modern historian.”272 For while he acknowledges that “during the revolutionary period, the only serious Church-State conflicts had to do not with exclusive state preference for a single religion, but with proposals for nonpreferential state support of many religious groups,” as in the general assessment approaches debates in Virginia and Massachusetts, Curry nevertheless believes that the First Congress (James Madison included) 266

267 268 269 270 271 272

Ibid., p. 175. Curry further notes that “the inhabitants of Massachusetts failed to envisage a society composed of people other than Protestants – and strict sabbatarian Protestants at that” (p. 177). He points out that even the Rev. Isaac Backus, outspoken Baptist critic of the Massachusetts system for church support, believed that only Protestants should be permitted to hold public office (pp. 170, 177). Ibid., p. 192. Ibid., pp. 194, 199. Ibid., pp. 193, 194. Ibid., p. 196. Ibid., p. 197. Ibid., p.198.

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“apparently ignored this crucial question . . . [and] concentrated on exclusive or preferential government aid to religion – something that did not exist in America at the time and had not a public-defender in the land.”273 In short, no one was seeking what the establishment clause banned – that is, a “national religion” in Madison’s words – while there was considerable disagreement over the appropriateness of the general assessment approach. The specific language employed by the First Congress was therefore not very important. “[A]ll Americans,” argues Curry, “could accept ‘phraseology’ protecting the ‘rights of conscience,’ or banning the imposition of ‘articles of faith’ or the establishment of one sect in preference to another.’”274 The difficulty is that they “disagree over the substantive meaning of such terms,” according to Curry:275 “A majority of Virginians, for example, had clearly demonstrated that in their view a general assessment violated the ‘rights of conscience,’ while a majority of the inhabitants of Massachusetts obviously felt it did not.”276 This sharp disagreement never materialized during the congressional debates because, in Curry’s view, “all believed that such matters pertained to the states, and . . . they were just making explicit the fact that the federal government had nothing to do with religion.”277 The desultory debate in the First Congress thus seems so frustratingly uninformative because there was no occasion for a “collision of [these] differing views as to what constituted a violation of ‘rights of conscience’ [to take] place.”278 Curry’s interpretation runs headlong into the contentious modern battleground between the strict separationists and the nonpreferentialists, virtually all of whom believe that the First Amendment directly addressed the conflict over nondiscriminatory support of religion. The Senate debates, where several proposed amendments specifically employed preferential language, provide significant ammunition for both sides. Curry disagrees, highlighting

273 274 275 276 277 278

Ibid. Ibid., p. 202. Ibid. Ibid. Ibid. Ibid. As to the proposal that “no State shall infringe the equal rights of conscience,” Curry notes that “neither [Madison] nor the members of the House detected in the proposal an invitation to the federal government to pass judgment on existing Church-State arrangements in the states.” A possible explanation is “the almost total obliviousness on the part of the House to Church-State dissension in New England, the only real potential source of conflict between state and federal governments in the event of passage of the amendment in question” (p. 205).

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“several problems for the historian.”279 Following Levy and others, Curry maintains that “not a shred of evidence exists to verify that anyone wanted the new government to have power in matters of religion.”280 Curry also argues that if the use of exclusive or preferential language in some of the proposals is assumed to permit nondiscriminatory aid, as argued by the nonpreferentialists, people such as Madison and Patrick Henry will be “force[d] into absurd historical positions [that] contradict . . . all available evidence about their beliefs.”281 Madison’s initial proposal spoke of prohibiting a “national religion,” acknowledges Curry, but it would be difficult to imagine that he “was prepared to allow the federal government power over religion that he would not grant to his own state.”282 Moreover, the idea that Patrick Henry’s proposal that “no particular religious sect . . . be favored . . . in preference to others” would allow federal tax support for religion “contradicts his most vehemently held beliefs,” asserts Curry, especially since he and his anti-federalist compatriots “feared, almost to the point of paranoia, the power of the federal government.”283 But Curry is equally sure that the rejected Senate version did not provide the kind of comfort to the strict separationists that Pfeffer, Laycock, and others assert. Finding any sort of nonpreferentialist/strict separationist dispute in the First Congress is a mistake, argues Curry, because it “casts the Massachusetts Congregationalist Fisher Ames [who proposed that “Congress shall make no law establishing religion”] in the doubtful historical role of originator of the supposedly sweeping House version and opposed to those senators who purportedly championed the ‘narrow’ one.”284 To comprehend what was really going on during the adoption of the First Amendment, “one has to dispense with two assumptions common to modern commentators”:285 The first . . . is that Americans during the colonial and revolutionary eras made a conscious distinction between two kinds of establishment of religion, between an exclusive state preference for one Church and a non-exclusive assistance to all churches – what historians have subsequently described as a “multiple establishment.” The second is that Americans during the same periods actually experienced both kinds of establishment. 279 280 281 282 283 284 285

Ibid., p. 208. Ibid. Ibid., p. 208. Ibid., p. 209. Ibid. Ibid. Ibid.

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The so-called multiple establishments in New England spotted by Levy were never acknowledged as such, argues Curry. General assessment forms of aid to religion either were not establishments at all or were, in fact, de facto establishments of the numerically dominant church, like the Congregationalists in New England.286 And in Virginia, the Baptists and other opponents of the general assessment proposal had a “common suspicion that [it] amounted to no more than a ruse to aid the Anglican Church[, which] strengthened their assumption that it represented an extension of the traditional establishment.”287 In fact, there are “abundant examples of writers using the concept of preference, when, in fact, they were referring to a ban on all government assistance to religion.”288 Why? Not only were they “employing an inherited terminology,” but, in fact, they “never changed their image of establishment.” As a result, the debates in the First Congress, especially those in the Senate, “can be seen as a discussion about style, not substance.”289 The evidence best shows “a discussion about how to state the common agreement that the new government had no authority whatsoever in religious matters.”290 Not surprisingly, Curry also has no enthusiasm for the enhancedfederalism argument because, in his view, “in the understanding of Americans at the time, there were no state establishments to protect.”291 Based on his analysis of the use of the term “establishment,” Curry not only concludes that the enhanced-federalism argument fails because there were no state establishments to shield from federal interference, but also asserts more broadly that “[n]o group in America at the time would have defended an 286

287 288 289

290 291

Regarding New England, Curry writes, “[N]o evidence sustains the viewpoint that in so doing they saw themselves as voting for a permissible, non-exclusive establishment. They never describe themselves as designing an establishment at all” (p. 213). Ibid., p. 211. Curry describes the debate in Maryland in the same fashion. Ibid. Ibid., p. 213. Curry notes, in particular, that “Baptist Isaac Backus, the most dedicated opponent of the New England ecclesiastical system, mistakenly believed that the First Amendment actually read that ‘Congress shall make no law establishing articles of faith, or a mode of worship,’ but he happily accepted that wording. This language adequately represented his aspiration for Church and State, and he continued to believe that Massachusetts’s provision of tax support for churches – even on a non-discriminatory basis – violated such a ban” (p. 214). Ibid., p. 215. Curry, Farewell to Christendom, p. 41. In taking on the enhanced federalism interpretation proponents, Curry refers specifically to Smith’s Foreordained Failure; Akhil Reed Amar, “The Bill of Rights as a Constitution,” Yale Law Journal 100 (1991): 131; and “Rethinking the Incorporation of the Establishment Clause: A Federalist View,” Harvard Law Review 105 (1992): 703.

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establishment of religion” at either the state or federal level.292 That is, even New England’s Standing Orders (i.e., town-by-town tax assessments for the support of churches) were neither supported nor attacked as “establishments,” and, therefore, they needed no protection from federal laws “respecting” establishments of religion. He writes, “Massachusetts, Connecticut, and New Hampshire did not legislate establishments of religion, and the supporters of the Church-State systems there would have vigorously denied that they constituted an establishment of religion.”293 Moreover, he argues, “[t]wo of the perceived beneficiaries, Massachusetts and Connecticut, manifested no interest in an amendment regarding religion. They neither proposed an amendment dealing with establishment nor ratified the First Amendment at the time.”294 As to the broader subject of religion, the entire Constitution was “an exercise in federalism,” writes Curry, and there is no reason to think that the New Englanders believed that it was important to add yet another layer, especially since Connecticut’s Roger Sherman spoke in Congress about the fact that the establishment clause was “altogether unnecessary.”295 In the end, Curry’s conclusion is that the religion clauses were not intended to resolve specific church-state issues; but, rather, “the passage of the First Amendment constituted a symbolic act, a declaration for the future, an assurance to those nervous about the federal government that it was not going to reverse any of the guarantees for religious liberty won by the revolutionary states.”296 To ask more of the religion clauses, claims Curry, is “to overburden them.”297 Legal historian Philip Hamburger also brings a wealth of primary source material to illuminate church-state issues, and he comes at the establishment clause from yet another direction – namely, he seeks to understand how Americans came to interpret the First Amendment in terms of the 292 293 294 295

296 297

Curry, Farewell to Christendom, p. 129, n. 28. Ibid., p. 42. Ibid. Ibid. Curry is especially unhappy with the enhanced federalism argument because, in his view, “it obscures one of the great advances in Western civilization. The ideas put forth so passionately by Roger Williams and so prudently by William Penn lit fires of enlightenment in thousands of colonial minds. They inspired the conviction that religious belief would be true and vibrant only if it were free and voluntary” (p. 43). He thus notes with disappointment that to “reduce this movement, one that broke with the practice of a millennium-and-a-half of Christendom, to a scheme to protect the dying remnants of the petty tyrannical New England Church-State systems represents a lamentable loss of historical wisdom” (p. 44). Ibid., p. 216. Ibid.

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concept of a “separation of church and state,” which he believes is “a notion very different from disestablishment.”298 In carefully surveying the Protestant dissenting groups that led the disestablishmentarian charge in various states, Hamburger points out that they “did not demand a separation of church and state,”299 which, he notes, “was an old anticlerical, and, increasingly anti-ecclesiastical conception of the relationship between church and state.”300 In fact, the dissenters had to defend themselves against the accusation that in their desire for disestablishment they were seeking a separation of religion and government that would “undermine the moral foundation of government.”301 Dissenters “could not deny that there was a connection between religion and government [and] they agreed with establishment writers that religion and especially the religion of their country provided an essential moral basis for government, and they assumed that government ought to govern in sympathy with Christianity to the extent compatible with religious freedom.”302 The kinds of sympathetic governance supported by the dissenters included laws enforcing “moral duties,” such as Sabbath legislation, oaths taken in court, blasphemy laws, and marriage laws. According to Hamburger, the eighteenth-century anti-establishment dissenters thus “hoped to constrain governmental and especially legislative power,” while, at the same time, they “did not attempt to limit churches or . . . deprive government of the moral influence of Christianity.”303 They typically campaigned for two things: “One type of demand, for equal rights, was a request for the freedom from laws that discriminated on the basis of religious differences. The other . . . , for a freedom from legislation that took cognizance of religion, was a request that law take no notice of religion.”304 298

299 300 301 302 303 304

Hamburger, Separation of Church and State, p. 3. He notes further that “[r]ather than simply forbid civil law respecting an establishment of religion, [the] concept of the separation of church and state has more ambitiously tended to prohibit contact between religious and civil institutions.” Ibid., p. 89. Ibid., p. 10. Ibid., p. 66. Ibid., p. 73. Ibid., p. 94. Ibid. See also Philip A. Hamburger, “Equality and Diversity: The Eighteenth Century Debate about Equal Rights and Equal Protection,” Supreme Court Review (1992): 347– 55. Hamburger points out that this version of anti-establishment advocacy divided the evangelicals from the Quakers and other “peace churches” because an equality/nocognizance approach could threaten legislative exemptions “from military duty and from other legal requirements incompatible with Quaker beliefs.” Hamburger, Separation, p. 93.

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Hamburger sees these twin goals emerging from a vocabulary developed during earlier battles for religious freedom. As he describes in greater detail in a 1992 article, Hamburger observes that eighteenth-century Americans distinguished between “[e]qual civil rights [which was] a standard demanding that civil law treat individuals the same – that it not distinguish among individuals on the basis of religious difference” and the concept of “equal protection of the laws [which] was a lesser degree of equality – an equality only of the protection provided by law for natural liberty.”305 By the time of the Constitution, writes Hamburger, “both dissenters and members of the establishments . . . argued that not only constitutions but also, more generally, governments should protect individuals in the free exercise of their religion.”306 There remained, however, a continuing effort by “evangelical dissenters . . . [to secure] constitutional guarantees against establishment privileges.”307 The First Amendment, which Hamburger calls the “most prominent” version of “the no-cognizance standard,”308 emerged from these arguments, which suggests that it resembles the position espoused by James Madison in the Memorial and Remonstrance: “in matters of Religion no man’s right is abridged by the institution of Civil Society, and . . . Religion is wholly exempt from its cognizance.”309 Hamburger rejects both the enhanced federalism argument and the assertion advanced by Curry and others that the First Amendment was more about style than substance, concluding instead that the First Amendment “was probably the most carefully drafted” of the various no-cognizance approaches promoted at the time in that it prohibited laws “respecting an establishment of religion” rather than Samuel Livermore’s more sharply worded proposal to ban “laws touching religion” altogether. Livermore’s version, Hamburger asserts, “came close to Madison’s perspective in 1785,” when he wrote the Memorial.310 A principal concern of those taking the “no-cognizance” approach was how to balance a desire for a prohibition of laws concerning religion, on the one hand, while, on the other, allowing the legislature to “protect individuals in the free exercise of religion,” which was a goal shared by many in both established and dissenting churches.311 Thus, Hamburger believes that the final form 305 306 307 308 309 310 311

Hamburger, “Equality and Diversity,” p. 299. Hamburger, Separation, p. 101. Ibid., p. 92. Ibid., p. 101. Ibid., p. 100. Ibid., p. 101. Ibid.

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of the establishment clause was very carefully crafted so that it would not necessarily forbid laws recognizing marriages, protecting religious freedom, or allowing legislative exemptions (e.g., military exemptions for Quakers), all of which could have been called into question by a strict no-cognizance approach such as Livermore’s “no touching.”312 Hamburger concludes from his analysis that the enhanced federalism argument is incorrect, at least insofar as it suggests that the establishment clause was not meant to bar a federally established church. “Versions of the no-cognizance standard had been much discussed as barriers to state establishment,” he writes, “and it therefore is difficult to believe that when Americans employed such a standard in the federal constitution, they did not understand it to prohibit a federal establishment.”313 More directly to the point of his book, Hamburger also concludes – and here he seems to track the conclusions that both Levy and Curry reach – that “the constitutional demands of dissenters and their allies . . . had little to do with a separation of church and state. . . . Instead, [the] dissenters typically sought constitutional limitation on the power of government, particularly on government’s power to legislate an establishment.”314

Will This Debate Ever End? After reviewing this often acerbic and chronically controversial scholarly literature, the question that emerges is not: What was the original meaning of the establishment clause? but, instead: Will there ever be agreement on any such interpretation? In the next chapter, we need to determine

312 313

314

See ibid., pp. 106–7. Ibid., p. 106, n. 40. He argues further, “[T]here is no evidence that advocates of an enumerated right against a federal establishment felt that the First Amendment failed to accomplish this goal. On the contrary, Americans (including religious dissenters) were confident that the amendment prohibited a federal establishment of religion.” Ibid., p. 107. Hamburger subsequently argues that the concept of separation of church and state “first became popular among relatively secular, political, and anticlerical Americans” in the nineteenth century “even as it remained disreputable among religious dissenters, who continued patiently to seek the rather different religious liberty they had been demanding for so very long” (p. 110). Hamburger continues, “The idea [of separation] so frequently portrayed as one of Jefferson’s profound contributions to religious liberty was introduced into the presidential campaign of 1800 by leading Republican intellectuals as a means with which they hoped simultaneously to attract antiestablishment votes and to browbeat Federalist clergy for preaching about politics” (p. 111).

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whether there is, in fact, a historical high ground or whether the evidence is so susceptible of multiple readings in an environment in which preconceived notions are almost impossible to set aside that church-state originalism is doomed endlessly to repeat the strict separationist-nonpreferentialistenhanced federalism debate.

5 Original Meanings Where Is the Historical High Ground?

Amendment Proposals Ever since Justices Rutledge, Black, and Waite seized upon their versions of strict separationist history, a great mass of church-state scholarship has been devoted to trying to answer the late-nineteenth- and twentieth-century question of – Did the establishment clause build a wall of separation between church and state or does it permit nonpreferential aid to religion? – with remarkably skimpy eighteenth-century materials. And we have compounded the problem in the church-state literature by hyping the role of the Bill of Rights in creating modern civil liberties via eye-catching titles like “The First Freedom,”1 which suggest that something important and definitive was going on when the Founding Fathers met to adopt the religion clauses. But if we are willing to suspend belief, at least for the sake of argument – that is, to stop looking for the proof texts of modern propositions in the original materials – it may be possible to paint a reasonably clear picture of what was going on when the First Congress had its brief and desultory debate on the establishment clause. The First Congress had a number of important things to do, and sorting out the proper relationship between church and state was nowhere 1

A few examples include Milton R. Konvitz, “Separation of Church and State: The First Freedom,” Law and Contemporary Problems 14, no. 1 (Winter 1949): 44–60; James Wood, Jr., ed., The First Freedom: Religion and the Bill of Rights (Waco, Tex.: J. M. Dawson Institute of Church-State Studies, 1990); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986); William Miller, The First Liberty: Religion and the American Republic (New York: Alfred A. Knopf, 1986); and Charles C. Haynes, Sam Chaltain, and Susan M. Glisson, First Freedoms: A Documentary History of First Amendment Rights in America (New York: Oxford University Press, 2006).

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on that list. Getting down to the business of creating a working government of the United States was the mission of the First Congress, and there was virtually no interest among the majority of the members in discussing amendments.2 What eventually drove the consideration of the religion clauses was a different task from laying a foundation for modern civil liberties or delicately balancing secular and religious interests; rather, the Congress grudgingly took up the issue of a Bill of Rights simply to pass whatever amendments were necessary to appease the states that required or requested them so as to avoid calling the entire constitutional enterprise into question. Of the 210 separate amendments recommended either officially or unofficially by the states, covering almost one hundred substantive items,3 only six of the states had dealt with the subject of religion; four of these included non-establishment clauses, and one state, Maryland, specifically rejected such a provision. Virginia and North Carolina submitted identical proposals (“no particular Religious Sect or Society ought to be favored or established by Law in preference to others”); New York’s version was nearly the same (“no Religious Sect or Society ought to be favoured or established by law in preference of others”); New Hampshire suggested something considerably different (“Congress shall make no Laws touching Religion”); and Maryland considered but did not approve a non-establishment amendment (“there [shall] be no national religion established by law”).4

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As Labunski records, “they argued that discussion of the amendments would take too much time and delay other important business such as the establishment of the judiciary, the executive departments, and the revenue system. . . . William Loughton Smith of South Carolina . . . said that Madison ‘had done his duty [in proposing amendments]: He had supported his motion with ability and candor, and if he did not succeed he was not to blame.’” Richard Labunski, James Madison and the Struggle for a Bill of Rights (New York: Oxford University Press, 2006), p. 195. Bernard Schwartz, The Bill of Rights: A Documentary History (New York: Chelsea House, 1971), vol. 2, p. 983, citing Judge Dumbauld. For a discussion of the “Gentlemen’s Agreement” by which the original Constitution was ratified with the understanding that amendments would be forthcoming, see Levy, who notes that “the Constitution was ratified only because crucial states, where ratification had been in doubt, were willing to accept the promise of a bill of rights in the form of subsequent amendments to the Constitution.” Leonard Levy, Original Intent and the Framers Constitution (New York: Macmillan, 1988), p. 163. See also Robert G. Natelson, “The Original Meaning of the Establishment Clause,” William and Mary Bill of Rights Journal 14 (October 2005): 73–140. A convenient collection of original materials is found in Neil H. Cogan, ed., The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (New York: Oxford University Press, 1997), chapter 1. See also Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols., 2nd ed. (Philadelphia: J. B. Lippincott, 1937), and Helen E. Veit, Kenneth Bowling, and Charlene Bangs Bickford,

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There is precious little recorded debate in the state ratification conventions that bears directly on proposed establishment clauses, but we can see that concerns about a national church were raised in several states.5 “Scarcely had the war closed,” wrote a nineteenth-century church historian, “when rumors were afloat . . . which seemed to intimate the purpose of the Presbyterian Church to seek an alliance with the state. . . . It was, in fact, the only denomination which, from position and influence, could be considered . . . a candidate for the special favors of the state.”6 This historian, E. H. Gillett, calls the concerns “utterly ungrounded,” but does note that, prior to the Revolution, two of America’s most populous denominations, the Presbyterians and the Congregationalists, had held a joint annual convention, which may have been seen as potentially leading to the creation of an even larger amalgamated church with national aspirations.7 Moreover, McLoughlin records that many in New England “thought it possible that Congress might try somehow to create a Calvinistic establishment led by Presbyterians and Congregationalists.”8 Although the American Presbyterian Church officially renounced the principle of establishment in May 1788, in the middle of the debates over ratifying the Constitution, it is not surprising

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eds., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore, Md.: Johns Hopkins University Press, 1991). Arguably, one other state proposed a potential precursor to the establishment clause. Rhode Island did not ratify the Constitution until 1790, the year after Congress approved the establishment clause. In ratifying, it issued a declaration of principles that included a non-establishment clause virtually identical to the ones offered several years before by Virginia, North Carolina, and New York. See Anson Phelps Stokes, Church and State in the United States (New York: Harper Brothers, 1950), vol. 1, pp. 609–10. Levy calls it a “superfluous flourish which had no effect on the framing of the First Amendment.” Leonard Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), p. 73. For a discussion of anti-federalist concerns about topics relating to religion leading to the ratification debates, see Gary D. Glenn, “Forgotten Purposes of the First Amendment Religion Clauses,” Review of Politics 49, no. 3 (Summer 1987): 340–67; and Vincent Phillip Munoz, “The Original Meaning of the Establishment Clause and the Impossibility of Its ˜ Incorporation,” University of Pennsylvania Journal of Constitutional Law 8 (2006): 585, 614–19. Although a few people commented on the risk of a national establishment, Levy has pointed out that “one would expect frequent expression of fear and concern on the subject. Yet the startling fact is that it was rarely mentioned at all and then only briefly.” Levy, Establishment Clause, p. 67. E. H. Gillett, History of the Presbyterian Church in the United States of America, 2 vols. (Philadelphia: Presbyterian Publication Committee, 1864), vol. 1, p. 200. Ibid. According to McLoughlin, “many thought it possible that Congress may try somehow to create a Calvinistic establishment led by Presbyterians and Congregationalists.” William G. McLoughlin, New England Dissent, 1630–1833: The Baptists and the Separation of Church and State (Cambridge, Mass.: Harvard University Press, 1971), p. 852, n. 45. McLoughlin, New England Dissent, p. 852, n. 45.

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that some people at the time may have worried about the possibility of a Presbyterian power play.9 And, as we will see, there were fears that other churches might seek to become the national church in the future. Whatever the Presbyterians and other churches may have been thinking about the subject of establishment (and there is no evidence that any sought such a position), the possibility of a national church created anxiety among a number of the anti-federalists at the conventions. In January 1778, Connecticut’s Oliver Wolcott needed to advance his opinion that “Knowledge and liberty are so prevalent in this country, that I do not believe that the United States would ever be disposed to establish one religious sect, and lay others under disabilities.”10 This view must have carried the day, for there was no anti-establishment clause proposed by Connecticut. Nearly half a year later, at the Virginia convention in the summer of 1788, Governor Randolph began his remarks on the subject by saying, “Freedom of religion is said to be in danger. . . . It is said that, if the exclusion of the religious test were an exception from the general power of Congress, the power over religion would remain. I inform those who are of this opinion, that no power is given expressly to Congress over religion.”11 He then employed a sociological argument to show why a non-establishment clause was unnecessary. He averred that “there are now so many [sects] in the United States, that they will prevent the establishment of any one sect.”12 Patrick Henry nevertheless led the charge for amendments, countering Madison’s technical argument that “the government has no jurisdiction” over religion13 with the emotional oratory for which he was famous: “That sacred and lovely thing, religion, ought not to rest on the ingenuity of logical deduction.”14 Madison reiterated the federalism point in an oft-quoted phrase – “There is not a shadow of right in the general government to intermeddle with 9

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Ibid., pp. 200–1. According to Gillett, “it had been represented to Synod [the governing body] that the Presbyterian Church suffers greatly in the opinion of other denominations, from an apprehension that they hold intolerant principles” (p. 201). Cogan, Complete Bill of Rights, p. 62. Wolcott is probably responding to the kinds of comments to which Munoz ˜ has pointed, namely, three anti-federalists writing in the first two months of 1788 who worried about the possibility that Congress “could impose uniformity of religious practice through the establishment of a national religion.” Munoz, ˜ “Original Meaning,” p. 615. Munoz ˜ cites “Deliberator,” “Agrippa,” and “A Countryman.” Ibid., pp. 615–16. Munoz ˜ links these anti-federalist concerns over a national “uniformity of religious practice” with his enhanced federalism reading of the establishment clause. See, e.g., ibid., p. 630, n. 238. Cogan, Complete Bill of Rights, p. 70. Ibid. Ibid., p. 69. Ibid., p. 71.

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religion”15 – and then concluded with his version of Randolph’s sociological argument: “A particular state might concur in one religious project. But the United States abound in such a variety of sects, that it is strong security against religious persecution.”16 Later that summer, at the North Carolina convention, Baptist Minister Henry Abbot worried that “by the power of making treaties, they might make a treaty with foreign powers to adopt the Roman Catholic religion in the United States,” but then he followed this remark with a comment showing that his main concern was to make sure that the wrong religion would not be established: “Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal.”17 Iredell responded that Congress had no power over religion, and Governor Johnston brought forward a more comprehensive analysis of religious demographics than appears anywhere in the debates. Acknowledging that “great apprehensions have been raised as to the influences of the Eastern States,” that is, New England, he observed, “I know but two or three states where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects.”18 He then described the religious landscape in considerable detail: In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than the others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects . . . . So in all the Southern States they differ; as also in New Hampshire.19 15

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Ibid. These comments by Madison (and Randolph above) are examples of what I call “plain vanilla” federalism, that is, the concept that Congress has no power “to intermeddle with religion” even without an amendment relating to establishment of religion. This concept of plain vanilla federalism applies equally to issues of establishment and those involving the free exercise of religion, free speech, free press, and other elements of the First Amendment. “Enhanced federalism” goes one substantial step further: it represents an effort by the First Congress (or “We the people”) to create an extra layer of protection for establishments of religion in the states than for state-level decision-making about religious freedom, freedom of speech, and so on. Ibid. Ibid., pp. 62–3. Stephen Beauregard Weeks, Church and State in North Carolina (Baltimore, Md.: Johns Hopkins University Press, 1893), p. 58, n. 2. This preference for the Episcopal Church by a Baptist minister is difficult to explain. Cogan, Complete Bill of Rights, p. 67. Ibid., pp. 67–8.

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In conclusion, he expressed the hope that his colleagues “will see there is no cause of fear that any one religion shall be exclusively established.”20 The same themes and arguments appear in both Virginia and North Carolina. Someone expresses a concern that there could be a national establishment of one religion to the detriment of others, and, in response, defenders of the Constitution point out that Congress has no power over religion and that, in any event, religious diversity will be a practical deterrent to, in Randolph’s words, “the establishment of one sect,” even if, as Madison noted, a “particular state might concur in one religious project.” In the end, North Carolina adopted all twenty of the amendments that had been proposed by Virginia, plus six others.21 Unfortunately, beyond these reports from Virginia and North Carolina, we have very little guidance from other ratifying conventions that proposed amendments on the subject of religion. For example, in New York, Tredwell is reported to have said, “I could have wished also that sufficient caution had been used to secure our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment – a tyranny of all others most dreadful and which will assuredly be exercised whenever it shall be thought necessary for the promotion and support of their political measures,” but we have no records of any additional commentary on the subject.22 New York then adopted language that was almost identical to the Virginia/North Carolina proposal. There is a remarkably small amount of material from New Hampshire that can provide any further insight into that state’s proposals for constitutional amendments. Perhaps the most extensive description of the proceedings is found in a long letter from John Sullivan, President of the State of New Hampshire, to the Rev. Jeremy Belknap of Massachusetts on February 26, 1788. It is enigmatic at best. According to Sullivan, those who held out for amendments included some good men that were short sighted . . . many who were distressed and in debt; numbers who conceived that this system would compel men to be honest against both their inclination and their interest, some were blinded through excess of zeal for the cause of religion and others who by putting on the masque of sanctity thought to win proselytes. Thus arranged we entered the Field of Action: And you can not be surprised if I tell you that all the objections made against the new plan and published in your state were handed out here by rote with such amendments, alterations, embellishments and disfigurements as ingenuity folly obstinacy and false piety could 20 21 22

Ibid., p. 68. Weeks, Church and State in North Carolina, p. 61, n. 1. Ibid., p. 62.

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suggest . . . but Sir lest you should conceive that we have no talents at invention in this state and that all our objections were borrowed from Massachusetts I will now give you some specimens of New Hampshire ingenuity[:] a pious deacon liked the plan or rather would have liked it if it afforded any security of our having the holy scriptures continued to us in our mother tongue. The want of a religious test was used here as well as with you but even if that was given up in all other cases the president at least ought to be compelled to submit to it for otherwise says one “a Turk, a Jew, a Roman Catholic, and what is worse than all a universalist may be president of the United States.”23

This generally opaque account provides little or no guidance as to New Hampshire’s proposal that Congress be forbidden from making laws “touching religion.” In sum, all that is clear is that Federalist supporters of the Constitution had to address concerns about the possibility of a national church in several states, leading to the four specific recommendations for a non-establishment clause from Virginia, North Carolina, New York, and New Hampshire.24 23

24

Otis G. Hammond, Letters and Papers of Major-General John Sullivan, 3 vols. (Concord: New Hampshire Historical Society, 1939), vol. 3, pp. 567–8. On the “religious test” issue mentioned in Sullivan’s letter, it is worth noting that New Hampshire’s laws and constitutions restricted public office holding to Protestants until 1877. See Wilfred H. Paradis, Upon This Granite: Catholicism in New Hampshire 1647–1997 (Portsmouth, N.H.: Peter R. Randall, 1998). Interestingly, the religious issue that seemed to exercise people considerably more than the prospect of a national church was the lack of a religious test. Governor Sullivan’s letter about the New Hampshire convention talks about the lack of a religious test but seems not to mention any issues regarding establishment. In North Carolina, well-known advocates for religious freedom Henry Abbot (credited by some with bringing about his state’s constitutional protection of the rights of conscience) and David Caldwell (the “most distinguished Presbyterian divine in the state,” according to Weeks) were both far more animated on this subject than on establishment-related concerns. Abbot said that “the exclusion of religious tests is by many thought dangerous and impolitic. They suppose that . . . pagans, deists, and Mahometans might obtain offices among us. . . . Some are desirous to know how and by whom they are to swear . . . whether they are to swear by Jupiter, Juno, Minerva, Proserpine, or Pluto.” Caldwell, who may have been responsible for the religious test in North Carolina’s constitution, added his concern that there was “an invitation for Jews and pagans of every kind to come among us.” Moreover, he proclaimed, “even those who do not regard religion, acknowledge that the Christian religion is best calculated, of all religions, to make good members of society, on account of its morality.” See Cogan, Complete Bill of Rights, pp. 62–8, and Weeks, Church and State in North Carolina, pp. 57–63. See also Denise A. Spellberg, “Could a Muslim Be President: An Eighteenth-Century Constitutional Debate,” Eighteenth Century Studies 39, no. 4 (2006): 485–506, who writes, “The North Carolina ratification debate was not about the centralization of power, a standard AntiFederalist issue of concern, but rather focused on who might exercise it regardless of faith. Anti-Federalist rhetoric [emphasized] the certainty of a despotic Muslim president, a fear which made a test oath for Muslims a necessary protection for the Protestant majority” (p. 492).

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The First Congress Although Congress was not eager to take up the question of a Bill of Rights,25 the states had made a series of recommendations, and Madison, in particular, had been heavily pressured to introduce amendments, especially by his Baptist constituents.26 He told his congressional colleagues that his primary concern in recommending provisions about religion was to satisfy others, and he appeared to have only a modest degree of enthusiasm for the exercise himself: “Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under [the necessary and proper clause, Congress might be enabled] to make laws of such a nature as might infringe the rights of conscience, and establish a national religion.”27 He therefore proposed the following: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”28 Then, after providing for the right of peaceable assembly, the right to bear arms, and a number of other elements of what 25

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The House debates are recorded in Joseph Gales and W. W. Seaton, eds., The Debates and Proceedings in the Congress of the United States, Compiled from Authentic Materials, 42 vols. (Washington, D.C.; D. Appelton, 1834–56), vol. 1, p. 451 (hereafter referred to Annals). For a discussion on sources, see Levy, Establishment Clause, pp. 187–9; Marion Tinling, “Thomas Lloyd’s Reports of the First Federal Congress,” William and Mary Quarterly, 3rd ser., 18 (October 1961): 519–45; and James H. Hutson, “The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 1. These studies make it clear that we cannot take the available reports as the equivalent of modern, verbatim transcripts, and there were many complaints of inaccuracies. Tinling provides a reasonable assessment: “There is enough evidence of inaccurate reporting to warn us to take what we read with a grain of discretion and to use all the available reports rather than any single one, but not enough to condemn them as biased, imaginary or worthless.” Tinling, “Thomas Lloyd’s Reports,” p. 538. For a discussion of the battle between James Monroe and James Madison for a seat in the First Congress, see Labunski, James Madison and the Struggle, chapter 7. Labunski notes, in particular, “Several groups in the district needed to be assured that Madison was genuinely committed to working for a bill of rights. Baptists, who would play a crucial role in the election, wanted Madison’s pledge that he believed an amendment protecting religious freedom was necessary and he would work toward its approval in Congress” (p. 159). Of the 5,189 eligible voters, 1,308 voted for Madison and 972 for Monroe (p. 175). Cogan, Complete Bill of Rights, p. 60. Ibid., pp. 1, 451. Madison’s proposal would have placed the proposed religion clause in the text of the Constitution after “No Bill of Attainder or ex post facto Law shall be passed” and immediately before “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” U.S. Constitution, Article I, Section 9.

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have become the first ten amendments to the Constitution, his fifth proposal stated, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”29 We do not know how Madison came up with his proposals on the subject of religion. While several of the states had either recommended or considered establishment clauses, only Maryland’s defeated proposal had used the “national religion” language adopted by Madison. Nor had any of the states suggested that the federal government should have authority to regulate the state’s treatment of liberty of conscience. According to the Annals of Congress, over two months passed before the Congress took up debate on Madison’s religion proposals. During this time, a select committee chaired by John Vining of Delaware revised Madison’s language slightly,30 providing an opportunity, on August 15, for the legislators to consider the following: “[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed.”31 The record of the debate shows that the concept of having an establishment clause had no strong supporters in the House, and there were certainly no avid proponents of any particular approach to federal church-state relations. Quite the contrary, there is nothing in the records of the debate that shows any member of Congress personally supporting any substantive aspect of the proposed clause. Other than Madison, the only member who actually spoke up in favor of adding such a provision was Daniel Carroll, who merely repeated Madison’s appeasement argument in more flowery words: “As the rights of conscience are . . . of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred . . . that they are not well secured under the present constitution, . . . he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other [proposed] amendment.”32 Carroll took a relaxed approach to the specifics, showing that his support of the amendment was primarily to come up with whatever form of language might mollify the people who wanted such an amendment: “He would not contend with the gentlemen about phraseology, his object

29

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Annals, p. 452. The form of this proposal follows the other provisions of Article 1, Section 10, all of which begin “No State shall.” See Annals, p. 757. Ibid. Although Madison had originally proposed to place the religion clauses between clauses 3 and 4 of Article 1, Section 9, this version would have inserted them between paragraphs two and three, making the proposed religion clauses the first in a lengthy series of provisions beginning with the word “No” and written in the passive voice. Cogan, Complete Bill of Rights, p. 59.

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was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.”33 That is the sum total of the speeches in favor of the establishment clause, and both were in direct response to Roger Sherman’s federalism argument that the amendment was redundant: “Mr. Sherman thought the amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the constitution, to make religious establishments.”34 Otherwise, the brief debate focused on whether some other language might better express whatever they were trying to accomplish. Vining wanted to transpose the clauses so that the rights of conscience would be mentioned first, and Gerry said that “it would read better if it was that no religious doctrine shall be established by law.”35 Madison returned to the debate to explain what his proposal meant: “[H]e apprehended the meaning of the words to be, that congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience,” and he expressed some pride of authorship: “he thought [the amendment] as well expressed as the nature of the language would admit.”36 Sylvester and Huntington worried that the provision might “abolish religion” (Sylvester) or “be extremely hurtful to the cause of religion” (Huntington).37 It is not clear what concerned these congressmen, although it is conceivable that they feared that the broad language being discussed (“no religion shall be established by law”) could have been interpreted to forbid established churches in the states. Huntington was from Connecticut, a state where the standing order was often acknowledged to be an establishment of religion. While he thought that the amendment meant “what had been expressed by the gentleman from Virginia,” he worried that “others might find it convenient to put another construction upon it.”38 He then

33 34 35 36 37

38

Ibid. Ibid. Ibid. Ibid., p. 60. Ibid. The Gazette of the U.S. (August 19, 1789) reported Sylvester’s comments but did not include the language about abolishing religion. See Cogan, Complete Bill of Rights, p. 61. Ibid. He went on to comment on Rhode Island, where “no religion could be established by law” and offered that “he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it.” While he might have meant this comment to support a non-establishment principle, it is more likely, as suggested by Natelson, that Huntington was being sarcastic and had in mind “‘Rogues’ Island’ . . . where immorality and bad faith seemed to have run riot.” Robert G. Natelson, “The Original Meaning of the

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outlined how “ministers of their congregations to the Eastward [i.e., Connecticut, which, as Curry points out, was East of the Congress’s session in New York39 ] were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner.”40 While this description sounds somewhat more voluntary than Connecticut’s general assessment approach to supporting Protestant churches, it seems that Congregationalist Huntington was thinking about his state’s ecclesiastical arrangements, and he expressed concern that the federal courts might not enforce people’s religious obligations, “for a support of ministers, or building of places of worship might be construed into a religious establishment.”41 Madison’s response seems clearly to be an effort to address any concern that church-state practices in the various states would be affected by the amendment: “if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen,” which would make the clause read that “no national religion shall be established by law.”42 Then, he, once again, explained the “object” of the amendment: “He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform,”43 that is, a “national religion.” Following Madison’s comment, New Hampshire’s Representative Samuel Livermore, not wanting “to dwell long on the subject,” proposed his state’s

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Establishment Clause,” William and Mary Bill of Rights Journal 14 (2005): 117. Huntington then said that he hoped that “the amendment would be made in such a way as to secure the rights of conscience . . . but not to patronize those who professed no religion at all,” which seems to fit better with Natelson’s interpretation than an anti-establishment argument. Similarly, Curry comments that “although [Huntington] was mistaken in saying that the Rhode Island charter forbade an establishment . . . , he seemed to hold that the absence of an establishment lay at the root of what most citizens of Connecticut and elsewhere in America regarded as the irresponsibility of Rhode Island.” Curry, First Freedoms, p. 203. McLoughlin notes that a 1716 Rhode Island statute read as follows: “Their Endeavouring for preeminence of superiority one over the other by making use of the Civil Power for the enforcing of a maintenance for their respective minister – be it enacted . . . that what maintenance for salary may be thought needful or necessary by any of the churches . . . may be raised by free contribution and no other ways.” McLoughlin, New England Dissent, vol. 2, p. 942. Curry, First Freedoms, p. 203. Cogan, Complete Bill of Rights, p. 60. Ibid. Ibid. Gerry objected to the word “national,” leading Madison to withdraw that suggestion, but he took the opportunity to execute an interesting linguistic dance: “the words ‘no national religion shall be established by law,’” he remarked, “did not imply that the Government was a national one” (pp. 60–1). Ibid., p. 60.

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recommended language: “Congress shall make no laws touching religion.”44 Newspaper reports carried an observation from Livermore not included in the Annals, and this additional comment suggests that Livermore did not intend for his language to have a significantly different meaning from Madison’s proposal: “He observed tho’ the sense of both provisions was the same, yet the former might seem to wear an ill face and was subject to misconstruction.”45 In other words, he was seeking to achieve Madison’s stated goal – “no national religion” – but wanted to avoid unintended consequences, perhaps those raised by Huntington, since New Hampshire and Connecticut had somewhat similar approaches to collecting taxes “for a support of ministers, or building of places of worship,” which could potentially be “construed into a religious establishment,”46 as Huntington had said and as modern courts have been wont to do. Or perhaps Livermore simply wanted to advance the language that his state had recommended. In any event, Livermore’s proposed wording (with a minor linguistic change) – “Congress shall make no laws touching religion, or infringing the rights of conscience”47 – was passed by the House of Representatives, sitting as a Committee of the Whole, by a vote of 31 to 20. Of the 51 members voting, only eight appear to have entered the debate.48 Two days later, on August 17, 1789, the Congress considered Madison’s proposal that “no State shall infringe the equal rights of conscience.” Tucker strongly objected on the grounds that it would be better “to leave the State Governments to themselves, and not to interfere with them any 44

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46 47 48

This is the first time the proposed language explicitly mentions “Congress” as the object of the clause’s restrictions, although Madison’s placement of his original proposal in Article 1, Section 9, indicates a limitation on congressional power. Proponents of the enhanced federalism interpretation cite Livermore’s use of the word “touching” to promote a jurisdictional reading of the clause, but it is perhaps more likely that Livermore’s focus was on resolving the issue then under debate, which was how to say that there would be no national religion without using the controversial word “national.” He accomplished that goal by taking the clause out of the passive voice and specifying who could not make laws about religion, that is, “Congress.” At the same time, he could highlight his own state’s proposed language. Livermore’s major contribution then, is to remove the establishment clause from Article 1, Section 9, and set it on the pathway toward a separate, free-standing provision. And while Livermore’s proposal was later replaced by one from Fisher Ames, the key concept of beginning the provision with the words “Congress shall make no” was retained. Cogan, Complete Bill of Rights, p. 61, citing the Daily Advertiser (August 17, 1789) and an identical article in the New-York Daily Gazette (August 18, 1789). Both papers eliminated all of the debate other than Livermore’s comments, perhaps because Livermore’s proposal was the one adopted by the Committee of the Whole. Ibid., p. 61. Annals, p. 759. Ibid.

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more than we already do.”49 Madison defended the proposal as “the most valuable amendment in the whole list. If there was any reason to restrain the Government of the United States from infringing on these essential rights, it was equally necessary that they should be secured against the State Governments.” There was no further debate. It appears either that Madison’s argument was persuasive – that is, that it would be valuable to subject the states to the requirement of respecting the rights of conscience – or that the members of Congress believed that the equal rights of conscience were so well protected in their states that such a provision would not threaten the status quo. Madison’s proposal was adopted without further debate.50 Later that week, without any recorded debate, the “fourth amendment” (i.e., the establishment and free exercise clauses) was adopted in a revised version proffered by Fisher Ames of Massachusetts: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”51 This was the full extent of the recorded debate concerning the establishment clause as it was offered for the Senate’s consideration. A couple 49 50 51

Ibid., p. 783. Ibid., pp. 783–4. Ibid., p. 796. Ames has received remarkably little attention in the church-state literature despite offering the version of the establishment clause adopted by the House. He “defeated Samuel Adams to obtain his seat in the First Congress” where, as described by Elisha Douglas, “he consistently sought two complementary objectives – the protection of the political and economic interests of Massachusetts and the strengthening of the Federal Government.” Elisha P. Douglas, “Fisher Ames, Spokesman for New England Federalism,” Proceedings of the American Philosophical Society 103, no. 5 (October 15, 1959): 693– 715, 703. For an argument that Ames’s version of the establishment clause “preserved New England’s public support for religion from the incursions of southern political culture, thus permitting the Federalists to seek shelter in the ancient manners of Massachusetts,” see Marc M. Arkin, “Regionalism and the Religion Clauses: The Contribution of Fisher Ames,” Buffalo Law Review 47 (Spring 1999): 763–828, 790. Arkin also provides a clear picture of Ames’s views of Madison’s approach to the amendments – and Ames’s broader worries about Southern influence in the new government – which makes it highly unlikely that the Ames version of the establishment clause was written by Madison and merely submitted in Ames’s name, as suggested by Irving Brant. See Irving Brant, “Madison: On the Separation of Church and State,” William and Mary Quarterly 8 (1951): 15. Summarizing a series of letters from Ames to George Richards Minot, Arkin writes that, by July, as the amendments were moving toward debate, “Ames . . . saw [them] as reflecting the weaknesses of Madison’s political character and, therefore, as permeated by Virginia’s populist political culture.” Arkin, “Regionalism and the Religion Clauses,” p. 782. Ames concludes his description of the proposed amendments by saying, “Upon the whole it may do some good towards quieting men, who attend to sounds only, and may get the mover some popularity, which he wishes.” Ibid., p. 783. On Ames’s views on government more broadly, see John W. Malsberger, “The Political Thought of Fisher Ames,” Journal of the Early Republic 2, no. 1 (Spring 1982): 1–20.

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of weeks later, the Senate considered the House’s proposals. Although the Senate Journal does not expressly state the language of the amendment being considered, it probably read as follows: “Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” This, of course, bore close resemblance to the Ames proposal, after some minor adjustments.52 After two attempts, the Senate changed the first part of the clause to resemble the amendments that had been recommended by the Virginia, North Carolina, and New York conventions, and, once again, it is not clear whether the senators believed that they were changing the meaning of the clause from the House’s language to something else, or whether they merely wanted to recognize the proposals of important states, although we do know that Senator Lee of Virginia certainly pushed hard for Virginia’s proposed amendments.53 The new version then became, “Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.”54 There followed a motion to strike the amendment in its entirety, but the motion failed. Another motion proposed a transposition of the “establishment” and “conscience” clauses, and it also failed, as did one that read as follows: “Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.”55 Finally, the equal rights of conscience clause was eliminated. With that action, the debate ended for the day.56 Several days later, the Senate rejected, without any record of further debate, Madison’s “most valuable” amendment, the House’s proposal to prohibit the states from infringing the rights of conscience.57 Then, on September 9, 1789, again without any record of the debate that might tell us whether the Senate was parsing every word or, instead, was merely accepting various wordings as they were proposed simply because no one was paying any attention to the details, the Senate voted to amend the religion clauses as follows: “Congress shall make no law establishing articles 52

53

54 55 56 57

Linda Grant DePauw, ed., Documentary History of the First Federal Congress of the United States of America (Baltimore, Md.: Johns Hopkins University Press, 1977– ), vol. 1, pp. 137–8. See, for example, the discussion of the Bill of Rights in Timothy Pitkin, Political and Civil History of the United States from 1763 to the Close of Washington’s Administration, 2 vols. (New Haven, Conn: Hezekiah Howe and Durrie & Peck, 1828), vol. 2, p. 334. Ibid. Ibid. Ibid. Ibid., p. 151.

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of faith or a mode of worship, or prohibiting the free exercise of religion.”58 This left the House and Senate with different versions, and a conference committee was appointed to work out this and other amendments. The committee, whose deliberations were not recorded, numbered six people, three from each chamber. Charles Carroll (Maryland), Oliver Ellsworth (Connecticut), and William Paterson (New Jersey) represented the Senate, and James Madison (Virginia), Roger Sherman (Connecticut), and John Vining (Delaware) represented the House. Within a week, the House and Senate had reached agreement. As Levy records, “Ellsworth reported to the Senate that the House would accept the Senate’s version of the other amendments on the condition that the amendment on religion ‘shall read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,”’” which is the current form of the religion clauses of the First Amendment.59 It is hard to evaluate the significance of the House’s demand for this version of the establishment clause instead of the Senate’s prohibition of laws “establishing articles of faith or a mode of worship.” (The “free exercise” language was virtually identical in the House and Senate versions.) There are, perhaps, two major possibilities: that the insisted-upon language was understood by the House more closely to track the intent behind its recommended version (“Congress shall make no law establishing religion”) than the Senate’s version (“Congress shall make no law establishing articles of faith or a mode of worship”) or, alternatively, that the conference committee’s version (inserting the “respecting an” language) substantially changed the meaning of the House’s version in a way that was seen by the committee members as desirable. The first of these possibilities – that the House got what it previously said it wanted – seems more likely, largely because there is no evidence to the contrary; in that case, the best originalist reading (at

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Ibid., p. 166. Curry observes that “New England ministers especially . . . warned against the imposition of ‘articles of faith’ or ‘modes of worship’[, a] cryptogram for the Anglican establishment in England.” Thomas John Curry, “The First Freedoms: The Development of the Concepts of Religion and Establishment,” Ph.D. dissertation, Claremont Graduate School, 1983, p. 797 (hereafter cited as Curry, “Development of the Concepts”). Hutson attributes this version to Oliver Ellsworth of Connecticut, and he argues, “What Ellsworth had done was to insert the limited, ‘spiritual,’ definition of liberty of conscience, which permitted religious taxation, in the proposed Bill of Rights, and to eliminate any reference to a ‘religious establishment’ which might lend itself, in the hands of an unfriendly court, to a broad construction, incompatible with publicly supported religion in New England.” James H. Hutson, Church and State in America: The First Two Centuries (New York: Cambridge University Press, 2008), pp. 157–8. Levy, Establishment Clause, p. 83.

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least the best reading of the legislative materials) is that Congress is prohibited from setting up a “national religion,” whatever that might look like. In this case, the addition of “respecting an” would mean (if it, in fact, added anything at all) that Congress would be forbidden from passing laws on the subject of a national religion. The alternate interpretation suggests that the addition of “respecting an” introduces an entirely new concept – that is, the withdrawal of power over the subject of religion was meant to ensure that Congress would not interfere with church-state practices in those states that maintained establishments. This is the classic “enhanced federalism” interpretation, which is discussed at greater length below. At this point, it will suffice to note that if this federalism-enhancing reading of the establishment clause was intended by the members of the First Congress, no one seems to have said or written anything along those lines, and neither the House’s original nor the Senate’s proposed language contained federalism-enhancing wording. What should we make of this legislative record? One way to evaluate these comments is to think about what was not said. There were no eloquent speeches extolling either the virtues of the strict separation of church and state or the importance of religion to the federal government, no clarifying comments about how the clause should permit (or forbid) nonpreferential support for religion, no careful commentary about the meaning of the word “establishment” (let alone any debate about subtle linguistic differences such as between “an” and “the”). The only substantive concerns voiced at all were Sylvester’s and Huntington’s fears that someone might improperly construe a proposed version specifying that “no religion shall be established by law” to the detriment of religion or, in Huntington’s case, to the detriment of the churches in Connecticut. These concerns were addressed by rewriting the language to clarify that the prohibition would apply only to Congress. This sparse record has not deterred modern scholars from finding considerable substantive content in the action of Congress. Laycock, for example, finds the strict separationists winning a pitched battle, based on the Senate’s rejection of language that sounds like it would have prohibited only preferential support for religion.60 At the same time, Cord and Malbin are sure that the nonpreferentialist members triumphed when Congress picked 60

Laycock, “Nonpreferential Aid,” pp. 881–2. Curry argues that “when the senators proposed different wordings for the First Amendment, they were employing the common usage of the time and imitating the phrasing of state constitutions. . . . Thomas Jefferson, who certainly did not approve of any power on the part of government in religious matters, echoed the Senate wording when he later drew up a Bill of Rights for the new state of Kentucky, wherein he wrote that ‘no preference shall ever be given by law to any religious societies or modes

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“an” over “the.”61 Despite the creativity of these various arguments, there is simply no convincing evidence that the First Congress came anywhere near giving any of these matters that level of thought. It is, of course, possible that one or more legislators had the specific intentions ascribed to the entire Congress by Laycock, Cord, and others, but it is virtually impossible to find contemporary evidence indicating that any particular legislators had any such intent, and no evidence at all to lead us to believe that the entire Congress, or whatever proportion thereof is needed to represent the intent of that legislative body, was thinking in the ways promoted by these scholars. It may be possible to shed some hypothetical light that can explain the desultory nature of the congressional debate. For those with experience in negotiating business deals, the meager House debate reads like a reflection of a relatively common phenomenon in contract negotiation and drafting involving reasonably large organizations. This kind of discussion occurs when some fairly important person who is not taking part directly in the negotiations has insisted on an unnecessary but noncontroversial provision. The boss may have had a bad experience in a prior, unrelated transaction, for example, and therefore insists on the inclusion of protective language that, in this particular negotiation, is either not applicable or redundant. The boss needs to be appeased, however, so the active participants in the negotiations add the language necessary to garner the boss’s support, but they pay little attention to the details or the specific language because the provision is not important to the real task at hand. It merely allays the fears of one of the key decision makers that the contract might someday be misinterpreted to mean something no one ever intended it to mean. In the case of the establishment clause, concerns arose in various states that the necessary and proper clause might be interpreted to enable Congress “to establish a national religion,” even though there appeared to be no visible movement leading toward a nationally established church and scant support for such an expansive reading of Congress’s implied powers in matters of religion or otherwise. Accordingly, if we can discern any intention of the handful of members of the First Congress who spoke about the establishment clause, it was to find some sort of language (indeed, virtually any sort of language) that would allay the fears of some of the ratifiers that Congress possessed the power to establish a national religion. That is exactly what

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of worship.’” Thomas J. Curry, Farewell to Christendom: The Future of Church and State in America (New York: Oxford University Press, 2001), p. 38. See Michael Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute for Public Policy Research, 1978); Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982), p. 11.

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Madison said it meant, which he repeated three separate times on the floor of the Congress. It was a proposal that made no changes; it neither added to nor subtracted from the Constitution. Rather, it seemed merely to confirm what some of the legislators (perhaps all of them) already believed: that the Congress was, in fact, powerless to create a national church, and its primary goal was to complete the process of constitution making and to let Congress get on with the task of governing. The establishment clause left everything just where it was in the states and at the federal level, which is why no extensive debate or careful drafting was required, and also why legislators frequently referred to Madison’s proposed Bill of Rights in terminology like “milk and water” amendments, that is, noncontroversial and unimportant provisions seeking to appease some people outside the Congress.62 For the purpose of interpreting the establishment clause, we could decide to set aside the congressional debates altogether and adopt the constitutional equivalent of the parole evidence rule; that is, we could exclude what little we know about legislative intent and focus solely on the text. In that case, any of the variously creative and often argumentative interpretive approaches that have been offered up by the legions of scholarly and judicial commentators represent potentially plausible ways to read the text of the First Amendment. It can certainly be read plainly – following George and Porth – to affirmatively protect whatever state establishments existed at the time, much as it might have represented Laycock’s vision of a strict separationist victory. And it does, indeed, pace Malbin, ban laws respecting “an” establishment rather than “the” multiple, nonpreferential “establishments” that Levy finds in several states, and so on. The language is certainly flexible enough to be credibly read any number of ways, and bits and pieces of history can be mustered in service of bolstering these various readings. But if one of our originalist goals is to work as hard as possible to put the establishment clause solidly in its contemporary context (which need not be our only originalist goal63 ), we need to realize that the circumstances giving rise to the Bill of Rights did not require James Madison or any of his congressional compatriots either to define their terms or to agree on any substantive church-state 62

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Kenneth Bowling notes that “Federalist William Smith argued that it was Madison who advised that no other amendments to the Constitution should be offered . . . but a few milk and water propositions”; and “Senator Pierce Butler of South Carolina [said] that Madison had offered only ‘milk and water’ propositions.” Kenneth R. Bowling, “‘A Tub to the Whale’: The Founding Fathers and Adoption of the Federal Bill of Rights,” Journal of the Early Republic 8, no. 3 (Autumn 1988): 223–51, 244, 250. Those who reject the framers’ intent approach to originalism in favor of the views of the ratifiers, the general public, or hypothetical informed readers will find it challenging, as discussed below, to find much evidence to elucidate the understanding of the First Amendment held by those groups. The congressional debates may provide at least some data points for

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policy. Had they tried to do so, they may well have failed. Indeed, they did fail to adopt the one religion provision that might have had some teeth: the House’s attempt to require the states to respect the rights of conscience. As to the intent behind the establishment clause, the preponderance of the legislative evidence says that it was simply “anodyne to the discontented,”64 one of the “milk and water amendments,”65 no more than a “tub to the whale”66 in the form of a ban on whatever a “national religion” might be, something few believed Congress could do anyway and far fewer still, if any, thought was a good idea. Ratification Originalists are not necessarily required to limit their historical inquiries to discerning the Congress’s motives, and some originalists have highlighted the importance of the intentions of the ratifiers, perhaps even to the exclusion of the views of the First Congress. Unfortunately, there is precious little information about the establishment clause in the ratification debates. Massachusetts, Connecticut, and Georgia did not ratify the First Amendment (at least not in the Founding Era).67 Only one state provides a recorded comment on the establishment clause. A group of eight Virginia senators, all of whom opposed ratification of the amendment, said: [It] does not prohibit the rights of conscience from being violated or infringed: and although it goes to restrain Congress from passing laws establishing any national religion, they might, notwithstanding, levy taxes to any amount, for the support of religion or its preachers; and any particular denomination of Christians might be so

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what well-connected politicians thought that the state conventions or the people were thinking even if some versions of originalism methodology do not make the framers authoritative interpreters themselves. This phrase of Edmund Randolph’s is quoted in Gerard V. Bradley, Church-State Relationships in America (New York: Greenwood Press, 1987), p. 88. Ibid., quoting both Pierce Butler and George Mason. Kenneth Bowling cites Noah Webster’s “anonymous attack on Madison, published while the Virginian was leading the floor fight for amendments,” including the comment that the “people regret that ‘Congress should spend their time in throwing out an empty tub to catch people, either factious or uninformed, who might be taken more honorably by reason and equitable laws.’” Bowling, “Tub to the Whale,” p. 225. Bradley notes that George Clymer of Pennsylvania used the same phrase. Bradley, Church-State Relationships, p. 88. Bradley catalogues a number of other phrases describing, in his words, “the banality of the liberties championed by Madison”: “To Senator Robert Morris, they were ‘nonsense’ and to Fisher Ames ‘trash.’ . . . South Carolina’s Aedanus Burke portrayed the select committee’s version of Madison’s amendments as ‘little better than whip-syllabub, frothy and full of wind, formed only to please the palate.’” Massachusetts, Connecticut, and Georgia waited until 1939 to ratify the Bill of Rights.

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favored and supported by the General Government, as to give it a decided advantage over others, and in process of time render it as powerful and dangerous as if it was established as the national religion of the country.68

These ratifiers seem to believe that the establishment clause prohibits Congress from “establishing any national religion,” which is the best summary of the vague materials comprising the debate in the First Congress. Beyond that, they appear to be concerned that other forms of tax support for religion might be permissible. Not surprisingly, nonpreferentialists have embraced these comments.69 Levy counters that these Virginia legislators had a record of supporting religious establishments in their state, and, therefore, their comments were more likely just an anti-federalist ploy to attack the Constitution. Without further evidence, it is hard to assess Levy’s interpretation. It may be better at least to consider taking these comments at face value, in which case these Virginia comments can stand for the view that at least a handful of the participants in the ratification debate may have believed that the prohibition of a national establishment would not necessarily forbid a federal general assessment. In considering the evidentiary value of these comments, however, it is important to note: (1) The group referred only to general assessments supporting Christianity; (2) they were arguing against ratification; and (3) they lost. We thus have virtually no evidence to tell us what the ratifiers specifically had in mind when they voted on the First Amendment’s religion clauses, leaving us to ask more broadly what the establishment clause might have meant to late-eighteenth-century Americans. In doing so, it may be important to bear in mind that the general populace did not necessarily need to have a more specific understanding of the establishment clause than did the members of the First Congress. That is, since the clause had no immediate and direct effect on any current practices (in other words, it was not the equivalent of disestablishing an existing state-supported church), the people could read into it any meaning that made sense to them. As Curry points out, even Baptist Isaac Backus, “the most dedicated opponent of the New England ecclesiastical system, mistakenly believed that the First Amendment actually read that ‘Congress shall make no law establishing articles of faith, or 68

69

Quoted in Leonard Levy, Judgments: Essays on Constitutional History (Chicago, Ill.: Quadrangle Books, 1972). See Journal of the Senate of the Commonwealth of Virginia, Begun and Held in the City of Richmond, on Monday, the 18th of October . . . 1789 (Richmond, Va., 1828), p. 62. See, e.g., Edward Corwin, “The Supreme Court as National School Board,” Law and Contemporary Problems 14 (1949): 12.

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a mode of worship,’ but he happily accepted that wording.”70 At least as to New England–style general assessments, there was no similar proposed federal program at the time of the First Amendment, and it was therefore unnecessary for the Congress, the ratifiers, eligible voters, or the people in general to have a clear view about what was specifically prohibited – or, for that matter, clearly permitted – by the establishment clause. What we do know is that enough states approved of the language of the establishment clause (whatever they thought it meant) to make it a part of the Bill of Rights; what they thought they were doing is a much more difficult question to answer. The Meaning of “Establishment” While some church-state scholars have followed Justice Rutledge’s lead in arguing that no extensive congressional debate was necessary because everyone shared a common definition of the word “establishment,”71 the greater likelihood is that the meaning of “establishment” was undergoing transition, and the word was being employed in a variety of different ways. Curry’s view – that at the time of the First Amendment “the image of establishment that continued to dominate in the minds of Americans . . . was a traditional one modeled on the Anglican establishment in England”72 – could be correct to the extent that “dominate” means what most of the published 70

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Curry, First Freedoms, 214. The language that Backus believed was adopted was the Senate’s final version. See, for example, Gerard Bradley, who disagrees strongly with Justice Rutledge’s interpretive conclusions but nevertheless points out that “Rutledge could not have more accurately, however unwittingly, explained the relatively little commotion greeting disestablishment in Congress: everyone knew it meant no sect preference and agreed that it was the appropriate federal norm.” Bradley, Church-State Relationships, p. 19. See also Curry, First Freedoms; Levy, Establishment of Religion; Cord, Separation; and many others. Curry, First Freedoms, p. 192. Curry’s evidence comes principally from published sermons, letters, and speeches, and it may be the case that the New England Congregationalist ministers defending the standing order did not imagine that they were establishing a potpourri of Protestant sects, while many of the Baptists may have seen through the veneer of evenhandedness to find nothing more than the continuance of a longstanding Congregational establishment. Natelson comes to the same conclusion as Curry does (“when people referred to an ‘establishment of religion,’ they generally referred either to a single state church or to some other mechanism whereby one denomination or group of denominations is favored over the others”), but in support of his conclusion about what “people” meant, he cites only three New England ministers writing in the 1750s and 1760s (and several English writers) to support this interpretation. Natelson, “Original Meaning,” p. 124. See also Bradley, who writes about New England, “Literally no one suggested an establishment existed simply because religion was aided,” pursuant to general assessment types of tax support for churches. Bradley, Church-State Relationships, p. 2.

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materials said most of the time, but it is equally clear from his own materials and from other sources that the word “establishment” was also being used by some people to describe the general assessment approach to using taxes to fund churches. This broader definition was certainly percolating through the evangelical community (especially the Baptists) and was voiced by Madison as well when he called Virginia’s general assessment proposal an establishment.73 Curry also admits that a variety of opponents of state support for religion attacked the general assessments as establishments.74 In many post-Revolutionary circles, the concept of establishment could serve as a reminder of English-style tyranny, and, therefore, supporters of government largess for religion would naturally shy away from that term, while opponents would employ it for rhetorical advantage. So, it is clear that some opponents of church-state links employed the language of establishment to describe what was going on in New England and had been proposed in Virginia. This broad definition of establishment was not used exclusively by opponents of tax support for churches, however. In a number of judicial opinions appearing in the decades following the First Amendment, stalwart supporters of the Massachusetts standing order boldly proclaimed the existence of an establishment of Protestantism, while, as Curry notes, “Connecticut made no bones about the fact of its Congregationalist establishment of religion.”75 As a result of the varieties of ways in which the word was being used, it is difficult to conclude, as a matter of definition (constitutional or otherwise), that “establishment” had as fixed a “sect preference” meaning as Curry and others have suggested. Instead, it may be more reasonable, based on all of the available evidence, to consider the possibility that the 73

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Curry, First Freedoms, p. 147. Curry notes that Virginians “used the concept in diverse and loose ways, without much debate or without forming in their minds a clear distinction between an exclusive and a nonexclusive establishment.” In both First Freedoms and Farewell to Christendom, Curry works hard to put the general assessment battles in their political context, which demonstrates that there was a widespread belief by the dissenters that the assessments were designed to maintain the privileges historically enjoyed by the Congregational Church in New England and the Anglican Church in the South. He accordingly sees the dissenters using the term “establishment” in its traditional definition of government preference for one religion or denomination over all others. For our purposes, however, we should consider the possibility that, as a matter of word usage, the even-handed language of the assessments, combined with the assaults on them as “establishments” by the dissenters, was part of the process by which there was a broadening of the word’s range of possible meanings. See Thomas John Curry, Farewell to Christendom: The Future of Church and State in America (New York: Oxford University Press, 2001), pp. 35–41. Curry, First Freedoms, p. 210. Ibid., p. 183.

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word “establishment,” stuck in the middle of the congested intersection of religion and politics, might be susceptible of either carrying multiple connotations or, at least, being used in a variety of different ways.76 In an 1807 case in which a minister sued to collect his salary from the town of Tyringham,77 Justice Theodore Sedgwick’s opinion explored “the intention of those who framed, and of those who adopted and ratified” the Massachusetts constitution of 1780. In that document, Article III’s preamble proclaimed that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and [that] these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality”; based on this rationale, the Constitution authorized “the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.”78 Article III also included several provisos, one of which 76

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There is a methodological issue here that roughly parallels the lexicographical warfare between “prescriptivists” and “descriptivists.” This controversy has probably been most interestingly chronicled in David Foster Wallace, “Tense Present: Democracy, English, and the Wars over Usage,” Harper’s Magazine (April 2001). The basic issue, in a somewhat oversimplified description, is whether in constructing a dictionary, for example, there are correct (and incorrect) usages of language, with a lexicographer’s primary role to identify and encourage correct use, versus the concept that word usage is simply a matter of fact and that dictionaries should collect and report the data. Among eighteenth-century prescriptivists, Curry and his confreres are probably right: “establishment” had a traditional use in describing a Church of England–type of church-state arrangement. But it seems that originalists trying to capture how a word or phrase was understood either by a specific group of people (e.g., the Congress) or by the American people in general should instead be descriptivists. Americans in the Founding Era who heard or read the establishment clause interpreted it in accordance with their own understanding of the key words, not what a prescriptivist would have selected as proper or traditional usage. For the definitions of “establish” and “establishment” in several English dictionaries in the eighteenth century, see John Witte, Jr., God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Grand Rapids, Mich.: William B. Eerdmans, 2006), pp. 185–6, n. 70. Avery v. Tyringham, 3 Mass. 160 (1807). “A constitution or frame of government, agreed upon by the delegates of the people of the state of Massachusetts-Bay, in convention, begun and held at Cambridge on the first of September, 1779, and constituents, in order to the completing of the same, in conformity to their amendments, at a session to be held for that purpose, on the first Wednesday in June next ensuing” (printed by Benjamin Edes & Sons, 1780), Early American Imprints, Series I: Evans Readex Digital Collections, no. 16844. The strength of support for this provision is open to interpretation. Citing a popular vote of 5,654 in favor to 2,047 opposed, Bradley includes it in a list of measures to which New Englanders gave their “hearty approval,” whereas Witte points out that low voter turnout meant that over 95 percent of the population

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mandated that “no subordination of any one sect or denomination to another shall ever be established by law.”79 In reviewing these provisions, Justice Sedgwick concludes that in “language strong and energetic, the religion of Protestant Christianity is established. Liberty of conscience is secured.”80 While we have no evidence to help us address the issue of how Justice Sedgwick defined “Protestant Christianity,” it is clear that he believed that Massachusetts under the 1780 Constitution had an established religion despite Curry’s argument that “[o]fficially, the state maintained no establishment, and neither did defenders of the ecclesiastical system describe it as such.”81 Curry indicates that “the more conservative Trinitarians” would later refer to the Massachusetts system for church support as an “establishment of religion” as they challenged Unitarian claims in the early nineteenth century, since they, like the Baptists, were outvoted in the towns.82 But Sedgwick was certainly not using the language

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did not vote for Article III. Bradley, Church-State Relationships, pp. 26, 59, n. 76, citing Joseph F. Thorning, Religious Liberty in Transition (Washington, D.C.: Catholic University of America, 1931), pp. 26–7. Witte records the vote as 8,865–6,225, citing Robert J. Taylor, ed., Massachusetts, Colony to Commonwealth: Documents on the Formation of its Constitution (Chapel Hill: University of North Carolina Press, 1961). Following Samuel Morison’s initial observation, he points out that “Article III failed to achieve the necessary two-thirds majority vote” required for ratification, but the convention nevertheless treated it as ratified. John Witte, “A Most Mild and Equitable Establishment,” in James H. Hutson, ed., Religion and the New Republic: Faith in the Founding of America (Lanham, Md.: Rowman & Littlefield, 2000), p. 15. See Samuel Eliot Morison, “The Struggle over the Adoption of the Constitution of Massachusetts, 1780,” Massachusetts Historical Society Proceedings 50 (1916–17): 353–412, who records the vote as 8,885 to 6,225. See also McLoughlin, New England Dissent, pp. 630–1, who notes the concerns of the Baptist association, which “must have learned about the juggling of the votes from [Baptist] Noah Alden, who was on the committee that counted the votes. His own tabulation of the returns on Article Three, which does not differ significantly from those which Professor Morison reconstructed, show 8585 in favor and 6298 opposed” (p. 631). McLoughlin, New England Dissent. Whether this “no subordination” clause was inconsistent with the earlier “support and maintenance” clause became the subject of litigation in a case in which a Baptist claimed that the requirement that he provide a certificate to be exempted from being taxed for the local Congregational Church constituted a “subordination.” Attorney General Robert Treat Paine, who had been a member of the Article III committee, argued the case for the state and lost. Unfortunately for the Baptists, the courts in subsequent cases ignored the decision. See William G. McLoughlin, “The Balkom Case (1782) and the Pietistic Theory of Separation of Church and State,” William and Mary Quarterly, 3rd ser., vol. 24 (April 1967): 267–83. Avery, 3 Mass. at 174 (emphasis in original). Curry, First Freedoms, p. 175. He acknowledges that the “Baptists . . . had no doubt that the state maintained an establishment [which they] continued to understand . . . as a preference for Congregationalism.” Ibid.

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of establishment to challenge the system; rather, he seemed quite fond of the “energetic” language by which “Protestant Christianity is established.”83 In considering the relevance of Justice Sedgwick’s use of the “establishment” terminology in our effort to understand the First Amendment, it may also be worth noting that, among his many other distinctions, Justice Sedgwick served as a member of the First Congress that adopted the establishment clause.84 And so, it seems that at least one member of the First Congress believed that there were, in fact, established religions (or churches) in America at the time of the Bill of Rights.85 In a separate opinion in the Avery case, Chief Justice Theophilus Parsons echoed Sedgwick’s language, noting that the third article of the Massachusetts constitution “made some alteration in the ecclesiastical establishments of the state.”86 While this usage seems ambiguous – does he mean “establishment” in its broader sense of “place” or “organization”? – his views were substantially clarified and amplified three years later in Barnes v. Falmouth,87 an 1810 case addressing whether the minister of an unincorporated church (in this case, a Universalist minister) could share in taxes raised under Article III. The case gave Justice Parsons the opportunity, as he 83 84

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Avery, 3 Mass. at 174. See Richard Welch, Theodore Sedgwick, Federalist: A Political Portrait (Middletown, Conn.: Wesleyan University Press, 1965). It is possible that Justice Sedgwick held a different view when he was in Congress in 1789 than he did eighteen years later when he wrote his Avery opinion, but there is no evidence to suggest that this might be the case. One could argue, for example, that there was a rhetorical advantage for supporters of the standing order to eschew the word “establishment” prior to the adoption of the 1780 constitution, and then embrace the term after the establishment clause was adopted so as to take advantage of the “respecting” language, thus insulating state religious establishments from congressional interference. While Boston’s legal Brahmins were fully capable of this kind of interpretive gymnastics, the record provides no evidence in support of this reading. If such evidence did exist, it would further support the argument for the malleability of the term “establishment” that is being made in this chapter. Avery, 3 Mass. at 181. John Noonon describes Parsons as follows: “Theophilus Parsons [bore] a felicitous name for the leader of a religious establishment. . . . To his Republican enemies, he was ‘the Goliath of the Massachusetts Gentile-Army, a man as cunning as Lucifer and about half as good.’ To his admirers, he was the ‘Giant of the Law.’ He was also a convinced Christian believer in the Resurrection and a devout Unitarian.” John T. Noonan, Jr., “Quota of Imps,” in Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Cambridge, U.K.: Cambridge University Press, 1988), pp. 182–3. Daniel Dreisbach notes that Parsons opposed a federal religious test, even though he remarked, “‘No man can wish more ardently than I do that all our public officers may be filled by men who fear God and hate wickedness.’” Quoted in Daniel L. Dreisbach, “The Constitution’s Forgotten Religion Clause: Reflections on the Article VI Religious Test Ban,” Journal of Church and State 38 (1996): 261–95, 281. Barnes v. Falmouth, 6 Mass. 401 (1810).

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writes, to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.”88 He had an unusually good opportunity to consider the views of the framers of this constitutional provision, since he had served as one of the seven members of the Constitutional Convention committee that bore responsibility for this article.89 According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government . . . availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts . . . adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of the citizens.”90 Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.”91 In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man . . . a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of 88

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Ibid. at 404. Cushing describes Parson’s opinion as “the classic statement of the case for the establishment.” John D. Cushing, “Notes on Disestablishment in Massachusetts, 1780– 1833,” William and May Quarterly, 3rd ser., 26, no. 2 (April 1969): 184. The others were Baptist Noah Alden, Samuel Adams (who prepared the working draft), Robert Treat Paine, Caleb Strong (who later served in the First Federal Senate), Timothy Danielson and Congregational minister David Sanford. McLoughlin, New England Dissent, p. 602. Bradley, Church-State Relationships, p. 22. Noonan calls Parsons “a leading spirit of the convention of 1780 [and] the recognized ‘great man of his time.’” Noonan, “Quota of Imps,” p. 183. In light of Justice Parson’s role on the Article III committee, as well as his explicitly establishmentarian language in the Avery and Barnes cases, it seems difficult to reach as strong a conclusion as Bradley does when he states that the drafters of Article III of the Massachusetts Constitution “fully intended to disestablish religion and understood nonestablishment to be the effect of their work”; in support of his conclusion, Bradley cites the language reading “no subordination of any one sect or denomination to another shall ever be established by law,” whereas Parsons appears to find the establishment rooted in the “support and maintenance” clause. Bradley, Church-State Relationships, p. 24. As in the case of Justice Sedgwick, it is conceivable that Parsons changed his views on what constituted an establishment between 1780 (or 1791 when the establishment clause was ratified) and 1810, but I have found no evidence to support that possibility. In fact, Parsons used much of the same language about religious establishments in talks he gave to nisi prius juries beginning in 1806. See Theophilus Parsons, Jr., Memoir of Theophilus Parsons, Chief Justice of the Supreme Judicial Court of Massachusetts (Boston: Ticknor and Fields, 1859), pp. 201–3. Ibid., pp. 405–6. Ibid., p. 406.

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their constitution.”92 Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.”93 It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion and morality.”94 Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”95 Parsons makes a point of defending “this establishment” from a variety of objections,96 but, for our purposes, the importance of the opinion, especially in conjunction with Justice Sedgwick’s opinion in Avery, is that influential 92 93 94 95

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Ibid. Ibid., p. 407. Ibid. Ibid. Noonan notes that the “practical effect of Parsons’s holding was to require religious societies to incorporate. . . . Less than half the Baptist societies were incorporated; even fewer of the other dissenters’ societies had applied for such legitimation by the state. . . . [The] legislature in 1811 passed An Act respecting Publick Worship and Religious Freedom, which put unincorporated religious societies on a par with incorporated ones.” Noonan, “Quota of Imps,” pp. 183–4. Chief Justice Parsons defends the Massachusetts establishment from three major objections, which he describes as: “that when a man disapproves of any religion . . . to compel him by law to contribute money for public instruction in such religion . . . is an infraction of his liberty of conscience; that to compel a man to pay for public religious instructions, on which he does not attend, and from which he can therefore derive no benefit, is unreasonable and intolerant; and that it is antichristian for any state to avail itself of the precepts and maxims of Christianity, to support civil government, because the founder of it has declared that his kingdom is not of this world.” Barnes at 408. The first objection, writes Parsons, “seems to mistake a man’s conscience for his money. . . . The great error lies in not distinguishing between liberty of conscience in religious opinion and worship, and the right of appropriating money by the state. The former is an unalienable right, the latter is surrendered to the state, as the price of protection.” Ibid., p. 409. As to the second objection regarding payment with no benefit, Parsons disagrees, the goal of “religious instruction” is “to teach and to enforce by suitable arguments . . . a system of correct morals among the people, and to form and cultivate reasonable and just habits and manners.” Ibid. From this type of instruction, “every man derives the most important benefits.” This objection, then, is no more reasonable than similar claims made by the childless against supporting public schools or someone with no lawsuit protesting his need to pay for judges and courts. Ibid., p. 410. Finally, as to the anti-Christian nature of the establishment, since “the Founder . . . did not intend to erect a temporal dominion,” Parsons agues that “it is one great excellence of this religion, that, not pretending to worldly pomp and power, it is calculated and accommodated to meliorate the conduct and condition of man, under any form of civil government.” Parsons makes a series of arguments, which need not be described in detail here, generally to the effect that “from the genius and temper of this religion, and from the benevolent character of its Author, we must conclude that it is his intention that man should be benefited by it in his civil and political relations, as well as in his individual capacity.” Ibid., p. 411.

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Massachusetts jurists did not hesitate to describe their town-by-town taxation for Protestant teachers of piety, religion, and morality as an establishment of Protestantism. It may actually have been a de facto establishment of Congregationalism, and it may also have been an increasingly weak and unpopular establishment; nevertheless, it was, according to Justices Sedgwick and Parsons, an “establishment,” despite the fact that Curry cannot find any of those established Protestant teachers actually defending the system in those terms. Before we try to employ the Massachusetts judiciary as our definitional bellwether, however, we need to look at New Hampshire where, at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach,97 was clearly not an establishment of religion. In the 1803 case of Muzzy v. Wilkins, Chief Justice Jeremiah Smith considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for “public protestant teachers of piety, religion, and morality.”98 According to Justice Smith, “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. . . . All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”99 As to Protestant denominations, this expression of equality was probably closer to reality in New Hampshire than in any other part of New England: Episcopalians, Presbyterians, Methodists, and even Baptists served at one time or another as the official ministers of various towns.100 Ultimately, Justice Smith concluded that New Hampshire did not maintain an establishment because, in a relatively rare instance of someone actually defining his use of the term, “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”101

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Curry notes that the major difference was that New Hampshire did not “require that all pay to some minister or attend some worship.” Curry, First Freedoms, p. 186. McLoughlin, New England Dissent, pp. 863–70. Ibid., p. 864. See Charles B. Kinney, Jr., Church and State: The Struggle for Separation in New Hampshire 1630–1900 (New York: Teachers College, Columbia University, 1955), pp. 79, 90; Curry, First Freedoms, pp. 186–8; McLoughlin, New England Dissent, pp. 859–60. McLoughlin, New England Dissent, p. 864.

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In the same vein, McLoughlin notes that “[a]fter 1784, Connecticut, like Massachusetts, New Hampshire and Vermont, had in effect a system of general establishment for the Protestant religion,” but Judge (and member of the Third and Fourth Congresses) Zephaniah Swift, writing in 1796, said that the prior ecclesiastical establishment had been rejected by Connecticut’s 1784 revision of law which, among other things eliminated specific support of “various Congregational associations” and “civil endorsement to the Savoy Confession of Faith.”102 He reached this conclusion despite language in the 1784 revision’s preamble to “An Act for Securing the Rights of Conscience in Matters of Religion, to Christians of every Denomination,” which referred to “other Denominations of Christians who differ from the Worship and Ministry so established.”103 Similarly, when Connecticut’s standing order came under attack from the Danbury Baptists in 1802 and 1803, McLoughlin notes that the “Federalists denied that their laws constituted an establishment.”104 The point of reviewing all of these various and often inconsistent uses of the term “establishment” is not so much to add to our knowledge of the First Amendment, but, if anything, to subtract from it – or, perhaps more accurately, to argue that those commentators who have asserted that there was a clear and widely shared understanding of the term “establishment” during the Founding Era may be overconfident. Although Curry has shown convincingly that many published materials did not call general assessments “establishments,” at least two members of the First Congress seemed to think that general assessment support for Christianity did constitute an establishment: Massachusetts’s Theodore Sedgwick, who thought it was a good thing, and Virginia’s James Madison, who did not.105 And Huntington’s comments in the First Congress evidenced a concern that some people might construe Connecticut’s general assessment approach as a “religious establishment,” even though prominent Connecticut jurist Zephaniah 102 103

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Ibid., pp. 923–4. Curry, First Freedoms, p. 180 (emphasis added). As noted above, Curry writes that “throughout the revolutionary period . . . Connecticut made no bones about the fact of its Congregationalist establishment of religion” (p. 183). He concludes, therefore, that “[o]n this matter, Swift was out of touch with the religious system of his state” (p. 184). McLoughlin, New England Dissent, p. 991. In the First Congress, Sedgwick and his Massachusetts federalist colleague Fisher Ames did not initially favor Madison’s proposed amendments (at least publicly), but, according to Kenneth Bowling, “both men, despite harassing Madison on the floor, let friends know early in the debate that they intended in the end to support a modification of what Sedgwick termed Madison’s water gruel amendments.” Bowling, “‘A Tub to the Whale,’” p. 237.

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Swift said that it was not. At the same time, eight Virginia senators indicated that a federal general assessment might not run afoul of the establishment clause, as noted above. All of this evidence most clearly shows that the word was susceptible of being understood in various ways, a circumstance that led, in one case, to a name-calling diatribe over which prominent New Englander was properly using the term. William McLoughlin describes an argumentative debate in the newspapers as Massachusetts was heading for the convention that produced the 1780 constitution. When Baptist Isaac Backus condemned the Massachusetts system as an establishment of religion,106 a writer called Hieronymus (probably Robert Treat Paine, who later served on the Constitutional Convention committee responsible for Article III) wrote that “Backus . . . displayed ‘his ignorance’ in defining a religious establishment simply in terms of religious taxation.”107 For Hieronymus, the proper definition of a “religious establishment by law is the establishment of a particular mode of worshipping God, with rites and ceremonies peculiar to such mode, from which the people are not suffered to vary.”108 In a subsequent letter, Hieronymus stuck to his position: “I am not able to find anything that has the appearance of establishment. All the various denominations of Protestants are treated alike.”109 In the early days, he argued, Massachusetts had an establishment – “when the state established the Cambridge Platform 106

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Backus was not alone among the Baptists. Curry writes, “In 1790 John Leland specifically stated that ‘a general assessment (forcing all to pay some preachers) amounts to an establishment.’ To the Baptists, then, any ecclesiastical system that mandated the financial support of churches or their ministers amounted to an establishment of religion.” Curry, “Development of the Concepts,” p. 698. Curry also notes that there were Vermont Baptists employing a more expansive, Backus-like definition; in particular, he cites the “Baptists at Woodstock [who] issued a statement condemning ‘all religious establishments (so called) which bind men in acts of building meeting houses, settling ministers, etc.’” Curry, First Freedoms, p. 189. See also McLoughlin, New England Dissent, pp. 801–2. The Connecticut Baptists wrote even more extensively to demonstrate that the state’s laws in support of the standing order represented an “establishment of religion.” See the American Mercury, July 14, 1803, p. 1; see also, McLoughlin, New England Dissent, pp. 991–4. McLoughlin, New England Dissent, p. 615. McLoughlin notes that Hieronymus was answering “Backus’s tract, Government and Liberty Described” (p. 614). Both McLoughlin and Curry suggest that Hieronymus is Robert Treat Paine. Ibid., p. 615, n. 4.; Curry, First Freedoms, p. 172. McLoughlin, New England Dissent, p. 614. Ibid., p. 616. Curry sees these comments as representative of the views of New England proponents of the standing order. See Curry, First Freedoms, p. 172. Charles Lippy concurs with the definitional point made by Hieronymus, although Lippy does not explain why he believes that Hieronymus got it right: “He correctly argued at the outset that in a technical sense setting up an established religion involved the designation of one specific religious body as the official state church. Advocates of . . . a religious tax intended nothing of the sort and clearly would not establish any single religion as the sole official one for the

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as the creed of the colony”110 – however, “since . . . 1692 the Congregational churches had been disestablished,” and, as McLoughlin notes, “the laws supporting them defined no heresy except Papism and atheism, both of which were proscribed in the name of civil safety and not of religious conformity.”111 In the end, according to McLoughlin, “the definition of ‘establishment’ was not settled and it really did not matter for whether the New England system was an establishment or not the Baptists opposed it.”112 Perhaps John Adams best characterized the definitional uncertainties inherent in New England’s evolving patterns of church-state interactions. Commenting on Massachusetts’s support for churches a few years before the Commonwealth essentially codified that approach in the 1780 constitution, Adams wrote that the “laws of Massachusetts were the most mild and equitable establishment of religion that was known in the world, if indeed they could be called an establishment.”113 Isaac Backus recorded a similar comment by Adams to the effect that “there is indeed an ecclesiastical establishment in our province, but a very slender one, hardly to be called an establishment.”114 Curry sees these statements as a “soft-pedaling of the

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state.” Charles H. Lippy, “The 1780 Massachusetts Constitution: Religious Establishment or Civil Religion?” Journal of Church and State 20 (1978): 533–49, 544. McLoughlin, New England Dissent, p. 616. Ibid. McLoughlin comments further: “Like many other Congregationalists, Hieronymus considered it entirely possible that a Baptist might be selected minister of some parish and pretended that nothing in the law would preclude his being duly installed” (pp. 616–17). If Hieronymus was, in fact, Robert Treat Paine, then we can see that even the members of the Article III committee did not share a common definition of “establishment” since fellow member Theophilus Parsons makes it clear in Barnes v. Falmouth that Article III represented the establishment of Protestant Christianity. Barnes 6 Mass. at 404. McLoughlin, New England Dissent, p. 617. Quoted in Curry, First Freedoms, p. 131. It would be difficult to argue that the Massachusetts church-state system underwent a significant enough change following Adams’s comment to affect the understanding or use of the word “establishment.” Cushing observes that the “traditionalists . . . largely succeeded in enshrining the ecclesiastical status quo of 1779 in the constitution.” Cushing, “Notes on Disestablishment,” p. 173. See also Witte, who takes his title from Adams’s statement; he cites this quotation as follows: “Diary entry, October 14, 1774, in Adams, Works, vol. 2, p. 399 (referring to the congregational establishment of colonial Massachusetts, largely preserved in the 1780 Constitution).” Witte, “A Most Mild Establishment,” p. 31, n. 6. Isaac Backus argued that under Article III, the Baptist case “would be incomparably worse than it has ever been,” in part because “our former laws about worship proceeded entirely from mistakes and errors of the legislators and not at all from our charters, but this article would make them an essential part of our constitution.” Quoted in William G. McLoughlin, ed., Isaac Backus on Church, State, and Calvinism: Pamphlets, 1754–1789 (Cambridge, Mass.: Harvard University Press, 1968), pp. 392–93. Quoted in Curry, First Freedoms, p. 131.

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Massachusetts establishment,”115 which it undoubtedly was, but despite the efforts of numerous New England proponents of the standing order to distance themselves from the term, either by avoiding it altogether or by defining it as strictly as possible, New Englanders simply did not share one definition of establishment, irrespective of whether they were for or against whatever it was. Curry asserts that some of the people commenting on New England’s ostensibly even-handed general assessment approach saw it as, in fact, just a new way to continue the pre-existing exclusive establishment of Congregationalism or Anglicanism. That is, the appearance of individual choice in the assessment programs was neither intended nor perceived as nonpreferential support for multiple religions; accordingly, even the town-based assessments that existed in New England should not be considered as anything but a single establishment of the demographically dominant Congregationalist church. Curry’s basic point is that the proponents of general assessments did not seek to defend them as acceptable forms of multiple or nonpreferential establishments. That terminology typically appeared only in the arguments of the detractors, who often saw the assessments as just continuations of the prior exclusive establishment of Congregationalism in New England. “Certainly,” Curry concludes, “they showed no awareness that their states were supporting several, i.e., ‘multiple,’ establishments.”116 Chief Justice Parsons and Justice Sedgwick, however, both spoke of an establishment of Protestant Christianity, a concept that necessarily includes multiple denominations, and while the Barnes decision made it more difficult for non-Congregationalists to receive state tax benefits, that possibility clearly existed, at least for incorporated religious societies, which included Baptists and others at the time.117 Moreover, New Hampshire, which came closest to Levy’s model of a “multiple establishment,” had, in fact, supported a variety of Protestant churches pursuant to a town-based general assessment approach. Curry argues further that neither side in the debates over state aid to religion “attempted to show that a general assessment constituted an essentially different kind of establishment or to differentiate it from an exclusive state 115 116

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Ibid., p. 132. Curry, First Freedoms, p. 210. Leonard Levy reaches the opposite conclusion. See Levy, Establishment Clause, p. 24. While it is conceivable that Sedgwick and Parsons were being disingenuous in their terminology, pretending to find Protestant ecumenism where they only expected to see Congregationalism, from the point of view of how the general American populace (or voters) might have understood the term “establishment,” it seems more reasonable to conclude that the usage of the word in these opinions would be taken at face value by at least some readers.

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preference for one religion.”118 He takes this observation to mean that sect preference is an essential element of the late-eighteenth-century concept of establishment. While it is possible to reach this conclusion from his data set, which draws heavily from sermons and newspapers, it is perhaps more reasonable to see a concept in transition: Thoughtful people on all sides of the debate can be seen using the term “establishment” in a variety of different ways, and there is no good reason for us to force the diverse array of materials from the Founding Era into a convenient common usage amidst the protean polemics and pronouncements employing such a politically and theologically charged word.119 From our originalist orientation, it would certainly be easier if the word “establishment” had a clearly discernible, fixed meaning in the minds of the American public in 1791 (hence the numerous arguments for just such a finding), but it seems reasonable to establish a fairly significant burden of proof for originalist conclusions that will drive critical twenty-first-century decisions based on eighteenth-century words and deeds. In this particular case, there was no reason that people needed to have a common understanding of the word “establishment” to vote for (or against) the First Amendment, and the best description of all of the available evidence is that they did not. That we, through the course of the past two hundred years, have yet 118 119

Curry, First Freedoms, p. 210. Similarly, it is not necessary here to attempt to catalogue in a comprehensive fashion all recorded uses of “establishment” in a church-state context in late-eighteenth-century America. The point of this analysis is merely to demonstrate that we cannot confidently conclude that the establishment clause was understood by all who read or heard it in a particular way because there was an easily identifiable, single use of the phrase “establishment of religion.” McConnell may be correct when he asserts, with respect to the establishment clause, that “virtually every American – and certainly every educated lawyer or statesman – knew from experience what those words meant.” Michael W. McConnell, “Establishment and Disestablishment at the Founding, Part 1: Establishment of Religion,” William and Mary Law Review 44 (2003): 2107. Where I differ from McConnell is that he appears to think that all of those Americans thought it meant the same thing. There may well have been church-state interactions that would have been widely or even universally seen as an “establishment,” such as the Anglican Church in England. It may have even been the case that Congress had in mind prohibiting nothing more than an American version of the Church of England, while strict separationists are bound to argue that Huntington was right to think that the clause would be considered more broadly than that. But at least as to the enhanced federalism argument, since all of the New England states drew a sharp distinction between their standing orders and a Church of England– type of arrangement, a narrow definition of establishment that is limited to describing the well-known Anglican “church established by [English] law” would not be helpful because, in that case, the First Amendment would “protect” state establishments only if those practices returned to the earlier Puritan practice of legally mandated creeds, rites, and ceremonies.

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to settle on a single understanding of what “an establishment of religion” means is perhaps one small additional piece of evidence supporting a verdict that the concept could have meant different things to different people during the Founding Era as well.120 Interpreting the Evidence The Enhanced Federalism Argument How should we apply all of this information to an originalist interpretation of the establishment clause? If there is no definitional mandate emerging from a review of the legislative history, the ratification debates, and the broader use of the relevant language, we need to expand our interpretive vista and explore the historical backdrop. Beginning with the broadest issue of the relationship of the federal government to a particular religion, there is no direct evidence supporting the interpretation that Congress can constitutionally raise taxes for the purpose of having a single national church along the lines of the Church of England. While it is possible to take a very strong view of the enhanced federalism argument and read the establishment clause as serving the sole purpose of protecting entrenched state establishments from congressional interference, such an interpretation would run directly counter to a range of evidence, including a number of comments in the debates in the First Congress. Madison spoke several times of the goal of prohibiting a national religion, and all of the congressional comments suggested that the other legislators understood the clause in the same fashion. Moreover, the records from the ratification conventions, especially in Virginia and North Carolina, clearly focused on concerns about a national religion. An interpretation of the establishment clause that would permit Congress to create a national church goes well beyond the leaving-the-statesalone realm of federalism. To support such a bold interpretation of the federalism approach, one needs to posit that clever pro-establishment legislators hoodwinked Madison and others in the Congress into thinking that the First Amendment contained restrictions on federal church-state interactions when, in fact, it not only protected established churches in the states but also left Congress free to establish a church at the national level. In other words, 120

This argument for the possibility of multiple potential meanings (but with a fairly high likelihood that each speaker or auditor was quite sure that only one meaning was the correct one) seeks not to cast the establishment clause into a post-modernist drift. It is possible to narrow the range of historically supportable usages within the entire set of possible links between religion and government, as discussed more fully below.

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the establishment clause is, at both federal and state levels, much closer to a pro-establishment provision than a non-establishment approach. Such an argument is virtually impossible to support on the available evidence. Following the trail of the arguments advanced by Smith, it is possible to advance a different enhanced federalism approach, namely, that the members of the First Congress – and Americans in general – were so divided on church-state issues that they could not possibly have resolved their fundamental differences.121 Accordingly, they had no choice but to adopt language that would allow them to duck the federal issue altogether. In other words, 121

This would be consistent with Smith’s view that the establishment clause did not contain any “substantive answer to . . . difficult and controversial” church-state questions. Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), p. 34. Proponents of the enhanced federalism interpretation do not necessarily take the view that there was no substantive effect of the establishment clause. Smith himself asserts that the clause banned a national established church, although it is somewhat perplexing to see how he makes the transition from his description of an intractable dispute between the traditionalists and the voluntarists over whether the government should support religion to an apparent agreement on such a substantive issue. See Smith, Foreordained Failure, p. 23, and Steven D. Smith, “The Jurisdictional Establishment Clause: A Reappraisal,” Notre Dame Law Review 81 (2005– 6): 1871–2. In this article, Smith contradicts some of his critics who accused him of holding what he calls “the wildly implausible view” that the establishment clause would not have prevented a national church. Ibid., p. 1872. To the extent that his analysis of the history of church-state disagreements is a persuasive foundation for the original meaning of the establishment clause, however, it more easily leads to the conclusion that he states elsewhere in his book: “The religion clauses were not a hybrid creation – part federalism, part substantive right. They were rather, simply an assignment of jurisdiction over matters of religion to the states – no more, no less.” Smith, Foreordained Failure, p. 18. Meanwhile – as will be argued here – if, contra Smith, there was no irresolvable tension between traditionalists and voluntarists over the issue of a national church, then we do not need to hunt for an interpretation of the text other than the one repeatedly stated before, during, and after the establishment clause was adopted – namely, Congress cannot create a national establishment of religion. For others who argue for an enhanced federalism interpretation that encompasses a ban on a national church, see Daniel L. Dreisbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment (Westchester, Ill.: Crossway Books, 1987), pp. 74, 78 (“[S]ince the Constitution provides for a government of delegated powers only and the First Amendment expressly denied Congress . . . the power to legislate on matters pertaining to religion, the federal government is foreclosed from financially aiding religion. . . . The First Amendment was [also] a guarantee to the states which ensured that the state governments would be able to continue whatever church-state relationship existed in 1791.”); Munoz, ˜ “Original Meaning,” p. 630 (“The Establishment Clause thus made clear that Congress lacked power to legislate a national establishment or to pass legislation directly regarding state establishments (or the lack thereof)”); Akhil Reed Amar, The Bill of Rights (New Haven, Conn.: Yale University Press, 1998), p. 32 (“The establishment clause did more than prohibit Congress from establishing a national church. Its mandate that Congress make no law ‘respecting an establishment of religion’ also prohibited the national legislature from interfering with, or trying to disestablish, churches established

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the establishment clause is totally agnostic on the subject of federal churchstate interactions. In making his case, Smith bases his argument primarily on the impossibility of achieving any consensus in light of the bitter dispute between the traditionalists, who believed in state-supported churches, and their voluntarist opponents, a controversy so intractable that the Congress was unable to agree upon any substantive principle. Although Smith does not push his argument this far, it could be argued that there was so little common ground between traditionalists and voluntarists that even a principle of “no national church” could not have been approved and ratified. While Smith is certainly right that the battles concerning government support for religion were far from over in 1789, he has extended this controversy too far from its natural home. There is no evidence that any of the traditionalists who favored having churches established by state governments also believed that the federal government should have the power to do so. Inherent in the enhanced federalism argument is the fundamental point that state governments should be free to exercise the power to establish churches unfettered by any federal interference. That state governments should have this power while it is denied to a new national government is an entirely reasonable and consistent position, even for the traditionalists. And so, while a completely nonsubstantive interpretation of the establishment clause is a potentially plausible reading of the text in isolation, there is simply not enough supportive historical evidence to overcome the burden of the concerns manifested in the state ratifying conventions and the congressional debate commentary about preventing the establishment of a national religion. In fact, Massachusetts Congressman Fisher Ames introduced the final house version reading “Congress shall make no law establishing religion,” which strongly supports the argument

by state and local governments”); Kurt T. Lash, “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1085, 1091 (“This wording simultaneously forbids the federal government from establishing a religion at the federal level, or attempting to disestablish at the state level”); Kent Greenawalt, “Common Sense about Original and Subsequent Understandings of the Religion Clauses,” University of Pennsylvania Journal of Constitutional Law 8 (May 2006): 511 (“By far the most plausible reading of the [establishment clause] is that Congress . . . could neither establish a religion within the states nor interfere with state establishments, and that Congress could not establish religion within exclusively federal domains”); and Joel Rubenfeld, “Antidisestablishmentarianism: Why RFRA Really Was Unconstitutional,” Michigan Law Review 95 (1996–7): 2347, 2350 (“[T]he First Amendment . . . does not only prohibit Congress from establishing religion; it prohibits Congress from dictating to the states how to legislate religion”).

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that even New England traditionalists were prepared to foreclose a national establishment. If traditionalists actually believed that all governments must support churches, there would be a significant body of sermons, speeches, and legislation lobbying for a national church, whereas, instead, traditionalists focused their attention on the ecclesiastical situations in their own states and towns. Even if an enhanced federalism interpretation turns out to be persuasive on the subject of protecting state-level establishments from meddling by Congress, the evidence and the context support the conclusion that a single national church would not be consistent with the First Congress’s understanding of the establishment clause, and we have no evidence suggesting that the ratifiers or the general public saw it any other way. The more common version of the enhanced federalism argument relates to the possibility voiced by Justice Clarence Thomas that there is something about the establishment clause that “resists incorporation.”122 This argument has been advanced in a variety of ways, but the basic point is that the First Amendment was specifically designed to protect the established churches in the states from federal interference. That Congress should make no law “respecting” an establishment of religion is thus read as forbidding laws on the subject matter of religious establishments in the states.123 Since just about everybody but Curry believes that there were state establishments, at least in New England, until well into the nineteenth century, one could imagine that some of those states might have wanted to insulate their practices from the possibility of federal interference. Huntington’s comments in the First Congress expressed a concern that the original version proposed by Madison (“no religion shall be established by law”) might be interpreted to adversely affect Connecticut’s approach to church and state. Moreover, New Hampshire’s proposal that “Congress shall make no Laws Touching Religion” sounds like it would forbid Congress from legislating on the subject of religion, including state ecclesiastical laws. With this strong a role in

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Or, as Amar writes, “[T]he nature of the states’ establishment clause right against federal disestablishment makes it quite awkward to mechanically ‘incorporate’ the clause against the states via the Fourteenth Amendment.” Akhil Reed Amar, “Some Notes on the Establishment Clause,” Roger Williams University Law Review 2 (1996–7): 3. Proponents of an enhanced federalism interpretation sometimes broaden this concept to apply to all matters of religion. Smith, for example, calls it “simply an assignment of jurisdiction over matters of religion to the states. . . . ” Smith, Foreordained Failure, p. 18. But since the enhanced federalism approach is driven by the phrase “respecting an,” it is important to note that those words relate only to “an establishment of religion” since the rights of conscience are dealt with by the language “or prohibiting the free exercise thereof. . . . ” If there is a reasonable basis for a jurisdictional, enhanced federalism interpretation of the First Amendment, the text itself would limit its reach to establishments of religion, not religion in general.

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the First Congress played by representatives from New England states, all of which had long-standing provisions for collecting taxes in support of churches, it is hard to view the First Amendment as unfriendly to the concept of the states’ support of religion, and it is only a small step further to see Livermore’s “touching Religion” phase as the precursor to the “respecting an establishment” language. Was Livermore’s proposal, in fact, meant to shield the New England general assessments from federal interference? Unfortunately, the historical background is frustratingly murky, and the language is so ambiguous that, on the one hand, it has been cited as representing an especially radical position advocated by anti-establishment dissenters, and, on the other, it has been interpreted as a pro-establishment, federalism-enhancing protection for the New England standing order. Philip Hamburger suggests, for example, that New Hampshire’s “no touching” language emerged from positions taken at various times by dissenting Virginia Presbyterians, Thomas Paine, and James Madison’s Memorial and Remonstrance to the effect that “Religion is wholly exempt from [the state’s] cognizance.”124 Such a “no cognizance,” jurisdictional approach to church-state issues could, in theory, represent such a strongly anti-establishment position that not only would it prohibit an established church but it could call into question the government’s ability to recognize marriages or provide religious exemptions from military service (an especially sensitive subject for Quakers).125 The fact that the New Hampshire Baptists were frequently anti-federalists and opposed ratification of the original Constitution may add credence to Hamburger’s view that New Hampshire’s proposal had roots in the dissenting churches’ anti-establishment views.126

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Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), pp. 101–5, quoting Madison’s Memorial and Remonstrance. Ibid., p. 107. “Even the evangelical opponents of establishments had no desire for an antiestablishment clause so strong as to forbid laws protecting their property or recognizing their marriages, and Quakers hardly wanted a guarantee that would have nullified legislative exemptions.” Hamburger thus concludes that the First Amendment was very “carefully drafted” to achieve a “no cognizance” approach via the “respecting” language but without calling into question Congress’s ability to protect the free exercise of religion (p. 101). It is not at all clear, however, that Congress thought this clearly about the language, and Livermore himself indicated that “the sense of” New Hampshire’s language was the same as that of the proposal being debated, which did not have “no cognizance” language: “no religion shall be established by law.” McLoughlin, New England Dissent, p. 852, referring to William Hooper, a “leading Baptist delegate” to New Hampshire’s constitutional convention and the ratifying convention (pp. 851–2). McLoughlin points out, however, that it “is unknown whether Hooper favored the amendment to the United States Constitution Samuel Livermore proposed at the ratifying convention” regarding “no laws touching religion” (p. 852, n. 45).

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Meanwhile, an alternative, enhanced federalism reading of New Hampshire’s proposal derives from a combination of the text – that is, that a federal law banning state-level general assessments would be a law “touching religion” – and the fact that Livermore was an Episcopalian (married to an Episcopalian rector’s daughter) in a town where his church was probably the beneficiary of the town’s general assessment (especially since a Congregational church was not settled there for many more years).127 He may thus have wanted extra protection for New Hampshire’s ecclesiastical laws.128 Another possible interpretation is that Livermore was less concerned about federal interference with New Hampshire’s laws than, in McLoughlin’s words, “his desire to protect the Anglican Church since many thought it possible that Congress might try somehow to create a Calvinistic establishment led by Presbyterians and Congregationalists.”129 Under this reading, Livermore was trying not to maintain New Hampshire’s status quo (i.e., his proposal was not federalism-enhancing) but to avoid a national establishment of the wrong branch of Protestantism. In short, we have no idea what Samuel Livermore or, more broadly, the New Hampshire ratifying convention sought to achieve with the “no touching” proposal. Although the “touching” language appears, on its face, to argue for a possible enhanced federalism interpretation, Livermore’s recorded comments in the First Congress fail to mention a jurisdictional design, and he directly makes the point that the “sense” of New Hampshire’s proposal was the same as the clause under discussion (“no religion shall be established”), which contained no federalism-enhancing language. In light of that comment, McLoughlin’s suggestion is likely to be the most accurate – that is, that some in New Hampshire and perhaps Livermore himself wanted to ensure against a national establishment. Such an interpretation would put the New Hampshire proposal squarely in the mainstream of the other states that proposed non-establishment language. Moreover, after the Committee of the Whole passed Livermore’s proposal, the Congress adopted instead Fisher Ames’s suggestion, which contained no federalism-enhancing language.

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See Robert F. Lawrence, The New Hampshire Churches (Claremont, N.H.: published for the Author, 1856), p. 580, regarding Livermore’s town of Holderness; and Stokes, Church and State, vol. 1, pp. 314–18, for biographical details. Kinney calls Livermore “a staunch Episcopalian, a pillar of the church at Holderness.” Kinney, Church and State, p. 97, n. 36. See Joseph M. Snee, “Religious Disestablishment and the Fourteenth Amendment,” Washington University Law Quarterly 1954 (December 1954): 371–407. McLoughlin, New England Dissent, p. 852, n. 45.

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Viewed from a modern vantage point, the enhanced federalism argument is certainly a plausible interpretation of the constitutional language that was adopted. Even in its contemporary context, there is little evidence that can be cited against it, since the net effect of the establishment clause on churchstate interactions in the various states was zero.130 But that is equally true for all of the other provisions of the First Amendment, and it appears that the enhanced federalism argument more boldly stands for the proposition that the establishment clause, because it was specifically intended to protect state establishments, “resists incorporation”: To incorporate the establishment clause would be to frustrate the original intention behind the establishment clause, which was to allow each state to make its own church-state decisions free of any threat of congressional interference. While the amendment’s language is possibly consistent with an enhanced federalism interpretation, there is no specific support in records of the debate in the Annals of Congress. Huntington expressed concerns that constitutional language saying that “no religion shall be established” (i.e., without an explicit statement that Congress was the subject of the clause) might be misconstrued in a way that could affect the churches in Connecticut; Madison responded by offering to specify that “no national religion shall be established,” indicating that even Madison did not expect for this clause to bear on practices in the states, but he shows no desire to add an extra layer of protection for them. New Hampshire’s “touching” language is all there is to imply that there could have been some sort of specific federalism intent behind the text of the amendment, but, after Livermore’s language passed, Massachusetts’s Fisher Ames, certainly a New England traditionalist in church-state thinking, came back with a different version lacking the “touching” or “respecting” concept. If the New Englanders were conspiring to protect their standing orders via clever wording in the Livermore version of the establishment clause, no one told their fellow New Englander Fisher Ames (or the others who voted for the Ames version, which became the final House language). To be sure, there is no evidence that anyone in Congress 130

Thus, Dreisbach can accurately point out that the “jurisdictional (or structural) view” of the effect of the establishment clause was “virtually unchallenged in the founding era.” Daniel L. Dreisbach, Thomas Jefferson and the Wall, p. 62. But here Dreisbach is discussing plain vanilla federalism, as expressed by Jefferson when he pointed out that issues of religion, speech, and press are governed by the states, not by Congress. Such plain vanilla federalism was, in fact, “virtually unchallenged.” As to a special enhanced federalism applying only to the establishment clause, no one challenged it because no one asserted it, not because everyone believed it to be true. The addition of the First Amendment did nothing to change the basic tenet of plain vanilla federalism. But that does not mean that an extra layer of federalism was added when the establishment clause was ratified.

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thought that the establishment clause should apply to state action, but, at the same time, there is nothing to suggest that the members of the First Congress believed that it contained a stronger dose of federalism than any other aspect of the Constitution. To give the enhanced federalism argument its best chance, we can construct a scenario that could conceivably support some degree of congressional interest in a “protecting state establishments” reading of the clause. In doing so, however, we need to acknowledge that it starts from a very weak foundation: The House completed its efforts with the Ames version, that is, absent federalism-friendly language, and then the Senate approved something completely different, but which also lacked the “respecting,” concept. At this point, both houses of Congress had spoken, and neither version incorporated “touching,” “respecting,” or any other language that would lead a reader to expect that the heart of the provision was a subject matter exclusion. Instead, the two versions read like variations on the theme articulated by Madison – that no “national religion” should be established.131 At this point, the establishment clause disappeared into the conference committee, and the best argument for a federalism-focused legislative intent would be to imagine that the conferees inserted such a concept before presenting the final version for congressional approval. The argument might go like this: Connecticut’s Huntington was concerned that the language “no religion shall be established by law” could be read in a way that would affect his state’s approach to religion. Two of his Connecticut Congregationalist colleagues served on the six-member conference committee; both were distinguished and influential former members of the Continental Congress – Roger Sherman from the House and future Chief Justice Oliver Ellsworth from the Senate. As presented to the conference committee, the introductory phrase of the clause was common to both versions: “Congress shall make no law establishing.” Then the question was, What could the Congress not establish? – the House’s simple “religion” or the Senate’s lengthier “articles of faith or a mode of worship”? We have no idea what the committee members discussed, but we do know that the words “respecting an establishment of” were added before the House’s word 131

The Senate’s language invoked phrases that had been used for decades in New England to describe the Church of England–type of establishment in distinction to the New England approach. As Curry writes, “Congregationalist writers [in the mid-eighteenth century], while . . . defending their own kind of establishment, also spoke of another kind, that of the Church of England, of which they heartily disapproved. Using code words they labeled this disapproved establishment ‘National’ or ‘Provincial,’ or described it as imposing ‘Articles of faith’ and ‘particular modes of worship.’” Curry, First Freedoms, p. 116.

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“religion” in one of the drafts, and the “respecting” phrase was in Oliver Ellsworth’s handwriting. It is conceivable that Ellsworth, who, according to William Casto, “had a serious interest in religion and was quite orthodox [in the New England tradition] in his views on the proper relationship between church and state,”132 shared Huntington’s concerns and, therefore, proposed this language as a convenient way to achieve the main legislative goal – that is, that Congress will not establish a national religion – while, at the same time, making it clear that Congress will not pass any laws affecting any other establishment of religion, such as may have existed in his own state.133 Ellsworth might have told his fellow conferees why he favored the new language, or he may have merely offered it as appropriate language without further explanation. He was arguably the most experienced lawyer and judge on the conference committee, and the others may have been willing to defer to his desire to add the words “respecting an” even if they did not know why he wanted to make such a change. It is unclear what would have happened if he had explained that he and his Connecticut colleagues were hoping to shield “establishments” in the states.

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William Casto, “Oliver Ellsworth’s Calvinism: A Biographical Essay on Religion and Political Psychology in the Early Republic,” Journal of Church and State 36, no. 2 (Summer 1994). Oliver Ellsworth’s most frequently cited views on church-state issues come from one of the series of “Landholder” letters he published anonymously in Connecticut in 1787– 88. His December 17, 1787, letter strongly supported the United States Constitution’s “no religious test” provision, largely for two reasons: (1) “A test in favour of any one denomination of Christians . . . would incapacitate more than three-fourths of the American citizens,” and (2) even “the least exceptionable [test, which] would be one . . . requiring all persons appointed to office to declare . . . their belief in the being of a God, and in the divine authority of the scriptures” would not prevent “an unprincipled man . . . to dissemble!” Paul Leicester Ford, ed., Essays on the Constitution of the United States (Brooklyn, N.Y.: Historical Printing Club, 1892), pp. 168–71. Ellsworth continues his argument by making the point that “while I assert the rights of religious liberty, I would not deny that the civil power has a right to interfere in matters of religion. It has a right to prohibit and punish gross immoralities and impieties. . . . I heartily approve of our laws against drunkenness, profane swearing, blasphemy, and professed atheism.” A further insight into Ellsworth’s support for Connecticut’s standing order resulted from an 1802 petition to the government of Connecticut from the Danbury Baptist Association (i.e., the group that prompted Jefferson’s “wall of separation” letter). McLoughlin calls the petition “a bold, root-and-branch plea for a complete repeal of all laws which in any way might be construed as establishing religion in Connecticut.” McLoughlin, New England Dissent, p. 988. Ellsworth chaired the General Assembly’s committee to consider the petition, and, McLoughlin notes, “According to one story, Ellsworth reflected the general contempt in which the committee held the petition when, at its first meeting, he took the petition, threw it on the floor under the table, and put his foot on it, saying, ‘This is where it belongs’” (p. 989).

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Sherman also hailed from Connecticut, where he followed, as Julian Boyd has written, “the iron rules of conservative orthodoxy in Church and State.”134 While he would certainly want to protect Connecticut’s standing order, it seems more likely that he would have maintained the position he took in the House debates that Congress had no delegated authority over state establishments; based on his brief comments, he would have thought further protection for them both moot and redundant. Madison was at the other end of the spectrum; he was undoubtedly the most anti-establishment member of the committee, and while his response to Huntington showed that he did not expect the establishment clause to influence state churchstate practices, there is no evidence to suggest that he would have taken the affirmative step of providing an extra layer of protection for them. Madison, rather than Ellsworth, might have more likely found a kindred spirit in Maryland’s Charles Carroll, a Roman Catholic from Maryland, where he grew up under an Anglican establishment that imposed legal disabilities and particularly heavy taxes on Catholics. In the 1770s, Carroll was part of a group publicly attacking Anglican privileges,135 and later, when serving on the committee that drafted a Bill of Rights for Maryland in 1776, he “expressed his own sentiments,” in biographer Thomas Hanley’s words, in the provision stating: “No person . . . ought to be by any law molested in his person or estate for his religious persuasion . . . nor compelled to . . . contribute, unless on contract, to maintain any religious worship, place of worship, or ministry.”136 By this provision, “Maryland abandoned its Church of England establishment,”137 in Curry’s words, but, at the same time, Maryland’s Bill of Rights empowered the legislature to “lay a general 134

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Julian P. Boyd, “Roger Sherman: Portrait of a Cordwainer Statesman,” New England Quarterly 5, no. 2 (April 1932): 221–36, 221. Boyd also writes, “When in the midst of the chaotic debate that threatened to disrupt the (Constitutional) convention, Benjamin Franklin moved that the meetings to be opened with prayer, he probably did it altogether for its psychological effect. But when Roger Sherman seconded the motion, he did it with a devout and fervent belief in the efficacy of prayer” (p. 233). Thomas O’Brien Hanley, The American Revolution and Religion: Maryland 1770–1800 (Washington, D.C.: Catholic University of America Press, 1971), pp. 15–21. Thomas O’Brien Hanley, Revolutionary Statesman: Charles Carroll and the War (Chicago, Ill.: Loyola University Press, 1983), pp. 175–6. Curry, First Freedoms, p. 153. See also John Corbin Rainbolt, “The Struggle to Define ‘Religious Liberty’ in Maryland, 1776–85,” Journal of Church and State 17 (1975): 443– 58, who notes that while historians tend to focus on events in Virginia and Massachusetts, “Maryland probably had the greatest discontinuity in the relationship of church and state after 1776,” p. 444. See also Albert W. Werline, Problems of Church and State in Maryland during the 17th and 18th Centuries (South Lancaster, Mass., 1948).

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and equal tax for the support of the Christian religion.”138 While nonpreferentialists have seized on Carroll’s involvement in the drafting of this latter provision as evidence that he “was probably agreed to the (nonpreferential) use of governmental funds to aid religion,”139 such a proposed general assessment was defeated in 1784, in part due to opposition from Maryland’s Roman Catholics.140 This background does not paint a clear enough picture to reach any firm conclusions on whether Charles Carroll would have been willing to support a Connecticut-led plan to shield state “establishments” from acts of Congress, but it would certainly be inappropriate to assume that he had an interest in shielding any non-existent Maryland laws or that he would naturally have sided with proponents of the New England ecclesiastical laws, especially since they were explicitly for the benefit of Protestants in a region where Roman Catholics were discriminated against by state laws and constitutions. Delaware’s Vining, an Episcopalian, had unenthusiastically chaired the committee of eleven that had reported an early draft of the Bill of Rights, which included the language “no religion shall be established by law.”141 Since this language lacked federalism-enhancing elements and did not even mention “Congress” (in fact, it was this language that had worried Congressman Huntington), it seems unlikely that Representative Vining, who hailed from a state that, in Curry’s words, “established no churches,” carried into the conference committee a concern about explicitly protecting any existing state establishments.142 Meanwhile, New Jersey’s Paterson is even 138

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The rest of the clause read: “leaving to each individual the power of appointing the payment over of the money collected from him to the support of any particular place of worship or minister; or for the benefit of the poor of his own denomination, or the poor in general of any particular county.” Quoted in Hanley, American Revolution, p. 64. Chester James Antieau, Arthur T. Downey, and Edward C. Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee, Wisc.: Bruce Publishing, 1964), p. 191. See Hanley, American Revolution, pp. 65–8; and Rainbolt, “Struggle,” pp. 455–8. Bowling, “Tub to the Whale,” pp. 239–40. In his brief reported comment in the congressional debate, he merely asked to put the right of conscience clause ahead of the no-establishment clause. Curry, First Freedoms, p. 159. Bradley puts Vining philosophically into the proestablishment camp on the basis of an unsuccessful vote cast in the Continental Congress to set aside land for religious purposes in the Land Ordinance for the Northwest Territory. He cites Ronald A. Smith, “Freedom of Religion and the Land Ordinance of 1785,” Journal of Church and State 24 (1982): 589–602, 596. Without further evidence, it is too much of a stretch to take from this one vote that “Vining was on record [of being] in favor of publicly supporting religion,” and even more difficult to conclude that he would have wanted to provide special protection for the New England “establishments.” Moreover, Vining’s select

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harder to judge. We do not have much information about Paterson’s views on church-state issues apart from occasional comments about aristocratic Anglican “high fliers” in his home state and concerns about an Anglican bishop in America; more generally, he seems to have imbibed evangelical “New Side” Calvinism while in college at Princeton.143 At the same time, his friendship with Ellsworth went back to their overlapping involvement in Princeton’s “Well Meaning” club in the 1760s, so it is conceivable that he would have been simply willing to follow Ellsworth’s lead.144 In light of the backgrounds of the conference committee members, is it possible that Oliver Ellsworth intentionally brought about federalismenhancing language into the establishment clause? While it may be possible, there is not enough affirmative evidence to convert “possible” even into “plausible.”145 There is also no evidence suggesting that Ellsworth or the conference committee meant to bring about a constitutional outcome so different from the House and Senate versions, both of which lacked state establishment-protecting language, and there is nothing about the composition of the conference committee that would lead us to suspect such a shift in constitutional focus. Moreover, there was no further recorded debate in the Congress that can provide any support for the enhanced federalism approach. The committee’s version was approved by the entire Congress without recorded debate or discussion146 and was ratified, again with no recorded debate except for the comments of the Virginia senators described above.

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committee (which included Roger Sherman) could have inserted federalism-enhancing language when it removed the word “national” from Madison’s original proposal and made other minor changes, but it did not do so. See John E. O’Connor, William Paterson: Lawyer and Statesman, 1745–1806 (New Brunswick, N.J.: Rutgers University Press, 1979). See James McLachlan, Princetonians 1748–1768: A Biographical Dictionary (Princeton, N.J.: Princeton University Press, 1976), pp. 437, 555–6. Both men also played leading roles in creating the Judiciary Act of 1789, and then later served together on the Supreme Court. William Casto goes one step further, deeming the possibility of “substantive distinctions” between the Congress’s version and the final version to be “wildly implausible.” See William R. Casto, “Oliver Ellsworth’s Calvinist Vision of Church and State in the Early Republic,” in Mark David Hall, Daniel L. Dreisbach, and Jeffry Morrison, eds., The Forgotten Founders on Church and State (South Bend, Ind.: University of Notre Dame Press, 2009). His conclusion is based, in part, on well-established parliamentary procedures (with which Ellsworth was very familiar) providing that the conference committee had no authority to change the meaning of the establishment clause as it was submitted by the House of Representatives. Ellsworth’s report to the Senate suggests that the House insisted on the final establishment clause language, which may weaken the theory of the Ellsworthian origins of the ultimate version.

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To what extent, then, can we discern an originalist interpretative mandate that the clause incorporated a distinct element leading legislators, ratifiers, or the general public to believe that there was a stronger dose of federalism in the establishment clause than was inherent in the original constitutional sense of a federal government limited to specifically delegated powers? To be sure, the clause is explicitly limited to “Congress,” and all of the debates focused on prohibiting a national church; there is no reason to believe that anyone imagined that the final version of the clause would ever affect church-state relations in the various states. But that same limitation to “Congress” applies to the free exercise of religion, free speech, and free press, all of which were explicit reminders that the federalism inherent in the original constitutional design would not be encroached upon by an assertion of national power. The enhanced federalism question we are addressing is clause-specific. Does the establishment clause mean that “an establishment of religion” maintained by a state or local government has greater protection from congressional interference than (a) it would have had absent the First Amendment or (b) state activities relating to speech, press, or religious exercise?147 Since there is no documentary evidence even hinting at the Connecticutdriven hypothetical scenario outlined above, and since the composition of the conference committee was not necessarily favorably disposed toward perpetuating the church-state relationships obtaining in New England, the strongest argument for the enhanced federalism interpretation is probably not an originalist approach at all but Porth and George’s plain meaning analysis,148 which focuses on the language itself rather than the surrounding context. But if we think surrounding events may be relevant to the establishment clause’s original meaning, there are at least three significant hurdles that are difficult for the enhanced federalism approach to overcome. First is the documentary record: There is no evidence of the New England (or other) states calling for an amendment that would shield their ecclesiastical 147

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If Congress had attempted to pass laws interfering with church-state practices, the states would certainly have made strong arguments that no expressly delegated power enabled Congress to do so and that provisions such as the “necessary and proper” clause could not be stretched to imply such a power. The enhanced federalism interpretation of the establishment clause necessarily goes a significant step further, suggesting that members of the Congress (or the ratifiers or the general public) believed that some states had “establishments of religion” and that those establishments needed more protection from congressional interference than any of the other ways that a state’s laws touched the lives of its inhabitants. William C. Porth and Robert P. George, “Trimming the Ivy: A Bicentennial Re-examination of the Establishment Clause,” West Virginia Law Review 90 (1987–8): 110.

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laws from federal interference; there is no significant record of speeches, sermons, or newspaper articles seeking such protection;149 and there is nothing in the congressional record that contains any suggestion of a special federalism intent that would not apply equally to other elements of the First Amendment. In fact, in their final versions of the amendment submitted to the conference committee, neither the House nor the Senate chose clauses with “respecting” or “touching” language. The second hurdle is that the people who would have theoretically had the most to gain by an enhanced federalism interpretation – the New England Congregational clergy and their supporters – had an impressive published record of denying that their states had “establishments.” This body of evidence has led Curry to conclude that no establishments existed in the states by 1787. While it is not clear that the term “establishment” was so consistently used, as discussed above, New Englanders clever enough to surreptitiously insert the federalism-enhancing “respecting” language into the First Amendment would have known that their own newspapers could have been invoked to demonstrate that any protection for “establishments” would not have covered the New England ecclesiastical situation in 1789. Finally, the third difficulty is that, subsequent to the adoption of the establishment clause, New Englanders in a position to shore up their enhanced federalism defenses by admitting to having “establishments” often failed to do so, thus suggesting that even the putative beneficiaries did not necessarily follow such an interpretation. Influential jurists in Connecticut and New Hampshire, writing between 1796 and 1803, proclaimed that neither state 149

In surveying (and discussing) the federalism interpretation, Stephen K. Green identifies only one “vague exchange” in the constitutional ratifying debates that could possibly speak to the issue of insulating state church-state practices from federal interference. James Iredell, replying to a “concerns that the federal religious test ban could be enforced on state governments,” commented that Congress has “no authority to interfere in the establishment of any religion whatsoever . . . is there any power given to Congress in matters of religion? Can they pass a single act to impair our religious liberties? If they could, it would be a just cause of alarm.” Steven K. Green, “Federalism and the Establishment Clause: A Reassessment,” Creighton Law Review 38 (2005): 772, 782–3. In assessing the relevance of this comment, it is important to note that North Carolina submitted a proposed amendment that did not contain federalism-enhancing language, and did not send representatives to the first session of Congress. See Bowling, “A Tub to the Whale,” pp. 230–1. See also Munoz, ˜ “who cites the fears of several anti-federalists of a national uniformity of religious practice.” Munoz, ˜ “Original Meaning,” p. 165. While it is clear that these anti-federalists wanted protection from the possibility that Congress might impose a national religious establishment, there is no evidence that they sought a further declaration either that state establishments should be protected from federal meddling or that local church-state decisions should enjoy greater autonomy from national interference than any other kinds of decisions typically made by state legislatures.

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had an establishment of religion. If New Englanders believed in an enhancedfederalism interpretation of the establishment clause, it would have been reasonable for these jurists to proudly claim to have an “establishment,” as Theophilus Parsons did in Massachusetts. All they would have needed to do was to embrace a definition of establishment that would encompass their existing general assessments. In other words, if New England judges thought that the language of the establishment clause was designed by like-minded New Englanders specifically to insulate church-state practices in their states from congressional meddling, then it would have made sense for them to declare in no uncertain terms that those church-state practices were, in fact, “establishments of religion,” thereby wrapping their states in the establishment clause’s protective cocoon of federalism. That they did not do so when the opportunity was presented suggests that even those in the Founding Era who had the most to gain from a federalism-enhancing reading of the establishment clause probably did not read it in that fashion.150 And since the Congress did not attempt to make laws “respecting” church-state arrangements in the various states, no test case arose to generate commentary on this possible element of the First Amendment.151

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In fact, when New England traditionalists in the nineteenth century feared an impending elimination of the standing order, they did not seek solace in the establishment clause but they did discuss whether the Constitution’s ban on “ex post facto” laws might be relevant; moreover, McLoughlin notes that in 1793 a supporter of the Connecticut standing order wrote that “disestablishment would be contrary to the constitution of the United States because it would be an action by a state government which prohibited impairing the obligation of Contracts.” McLoughlin, New England Dissent, vol. 2, p. 941. In other words, people were looking for help in the Constitution but they did not seem to think they would find it in the First Amendment. Ultimately, as McLoughlin observes (with an implied contrast to the modern era), no one in those days thought of yielding state sovereignty in religious affairs to decisions of the United States Supreme Court; “no one – the dissenters, the Standing Order or the liberals – ever gave serious consideration to testing the Connecticut ecclesiastical laws in that court” (p. 943). It is fair to note that it is possible to bolster the enhanced federalism reading of the establishment clause by citations to important framers in the late eighteenth or early nineteenth centuries as they disclaimed any federal power over religion. See, for example, Amar, “Some Notes on the Establishment Clause,” who invokes, inter alia, Jefferson and Madison; and Corwin, “Supreme Court as National School Board,” who cites Justice Story. But the difficulty in doing so is that there is no evidence that these statements, which certainly reflect a strong sense of the limitations of federal power, would have been any different without the establishment clause. As many commentators have shown, the entire Constitution was steeped in the concept of federalism. What we want to know is whether the “respecting” language in the establishment clause supercharges the pre-existing lack of federal power over existing church-state practices, a concept that, even if correct, would have become visible only if the Congress had attempted to meddle in the affairs of a state establishment of religion (if any such thing existed). It is noteworthy that when Munoz ˜ points to the “long

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For the enhanced federalism interpretation to succeed, its proponents need to argue for a broad enough definition of establishment to include what was going on in New England, where church-state traditionalists were often at pains to distinguish their system from the situation in England.152 So, if the enhanced federalism reading of the establishment clause protected the church-state arrangements in New England from congressional interference – that is, if the word “establishment” is read broadly enough to encompass New Hampshire’s town-based tax support for a range of Protestant churches (which was colonial America’s nearest approximation of nonpreferentialism) – then it follows that Congress itself is prohibited from aiding religion in the ways prevailing in New England at the time of the First Amendment. Such an interpretation is certainly possible, but it has not necessarily been followed by devotees of the enhanced federalism approach who, in some cases, have preferred to argue for a narrow interpretation of the word “establishment” when applied to the federal government – thereby giving Congress authority to make laws aiding religion that fall short of constituting a formal, Church of England–like arrangement – while, at the same time, electing a broad reading of “establishment” for the purposes of removing the possibility of federal interference in the states’ activities. In short, if the clause protects New Hampshire’s “establishment,” then it also forbids Congress from adopting New Hampshire–style nonpreferentialism. While there is no significant originalist evidence for the enhanced federalism interpretation in the first place, it would be even more difficult to build an originalist case for reading the word “establishment” in two different ways depending on whether the church-state activity in question is taking place at the state or federal level. In summary, then, while the constitutional language itself can easily be read along enhanced federalism lines, there is another reading of “respecting an” that is considerably more plausible in its congressional context. By banning laws “respecting an establishment of religion” rather than those “establishing religion” (the House version) or “establishing articles of faith

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(albeit sporadic) history of constitutional scholarship arguing that the original meaning of the Establishment Clause pertains to federalism,” the oldest source he cites dates only from 1954, after the Everson case. See Munoz, ˜ “Original Meaning,” pp. 602–3, n. 106, citing Joseph M. Snee, “Religious Disestablishment and the Fourteenth Amendment,” Washington University Law Quarterly 1954 (1954): 371. Similarly, when Smith points out that the jurisdictional (i.e., enhanced federalism) interpretation “is not new,” he reaches only as far back as Snee’s 1954 article. Smith, “Jurisdictional Establishment Clause,” p. 1843, n. 1. It is likely that the twentieth century’s incorporation doctrine inspired the enhanced federalism interpretation rather than the eighteenth-century anti-federalists. See, e.g., Curry, First Freedoms, p. 116.

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or a mode of worship” (the Senate version), the final language is more clearly focused on preventing an institution – that is, a national “establishment” – as opposed to the less precise, and potentially broader, “religion” or “articles of faith.” Seen in this institutional light, the words “respecting an” become a reasonable and appropriate introduction to the critical words “an establishment of religion,” which is what all of the debates had been about – that is, prohibiting the institution of a single national church. Such a use of the “respecting an” phrase is more natural than forcing it via the enhanced federal interpretation to bear the weight of an entirely new jurisdictional mandate that is not supported in the documentary record.153 In the end, it is very difficult to find any contemporary evidence saying that the Congress, the ratifiers, or the general public actually understood the establishment clause in an enhanced federalism fashion. In fact, it is possible to make an argument that, at least as between the establishment clause and the rest of the First Amendment, the other provisions might more strongly “resist incorporation,” at least to the extent that we take congressional intent into account. Madison proposed one amendment that would have applied directly to state-level practices respecting religion: “no state shall infringe the equal rights of conscience, nor the freedom of speech or of the press, nor of the right of trial by jury in criminal cases.”154 Madison called this amendment “the most valuable” one of all, and only one congressman spoke against it (Tucker, who thought it would be better “to leave the State Governments to themselves”).155 After a proposal by New Hampshire’s Livermore to change the amendment from the active voice to the passive, the House adopted the amendment, which was subsequently rejected by the Senate with no recorded debate.156

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Additionally, some strict separationists suggest that the “respecting” language is not meant to determine the subject matter of laws forbidden to the Congress but somehow enlarges the concept of an establishment of religion, such that we might read the clause as stating, “Congress shall make no laws on anything remotely resembling or tending towards an establishment of religion.” See, e.g., Pfeffer, “No Law Respecting an Establishment of Religion,” Buffalo Law Review 2 (1952–3): 237; Laycock, “Nonpreferential Aid,” pp. 881–2. It would strengthen their argument to find eighteenth-century examples of “respecting” employed in this fashion. In my unscientific review of twenty uses of the word “respecting” in works published in America between 1750 and 1770 and available in the Sabin Americana collection, I was unable to identify any use of the word other than as a synonym for “regarding” or “on the subject of.” For eighteenth-century English dictionary definitions, see Witte, God’s Joust, pp. 196–7, n. 96. Annals, pp. 783–4. Ibid. Ibid.

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It is interesting to speculate about why Madison left out a ban on establishments of religion when he made his proposal to bind the states to respect certain liberties. He could have been trying to protect state establishments from federal interference (which is unlikely in light of his church-state views); he might have thought it politically untenable (a possibility), or, if we follow Curry’s analysis, he may not have believed that there were any state establishments in existence anymore. Another possibility is that since he believed that general assessments violated the rights of conscience, as he wrote in the Memorial and Remonstrance, his proposal could have been employed to eradicate any such programs. What other members of the Congress might have thought is even more of a mystery since we have no evidence whatsoever. At the very least, we can see that the First Congress specifically considered – and rejected – the idea that the states must recognize certain civil rights. It could, therefore, be argued that if the incorporation doctrine is applied to “the equal rights of conscience . . . the freedom of speech or of the press . . . [or] of the right of trial by jury in criminal cases,” the result directly contradicts the final action of the First Congress. There was no comparable consideration by the First Congress of applying the establishment clause to the states, and, therefore, one could argue that the establishment clause should be less resistant to incorporation than the other elements of the First Amendment. That is, the Congress expressed no view on whether states should be forbidden to establish a church, whereas the idea of forcing states to recognize the rights of conscience, speech, press, and so on was explicitly considered and rejected. In summary, then, it is difficult to find any originalist support for the enhanced or “turbocharged” federalism argument. It may be an attractive approach to a “plain meaning” interpretation, but, in the end, the contemporary documentary record argues strongly against the enhanced federalism interpretation as the original meaning of the establishment clause.157 As was the case with the rest of the Bill of Rights, the establishment clause was undoubtedly seen by many of the framers, such as Roger Sherman and the Madison of the ratification debates, as needlessly redundant of the Constitution’s underlying structural commitment to federalism but, at the same 157

Professor Corwin and others have made additional arguments for why it may not be reasonable to incorporate the establishment clause via the Fourteenth Amendment, especially in that it does not embrace an individual “liberty” along the lines of the other clauses of the First Amendment. Corwin, “Supreme Court as National School Board,” pp. 18–20. Since those arguments do not relate to a debate over the establishment clause’s original understanding, they will not be addressed here.

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time, there is no convincing originalist evidence to support an enhanced federalism reading of the clause. Before leaving this discussion, we should note that the enhanced federalism interpretation raises an interesting methodological question for originalists, especially for those who focus on the “public meaning” of the constitutional language rather than the intentions of specific framers or of the First Congress. On one hand, the clause can certainly be read, without straining, to block Congress from interfering with any religious establishments that might exist in the states. On the other hand, there is no evidence that any states sought this kind of protection or that anyone who wrote about the First Amendment interpreted it in this way for (as we will see in the next chapter) well over a hundred years. To what extent is it possible to conclude, in light of this lack of corroborative evidence, that the enhanced federalism approach constitutes a reasonable “original meaning” of the establishment clause? The answer may lie in the use to which the interpretation is put. Amar, for example, has embraced the enhanced federalism interpretation (along with the concept that the clause prohibited a national church), but he finds that the clause loses its protecting-state-establishments meaning by the time of the Fourteenth Amendment, so this aspect of the clause’s original public meaning becomes just an artifact of the eighteenth century’s unique circumstances.158 The reasonableness of his interpretation then is an interesting and debatable point, but not directly relevant to modern constitutional questions because, in his view, it is the nineteenth century’s understanding of the establishment clause that should be applied to today’s questions, at least as to how the clause should bear on the states.159 For Justice Thomas and others, however, an enhanced federalism interpretation makes it hard, or perhaps impossible, to incorporate the establishment clause because to do so would defeat its original purposes of insulating state decisions about establishments of religion from federal interference. Such an argument should require a higher standard of proof than one that is interesting in theory but has no practical implications. A myriad of “rules for originalists” can be considered, but one potentially worth including would say that an asserted “original public meaning” should be supported by evidence that somebody at the time embraced that particular 158

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Amar, The Bill of Rights, pp. 32–42 (regarding the original understanding) and pp. 246–57 (concerning incorporation). In following this approach to originalism, an interesting question arises as to whether the federal government should be subject to the meaning of the clause at the time of the First Amendment but the states would be subject to another standard representing the public’s different understanding of the same clause at the time of the Fourteenth Amendment.

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interpretation.160 (One might even assert that a “public” meaning should be one widely shared by members of the public.) In this case, the evidence is weak. To be sure, people such as Madison said that the Constitution left all power over religion to the states, but he made the very same argument before the Bill of Rights was adopted.161 These kinds of statements seem more likely to belong to the “plain vanilla” federalism arguments, which were an important feature of the debates over the Constitution and the Bill of Rights; that is, the federal government is limited to specific powers expressly delegated by the state governments. But plain vanilla federalism applied equally to the rights of speech and press for which there seems to be no special awkwardness when the subject of incorporation comes up. The enhanced federalism argument must do much heavier duty, since it stands for the proposition that the establishment clause should not be applied to the states even if the other provisions of the First Amendment are. In an eighteenth-century environment in which there is strong evidence – before, during, and after adoption – that the establishment clause was designed to address fears of a national church, and when there is no record of anyone seeking an extra layer of protection for any existing state establishments,162 it seems quite difficult to defeat incorporation of the clause solely on the grounds of the enhanced federalism interpretation. It is certainly possible to 160

161 162

Here Smith seeks to play the textual trump card. He writes, “Absent any record of the [conference committee] debates, the text itself is the most probative evidence available,” and he sees the “respecting an” language as insulating state establishments from congressional interference. Smith. “Jurisdictional Establishment Clause,” p. 1872, n. 121, p. 1873. Smith would have a powerful methodological point if the conference committee’s language was so different from the House and Senate versions that modern interpreters had to choose either what Congress said it was trying to accomplish or what it actually did. But that is not the case with the establishment clause. The final language, including the words “respecting an,” can easily be read to accomplish the goal of preventing a national church. As a result, we are not asked to choose between the text and the stated intentions of members of state ratifying conventions and Congress, but between an enhanced federalism interpretation that is arguably consistent with the language but unsupported by the documentary record and a no-national-church reading for which there is a great deal of evidence in the records of all of the relevant events. For example, see the debates in the state ratification conventions, above in Chapter 5. In addition to the regular testimonials to plain vanilla federalism, the only potential spokesman for enhanced federalism is Connecticut’s Huntington. But the best reading of Huntington’s comments in the First Congress is that he was seeking to avoid inadvertent effects on church-state arrangements in Connecticut that would have been caused by the language then under debate – “no religion shall be established” – which could have meant that religious establishments in the states would no longer be encompassed by the fundamental concept of plain vanilla federalism. Madison recognizes this concern and immediately offers to insert “national” before “religion.” See Cogan, Complete Bill of Rights, pp. 60–1.

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argue against the incorporation doctrine in general or to assert, as Corwin has, that the non-establishment principle is fundamentally different from the “individual” freedoms that otherwise appear in the First Amendment,163 but the enhanced federalism argument is not supported by enough evidence to do the job by itself. Nonpreferentialism If we conclude that there is a substantive element of the establishment clause, that is, that it does restrict Congress’s ability to make laws on the subject of a national religious establishment, we need to figure out what that restriction encompasses. How should we assess various forms of federal financial support for a wide array of churches, perhaps along the lines of a federal general assessment that stops short of creating a single national religion? To attempt to answer this question, it may make sense to distinguish between the authority to fund churches with tax revenues, such as existed in New England at the time of the Bill of Rights, on the one hand, and government participation in religious activities (e.g., prayers or religious holidays) without the direct funding of ecclesiastical organizations, on the other. There is abundant evidence that even bitter opponents of general assessments, from Isaac Backus to James Madison, often promoted some contacts between government and religious practices as opposed to religious organizations. Making this dollars-versus-devotions distinction may, at first blush, seem unreasonable to modern strict separationists and nonpreferentialists alike, since both groups tend to be lumpers rather than splitters. The strict separationists seek to deny the appropriateness of any sort of governmental interaction with religion, so they will condemn prayers at public events as simply one form of a forbidden establishment that also encompasses tax-funded churches; meanwhile, the nonpreferentialists will argue for the constitutionality of many forms of governmental aid to religion as long as it is done in an evenhanded manner, and they will use the evidence of official prayers and other kinds of governmental religiosity in the Founding Era to bolster their arguments for the constitutionality of state support for religious organizations. However, such a sharp dichotomy does not fit the constitutional formation period very well. While it is, therefore, tempting (from both sides of the argument) to lump religious activity encouraged by governmental entities together with using tax revenues to fund churches, it is not reasonable to assume that Americans during the Founding Era would 163

Corwin, “Supreme Court as National School Board,” p. 19.

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necessarily have seen it that way. For the purposes of our establishment clause originalism analysis, it may make sense to address financial support for churches first since that was far more actively contested at the time (at least at the state level) than Thanksgiving Days, legislative prayers, and other forms of governmental religiosity. In considering the types of ecclesiastical tax support in effect in various states at the time of the First Amendment, does it make sense to follow several commentators and see them as nonpreferential? In looking at the assessments existing (or debated, as in Virginia) during the Revolutionary and early national eras, it is clear that the arguably nonpreferential element of the programs for church support related only to supporting various forms of Protestantism. No benefits would accrue to any other religions, especially to disfavored churches such as the Roman Catholic Church. Levy works hard to argue to the contrary; he looks at the assessments in much the same way as some of the nonpreferentialists, seeing “multiple establishments” of essentially all relevant religions. His conception of multiple establishments thus embraces all “churches of every denomination and sect with a sufficient number of adherents to form a church,”164 but his point does not stand up well to demographic scrutiny. It seems unreasonable not only to write off all non-Protestants but also to make the tacit assumption that if there were enough votaries of other religions “to form a church,” they too would have shared in the benefits of the multiple establishments. Jews in Charleston, South Carolina, for example, had formed Kahal Kadosh Beth Elohim congregation around 1749,165 yet Protestantism was established by the 1778 South Carolina Constitution; meanwhile, Levy also finds a multiple establishment of Christianity in Georgia, despite the fact that “the Jewish presence in Savannah was significant,” as Natelson notes.166 And Roman Catholics in New England received no benefit from tax support for Protestant teachers; 164 165

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Levy, Establishment Clause, p. 24. See Richard and Belinda Gergel, “‘A bright era now dawns upon us’: Jewish Economic Opportunities, Religious Freedom and Political Rights in Colonial and Antebellum South Carolina,” and James Lowell Underwood, “The Dawn of Religious Freedom in South Carolina: The Journey from Limited Tolerance to Constitutional Right,” in James Lowell Underwood and W. Lewis Burke, eds., The Dawn of Religious Freedom in South Carolina (Columbia: University of South Carolina Press, 2006), pp. 100, 31–2. Curry notes that the 1790 Constitution essentially eliminated the establishment; although it continued to refer to an establishment, the provisions related only to methods for incorporating churches. Curry, First Freedoms, p. 191. See also James Lowell Underwood, “‘Without discrimination or preference’: Equality for Catholics and Jews under the South Carolina Constitution of 1790,” in Underwood and Burke, eds., Dawn of Religious Freedom, pp. 58–94. Natelson, “Original Meaning,” p. 124, citing Michael W. McConnell, “The Origin of Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (1990): 1409–517, 1424. See Levy, Establishment Clause, p. 24.

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in fact, they were not even entitled to obtain an exemption from supporting their town’s Protestant church. In a case in which Massachusetts Catholics sought relief from Protestant parish taxes for years that included the 1789–91 First Amendment gestation period, the Massachusetts Supreme Judicial Court denied the exemption request, with the justices saying that “papists are only tolerated, and as long as their ministers behave well we shall not disturb them. But let them expect no more than that.”167 Similarly, in looking at the adoption of Massachusetts’s 1780 constitution, with its heavily debated provision for “the support and maintenance of public protestant teachers of piety, religion and morality,” it is unreasonable to conclude that the delegates (or the people voting on ratification) somehow imagined that their provision naming Protestantism was nonpreferential across a range of religions and would have included Roman Catholics if there were enough of them around to constitute a church. To the contrary, anti-Catholicism had been a consistent feature of New England Protestantism from the earliest colonial days. In a recent study of anti-Catholicism in the revolutionary era, Charles Hanson describes Protestants in New England as deriding “as ‘popery’ what they considered a corrupt, heretical, and wholly degenerate perversion of Christianity.”168 In fact the “robust strain of millennialism in English Calvinism led many ministers to treat depictions of the Antichrist in the Book of Revelation as prophecies of Satan’s temptation of the Church of Rome. According to this view, Catholics were not even Christians, having succumbed to the Prince of Darkness.”169 Hanson also notes that the “rigid hierarchy of pope, bishops, clergy and parishioners [was thought to] preclude . . . both the independence and the virtue necessary to sustain republican citizenship. . . . It was routinely asserted . . . that a Catholic’s loyalty to the pope, by superseding any other allegiance, rendered him ineligible to enter into the compact of rights and responsibilities on which civil society rested.”170

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Quoted in John T. Noonan, Jr., “Quota of Imps,” pp. 181–2. See Matignon v. The Inhabitants of Newcastle, in which the Massachusetts Supreme Judicial Court held that 1800 legislation implementing the Massachusetts constitution’s provision for public Protestant teachers that permitted “a sectarian to have his parish rates applied to ‘the public teacher of his own religious sect . . . ’ rather than to ‘the public Protestant teacher,’ . . . provided only for the support of ‘public protestant teachers,’ a description scarcely applicable to the plaintiff,” a Roman Catholic priest. Cushing, “Notes on Disestablishment,” p. 182. Cushing notes that Father Matignon attempted to recover the parish taxes paid by his congregation in the years 1787 to 1800. Charles P. Hanson, Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England (Charlottesville: University Press of Virginia 1998), p. 9. Ibid., p. 10. Ibid., pp. 710–11.

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The 1780 Massachusetts constitutional support for “Protestant teachers” was, essentially by definition, the expression of a distinct preference for that form of Christianity over any others, especially Roman Catholicism. Moreover, Hanson writes that “when the [1780 Massachusetts] convention adopted language requiring that . . . civil officers declare their belief in ‘the Christian religion,’ the objection . . . from voters was not that it was unfair to Jews and atheists but that it was overly indulgent of Catholics.”171 As Baptist John Leland wrote about the Massachusetts constitution, “one of two things must be granted; either that Papists are no Christians, or that there is a partiality established.”172 In the 1810 case of Barnes v. Falmouth, Justice Theophilus Parsons seems willing to admit Catholics to the fraternity of “every denomination of Christians” entitled “to be equally under the protection of law.”173 He acknowledges that there shall be “no subordination of one sect or denomination to another,”174 and even “those Catholics who renounce all obedience and subjection to the pope, as a foreign prince or prelate, may hold any civil office.”175 Nevertheless, Parsons concludes that the “no sect preference” paragraph in the Massachusetts constitution “has no relation to the subject” of financial support because “the constitution has not provided for the support of any public teacher of the Popish religion.”176 At the time of the First Amendment, there is no evidence suggesting that when the people, through acts of Congress or otherwise, asserted that “religion, morality and knowledge” are required for good government, as was stated in the Northwest Ordinance, they entertained any sort of nonpreferential “religion in general” concept. Quite the contrary, Christianity and, in almost every case, Protestant Christianity, was the religion that was expected to lead to good government. Other religions might be tolerated, or 171

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Ibid., p. 192. He observes that there was a Roman Catholic parish in Boston by 1788, and he makes the argument that the Revolutionary alliance with Roman Catholic France softened (but did not eliminate) the vehemence of New England’s historic anti-catholicism. Noonan records that the word “Protestant” in the 1780 constitution was “a floor amendment, added out of dislike of ‘Papists.’” Noonan, “Quota of Imps,” p. 180. Quoted in Hanson, Necessary Virtue, p. 205, who observes that Leland “was as sure of the truth of the latter possibility [i.e., that there was ‘partiality’] as he was that most New Englanders, in their hearts, believed the former [i.e., that papists were not Christians].” Barnes v. Falmouth, 6 Mass. 401 (1810). Ibid. Ibid. at 416–17. Ibid. at 417. The New England general assessments can also be seen as expressing a preference for those denominations of Protestants willing to accept financial support from the state – such as Congregationalism and Anglicanism – over dissenters such as the Baptists, who rejected the concept of state support for religion and who frequently objected even to the requirement that they file a certificate with the state to be eligible for an exemption from the general assessment.

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even given the fullest rights of freedom of conscience, but the state legislators expressed no interest in governmental support for any other religions. As Curry explains, “a country wherein eleven of thirteen states restricted office holding to Christians or Protestants hardly envisaged Catholicism or Judaism, not to mention Mohammedanism or any non-Christian group, as part of the ‘religion’ to be promoted and encouraged either in the states or the Northwest Territory.”177 As we consider the issue of establishment in light of the religious demographics of late-eighteenth-century America, it is also important to look beyond those few men holding elective office and to expand our view past the extensive historical literature on colonial and early national Protestantism (usually written by Protestants for other Protestants), all of which could lead us to believe that essentially all Americans at the time of the Constitution were Protestants of one denomination or another. While that may be a good description of the educated elites who wrote the laws, sermons, judicial opinions, and history books, it does a poor job of cataloging the diversity of the American public at the time. To be sure, the inhabitants of the nascent nation were overwhelmingly Protestant, at least by background. Harvard religious historian William Hutchison, who tends to focus on the homogeneity of colonial religious patterns in America in contrast to nineteenth-century pluralism, finds that “the colonists [were] at least 85 percent English-speaking Calvinist Protestants.”178 He cites a total of “3200 religious congregations in the colonies in 1780,” of which 460 were Baptist, which made them “the only ‘dissenters’ whose numbers were comparable with those of the dominant colonial bodies (the Congregationalists, Presbyterians, and Episcopalians).”179 At the same time, there were “5 Jewish congregations” and the “catholic congregations numbered 56.”180 Meanwhile, Yale religious historian Jon Butler, who looks for diversity in the colonial religious experience, concludes that “it is all but impossible to calculate church membership at more than 20 percent of colonial adults before the American Revolution, a figure that would only decline further when the enslaved population is added.”181 Butler also points out

177 178

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180 181

Curry, First Freedoms, p. 221. William R. Hutchison, Religious Pluralism in America (New Haven, Conn.: Yale University Press, 2003), p. 21. Ibid., citing Charles O. Paullin, Atlas of the Historical Geography of the United States (Washington, D.C.: Carnegie Institution, 1932). Hutchison, Religious Pluralism, p. 22. Jon Butler, “Why Revolutionary America Wasn’t a ‘Christian Nation,’” in Hutson, ed., Religion and the Republic, p. 191.

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that at least in New England “women dominated membership in virtually all known . . . congregations. . . . Single men seldom became full members at all, and married men often undertook full membership only before assuming local political office, something that usually happened after they passed their fortieth birthday.”182 Butler admits that “historians . . . argue about these things,”183 and indeed they do – Patricia Bonomi and Peter Eisenstadt count closer to 80 percent of the populace as church “adherents” around the time of the Constitution.184 But exactly how religious those church members were remains open to question. Michael McConnell notes, for example, that in “a study of grand jury presentments in Virginia between 1720 and 1750, missing church was the most common indicted offense in eleven of the twenty-two counties; it was the second most common offense in seven of the others.”185 Whether the actual number of church members was 20 percent or 80 percent, and whether those members actually went to church, will remain a subject for academic argument, but,

182

183 184

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Jon Butler, Awash in a Sea of Faith: Christianizing the American People (Cambridge, Mass.: Harvard University Press, 1990), p. 170. He therefore argues that Yale President Ezra Stiles, for example, sought “the continuation of Connecticut’s Congregational establishment in 1783” because “it coerced men and women to support Christianity in at least some rudimentary fashion when they would otherwise ignore it” (p. 196). See also Richard D. Shiels, “The Feminization of American Congregationalism, 1730–1835,” American Quarterly 33 (1981): 46–62; and Rodney Stark and Roger Finke, “American Religion in 1776: A Statistical Portrait,” Sociological Analysis 49 (1988): 39–51. Butler, Awash in a Sea of Faith, p. 170. Patricia U. Bonomi and Peter R. Eisenstadt, “Church Adherence in the Eighteenth Century British American Colonies,” William and Mary Quarterly, 3rd ser, vol. 39, no. 2 (April 1982): 245–86. For additional data on churches and church membership, see Edwin Scott Gaustad and Philip L. Barlow, New Historical Atlas of Religion in America (New York: Oxford University Press, 2001); and Roger Finke and Rodney Stark, “How the Upstart Sects Won America: 1776–1850,” Journal for the Scientific Study of Religion 28, no. 1 (1989): 27–44. For a thoughtful analysis of the various ways of counting Christians in the Founding Era, see James H. Hutson, Forgotten Features of the Founding: The Recovery of Religious Themes in the Early American Republic (Lanham, Md.: Lexington Books, 2003), chapter 4; see also Hugh Heclo, “Is America a Christian Nation?” Political Science Quarterly 122, no. 1 (Spring 2007): 59–87. McConnell, “Establishment of Religion,” p. 2145, citing A. G. Roeber, Faithful Magistrates and Republican Lawyers: Creators of Virginia Legal Culture, 1680–1810 (Chapel Hill: University of North Carolina, 1981), pp. 141–2. As part of a broad-based revision of Virginia’s statutes, Jefferson and Madison offered a bill in 1785 for “Punishing Disturbers of Religious Worship and Sabbath Breakers” that did not mandate attendance at religious services but provided criminal penalties for anyone “laboring at his own or any other trade or calling” on Sunday. Daniel L. Dreisbach, “Thomas Jefferson and Bills Number 82–86 of the Revision of the Laws of Virginia 1776–1786: New Light on the Jeffersonian Model of Church-State Relations,” North Carolina Law Review 69, no. 1 (November 1990): 159–211, 190–3.

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either way, there is still a sizable portion of the colonial and early national population who were not active, regularly attending adherents of a Protestant Church, not to mention large numbers of Native Americans and slaves, many of whom were not Protestant Christians. The point of this analysis is not to enter into the debate over whether America is (or was, or should be) a Christian nation.186 It is to note that we should not assume that there was widespread agreement or understanding among the entire population either about religion or about the proper relationship between religion and government. Massachusetts, for example, had a constitutional provision requiring the town-based support of Protestant ministers, almost all of whom were, at that time and throughout colonial history, representative of the numerically superior Congregationalists. But that does not mean that such a system actually addressed the religious affiliations of all citizens (or even all Protestants) in numbers large enough to form a church. It is, therefore, quite difficult to sustain the position advanced by Levy and some of the nonpreferentialists that the states with general assessments at the time of the Constitution meant them (or experienced them) to be broadly inclusive of all religions. There simply is no persuasive evidence that the existing “establishments” (if, contra Curry, they were establishments at all) were nonpreferential in the sense of providing equivalent treatment for all religions found among the populace (i.e., representing a general government preference for religion over the lack thereof). To the contrary, general assessments in effect at the time of the Bill of Rights were intentionally and explicitly for the benefit of Protestants, and a reasonable argument can be made that, in most cases, they existed primarily for the benefit of the demographically dominant denomination. Whether genuinely nonpreferential financial support for religion in general would have constituted an establishment in the minds of Americans in the Founding Era is an interesting but entirely hypothetical question since it would have been unthinkable politically, socially, and religiously to provide tax support for Roman Catholicism in New England or for Judaism or Islam anywhere in the new nation, let alone government funding for all of the forms of religiosity found in the country at the time, including Native American 186

It is interesting, however, that Butler has observed that the concept of a “Christian America” was not prevalent until the nineteenth century. Butler writes, “Revolutionary clergymen had worried that America was not at all a Christian society.” But by the mid-nineteenth century, Protestant church historians such as Stephen Colwell and Robert Baird “evolved a myth of the American Christian past, one of the most powerful myths to inform the history of both American religion and American society.” Butler, Awash in a Sea of Faith, p. 285.

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religions, slave religions, witchcraft, Shakerism, and other manifestations of non-mainstream religiosity.187 The maximum amount of nonpreferential reach during the Founding Era thus embraced only Christians, and in virtually every case that meant Protestant Christians. If we follow Curry and others to say that the New England general assessments were not establishments because they exhibited no sect preference, then we must, with John Leland, acknowledge that preferring Protestantism to Catholicism is nonpreferential; otherwise, we would be guilty of importing into the Founding Era a modern sense of ecclesiastical egalitarianism, one that puts Protestantism and Catholicism on an equal footing, which was certainly not a widely held view among those who voted for the New England general assessments. Late-eighteenth-century Congregationalists and Baptists may have used harsh language in their debates with each other over state support for religion, but virtually all of them could unite in their antipathy toward “papists.” If an originalist were to argue that the First Amendment’s prohibition of laws “respecting an establishment of religion” leaves Congress with the power to provide federal financial support for religion as long as it does not amount to an establishment, and if the best analysis of the contemporary materials is that the New England general assessments were not establishments, then the originalist conclusion should be that nondenominational financial assistance to Protestants that excludes Catholics, Jews, and any other non-Protestants is consistent with the establishment clause. It is not clear that there is any originalist rationale for the constitutionality of extending that aid to a broader array of churches or other religious institutions in a way that would match modern definitions of nonpreferentialism, which typically encompass methods of favoring all religions (or, at least, Protestantism, Catholicism, and Judaism) over no religion. One could advance an a fortiori argument that a government with the constitutional power to aid Protestantism on a nondenominational basis could also aid all forms of religion equally, but that would not necessarily be an originalist argument, at least based on materials available up to the time the First Amendment was adopted. Alternatively, an originalist could conclude instead that the meaning of “establishment” encompassed general assessments, following Madison and the Massachusetts judiciary, in which case even pan-Protestant federal 187

For a summary of some state laws restricting rights of non-Christians, see Morton Borden, “Federalists, Antifederalists and Religious Freedom,” Journal of Church and State 21 (1979): 472–6.

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financial support would run afoul of the establishment clause. Accordingly, there does not seem to be originalist support for the claim that a genuinely even-handed approach providing federal funding for churches and their clergy would be constitutional. Finally, if we follow the definitional analysis proposed above and conclude that “establishment” meant different things to different people – with some believing that the term, as used in the First Amendment, included general assessments and others quite sure that it did not – we end up having to search for other potential sources that might help us make an originalist decision in the midst of conflicting evidence. Irrespective of how we resolve the issue of the possibility of federal tax support for religion along the lines of a general assessment, it would be difficult to deny that “religion, morality and knowledge” were seen as necessary to good government by virtually all of the actors in the various church-state dramas throughout the colonies and states. And the necessary religion was Christianity – specifically, as Curry has pointed out, sabbatarian Protestant Christianity, and there were many state laws seeking to enlist Christianity in the success of government and to enforce various “Christian” behaviors. “Americans differed sharply among themselves over whether state promotion and aid [should] include . . . public tax support for churches,” writes Curry, “but not over whether government should enforce the Sabbath and respect for the scriptures, limit office to Christians or Protestants, and generally support the Christian Protestant mores that entwined both state and society.”188 Not only ought “Christianity . . . receive encouragement from the States so far as was not incompatible with the private rights of conscience and the freedom of religious worship,” in Justice Story’s words, but, perhaps more importantly, the state, in what Curry calls an Erastian concept of church-state interactions, should receive the encouragement of Christianity.189 These types of governmental practices do not so much benefit religion as they seek to enlist Christianity in promoting the United 188

189

Ibid., p. 190. Curry admits that there were exceptions: “Baptist John Leland was able to transcend his own intellectual milieu and articulate the extent to which the law and a particular religious view had become welded together. Jefferson’s statute . . . asserted that ‘our civil rights have no dependence on our religious opinions,’” for example, but “these presaged the future more than they represented prevailing American opinion” (p. 191). John F. Wilson discusses Erastianism as “the subordination of spiritual authority to temporal authority – at the extreme the utilization and manipulation of the church by the state. . . . [It is] designated as Erastianism after a sixteenth-century Swiss Theologian, Thomas Erastus, who argued that where there is uniformity of religion, ecclesiastical jurisdiction should be exercised under the review of the civil authorities.” John F. Wilson, “Introduction,” in John F. Wilson and Donald L. Drakeman, eds., Church and State in American History (Boulder, Colo.: Westview Press, 2003), pp. 5–6.

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States.190 In a reversal of the covenant with the Israelites in Leviticus in which Jehovah is the initiator – “I will be your God, and you will be my people”191 – American governments boldly spoke up first, seeking to enlist divine support for the success of state and nation, as in: “You will be our god, and we will be your people.” Post-Adoption Evidence Where do we end up on the subject of federal nonpreferentialism? From an originalist perspective, it is probably impossible to reach a firm conclusion on whether pan-Protestant financial support for churches and other religious organizations would have been understood to violate the establishment clause. At the same time, however, in surveying the limited amount of material that exists, we can certainly see a continuing willingness to link the American enterprise with Providence, especially in the form of congressional and military chaplains, not to mention the Congress’s immediate desire to have a national day of prayer and Thanksgiving to celebrate the adoption of the Bill of Rights. And all of these chaplains and prayers were Protestant in form and substance for many decades, despite the presence in Congress of Roman Catholics, among others. This kind of formal reminder to the people of America’s providential destiny, coupled with an Erastian reminder to God of His importance to the national enterprise, mimicked widespread practices in the states and seemed constitutionally untroubling to many of the various political actors involved in the process. There is no indication that these practices were typically designed to be nonpreferential – to the contrary, while they may have been broadly acceptable to Protestants (and perhaps non-Protestant Christians), no serious effort was made to be inclusive of other religions or of the nonreligious. God and country were linked in the legislative mind, and public recognition of that fact via chaplains and prayers was an element of Congress’s ordinary course of business, a practice that continues, in one form or another, to the present day. An originalist would be hard-pressed to dismiss these Erastian attempts to invite God’s blessing on the nation.

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Smith cites these activities in support of his enhanced federalism reading of the religious clauses: “Congress’s contemporaneous decisions . . . to appoint chaplains and authorize Thanksgiving proclamations, suggest that Congress did not believe itself to be bound by a substantive principle of religious freedom that would have constrained its authority in these matters.” Smith, Foreordained Failure, p. 34. For the reasons stated above, the more likely understanding of the Congress was that whatever substantive constraints existed under the First Amendment, they did not prohibit these Erastian links with religion. Leviticus 26:12.

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The Founding Fathers Daniel Dreisbach is probably right when he writes, “No phrase in American letters has more profoundly influenced discourse and policy on church-state relations than Jefferson’s ‘wall of separation,’”192 but, here we are, all the way through the proposals, debates, congressional approval, and ratification of the establishment clause, and Jefferson’s name has not yet come up. He was in France during the Bill of Rights’ gestation period, but this fact did not discourage Justices Waite and Black (and innumerable commentators) from employing Jefferson’s correspondence to teleport the third President into the establishment clause’s formative history, thus enabling them to seize upon the Danbury letter “almost as an authoritative declaration of the scope and effect of the amendment.”193 Based on the foregoing review of the history of the First Amendment, it is virtually impossible, from an originalist perspective, to bestow this mantle of authority on Jefferson on the grounds of his purported role as the “acknowledged leader of the advocates of the measure.”194 Such an argument could perhaps be made on Madison’s behalf, owing to his introduction of the concept into the Bill of Rights, but, as we have seen, the evidence certainly does not indicate that anyone involved in the adoption and ratification process (and especially the American public at large) believed that the establishment clause meant what James Madison had said about Virginia’s church-state issues in the anonymously circulated Memorial and Remonstrance. It is therefore virtually impossible to come to an originalist conclusion that James Madison’s role in proposing a Bill of Rights makes him, as described by Justice Rutledge, so much the “warp and woof” of the establishment clause that it is appropriate to read it as little more than shorthand for the Memorial and Remonstrance.195 Whatever the Congress, the ratifiers, or the people thought the establishment clause meant, there is no evidence that any of those groups believed that it encompassed Madison’s Memorial or Jefferson’s Statute. What then do we do with all the Madisonian and Jeffersonian materials that have animated both strict separationists and nonpreferentialists for so many years? It may be possible to say that some Virginians, particularly the 192

193 194 195

Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State (New York: New York University Press, 2002), p. 5. Reynolds v. United States, 98 U.S. 145, 164 (1878). Ibid. This is not to say that Madison’s (or Jefferson’s) preconstitutional views are necessarily irrelevant to a modern interpretation of the First Amendment, just that there appears to be no good originalist reason for making them relevant.

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Baptists, supported their views with considerable enthusiasm, but Virginia Baptists are certainly not representative of all American church-state thinking at that time, so Madison and Jefferson seem to fit best in a different category altogether – not as “authoritative” spokesmen by virtue of any special authorial, representative, or inspirational role, but more generally as prominent public figures in the Founding Era who occasionally published views on how church and state should interact. This kind of “public intellectual” position was shared by numerous others, many of whom held quite different views, including Theophilus Parsons and the New England clergy (Congregationalist, Anglican, Baptist, and others). Moreover, as we consider the value of positions advanced by various important people, we should identify which ones reflect a view about the meaning of the Constitution’s establishment clause (or at least an opinion about how the federal government should relate to religion), and which instead articulate a person’s position on church-state issues in other settings: New England church-state traditionalists Fisher Ames and Benjamin Huntington, for example, could be perfectly comfortable with a constitutional ban on a federal establishment while supporting their own states’ ecclesiastical laws. Conclusion Where does that leave us regarding the original meaning of the establishment clause? The strongest evidence from the constitutional ratifying conventions, the amendment proposals, the records of the congressional debates, and the ratification of the Bill of Rights points consistently in one direction: that Congress should be prohibited from establishing a “national religion.” The First Amendment thus succeeded in turning the hotly contested subject of church-state relations – which had already caused legistative battles in the states and would continue to do so virtually in perpetuity – into a “milk and water” amendment by focusing on the one thing no one wanted and everyone could unite against: a “Church of the United States.” There was no need for the various participants to agree on what that meant, and, indeed, interpretive disagreements arose as early as the first few decades, but, for this review of the understanding of the clause at the time it was adopted, there is no body of evidence that supports any more detailed sense of what the language meant to the people who voted for it or to the American public who received it. Thus, the establishment clause does not reflect, in Steven K. Green’s words (echoing many other commentators), “broad substantive values upon which

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a majority of early Americans could agree.”196 In particular, Green asserts that the drafters and ratifiers had “common, broad ideals that found their way into the language of the First Amendment: freedom of conscience, no compelled support of religion; no delegation of government authority to religious institutions; and equal treatment of all sects.”197 There is no evidence from the drafters or ratifiers, however, that they were seeking to imbue the constitutional language with any of these values, and, in fact, these principles do not seem to have represented shared values at all. If we look at the prevailing practices in the states, any ideal of “no compelled support” and “equal treatment” did not keep Catholics from being required to support Protestant churches in Massachusetts, nor did these purportedly shared values permit Jews to hold office in a number of states. The existence of widely shared church-state principles as the philosophical foundation of the establishment clause would be extremely helpful for our modern interpretive purposes, hence the enormous literature purporting to find just the right principles in some aspect of the original materials, whether they may be in Jefferson’s Statute, Madison’s Memorial, or any other eighteenthcentury document. But if we want to be fair to the original materials, we need to resist the urge to latch onto convenient statements of attractive 196 197

Green, “Federalism and the Establishment Clause,” 761, 767. Ibid. See also Noah Feldman, Divided by God: America’s Church-State Problem and What We Should Do about It (New York: Farrar, Straus and Giroux, 2005), who finds a noncoercion principle in the establishment clause: “The Establishment Clause guaranteed that the government would not compel anybody to support any religious teaching or working with which he conscientiously disagreed” (p. 49). To support this conclusion, Feldman argues, “By the time of the American Revolution, it would have been difficult to find any American who disagreed with the proposition that every person was entitled to liberty of conscience and that no government could legitimately coerce people in matters of religion” (p. 42). This statement is either simply inaccurate or true only on the condition that “people” means solely Caucasian Protestants. Meanwhile, Kent Greenawalt takes a more circuitous route to reach the substantive principles that the modern Supreme Court has found in the establishment clause. After concluding that the clause’s most likely original meaning was that Congress could neither interfere with state establishments nor establish a religion, either within the states or “within exclusively federal domains,” he observes that although the Court’s church-state jurisprudence “cannot be justified on originalist grounds, . . . the latitude with which the Supreme Court has departed from these original understandings is no greater than it has exhibited with other parts of the First Amendment and with other guarantees in the Bill of Rights.” Greenawalt, “Common Sense,” p. 512. See also Kent Greenawalt, Religion and the Constitution, vol. 2: Establishment and Fairness (Princeton, N.J.: Princeton University Press, 2008), pp. 38–9. Greenawalt is certainly right, but his point seems to be less powerful as a defense of big tent originalism than as a commentary on how disconnected modern Supreme Court doctrine is from the eighteenthcentury understanding of the Constitution.

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sounding principles. The “milk and water” establishment clause simply does not contain any recipe for the future of church-state relations. Instead, the establishment clause represented, at most, broad, noncontroversial language on which a majority of the First Congress (and the ratifiers) could agree: As is evident from the limited records of the debates in the ratifying conventions and the First Congress, a few people expressed the concern that Congress might someday create a national religion, and, there being no support for such a federal ecclesiastical enterprise, it was prohibited by the establishment clause. Any further substantive content, or any more detailed understanding of what “establishment” meant, cannot be derived from the original legislative materials and, as we have seen, is not available from a study of how Americans of that era thought about church-state relationships. Church-state issues had been, and would continue to be, resolved in different ways in the various states, with change often driven more by evolving patterns of religious demographics than by any broad-based set of American principles that were shared by the founding generation.

6 Incorporating Originalism

Introduction “Enigmatic” may not be a strong enough word to describe the federal government’s relationship to religion in the four score years separating the First and Fourteenth Amendments. Yet if we want to reflect on what the establishment clause may have meant when it was adopted – or how its meaning may have been worked out over time – it seems to make sense to look at what various interpreters from 1789 through the Civil War and Reconstruction thought it meant. That is, if one of our originalist questions is framed along the lines of: Assuming that the Fourteenth Amendment made the establishment clause applicable to state governments, what did that clause mean when the Fourteenth Amendment was adopted? then we would be well served to consider what issues may have tested the limits of Congress’s interactions with religion up to that time. There were certainly heated church-state disputes taking place at state and local levels, but the best evidence of what the establishment clause meant in 1868 is (probably) the history of how it was interpreted and applied to federal issues prior to that time. Viewed from the twenty-first century, after nearly a full century of an energetic commitment by the Supreme Court to reviewing and frequently striking down a wide range of federal and state laws touching religion, it seems surprising, perhaps shocking, to see how little interpretive guidance we can obtain from the Supreme Court. The Supreme Court did not opine about the substance of the religion clauses until Reynolds in 1879, well after the adoption of the Fourteenth Amendment.1 Accordingly, we need to look

1

Even earlier, the Court had made it abundantly clear that the First Amendment’s religion clauses would not apply to state laws. Permoli v. New Orleans, 44 U.S. 589 (1845).

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to the other branches of the federal government, where various political actors took positions on what laws Congress could – or could not – make without violating the establishment clause. There we can find something of a running commentary on the meaning of the establishment clause, together with occasional input from the public in the form of books, articles, petitions, and newspaper editorials.

Days of Prayer and Thanksgiving It did not take long for the First Congress to create a church-state issue. The first thing the Congress did after adopting the Bill of Rights was to pass a resolution asking President Washington to declare a day of prayer and thanksgiving to God for bestowing upon the new nation such a fine collection of constitutional amendments. This measure passed, generating Congress’s first opportunity to interpret the not-yet-ratified First Amendment. Representative Thomas Tucker commented that a national day of prayer and thanksgiving “is a business with which Congress have nothing to do; it is a religious matter, and, as such, is proscribed to us.”2 That Congress proceeded in the face of this objection probably suggests that a majority of that body did not believe that following a long-standing tradition in the states – as well as a practice of the Continental Congress – of governmentally declared days of prayer ran afoul of the establishment clause.3 A narrower interpretation is possible, however: The congressional resolution was merely a recommendation that the President declare such a special day; thus, even if someone might argue that it was an action “respecting an establishment of religion,” it was technically not a “law.” We have no evidence to provide further guidance on how fine a point Congress put on this particular issue, but, at the very least, we can see this national day of

2

3

Joseph Gales and W. W. Seaton, eds., The Debates and Proceedings in the Congress of the United States, Compiled from Authentic Materials (Washington, D.C.: D. Appleton, 1834–56) (hereafter Annals, p. 914. James Hutson described the brief colloquy in response to Tucker’s objections as follows: “Tucker was answered by Roger Sherman . . . who observed that the ‘practice of thanksgiving [was] warranted by a number of precedents in Holy Writ,’ which he mentioned, and were an example . . . worthy of Christian imitation on the present occasion.” James H. Hutson, Religion and the Founding of the American Republic (Washington, D.C.: Library of Congress, 1998), p. 80. Interestingly, Sherman, who, during the debates over the religion clauses, had voiced the strongest federalism argument that the establishment clause was unnecessary because of the Congress’s narrow grant of delegated powers, seemed to think that Congress had enough authority over religious matters to recommend such a declaration.

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prayer as an early exemplar of a practice engaged in by a large number of Presidents from George Washington to George Bush, and probably beyond. Congressman Tucker was not alone in his concerns. Hutson points out that Republicans subsequently publicized their constitutional concerns about fast days, especially during the Adams administration, leading Adams to make something of an exaggerated assertion, in an 1812 letter to Benjamin Rush, that his declaration of a national fast “turned me out of office.”4 Noting that “[n]othing is more dreaded than the National Government meddling with Religion,” Adams seemed to attribute much of the opposition – which came from “Quakers, Anabaptists, Mennonists, Moravians, Swedenborgians, Methodists, Catholics, Protestant Episcopalians, Arians, Socirians, Armenians, &&&, Atheists and Deists” – to the fact that the fast “was connected with the general assembly of the Presbyterian Church, which I had no concern in,” leading to a “general suspicion . . . that the Presbyterian Church was ambitious and aimed at an Establishment of a National Church.”5 As a result, Adams writes, “I was represented as a Presbyterian and at the head of this political and ecclesiastical Project,” and the “secret whisper ran . . . ‘Let us have Jefferson, Madison, Burr, anybody, whether they be Philosophers, Deists, or even Atheists, rather than a Presbyterian President.”6 New England Federalists responded by branding Jefferson an infidel and an atheist and, after he was elected, gibed at him about not declaring Thanksgiving days. The Federalist newspaper, the Columbian Centinel, wrote on the ratification of Jay’s Treaty, “It is highly probable [which the writer knew was not the case] . . . that on the receipt of the news of Peace in Europe, the President [ Jefferson] will issue a Proclamation recommending a General Thanksgiving. The measure, it is hoped, will not be denounced by the democrats as unconstitutional, as previous proclamations have been.”7 4

5 6

7

Quoted in James H. Hutson, ed., The Founders on Religion: A Book of Quotations (Princeton, N.J.: Princeton University Press, 2005), p. 37. Ibid. Ibid. Those still fearful of a Presbyterian establishment by the time of Adams’s administration must have overlooked the 1788 amendment of the Westminster Confession by the American Presbyterian Church to, in Philip Schaff’s words, “eliminate the principle of state-churchism and religious persecution, and to proclaim the religious liberty and legal equality of all Christian denominations.” Philip Schaff, “Church and State in the United States,” in Papers of the American Historical Association, vol. 2, no. 4 (New York: G. P. Putnam’s Sons, 1888), p. 49. In particular, chapter 23 of the American Text of the Westminster Confession reads, in part: “[A]s nursing fathers, it is the duty of civil magistrates to protect the Church of our common Lord, without giving the preference to any denomination of Christians above the rest.” Quoted in ibid., p. 50. James H. Hutson, “Thomas Jefferson’s Letter to the Danbury Baptist: A Controversy Rejoined,” William and Mary Quarterly, 3rd ser., 56, no. 4 (October 1999): 781, quoting

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National days of prayer or thanksgiving have been declared by nearly every President, although Presidents Jefferson and Madison both argued against the practice of these kinds of presidential religious proclamations, 8 a political dispute that, in James Hutson’s view, gave rise to Jefferson’s wall of separation letter and, subsequently, to some anxiety-laden flip-flopping by Madison, who grudgingly declared such proclamations during the national unhappiness surrounding the War of 1812.9 Many books and articles have invoked Jefferson’s Danbury letter to mean a wide range of things, and all manner of exegetical approaches have been applied to interpreting the wall of separation language,10 but for our purposes, the Danbury letter may be most interesting with respect to the specific interpretive issue that Jefferson originally wanted to address in the letter, but which disappeared

8

9

10

“Columbian Centinel (Boston), Nov. 28, 1801.” For proclamations regarding days of “solemn humiliation, fasting and prayer” during the Adams administration, see Charles Ellis Dickson, “Jeremiads in the New American Republic: The Case of National Fasts in the John Adams Administration,” New England Quarterly 60, no. 2 (June 1987): 187–207. As did Andrew Jackson, who explained that he could not declare a national fast day “without transcending the limits prescribed by the constitution for the President; and without feeling that I might in some degree disturb the security which religion now enjoys in this country, in its complete separation from the political concerns of government.” Quoted in Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), p. 186. This issue was not uncomplicated at the time. A prominent church leader and leading Jacksonian requested a fast day in the middle of a terrible cholera outbreak in 1832. Jackson declined for basically Jeffersonian reasons, and Henry Clay took up the issue as a political cudgel. The Jacksonian-dominated Senate passed a resolution calling for a fast day (over the objection of Senator Tazewell, who argued not only that Congress lacked the power to do so but also that the cholera was only “extensively fatal among the emigrants”), and the House, after considerable politicking, referred the matter to a committee. Subsequently, twelve states declared fast days. See Adam Jortner, “Cholera, Christ, and Jackson: The Epidemic of 1832 and the Origins of Christian Politics in Antebellum America,” Journal of the Early Republic 27 (Summer 2007): 233–64. For Jefferson, see Hutson, “Thomas Jefferson’s Letter.” See also David P. Currie, The Constitution in Congress: The Jeffersonians 1801–1829 (Chicago, Ill.: University of Chicago Press, 2001), p. 5. Concerning Madison, late in life, in his unpublished Detached Memoranda, he wrote that “it was understood” that he was “disinclined” toward such proclamations, and that some people “supposed . . . that [they] might originate with more propriety with the legislative Body.” Elizabeth Fleet, “Madison’s ‘Detached Memoranda,’” William and Mary Quarterly 3 (1946): 562. It is interesting that neither here nor in the proclamations did Madison explicitly raise constitutional objections, and, in fact, he seemed to think that Congress had the power to issue such proclamations despite the First Amendment’s specific prohibition of Congress’s making laws “respecting an establishment of religion,” with no similar prohibition applicable to the executive branch. See the numerous items cited in the notes to chapter 1 in Daniel L. Dreisbach, Thomas Jefferson’s and the Wall of Separation between Church and State (New York: New York University Press, 2002).

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from the text before the letter was dispatched, namely, the question of whether he, as President, could constitutionally declare national days of prayer, thanksgiving, or fasting. Jefferson asked his attorney general, Levi Lincoln of Massachusetts, to review the draft letter, saying that the missive from the Danbury Baptists “furnishes an occasion . . . which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did,”11 a position that had fueled the fires of the attacks on Jefferson by the New England clergy.12 Had he not been dissuaded by Lincoln, who cautioned that even Jefferson’s supporters, the New England Republicans, respected the long-standing tradition of “fasts and thanksgivings” proclaimed by the executive branch,13 Jefferson would have written that the Constitution’s religion clauses meant that since “Congress [is] inhibited from acts respecting religion, and the Executive [is] authorized only to execute their acts, I have refrained from prescribing even occasional performances of devotion.”14 Such devotions could be “prescribed . . . legally where an Executive is the legal head of a national church,” but in America, “religious exercises [are subject] only to the voluntary regulations and discipline of each respective sect.”15 And on that issue, the draft letter’s language is consistent with Jefferson’s actions but inconsistent with the views and

11

12

13 14 15

Quoted in ibid., p. 43. The Danbury Baptists’ letter can be found on pp. 31–2. They wished to express “Sentiments . . . uniformly on the side of Religious Liberty” and to complain about Connecticut where “Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy . . . we enjoy as favors granted, and not as inalienable rights” (p. 31). For a discussion of the Baptists’ struggles with Connecticut’s ecclesiastical laws, see William G. McLoughlin, New England Dissent, 1630–1833 (Cambridge, Mass.: Harvard University Press, 1971), vol. 2, pp. 985–1005. See Hutson, “Thomas Jefferson’s Letter,” in which he notes that the Federalist charge of Jefferson’s atheism “was their principal wedge issue” (p. 782). For a discussion of how this debate contributed to separationist rhetoric that had been virtually non-existent in the eighteenth century, see Hamburger, Separation, chapters 6–7. Quoted in Dreisbach, Thomas Jefferson and the Wall, p. 45. Quoted in ibid., p. 38. Ibid. Dreisbach writes that a marginal note next to the deletion of this language says that “this paragraph was omitted on the suggestion that it might give uneasiness to some of our Republican friends in the eastern states where the proclamation of thanksgivings etc. by their Executive is an ancient habit, and is respected.” Postmaster Gideon Granger of Connecticut thought that the original version of the letter “will delight the Dissenters” but may “occasion a temporary Spasm among the Established Religionists” (p. 47). He did not recommend any changes to the draft letter. Although the final version of the letter to the Danbury Baptists did not include Jefferson’s constitutional comments on national days of prayer and thanksgiving, he expressed substantially similar sentiments in his second inaugural address and in an 1808 letter to Samuel Miller. See Hutson, Founders on Religion, pp. 62, 102.

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actions of many others at the time, from his predecessors, Washington and Adams, to the vast majority of his successors.16 At the same time, even the final version of the wall of separation letter went considerably further than the Connecticut Baptists were prepared to go on church-state issues. Rather than taking political advantage from this piece of presidential correspondence, they essentially buried it.17 As Hamburger has noted, “separation was not what the [Danbury] Baptists wanted. Indeed, it was incompatible with their understanding of the pervasive value of Christianity.”18 Church Services While there was some dispute over the constitutionality or the appropriateness of national days of prayer, no such debate attended the weekly use of federal buildings for Sunday church services. Here was a case where church and state may not have intertwined their decision-making or financial activities, but certainly physically mingled together with enthusiasm on both sides. As Hutson has documented, “[c]hurch services in the House began as soon as the government moved to Washington, in the fall of 1800. . . . From the beginning, services were open to the public and, for a time, they were so popular that the House on Sunday mornings became the rendezvous for the ‘youth, beauty and fashion of Washington.’”19 At the outset, the new city of Washington may have lacked sufficient locales to accommodate the citizens’ desire for worship services, but, as Hutson notes, “Services in the Capitol continued . . . into the 1850s, long after Washington teemed with churches.”20 In fact, Hutson, with an eye on the Supreme Court’s modern church-state jurisprudence, observes with some irony that “from 1865–1868, the House permitted the newly organized First Congregational Church of Washington to use its chambers for church and Sunday school

16

17 18 19

20

Jefferson Davis even declared a day of prayer for the confederacy. See George C. Rable, The Confederate Republic: A Revolution Against Politics (Chapel Hill: University of North Carolina Press, 1994), pp. 208–9. Rable notes that the practice engendered some controversy: “John M. Daniel thought such rituals smacked of Yankee Puritanism and preachers meddling in politics. Virginia senator Robert M. T. Hunter noted sardonically that the parsons tell us every Sunday that the Lord is on our side. I wish, however, he would show his preference for us a little more plainly than he has been doing lately’” (p. 344, n. 41). See Hamburger, Separation, p. 163; McLoughlin, New England Dissent, p. 1005, n. 23. Hamburger, Separation, p. 163. Hutson, Religion and the Founding, p. 84. See also Anson Phelps Stokes, Church and State in the United States, 3 vols. (New York: Harper and Brothers, 1950), vol. 1, pp. 499–507. Hutson, Religion and the Founding, p. 84.

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services, at precisely the time, May 13, 1866, when Congress passed the Fourteenth Amendment, which according to some later judicial theories, forbids religious activities on public property.”21 These church services in the House featured quite a diverse collection of preachers from a range of Protestant denominations and even, in 1826, the Roman Catholic Bishop of Charleston, South Carolina.22 The next year, the evangelist Harriet Livermore made her first of several appearances; she was the granddaughter of Samuel Livermore, whose establishment clause proposal had been adopted by the House’s Committee of the Whole in 1789. In contrast to the desultory debate over the First Amendment in which her grandfather had participated, “Harriet Livermore drew a packed house, including President John Quincy Adams . . . who ‘sat on the steps leading up to her feet because he could not find a free chair.’”23 Such religious excitement was not confined to the House; at various times, church services were also held in various executive branch buildings as well as in the Supreme Court Chamber, leading Hutson to comment about the wall of separation’s author: “It is no exaggeration to say that, on Sundays in Washington during Thomas Jefferson’s presidency, the state became the church.”24 Chaplains Religious activities in Congress were not restricted to Sundays. Both the House and the Senate appointed Protestant ministers as chaplains shortly after those bodies had first assembled under the Constitution. The Senate appointed Samuel Prevost, the Episcopal bishop of New York, and the House appointed Presbyterian minister William Linn.25 David Currie calls these appointments “wholly noncontroversial at the time,” and he points out that “the practice was continued not only after Congress had proposed a constitutional amendment forbidding the passage of any law ‘respecting an establishment of religion,’ but also after the amendment had been ratified

21 22 23

24 25

Ibid. Ibid. Ibid., p. 87. There were reported to be a thousand people in attendance when Livermore preached in the Capitol in 1827. See Catherine A. Brekus, “Harriet Livermore, the Pilgrim Stranger: Female Preaching and Biblical Feminism in Early-Nineteenth-Century America,” Church History 65, no. 3 (September 1996): 389–404. See also Elizabeth F. Hoxie, “Harriet Livermore: Vixen and Devotee,” New England Quarterly 18, no. 1 (March 1945): 39–50. Hutson, Religion and the Founding, ibid., pp. 89–91. Stokes, Church and State, vol. 1, pp. 456–7.

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and had become law.”26 The enduring presence of congressional chaplains would become one of the nonpreferentialists’ strongest arguments that the First Amendment did not require the Congress to be completely indifferent or totally powerless on the subject of religion.27 Although Madison is widely cited by nonpreferentialists as a member of the House committee that appointed the first chaplains, he appears to have had second thoughts about the practice. In the Detached Memoranda, he opines that “in strictness” the congressional chaplains were not “consistent with the Constitution, and with the pure principle of religious freedom.”28 Famously declaring that the “Constitution . . . forbids everything like an establishment of a national religion,”29 Madison lists the attributes of chaplaincy that “involve the principle of a national establishment”: “The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes.”30 The chaplains are also, asserts Madison, “a palpable violation of equal rights. . . . The tenets of the chaplains elected . . . shut the door of worship against the members whose needs & consciences forbid a participation in that of the majority.”31 Madison points out that both Roman Catholics and Quakers have served in Congress, yet, he asks rhetorically, “Could a Catholic clergyman ever hope to be appointed a Chaplain?”32 If the members of Congress want chaplains, they should pay for them themselves, he concludes.33 Some years later (how many is unclear since the Detached Memoranda are undated), there was a move afoot to eliminate congressional and military chaplains, which spawned several congressional reports. Congressman

26

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28 29 30 31 32 33

David P. Currie, The Constitution in Congress: The Federalist Period 1789–1801 (Chicago, Ill.: University of Chicago Press, 1997), p. 12. Currie also points out that later, when President Madison and various members of Congress disagreed over whether Congress had the power to incorporate religious organizations, the “House and Senate, unfazed, continued to appoint chaplains without recorded objection.” Currie, Constitution in Congress 1801– 1829, p. 319. Irrespective of whether the chaplains should stand for a broader nonpreferentialist reading of the establishment clause, Currie concludes on this particular issue that “the most probable inference seems to be that at the time nobody considered the mere appointment of chaplains an ‘establishment of religion.’” Ibid. Fleet, Detached Memoranda, p. 558. Ibid. Ibid. Ibid. Ibid. Madison then goes on to propose eliminating military chaplains to avoid “erect[ing] them into a political authority in matters of religion.” Ibid., p. 559.

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Meacham’s 1854 report of the Committee on the Judiciary provides an interesting contrast to Madison’s arguments; it includes a strong justification for the chaplaincies and a clear definition of what he believes the establishment clause forbids.34 An “establishment of religion,” asserts the congressman (who was an ordained Congregationalist minister and a Middlebury College professor), “needs to have a number of institutional characteristics: it must have a creed, defining what a man must believe; it must have rites and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist.”35 Such is not the case for chaplains, a practice dating back at least to the Continental Congress. Moreover, the report notes, in an extended display of originalism, the “first business” after Washington’s inaugural address was the appointment of a chaplain.36 The members of the chaplaincy committee “were members of the convention that framed the constitution. Madison, Ellsworth, and Sherman passed directly from the hall of the convention to the hall of Congress. Did they not know what was constitutional?”37 Anticipating the counter-argument that the establishment clause had not yet been adopted, “but was one of the amendments [subsequently] recommended by Virginia,”38 Meacham points out that the Virginia ratifying convention had appointed a chaplain on its first day, that Madison, James Monroe, and John Marshall had all been members, and that “[n]o one will suppose that convention so inconsistent as to appoint their chaplain for their own deliberative assembly in . . . Virginia, and then

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Rep. No. 124, 33rd Congress, 1st Session, in Reports of Committees of the House of Representatives Made during the First Session of the Thirty-third Congress, 3 vols. (Washington, D.C.: A. O. P. Nicholson, 1854) (hereafter House Report). The report begins on p. 142 of volume 2. Ibid., p. 1. See also the following definition of “establishment of religion” in Senator Badger’s 1853 report on chaplains for the Senate Judiciary Committee: “If Congress . . . should pass . . . any law which . . . has in any degree introduced . . . in favor of any church, or ecclesiastical association, or system of religious faith, all or any one of these obnoxious particulars – endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communions – such law would be a ‘law respecting an establishment of religion. . . . ’ But no law yet passed by Congress is justly liable to such an objection.” S. Rep. No. 376, 32nd Cong., quoted in Kurt T. Lash, “The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle,” Arizona State Law Journal 27 (1995): 1097, n. 46. House Report, p. 4. Ibid. Ibid. It is interesting that Meacham so confidently traces the establishment clause to the Old Dominion.

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recommend that this should be denied to the deliberative bodies of the nation.”39 In addressing the next counter-argument, the “danger of a union of church and State,” Congressman Meacham combines the same kind of demographic argument that had been heard in the state ratifying conventions with another set of originalist reflections. The numbers show that the fears of a union of church and state are “entirely imaginary”; after listing the membership figures for more than twenty Christian churches, Meacham points out that it would take “three of four of the largest” or fifteen of the smaller ones “to make a majority,” yet “these sects are widely separated in their doctrines, their religious rites, and in their church discipline.”40 None of these churches “wish[es] for such a union”; in fact, the “sentiment of the whole body of American Christians is against a union with the State,” which evidences a “great change” since the adoption of the Constitution when, in Meacham’s view, “every state – certainly ten of the thirteen – provided as regularly for the support of the church, as for the support of the government.”41 By the 1850s, however, he observes that “every tie has been sundered” between church and state. Nevertheless, Meacham, paraphrasing Story, asserts that when the Constitution was adopted, “the universal sentiment was that Christianity should be encouraged – not any one sect,”42 and, therefore, Meacham concludes that even though “ecclesiastical powers and civil powers . . . should . . . be . . . entirely divorced from each other[,] . . . we beg leave to rescue ourselves from the imputation of asserting that religion is not needed to the safety of civil society. It must be considered as the foundation on which the whole structure rests.”43 Meacham’s commitment to the essential role of religion in society may be nondenominational, but it is hardly a blanket preference of religion over irreligion: “In this age there can be no substitute for Christianity. . . . That was the religion of the founders . . . , and 39 40

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Ibid., p. 5. Ibid. Meacham’s numbers are derived from the “Christian Almanac.” They include numerous variations on Protestantism, as well as Roman Catholics and Jews, but there is no listing for Mormons, Shakers, or any other non-mainstream elements of the nineteenth-century religious landscape. Ibid., p. 6. It is not clear how Meacham is counting. As noted in Chapter 5, modern scholars have proposed a range of possible state establishments at the time of the Bill of Rights from zero to half a dozen or so, but none has reached a number as high as Meacham’s total of ten. Ibid. “Had the people, during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle.” Ibid., p. 8.

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they expected it to remain the religion of their descendants.”44 For these reasons, the Committee on the Judiciary asked to be discharged from further consideration of congressional and military chaplains. Since that time, dissenting voices such as Madison’s have been raised over the practice of congressional chaplains, but the practice has endured. Church Incorporations On some church-state issues, Madison was either inconsistent or willing to compromise. He went along with congressional chaplains but later argued against the practice. Similarly, even though he succumbed to the pressure of declaring several national days of prayer during the War of 1812, his Detached Memoranda opposed the concept, and he explained his actions by saying that it “was not thought proper to refuse” Congress’s specific request, “but a form and language were employed, which were meant to deaden as much as possible any claim of political right to enjoin religious observances.”45 He nevertheless held a firm line on the federal incorporation of ecclesiastical bodies. In the Detached Memoranda, Madison took a strong position opposing the legal incorporation of religious organizations, much as he had as President, even though Jefferson had been willing to accede to Congress’s wishes to incorporate a church.46 This issue arose because, as the city of Washington expanded, the capital’s landscape featured an increasing number of churches. The question arose as to whether Congress would grant a charter to – that is, incorporate as a legal entity – the 44 45

46

Ibid., pp. 8–9. Fleet, Detached Memoranda, p. 562. Madison lists five objections to such proclamations “[a]ltho’ recommendations only”: “1. That Govt ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense be regarded as possessing an advisory trust from their Constituents in their religious capacities. . . . 3. They seem to imply and certainly nourish the erroneous idea of a national religion. . . . 4. The tendency of the practice, to narrow the recommendation to the standard of the predominant sect. . . . 5. . . . [T]he liability of the practice to a subserviancy to political views; to the scandal of religion, as well as the increase of party animosities” (pp. 560–2). In 1806, Jefferson signed a bill that “had authorized the Presbyterian Congregation in Georgetown to sue and be sued, to hold and convey property, and to appoint such officers, and adopt such rules, as they might deem necessary.” Currie, Constitution in Congress 1801–1829, pp. 318–19, 321. Currie notes that, at this early juncture, “it was not so clear that the establishment clause” applied to the District of Columbia. Currie appears to base this statement on an enhanced-federalism reading of the establishment clause. Citing the “respecting” language, he concludes that “its apparent purpose was to keep Congress from poking its nose into matters that ought to be resolved on a more local level” (p. 319).

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“Protestant Episcopal Church in the town of Alexandria, in the District of Columbia.” Typically, the incorporation of for-profit and not-for-profit entities was a matter of state law, leaving no cause for federal action. In the District of Columbia, however, there was no state government; the national government, whose powers were normally limited by the Constitution to those expressly delegated by the several states, had been thrust by Article I, section 8, into a state-like role of being the local government of general jurisdiction.47 Accordingly, the Alexandria Episcopal Church had nowhere to go but the United States Congress to request a charter that would entitle it to own property and would establish rules for its organizational decision making. The Church was successful in February, 1811, and a bill made its way to President Madison, who promptly vetoed it on the grounds that it “exceeds the rightful authority to which governments are limited, by the essential distinction between civil and religious functions.”48 He specifies why the bill exceeds the federal government’s “rightful authority,” and, in doing so, he misquotes the establishment clause. The incorporation bill “violates, in particular, the article . . . which declares, that ‘Congress shall make no law respecting a religious establishment.’”49 By Madison’s reasoning, the Alexandria Church would be “a religious establishment by law” in that “sundry rules and proceedings relative purely to the organization and polity of the church,” including matters relating to “the election and removal of the Minister,” would be given “legal force and sanction.”50 In retirement, 47

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Article I, section 8, clause 17, grants Congress the power to “exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may . . . become the Seat of the Government of the United States.” Annals (11th Congress – Third Session), pp. 982–5. Ibid. The actual text is: “Congress shall make no law respecting an establishment of religion.” According to Kurt Lash, John Marshall similarly misquotes the clause in a Virginia debate over the Sedition Acts when he tries to distinguish congressional power over speech and press from religion: “Congress is prohibited from making any law respecting a religious establishment, but not from any law respecting the press. . . . The difference of expression with respect to religion and the press, manifests a difference of intention with respect to the power of the national legislature over those subjects, both in the person who drew, and in those who adopted this amendment.” John Marshall, Report of the Minority on the Virginia Resolutions (January 22, 1799), quoted in Lash, “The Second Adoption of the Establishment Clause,” pp. 1085, 1093–4. For a discussion of whether Marshall, in fact, wrote this report, see Kurt T. Lash and Alicia Harrison, “Minority Report: John Marshall and the Defense of the Alien and Sedition Acts,” Ohio State Law Journal 68 (2007): 435. Annals, pp. 982–5. He also noted that the provision giving the church “an authority to provide for the support of the poor” is not only “superfluous” but would also “be a precedent for giving to religious societies . . . a legal agency in carrying into effect a public and civil duty.”

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Madison had more time to detail his objections to religious incorporations, and, at this point, he no longer focused on whether the government was being asked to endorse matters of church polity. Instead, Madison’s remarks about such incorporations were part of an extended reflection on the “danger of silent accumulations and encroachments by Ecclesiastical Bodies[, which] have not sufficiently engaged attention in the U.S.”51 Madison actually sounds quite agitated on the subject, writing an anti-incorporation screed in the style of a jeremiad: Ye states of America, which retain in your Constitutions or Codes, any aberration from the sacred principle of religious freedom, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise and purify your systems, and make the example of your Country as pure and compleat . . . as in what belongs to the legitimate objects of political and civil institutions.52

Should any states need guidance on how to achieve the proper “separation between Religion and Govt,” Madison refers them to “Virginia, where religious liberty is placed on its true foundation and is defined in its full latitude.”53 Madison’s opposition to the incorporation of churches may seem idiosyncratic in light of all of the types of not-for-profit organizations that have been incorporated over the years,54 but it did reflect a popular view among some 51

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Fleet, Detached Memoranda, p. 554. Madison later extends this concern to the “power of all corporations” which should be limited “in the indefinite accumulation of property [and] holding it in perpetuity. . . . The growing wealth acquired by them never fails to be a source of abuses” (p. 556). Ibid., p. 555. Ibid., pp. 555, 554. Madison especially points to the defeat of the several assessment proposals and the adoption of the religious freedom statute, both largely the result of “the memorial and remonstrance”: “when the legislature assembled, the number of Copies and signatures . . . displayed such an overwhelming opposition of the people, that the . . . general assessment was crushed under it; and . . . the Bill . . . establishing religious liberty [was adopted]” (p. 555). As noted above, Madison may have been taking more credit for the role of his Memorial and Remonstrance than it had achieved at the time. Leo Pfeffer notes that in 1893 Congress “incorporated the same Episcopal Church in the Diocese of Washington, D.C., that Madison had refused to allow to be incorporated.” Leo Pfeffer, “Madison’s ‘Detached Memoranda’: Then and Now,” in Merrill D. Peterson and Robert C. Vaughan, eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Cambridge, U.K.: Cambridge University Press, 1988), pp. 283–312. Morton Borden points out that a “statute, passed by Congress for the District of Columbia, permitted only Christian congregations to be incorporated. In 1856 Senator Lewis Cass presented the petition of ‘our Hebrew fellow-citizens of this District,’ adding his own endorsement that ‘such a distinction is an act of gross injustice. . . . ’ The bill for ‘the benefit of the Hebrew congregation in the City of Washington’ passed both houses unanimously.” Morton Borden, Jews, Turks, and Infidels (Chapel Hill: University of North

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segments of the evangelical community in post-revolutionary Virginia and other republican strongholds where ecclesiastical incorporation battles carried on into the middle of the nineteenth century. As Thomas Buckley has pointed out, by the 1830s the Virginia assembly “regularly incorporated railroad, canal, steamboat and turnpike companies, . . . academies and colleges, library, literary, and scientific societies, and even mineral springs. But no religious groups need apply.”55 In a debate in the mid-1840s, Presbyterian minister William Swan Plumer spoke out against a Virginia bill providing for the incorporation of churches, calling it a “virtual establishment of religion.”56 Yet Plumer certainly did not speak for all Presbyterians. At essentially the same time that Plumer was decrying the incorporation of religious bodies in Virginia, neighboring North Carolina Presbyterians were lobbying their legislature in favor of the incorporation of what would become Davidson College; meanwhile, the Tar Heel Baptists found themselves split on the incorporation issue.57 The Baptist State Convention had sought to incorporate a “Literary and Manual Labor Institution in the Country of

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Carolina Press, 1984), p. 141, n. 1. Just a few years later, Congress tacked in the opposite direction with the 1862 “Morrill Act for the Suppression of Polygamy,” which “annulled the Utah territorial legislature’s incorporation of the church of Jesus Christ of Latter-day Saints.” Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002), p. 81. See generally, Paul G. Kauper and Stephen C. Ellis, “Religious Corporations and the Law,” Michigan Law Review 71 (August 1973): 1499. Thomas E. Buckley, S.J., “After Disestablishment: Thomas Jefferson’s Wall of Separation in Antebellum Virginia,” Journal of Southern History 61, no. 3 (August 1995): 445–80. Quoted in ibid., p. 445. Buckley observes that James Madison had supported a 1784 act incorporating the Protestant Episcopal Church, but notes that Madison “saw the incorporation act as a way of postponing a bill that he dreaded: a religious assessment” (p. 451). The incorporation bill was subsequently repealed. See generally Thomas E. Buckley, S.J., Church and State in Revolutionary Virginia (Charlottesville: University of Virginia Press, 1977). For additional commentary on ecclesiastical incorporation, see Justice Story’s opinion in Terrett v. Taylor, 13 U.S. 43 (1815). In that case, Virginia asserted the right to church property following repeal of the incorporation act, which Story held to be “inconsistent with the principles of the constitution and of religious freedom.” Quoted in David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (Chicago, Ill.: University of Chicago Press, 1985). Ultimately, Story concluded that the church could keep the property, in part because it had become part of the District of Columbia where Virginia had no jurisdiction. See also the battle in the Pennsylvania legislature in 1828 over the incorporation of the American Sunday School Union described in Bertram Wyatt-Brown, “Prelude to Abolitionism: Sabbatarian Politics and the Rise of the Second Party System,” Journal of American History 58, no. 2 (September 1971): 316–41. See Luther L. Gobbel, Church-State Relationships in Education in North Carolina since 1776 (Durham, N.C.: Duke University Press, 1938). For more information regarding the divisions among the Baptists on incorporation issues, see Hamburger, Separation, p. 178, n. 60.

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Wake,” but the effort faced strong opposition from the “anti-missionary Baptists” who believed that incorporation “‘is the first step to a rich church, a proud, pompous, and tithing ministry,’ and that the legislature had nothing to do with religious matters.”58 The incorporation bill eventually passed only by virtue of the Speaker’s tie-breaking vote in the Senate. A revised charter, in the new name of Wake Forest College, was adopted in 1838, but not without the addition of restrictions reflecting more of a concern with the eternal verities of college students than the propensities of proud or pompous ministries: The charter banned “billiard tables, theatricals, sleight-of-hand performances, and the sale of liquor.”59 To be sure, Madison’s position on the incorporation issue reflected a strongly held view by some (but not all) members of the evangelical community; it is not clear, however, how Madison came to his constitutional conclusions in light of the relatively relaxed approach he had taken to the establishment clause in the House debates. He does not make originalist arguments, and it is certainly difficult to see how the legal incorporation of a local Episcopal church in the District of Columbia would lead to a “national religion,” the prevention of which was the object of the establishment clause, according to Madison’s own statements in the House debates. In his veto message, Madison seems to have reverted to a theory of government that insists on a sharp division between civil and religious authority, a position that he had expressed in his Memorial and Remonstrance, that is, that government has no cognizance of religion.60 In so doing, Madison may have helped launch what has become a modern jurisprudential tradition 58

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Gobbel, Church-State Relationships, p. 29, quoting from a “Memorial and Remonstrance” appearing in the Tarborough Free Press in 1833. It is fair to point out that the Antimissionary Baptists also opposed a number of “unscriptural” innovations, such as an educated clergy. For more about the Antimission movement, see Bertram Wyatt-Brown, “The Antimission Movement in the Jacksonian South: A Study in Regional Folk Culture,” Journal of Southern History 36, no. 4 (November 1970): 501–29. Buckley notes that one reason the Antimission Baptists may have opposed incorporation is because the concept was favored by professional clergy: “Antimission Baptists shrewdly charged that clergymen, ‘not [church] members nor the people generally’ were the ones who wanted incorporation. . . . Veins of anticlericalism lay beneath the feverish growth of evangelicalism in nineteenth-century Virginia.” Buckley, “After Disestablishment,” pp. 469–70. Luther L. Gobbel, Church-State Relationships in Education in North Carolina since 1776 (Durham, N.C.: Duke University Press, 1938), p. 31. Kurt Lash points out that Madison took a similar position several years earlier: “In his 1800 Report on the Virginia Resolutions, Madison declared that ‘liberty of conscience [was] equally and completely exempted from all authority whatever of the United States.” Kurt T. Lash, “Power and the Subject of Religion,” Ohio State Law Journal 59 (1998): 1069, 1095. See ibid. for an argument that there is no implied federal power over the subject of religion.

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of reading the establishment clause through a far different lens than even he, as defender of the unamended Constitution in 1787, and as proposer of “milk and water” amendments in 1789, had suggested at the time. Sounding much like Jefferson’s draft (and ultimately excised) Danbury language – and also sounding much like the Madison and Jefferson of the mid-1780s church-state battles in Virginia – President Madison seized the opportunity to imbue the establishment clause with a meaning that seems a far cry from the nature of the unexceptional debates in the First Congress and the ratifying conventions. When Congress took up the vetoed incorporation bill, two New Englanders spoke up to challenge Madison’s view of the establishment clause. That they were so surprised at Madison’s position suggests that Madison’s approach was unusual enough that it is unlikely to have been a widely held view of what was originally intended by the First Amendment, at least in New England. Congressman Timothy Pitkin of Connecticut, a lawyer and historian who would soon issue the two-volume Political and Civil History of the United States,61 averred that he “had no idea that the Constitution precluded Congress from passing laws to incorporate religious societies. . . . He had always held the Constitution to intend to prevent the establishment of a National Church, such as the Church of England – a refusal to subscribe to the tenets of which was to exclude a citizen from office, etc.”62 His colleague Laban Wheaton of Massachusetts took up the same position. Calling Madison’s objections “altogether futile,” Wheaton did not consider the bill to be unconstitutional.63 “If it was,” he argued, “both branches of the legislature, since the commencement of the government, had been guilty of such infringement.”64 While he believed that the members of Congress had

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Timothy Pitkin, Political and Civil History of the United States from 1763 to the Close of Washington’s Administration, 2 vols. (New Haven, Conn.: Hezekiah Howe and Durrie & Peck, 1828). Annals, pp. 995–8 (February 21, 1811). In more than 1,000 pages chronicling the first few decades of the early national period, Pitkin’s history devotes a mere three pages to the Bill of Rights, most of which simply summarizes the provisions themselves. He provides no commentary on the religion clauses beyond their text. Religion is quite an important topic for Pitkin, however, and he ends the two-volume set with an extended quotation from George Washington’s Farewell Address that makes the point that “national morality [cannot] prevail in exclusion of religious principle.” Pitkin, Political and Civil History, vol. 2, p. 500. In introducing this text, Pitkin reminds his readers: “But above all, this great and good man reminded his fellow citizens, that without religion and morality, they would expect political prosperity in vain” (p. 499, emphasis in original). Wheaton was a lawyer and longtime judge in Massachusetts. His family was responsible for founding one of the earliest seminaries for women’s higher education in America, which has become Wheaton College in Massachusetts. Pitkin, Political and Civil History, 500.

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not, in fact, “been guilty of doing much about religion,” nevertheless, “they had . . . appointed Chaplains [and] if a bill for regulating the funds of a religious society could be an infringement of the Constitution, the two Houses had so far infringed it by electing paying or contracting with their Chaplains. For so far it established two different denominations of religion.”65 Two days later, without further recorded debate, the bill failed to pass a motion for reconsideration, and the church had to wait for nearly a century to become an incorporated entity.66 It may be worth pausing a moment to reflect on the various approaches that scholars have advanced concerning the original meaning of the establishment clause. Madison’s strict “no cognizance” view, now more popularly advanced (typically in the strict separationist school) as an absence of federal power over religion, certainly appeals to Madison, but he does not make an originalist argument for it, and Pitkin and Wheaton cannot fathom how the clause could be seen in that light. Meanwhile they had a useful forum to speak for two states that had long traditions of supporting churches with tax dollars: Connecticut and Massachusetts. This would have been an excellent occasion for them to put forth an enhanced-federalism interpretation – that is, that the First Amendment had nothing to do with incorporations but was actually designed to protect state “establishments” from federal interference. Instead, Congressman Pitkin cited the “no national church” reading, which, as we have seen, was the sense of the 1789 debates. Interestingly, in this disagreement over the now twenty-year-old establishment clause, it was Pitkin who based his argument on what the “Constitution . . . intend[ed]” rather than Madison, the framer, who did not appear to adopt an originalist methodology but instead looked to a theory of government that made “essential distinctions between civil and religious functions.” Since no statelevel church-state relationships were in question, the failure of the New Englanders to raise the enhanced federalism interpretation does not prove that it was completely absent from the establishment clause’s original meaning, but these comments by Pitkin and Wheaton weaken the argument that an enhanced federalism, designed specifically by New Englanders to protect their “establishments,” was at the heart of the clause’s original understanding. Congressmen Pitkin and Wheaton were not the only ones whose views of the establishment clause diverged from Madison’s. An editorial in

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Ibid. He appears to be referring to the fact that the initial chaplains were an Episcopal bishop and a Presbyterian minister. Ibid., p. 351 (February 23, 1811) . See above note 54 re: the successful incorporation of the church.

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the Baltimore Republican and Commercial Gazette, published just after Congress failed to override the President’s veto, stated, “What was the meaning of the Constitution in providing against a religious establishment? Does any man but Mr. Madison imagine it was to prevent the District of Columbia from engaging legal church regulations?”67 The editorialist continued by arguing that providing “each sect and congregation [with] its own establishment, modified according to its wishes and sanctioned in that modification by law” provides the “best security against ‘a religious establishment.’”68 Then the writer made a point of defining the critical term: “a religious establishment” is “one preeminent establishment which is preferred and set up over the rest against which alone the constitutional safeguard was created.”69 The Baltimore editorialist was joined by another writer contradicting Madison’s interpretation of the First Amendment in even stronger language. “A.B.,” writing in the Albany Register, took Madison to task not only for misquoting the establishment clause but also for completely misreading it. Suggesting that the President took a “mental nap,” A.B. sarcastically continued, “I hope that our commissioners, in negotiating with Great-Britain; will readily perceive the difference between an establishment of peace and a peace establishment.”70 So sure was the writer of his opinion that he noted that it “is almost needless to remark that the clause in question was intended to guard against any national establishment of religion” and that “a ‘religious establishment’ means quite another thing; even a single religious society, which is already established by law, is properly a ‘religious establishment.’”71 At this point, A.B. goes quite a bit further than the Baltimore editorial writer. Congress’s constitutionally granted “exclusive jurisdiction” bestows upon it, according to A.B., the “right even to establish any particular religion within the District of Columbia.”72 That is, A.B. read the establishment clause so narrowly that it prohibits Congress only from forming a “national 67

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Quoted in Charles James Antieau, Arthur T. Downey, and Edward Roberts, Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (Milwaukee, Wisc.: Bruce Publishing, 1964), p. 177. Ibid., p. 178. Here the writer’s first use of the word “establishment” seems to refer to “incorporation” as opposed to “a religious establishment,” which would be prohibited by the First Amendment. The writer appears to have adopted Madison’s language rather than the amendment’s actual verbiage: “an establishment of religion.” Ibid. “From the Albany Register,” reprinted in The Vermont Mirror (April 13, 1814). Emphasis in the original. Ibid. Ibid.

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establishment,” but it would permit Congress to set up an official “Church of the District of Columbia.” In exercising its constitutionally granted powers over the District of Columbia, Congress essentially takes on the role normally played by the state governments and, therefore, can establish an official church within the territory over which it holds “exclusive jurisdiction.” It is a “wonder,” A.B. concluded, “that a man [i.e., Madison] who ought to have the eyes of an Eagle should, in this instance, have seen so darkly as to make the mistake in question.”73 In light of all of these diverse attitudes, it is challenging to come to any firm establishment clause conclusions from the early actions of the Presidents and the Congress on topics such as church services, chaplains, and the incorporation of religious organizations other than to note that, while various people were against at least some of them, they enjoyed the support of enough congresses and Presidents to become well accepted practices over the course of the nineteenth-century.74 Even Jefferson and Madison, two of the framers who were most ardently devoted to minimizing the government’s interactions with religion, sometimes looked for ways to compromise for political reasons – perhaps to blunt charges of atheism, in the case of Jefferson’s opening the halls of the government to church services, or to foster national unity in wartime, as in the days of prayer during Madison’s administration. Congressional debates, presidential vetoes, published letters, and newspaper articles demonstrate a wide spectrum of interpretations of the establishment clause, from Madison’s assertion that Congress has no “rightful authority” on the subject of religion at all to Congressman Pitkin’s understanding that the First Amendment excluded only a “National Church . . . a refusal to subscribe to the tenets of which was to exclude a citizen from office, etc.,”75 but the nineteenth-century record of legislative 73

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Ibid. A.B. also wrote that “the present President of the United States, whatever may be his reputation as a man of pure unsullied character, does not always possess that discernment of mind which is naturally expected from one in his exalted station.” The degree to which these activities supported or recognized any particular religion varied from time to time, as Morten Borden has pointed out regarding national days of prayer and fasting: “Previous Presidents had issued . . . proclamations during periods of emergency, but had been careful to use abstract phrases, avoiding any Christian identifications. Lincoln [in 1863] did the opposite. His proclamation spoke of ‘our national sins,’ repeated that Americans ‘have forgotten God’ in their pursuit of material prosperity, and . . . recognized ‘the sublime truth announced in the Holy Scriptures.’” Morton Borden, “The Christian Amendment,” Civil War History 25, no. 2 (1979): 156–67. Borden points out that Lincoln’s proclamation helped inspire the National Reform Association in its effort to append a Christian amendment to the Constitution (p. 161). Not to mention A.B.’s opinion that Congress is empowered formally to establish a particular church as the official religion of the District of Columbia.

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practices shows that Congress generally tended not to take as hard a line as Madison or Jefferson may have preferred (and even the two of them may have differed from time to time). With such a diversity of opinion, it is difficult to see a widely shared sense of what the clause’s original meaning was, or even whether such a shared meaning was beginning to develop, beyond the sense that the First Amendment proscribed a nationally established religion, whatever that might mean. Alongside this notion that the establishment clause had banned Congress from creating a national church, Jefferson and Madison can be seen advancing interpretations of the First Amendment that reflect a much sharper sense of governmental powerlessness over religion than can be found in the debates surrounding the adoption of the establishment clause. When unencumbered by the need for political compromise, Madison and Jefferson read the establishment clause as encompassing a theory of church-state relations that harked back to the anti-ecclesiastical views they had previously expressed in opposition to the Anglican Church in colonial Virginia but had not made prominent during the process of formulating the Bill of Rights. As Hamburger has observed, for example, Jefferson’s Danbury “letter elevated anticlerical rhetoric to constitutional law.”76 In advancing this “no cognizance” or “lack of power” interpretations, Madison and Jefferson were staking out positions with which many in America, including many in the anti-establishment dissenting Protestant denominations, were not comfortable. Hamburger writes, “After Republicans in 1800 blasted their candidate’s clerical opponents with the concept of separation between religion and politics, Jefferson himself in [the Danbury letter] advocated the related idea of separation between church and state. . . . Yet the Baptist dissenters . . . did not . . . adopt this concept. . . . Separation had not been and would not soon become their goal.”77 Many Americans still genuinely believed that religion and morality – specifically, Protestant Christian religion and its vision of morality – were essential to good government, and they sought to interpret the establishment clause in that light. In fact, to have suggested otherwise in the First Congress or in the state ratifying debates would have been to convert an anodyne amendment into a strong and distasteful tonic. When Jefferson and Madison advanced their establishment clause interpretations, were they advancing originalist arguments? While Madison was certainly an “original” framer, his veto message does not assert any authority 76 77

Hamburger, Separation, p. 161. Ibid., p. 144.

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beyond the (misquoted) text of the establishment clause; nor does Jefferson make interpretive arguments to support his “wall of separation” conclusion. It would, in fact, be very difficult for Madison, Jefferson, or modern interpreters to claim that the First Congress or the ratifiers all (or even mostly) shared the opinion that national thanksgiving days or laws incorporating churches in the District of Columbia were ones “respecting an establishment of religion,” as that phrase was originally understood – and, in fact, the Congresses that recommended the thanksgiving day in 1789 and that passed incorporation bills in 1806 and 1811 did not seem to think so (not to mention Jefferson’s signing of the 1806 incorporation bill). The most immediate contemporaneous evidence indicates that, on various occasions, Jefferson and Madison were seeking to push the establishment clause further than it was understood in the original legislative and executive branches (and probably as it was understood by the ratifiers and the general public as well). In short, Madison, Jefferson, and some of their republican supporters began in the early years of the nineteenth century to articulate an interpretive approach that would ultimately evolve into what we usually call strict separationism, but they did not specifically claim that their positions were shared by others at the time the Bill of Rights was adopted, nor did they couch their arguments in originalist language. Only later do these framers’ statements become part of the originalism debate.78 And so, although Madison and Jefferson themselves did not explicitly engage in what we now deride as “law office history,” their stature as important Founding Fathers provides an opportunity for modern originalist interpreters to claim the mantle of their authority. Take, for example, Justice Rutledge, who is certainly wrong when he asserts that the original understanding of the establishment clause was that it was simply constitutional shorthand for Madison’s Memorial and Remonstrance; nevertheless, that fact did not deter even Madison himself from trying to make it so. The difference between Rutledge and Madison is that Rutledge argues that the Memorial and Remonstrance interpretation is what the framers intended when they adopted the First Amendment, whereas Madison merely asserts that such an approach is what the establishment clause should mean. Sunday Mails At this point in American history, many originalists start losing enthusiasm for establishment clause history since the “framers” are beginning to 78

See, e.g., ibid., chapter 7.

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die out. The originalists’ canonical texts are thus limited to a fairly narrow slice of documents produced either up to the time the establishment clause was framed or subsequently by people who could be identified as framers, and quite a few of these texts – especially the Memorial and Remonstrance by Madison and Jefferson’s religious freedom statute – had nothing to do with the establishment clause when they were written. Our task, however, is to figure out whether a widely shared and historically comprehensible view of the establishment clause developed during the decades leading to the Fourteenth Amendment, so our historical queries have just begun. As we search for useful sources, it may be insightful to focus attention on the exploits of a nineteenth-century statesman who has only occasionally graced the church-state literature but who managed to appear, Forrest Gump–like, at the center of a remarkable number of occasions when the federal government and religion ran into each other: Indian fighter, congressman, senator, vice president, and Kentucky colonel Richard Mentor Johnson (1780–1850). And we will see that his record on the issues is as perplexing and enigmatic as the rest of the early nineteenth century. Less than a decade after James Madison vetoed the Episcopal church incorporation on establishment clause grounds, the Senate briefly debated a “bill to incorporate the General Convention of the Baptist denomination, in the District of Columbia, for Evangelical and Literary purposes.”79 Two senators, Williams of Tennessee and King of New York, opposed the bill, generally on the grounds that James Madison had set forth in his earlier veto message, including “their desire to act rigidly up to the letter and spirit of the wise provision in the constitution which forbade Congress to make any law concerning an establishment of religion.”80 Senator Johnson of Kentucky was one of three who spoke in favor of the incorporation act, both because of its “unexceptionable nature . . . which was merely to enable a number of persons of a particular society to hold real estate,” and because “the bill possessed no feature, or had any tendency at all unconstitutional.”81 The bill was initially postponed, but was subsequently reintroduced and enacted into law, leading to the Baptist seminary that has become the George Washington University.82 Although Johnson’s published remarks in the debate 79 80

81 82

New York Commercial Advertiser (April 29, 1820). Ibid. They were also concerned that it “might serve as an excuse for future acts of an unconstitutional tendency; [and] because the incorporation of one sect would lead to applications from others.” Ibid. Leland Meyer, The Life and Times of Colonel Richard M. Johnson of Kentucky (New York: Columbia University Press, 1932), p. 383.

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are quite brief, the fact that he saw the incorporation of a religious organization as having no “tendency at all unconstitutional” suggests that he falls toward the other end of the spectrum from Madison’s expansive reading of the establishment clause. It is thus somewhat surprising that, in just a few more years, Johnson would issue the most strict separationist congressional documents to emerge from the first few decades of the nineteenth century: the reports on the delivery of mail on Sunday by the Senate and House Committees on the Post Office and Post Roads in 1829 and 1830. Johnson is a lively and colorful figure of the Jacksonian era. Born in 1780, he was admitted to the Kentucky bar but spent virtually all of his career in politics, becoming, at various times, quite rich and relatively poor from various government-related ventures.83 Commissioned as a colonel in a regiment of Kentucky volunteers, he fought during the War of 1812, and was frequently (although probably erroneously) credited with killing the famous Indian warrior Tecumseh. Johnson served briefly in the Kentucky House of Representatives, but quickly became a member of Congress and then the United States Senate. During his service in the Senate, where he chaired the Committee on the Post Office and Post Roads, Johnson seized upon a highly publicized issue wrought with moral and financial issues – the question of whether the mails should be delivered on Sunday – and took the opportunity to issue an extensive report on the proper relationship of church and state. The next year, when he was back in the House of Representatives, Johnson issued yet another report, this time as chairman of the equivalent House committee. Both reports caught the Jacksonian wave, and they considerably enhanced Johnson’s political position. As Richard John has written, “With the publication of his two reports, [Johnson] emerged, at least in the proJackson press, as a statesman of national stature – a transmogrification that would culminate, in 1831, with his election . . . as vice president of the United States.”84

83

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For biographical details, see ibid. and Jonathan Milnor James, “The Making of a Vice President: The National Political Career of Richard M. Johnson of Kentucky,” Ph.D. dissertation, University of Memphis, 1998. A more hagiographical account can be found in William Emmons, Authentic Biography of Col. Richard M. Johnson of Kentucky (Boston: published for the proprietor, 1834). Richard R. John, “Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture,” Journal of the Early Republic 10, no. 4 (Winter 1990): 517–67. See also James R. Rohrer, “Sunday Mails and the Church-State Theme in Jacksonian America,” Journal of the Early Republic 7, no. 1 (Spring 1987): 53– 74; Daniel Dreisbach, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate (Lexington: University Press of Kentucky, 1996) , pp. 4–7; and John

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In many ways the long and bitter national controversy over the Sunday mails represented the kind of dramatic political battle that would have attended the adoption of the First Amendment’s religion clauses if those provisions – or even the federal government itself – had been seen at that time as directly affecting the lives of large numbers of Americans. “Never before,” writes John about the postal controversy, “had the federal government interfered as directly with the rhythms of everyday life. Never before had so many Americans formally challenged the authority of their elected representatives to legislate on matters touching on deeply held religious beliefs.”85 Milk and water no more, the establishment clause would be invoked to resolve a dispute far more central to Americans’ religious and political consciences than the occasional national fast day or the legal incorporation of religious societies that happened to be located in the District of Columbia. The roots of this dispute can be found in an 1810 federal law requiring “all postmasters to open their office to the public on every day the mail arrived, and to deliver ‘on demand’ any item being held in their office on every day of the week,”86 a schedule that helped increase the speed at which important financial and other commercial information reached America’s hinterlands. This law – and the Sunday mail delivery it required – ran headlong into “a welter of [state and local] laws [that] restricted the kinds of activities that could legally be pursued on this day. . . . [T]hese laws were widely respected and routinely, if sometimes sporadically, enforced. . . . [T]he post office became the only public institution exempt from the ban.”87 As a result, the post office was an extremely popular place, and “once the mails arrived, the citizenry [almost always men] would flock to the post office ‘in multitudes’ to collect their letters and newspapers and to hear the latest news,”88 sometimes lingering to play cards, drink alcohol, and generally spend the Sabbath having a good time. Thanks to the post office, the federal

85 86 87 88

G. West, Jr., The Politics of Revelation and Reason: Religion and Civil Life in the New Nation (Lawrence: University Press of Kansas, 1996). John, “Taking Sabbatarianism Seriously,” pp. 517–18. Ibid., p. 522, citing “Annals of Congress, 11th Cong., 2nd sess., 638, 642.” Ibid., p. 528. Ibid., p. 530. John makes a point of describing the religiously focused Sabbath as not necessarily “the boring, gloomy ordeal that most twentieth-century historians have assumed it to be. . . . [Rather the] Sabbath provided an opportunity for collective self-renewal, for the encouragement of those ties of family and kin so vital to the emerging cult of domesticity, and for the ritual reaffirmation of the transcendent reality of sacred time” (p. 531). Either gloomy ordeal or transcendent renewal, the demands of the Fourth Commandment were losing ground to the attractions of up-to-date news, possibly accompanied by drinking and gambling.

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government was directly touching the lives of ordinary citizens, and was thus acting much more like a traditional “state” than had ever before been the case.89 The mails were an enormous part of the federal government, representing over 75 percent of its civilian work force by 1831, and they constituted an essential element of America’s rapidly expanding economy.90 This palpable federal presence could cause a shock to the system, as noted by “the disillusioned Jacksonian John Barton Derby shortly after the large-scale partisan dismissal of postmasters that followed Jackson’s inauguration,” writes John.91 Derby described the firings as “for months press[ing] on the hearts of the villagers like an incubus. They go about the streets and . . . seem to be saying to themselves, ‘E’cod! – there is a United States government, or I’m darned!’”92 The 1810 law requiring delivery of the mails all seven days of the week – which was, in effect, a law requiring Sunday delivery – could be seen as just the kind of thing that the New Englanders might have been worried about if they had intentionally inserted federalism-enhancing language in the establishment clause. Sabbath laws had typically been inspired by a theologically based desire to “remember the Sabbath day to keep it holy,” and to do so according to the demographically dominant Protestant view 89

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As Stephen Botein has pointed out, “By the 1830s for many people, the federal government was apparently beginning to reveal enough attributes to warrant some semblance of the official religious identity [that men such as Daniel] Webster had wanted to retain in Massachusetts” especially because of the benefits “which civil society derives from these Christian institutions which cherish piety, morality and religion.” In other words, governments, in Webster’s view, “should have a religious dimension, and the United States was beginning to show signs of having such a government.” Stephen Botein, “Religious Dimensions of the Early American State,” in Richard Beeman, Stephen Botein, and Edward C. Carter II, eds., Beyond Confederation: Origins of the Constitution and American National Identity (Chapel Hill: University of North Carolina Press, 1987), pp. 315–30. See Richard R. John, Spreading the News: The American Postal System from Franklin to Morse (Cambridge, Mass.: Harvard University Press, 1995), p. 3. John describes the American postal system as “a communications revolution”: “By 1828, the American postal system had about twice as many offices as the postal system in Great Britain and over five times as many offices as the postal system in France. This translated into 74 post offices for every 100,000 inhabitants in comparison with 17 for Great Britain and 4 for France.” Ibid., p. 5. Ibid., p. 5. Ibid. (emphasis in original). Derby continued as follows: “For so beautiful is the system of government continued by our wise forefathers, that while the general government of the United States poises and holds together the whole, no man in the country even feels its direct action (when it is peacefully and constitutionally administered), excepting in the appointment of a postmaster of his village. And it is only by some irregularity in the system, that he becomes conscious of subjection to higher powers than his own paternal state government” (emphasis in original).

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of Sunday as the Sabbath day. Religious leaders and others condemning Sunday mail delivery on the grounds that it violated state Sabbath laws could have asserted that the 1810 law thereby violated the establishment clause: It was arguably an act of Congress “respecting an establishment of religion”– it dealt with a subject matter that many today consider an element of an “establishment of religion,” namely, the Sabbath laws that were part of an interlocking network of state laws (along with blasphemy laws, religious test laws, and the like) that were designed to promote Protestant Christianity over other religions and over no religion at all. (As noted in Chapter 5, proponents of the federalism-enhancing interpretation are well served by the most expansive possible definition of “establishment.”) Yet while many Protestants protested the 1810 law on a variety of constitutional grounds, this establishment clause argument was not one of them. Perhaps the best explanation for their failure to raise this point is that the federalismenhancing reading of the establishment clause had not yet been invented – that is, it was not the original understanding, or even an early interpretation, of the First Amendment.93 Although the opponents of the Sunday mails did not make this particular establishment clause argument, they advanced many other reasons not only for repealing the law but also for stopping even the movement of the mails on Sunday. In 1810, the Pittsburgh synod of the Presbyterian Church, for example, asserted that the law “infringed on the ‘laws of God, [and] violated the ‘rules of conscience.’”94 The General Assembly of the Presbyterian Church followed suit, and in 1814 “distributed 2000 blank petitions to every Presbyterian church in the United States, appointed 39 ministers as agents to coordinate the efforts, and solemnly enjoined every Presbyterian minister to drum up support among his congregation.”95 The Presbyterians enlisted the support of the Congregationalist associations in Connecticut 93

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Sabbatarian Harmon Kingsbury makes a more conventional federalism argument. Kingsbury summarizes the “instruction given by many of the colonies to their delegates to the Continental Congress . . . show[ing] that in the reserved rights of the States are included all ‘that relates to their internal police, and the management of their own civil and religious affairs.’” Harmon Kingsbury, The Sabbath (New York: Jonathan Leavitt, 1841), p. 114. Then, looking to the adoption of the Constitution, he writes that “it is evident that they never intended to give to Congress power to interfere with their internal legislation, in relation to morality and religion” (p. 115). No specific reference to the establishment clause is made, and there is no assertion that the establishment clause contains an extra layer of federalism in matters of religion (despite the appearance in Kingsbury’s nearly 400-page volume of virtually every possible argument in favor of the Sabbath and various state Sabbath laws). John, “Taking Sabbatarianism Seriously,” p. 523, quoting a petition sent to Congress in 1810. Ibid., p. 525.

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and Massachusetts, leading to a raft of petitions headed toward Congress. The arguments did not revolve around the secular need for a day of rest, but, rather, focused on the spiritual obligations of a Christian nation. The basic point of the Presbyterian-led effort was, as John reports, “Now that Congress had taken upon itself the regulation of personal behavior, it too [like the state governments] had an obligation to abide by ‘those principles of truth and equity revealed in the Scriptures.’ Thus, it saw nothing improper in rebuking Congress for its neglect of the Fourth Commandment. . . . [I]t warned Congress that, should it fail to repent, it risked drawing down upon ‘our nation’ the ‘divine displeasure.’”96 Before long, however, the War of 1812 interrupted the Sunday mails debate. The government was focused on more urgent matters, and many in Congress believed that the mail was of such “great national importance” during wartime that Sabbatarian concerns should be put aside, at least for the time being.97 The Sunday mails debate died down for over ten years, but then reemerged with great enthusiasm. John credits Presbyterian and Congregationalist church leaders with rekindling the Sunday mail controversy, beginning with the Presbyterian general assembly’s declaration in 1826 of a “boycott of every transportation company that persisted in running a single stagecoach, steamboat, or canal packet seven days a week.”98 They were joined in the Sabbatarian effort by members of many other churches. McLoughlin observes, for example, that, although some Baptist leaders were anti-Sabbatarians, in general, “the Baptists threw themselves headlong into the campaign to prohibit the delivery of the United States mails on Sunday.”99 An ecumenical coalition of several hundred ministers and business leaders formed the General Union for the Promotion of the Christian Sabbath in 1828, which John characterizes 96

97 98

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Ibid., pp. 529–30. John goes on to note that from “a late twentieth-century perspective, these anxieties may seem excessive” (p. 530). Ibid., pp. 532–3. Ibid., p. 535. Along with the boycott, some Sabbatarians went as far as to form “The Pioneer Line,” a “Sabbath-keeping stage and boat line.” Paul E. Johnson, A Shopkeeper’s Millennium: Society and Revivals in Rochester, New York, 1815–1837 (New York: Hill and Wang, 1978), p. 85. “By 1829,” according to Johnson, “the Pioneer Line was a failure and a national laughingstock” (p. 88). McLoughlin, New England Dissent, p. 1112. He adds: “The leaders of the movement could not understand why John Leland and a few other Baptist stalwarts thought this effort inconsistent with the Baptist position on separation of church and state.” Similarly, Borden points out that “[t]here never was a unified Jewish response to Sunday laws. Quite the opposite; the issue proved to be as vexatious and divisive to Jews as it did to other Americans.” Borden, Jews, Turks, and Infidels, p. 110. Johnson chronicles the controversy in Rochester, New York, where leading Protestants were divided on the issue, or, as he puts it, “Rich Christians were fighting in public.” Johnson, Shopkeeper’s Millennium, p. 88. “Few

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as “unabashedly democratic – and, indeed, almost populistic”; 100 instead of “attempting, like the Sabbatarian reformers of the 1810s, to secure the better enforcement of state and local Sabbatarian laws, the [General Union] would seek . . . to ‘form’ an ‘efficient public sentiment.’”101 This was no longer just a matter for the states but it became a national issue. In the background, some Protestant leaders such as Presbyterian minister Ezra Stiles Ely were proposing a “Christian Party” in politics. As James Rohrer notes, “Ely proclaimed that a moral reformation of America could be accomplished only if Christians selected leaders ‘orthodox in their faith.’ The Presbyterians alone, [Ely] argued, ‘could bring half a million of electors into the field.’ while the five largest Protestant denominations ‘could govern every public election in our country.’”102 Not surprisingly, this kind of religiously based political action met with considerable opposition, and the Universalists proclaimed, “It is time the lines were drawn between the friends and enemies of a national religious establishment,” citing the “Sabbatarian petition campaign [as] the

100 101

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of these men, whatever their political positions, looked with approval upon . . . Sabbath breaking. . . . But there was an impassable line between advocates of force and advocates of gentler means” (p. 90). Johnson concludes that the same issue over the use of legal sanctions divided, on the one hand, “Antimasons, Sabbatarians, and – to a lesser degree – temperance advocates,” from “Democrats, Masons, and anti-Sabbatarians,” on the other (p. 89). Ibid., p. 538. Ibid., p. 539. John and others make a point to locate these efforts within the broader context of other ecumenical evangelical reform movements of the early nineteenth century, such as temperance and abolitionism. See, for example, John, “Taking Sabbarianism Seriously,” p. 538, n. 50; West, The Politics of Revelation, chapters 2 and 3; and Johnson, Shopkeeper’s Millennium, chapter 4. Rohrer, Sunday Mail and the Church State Theme, p. 65. Ely also said: “Let Christianity by the spirit of Christ in her members support herself: let Church and State be forever distinct: but, still, let the doctrines and precepts of Christ govern all men in their relations and employments.” Ezra Stiles Ely, “The Duty of Christian Freemen to Elect Christian Rulers,” quoted in John F. Wilson and Donald L. Drakeman, eds., Church and State in American History, 2nd ed. (Boston: Beacon Press, 1987) , p. 96. Wyatt-Brown points out that since “Ely virtually excluded all Unitarians, Armenians, and Catholics, . . . it was clear that his proposal could only lead to a union of all those who opposed the scheme.” Bertram Wyatt-Brown, “Prelude to Abolitionism: Sabbatarian Politics and the Rise of the Second Party System,” Journal of American Histroy 58, no. 2 (September 1971): 324. Ely, he emphasizes, “proposed a nonpolitical party of Christians,” and was thus a “transitional figure” who “stood between the orthodox religious conservatives who sought the rule of the ‘wise and good’ and the perfectionist romantics who anticipated an immediately purified world order” (emphasis in original). Ultimately, after the Sabbatarians’ defeat in Congress, abolitionism became the key issue for evangelicals, and a political party became a means for change: “The founding of the Republican party, as close an approximation to Ely’s effort as all but a handful of perfectionists might even have realistically expected, contributed to the healing of old religious wounds, a remedy that the martyrdom of Abraham Lincoln made even more consoling” (p. 341).

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first stage of the ‘Christian party’s’ plan to seize control of the national government.”103 With the federal government acting much like a “state” for essentially the first time, and with many Protestants visibly combining in religious, social, and political associations in a way that looked to others suspiciously like the harbinger of a national religion, the stage was set for the public and for Congress to debate the proper relationship of church and state for the federal government. Petitions on both sides of the Sunday mails debate began to trickle into Congress in 1827, reaching flood stage by 1829 and 1830, just after the Senate’s report was issued in early 1929. According to John West, who has carefully analyzed the petitions received by the House of Representatives, “From 1827 through 1830 the House of Representatives alone received 1,077 petitions . . . , and by the end of February 1830 the signature count . . . stood at 66,945[, which] would be equivalent to roughly 1.3 million signatures today.”104 Of these petitions, over three-quarters opposed the Sunday mails, and, at the time of Johnson’s initial report, nearly all took the Sabbatarian position.105 Perhaps the most comprehensive collection of the Sabbatarian arguments can be found in Harmon Kingsbury’s 400-page volume, which assembled “a brief history of laws, petitions, remonstrances, and reports . . . relating to the desecration and sanctification of the christian sabbath,” especially as it concerned the Sunday mails.106 Although Kingsbury could not bear to include the “unfairness and abuse” manifested by the petitions in favor of the Sunday mails,107 he summarized many of the Sabbatarian petitions and added his own petition of 1837 that vehemently “implore[d] Congress 103

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Rohrer, Sunday Mail and the Church-State Theme, p. 65, quoting the “Olive Branch, Oct. 27, 1827,” and “Christian Intelligencer, Jan. 16, 1829.” Rohrer points out that these levels of “impassioned attacks fundamentally distorted the Sabbatarian constitutional argument. The reformers had not asked Congress to pass Sabbatarian legislation” (p. 66). West, Politics of Revelation and Reason, p. 139. According to Wyatt-Brown, the “Sabbatarians were the first to exploit [petitions] on a grand scale,” calling the approach “a method of agitation that later proved useful to the abolitionists.” Wyatt-Brown, “Prelude to Abolitionism,” p. 329. West, Politics of Revelation and Reason, p. 139. By the end of 1828, the petition count was 94% against Sunday mail, with signatures running 7,886 to 340. Ibid., p. 260, n. 9. West points out that New England petitions were the most common, but all regions of the county were represented (p. 261, n. 10). Kingsbury, The Sabbath, p. v. Ibid., p. 211. Kingsbury was particularly incensed that “State Legislature[s] . . . should memorialize Congress to do the things, in their territory and throughout the nation, which they, by express statute, had forbidden to be done,” citing the anti-sabbatarian petitions from the General Assemblies of the states of Alabama, Indiana, and Kentucky, where Sabbath observance laws were in effect.

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to take off those hands already laid upon the Church, in the act requiring labor on [Sunday; i.e., the 1810 postal act], which has well nigh driven the institution [of the Sabbath] from our country.”108 While Kingsbury asserts in the very first sentence that his goal is not “to attempt to ‘unite Church and State,’”109 there is no hint of an argument for separating the nation from Christian beliefs and practices. Quite to the contrary, “The framers of the Constitution, and those who for many years administered it, doubtless had in their eye . . . the Christian religion,” he argues in an appeal to both originalism and consistent legislative practice.110 “They were legislating, not for Jews, Mohammedans, infidels, atheists, or pagans, but for Christians. And, believing the Christian religion the only one adapted to sustain . . . the Government, they adopted it as the basis of their infant republic.”111 He then cites many of the pieces of evidence still popular with nonpreferentialists – chaplains, thanksgiving days, Bibles printed by Congress, and the like – to support his conclusion that “this nation had a religion, and it was the Christian religion.”112 Then, after a lengthy discourse on the practicalities of stopping the Sunday mails as well as on the First Amendment rights of pious postmasters, Kingsbury asks that his petition “be placed among the archives of this nation, as a standing memorial to each succeeding Congress against every law requiring or encouraging labor on the Christian Sabbath.”113 Although many of the Sabbatarian petitions do not directly address the specific issue of the establishment clause, Kingsbury does so, and he relies heavily on Story’s Commentaries for support. He quotes the jurist at length, especially as to the “general, if not the universal sentiment” at the “time of the adoption of the Constitution, and of [the First] amendment that Christianity ought to receive encouragement from the State.”114 Kingsbury invokes Story a second time to make the point that the “object of the amendment was, not to advance, Mohammedanism, or Judaism, or infidelity . . . but to exclude all rivalry among Christian sects.”115 Then, after citing the Northwest Ordinance’s language about “Religion, morality, and

108 109 110 111 112 113 114 115

Ibid., p. 214 (emphasis in original). Ibid., pp. 213–14. Ibid., p. 215. Ibid. Ibid. Ibid., p. 227. Ibid., pp. 258–9. Ibid., p. 259.

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knowledge being necessary to good government,”116 he quotes at considerable length from another distinguished source, the Reverend Jasper Adams’s 1833 essay “on the relation of Christianity to civil governments,”117 to complete the Sabbatarians’ defense under the establishment clause. Adams – originally a New Englander, an Episcopal priest, the President of the College of Charleston, South Carolina, and a distinguished moral philosopher118 – directly addresses the issue of how “Christianity may be the religion of the people, and of the people’s Government . . . at the same time that no religion is, in the technical sense, ‘established,’ and no one form of Christianity is distinguished above another.”119 Citing the fact that “employ[ing] ministers of the Gospel as chaplains, at the public charge, . . . is decided, by long-established practice, to be not unconstitutional,” Adams concludes that “thus it is decided that it was not intended [by the establishment clause] to prevent the Government of the United States from being connected with religion; with some religion in preference to all others; or to base its institutions upon the principles of Christianity, instead of those of Deism or of the Koran.”120 Adams points to what he sees as the “close relation between religion and the Government [that] had always subsisted” in the states, concluding that it was “unlikely” that the Founders would “lay aside all connection with Christianity in the general institutions to which they gave birth.”121 Instead, “though a strong aversion had arisen to the national establishment of any one form of Christianity, none had grown up against a distinct recognition of Christianity itself as a religion of the nation.”122 116 117 118 119 120 121 122

Ibid. Ibid. Dreisbach, Religion and Politics, p. 163. Kingsbury, The Sabbath, p. 262. Ibid. Ibid. Ibid. Adams’s vision of America as a Christian nation – and therefore as a nation bound to uphold Christian principles and practices – was a belief shared widely, not just by the Sabbatarian petitioners but by many eminent statesmen and theologians who took it upon themselves to challenge Thomas Jefferson’s claim “that Christianity neither is, nor ever was, a part of the common law.” Justice Story was the principal defender of the view that “[t]here never has been a period in which the common law did not recognize Christianity as lying at its foundation.” Dreisbach, Religion and Politics, p. 12, quoting Thomas Jefferson, “Whether Christianity Is Part of the Common Law.” See also Daniel L. Dreisbach, “In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution,” Baylor Law Review 48 (1996) 927; and A. H. Wintersteen, “Christianity and the Common Law,” American Law Register (1852–1891) 38, no. 5

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Adams sent his essay to many notable jurists, political leaders, theologians, and others,123 and Justice Story wrote back to congratulate him. Story specifically embraced Adams’s Christian nonpreferentialism, that is, the critical distinction “between the establishment of a particular sect, as the Religion of the State, & the Establishment of Christianity itself, without any preference of any particular form of it.”124 In the view of Adams, Story, and other Sabbatarians, the United States was a Christian nation bound to follow God’s commandments, and doing so would not violate the establishment clause as long as there was no “establishment of any particular sect.” This was sufficiently obvious to them that the Sabbatarians rarely bothered even to raise the point: Religion was so manifestly necessary to the health and prosperity of the nation that complying with God’s laws could hardly be inappropriate. West has identified the five most common arguments raised by the Sabbatarian petitions, and the first and most prominent was an explicitly Christian one: The “Sabbath has been constituted by God; therefore, it must be respected. Many petitions appended . . . a threat – namely, that any nation that disregards the Sabbath will bring on itself divine retribution.”125 The second principal argument, based on the widespread belief that, as expressed in the Northwest Ordinance, “religion and morality” are necessary for good government, made a causal connection between religion and morality: “The Sabbath is necessary to promote morality, which in turn is necessary for

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(May 1890): 273–85. For a discussion of the effort by the National Reform Association, commencing in the 1860s, to amend the Constitution specifically “to place Christ in the Constitution,” see Borden, Jews, Turks, and Infidels, pp. 58–74. Dreisbach has assembled a list of over 150 prominent recipients of Adams’s essay, all of whom received them directly from the author, suggesting a broader distribution than many modern academic monographs. See Dreisbach, Religion and Politics, pp. 178–91. Ibid., p. 115, quoting Joseph Story to Jasper Adams (May 14, 1833). James Madison disagreed. In a letter to Adams, he wrote that the “existing character [of Virginia], distinguished as it is by its religious features, & the lapse of time, now more than fifty years, since the legal support of Religion was withdrawn, sufficiently prove, that it does not need the support of Government. And it will scarcely be contended that government has suffered by the exemption of Religion from its cognizance, or its pecuniary aid” (p. 120, quoting James Madison to Jasper Adams (September 1833)). This letter gave rise to Madison’s more famous statement: “I must admit . . . that it may not be easy, in every possible case, to trace the line of separation, between the rights of Religion & the Civil authority, with such distinctness, as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, & protecting each sect against trespasses on its legal rights by others.” West, Politics of Revelation and Reason, p. 141.

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republican government. . . . In the words of the inhabitants of Castleton, Vermont, ‘No Republican form of government . . . can long exist in its original purity, without virtue and intelligence in the body politic,’ and ‘the principles and practice of the Christian Religion, unshackled by government, are the most effectual means of promoting and preserving that virtue and intelligence.’”126 The third argument focused on the religious rights of the individual postal employees. The Castleton Vermonters asserted that “any law which requires a portion of the citizens of the United States to violate the fourth commandment, by performing official and secular business on the Sabbath, is prohibiting the free exercise of religion.”127 Other petitions made the same point by calling the requirement of Sunday mails a “religious test,” obliging “people to choose between a job and the dictates of conscience.”128 The fourth argument went to the heart of the limits on federal power under the Constitution. Since “Sabbath profanation by law . . . is in opposition to the laws of most states [it] is therefore one infraction of states rights,” as announced by a Pennsylvania petition.129 Similarly, another petition “argued that the authority to enact Sunday closing laws had never been ceded to the federal government; hence, it remained with the states, and the Sunday mails infringed on this state authority.”130 Finally, on purely pragmatic grounds, “petitioners argued that no public necessity required running the mails on the Sabbath,” and, in any event, the benefits from observing the Sabbath would exceed any drawbacks from the inconvenience of doing so.131 All of these arguments appeared both in the initial Sunday mail controversy (1811–16) and in the one between 1826 and 1830, although West points out that “the constitutional rhetoric employed by the later petitioners was something new.”132 That is, the earlier petitioners “talked about postal workers being denied the rights of the Sabbath,” but the argument was not explicitly framed in First Amendment terms.133 Nor

126 127 128 129 130 131

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Ibid., pp. 141–2 (emphasis in the original). Ibid., p. 144. Ibid. Ibid., p. 145. Ibid. Ibid., pp. 145–6. Included in the “panoply” of other arguments were: “forcing postmen to work on the Sabbath discouraged [moral] men from taking [such] jobs . . . , thereby promoting corruption . . . , [and] compelling postal employees to work . . . on the Sabbath cruelly deprived both men and beasts of their right to one day of rest per week” (p. 146). Ibid., p. 147. On the issue of whether the arguments changed over time, West disagrees with John, who asserts that the later petitions had a more secular focus. See John, “Taking Sabbatarianism Seriously,” pp. 541–2. West, Politics of Revelation and Reason, p. 147.

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when “they mentioned state and local Sabbath laws” did they “talk about state’s rights or the reserved power protected by the Tenth Amendment.”134 By 1830, as the federal government’s presence was increasingly visible, the petitioners began to frame their concerns in expressly constitutional terms. Church-state themes figured far more prominently in the opposition petitions, that is, those in support of the Sunday mails, and, for our purposes, the most interesting are those warning against “law established religion.” The Alabama Baptist Association, for example, wrote, “We . . . have not forgotten our whipping Posts, Prisons, Fines, Lawsuits, and costs that we have suffered in . . . Virginia, and Massachusetts. . . . [P]ersecution follows in the train with law established Religion.”135 In the same vein, Windham Vermonters worried that the Sabbatarian movement was just a test case “to ascertain . . . whether Congress will legislate on the subjects touching religion; [if so,] it will be followed by others of more serious import, which will have the tendency to abridge our religious liberty, and to aggrandize one of the numerous sects of religion, at the expense of others.”136 Similarly, a petition from Wheeling, Virginia, warned, “That a union of Church and State is their darling and only object is too plain to be questioned.”137 Merely the fact that there was a difference among religious groups as to which day was the Sabbath led other petitioners to worry that Congress was improperly inserting itself into a theological dispute. West observes, “Many petitions maintained that by closing the mails on Sunday, Congress would be injecting itself into a religious controversy over what day constitutes the Sabbath,” essentially arguing that halting the mails was tantamount to an official declaration that “Sunday [was] a divine day of rest.”138 Anticlericalism was also a common theme. Wheeling Virginians feared “priestly despotism,” and petitioners from Alstead, New Hampshire, wrote, “Knowing that in all ages . . . the Clergy have been enterprising and ambitious – seizing eagerly upon power, and exercising it without reason and without mercy, it would be arrogance in . . . the present age to claim an exemption from similar propensities.”139 These Granite Staters were so concerned about the “enterprising and ambitious” clergy that they expressed fears even about the voluntary associations that were promoting the 134 135 136 137

138 139

Ibid. Ibid., p. 153. Ibid., p. 150. Ibid. The petition added: “That this measure is intended as . . . an entering wedge – the first step to priestly despotism, there can be no doubt.” Ibid. Ibid., p. 148. Ibid., pp. 150–1.

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anti-Sunday mail campaign: “When we consider the number, talents, and influence of this body [and] the support they derive from religious corporations . . . rapidly increasing in . . . wealth . . . with no power but the laws, which they are ambitious to control, to . . . check them, we see reason to dread even their unassisted efforts to deprive us of our liberties.”140 The petitioners from Windham, Vermont, who had expressed fears about the risks to their own religious liberty, were less solicitous of pious postal workers; they pointed out that “all contracts with the Post Office Department are purely voluntary” and, therefore, the postal workers’ “affected piety becomes the mere pretext of mercenary speculation.”141 Another group of petitioners believed that the Sabbath was properly celebrated on Saturday, and they asked for equal treatment: “Should you deem it expedient to . . . exempt . . . postmasters from opening the mail on the first day of the week, we pray that a clause may be added, entitling postmasters, believing the seventh day to be the Sabbath, to the like exemption on the seventh day of the week.”142 In the two sides of the Sunday mails debate, we can see the modern strict separationist-nonpreferentialist platforms beginning to form, although the older forms of the arguments from colonial church-state battles remain quite visible. On the separationist side, the constitutional arguments are redolent of the specific concerns voiced by dissenting churches suffering at the hands of the established churches; they opposed a federal Sabbath observance not so much as a violation of a principle of constitutional neutrality or from a commitment to governmental secularism but because they saw it as the first step toward a union of church and state that would lead to “priestly despotism” and the persecution of religious dissenters; the tone was distinctly anti-clerical, and the goal was not to eradicate religion from public life but to diminish the power and authority of religious leaders. The far more numerous Sabbatarians did not shrink from asserting their deeply held belief in America as a Christian nation obligated to follow God’s commandments. Their nonpreferentialism was expressly and boldly Christian; theirs was not simply a preference for religion over irreligion, but a desire for the government to favor Protestant Christianity over all other religions. As time goes by, the arguments on both sides would evolve into the ones we have seen recently in the works of people such as Pfeffer, Levy, O’Neill, and Cord, with separationism leaning much more in the direction 140 141 142

Ibid., pp. 151–2. Ibid., p. 149. Ibid., quoting from the petition from inhabitants of Madison County, New York.

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of secularism, and nonpreferentialism becoming far more ecumenical. But in the 1830s, no matter how much religion and government had changed since 1789,143 the church-state arguments still reflected their colonial roots. The battle lines were thus drawn for a national dispute over the relationship of religion and the federal government and, in particular, the meaning of the First Amendment’s religion clauses. And in this case, the initial arbiters were the Senate and House Committees on Post Offices and Post Roads, chaired, in turn, by Colonel Johnson. It is, perhaps, particularly appropriate that this relatively early exercise in constitutional interpretation be carried out by the legislative branch, especially since Johnson had such fears of the power of the federal courts that he had previously proposed a series of ways to restrict judicial power, including “limiting the jurisdiction of the federal courts; subjecting federal judges to removal by . . . Congress; limiting judicial tenure; and vesting a controlling power in the Senate or some other elected body.”144 He subsequently suggested “that the [Supreme] Court be increased from its membership of seven to ten, . . . and that at least seven judges must concur in any opinion involving the validity of laws of the United States or laws of the states.”145 For Johnson, constitutional interpretation was a political issue, and he was reluctant to trust it to life-tenured judges.146 In this case, he would do it himself (more or less). Much as Chief Justice Waite, forty years later, would turn to his Washington neighbor, historian George Bancroft, for advice on interpreting the religion clauses, Senator Johnson sought the aid of his Washington landlord, Obadiah Brown, who conveniently served both state and church as a senior post office clerk and as minister of the First Baptist Church.147 In the end, 143

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See, e.g., William R. Hutchinson, Religious Pluralism in America (New Haven, Conn.: Yale University Press, 2003), p. 19: “[T]he early nineteenth century was a time of more radical upheaval than one can find in any other period in American history; and the upheaval was especially evident, hence especially traumatic, in relation to religion.” Robert Steamer, “Congress and the Supreme Court during the Marshall Era,” Review of Politics 27, no. 3 (July 1965): 364–85. Johnson made these proposals in 1822. See also Currie, Constitution in Congress 1801–1829, pp. 329–32. Steamer, “Congress and the Supreme Court,” p. 378. Summarizing a “long and tedious speech” from 1822, Steamer writes: “Johnson’s . . . point [was] an assault on the entire concept of judicial review. When courts declare laws unconstitutional they are exercising political power. This is bad, said Johnson, not because judges are worse than other men but because they are not accountable to the people. . . . Furthermore, continued Johnson, the one time when the federal courts had the opportunity to safeguard our liberties, instead of striking down the statutes (Alien and Sedition Acts), the Judiciary ‘was a willing instrument of federal usurpation.’ The people found relief only in their own power, in the elective franchise, which is their only safe dependence.” Steamer, “Congress and the Supreme Court,” p. 377 See John, “Taking Sabbatarianism Seriously,” p. 559.

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Brown ghost-wrote both the Senate and House reports on behalf of Johnson, and they turned out to be stridently anti-clerical jeremiads. Since Johnson was “a close friend of anti-Sabbatarian evangelical Alexander Campbell, and the brother of Campbellite preacher John Telemachus Johnson,”148 there is good reason to believe that the reports’ fears of a “union of church and state,” coupled with an enthusiastic endorsement of the Sunday mails, though written by Brown, either resembled Johnson’s views on the subject or at least seemed like a good political position for the Jacksonian Johnson to take. Nevertheless, as John points out, “it was widely recognized, even by Johnson’s friends, that Johnson lacked the education to produce such learned expositions of theology and law.”149 This did not stop Johnson from taking full credit for the reports, not only by arranging for their widespread publication, but also by having them included as appendices in what was essentially an authorized campaign biography written by his good friend William Emmons.150 Johnson’s first report, issued on behalf of the Senate postal committee in 1829, offered several arguments for rejecting the Sabbatarian petitions. To begin, the report admits that “some respite is required from the ordinary vocations of life,” but asserts that “the proper object of government is to protect all persons in the enjoyment of their religious as well as civil rights, not to determine for any, whether they shall esteem one day above another, or esteem all days alike holy.”151 Since there are disagreements among religious groups as to which day is properly the Sabbath, Congress cannot put itself in the position of resolving religious disputes and to mandate “religious observances.” Pointing to the “Jewish government [which] was a theocracy,” the report issues a warning: “though the committee would hope that no portion of the citizens of our country would willingly introduce a system of religious coercion in our civil institutions, the example

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150 151

Ibid., pp. 559, 558. Ibid., p. 559. Calling John and other historians who attribute the authorship of the reports to Obadiah Brown “spoilsports,” Currie “canonizes” Johnson for “his noble sermon on the separation of church and state.” Currie, Constitution in Congress 1801–1829, p. 329. On the spoilsport side, Wyatt-Brown calls the reports “the hackwork of O. B. Brown, a Baptist minister and Democratic placeman.” Wyatt-Brown, “Prelude to Abolitionism,” p. 335. His verdict on what Currie calls a “noble sermon” is that “[a]lthough he expressed some fine Jeffersonian sentiments, Johnson was mostly engaged in raising up a phantasm of hawkeyed Cromwellians out to destroy American liberty by demanding a change in postal regulations.” Emmons, Biography of Johnson, pp. 60–79. Ibid., pp. 60–1. All quotations from the Senate and House reports are from the appendices in Emmons’s biography.

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of other nations should admonish us to watch carefully against its earliest indications.”152 The report then reaches its initial constitutional point, although it does not cite what aspect of the Constitution it is invoking: “the constitution has wisely withheld from our government the power of defining the divine law. It is a right reserved to each citizen. . . . ”153 The report’s second major argument sounds an alarm against the dangers of ecumenical coalitions such as the one promoting a ban on the Sunday mails, with, perhaps, a swipe at Ely’s “Christian Party in Politics”: “Extensive religious combinations, to effect a political object, are . . . always dangerous [and could] lay the foundation for dangerous innovations upon the spirit of the constitution.”154 In the first of several slippery slope arguments, the report asserts that “[a]ll religious despotism commences by combination and influence; and, when that influence begins to operate upon the political institutions of a country, the civil power soon bends under it; and the catastrophe of other nations furnishes an awful warning of the consequences.”155 The report’s third point speaks briefly to the “rights of conscience” of postmasters, which “are not invaded” because the employees voluntarily take on their positions, and those wishing to observe the Sabbath “may abstain from any agency in carrying [the mail], from conscientious scruples.”156 This argument is then followed by a considerably longer discussion of the impracticalities and inconveniences of eliminating the Sunday mails, as it would “require the employment of special expresses, at great expense, and sometimes with great uncertainty.”157 The report’s final argument focuses on the logical consequences of establishing the principle of a governmentally enforced Sabbath, and it finds another slippery slope. “[S]hall we not [also] forbid the movement of an army?” it asks, or “prohibit an assault in time of war? . . . Consistency would seem to require it.”158 At the same time, if “the principle is once established, that religion or religious observances, shall be interwoven with our legislative acts, we must pursue it to its ultimatum. We shall, if consistent, provide 152 153 154

155 156 157 158

Ibid., pp. 61–2. Ibid., p. 63. Ibid. This may have been a justifiable concern. Wyatt-Brown notes that the Sabbatarian cause was something of a test case: “To test evangelical strength with the people as well as with Washington politicians, a group of churchmen began to agitate against a long-standing postal regulation, originally passed by a Jeffersonian Congress in 1810.” Wyatt-Brown, “Prelude to Abolitionism,” p. 328. Emmons, Biography of Johnson, p. 63. Ibid., p. 64. Ibid., p. 65. Ibid., p. 66.

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for the erection of edifices for the worship of the Creator, and for the support of Christian ministers, if we believe such measures will promote the interests of Christianity.”159 The report concludes that the “only method of avoiding these consequences . . . is to adhere strictly to the spirit of the constitution.”160 That spirit (whose origin, intention, or text is not mentioned) “regards the general government in no other light than that of a civil institution, wholly destitute of religious authority.”161 As to the establishment clause, the report neither cites evidence nor makes arguments about what it might have meant in 1789 – or, for that matter, why it should be interpreted in the fashion articulated in the report. Instead, the report confidently states constitutional conclusions so strongly consistent with the most aggressive of the outspoken evangelical dissenters that some thought that well-known disestablishmentarian John Leland may have written it.162 As with Madison’s veto message, the report applies to the federal government the same kinds of arguments that some of the most radical dissenters had made about the relationship of religions and governments in general: that the government has no authority whatsoever on the subject of religion. This lack-of-power interpretation of the Constitution is stated

159 160 161

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Ibid. Ibid. Ibid. The report adds a brief sermon addressed to the petitioners: “Our constitution recognizes no other power than that of persuasion for enforcing religious observances. Let the professors of Christianity recommend their religion by deeds of benevolence – by Christian meekness – by lives of temperance and holiness. . . . Their moral influence will do infinitely more, to advance the true interests of religion, than any measure which they may call on Congress to enact” (p. 67). John writes that “the reports included so many stock anticlerical arguments that contemporaries quite plausibly attributed them to both Alexander Campbell and John Leland, a Baptist itinerant celebrated for his defense of the absolute separation of church and state.” John, “Taking Sabbatarianism Seriously,” p. 559. Hamburger notes that, at least in the early nineteenth century, Baptist elder Leland and Nehemiah Dodge of the Danbury Baptists were “nearer to Jefferson’s [view of the] separation of church and state than any other Baptist leaders.” Hamburger, Separation, p. 170. More generally, Baptists “stuck to their old antiestablishment claims. Human laws should not regulate worship, compel the payment of taxes in support of religion, or discriminate among religions,” but, at the same time, Baptists typically “desired legal prohibitions on Sunday activities.” Ibid., pp. 170, 178, n. 60. See also McLoughlin, New England Dissent, pp. 758, 1000–1024. Thomas Buckley, writing about Virginia, observed, “The same lawmakers who passed the Statute for Religious Freedom approved another act that penalized working on the Christian Sabbath. The former dissenters, the evangelical Baptists and Presbyterians who had orchestrated massive petition campaigns on behalf of the statute, now joined with the legislative majority to support the Sabbath bill.” Buckley, “After Disestablishment,” p. 448. See also Daniel L. Dreisbach, “A New Perspective on Jefferson’s Views on Church-State Religious Freedom in its Legislative Context,” American Journal of Legal History 35 (April 1991): 172–204.

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even more boldly in Johnson’s second report, which emphasizes that the entire question of the Sabbath “does not come within the cognizance of Congress.”163 The second report takes on the constitutional question more directly than the first, and it cites several reasons for its “no cognizance” conclusion. Beginning with the traditional federalism approach, the report notes that “Congress acts under a constitution of delegated and limited powers. The committee look in vain,” it remarks, “for a delegation of power, authorizing this body to inquire and determine what part of time . . . has been set apart by the Almighty for religious exercises.”164 To the contrary, “among the few prohibitions it contains” are Article VI’s “no religious test” language and the religion clauses of the First Amendment, which are not explained but merely mentioned as further evidence of the fact that religion is outside the “cognizance of Congress.”165 The “Framers” are invoked on multiple occasions but never accompanied by any originalist arguments other than statements along the lines of “The catastrophe of other nations [where there is a union of church and state] furnished the framers of the constitution a beacon of awful warning, and they have evinced the greatest possible care in guarding against the same evil.”166 Rather than relying on what specific framers thought about the Constitution or the Bill of Rights, the report rests more firmly on an argument based on constitutional design – that is, that the federal government is bereft of any power over religion whatsoever. Later, the report asks, “If the arm of government be necessary to compel men to respect and obey the laws of God, do not the state governments possess indefinitely more power in this respect?”167 Since almost all of the arguments contained in the two reports could be (and had previously been) used by some of the dissenters to oppose ecclesiastical laws in the states, it is interesting that the report should make a constitutional argument acknowledging the state governments’ power over religious matters. But the report seems to raise the state-power argument as something of a red herring. It directs the petitioners to “see if they can induce

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Emmons, Biography of Johnson, p. 69. This is the Report of the House Committee on Post Offices and Post Roads, dated March 4, 1830. Emmons, Biography of Johnson, p. 69. Ibid. Ibid. Similarly, at another point, the report writes that the “framers of the constitution recognized the eternal principle, that man’s relation with his God is above human legislation. . . . Reasoning was not necessary to establish this truth; we are conscious of it in our own bosoms” (p. 73). Ibid., pp. 76–7.

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the passage of [state] laws to respect the observance of the Sabbath.”168 Such laws should “be made penal, to complete the system.”169 All activities other than religious ones would be banned, “and, as only one sect, in the opinion of some, can be deemed orthodox, must it not be determined by law what that is, and compel all to hear those teachers, and contribute to their support.”170 This description – a reasonably accurate picture of the church-state situation in a number of the colonies at one point or another – is so obviously untenable in 1830 that the report can answer with only a rhetorical comment: “When the state governments shall have yielded to these measures, it will be time enough for Congress to declare that the rattling of the mail coaches shall no longer break the silence of this despotism.”171 The rest of the report recites the horrors of religious persecution resulting when the line is not “too strongly drawn between church and state”172 and offers an ode to the “blessings” of the mails: “The advance of the human race in intelligence, in virtue, and religion itself, depends in part upon the speed with which a knowledge of the past is disseminated. . . . The mail is the chief means by which intellectual light irradiates to the extremes of the republic.”173 What is perhaps most interesting about Johnson’s two reports on the Sunday mails is not the specifics of his interpretation of the Constitution, but the fact that in the 1830s such a strongly anti-clerical statement opposing any overlap of church and state would not only put the Sunday mails issue to bed, at least temporarily, but also help propel Richard M. Johnson into the national spotlight as a statesman of significance. Johnson certainly did not speak for all Americans, as can be seen by the large volume of proSabbatarian petitions, by other legislative reports taking opposing views,174 168 169 170 171 172

173 174

Ibid., p. 77. Ibid. Ibid. Ibid. Ibid., p. 72. “With the exception of the United States, the whole human race . . . is in religious bondage.” Ibid., pp. 75–6. For example, Samuel McKean, chairing the House’s post office committee in 1829, issued a report saying that “a proper observance of the Sabbath is calculated to elevate the moral condition of society,” and it would not lead to “the justly odious combination of church and state.” Quoted in West, Politics of Revelation and Reason, p. 156. In the end, the House committee proposed a compromise that would keep the mails moving on Sunday but would not require mail delivery on that day. Ibid., pp. 156–7. There was also a minority report to Johnson’s 1830 House report proposing that “commercial convenience” of mail on Sunday should not trump “opportunities of attending to moral and religious instruction or intellectual improvement.” Quoted in ibid., p. 159. See also ibid., pp. 162–6, regarding other Sabbatarian efforts in Congress and elsewhere to promote the proper observance of the Sabbath.

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by the courts that upheld Sunday closing laws in “nearly every case,”175 and, certainly not least, by the ultimate success of the Sabbatarian efforts. Thirty years later, Talcot Chambers could remark that “Sunday-mail service [has been reduced] to an amount scarcely one fourth of what it was when the question was first mooted,”176 and in 1912 the Sabbatarians would prevail in completely stopping mail delivery on Sunday.177 In 1829 and 1830, Johnson had won a legislative battle over the Sunday mails, but the “war” was ultimately won by the Sabbatarians.178 Yet Johnson clearly struck a responsive chord with a significant part of Jacksonian America, and one 175

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Stuart Banner, “When Christianity Was Part of the Common Law,” Law and History Review 16, no. 1 (Spring 1998): 27–62. With respect to the executive branch, there are numerous instances of Sabbath observance, including Article 1, Section 7, of the Constitution, which was often cited by Sabbatarians (“If any Bill shall not be returned by the President within ten Days (Sundays excepted)”). For a later example, see Abraham Lincoln’s order of November 15, 1862, in the middle of the Civil War: “The President . . . desires and enjoins the orderly observance of the Sabbath by the officers and men in the military and naval service. The importance . . . of the prescribed weekly rest, the sacred rights of a Christian people, and a due regard for the Divine will, demand that Sunday labor in the army and navy be reduced to the measure of strict necessity.” Quoted in Schaff, “Church and State in the United States,” p. 70. Borden also points out that in 1861 Congress “passed a law requiring that all army chaplains ‘must be regularly ordained ministers of some Christian religion.’ . . . It took complaints from a Jewish organization . . . before the law was amended [in 1862].” Borden, Jews, Turks, and Infidels, pp. 63–4. West, Politics of Revelation and Reason, p. 166, quoting Talcot W. Chambers, Memoir of the Life and Character of the Late Hon. Theodore Frelinghuyson (New York: Harper and Brothers, 1863), p. 77. John argues that technological advances made the mails less important and, therefore, the ongoing Sabbatarian campaign had fewer opponents. “With the advent of commercial telegraphy in 1844, pressures to cut back on Sabbath service intensified. . . . Finally, in 1912, an alliance of ministers and postal clerks convinced Congress to close down all of those offices still open on the Sabbath for good.” John, “Taking Sabbatarianism Seriously,” pp. 562–3. For a discussion of legislative and other efforts to promote Sabbath observance in the Wild West, see William Hanchett, “The Blue Law Gospel in Gold Rush California,” Pacific Historical Review 24, no. 4 (November 1955): 361–8. Hanchett discusses the surprising success of Sabbatarianism in mining towns beginning in the 1850s resulting at least partially from Protestant missionary efforts to, in the words of one Congregationalist, “make california the massachusetts of the pacific” (p. 363). John, “Taking Sabbatarianism Seriously,” pp. 562–3. James Rohrer has pointed out that numerous modern historians have nevertheless oversimplified the Sunday mails controversy, seeing “the broad public support for the Johnson report as a natural response of the Jacksonian masses to a clerical assault on religious liberty” and “exaggerat[ing] the degree of public support accorded to Jefferson’s ‘wall of separation’ in the early republic.” Rohrer, Sunday Mails and the Church-State Theme, p. 57. He cites, for example, Arthur Schlesinger’s statement that Johnson’s report expressed principles “held dear by all Americans”; John Bodo’s conclusion that the report was “a classic defense of the American system of separation of church and state”; and Merrill Peterson’s argument that Sabbatarian position was “an ‘amendment of the theory and practice

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commentator estimates that “3 million copies of the first report were put in circulation.”179 Over time, “special versions of Johnson’s reports were even printed on satin to be hung in front parlors as a ‘new Declaration of Independence’ and a supplement to our Bill of Rights.”180 Indeed, it was more of an anti-clerical supplement to the Bill of Rights than an interpretation of that document’s original or intended meaning, but, in any event, it reflected what many petitions and many Johnson supporters believed the Constitution meant. Federal Indian Policy That Colonel Johnson was celebrated so publicly as a vigorous opponent of any possible union between church and state is particularly intriguing in light of his direct personal role in obtaining federal funds for explicitly religious purposes, namely, the Christianization and civilization of the Indians. The Choctaw Academy, a boarding school for Indian children established in 1825 and located on Johnson’s property in Kentucky, was essentially a joint venture of the War Department of the United States government, the Board of Managers of the Baptist General Convention for Missionary Purposes, and Johnson himself.181 On a day-to-day basis, it was “under the direction

179

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of separation of church and state’ that was altogether out of step with ‘the religious conditions and convictions of the American people.’” Ibid., citing Arthur M. Schlesinger, Jr., The Age of Jackson (Boston, 1945); John R. Bodo, The Protestant Clergy and Public Issues, 1812–1848 (Princeton 1954); and Merrill D. Peterson, The Jefferson Image in the American Mind (New York, 1960). Rohrer concludes that “[t]hese assessments tell us more about twentieth century liberalism than about the development of American attitudes toward church and state.” In a similar vein, William McLoughlin writes, “It is difficult, now that we have lived through the Fundamentalist movement and the Scopes trial, to look back on the beginnings of evangelical moral reform and comprehend the profound humanitarian impulses . . . which underlay it. We tend today to sympathize more with those anticlerical Jacksonians who turned upon the religious reformers as a new band of antirepublican subversives.” McLoughlin, New England Dissent, pp. 1112–13. West, Politics of Religion and Reason, p. 154, citing “Robert Dale Owen, ‘Clerical Assurance in America,’ Free Enquirer, October 31, 1829, 6.” As John records, “Printerentrepreneurs quite literally capitalized on their vituperative force, preparing cheap pamphlet editions in a flamboyant typography that mimicked the dramatic nuances of the stump speaker.” John, “Taking Sabbatarianism Seriously,” p. 559. John, “Taking Sabbatarianism Seriously,” p. 560, citing a “broadside on silk” (n.d.) (American Antiquarian Society, Worcester, Mass.). Jonathan Milnor Jones, “The Making of a Vice President: The National Political Career of Richard M. Johnson of Kentucky,” Ph.D. dissertation, University of Memphis, 1998, pp. 164–5.

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of a clergyman recommended by Col. Johnson, and appointed by the government,” wrote his authorized biographer.182 The Choctaw Academy drew Johnson once again into a controversy about Sabbath observance, and this time the Colonel was on the other side of the fence. Making sure that this federally funded school observed the Sabbath was one of the duties of the Reverend Thomas Henderson, a Baptist minister and the Superintendent of the Academy.183 Fifteen years after the Academy’s founding, when Henderson no longer lived at the school, the War Department “discovered ‘the want of regular preaching & divine Sunday worship.’”184 As a result, Johnson found himself having to “remove . . . prejudices” at the War Department, not out of concern for maintaining the proper separation between church and state in a federally funded facility, but, quite the contrary, to make sure the Indians were properly exposed to Christianity.185 As Johnson wrote to Henderson, “Knowing you to be a Baptist Preaching [sic] they seemed unwilling to believe neglect in that particular [i.e., Sabbath observance] – they said that no school in the U. States worth calling a congregation of Boys was without regular moral & religious instruction.”186 Johnson had to promise the War Department that these “irregularities” had been corrected.187 How did the Colonel square these apologies for failing to maintain a governmentally mandated Sabbath at his Academy with his sharply worded congressional reports against just such a practice when it came to the U.S. 182 183

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Emmons, Biography of Johnson, p. 58. Ella Wells Drake, “Choctaw Academy: Richard M. Johnson and the Business of Indian Education,” Register of the Kentucky Historical Society 91 (Summer 1993): 260–97. Other instructions from the board included giving “frequent and affectionate lectures upon the advantages of temperance, mutual good will, respect for parents, and upon all other topics which an excellent morality can embrace, especially as to the truth and expedience of the Christian religion.” Shelley D. Rouse, “Colonel Dick Johnson’s Choctaw Academy: A Forgotten Educational Experiment,” Ohio Archaeological and Historical Quarterly 25 (January 1916): 88–117. Instruction of the Indian students in the ways of both civilization and Christianity was fully expected by the Indians, as indicated in a letter from Choctaw chief Peter Pitchlyn to the Secretary of War upon delivering in 1825 “to col. Richard M. Johnson, twenty-one Choctaw youths, for the purpose of education”: “I have seen and conversed with the rev. Thomas Henderson, who has been selected to teach them, and . . . I consider him eminently qualified to teach our children, and form their manners, improve their minds, and to inculcate the principles of the Christian religion.” P. P. Pitchlyn to Jas. Barbour (November 5, 1825) in James A. Padgett, ed., “The Letters of Colonel Richard M. Johnson of Kentucky,” Register of the Kentucky Historical Society 39 (1941): 262–3. According to Padgett, Pitchlyn was a graduate of the University of Nashville and a “great friend of Jackson.” Ibid., p. 263, n. 245. Rouse, “Colonel Johnson’s Choctaw Academy,” p. 290. Ibid., p. 291. Ibid., quoting Johnson’s letter to Henderson, January 11, 1840. Ibid.

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mails? From all reports, Johnson was not the kind of man to trouble himself over these sorts of constitutional inconsistencies. No one considered him a deep thinker, and the learning evident in the Sunday mail reports convinced his contemporaries that he could not have written them. There were also considerable amounts of money to be made in running the Choctaw Academy, which was an urgently needed financial opportunity for someone John describes as “a likeable yet somewhat unscrupulous political entrepreneur.”188 What is far more interesting than Johnson’s silence on the church-state issues involved in the Choctaw Academy – in fact, how he could claim political credit for both his government-sponsored Christian mission to the Indians and his reports decrying any possible union of church and state189 – is that virtually no one seemed to be troubled by the constitutional implications of the federal government’s long-standing policy of trying to convert the Indians to Christianity. Somehow even those who believed that the government was constitutionally impotent to decide not to deliver the mail on Sunday, lest there be “dangerous innovations upon the spirit of the constitution,”190 thought that it could, nevertheless, provide funding for missionaries when it came to the nineteenth century’s biggest domestic problem other than slavery: what to do with the Native Americans. The government had been trying to spread Christianity among the Native Americans since before the Constitution was written, and the states had pursued similar goals before independence. These efforts, which reached even into the twentieth century, led historian R. Pierce Beaver to remark, “State and church made common cause in the civilizing and Christianizing of the Indians for two and a half centuries.”191 During the Revolutionary War, 188

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John, Spreading the News, p. 65. In his study of the U.S. Post Office, John notes that Johnson’s “close ties with the stagecoach industry helped to win him a reputation as one of the most influential political wire-pullers in the United States.” Johnson also pulled political strings to get his Academy started despite competition from a proposal by Cyrus Kingsbury, a Presbyterian minister who had been the superintendent for education for the Choctaw nation since 1818. See Jones, “Making of a Vice President,” pp. 158–64. Not only did Johnson serve on the Senate’s committee on military affairs, but “William Ward, the Indian agent to the Choctaw Nation, was the former business partner of James and Richard Johnson and was married to their sister” (p. 163). Jonathan Milnor Jones has pointed out that Johnson “regarded the [Choctaw] school as a business that would provide him with the fresh start he desperately needed after losing so much money and land to the Bank of the United States.” See Jones, “Making of a Vice President,” p. 168. See Emmons, Biography of Johnson, Introduction and Appendix, where the author highlights both of these activities as evidence of Johnson’s statesmanship. Ibid., p. 63. R. Pierce Beaver, Church, State, and the American Indians (St. Louis, Mo.: Concordia Publishing House, 1966), p. 85. The inattention to issues of “establishment” in christianizing the Indians extended as well to any “free exercise” rights the Indians might assert. As

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when a number of missionaries had proved useful to the revolutionary cause, the Continental Congress passed a resolution instructing the Commissioners for Indian Affairs to “inquire on what terms [two missionaries] would reside among the Six Nations and instruct them in the Christian religion,”192 stating in particular that “a friendly commerce between the people of the United Colonies and the Indians, and the propagation of the Gospel, and the cultivation of the civil arts among the latter, may produce many and inestimable advantages to both.”193 A few weeks later, Congress directed the Commissioners “to secure a minister, a schoolteacher and a blacksmith for the Delawares,” and a number of other missionaries received financial support, including Samuel Kirkland, who “did double duty as missionary to the Oneidas and chaplain to the troops at Fort Stanwix.”194 For a Congress

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James Fraser has noted, “Until quite late in the twentieth century, few seemed to believe that the First Amendment applied to Indians or to Indian schools. Indeed, the contrary was true. Indian education was expected not only to westernize but Christianize the Native Americans.” James W. Fraser, Between Church and State: Religion and Public Education in a Multicultural America (New York: St. Martin’s Press, 1999), p. 84. As Robert Keller has observed, an 1878 “bill providing complete freedom of religion on Indian reservations” was “opposed by Protestants [and] died in a House committee.” Robert H. Keller, Jr., American Protestantism and United States Indian Policy, 1869–82 (Lincoln: University of Nebraska Press, 1983), p. 180. A century later, in 1978, “a joint resolution of Congress made it clear that the First Amendment did . . . apply to Indians. Beginning with the recognition that ‘the freedom of religion for all people is an inherent right . . . and is guaranteed by the First Amendment’ and recognizing that ‘the religious practices of the American Indian . . . are an integral part of their culture, tradition and heritage,’ the act clearly recognized that federal policy had too long failed to recognize this right, which ‘has often resulted in the abridgement of religious freedom for traditional American Indians.’” Fraser, Between Church and State, p. 100, quoting the American Indian Religious Freedom Act, August 11, 1978. Allison Dussias notes that “although the Establishment Clause was ignored in the nineteenth century as a potential obstacle to the imposition of Christianity on Native Americans, it has emerged in some twentieth-century free exercise cases as a barrier to the accommodation of Native American religious practices.” Allison M. Dussias “Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth-Century Native American Free Exercise Cases,” Stanford Law Review 49 (1996–7): 773, 775. Following Dussias and numerous others, I will, in Dussias’s words, “use both the terms ‘Indian’ and ‘Native American’ . . . with a recognition of the shortcomings of each.” Ibid., p. 773, n. 9; see also Allison M. Dussias, “Geographically-based and Membership-based Views of Indian Tribal Sovereignty: The Supreme Court’s Changing Vision,” University of Pittsburgh Law Review 15 (1993): 1. Beaver, Church, State, and the American Indians, p. 57. The men were Jacob Fowler and James Johnson, the sons-in-law of one of Dartmouth College’s earliest Indian graduates, Samson Occum (pp. 55–6). Dartmouth’s founder, Eleanor Wheelock, soon applied for, and received, a grant from the Congress “to pay the expenses of Canadian Indian boys” at the college (p. 57). Ibid., quoting from a resolution dated February 5, 1776. Ibid., pp. 56–7.

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at war with England, part of the civilizing effort was to encourage the Indians to favor the colonists. As Beaver notes, the “British . . . resented this ‘meddling in public affairs,’ as they put it” and, in one case, seized some Moravian missionaries in Ohio.195 After Independence, the Constitution vested power in Congress to regulate commerce with the Indians, and Beaver records that “Henry Knox, the first Secretary of War, had the chief responsibility for shaping an Indian policy for the new nation, . . . and he envisioned a program of civilization carried out through Christian missions, [since the] only alternative which he could see for the Indians east of the Mississippi was extermination at an early date.”196 To effect this policy, Knox wrote to President Washington that “[m]issionaries . . . should be appointed to reside in their nations.”197 Shortly thereafter, Washington and Knox issued instructions to the commissioners negotiating treaties with the Southern Indians “to obtain a stipulation for certain missionaries, to reside in the nation . . . . The object of this establishment would be the happiness of the Indians, teaching them the great duties of religion and morality, and to inculcate a friendship and attachment to the United States.”198 This policy of bringing Western civilization and the Christian religion to the Indians continued through each successive presidency,199 but it was not until James Madison’s administration that the Knox-Washington civilization plan gained significant momentum. The Rev. Cyrus Kingsbury “began his mission to the Cherokees by a round of consultations with the President, the Secretary of War, and the heads of various departments in Washington in 1816” to draw up support for Indian schools. He succeeded in raising 195 196 197

198 199

Ibid., p. 58. Ibid., pp. 63–4. Ibid., p. 64. Knox makes a point of saying that the missionaries “should, in no degree, be concerned in trade . . . to arouse the jealousy of the Indians. They should be their friends and fathers.” While this policy encouraged missionaries, Knox specified that “[n]o attempt should be made to teach the peculiar doctrines of revealed religion excepting those Indians to whom any of the mysteries have been already unfolded” (p. 82, n. 50). This reluctance to promote proselytizing would fade from federal policy over time. Ibid., pp. 64–5. Jefferson’s treaty with the Kaskaskia Indians is frequently cited by nonpreferentialists, but Jefferson’s interest in civilizing the Indians went even further than that treaty. As Lawrence Cremin has written, “paradoxically, given the Jeffersonian penchant for secularism – the government ended up in patent partnership with the several Christian denominations.” Lawrence A. Cremin, American Education: The National Experience, 1783–1876 (New York: Harper & Row, 1980), pp. 234–5, quoted in Fraser, Between Church and State, p. 89. Fraser indicates that “[i]n the latter part of his program [for educating the Indians], Jefferson . . . entered into a close alliance with the evangelical Protestant denominations whom he otherwise distrusted.”

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funds for a school for the Cherokees, provided that all of the property would belong to the government. Two years later, Madison’s “message to Congress . . . stressed the urgency of a program for the civilization of the Indians,” and a House committee was even more explicit: “the sons of the forest should be moralized or exterminated.”200 Advocating the moralizing course, the committee wrote, “Put into the hands of their children the primer and the hoe, and they will naturally, in time, take hold of the plow; and, as their minds become enlightened and expand, the Bible will be their book, and they will grow up in habits of morality and industry, . . . and become useful members of society.”201 This report led to an 1819 law establishing a “Civilization Fund,” and Secretary of War Calhoun “addressed a circular to the agencies that were already engaged or about to engage in the education of the Indians.”202 As Beaver notes, the circular “did not specify Christian missions, but since they were the only agencies engaged in the work, it clearly had them in view.”203 The circular provided that the education would cover not only “reading, writing, and arithmetic,” but also agriculture and “mechanic arts” for the boys and “spinning, weaving and sewing” for the girls.204 This fund, in Beaver’s estimation, provided a “tremendous stimulus to missionary efforts. Never before had so much been undertaken for the Indians in so short a period.”205 By 1821, federal funds flowed to Baptist, Moravian, Presbyterian, and numerous other Protestant missionary schools under a revised program in which the government would pay two-thirds of the cost, with the church, mission society, or others required to pay the remainder.206 In 1824, government grants were supporting a total of twentyone religious schools, including one Roman Catholic school.207 And so, at a time when the acrimonious and even violent “school wars” over funding for Roman Catholic schools were beginning to heat up at the state and local levels, Congress was supporting a network of schools established and run by most of the major Protestant denominations and, in one case, by the Roman 200 201 202

203 204 205 206 207

Beaver, Church, State, and the American Indians, p. 67. Ibid., pp. 67–8. Ibid., p. 68. Along the same lines, a number of white Southerners saw slavery playing a valuable role in civilizing and Christianizing Africans. See Elizabeth Fox-Genovese and Eugene D. Genovese, The Mind of the Master Class: History and Faith in the Southern Slaveholders’ Worldview (New York: Cambridge University Press, 2005), p. 730, and various nineteenth-century sources cited therein. Ibid. Ibid., p. 69. Ibid., p. 70. Ibid., p. 73. Ibid., p. 76.

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Catholics.208 Yet as R. H. Keller has observed, there was no constitutional challenge to Congress’s Civilization Fund for at least its first fifty years209 – that is, from 1819 through the adoption of the Fourteenth Amendment. The close cooperation of the federal government and the churches prior to the Civil War is perhaps best summarized by an 1847 report of William Medill, Commissioner of Indian Affairs. He wrote that “the Department has found its most efficient and faithful auxiliaries and laborers in the societies of the several Christian denominations, which have sent out missionaries, established schools, and maintained local teachers among the different tribes.”210 His federal agency, Medill wrote, “has not hesitated to make them the instruments, to a considerable extent, of applying the funds appropriately by the government for like purposes, and the civilization – and Christianization – policy continued.”211 When the Civil War finally ended, and very shortly after the Fourteenth Amendment was adopted, this church-state cooperation changed quite significantly. Whereas in the antebellum period the United States government had funded schools run by various denominations, after the war, church and state became much more closely intertwined, with “specific governmental functions . . . handed over to church groups.”212 President Grant, whose public position was to keep “church and state forever separate,”213 decided that the best way to combat corruption and incompetence among the federal Indian agents was to “apportion . . . the Indian agencies among church groups, with the understanding that the missionary boards would nominate the agents and the other employees at the agencies.”214 The first agency went to the Society of Friends in 1869, and Grant is reported to have remarked, “Now give me the names of some 208

209

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211 212

213 214

“In the early 1800’s, . . . Indian education . . . consisted of a considerable number of schools conducted by twenty or more different churches, all drawing substantial sums from the government.” Fredric Mitchell and James W. Skelton, “The Church-State Conflict in Early Indian Education,” History of Education Quarterly 6, no. 1 (Spring 1966): 41–51. Keller, American Protestantism and United States Indian Policy, p. 7. See also Mitchell and Skelton, “Church-State Conflict,” p. 42. Francis Paul Prucha, American Indian Policy in Crisis: Christian Reformers and the Indian, 1865–1900 (Norman: University of Oklahoma Press, 1976), p. 32, quoting Report of the Commissioner of Indian Affairs, 1847. Ibid. Ibid., p. 33. Prucha notes that this “development . . . indicated not only the failure of the government processes in regard to the ‘Indian question’ but also the pervasive moral and religious influences on the national outlook.” Quoted in Hamburger, Separation, p. 323 Prucha, American Indian Policy, p. 46. See also Keller, American Protestantism and United States Indian Policy.

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Friends for Indian agents and I will appoint them. If you can make Quakers out of the Indians it will take the fight out of them.”215 Grant also appointed an ecumenical Protestant Board of Indian Commissioners, who reported later that year that “[t]he religion of our blessed Saviour is believed to be the most effective agent for the civilization of any people.”216 As President Grant said in his first annual message to Congress, the success of the Friends “in living in peace with the Indians . . . induced me to give management of a few reservations . . . to them,” and he expected to “expand the system, to offer the agencies to other religious groups, who could be expected ‘to Christianize and civilize the Indian, and to train him in the arts of peace.’”217 Indian Commissioner Ely Parker explained this “Peace Policy” further in his 1870 report, saying: Despite “the expenditure of large sums of money annually, the Indians [had] made but little progress toward that healthy Christian civilization in which are embraced the elements of material wealth and intellectual and moral development.”218 As a result, Parker continued, “the President wisely determined to invoke the cooperation of the entire religious element of the country . . . to bring about and produce the greatest amount of good for the expenditure of the munificent annual appropriations of money by Congress, for the civilization and Christianization of the Indian race.”219 Over the next few years, the Roman Catholic Church and numerous Protestant denominations were assigned various Indian agencies.220 “By 1872,” records Keller, “the churches effectively controlled some nine

215

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218 219 220

Prucha, American Indian Policy, p. 48, quoting “Lawrie Tatum, Our Red Brothers and the Peace Policy of President Ulysses S. Grant (Philadelphia, 1899), pp. 17–18.” Prucha, American Indian Policy, p. 40, quoting Report of the Board of Indian Commissioners, 1869. Ibid., p. 51, quoting from Grant’s State of the Union Message. He planned “to give all the agencies to such religious denominations as had heretofore established missionaries among the Indians, and perhaps to some other denominations who would undertake the work on the same terms, i.e., as a missionary work.” Ibid. This approach became known as Grant’s “Peace Policy.” For additional information about the Peace Policy, see Keller, American Protestantism and United States Indian Policy; Beaver, Church, State and the American Indian, chapter 4; and Dussias, “Ghost Dance,” pp. 778–83. Prucha, American Indian Policy, p. 52. Ibid. See Keller, American Protestantism and U.S. Indian Policy, pp. 38–40. Dussias notes that “one Jew, Dr. Herman Bendall, was appointed Superintendent of Indian Affairs in Arizona, after a Jewish delegation protested their exclusion from the Peace Policy to President Grant.” Dussias, “Ghost Dance and Holy Ghost,” p. 782, n. 53. Meanwhile, the Chairman of the Board of Indian Commissioners in 1873, Felix R. Brunot, served as President of the National Reform Association (succeeding Supreme Court Justice William Strong), the organization committed to obtaining passage of a Christian Amendment to the Constitution. See Borden, “Christian Amendment,” p. 164.

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hundred government employees.”221 This Christianization process, funded by Congress and implemented by the churches, was in full swing in 1875 when President Grant encouraged Congress to adopt a constitutional amendment “[d]eclaring Church and State forever separate and distinct,” and forbidding the states “from giving public funds to any schools that taught ‘sectarian tenets,’ lest Americans ‘sink into acquiescence to the will of intelligence, whether directed by the demagogue or by priestcraft.”222 Despite Grant’s church-state pronouncements, establishment clause issues were barely even hovering in the background of his federal Peace Policy. Beaver notes that although “Presbyterians and Episcopalians expressed some doubts about the state-church relationships involved, . . . [they] agreed to cooperate because the matter seemed so urgent and the end sought so desirable.”223 To be sure, constitutional issues were raised periodically, inside224 and outside Congress,225 but none of these concerns brought a halt either to the government funding or to the willingness of the churches to accept it. Only decades later, after pressure from the nativist American Protective Association (A.P.A.), did the Protestant churches actively seek to 221

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223 224

225

Keller, American Protestantism and United States Indian Policy, p. 168. Some scholars have taken the position that in adopting this approach to civilizing and christianizing the Indians, “Congress did not regulate or require religious instruction” and, therefore, was not an example of Congress exercising power over religion. See Lash, “Power and the Subject of Religion,” pp. 1121–3. Such an interpretation is difficult to sustain in light of the facts. Moreover, if christianizing the Indians did not represent the government exercising power over religion, one might argue equally strongly that colonial “establishments” were similarly not legislative acts requiring or regulating religion since, at least in Theophilus Parson’s classic defense of the Massachusetts establishment, the government was simply trying to make people better citizens. See Chapter 3 above. “Congressional Record, 4 (1): 175, 181 (Sen, Dec. 7, 1875)” quoted in Hamburger, Separation, p. 323. Beaver, Church, State, and the American Indians, p. 136. “On the floor of Congress, Representative Alfred Scales of North Carolina described the Peace Policy as a malignant growth that violated religious liberty and rendered the federal government a paymaster of churches. Citing the Constitution, Texas Senator Sam Maxey proclaimed that church domination of the Indian Bureau made men hypocrites and produced weak agents.” Keller, American Protestantism and United States Indian Policy, p. 172. For example, as Keller notes, “When William Tecumseh Sherman in 1876 argued for an end to religious monopolies [on reservations], the editor of the New York Tribune supported the general with a sarcastic column about the return of Official Religion.” Ibid. For denominational concerns, especially among the Episcopalians and Presbyterians, see pp. 169–72. Meanwhile, a “Unitarian magazine advocated complete separation of Church and State, then blandly described the Peace Policy in the same issue and found no contradiction” (p. 169). Keller describes the Methodist views of the Peace Policy “as a missionary enterprise that helped them introduce ‘at the expense of the Government, all the Gospel Appliances’” (p. 171).

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end the federal funding of Indian mission schools, largely because by that time Roman Catholic schools were getting the lion’s share of the money.226 Most of the government funding for mission schools in the first part of the nineteenth century went to Protestant organizations, but by the end of the century, Roman Catholic missions dominated the federal effort, which incensed the anti-Catholic A.P.A. According to the A.P.A., during the “eight years ending in 1893, the Catholic schools had received $2,355,416 out of a total of $3,767,951 for all schools. . . . The eight Protestant agencies . . . had together received a total figure of only $938,977.”227 Beaver notes that in response, the Episcopal, Methodist, and Presbyterian mission boards in 1892 “adopted resolutions refusing further acceptance of subsidies and approving the [A.P.A.’s] proposed constitutional amendment” to “make more explicit the separation of church and state.”228 Congress then began cutting back on funding for church-run schools, “stipulating that ‘it is to be the settled policy of the government to hereafter make no appropriation whatever for education in any sectarian school.”229 Finally, Congress’s “1899 Appropriation Act affirmed that it now made the ‘final appropriation for sectarian schools.’”230 Amendment Proposals President Grant, in the 1870s, thus turned out to be no more consistent on church-state issues than Senator Johnson had been in the 1830s. For Grant, the “separation of church and state” offered a highly attractive political platform for the Republican Party to use to attack the Democrats since many Roman Catholics not only supported the Democrats but were also agitating for parochial school funding at the state and local level. Yet Grant was anxious to Christianize the Indians, and many of his Republican supporters strongly supported the presence of “nonsectarian” Protestant prayers 226

227 228 229 230

By this time, the churches were no longer being allocated Indian agencies but, instead, received funding for operating “contract schools.” See Prucha, American Indian Policy, pp. 290–1. Beaver, Church, State, and the American Indians, p. 167. Ibid., pp. 167, 166. Ibid., p. 168. Ibid. Beaver points out that, “[d]enied government funds, the Roman Catholic mission directors turned to the Indian tribes and got many of them to make contracts with the mission schools and to request the government to pay those schools out of funds belonging to the tribe and held by the government or due the tribe under treaty stipulations.” See also Fraser, Between Church and State, pp. 99–101, concerning federal funding of religious education of the Indians in the early twentieth century.

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and Bible reading in the public schools, so Grant’s call to keep church and state forever separate was little more than a simple and politically popular expression of a much more complex and politically complicated issue. A look at a variety of church-state constitutional amendments that were proposed during the 1870s can help us identify at least a portion of the wide range of sometimes inconsistent views all bundled under the banner of the “separation of church and state” around the time of the Fourteenth Amendment.231 For those who debate the issue of whether there are any viable originalist roots of the incorporation doctrine, one of the interesting elements of these proposed amendments is that they all included language that explicitly subjected the states, as well as the federal government, to their restrictions. As a result, a number of commentators have pointed to them as evidence that people at the time of the Fourteenth Amendment did not expect the First Amendment to be applied to the states.232 Such issues are interesting, but it is important to bear in mind that the motivations behind these amendments are often complicated, and the originalist issues involved in the incorporation doctrine are beyond the scope of this book. For our purposes, the question is: What can we learn from these proposals about what contemporaries of the Fourteenth Amendment thought the First Amendment meant? While the various proposals emanated from a range of positions on the religious and political spectrum, from liberal secularists to Protestant Republicans courting the anti-Catholic nativist vote, they shared a fear of Roman Catholicism, a dedication to the vocabulary of the “separation of church and state,” and a commitment to creating one national solution to federal, state, and local church-state issues. Three of the major proposals also had 231

232

For an extensive discussion of numerous approaches to non-establishment amendments, see F. William O’Brien, “The States and ‘No Establishment’: Proposed Amendments to the Constitution since 1798,” 4 Washburn Law Journal 4 (1964–5): 183. O’Brien argues this point strenuously, citing a number of examples where members of Congress who were introducing amendments said that the post–Fourteenth Amendment establishment clause did not apply to the states. See O’Brien, “The States and ‘No Establishment,’” pp. 186–210. See, e.g., Senator Henry Blair of New Hampshire in 1888: “There is no restriction whatever placed upon the power or action of the States in this regard [i.e., laws respecting an establishment of religion], and yet it is easy to perceive . . . that any State is quite as likely to infringe upon the general and universal principles of liberty by enacting laws respecting establishments of religion . . . as is the nation itself.” Ibid., p. 197. See also William Lawrence, “The Law of Religious Societies and Church Corporations in Ohio,” American Law Register (1852–1891) 21, no. 4 (April 1873): 201–23: “Subject to the equal protection of the laws required by the National Constitution . . . there is no restriction upon the power of the states . . . as to the support by law of church or religious establishments” (p. 208).

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at least one influential person in common, Judge Elisha P. Hurlbut, which is a fairly surprising phenomenon since one came from the secularist National Liberal League, which wanted to eradicate religion from the public realm, especially the schools, and another from Grant’s Republican colleague James G. Blaine, whose proposal enjoyed considerable support from Protestants eager to maintain Protestant prayers and Bible reading in the public schools. Hurlbut had served as a supreme court justice in New York, and Ward McAfee calls him “a well-known constitutional expert on the issue of religion and public education.”233 In 1870, Hurlbut recommended that the establishment clause be modified to read: “Neither Congress nor any state shall make any law respecting an establishment of religion.”234 In this way, the states would be explicitly subject to the same restrictions as “Congress.” Hurlbut’s specific concerns about the threat of Roman Catholicism to American political values led to a further provision giving Congress the power to “enact such laws as it shall deem necessary to control or prevent the establishment or continuance of any foreign hierarchical power in this country founded on principles or dogmas antagonistic to republican institutions.”235 This clause would provide, in McAfee’s description, “explicit, constitutional authority to reconstruct any Northern state succumbing to the Catholic menace . . . . Hurlbut favored a frank acknowledgement of the supremacy of state over church authority,” and he even wanted Congress to “remove papal authority to appoint Catholic bishops.”236 Hurlbut’s proposal garnered support from a number of quarters, including the Reverend Samuel T. Spear, “a Liberal Protestant who,” as McAfee notes, “lamented the lack of any constitutional defense to prevent Catholics from taking over public education in those communities where they constituted a majority,” with Spear calling the failure of the First Amendment to restrict the actions of the states “a defect in the Constitution itself.”237 233

234 235 236 237

Ward M. McAfee, Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s (Albany: State University of New York Press, 1998), p. 196. Quoted in ibid., p. 62. Ibid. Ibid. Ibid., p. 61. See also the Report of the Centennial Congress of Liberals, which observed that the Constitution “contains no provision prohibiting the several States from establishing a State religion, . . . [a] defect in the United States Constitutions [allowing] some of the States [to be] guilty of grave infringements on the religious liberty of their citizens.” Quoted in Hamburger, Separation, p. 297. Spear’s general point is that “in this country [we have] a system of secular governments, established by the authority of the people for secular and not for religious purposes. . . . Any divergence from this great principle, as is the fact in some of the State constitutions, is merely exceptional to the general spirit and purpose of our governmental system.” Samuel T. Spear, Religion and the State, or, the Bible and the

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Several years later, when President Grant proposed a constitutional amendment separating church and state, Congressman Blaine responded within a week with an amendment influenced, once again, by fellow New Yorker Judge Hurlbut. Blaine’s amendment started with a direct application to the states of the existing establishment clause language: “No State shall make any law respecting an establishment of religion.”238 It then continued by specifically addressing the battles over whether church schools (especially Roman Catholic parochial schools) would have access to the public school fund: “[N]o money raised by taxation in any state for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”239 Meanwhile, the assembly of Liberal Leagues in 1876 (of which the ubiquitous Judge Hurlbut was a vice president240 ) worried that Blaine’s proposal was too “non-committal” because “it conformed to the Protestant or nativist conception of separation.”241 Blaine and the Republicans sought to keep school funds out of Catholic hands, but at the same time, they were anxious to maintain what they considered to be “nonsectarian” prayers and Bible reading. The secularist Liberals wanted to see all religion removed from the schools, which led them to propose a much more detailed amendment than Blaine did. The proposal began with Judge Hurlbut’s original language (“Neither Congress nor any State shall make any law respecting an establishment of religion”), which it then emphasized by adding the words: “or favoring any particular form of religion . . . ; or permitting in any degree a union of church and State; or granting any special privilege, immunity, or advantage to any sect or religious body or to any number of sects or religious bodies; or taxing the people of any State, either directly or indirectly, for the support of any sect or religious body or of any numbers of sects or religious bodies.”242

238 239 240 241 242

Public Schools (1876), quoted in Wilson and Drakeman, Church and State in American History, p. 130. Quoted in McAfee, Religion, Race, and Reconstruction, p. 197. Ibid. Hamburger, Separation, p. 298, n. 24. Ibid., p. 298. Quoted in ibid., p. 299. In a separate section, the proposal contained: “Neither the United States, nor any State . . . or any . . . division [thereof ] shall levy any tax, or make any gift, grant or appropriation, for the support, or in aid of any church, religious sect, or denomination, or any school, seminary, or institution of learning, in which the faith or doctrines of any religious order or sect shall be taught or inculcated, or in which religious practices

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Such a strongly secular approach to public education was not what congressional Republicans had in mind. After Blaine’s amendment was adopted by the House (following the insertion by House Democrats of a provision denying Congress the power to enforce it), Senate Republicans rewrote the amendment to clarify that this “article shall not be construed to prohibit the reading of the Bible in any school or institution.”243 Worried that a prohibition on both federal and state governments from making laws “respecting an establishment of religion” might not be clear enough to achieve the desired effect of leaving the (pan-Protestant) schools untouched but keeping public funds away from Roman Catholics, the revised amendment added language prohibiting public funds or property (state or federal) from being “used for the support of any school . . . or other institution under the control of any religious or anti-religious sect, organization, or denomination.”244 In the end, the amendment received 28 votes in favor, and 16 opposed (in a strictly party-line vote in the Senate), which was not sufficient for ratification.245 One clause remains constant in all of these proposed amendments. They all include language from the First Amendment’s original text, namely, “respecting an establishment of religion.” All and sundry involved in proposing amendments seemed to believe that this language represented an effective way of achieving the “separation of church and state.”246 The same language

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shall be observed; or for the support, or in aid, of any religious charity or purpose of any sect, order, or denomination whatsoever” (pp. 299–300). The Report of the Centennial Congress of Liberals credits “Judge Hurlbut’s admirable proposition” for this additional section providing for “a genuinely unsectarian public school system” (p. 300). Quoted in McAfee, Religion, Race, and Reconstruction, p. 209. Ibid. Ibid., p. 210. For a similar usage of the “respecting” language at about the same time, see Joseph P. Thompson, Church and State in the United States (Boston: James R. Osgood, 1873), p. 15: “An analysis of [the state] constitutions . . . shows that the following things are not lawful in any of the States of the American union: 1. Any law respecting an establishment of religion.” Thompson also tentatively broaches an “incorporation doctrine” theory relating to Article VI’s religious test provision that he does not extend to the establishment clause, perhaps because he believes that the state constitutions have already addressed the issue, as noted above. Thompson combines the Fourteenth Amendment’s “privileges and immunities” clause with the amendment’s provisions concerning voting rights to conclude that the states may not impose religious tests “so far forth as the Congress of the United States can have power over the legislation of particular States in such a matter” (p. 16). The approach to using the First Amendment’s “respecting an establishment of religion” language to signify a separation of church and state can be found in several subsequent proposals for a new amendment subjecting the states to the same strictures. See O’Brien, “The States and ‘No Establishment,’” pp. 194–204. For example, O’Brien observes, “Twice in 1895 Representative Lurton proposed a no establishment amendment with the wording: ‘Neither Congress nor any State shall pass any law respecting an establishment of religion’”

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also appears in state constitutions modeled after the First Amendment,247 in Judge Cooley’s description of state constitutions in general,248 and in quite a few subsequently proposed amendments.249 The first conclusion that we can draw from this fact is that the enhanced federalism reading of the establishment clause still had not been invented – or if it had been, it was certainly not a widely accepted interpretation. If the enhanced federalism interpretation had been regularly cited as the original meaning of the establishment clause (or even if it was considered to be one of several possible original understandings), it could have led to an unintended interpretation of the Hurlbut, Blaine, and Liberal proposals (not to mention some state constitutions) – namely, that state governments would be prevented only from making laws “respecting” local town-based establishments, thus pushing the ultimate authority for church-state decisions down to the municipal level. In other words, if the original text (“Congress shall make no law respecting”) allocated all jurisdiction over establishments to the states, the new version (“no state shall”) would similarly isolate church-state authority at the level of individual towns. Such an approach was certainly the opposite of what either Republicans or Liberals wanted to achieve; both groups were looking to sever potential ties between churches and governments, not to allocate jurisdiction over such matters to thousands of individual towns and local school boards. Doing so could have magnified the problem the amendments were seeking to address, which is that local religious majorities (especially Catholic majorities) could decide what religious activities would take place in the public schools.250 Had an enhanced federalism interpretation of the

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(pp. 202–3). The “identical measure” was introduced twice in 1897 and again in 1899, 1903 and 1907 (p. 203). See, e.g., the Iowa Constitution: “the general assembly shall make no law respecting an establishment of religion . . . ; nor shall any person be compelled to attend any place of worship, pay tithes, taxes or other rates for building or repairing places of worship, or the maintenance of any minister or ministry.” Iowa Constitution, Article I. 3, 4, quoted in Schaff, “Church and State in the United States,” p. 47. Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the State of the American Union, 4th ed. (Boston: Little, Brown, 1878), p. 579: Among those things not permitted is “Any law respecting an establishment of religion.” O’Brien, “The State and ‘No Establishment,’” pp. 194–204. Similarly, it could make Iowa’s restriction on making any “law respecting an establishment of religion” inconsistent with the subsequent clause in the same provision stating that “no person shall be compelled to . . . pay . . . taxes . . . for building or repairing places of worship, or the maintenance of any minister.” An enhanced-federalism reading of Iowa’s establishment clause would allow towns to raise taxes to pay ministers, which is clearly prohibited by the latter clause. Iowa Constitution I. 3, 4.

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establishment clause been regularly asserted prior to the time of the Fourteenth Amendment, these various groups seeking church-state amendments would very likely have eliminated the “respecting” language from their proposals if for no other reason than to avoid confusion. And so, even if one or more original framers believed in the enhanced federalism interpretation (a hypothetical possibility but one unsupported by any documentary evidence), that understanding had evaporated by the time of the Fourteenth Amendment. Another inference that can be drawn from the amendments is that both the Senate Republicans and the Liberals felt obliged to clarify in some detail what they meant when they proposed to prohibit “laws respecting an establishment of religion” at both federal and state levels, suggesting that the meaning of the constitutional language was no more fixed than that of the “separation of church and state.” Liberals wanted to ensure that the new version of the establishment clause would make all schools entirely secular, while the Republicans sought explicitly to retain Bible reading. And House Democrats were willing to vote for Blaine’s original version (it passed 180–7) as long as it stated that Congress had no power to enforce the provision, thus leaving the clause’s interpretation to the courts.251 To be sure, as McAfee points out, the Democrats were cleverly outmaneuvering the Republicans to diffuse a potential Protestant-Catholic political issue by supporting a weakened amendment; nevertheless, the nearly unanimously adopted language could also be viewed as vague enough for a wide range of positions on the church-state spectrum.252 At this time in American history, there seemed to be virtual unanimity on the language of the separation of church and state. Whatever people may have thought about the relationship of religion and government – in public schools, Indian missions, the halls of Congress, and elsewhere – everyone pledged allegiance to the notion of the separation of church and state. O’Brien has observed that even the Democrats listed the “separation of church and state, for the good of each” in their 1880 and 1884 platforms,253

251 252

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See ibid., pp. 203–4. Another reason the Democrats may have been willing to vote for Blaine’s amendment is that it did not specifically ban direct appropriations for Roman Catholic schools; it only spoke to the use of school fund. See ibid., pp. 204–6. O’Brien, “The States and ‘No Establishment,’” p. 195. The Republican church/state plank read: “The Constitution wisely forbids Congress to make any law respecting the establishment of religion, but it is idle to hope that the Nation can be protected against the influence of secret sectarianism while each State is exposed to its domination. We, therefore, recommend that the Constitution so amended as to lay the same prohibition upon the Legislature

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while the Republican platform called for a constitutional amendment making the establishment clause applicable to the states to protect against “the influence of secret sectarianism.”254 A common vocabulary did not signal a shared understanding, however; nor did it require a principled and consistent commitment to any particular theory of religious freedom or to any of the modern forms of strict separationism or nonpreferentialism. President Grant could call for the eternal separation of church and state while trying to turn the Indians into Quakers; the 1876 Prohibition Party platform wanted both church-state separation and the national observance of the “Christian Sabbath”;255 Democrats could support Roman Catholic requests for funds for parochial schools at the same time that they espoused the American principle of separation.256 Meanwhile, the National Liberal League disagreed with all of the above, pushing for a degree of separation and public secularism that made many Protestants and Catholics alike uncomfortable. And all used the same language: “separation of church and state” and “no law respecting an establishment of religion,” two brief phrases that seemed to be synonymous but whose meaning differed dramatically from group to group and, perhaps, from one occasion to the next. Nineteenth-Century Lessons (if any) At the time of the Fourteenth Amendment, we can see that the federal church-state situation was, if anything, even less clear than that at the time of the First Amendment. The debates in the First Congress in 1789 at least display a broad-based understanding that the establishment clause was designed to forbid a “national religion.” However much Madison may have subsequently wanted the establishment clause to stand for a strict “no cognizance” standard, Madison the framer was wise enough not to make the claim that the church-state views expressed by Madison the President represented the Congress’s original understanding of clause. Meanwhile, his contemporary Joseph Story does cast his interpretation in originalist terms, and at least from his New England vantage point, it was probably easy to

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of each State, and to forbid the appropriation of public funds to the support of sectarian schools.” Ibid. See Hamburger, Separation, p. 326. See Bishop John Hughes of New York, for example, who in 1841 spoke of “the justly obnoxious union of Church and State.” Quoted in ibid., p. 241. Hughes later called the New York public school system “law-established church in disguise” because it promoted Protestantism. Quoted in ibid., p. 225.

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conclude that “the general, if not universal sentiment” was that Christianity should be encouraged and that the “object” of the First Amendment was only to ban preferential treatment of any one form of Christianity over the others. By these statements, Madison and Story are interpreting the amendment – pushing it in what they see as desirable directions – based on vague language with little context other than some concerns in the state ratifying conventions concerning a national church. Since that time, scores more have done the same thing, that is, enlisting vague language in service of particular outcomes in specific cases. Our interpretive challenge is particularly acute because no active church-state controversy was being addressed by either the First or the Fourteenth Amendment, making it extremely difficult to identify a specific congressional intent or, in the case of the Fourteenth Amendment, to imagine how the public would conceive of applying the establishment clause to the states.257 Brown University Professor J. L. Diman, writing on “Religion in America, 1776–1876” in the North American Review’s Centennial issue, summed up the recurring themes in church-state debates in these words: “At the close of a century we seem to have made no advance whatever in harmonizing the relations of religious sects among themselves, or in defining their relation to the civil power.”258 There was no widespread agreement on how church and state should relate to each other at any level of government, nor was there a broadly shared understanding of what the establishment clause meant. Historians could not even agree on what an establishment was and whether there were any established churches at the time of the First Amendment, with historian Philip Schaff finding some, while Diman was sure there were none.259 There are several schools of thought that can be seen throughout the entire period from the First Amendment to the Fourteenth, with each claiming to 257

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As constitutional law scholars John Jeffries and James Ryan have remarked, “The Framers said almost nothing about the Establishment Clause, and the authors of the Fourteenth Amendment even less.” John C. Jeffries, Jr., and James E. Ryan, “A Political History of the Establishment Clause,” Michigan Law Review 100 (2001–2): 279, 296. J. L. Diman, “Religion in America, 1776–1876,” North American Review 122, no. 250 (January 1876): 1–47. In describing the “novel experiments of a self-governed state and of a self-directing and self-supporting church,” Diman cautions that “the formal separation of these two experiments [should not] betray us into the error of supposing that they are essentially distinct. They have been carried on together, by the same people, and during the same period, and throughout all this period have had a connection more close and real than will be conceded by such as are accustomed to look only at the superficial causes of political and social progress” (p. 1). Cf. Schaff, Church and State in American History, p. 24, with Diman, Religion in America, pp. 1–24.

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represent the true American spirit of “the separation of church and state.” The approach most likely to make the claim that it represented the intentions of the framers of the First Amendment’s religion clauses is “Christian nonpreferentialism”: As expressed by Philip Schaff in 1888, the “separation of church and state as it exists in this country is not a separation of the nation from Christianity.”260 From Story to Schaff, with many others such as Jasper Adams and Harmon Kingsbury in between, this school of Christian nonpreferentialism places a stronger emphasis on “Christian” than “nonpreferentialism.” The argument seems to be based on the basic observable fact of a shared Christianity throughout the land, especially at the time of the founding; any understanding of government must then proceed from the recognition that America is, was, and ever will be a Christian nation. And a Christian nation must behave according to Christian precepts. Accordingly, though the “whole power over the subject of religion is left exclusively to the State governments,” in Story’s words, nevertheless, “the object of the amendment was not to advance [other religions] but to exclude all rivalry among Christian sects.”261 This lack of power over religion should not therefore be interpreted to impede the federal government from recognizing Christianity as the foundation of its laws and morality262 because, as Justice Story wrote to the Reverend Adams, there is a difference “between the establishment of a particular sect, as the Religion of the State, and the Establishment of Christianity itself, without any preference of any particular form of it.”263 In the same vein, H. M. Warner, also writing in the 1830s, made a sharp distinction between the proper separation of church and state, on the one hand, and the perils associated with a loss of the nation’s Christian character, on the other: “Ecclesiastical Christianity is neither to be adopted 260 261

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Schaff, Church and State in the United States, p. 53. Joseph Story, Commentaries on the Constitution of the United States, 3 vols. (Boston: Charles C. Little and James Brown, 1851), vol. 2, p. 591. Schaff lists seven elements of the “Christian character of the American nation,” plus three more “interests and institutions which belong to both church and state and must be maintained and regulated by both: monogamy in marriage, the weekly day of rest, and the public school.” Schaff, Church and State in the United States, p. 69. America’s “Christian character” is manifested by: (1) The fact that the country “equal[s] and even surpass[es] most Christian countries in religious energy and activity of every kind,” (2) “Christian Legislation,” including the fact that Christianity is part of the common law, (3) the “oath, or solemn appeal to the Deity for the truth of an assertion . . . in conformity with Old Christian custom and the national reverence for the Book of books,” (4) “Official Acts of the Presidents,” including references to God in inaugural addresses and Thanksgiving days, (5) the “Exemption of Church Property from Taxation,” (6) legislative and military chaplains, and (7) the official printing of the Bible by Congress in 1782. Ibid., pp. 56–68. Dreisbach, Religion and Politics, p. 115, quoting Story to Adams (May 14, 1833).

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nor rejected by political men as such. Honour it and let it alone. . . . Ethical Christianity, however, should be embraced, as well as honoured. Our statesmen, our administrations, cannot possibly have too much of it.”264 Examples abound among the framers and throughout the nineteenth century of those who believed that religion was essential to morality and good government, that Protestant Christianity, in particular, provided that religious basis for the American nation, and that government should not only foster and encourage Protestant Christianity but also conform the country’s laws to its precepts. Alongside Christian nonpreferentialism was a strong and recurring argument that religion is “outside the cognizance” of the federal government, in the words of Colonel Johnson’s second post office report, and therefore Congress has no power to enter into theological disputes (e.g., the proper day of rest) or even to provide the legal benefits of incorporation, in Madison’s view. Proponents of this school of thought were less likely than the Christian nonpreferentialists to make originalist arguments and were much more inclined to link the anti-establishment principle with the protection of the rights of conscience of religious minorities. In fact, in place of originalist claims, their historical arguments focused on the persecution of dissenting Protestants by fellow Protestants who had been backed by state power; in this context, any sign of a “union between church and state” was the first step down a slippery slope toward persecution. These were, in almost all cases, not secular or anti-religious positions; to the contrary, they were frequently sectarian and anti-clerical, seeking to promote a particular form of Protestantism – characterized by local, lay-dominated evangelical religion – as the best way for Christians to behave. Their proponents railed against hierarchy and complained about ecclesiastical privileges, always harking back to state-supported religion as the handmaiden of religious persecution. Yet many of them believed as strongly as the Christian nonpreferentialists that religion was a necessary component of republican government, hence the divisions among the Baptists and other former dissenting churches over the Sunday mails, religious incorporation, Thanksgiving days, and the like. Until the growth of the National Liberal Party late in the nineteenth century, as Hamburger has compellingly demonstrated, there was no prominent and consistent voice for a truly secular reading of the establishment clause, and it is perhaps noteworthy that the Liberal Party died out fairly quickly. 264

H. W. Warner, Inquiry into the Moral and Religious Character of the American Government (New York: Wiley and Putnam, 1838), pp. 75–6.

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By the time of the Fourteenth Amendment, then, the “separation of church and state” had been virtually universally accepted as an American truism, but, as Professor Diman pointed out in 1876, the proper relation of religion and government was no closer to settled than it had been a century before upon the adoption of the establishment clause.

7 Conclusion

The Clause That Didn’t Bark in the Night “Is there any other point to which you would wish to draw to my attention?” “To the curious incident of the dog in the night-time.” “The dog did nothing in the night-time.” “That was the curious incident,” remarked Sherlock Holmes.1

In the two-hundred-year quest for the original meaning of the establishment clause, all of the various commentators – historians, judges, lawyers, political scientists, and the like – have poured out thousands of heavily footnoted pages divining the meaning of a remarkably small documentary record. It is not for lack of attention, then, that there are such enduring constitutional controversies over the meaning of fairly simple words such as “an” and “respecting,” a situation that hardly bodes well for our ability to resolve disputes over genuinely challenging concepts such as “establishment” and “religion.” One of the reasons these debates seem so unending and irresolvable is that we have been ignoring the best evidence of what the founding generation thought about the establishment clause. This information is missing because we have been making the mistake of treating the sources much as New Testament scholars look at the limited cache of documents that survive from the times of Jesus and the early Christian churches: That is, maybe there are gospels yet to be seen, much as the Gospel of Judas burst upon the scene fairly recently, or perhaps the archaeologists have finally found them 1

Arthur Conan Doyle, “The Adventures of Silver Blaze,” reprinted in The Adventures of Sherlock Holmes (Ware, U.K.: Wordsworth Editions Limited, 1992), pp. 291–306, 302–3.

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all – either way, scholars have no choice but to try to interpret the meaning of the few sources that do exist in light of the fact they may never know what the complete documentary record looked like. Biblical scholars are thus left to speculate about whether letters from Peter, Paul, and Mary might yet emerge from an Egyptian desert, and they are forced to imagine how the existing documents could have fit into a broader first-century conversation. The American constitutional record is fundamentally different in a very important way: it presents us with a clear and basically complete interpretive context. We have access to a wealth of eighteenth-century newspapers and pamphlets, collections of the papers of various framers, and so on. We know with a fairly high degree of confidence what most people were saying about the establishment clause at the time it was adopted and ratified: nothing. To be sure, we have some comments from the ratification debates, the brief congressional discussions, and a small handful of other sources, all of which are cited by just about every scholar entering the originalism fray. When we look at how the secondary literature makes use of quotations from the Founding Era, we tend to assume that these few statements somehow capture the spirit of a much larger body of primary source materials, and that is where we have been led astray. What we are seeing is essentially the entire record, not the most pithy or quotable bon mots judiciously selected from a deep well of documents. As Levy observes, “At the very least, one would expect frequent expression of fear and concern on the subject [of an establishment of religion]. Yet the startling fact is that it was rarely mentioned at all and then only briefly.”2 The most typical establishment clause comment was no comment at all. Having such a clause, or not having anything of the sort, simply did not excite the founding generation. The most striking – and curious – incident surrounding the adoption of the establishment clause then was this lack of hue and cry. We know that Americans of that era were sharply and vocally divided on churchstate issues. Well-publicized battles over tax funding for churches raged in places such as Virginia and Massachusetts just a few years before the Bill of Rights, and the relationship of God and country was a central theme of the bitterly contested presidential election of 1800 a decade later.3 Both before and after – but not during – the adoption of the establishment clause, partisans of various approaches to church-state issues aired those views in 2

3

Leonard Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), p. 67. See Edward J. Larson, A Magnificent Catastrophe: The Tumultuous Election of 1800, America’s First Presidential Campaign (New York: Free Press, 2007).

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sermons and speeches, pamphlets and petitions, editorials and essays. So what accounts for the thunderous silence accompanying the establishment clause? The dog that did not bark in the Dartmoor night was silent because nothing threatening was happening, and that was the clue that unraveled the Holmesian mystery. Had something significant been going on, the dog would surely have sounded the alarm. Without needing to stretch the analogy so far as to call late-eighteenth-century congressmen, editorialists, and pamphleteers barking dogs, we can, nevertheless, say with confidence that if the establishment clause was seen by its contemporaries as attempting to settle, once and for all, highly controversial church-state questions, there would have been a much less desultory debate in the Congress, followed by an outpouring of contentious commentary. That there was no such debate, either recorded in the Annals or described in private letters and papers or other published materials, is one of the most significant facts that we must take into account in trying to determine the clause’s original meaning. Any hypotheses about the original intentions or understandings of the establishment clause need to be tested not only as to their consistency with the documentary record but, equally importantly, with the fact that the clause engendered no public controversy – it must have been as unthreatening to the standing order as to its bitter opponents, as palatable to staunch New England Congregationalists Oliver Ellsworth and Roger Sherman as to the author of the Memorial and Remonstrance against Religious Assessments.4 A reading of the establishment clause that makes it noncontroversial to the founding generation will surely be highly controversial to this one, for virtually all voices in the originalism debate have found clear answers to difficult questions in the history of the establishment clause, from strict separationism to nonpreferentialism, from no power to launch a new establishment to no power to threaten existing ones. In every case, these interpretations are based on the assumption that the establishment clause represented the triumph of one view of church/state relations over all others: It was a Madisonian victory over the advocates of state churches, or a bit of New England jujitsu that flipped a disestablishmentarian proposal into a shelter for Connecticut Congregationalists, or a repudiation of nonpreferentialism by a secular and 4

It should be noted that my argument about the documentary record in this chapter is not based on the assumption that the existing records are accurate in every respect; they undoubtedly are not. See Chapter 5, note 24. My argument is that the channels of both private and public communication were open – via letters, sermons, petitions, speeches, or otherwise – and that people did not avail themselves of that opportunity to attack the establishment clause as a violation of their deeply held beliefs about church and state.

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separationist Senate, and so on. All of these putative original intentions fail the “milk and water” test because they would have created far too much controversy – as, in fact, they did when they were subsequently proposed as appropriate interpretations of the clause. It is hard enough to believe that any one particular church-state view could have achieved such ascendancy in 1789, but even harder to imagine that everyone who disagreed with that view went down to a silent defeat. Republicans complained when Adams declared fast days, and Federalists wailed when Jefferson did not. Madison’s refusal to incorporate a church led to disagreement in the Congress and newspaper articles in opposition. The Sunday mail controversy lasted a century. People cared enough about these kinds of issues to make a fuss about them. Our task, therefore, is to figure out what was going on with the adoption of the establishment clause that allowed shrewd and interested observers to see it as merely one ingredient of a constitutional sugar pill (“anodyne to the discontented,” in Edmund Randolph’s words) that Congress could administer harmlessly to those who had agitated for a Bill of Rights. We might start by taking the documentary record at face value. The sense of the few relevant comments from the ratification debates is that some people feared that the larger Protestant denominations might join together and seek to become the national church. Whether they meant the national equivalent of the New England ecclesiastical system or a more formalized American counterpart to the Church of England is impossible to know, and it is likely that different people assumed quite different things, much as Isaac Backus and “Hieronymus” could have such a nasty newspaper debate in the late 1770s over what “establishment” meant and whether Massachusetts had one. Irrespective of what various people thought would constitute a national church, they certainly did not want one, and on that point all could agree, as can be seen clearly in the comments in the first Congress where, again, all substantive discussion revolved around the prohibition of a national religion. So, that is it. Nothing about separating church and state or creating a secular state, which, as Hamburger has demonstrated, are concepts that would have been met by many with derision or disbelief – and certainly with public disagreement. Nor was there any sense of shielding state-level ecclesiastical laws from federal meddling.5 What Americans of the late eighteenth 5

It is likely, however, that the founders’ sense of federalism (i.e., “plain vanilla” federalism rather than any sort of enhanced federalism) would mean that the states’ ecclesiastical laws had nothing to fear from Congress.

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century saw in the establishment clause was a ban on whatever they thought a nationally established church would look like. Only that concept was enough of a “Mom and apple pie” proposal that it would engender no enthusiasm either pro or con. That is why it could be described as part of a collection of unimportant and noncontroversial amendments. The expressions “milk and water,” “anodyne,” “whip-syllabub,” and “tub to the whale” were all variations on the same theme: People were being asked to pledge allegiance to obvious things in which they already believed, in this case: no national religion. In contemplating this milk-and-water establishment clause, it is important to appreciate that it was not the statement of a principle of secularism, separation, disestablishment, or anything else. It was the answer to a very specific question: Would the new government countenance a move by the larger Protestant denominations to join together and form a national church? The answer was no. There would be no “Presby-gational” Church of the United States established by Congress. This would have been an extremely unlikely event in any case: The Presbyterians had formally forsworn any such ambitions in 1788, and the Congregationalists, as their history would soon demonstrate, were much more inclined toward splitting than lumping, a tendency that would lead to the end of state support for churches in New England in the early nineteenth century. And so, the establishment clause could enjoy the support of pillars of the New England establishment such as Fisher Ames and Oliver Ellsworth as well as the Virginia dissenters’ champion, James Madison. The establishment clause meant that there would be no American equivalent of the Church of England, not that there was a constitutional commitment to some principle that would henceforth regulate the relationship of religion and government, because any such principle would have destroyed the clause’s milk-and-water characteristics. Those who favored a Justice Story–like Christian nonpreferentialism could embrace it as much as the Reverend Leland and his fellow proto strict separatists among the Virginia Baptists. At the time it was adopted, the establishment clause addressed one simple noncontroversial issue, and the list of those who supported it demonstrates that it cannot reasonably be seen as encompassing a philosophy about church and state that can somehow be applied to modern issues in the same way that other clauses in the First Amendment – freedom of religion, speech, and press – can potentially be read as enunciating broad principles to which the nation has committed itself. It thus belongs in a category with the largely overlooked Third Amendment’s prohibition on quartering peacetime troops in private homes without the owner’s consent.

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Both provisions reflected very specific concerns of individuals in the Founding Era and neither provides a constitutional foundation for grand theories of the proper relationship of either church and state or soldiers and civilians. This milk-and-water interpretation runs counter to twenty-first-century instincts honed by a century or more of constitutional triumphalism that has been promulgated by generation after generation of historians. Many have hailed the adoption of the Constitution as the first example of a state without an established religion in the history of Western civilization, which would surely have been a momentous occasion.6 Just one example of this historiographical trend is Joseph Ellis’s recent American Creation, which identifies five lasting contributions of the “founding generation, one of which is that the framers created the first wholly secular state. Before the revolution,” Ellis writes, “it was broadly assumed that shared religious convictions were the primary basis for the common values that linked together the people of any political community, indeed the ideological glue that made any sense of community possible.”7 But in the Constitution, “[b]y insisting on the complete separation of church and state, the founders successfully overturned this long-standing presumption.”8 It is worth pausing at this point to ask how this concept – indeed this enduring achievement – could have been so noncontroversial. As Ellis points out, there were centuries of devotion to a theology dear to the hearts of many Americans positing that the state required religion (in particular, Protestant Christianity) to make men good citizens. What he does not say is that many people continued to believe that religion and morality were necessary to good government, and that they did not imagine that America was a “wholly secular state.” Where were those voices at the time of the First Amendment? The answer is that, in thinking about the First Amendment, people did not believe that they were answering the question of whether

6

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8

As Daniel Walker Howe notes, “Ever since Constantine the Great had made Christianity the established religion of the Roman Empire, the Western world had typically connected church and state. Now, the Americans undertook to experiment with their separation.” Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815– 1848 (New York: Oxford University Press, 2007), p. 165. According to Howe, “Americans eventually came to think of the separation of church and state as one of the achievements of the Revolution, and as guaranteed by the Bill of Rights. Actually, these common beliefs are but half-truths. The Revolution separated church and state in those places where the Church of England had been established in colonial times. But in several New England states, Congregationalist religious establishments remained in place” (p. 164). Joseph P. Ellis, American Creation: Triumphs and Tragedies at the Founding of the Republic (New York: Alfred A. Knopf, 2007), p. 8. Ibid.

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America is, or should be, secular or religious. They were not being asked to compromise their long-standing views on church and state. The simple question addressed by the establishment clause was whether there would be one national church. Even that question did not seem very important. The establishment clause had remarkably few supporters and no real opponents. Only four states had offered non-establishment amendment proposals prior to the First Congress, and there is no record of any pro-establishment movement on a national level. The records show that hardly any attention was paid to religion in the ratification and congressional debates. Even those who championed amendments on the subject of religion – take, for example, Patrick Henry – were hardly Jeffersonian in their church-state views, and some of them may, in fact, have merely been “playing the religion card” as a tool for getting evangelical voters to oppose the Constitution in the hopes of further diminishing the powers of an already weak federal government. These were the “discontented” anti-federalists who could be dealt with by the administration of an “anodyne” appeasement, and the First Congress successfully delivered it without, in fact, changing or threatening anyone’s views on church-state topics. The adoption of the establishment clause thus did not create an opportunity for people even to raise any controversial church-state issues.9 9

In assessing this approach to the establishment clause, it is worth thinking about just how persuasive a dog-not-barking argument is. After all, Holmes could have been led astray if the dog had been muzzled or distracted by a pound of hamburger. In this case, the lively church-state debates five years before and again ten years after the adoption of the Bill of Rights demonstrate that Americans of the Founding Era were sharply divided on the basic principles underlying church-state relationships and that they were quick to air those differences in public. Moreover, all of the “milk and water” comments represent testimony that people were paying attention, but there was nothing for them to be agitated about. Accordingly, it is very unlikely that a broad swath of the American population believed that the establishment clause had settled, once and for all, on the core principle of disestablishment or of separation of church and state, or anything else beyond choosing not to have a national church. In this particular case, the “dogs” on both sides were neither muzzled nor distracted. The most reasonable interpretation of the data, in light of the historical environment, is that no principle broader than no-national-church was seen by the public as the meaning and import of the establishment clause. To be sure, some people may have read the clause as embodying principles consistent with their personal viewpoints (as we continue to see among interpreters today), but it seems appropriate for originalists to look for a widely shared public meaning since the underlying theme of originalism is that the proper interpretation of the Constitution is limited to the understanding at the time of the “formal, public, sovereign, and consent-conferring act.” Jonathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore, Md.: Johns Hopkins University Press, 2005), p. 2. That is, if originalism is justified by an appeal to the fact that the Constitution should be interpreted in light of its meaning at the time of a democratic act of “We the People,” it seems most appropriate to look for evidence of widely shared, not isolated or idiosyncratic, original understandings.

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In thinking about the public understanding of the establishment clause, we could speculate about which side might have prevailed if a national church-state referendum had taken place between the clause’s adoption in 1789 and its ratification in 1791, and modern originalists often act as if that is exactly what happened, but the historical record does not give us that luxury. To the extent that long-term trends in popular opinion could be a useful guide, however, it may be interesting to note that until the Supreme Court got heavily involved in resolving church-state issues on a national basis in the twentieth century, on those relatively rare occasions when the establishment clause appeared to stand in Congress’s way, the political process almost always reversed the outcome. That is, decisions that sound like strict separationist acts of the executive or legislative branches – or, at least, broader readings of the establishment clause than a prohibition of a “national religion,” such as Madison’s anti-incorporation stance, the refusal of Jefferson and Jackson to declare days of prayer, and the Congress’s refusal to stop mail delivery on Sunday – were subsequently ignored or reversed, typically in response to popular demand or political pressure. These observations are not, of course, originalist insights, but they remind us that there have been many, from the Founding Era to the present, who have seen the nation in explicitly Christian terms, while numerous others have not. Nevertheless, as we survey the relationship of the establishment clause to federal action over time, one lesson becomes clear: At least until the middle of the twentieth century, it is hard to find significant instances of the federal government being permanently forestalled from doing something it wanted to do in the realm of religion solely by virtue of the establishment clause, although the timetable for political change could be quite lengthy, as we can see in the nearly hundred-year war over the Sunday mails. Yet, at each juncture, there was ardent opposition, reminding us that there have always been multiple sides to this argument. Strict separationists point to a proud heritage with roots dating back at least as far as Roger Williams, John Leland, and Thomas Jefferson, but, to put these eminent and articulate spokesmen in their historical context on church-state issues is to realize that their views have become far more mainstream in our era than when first written. During his life, Williams was, quite literally, a voice crying in the wilderness of Rhode Island;10 the peripatetic Leland was prone

10

Timothy Hall notes that “[n]o library catalog in colonial America listed [Williams’s] works,” and McLoughlin concludes that “almost no one in colonial New England ever praised his experiment, sought his advice, quoted his books, or tried to imitate his practices.” Timothy L. Hall, Separating Church and State: Roger Williams and Religious Liberty (Urbana: University of Illinois Press, 1998), p. 116; McLoughlin, New England Dissent, p. 8.

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to stricter stands than many of his Baptist colleagues;11 and the Danbury Baptists appear to have buried Jefferson’s now-famous “wall of separation” letter. All of these early American voices are largely familiar to us because some nineteenth- and twentieth-century historians have found them to be kindred spirits. They see Williams’s colonial wall dividing the garden of the church from the wilderness of the world as just another snapshot of Jefferson’s wall of separation between church and state, pictured yet again in Grant’s pledge to keep church and state forever separate, all of which can be viewed as the solid and secure foundation of the Supreme Court’s Everson-based modern church-state jurisprudence. Although this scholarly enthusiasm for our strict separationist forefathers may imply broader popularity for Jeffersonian church-state views than may have actually existed in the Founding Era, there is no doubt that religious dissenters, and eventually many others, have provided a vocal and regular counterpoint to any efforts to link religion and government at federal or state levels. In the end, there is just one major exception to the general rule that church-state issues inevitably ignite controversy: The only federal churchstate practice that encountered almost no resistance on constitutional grounds was the one act that most clearly resembled the worst behavior of the classic European establishments: state-sponsored evangelism that was sometimes little short of forcing the Native Americans to choose between extermination and converting to Christianity. If we were to interpret the establishment clause in light of the one area where the federal government spent the most money, time, and effort on religion (both in the territories and within the states themselves), and if we were to look for the most consistent and least controversial church-state interaction for a full century after the adoption of the Bill of Rights, we would abandon Jefferson’s “wall of separation” and Madison’s Memorial and Remonstrance in favor of federal Indian policy. From the time of the Continental Congress, the country was paying for religious missions to the Indians, an evangelical outreach that continued through each successive presidential administration. Even as separationist vocabulary became increasingly popular in the nineteenth century, and constitutional amendments were introduced to prevent state-level funding of

11

See, e.g., McLoughlin, who cites Leland’s eccentricity. William G. McLoughlin, New England Dissent, 1630–1833 (Cambridge, Mass.: Harvard University Press, 1971), p. 51, n. 33. Hamburger calls his views “unconventional” and notes that he, along with fellow Baptist Nehemiah Dodge, were “nearer to Jefferson’s separation of church and state than any other Baptist leaders.” Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), p. 170.

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church-related schools, the federal government continued to support religious education for the Indians. In fact, in President Grant’s post–Civil War Peace Policy, the mingling of church and state grew even closer than had existed before the Fourteenth Amendment was adopted, with churches put directly in charge of government agencies, all in the hopes of ensuring domestic tranquility and promoting the general welfare. But if we read the establishment clause through this lens, what is left of it? That is, if federally funded evangelism, ministers, and priests on the public payroll and churches and church schools built with government funds are all constitutional, it is hard to imagine what could possibly link church and state closely enough to violate the establishment clause.12 Constitutional History and Constitutional Interpretation Throughout United States history, church-state battles between the spiritual progenitors of the nonpreferentialists and the strict separationists raged from well before the Bill of Rights until the Fourteenth Amendment (and thereafter). Perhaps the one observable difference between those two constitutional benchmarks is that by the 1860s, it looks like the establishment clause had actually taken on the principle of disestablishment – and, indeed, a commitment to the separation of church and state – that had not been part of the eighteenth-century discussions. For example, the Democratic Party–modified Blaine Amendment, which was essentially an unenforceable commitment to non-establishment at the state level, was adopted by an

12

The short answer may be that if the Indian policy is our guide, then there is virtually nothing that is out of constitutional bounds, or at least nothing that Protestants can agree upon, which might be the key to thinking about the establishment clause through its first century and a half. Disputes within Protestantism, not conflicts between Protestants and other religions (or irreligion), drove many of the church-state battles. The most prominent church-state disputes leading into the First Amendment were the general assessment battles in Massachusetts and Virginia, and in both cases the battle lines were principally drawn between those Protestants who thought that the state should levy taxes to fund churches and other Protestants who disagreed. Nearly half a century later, the Sunday mails dispute featured, in Paul Johnson’s words, “rich Christians . . . fighting in public.” Paul E. Johnson, A Shopkeeper’s Millennium: Society and Revivals in Rochester, New York, 1815–1837 (New York: Hill and Wang, 1978), p. 88. As Hamburger has demonstrated, the concept of the “separation of church and state” finally became a respectable position – as opposed to an epithet – when Protestants could unite around the banner of separation for the greater good of attacking Roman Catholics. And that rhetoric of separation was entirely consistent with prayers and Bible reading in the schools and with pouring federal funds into Indian missions. Whether the phrase was “respecting an establishment of religion” or “separation of church and state,” Americans molded the words to fit their current political and theological visions of how religion and government should relate.

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overwhelming vote of the House. And both party platforms claimed to support the separation of church and state, showing again that this principle – or at least this vocabulary – had become deeply ingrained in the American psyche. Yet there seems to be no greater agreement over how church and state should interact at the time of the Fourteenth Amendment than there had been in 1789. The language had changed – as Hamburger has shown, “separation” was transformed from an epithet to something like a universal truth – but the meaning of this newfound principle was so fluid that people appearing anywhere on the American church-state spectrum – from militant secularists to devout advocates of a Christian nation, from proponents of parochial schools to anti-Catholic nativists – could credibly claim that their views were fully consistent with the all-American principle of the separation of church and state. In other words, the principle of separation was largely uncontested (even by the Roman Catholics and Democrats at whom the language was regularly hurled, usually on the issue of parochial schools) but it did not stop people from enlisting religion in the service of their political platforms and vice versa. Even while preaching the dogma of separation, Grant turned over government agencies to the churches; the pro-Blaine Amendment Republicans in the Senate wanted to ban parochial school funding while ensuring a place for Bible reading in the schools; and so on. If, as Amar has argued, the Fourteenth Amendment incorporated the First Amendment as it was understood by the public in the 1860s,13 then we have clearly inherited a principle of separation. But that principle represented, as had the original establishment clause, little more than noncontroversial language that one and all could embrace without actually modifying their views on how religion and government should relate to each other. It was this principle that arrived at the Court’s doorstep in Everson. At the time the briefs were filed, the principle of separation was malleable enough that both sides could claim its validity and appropriateness. But by the time Justices Black and Rutledge were done with their opinions, the one-size-fits-all attraction of the “wall of separation” phrase was transformed into a sharper strict separationism, driven at least in part by the fears of an authoritarian Roman Catholic Church that were prevalent among intellectuals at that time. A milk-and-water, principle-less amendment in 1789, which became a principled but still milk-and-water concept in the 1860s, gave way first to a tool for addressing concerns about the influence of the Roman Catholic 13

See Akhil Reed Amar, The Bill of Rights (New Haven, Conn.: Yale University Press, 1998), pp. 246–57.

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Church, especially in education, and later to a springboard for the constitutionally mandated neutrality or even secularism that appeared in a number of the subsequent Supreme Court decisions. Whatever we might think about the Court’s strict separationist rationale in Everson and its progeny as a matter of sound public policy, it is not built on the originalist foundation of the meaning of the establishment clause at the time of either the First or the Fourteenth Amendment. With this complicated background, how should the Supreme Court bring history to bear on modern constitutional issues? The answer to that question may reside less in any specific aspect of eighteenth- or nineteenth-century church-state relations than in the accompanying issue of the appropriate limits of judicial review, that is, On what basis can the Supreme Court overturn an act of federal or state governments on constitutional grounds? There are undoubtedly more competing theories of judicial review than there are methods of originalism, and there is no room in this volume to do justice to every one of them. Suffice it to say that people argue strenuously over the degree to which justices should be able to reverse an otherwise proper act of the executive and legislative branches of government, with some focusing on the Supreme Court as the last best hope of the disadvantaged and disenfranchised, while others fear an oligarchic rule by an unelected judiciary. In the Venn diagram of constitutional interpretation, there is a region of overlapping territory shared by the theories of judicial review and originalism. The arguments in this common space relate to how justices should use historical analysis in light of all of the other tools that could be employed in the process of constitutional interpretation. Participants in these discussions tend to fall into one of two camps. Originalism “Hawks” hold that the Court should not (indeed cannot legitimately) invalidate a law unless the original history provides a clear and unambiguous mandate to do so. For the Hawks, then, the Court must let the democratic process have its way unless (1) we have a clear view of the history, and (2) the history provides an equally clear view of the constitutional answer. Michael Stokes Paulsen, speaking for the Hawks, has written that the “enterprise of constitutional interpretation . . . consists of giving to the Constitution’s words and phrases the meaning they would have had, in context, to informed readers of the language at the time of their adoption as law, within the relevant political community.”14 In applying this original meaning, courts must exercise 14

Michael Stokes Paulsen, “How to Interpret the Constitution (and How Not To),” Yale Law Journal 115 (2006): 2037, 2056.

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self-restraint: “Judicial invalidation of legislative or executive action requires the existence of a sufficiently determinate constitutional rule of law, so that it can fairly be said that the legislative or executive action violates a rule supplied by the Constitution.”15 For Paulsen, “a decision invalidating political action where the constitutional text is vague or ambiguous . . . is simply an incorrect constitutional decision.”16 Meanwhile, originalism “Doves” would provide the Court with far greater power to act in the absence of a historical mandate. They take the position that the Court, following precedent or the common law (or employing any other interpretive tool), is free to strike down a law as long as its decision does not manifestly contravene the command of history. So if the original meaning is open to varying interpretations, or if the history simply does not provide a clear answer, then the justices may look elsewhere for guidance. The Doves found voice in the 1992 case of Lee v. Weisman,17 in which the Court considered the constitutionality of a prayer at a public school’s graduation ceremony. Seeking to rebut the standard nonpreferentialist arguments, Justice Souter cited Everson’s Black/Beard “no aid” doctrine, outlined its use by the Court in numerous cases, and concluded, “Such is the settled law. Here, as elsewhere, we should stick to it absent from compelling reason to discard it.”18 He then reaffirmed an Everson-like history of the establishment clause influenced heavily by Laycock’s writings,19 which led him to state that “on balance, history neither contradicts nor warrants reconsideration of the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.”20 For our current purposes, Justice Souter’s dismissal of nonpreferentialism is less important than his Dovish originalism methodology in which history must provide a “compelling” case to persuade the Court to disregard 15

16 17 18 19

20

Michael Stokes Paulsen, “The Intrinsically Corrupting Influence of Precedent,” Constitutional Commentary 22 (2005): 289, 296, n. 18. See also Paulsen’s “The Irresponsible Myth of Marbury,” Michigan Law Review 101 (2003): 2706, and “The Most Dangerous Branch: Executive Power to Say What the Law Is,” Georgia Law Journal 83 (1994): 217. Ibid. Lee v. Weisman, 505 U.S. 577 (1992). Ibid. at 611. Ibid. at 615. Souter is particularly taken with Laycock’s focus on the Senate debates as demonstrating a clear dismissal of language that would have permitted nonpreferential aid to religion. See Douglas Laycock, “The Origins of the Religion Clauses of the Constitution: ‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent,” William and Mary Law Review 27 (Summer 1986): 902–6. Laycock wrote an amicus curiae brief in Weisman on behalf of the American Jewish Congress. Weisman, 55 U.S. at 616.

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established precedent. Nevertheless, it may be worth observing that Justice Souter may have become so distracted by tilting at nonpreferentialism as a grand theory that he missed the substantially more compelling argument for the constitutionality of ceremonial prayer, which was the central issue in Weisman. Striking down a graduation prayer is frankly hard to justify even for a Dovish originalist. It essentially requires the Court to latch on to certain statements by Jefferson and Madison as defining the establishment clause’s original meaning (and to discount Madison’s presidential prayers by his much later unpublished writings) and, at the same time, to ignore the actions of the First Congress, many other congresses, and Presidents and, perhaps, most importantly, to overlook the milk-and-water characteristics of the First Amendment – such a common and widespread practice as government-sponsored prayer could not reasonably have been permanently eradicated without some degree of public protest. However we may come out on other aspects of government involvement with religion, ceremonial public prayer is undoubtedly one of the most securely provenanced elements of the First Amendment’s historical record. Much the same could be said for a small handful of other practices, including legislative and military chaplains, church services on public property, and Indian missions. We may or may not think of these practices as sound legislative policy, but a fair reading of the history should lead both Doves and Hawks to conclude that an originalist interpretation would find them constitutional under the establishment clause. The milk-and-water debates and commentary should be reason enough, but, on top of that, the weight of consistent practice before, during, and after the adoption of the Bill of Rights provides a compelling historical case. In looking at these time-honored traditions, we should resist deriving a nonpreferential principle from them, however. Rather than providing nonpreferential aid to religion in general, these activities were almost always unabashedly Christian – and Protestant – in form and substance. They may have been designed to accommodate the dominant religious affiliations of America’s political leadership, but they certainly were not broadly inclusive of the manifold forms of American religiosity at the time, nor did they reflect any significant concern about whether the government was perceived as endorsing or favoring certain forms of religiosity (e.g., Christianity) over others. Federal church-state policy in both the eighteenth and nineteenth centuries typically favored Protestantism and even more clearly disfavored politically unpopular religions such as Native American religion and, later, Mormonism. Nonpreferentialist ideas of promoting some form of “religion in general” – and, by the same token, strict separationist concerns

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about offending nonbelievers or showing official favoritism toward specific religions – are distinctly modern creations for which there is virtually no originalist support. Moreover, and perhaps even more important for our purposes, many of these examples of so-called aid to religion were not really so much for the benefit of religion as for the good of the government. Nonpreferentialism often appears as an argument for the government to accommodate the religiosity of the American public, but many examples of federal church-state activities seek to achieve far more practical than pious endpoints. Giving thanks to God for the nation’s blessings, for example, may have been a theologically proper thing to do, but it also looks like an attempt to garner more blessings in the future. Why else would there be so much political pressure on Madison to declare a national day of prayer during the dark days of the War of 1812, or on Jackson to do so during a cholera epidemic?21 We can see this national Erastianism even more clearly in federal Indian policy, where any sense of accommodating the religiosity of the American people was far less important (if at all) than addressing national economic and military issues. President Grant wanted to turn the Indians into Quakers because he hoped that converting them into pacifists would be cheaper, easier, and perhaps more humane than killing them, not because the General was seeking to aggrandize the Society of Friends. The federal government sought to use whatever tools might help it accomplish its political, economic, and military goals; in doing so, religion was regularly used as what Madison would call an “engine of civil policy.”22 These efforts were designed not to aid or support religion as much as to tap into the power of religion for the sake of nation building. Similarly, when religion might get in the way of economic and geographic expansion – such 21

22

Moreover, the content of the declarations made it clear that they were addressed not only to God but to American voters. Much as Jefferson may have used his failure to declare fast days to make a Republican political statement, Adams and the Federalists also used them for partisan purposes. As Dickson notes, “Adams’s decision to reinstitute the fast may have been . . . a conservative leader using a time-honored means of calling [back] a wayward people . . . but . . . it was also part of a Hamilton-inspired Federalist campaign to eradicate the Jeffersonian opposition. The Alien and Sedition Acts represented the iron fist of Federalist coercion and the fasts the open hand beckoning a politically divided nation back to unity.” Charles Ellis Dickson, “Jeremiads in the New American Republic: The Case of National Fasts in the John Adams Administration,” New England Quarterly 60, no. 2 (June 1987): 187–207, 195. In the Memorial and Remonstrance, Madison says that the concept of the “Civil Magistrate” employing “Religion as an engine of Civil policy” is “an unhallowed perversion of the means of salvation.” Quoted in John F. Wilson and Donald L. Drakeman, Church and State in American History, 3rd ed. (Boulder, Colo.: Westview Press, 2000) p. 65.

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as when a ban on the Sunday mails would delay the arrival of important business information to farmers or merchants in the hinterlands – brandishing constitutional concerns allowed the entrepreneurial Colonel Johnson to clear the way for making the economy as efficient as possible. Eventually, the telegraph took the place of the mails in providing up-to-the-minute pricing information, and the wall of separation was lowered far enough to give the Sabbatarians their day. Once again, federal church-state policy was the servant of more pragmatic national goals. In the end, it may be that the clearest lesson of establishment clause history is that, for a century and a half, the political process resolved church-state disputes in favor of whatever viewpoint – or coalition of political and religious views – prevailed from one time to another. Sunday mails, Indian missions, church incorporations, and presidential prayers all came and went as the political winds blew from one direction to the next. While many people considered them to be matters of great religious, moral, and constitutional principle, they were typically resolved by practical politics. What changed this pattern was not the growing role of the federal government in acting like a traditional state, or even the constitutional event of the Fourteenth Amendment, but the nationalizing tendencies of the New Deal Supreme Court, which decided that church-state issues across the country would henceforth be resolved by the federal judiciary. The political process was thus made subject to the trump card of judicial review, and, in doing so, the Court established an enduring commitment to strict separationism thanks to Justices Black and Rutledge, who were either originalism Doves dressed up as Hawks or, perhaps, non-originalists who found the vocabulary of originalism to be convenient for their jurisprudential purposes. Black and Rutledge, with the assistance of historians Beard and Brant, set up what looked like a Hawkish originalism as the proper establishment clause interpretive methodology, and they triggered a deluge of books and articles all seeking to write the definitive history of the establishment clause, because, for Hawks, a different historical understanding leads inevitably to a different constitutional result. Thus began the high-stakes game of reading the minds of the framers. In the end, since the entry of the judiciary into the church-state arena was the crucial transformative event in the application of the establishment clause to federal, state, and local activities, it is now the battle over the appropriate limits of judicial review that will be more determinative of establishment clause jurisprudence than several dozen more historical tomes. The historical record is what it is; the big question is: What do we do with it? For originalism Hawks, it is hard to find a genuine mandate from the Founding

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Era beyond the desire to prohibit a national religion; we have no idea what that precisely meant, and it almost certainly meant different things to different people, but it surely permitted much more governmental interaction with religion than the Black/Beard no-aid formula. The understanding of the establishment clause at the time of the Fourteenth Amendment provides no greater guidance, except that the American commitment to separation was seen by one group or another as fully consistent with virtually every possible position on the church-state spectrum. Hawks then would give the political process the virtually free reign it had until the 1940s to employ religion as an engine of civil policy or, perhaps, to try to figure out how to accommodate the religiosity of the American people. There may be genuine arguments over whether a national religious establishment would encompass general assessment tax support for churches, since we saw a wide range of opinion on this definitional issue in the Founding Era, but any activities short of that formal a link between church and state would not fall under a Hawkish view of the establishment clause’s mandate. For Hawks, twenty-first century governments should have the same opportunities to draft religion into the nation’s political service as the eighteenth- and nineteenth-century governments. Doves should come to the same conclusion. The point of the “milk and water” analysis is that the adoption of the establishment clause reached no further than forbidding a national church or, perhaps, prohibiting a somewhat broader national general assessment, depending on which definition of “establishment” people had in mind. Even Doves then must see the Black/Beard interpretation as inconsistent with the First Amendment because any suggestion that the establishment clause originally meant to eliminate all connections between the government and Christianity would have met with considerable public outcry (“universal disapprobation,” in Justice Story’s words23), and would therefore have failed the milk-and-water test. By nature, however, Doves want to be able to look past the history, and they may be more inclined to take the view that the history is indeterminate. There being no definitive documentary record awarding a clear victory to any of the popular modern interpretations, the Doves may prefer to pick and choose among the various historians to adopt whatever approach they find most appealing or, alternately, to argue that all of the historians essentially cancel each other out, leaving Doves to abandon originalism altogether.

23

Story, Commentaries, p. 591. While Story may be overstating his case, he has good cause to believe that if the establishment clause was understood to be creating a genuinely secular state devoid of any connection to Christianity, there would certainly have been public outcry and opposition.

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Nevertheless, despite some valiant efforts to argue that the historical mandate is unknowable,24 which would leave Doves with the flexibility they seek to construct constitutional meaning from other sources, the milk-andwater nature of the amendment should restrict Hawks and Doves alike to the no-national-religion interpretation. In the end, the eighteenth- and nineteenth-century historical record most clearly supports the Hawks’ dearest philosophical premise, namely, that decisions in this arena should be made by the elected branches of government rather than by the judiciary. The relationship of religion and government underwent constant revision throughout the nation’s first century and a half, in each case via the democratic process rather than by judicial decisions. The legislative and executive branches of federal and state governments dealt with church-state issues as they arose, and they settled them in accordance with the politics of the moment. For Hawks, and probably even for Doves, a commitment to establishment clause originalism means that the Supreme Court should sit back and wait for the threat of the “national religion” the framers sought to prevent; short of that level of church-state overlap, the democratic process, not the doctrine of judicial review, should call the church-state tune.25 In sum, then, just as historians such as Bancroft, Brant, and Beard got us into this originalist quagmire, their successors – O’Neil, Pfeffer, Cord, Levy, and many others – have led us down a historical dead-end by superimposing a nonexistent strict separationism/nonpreferentialism dispute onto a constitutional record that shows no visible signs of these two convenient political principles or, in fact, of any kind of disagreement or political principle at all. But just because the framers were not debating these issues when they adopted the establishment clause does not mean that we can avoid them. The church-state battle will continue, and, no doubt, Jefferson,

24

25

See, alas, Donald L. Drakeman, Church-State Constitutional Issues: Making Sense of the Establishment Clause (Westport, Conn.: Greenwood Press, 1991), where I focused on the Founding Era’s “lack of interest amounting virtually to apathy toward the establishment clause,” leading me to pronounce the original intentions as “unknowable” rather than seeing the lack of interest itself as strong evidence of what was happening (p. 71). Like the dogged but determined police inspector speaking to Holmes in the quotation at the opening of the chapter, I failed to appreciate the importance of the dog not barking. This conclusion provides more legislative discretion over church-state issues than I am comfortable with as a matter of public policy. Generally speaking, I tend to favor moderate positions on church-state issues, and I am not convinced that legislatures will do the same. But the goal of this book was to assume an originalist methodology and to let the historical chips fall where they may, not to defend originalism or promote a particular church-state policy.

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Madison, and all of the other usual suspects will be summoned for aid. But in doing so, it might be helpful to shift the methodological focus. The framers may well have had some good insights into church-state issues, even if those ideas were not codified in the Constitution.26 Simply because so many establishment clause arguments have been couched in originalist terms does not mean that originalism must continue to define the national church-state debate. Instead of trying to make Madison, Jefferson, and the First Congress into committed nonpreferentialists, the O’Neill/Cord school might simply say: A somewhat more ecumenical approach to the Christian nonpreferentialism enunciated by Justice Story is a superior vision of church-state relations than any alternative. Meanwhile, a non-originalist Pfeffer/Levy contingent could say that a combination of Madison’s Memorial and Remonstrance with his Detached Memoranda, all summarized in Jefferson’s vaunted wall-of-separation phrase, best captures the modern American spirit. The Smith/Amar school could even hold that the framers’ commitment to federalism should trump nationalism in church-state matters, much as Madison drafted for Jefferson’s second inaugural, in which he said that “religious exercise[s] . . . have been left as the Constitution found them, under the direction and discipline acknowledged within the several States.”27 Each of these political principles has venerable roots and is likely to attract considerable popular support. The point is that the framers will be invoked not as speaking for a widely shared understanding of the founding generation as to what the establishment clause originally meant, but as thoughtful people whose opinions are worth considering.28 26

27

28

See, for example, Christopher Eisgruber, who argues against originalism as an interpretive methodology but who also notes the potential value of justices calling on history: “When the judge’s decision flies in the face of national electoral majorities, the task of reconciling justice and American public opinion will be especially challenging. Here historical argument may play a special role. By appealing to history, judges may attach a popular pedigree to unpopular decisions.” Christopher L. Eisgruber, Constitutional Self-Government (Cambridge, Mass.: Harvard University Press, 2001), pp. 126–7. James Morten Smith, ed., The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776–1826, 3 vols. (New York: W. W. Norton, 1995), vol. 3, p. 1364. Alternately, originalists might look to the free exercise clause, since Curry has pointed out that arguments based on the rights of conscience were more common than anti-establishment claims in the general assessment debates. See Chapter 3 above. Thus the creative archival excavation that we have seen from historians, justices, and many others may well be helpful in addressing modern church-state issues. In fact, without all of the impressive efforts at law office history, our modern church-state vocabulary would be all the poorer for, as we have seen, the federal record is sparse, rarely poetic or evocative, and sometimes quite distressing. Much of what we read from the Founding Era, or even the nineteenth century, grates on modern ears unaccustomed to denigrating “papists” or to denying civil rights to “Jews, Turks and infidels.” History is inevitably messier than our

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In Chapter 1, the goal set out for this book was to figure out what the original meaning of the establishment clause was, and my hope is that by this time the no-national-religion interpretation has been shown to be the result of the record speaking for itself. But, at most, that conclusion is an answer to the question, How was the establishment clause understood by the framers, ratifiers, and general public at the time it was enacted? It does not answer the more important question, which is, How should the Supreme Court interpret the establishment clause? Originalism has been a popular source of inspiration for the Court’s church-state jurisprudence, but it is certainly not the only possible approach. As Supreme Court Justice Breyer has written about the various tools of constitutional interpretation, “[M]ost judges agree that [certain] basic elements – language, history, tradition, precedent, purpose, and consequence – are useful [but that] does not mean they agree about just where and how to use them.”29 In this case, the history and a number of the Everson-inspired precedents are, in fact, in conflict, and, if tradition is our guide, then the most predictable outcome is that Americans will continue to argue about what we should do about it.

29

renderings of it, and while the record before us shows what the establishment clause meant to the founding generation, it defies an easy or clear answer to what the “true American tradition” of church and state might be, except perhaps that we have a grand and timehonored heritage of disagreeing about church-state issues. Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Random House, 2005), p. 8.

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Index

Adams, Jasper, 293–4 Alito, Samuel, 151–2, 153 Alley, Robert S., 16, 82 Amar, Akhil Reed, 77, 182, 190, 230–2, 243, 247, 336, 344 American Civil Liberties Union, 91–5, 98, 109, 112, 121, 142 Ames, Fisher, 144, 189, 208, 209, 214, 224, 231, 234–5, 260, 330 Backus, Isaac, 135–6, 166, 187, 190, 215, 225, 226, 249, 329 Bancroft, George, 2, 3, 8, 11, 12, 22, 36–8, 46–7, 49, 51, 61, 63–4, 69–70, 122, 140, 145, 147, 298, 343 Beard, Charles, 11, 110–11, 118, 133, 145–7, 152, 341, 343 Black, Hugo, 11, 14, 74, 79–82, 94, 98, 99, 100–22, 127, 131, 133–47, 149–53, 196, 259, 336, 341 Blaine, James G., 87–9, 96, 154, 160, 316–20, 335–6 Blanshard, Paul, 81, 104 Bradley, Gerard V., 6, 79, 82, 88, 128, 136, 177, 182, 214–16, 218, 221, 239 Brant, Irving, 11, 56, 81, 107, 123, 140–3, 144, 147, 149, 208, 341, 343 Breyer, Stephen, 345 Buckley, Thomas E., 50, 57, 61, 276, 277, 301

Burton, Harold, 100–1, 151, 153 Butler, Jon, 13, 253–5 Carroll, Daniel, 204–5 Carroll, Charles, 210, 238–9 Casto, William, 237, 240 chaplains, 159, 160, 164, 169, 175, 181, 258, 269–73, 339 Choper, Jesse H., 19, 35 Cobb, Sanford, 75, 96, 110–11, 114, 133–6 Cochran v. Louisiana State Board of Education, 98 Conkle, Daniel, 6 Cord, Robert, 15, 166–71, 175, 179, 211–12, 343–4 Corwin, Edward S., 83, 161, 162, 175, 243, 246, 249 Currie, David, 34, 35, 266, 269, 270, 273, 299 Curry, Thomas John, 16, 56, 183–91, 193–4, 206, 210–12, 215–17, 218, 219, 223, 224–8, 232, 236, 238–9, 242, 246, 250, 253, 255–7, 344 DelFattore, Joan, 71, 83–7 Douglas, William O., 78, 99, 106 Dreisbach, Daniel, 4, 15, 42, 47, 52, 61, 77, 83, 157, 162, 166–7, 220, 224–7, 230, 235, 254, 259, 266–7, 293–4, 301

369

Index

370 Eisgruber, Christopher L., 344 Ellsworth, Oliver, 210–11, 236–7, 240, 271, 328, 330 Esbeck, Carl H., 76, 166 Everson v. Board of Education, 10, 11, 12–15, 22, 78–148, 149–52, 156–7, 163, 166, 334–7, 338 Farrar, Timothy, 66 Feldman, Noah, 87, 261 Ferren, John, 104–6, 131–2, 145 Frankfurter, Felix, 33, 94, 98–9, 101, 120, 130, 150–4 George, Robert P., 6, 14–15, 77, 181–2, 213, 241 Gey, Steven G., 18 Gordon, Sarah Barringer, 24–8, 45, 276 Grant, Ulysses S., 31–2, 71, 87, 154, 311–17, 321, 334–5, 340 Green, Steven K., 18, 19, 242, 260–1 Greenawalt, Kenneth W., 93, 98 Greenawalt, Kent, 35, 231, 261 Hall, Mark David, 4 Hamburger, Philip, 42, 44, 57–8, 71–2, 80, 97, 191–4, 233, 282, 301, 329, 334–5, 336 Henry, Patrick, 23, 52, 54–6, 113–14, 116, 124, 125, 189, 199, 332 Howison, Robert Reid, 3, 11, 12, 22–3, 40, 49–55, 57, 59, 61, 70 Huntington, Benjamin, 126, 205–7, 211, 224, 228, 232, 235–8, 260 Hutson, James, 16, 203, 210, 254, 264, 266–9 incorporation doctrine, 76–8, 108, 111, 153–4, 160–1, 162–3, 175–6, 181, 182, 245, 246–9, 315 incorporation of religious organizations, 52–3, 125, 160, 273–84, 324 Indians, 68, 89–90, 159, 160, 170–1, 176, 181, 255, 305–14, 321, 334–5, 339–40

Jackson, Andrew, 164, 266, 333, 340 Jackson, William, 99, 100–1, 120, 130, 143, 153 Jefferson, Thomas, 2–3, 8, 21–2, 23, 38, 40–3, 46–9, 51–2, 54, 62, 63–4, 68, 72, 73, 74–5, 78–9, 94, 95, 98, 108, 110, 112–13, 114–15, 116, 117–18, 119–20, 121–4, 128–46, 150, 154–5, 157–9, 163, 169–70, 180, 210–11, 254, 259–60, 265–9, 273, 278, 281–4, 293, 329–34, 339, 343–4 Johnson, Richard M., 284–5, 298, 324, 341 Kent’s Commentaries, 43, 44, 66 Kersch, Ken, 11, 80 Kurland, Philip, 11 Laycock, Douglas, 16, 170, 178–9, 183, 189, 211–12, 213, 245, 338 Leland, John, 225, 252, 256, 257, 289, 301, 330, 333–4 Levy, Leonard, 15, 166–7, 171–8, 189–90, 194, 198, 213, 215, 227, 250, 255, 327, 343–4 Livermore, Samuel, 163, 193–4, 206–7, 233–4, 235, 245, 269 Lonberg, Nils, 10 Madison, James, 3, 11, 17, 21, 39–40, 41, 46, 53, 57, 62, 63, 68, 72–3, 74–5, 77, 78–9, 94, 98, 106, 112–15, 116, 122–47, 150, 154–5, 157–60, 163, 164–71, 175, 177, 180, 186, 187–9, 193, 199, 201, 203–10, 213–14, 217, 224, 229–33, 238, 245–7, 249, 254, 259–60, 266–81, 284, 294, 309–10, 321, 324, 328–34, 339–40, 344 Magrath, C. Peter, 22, 31–3, 36, 38–9, 42, 69, 70 Marshall, John, 5, 29, 271, 274 Martin, Jonathan, 10 McAfee, Ward, 31, 87–8, 316–20 McCollum v. Board of Education, 149–56, 157, 163

Index McConnell, Michael W., 44, 55, 228, 254 McGreevy, John T., 80, 104 McLoughlin, William, 42, 135, 198, 206, 219, 224–6, 234, 237, 243, 289, 305, 333–4 Miller, William Lee, 49 Moore, Laurence, 84 Morrison, Jeffry H., 49 Mun)oz, Vincent Phillip, 18, 56, 198, 199, 230, 242, 244 Murphy, Frank, 98, 99, 101, 131, 151 Murray, John Courtney, 93, 106, 147, 162, 166 National Council of Catholic Men and National Council of Catholic Women, 88, 93, 95–7, 121, 138 Native Americans. See Indians Noonan, John T., 53, 220–2 O’Brien, F. William, 156, 315, 318, 320 O’Neill, James M., 15, 95, 149, 157–67, 175, 343–4 O’Neill, Jonathan, 7 O’Neill, Robert M., 16 originalism, 19, 20, 35–6, 148, 158, 176, 247, 259, 263, 337–45 Parsons, Theophilus, 220–2, 223, 226, 227, 243, 252, 260, 313 Paschal, George W., 66 Paulsen, Michael Stokes, 7, 337–8 Permoli v. New Orleans, 28–9, 34 Pfeffer, Leo, 15, 95, 157, 161–7, 169–71, 189, 245, 275, 343–4 Powell, H. Jefferson, 5–6, 7, 13, 19 Rakove, Jack, N., 9–10 ratification, 214–16 Reed, Stanley, 98, 151, 154–6 Rehnquist, William, 68 religious tests for office, 37–8, 164, 237

371 Reynolds v. United States, 2–4, 10, 11, 14, 21–73, 75, 94, 106, 109–10, 112, 116–17, 122, 149, 263 Rutledge, Wiley, 11, 14, 74, 79–82, 99–102, 104–6, 108, 120–48, 151, 153, 159, 160, 177, 196, 216, 259, 283, 336, 341 Scalia, Antonin, 6 Schaff, Philip, 71, 265, 304, 322–3 Sedgwick, Theodore, 218–23, 224, 227 Semple, Robert, 3, 11, 12, 22–3, 57–64, 70, 110 Sherman, Roger, 167, 205, 210, 236–8, 240, 246, 264, 271, 328 Sherry, Suzanna, 13, 14 Smith, Steven D., 77, 179–81, 182, 230–1, 244, 258, 344 Souter, David, 4, 338–9 Stevens, John Paul, 14 Story, Joseph, 4, 64–5, 66, 72, 161, 168–9, 257, 276, 292–4, 321–2, 323, 330, 342, 344 Sweet, William Warren, 110–11, 133, 136–7, 139, 141 Thomas, Clarence, 232, 247–9 Tiffany, Joel, 65–6 Tribe, Laurence, 3, 107 Vining, John, 205, 210, 239–40 Vinson, Fred M., 99 Waite, Morrison R., 2–5, 8, 10, 11, 21–4, 31–50, 59, 60, 63–73, 97, 109–10, 112, 116–17, 122, 131, 133, 140, 145, 146, 196, 259, 298 Washington, George, 114, 160, 165, 264–5, 268, 271, 278 Whittington, Keith, 14 Williams, Roger, 166, 191, 333–4 Wilson, John F., 18, 23, 82, 257 Witte, John, 27, 218–19, 226, 245 Wood, Gordon, 4, 9–10, 18, 146