Establishing the History of the Establishment Clause

Larry Pahl

Overview.

The establishment clause¹ leading off the Bill of Rights, the profound attachment to America's founding governmental instrument, was conceived when a Lockean enlightenment² fertilized a Calvinist Puritanical womb³ ; was born in a stable filled with the incessant libertarian volleys of antifederalism⁴ ; nursed by a Jeffersonian mother⁵ and weaned by a domineering Protestant step-father⁶; matured increasingly by the legal guardian of secular relativism⁷ ; grows senile in the hands of a nursing home run by the divided management team of Christian Right and Secular Left; and could likely soon be placed in the tomb of a Constitutional amendment⁸ if it doesn't first expire from an inarticulate meaning at the hands of its bedside nursemaid, the Supreme Court.⁹ It is the purpose of this paper to do its small part in delaying or preventing the possible funeral.

Constitutional interpretation

The workbench on which the establishment clause finds itself--the prevailing intellectual culture of the Constitutional legal establishment--is, in the eyes of some, in need of repair work itself. The outlook and manner of Blackstone, once offering British and American law students a fixed jurisprudence, now offers only a prophetic title commenting on the state of Constitutional interpretation: The foundation stone of enlightened mechanical jurisprudence, supporting fixed constitutional principles, has indeed become black, at least for anyone who might be sympathetic to Blackstone, original intent, and the rule of law combined with political neutrality.

M. Stanton Evans laments that the Constitution's setting of limits on the federal government, "to all intents and purposes...is now defunct. In reality, we no longer have a Constitution, or anything that can be accurately depicted as constitutional law."¹⁰ Evans laments that the words of what has in some circles been considered one of the greatest documents produced by the mind of man have come to mean nothing other than what the ambitious policy-making of Supreme Court justices decides to make them mean. The Chief Justice and Justice Thomas joined Justice Scalia in accusing the Court they sit on of abandoning "text and history as guides."¹¹

Robert H. Bork says there are only two sides in the battle for the control of the law: "Either the Constitution and statutes are law...or they are malleable texts that judges may rewrite to see that particular groups or political causes win."¹² For Bork the great heresy taking hold of legal institutions is the denial that judges are bound by law. Bork claims the law is the only true check upon an unelected, tenured-for-life judiciary. And by "law" he means "the principles of the text, whether Constitution or statute, as generally understood at the enactment."¹³

Some of what Evans and Bork say here should be considered hyperbole given the content of some very recent decisions coming from the current high court. Chief Justice Rehnquist, delivering the Court's opinion in U.S. v. Lopez, a case involving a Texas 12th grade student who brought a gun to school and was charged with violating a federal statute¹⁴ , wrote:

We start with first principles. The Constitution creates a Federal Government of enumerated powers. As James Madison wrote, the power delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite...This constitutionally mandated division of authority was adopted by the Framers to ensure protection of our fundamental liberties...A healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front...

Under the theories that the Government presents in support of 922(q), it is difficult to perceive any limitation on federal power... Thus, if we were to accept the Government's arguments, we are hard-pressed to posit any activity by an individual that Congress is without power to regulate.¹⁵

Here is the respect for Constitutional principle Evans and Bork both say are absent from the Court but which they say shouldn't be. Here the Court is recognizing what the Constitution intends and "obeying" it. National power is prohibited beyond what is written. Never mind that a strict reading here happens to dovetail with the political views of the Court majority. For Bork, personal political views should be irrelevant to a judge.¹⁶ A justice should have the attitude of Sir Thomas More who told his son-in-law he would use the law to protect the devil himself¹⁷ --and More was no fan of the devil.

But what Bork might call sticking to constitutional principle--such as Justice Clarence Thomas' recent tart denial that there is "a racial paternalism exception to the principle of equal protection"¹⁸ --others see as a sell out of deeper principles of justice:

The Supreme Court Majority

The Gang of Five who sit upon the Court: Are bent on wiping out the Bill of Rights
As case by tragic case they sell us short,: Extinguishing the Founding Father's lights.
They've overturned a Richmond statute meant: To equalize the races by its terms
In ordering that triple ten percent: Of city contracts go to black-owned firms.
They turned the clock back in a second case: By making it impossible to end
Most racist treatment in the marketplace,: Reversing what had been this nation's trend.
Controlled by each and every Reagan clone,: This bench is now supreme in name alone.¹⁹

The battle over history

Within this general frame of differing outlooks on the Court's activity is the specific battleground of the meaning of the Establishment Clause--its founding history. Many skirmishes have been engaged here over the issue of the creation of the amendment and the intent of its framers. Two major differing outlooks are found among the combatants. The Chief Justice of the Supreme Court, William Rehnquist, by his position, can be considered the champion of one of the camps, with roots from previous centuries in, for instance, John Cotton and Patrick Henry, which favor government encouragement to religion. This camp, which includes current Supreme Court Justices Scalia and Thomas, believes the Establishment Clause erects no "wall of separation" between the church and the state, as Rehnquist writes in his dissent in Wallace v. Jaffree:

It would seem...that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations...The Establishment Clause did not require neutrality between religion and irreligion nor did it prohibit the federal government from providing non-discriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson...

The 'wall of separation between church and State' is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.²⁰

Hopefully, when Rehnquist says "bad history" here he means "inaccurate history," as in "bad historiography." That is, we assume that for "bad history" Rehnquist means something like this: "Those who say that the historical record indicates a desire in the Framers to radically separate church and state have not fairly surveyed the historical data, and have therefore inaccurately portrayed it." Let us assume that this is what Rehnquist meant because to accept what he has actually written here--that the separationist view is "bad history"--is to accept that Rehnquist is living in massive denial and self-deceit, apparently understanding that the Virginia history reveals a truly separationist intent on the part of the Framers and that he doesn't like this (actual) history.²¹ He calls it "bad" and says it should be abandoned. While that may be one way to eliminate a fact one doesn't like, it's hardly an exemplary one. So we will assume that Rehnquist means that the history offered by certain previous Courts, not to mention scores of respected historians, was poorly done, an inaccurate recounting of the history of that period.

The other polar camp in this debate, to which the message of Rehnquist is reacting, sees Jefferson and Madison as seminal Framing influences at the time of the First Congress, teaching that a complete separation of church and state was necessary for the health of the new republic.²² The view that the Clause requires a secular outlook usually accompanies this position.

Rehnquist, Scalia, and Thomas, in championing the opposing view, have become the darlings of the Religious Right, a movement which is in the process of mobilizing its supporters to back a religious liberty amendment to the Constitution. This amendment--alluded to in the introduction here as one that could bludgeon the Establishment Clause--will be dealt with later in this paper. Suffice it to say here that its intent and possible effect is a practical obliteration of the first provision of the Bill of Rights.²³

This embryonic amendment, presently being engineered to bypass the Supreme Court's handling of the establishment Clause in the modern era²⁴ , is built on a particular view of history--Rehnquist's "good" history.²⁵ What are these "good" and "bad" views? What are these two different histories--over which, says scholar William Lee Miller²⁶ , "hovers a great cloud of polemical literature and tendentious history"--which are competing for the prize of defining the Establishment Clause?

It is a question proponents from both sides²⁷ of the debate say must be engaged for the true Establishment Clause to be able to stand. Rehnquist wrote in his Jaffree dissent: "The true meaning of the Establishment Clause can only be seen in its history."²⁸ Certainly the proponents of original understanding²⁹ have always stressed the importance of history; the leading spokesman of originalism, Robert Bork, writes, "Law is a public act...All that counts is how the words used in the Constitution would have been understood at the time."³⁰ Without some kind of historical study about the use of words and ideas at the time of the crafting of the Establishment Clause, its meaning is open to manipulation.

The debate always moves at some point to the views of Madison and Jefferson; what they were and how controlling they were. Key texts cited are Jefferson's Virginia Statute for Religious Freedom and Madison's Memorial and Remonstrance, written to combat a bill in the Virginia legislature that proposed paying Christian teachers of multiple denominations with tax money. Few would argue with the view that the these two grand historical documents favor a separation of the powers of the church and the state.³¹

The Virginia statute states:

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...

That no 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....³²

Jefferson here makes it plain that the state cannot collect tax money to support religion "whatsoever;" to do so would require citizens to "support" religious worship, and be thus "burthened" in their "goods."

The Remonstrance

Madison's Remonstrance, called by Ralph Ketcham "worthy of Locke, Milton, or Mill," and reprinted in its entirety by Justice Wiley Rutledge in his dissent in Everson, marshals 15 points against using tax money for religious purposes. This writing is one of the most powerful affirmations of religious freedom written in North America. Following is a summarized outline of the Remonstrance's 15 points:

Religion can only be directed by conscience and reason; government has no role to play with respect to religion; permitting the majority sole rule can harm minorities.
The legislature would exceed its lawful authority in passing such a bill.
A warning against government interference with human rights.
Coercion in religion is an offense to God.
Civil magistrates (the state) is incompetent to judge religious truth; religion is an improper engine of state policy.
Christianity does not require state support to flourish.
History shows that state support of Christianity has meant its debasement.
Good government does not need assistance from an established religion.
The assessment would hold out a sign of "persecution" rather than "asylum" to other nations. The assessment differs from the Inquisition "only in degree."
The assessment might drive away present citizens by revoking "the liberty which they now enjoy."
It is folly to believe religious discord will be solved by the assessment.
Making Virginia a Christian state would discourage non-Christians from immigrating; furthermore it would lead to a hindering of diffusing the gospel.
It would be unwise legislation because attempts to enforce it would be problematic because so many citizens view it as "obnoxious."
A measure of the magnitude of the assessment ought not to be imposed without a clear majority of citizens favoring it.
A powerful defense of natural rights: Liberty of conscience is a "gift of nature." Freedom of conscience is the only policy consistent with deity.

Anticipating the argument that new exigencies of church and state demand new solutions to their interrelationship, Justice Rutledge in his Everson dissent says, while citing the Remonstrance, "The reasons underlying the Amendment's policy have not vanished with time or diminished in force...There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse."³³This is classic Madisonian doctrine.

The question the separationists must answer, then, is "Is it classic with the rest of the Framers?" Madison collated eighty amendments proposed by seven of the states in the form of the nineteen amendments he submitted to the House of Representatives in the First Congress.³⁴One of the nineteen was the original draft of our current First Amendment:

"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."

After proposing this amendment, he was a member of the committee of eleven to consider it, and then was the head of the House conference committee that negotiated with the Senate to produce its current wording.³⁵ Because of Madison's, "nor shall any national religion be established," accommodationists have ballyhooed that his intent for the establishment clause was only that it prevent a national establishment and not the larger and more encompassing separation of the Remonstrance. But Samuel Livermore, an Episcopalian from New Hampshire, proposed an improvement on Madison's wording:

"Congress shall make no law touching religion, or infringing the right of conscience."

Madison promptly withdrew his proposed amendment and Livermore's passed the House, 34 to 20. This fact is not mentioned by those who hang on the apparent meaning of Madison's first draft.³⁶ The lack of notes kept in the Senate's secret deliberations on the amendments has not kept hidden the fact that the more accommodationist amendments proposed--which would be what Rehnquist and the Religious Right would want in abundance--were twice rejected. As William Lee Miller concludes: "One may be allowed to infer that the majority in the Senate intended something more in the way of separation."³⁷ Some think the eventual wording from the conference committee was written by Madison.

The Political Battle

While it is an assertion that would cause pain to doctrinaire originalists, there is usually a political advantage being sought when one of the two groups is struggling to prove a certain historical point. Putting a "historical" spin on what is going on in the present--something we call political commentary--is in form no different than the spin that must inevitably be put on the past--something we call history. Whose spin on the present is correct--is health care a positive good or a positive evil for the U.S.?--is as impossible to be answered by a "neutral" observer as is whose historical spin is correct: Historically, what is the true intent of the Establishment Clause? To engage in the struggle to unearth the true history is inevitably to become embroiled in the current political controversy.

Patrick Henry thought the public encouragement of religion would advance the common virtue in Virginia and James Madison was sure it would not. Justice Scalia is certainly at least half correct, then, in his Lamb’s Chapel concurrence where he bases his rejection of the Court’s endorsement-of-religion test on his claim that those that "adopted our Constitution...believed that the public virtues inculcated by religion are a public good." What is not half correct is the failure to mention that Madison--certainly a key Founder--had severe reservations about the state being an agent in the promotion of religion as a "short cut" to get those "public goods." Whatever virtue might be gained by the public goods was lost by the public--as opposed to the private, religious--attempt to act as catalyst. That was the very reason Madison wrote the Remonstrance. The point in all this is simply to keep in memory that the division of opinion in the Founders’ day is still with us today. We thus seem wise in this inquiry to remember to keep an eye out for whose "ox is being gored" at any given time.

The most recent Supreme Court case involving the Establishment Clause, Rosenberger v. University of Virginia, provides an example. Representatives from both sides of America’s culture wars are on the current Court. Justices Thomas, Scalia and Rehnquist are Republican appointees who are prone to defend traditional religion and conservative principles. Justice Kennedy (Reagan) and Justice Sandra Day O’Connor (Reagan) are often found voting with conservative coalitions. These justices are certainly sensitive to the same influences which are causing Republican Presidential hopefuls Robert Dole and Phil Gramm to play up to the Relgious Right: The Right has an increasingly muscled political machine which will weigh in with power for its political favorites. The other Republican-appointees, Justice Stevens (Gerald Ford) and Justice Souter (Bush) have proven to be more independent thinkers.

Democratic President Bill Clinton has been a continuous target of the Religious Right during his presidency; his more liberal initiatives including encouragement of gays in the military and universal health care have kept him at sword’s edge with the Right. He has begun to verbally strike back in recent incidents including his comments about conservative talk radio; the nomination of Dr. Henry Foster for Surgeon General which was aborted by the pro-life insistence of many Senators; and the anti-conservative wave that followed the bombing of the Oklahoma City federal building. President Clinton’s high court appointees, Justices Ginsburg and Breyer, the only Justices on the court appointed by a Democratic President, were dissenters in the Rosenberger decision.

The nomination of Justice Clarence Thomas was heavily lobbied by the Religious Right. The five major players in the pro-Thomas coalition were Coalitions for America, the Family Research Council, Concerned Women for America, the Christian Coalition and the Traditional Values Coalition, all among the most powerful groups within the Religious Right. These groups decided to wage a more public and at times, more negative campaign than they had ever done in the past. The increased politicization of this confirmation battle specifically and the increased politicization in the nomination process generally in this century has, predictably, led to increased partisanship and politicization in the Court. Justice Thomas knows which groups went to bat for him in his very public and controversial confirmation hearings. He has not disappointed them in Rosenberger. Thomas’ concurrence in that decision was like the work of a good Scout doing his duty. The Religious Right has been increasingly vocal in their revisionist history of the context of the framing of the Establishment Clause. Thomas steps right up in his concurrence and lets it be known that the reason he is writing it is to set the record straight on the questions of history involved. He lays into the history sketched in Justice Souter’s dissent. The battle extends to the majority opinion written by Justice Kennedy who also takes potshots at Souter’s dissent in his majority opinion.

He writes, almost condescendingly, it seems, "it bears only passing mention that the dissent’s attempt to distinguish Lamb’s Chapel is entirely without support in the law." The Lamb’s Chapel case involved a church that sued a school because the church was not allowed to show there a video series by Dr. James Dobson. Dobson is one of the most powerful actors in the Religious Right with his daily radio program, Focus on the Family, which reaches more ears than any other programs except for those of Rush Limbaugh and Paul Harvey. The Supreme Court ruled that the Establishment Clause did not prevent the church from having the same opportunity as other groups to use school facilities for meetings in the evening. Jay Sekulow of Pat Robertson’s American Center for Law and Justice argued the case for the petitioners. Sekulow not only argued that there is a federal constitutional right to equal access in public fora for private religious speech, but also that the policy of the school "by targeting private religious speech for censorship from facilities made available to the public, Center Moriches [the school district involved] has violated the Establishment Clause of the First Amendment." The Supreme Court followed Sekulow in its decision.

Go to part 2.

| Footnotes |