Download Debate on Original Intent of Establishment Clause in US Constitutional History and more Study notes Religion in PDF only on Docsity!
ARTICLE
THE ORIGINAL MEANING OF THE ESTABLISHMENT
CLAUSE AND THE IMPOSSIBILITY OF ITS
INCORPORATION
Vincent PhillipMufzoz
INTRODUCTION
No aspect of constitutional law has been dominated more by
"originalism" than First Amendment Establishment Clause jurispru-
dence.' Although not every decision and not every approach invokes
the Founding Fathers,^2 their presence in modern church-state court
opinions is unparalleled. 3 Yet despite repeated appeals to James
Madison and Thomas Jefferson, both the original intention and the
contemporary meaning of the Establishment Clause remain sharply
Assistant Professor of Political Science at Tufts University. The author would like to thank Walter Berns, Eric Claeys, Daniel Dreisbach, Philip (^) Hamburger, Richard Garnett, Michael Greve, Robert (^) Goldwin, Nicholas May, Michael McConnell, Bryan McGraw, Kathryn Mims, Joh- nathan O'Neill, Adam Rick, Kate Rick, and David Tubbs for their comments on earlier drafts (^) of this (^) Article. All errors, of course, are the responsibility of the author. For a recent history (^) of"originalism" that (^) notes the importance of the First Amendment (^) in its development, see JOHNATHAN O'NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY 86-90, 151-52 (2005) (discussing how the mid-twentieth (^) century First Amendment cases (^) resulted in a greater focus on originalism). 2 For examples of Establishment (^) Clause jurisprudence that do (^) not rely on originalist intent,
see Justice Kennedy's "Coercion" test in Lee v. Weisman, 505 U.S. 577, 586-88 (1992), Justice O'Connor's "Endorsement" test in her concurring opinion in Lynch (^) v. Donnelly, 465 U.S. 668, 688, 690 (1984), and justice Burger's "Lemon" test in Lemon v. Kurtzman, 403 U.S. 602, 612- (1971). 3 According (^) to Donald L. Drakeman, (^) approximately (^100) federal and (^) state court decisions
have highlighted James Madison's role in crafting the religion (^) clauses of the First Amendment. Donald L. Drakeman, James Madison and the First Amendment Establishment of Religion Clause, in RELIGION AND POLITICAL CULTURE IN JEFFERSON'S VIRGINIA 219, (^219) (Garrett Ward Sheldon & Daniel L. Dreisbach eds., (^) 2000). Even Justice William Brennan, no champion of "originalism," claimed that in the context of prayer in public schools, "the line we must draw between the permissible and the impermissible is one which accords (^) with history and faithfully reflects the understanding of the Founding Fathers." Sch. Dist. v. Schempp, 374 U.S. 203, 294 (1963) (Brennan, J., concurring). In the same case, however, Justice (^) Brennan also stated that he "doubt[ed] that (^) [Madison and Jefferson's] view, even if perfectly clear one way or the other, would supply a dispositive answer to the question presented by (^) these cases" and that "[a] too literal quest for the advice (^) of the Founding Fathers ... seems to me futile and misdirected." Id. at 236-37.
JOURNAL OF CONSTFTJ VTIONAL LA W
contested. 4 Among contemporary scholars and jurists, in fact, less
agreement exists now about the Establishment Clause's original
meaning than when the Supreme Court first attempted to decide the
matter in Everson v. Board of Education.' The more historical research
devoted to the subject, it seems, the more contentious the debate be-
comes.
Not only has the debate continued, it has become increasingly
complicated. In the 2004 Elk Grove Unified School District v. Newdow
case, Justice Clarence Thomas advanced a federalist construction of
the Establishment Clause,^6 a position he reasserted in the 2005 Ten
Commandments case Van Orden v. Perry. According to Justice Tho-
mas, "the Establishment Clause is best understood as a federalism
provision-it protects state establishments from federal interference
but does not protect any individual right."^8 In Newdow, Thomas im-
plicitly rejected his earlier "non-preferentialist" interpretation, 9 an
approach that he had shared with Chief Justice William Rehnquist.
In the 1985 case Wallace v. Jaffree, then-Associate Justice Rehnquist ar-
gued that the Framers intended to allow governmental support of re-
ligion as long as the state did not prefer one sect over others.' °
Rehnquist's "non-preferentialist" construction itself was challenged
on originalism grounds by Justice David Souter, who championed a
4 For a discussion (^) of Jefferson's and Madison's roles (^) in the Supreme Court's (^) religion juris- prudence, see David Reiss, Jefferson and Madison as Icons in Judicial History: (^) A Study of Religion ClauseJurisprudence, 61 MD. L. REV. 94 (2002). 5 330 U.S. 1, 8-13 (^) (1947) (summarizing (^) the history of and (^) purpose behind the First (^) Amend-
ment's enactment); see also infta Part I.A for a discussion of Everson v. Board of Education. 6 See Elk Grove Unified (^) Sch. Dist. v. Newdow, (^542) U.S. 1, 45 (2004) (Thomas, J., concur- ring) ("I would take this opportunity to begin the process of rethinking the Establishment Clause. I would acknowledge that the Establishment Clause is a federalism provision, which, for this reason, resists incorporation."). 7 See Van Orden (^) v. Perry, 125 S. Ct. (^) 2854, 2865 (2005) (^) (Thomas, J., concurring) (^) ("1 have previously suggested that the Clause's text and history 'resis[t] incorporation' against (^) the States. If the Establishment Clause does not restrain the States, then it has no application here, where only state action is at issue." (citation omitted)). 8 Newdow, (^542) U.S. at 50 (Thomas, J., concurring). (^) It should be noted that Justice (^) Thomas
had suggested this position in passing in Zelman v. Simmons-Harris stating: (^) "The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government." 536 U.S. 639, 678 (2002) (Thomas,J., (^) concur- ring). 9 See Rosenberger (^) v. Rector & Visitors of (^) Univ. of Va., 515 U.S. (^) 819, 861-63 (1995) (^) (Tho-
mas, J., concurring) (arguing that the Establishment Clause does not "compel the exclusion of religious groups from government benefits programs that are generally available to a broad class of participants" but rather permits the participation of religious entities in neutral, even- handed programs). 10 Wallace (^) v. Jaffree, 472 U.S. 38, 113 (1985) (^) (Rehnquist, J., dissenting) (^) ("The Clause was also designed to stop the Federal Government from (^) asserting a preference for one religious denomination or sect over others. Given the 'incorporation' of the Establishment Clause as against the States via the Fourteenth Amendment..., States are prohibited as well from estab- lishing a religion or discriminating between sects.").
[Vol. 8:
JOURNAL OF CONSTITUTIONAL LAW
accurate? Is Justice Rehnquist's "non-preferential" approach or Jus-
tice Souter's "strict-separationist" interpretation correct? This Article
addresses these questions by reexamining the original meaning of the
Establishment Clause. Part I reviews the leading "originalist" inter-
pretations that have been set forth by members of the Supreme
Court. Part II begins my attempt to recover the original meaning of
the Establishment Clause through an investigation of the historical
and political^ context^ in which^ the^ Establishment^ Clause^
emerged. 6
Part III offers a detailed analysis of the drafting of the clause in light
of the historical and political contexts described in Part II. I con-
clude thatJustice Thomas's federalism interpretation most accurately
captures the Establishment Clause's original meaning. In his Newdow
opinion, however, Justice Thomas failed to consider the implications
of his federalist construction. Part IV focuses on those implications,
concluding that the Founders' original concern with federalism nec-
essarily means that the original meaning that animated the adoption
of the Establishment Clause cannot be applied to modern day incor-
porated "no-establishment" jurisprudence.
I. THE SUPREME COURT'S QUEST FOR THE ORIGINAL MEANING OF THE
ESTABLISHMENT CLAUSE
A. The Building of the "Strict-Separationist"Wall: Everson v.
Board of Education
Historical scholarship on the original meaning of the Establish-
ment Clause remains influenced by Everson, the Supreme Court's first
modern Establishment Clause case. In Everson, the Court upheld, 5-
4, a local NewJersey school district policy that reimbursed transporta-
tion costs incurred by parents of children attending parochial
schools. 7 Everson's lasting impact lies not in its result, however, but in
Justice Hugo Black's majority opinion and Justice Wiley Rutledge's
dissent, both of which invoked the Founders to interpret the Estab-
lishment Clause as requiring the "strict separation" of church and
state.
Justice Black's opinion presents the adoption of the Establishment
Clause as the result of the revolutionary movement for religious free-
16 This Article attempts to uncover the "original meaning" of the Establishment Clause con-
sistent with what Vasan Kesavan and Michael Stokes Paulsen call "original public meaning tex- tualism." It should be noted, however, that the Establishment Clause's "original meaning" is consistent with the phrases "original intention" and its "original understanding." For a discus- sion of the different types of originalism, see Vasan Kesavan & Michael Stokes Paulsen, The (^) In- terpretiveForce of the Constitution'sSecret DraftingHistory, 91 GEO. L.J. 1113 (2003). 17 Everson v. Bd. of Educ., 330 U.S. 1, 16-17 (1947).
[Vol. 8:
Aug.2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE (^) 589
dom that "reached its dramatic climax in Virginia in 1785-86, .8" when
the Virginia Assembly, led by James Madison, adopted Thomas Jeffer-
son's "Virginia Bill for Religious Liberty."' 9^ Justice Black turned to
1785-86 Virginia, and not the First Federal Congress, because " [t] his
Court has previously recognized that the provisions of the First
Amendment, in the drafting and adoption of which Madison andJef-
ferson played such leading roles, had the same objective and were in-
tended to provide the same protection against governmental intru-
sion on religious liberty as the Virginia statute.""
Given the central importance of the Virginia Statute to his inter-
pretation, Justice Black, surprisingly, failed to offer any direct exege-
sis of the text of Jefferson's bill. Instead, he treated Jefferson's and
Madison's thoughts as self-explanatory, presenting only an extended
quotation from Jefferson's bill 2 ' and a one-sentence summary of
is Id. at 11. 19 Id. at 12. 20 Id. at 13. (^) Justice Black offered (^) only the following (^) citations to substantiate (^) his assertion that the Court previously recognized (^) that the First Amendment had the same objective and was intended to provide the same protection against governmental intrusion on religious liberty as the Virginia Statute: Reynolds v. United States, 98 U.S. 145, 164 (1878); (^) Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871); Davis v. Beason, 133 U.S. 333, 342 (1890). Id. CheckingJustice Black's references does not support his assertion. In Reynolds, the landmark Mormon (^) polygamy case, the Court suggested that "[t]he (^) controversy upon this general subject [of religious establish- ment] ...seemed at last to culminate in Virginia" and the passing of Jefferson's Virginia Stat- ute. Reynolds, 98 U.S. at 163. However, the opinion then suggested thatJefferson's (^) letter to the Danbury Baptist Association-not the Virginia Statute-"may be accepted almost (^) as an authori- tative declaration of the scope and (^) effect of the [First] [A]mendment." Id. at 164. Watson v. Jones lacks a single reference to the Virginia Statute; it is unclear why Justice (^) Black cites it. Checking Justice Black's citation to Davis (^) v. Beason, similarly, fails to reveal a reference to the Virginia Statute or its relationship to the First Amendment. Justice Field's majority opinion in the case quoted Justice Waite's opinion (^) in Reynolds at length, but it fails to refer to Jefferson's Virginia (^) Statute. Davis, 133 U.S. at 343-44 (quoting Reynolds, 98 U.S. at 165-66). However, in the free exercise case Jones v. Opelika, Justice Murphy, (^) in dissent, wrote that "[a] n arresting par- allel (^) exists between the troubles of Jehovah's Witnesses and the struggles of various dissentient groups in the American colonies for religious liberty which culminated in the Virginia (^) Statute for Religious (^) Freedom, the Northwest Ordinance of 1787, and the First Amendment." 316 U.S. 584, 622 (1942) (Murphy, J., dissenting). Why Justice (^) Black failed to cite Jones v. Opelika is un- clear. A previous (^) Court opinion thus had mentioned the Virginia Statute, but did not claim that the First Amendment had "the same objective" as the Virginia Statute. The references (^) to the Virginia Statute, moreover, occurred in (^) the context of interpreting the Free Exercise Clause, not (^) the Establishment Clause. Justice Black thus failed to substantiate his assertion that the Court had previously recognized that the original (^) meaning of the Establishment Clause had the same objective asJefferson's Virginia Statute. 21 Justice Black cites the following from Jefferson's (^) Virginia Statute: Almighty God hath created the (^) mind free; that all attempts to influence it by tem- poral 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 re- ligion, who being Lord both of body and mind, (^) yet chose not to propagate it by coer- cions 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 forc- ing him to support this or that teacher of his own religious persuasion, is depriving him
Aug. 2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE 591
begins with the seemingly awkwardly phrased text, "respecting an es-
tablishment. 2 6^ The Framers, Justice Rutledge explained, meant that
"[n] ot simply an established church, but any law respecting an estab-
lishment of religion is forbidden. ''2^7 As interpreted by Justice
Rutledge, "respecting an" means "tending toward"-that is, the
Founders not only intended to prohibit a traditional establishment
like the Church of England, they also sought to prohibit anything
tending toward such an arrangement. Interpreted this way, "respect-
ing an" expands the prohibition against religious establishments. Jus-
tice Rutledge thus concluded that the Framers meant "to create a
complete and permanent separation of the spheres of religious activ-
ity and civil authority by comprehensively forbidding every form of
public aid^ or^ support^ for^ religion.^
2'
To support this reading, Justice Rutledge turned to the "generat-
ing history" of the religion clauses, which he claims includes the pro-
ceedings of the First Congress and "also the long and intensive strug-
gle for religious freedom in America, more especially in Virginia, of
which the [First] Amendment was the direct culmination., 29 Whereas
Justice Black emphasized Jefferson's Virginia Statute and his "wall of
separation" letter to the Danbury Baptists, Justice Rutledge focused
upon James Madison and his "Memorial and Remonstrance." The
"Memorial," he explained, is "the most concise and the most accurate
statement of the views of the First Amendment's author concerning
what is 'an establishment of religion.' '3 0^ Madison's views take prece-
dence above all others, moreover, because "[h]e epitomized the
whole of that tradition in the [First] Amendment's compact, but
nonetheless comprehensive,^ phrasing.^
As interpreted by Justice Rutledge, Madison advanced a categori-
cal separation between church and state: "With Jefferson, Madison
believed that to tolerate any fragment of establishment would be by
so much to perpetuate restraint upon that [religious] freedom.
Hence he sought to tear out the institution not partially but root and
branch, and to bar its return forever."^32 The "Memorial" contains "a
broadside attack upon all forms of 'establishment' of religion, both
general and particular, nondiscriminatory or selective. 3 Madison
was "unrelentingly absolute... in opposing state support or aid [to
26 Id. at (^28) (Rutledge,J., (^) dissenting). 27 Id. at 31. 28 Id. at 31-32. This interpretation of "respecting" was subsequently instrumental to Chief
Justice Burger's majority opinion in Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). 29 Everson, (^330) U.S. at 33-34 (Rutledge,J., dissenting). (^30) Id. (^) at (^) 37. 31 Id. (^) at (^) 39. 32 Id. (^) at 40. 23 Id. at 37.
JOURNAL OF CONSTITUTIONAL^ LAW
religion] by taxation. Not even 'three pence' contribution was thus
to be exacted from any citizen for such a purpose.' In short, "Madi-
son opposed every form and degree of official relation between relig-
ion and^ civil^ authority.^
Justice Rutledge did pause to consider the debates in the First
Congress surrounding the drafting of the First Amendment. But
these debates, he found, "reveal only sparse discussion. ''s6^ The First
Congress had little to debate because "the essential issues had been
settled. Indeed, the matter had become so well understood as to
have been taken for granted in all but^ formal^ phrasing.^
3 ' The First
Congress was little more than a mark-up session, Justice Rutledge
suggested, because the Founders had adopted Madison's absolute
separation principle as articulated in the "Memorial and Remon-
strance."
B. The "Non-Preferentialist"--"Strict-Separationist" Debate: Wallace v.
Jaffree, Lee v. Weisman, and Rosenberger v. Rector & Visitors of
University of Virginia
After Everson, various Justices sprinkled references to the Found-
ing Fathers in their Establishment Clause opinions.3' No single opin-
ion, however, contained anything like Everson's historical analysis un-
til then-Associate Justice William Rehnquist's fiery dissent in Wallace
v. Jaffree.^3 9 Armed with then-recent scholarship, Justice Rehnquist
launched a full-scale assault on Everson's historical accuracy and the
"wall of separation" interpretation built upon it. His strategy was not
to reveal Everson's inaccuracies point-by-point, but rather to show that
(^34) Id. (^) at (^) 40. (^35) Id. (^) at 39. (^36) Id. (^) at (^) 42. (^57) Id. 38 See, e.g., Sch. Dist. (^) v. Schempp, 374 U.S. 203, (^) 233-35 (1963) (Brennan, (^) J., concurring) (discussing the Framers' purpose in enacting the Establishment Clause and noting that the Clause was intended "to assure that the national legislature would not exert its power in the ser- vice of any purely religious end; that it would not.., make of religion, as religion, an object of legislation"); Engel v. Vitale, 370 U.S. 421, 446-47 n.3 (1962) (Stewart, J., dissenting) (discuss- ing the historical tradition, beginning with the Founders, among all three branches of govern- ment to use prayer in opening sessions and in assumption of office); Illinois ex rel. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, 333 U.S. 203, 231 (1948) (Frankfurter, J., concurring) ("Jef- ferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation,' not of a fine line easily overstepped."); Id. at 244-48 (Reed, J., dissenting) (deter- mining that the Illinois school district did not violate the Establishment Clause when it permit- ted religious instructions to be given in public school buildings through relying on Jefferson's annual report to the University of Virginia authorizing religious education at public universities and rejecting the applicability of Madison's "Memorial and Remonstrance"). 39 472 U.S. 38, (^91) (1985) (Rehnquist,J., (^) dissenting).
[Vol. 8:
JOURNAL OF CONSTITUTIONAL LA W
Justice Rehnquist failed to make the point explicitly, but his opin-
ion contains a methodological assumption fundamental to his argu-
ment. To grasp the meaning of the First Amendment, he assumed
that one must^ look^ to^ the^ intentions^ of^ those^ who^ drafted^ it^ within
the context of its actual adoption. Only the debate over the text of
the amendment in^ the^ First^ Congress^ is^ relevant,^ then,^ not^ the^ estab-
lishment of^ religious^ freedom^ in^ Virginia.^ In^ this^ way,^ Justice
Rehnquist made Madison's statements as a Virginia state legislator-
including the "Memorial and Remonstrance"-inapposite to deter-
mine the Establishment Clause's original meaning. He concluded,
accordingly, that Everson was based "upon a mistaken understanding
of constitutional history.^
' 4 " The Court made a jurisprudential error
when it derived the meaning of the First Amendment from the Vir-
ginia debates on religious freedom. "[N] othing in the Establishment
Clause," Justice^ Rehnquist^ asserted,^ "requires^ government^ to^ be
strictly neutral between religion and irreligion, nor does that Clause
prohibit Congress or the States from pursuing legitimate secular ends
through nondiscriminatory sectarian means.
To reinforce the point, Justice Rehnquist presented various ex-
amples of the ways that the Founding Fathers' public policy explicitly
favored religion. The First Federal Congress-the same body that
drafted the First Amendment-passed the Northwest Ordinance,
which stated that "[r]eligion, morality, and knowledge, being neces-
sary to good government and the happiness of^ mankind,^ schools^ and
the means of education shall^ forever^ be^ encouraged.-^
50 Presidents
Washington, Adams,^ and^ Madison^ issued^ official^ proclamations^ de-
claring official days of prayer and thanksgiving. 5 President Jefferson,
who thought such proclamations were unconstitutional, signed^ a
treaty with the Kaskaskia Indians that provided annual cash support
for the Tribe's Roman Catholic priest and church. Justice
Rehnquist resoundingly^ declared that^ "[t]^ here^ is^ simply^ no^ historical
foundation for the proposition that the Framers intended to build
the 'wall of separation'^ that^ was^ constitutionalized^ in^ Everson.,^
Justice Rehnquist's Jaffree dissent, which itself largely followed his-
torian Robert Cord's work,^54 launched a wave of historical scholarship
on the Founders and religious liberty. Some of the work most critical
48 Id. at 92. (^49) Id. (^) at 113. 50 Id. at 100 (quoting (^) the Northwest Ordinance (^) of 1787, art. III, (^) 1 Stat. 50, 52 (1789)). (^51) Id. (^) at (^) 103. 52 Id. (^53) Id. (^) at (^) 106. 54 Justice Rehnquist (^) cites Robert L. Cord only (^) once in his opinion (id. at (^) 104) but his entire
opinion seems to closely follow Cord's argument in SEPARATION OF CHURCH AND STATE: HISTORICAL REALITY AND CURRENT FICTION (1982).
[Vol. 8:
Aug. 2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE 595
of Rehnquist would be utilized by then-newly appointed Justice David
Souter in the public-school graduation prayer case, Lee v. Weisman.
Weisman involved the constitutionality of a non-denominational
prayer composed • 6 and recited by a rabbi at a public middle school
graduation. Concurring with the Court's decision to strike down
the prayer, Justice Souter approached the Establishment Clause
much in the same manner as Justice Rehnquist, focusing on the in-
tentions of its drafters.^57 But whereas Rehnquist focused on Madi-
son's initial proposal and subsequent revision and comments, Souter
examined both the text the First Congress proposed and also the text
it rejected. 8 In examining what the First Congress considered but re-
jected, Justice Souter claimed to find the key that unlocks the Fram-
ers' true intentions.
According to Souter's historical excavation, the Framers consid-
ered but rejected a prohibition only against preferential aid to relig-
ion. Madison's original proposal read: "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 ri hts of
conscience be in any manner, or on any pretext, infringed." The
text went through various amendments and revisions in the House
until the following was sent over to the Senate: "Congress shall make
no law establishing Religion, or prohibiting the free exercise thereof,
nor shall the rights of conscience be infringed." 60 The Senate first
considered the language: "Congress shall make no law establishing
One Religious Sect or Society in preference to others, nor shall the
rights of conscience be infringed." 61 It rejected this language and
chose a provision identical to the House's proposal, but without the
"rights of conscience" clause. 62 Six days later, however, the Senate
(^55) 505 U.S. 577 (1992). (^) Academic literature (^) cited by Justice Souter (^) included LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT (^) (1986) and Douglas Laycock, "Nonpreferential"Aid to Religion: A False Claim About OriginalIntent, 27 WM. & MARY L. REv. 875 (1986). 56 Weisman, 505 U.S. (^) at 580 ("The question (^) before us is whether (^) including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Reli- gious Clauses of the First Amendment.... ."). 57 See id. at 612-16 (^) (Souter,J., concurring) (^) (reviewing the Establishment (^) Clause's (^) enactment and finding that "the history of the Clause's textual development [provides] a more powerful argument [than Rehnquist's Jafftee dissent] supporting the Court's jurisprudence following (^) Ever- son"). 58 See id. at 612 (describing (^) the various religion clause (^) versions considered, amended, (^) and rejected by both the House and the Senate). 59 Id. at 612 (quoting (^1) ANNALS (^) OF CONG. 434 (Joseph (^) Gales ed., (^) 1790)). 60 Id. at (^613) (quoting I DOCUMENTARY (^) HISTORY OF (^) THE FIRST FEDERAL CONGRESS (^) OF THE UNITED STATES OF AMERICA: MARCH 4, 1789-MARCH 3, 1791, at 136 (Linda (^) Grant de Pauw ed.,
- [hereinafter DOCUMENTARY HISTORY]). 61 Id. (quoting (^) DOCUMENTARY (^) HISTORY, supra note (^) 60, at 151). 62 Id. at 614.
Aug. 2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLAUSE (^) 597
cians, could raise constitutional ideals one day and turn their back on
them the^ next.,^
Three years after Weisman, Justice Souter in Rosenberger resumed
his reconstruction of an "originalist," "strict-separationist" interpreta-
tion of the Establishment Clause.^70 In Rosenberger, a group of Univer-
sity of Virginia students challenged a school policy that excluded reli-
gious groups from receiving student body funds. 71 According to
Justice Souter, the case raised the legal question of whether state
money could be used to fund core, sectarian religious activity. To
explain why such funding unquestionably violated the First Amend-
ment, he returned to the Founding Fathers, this time focusing on the
struggle in Virginia over religious liberty.^73
In the "Memorial and Remonstrance," Souter claimed, Madison
squarely addressed 74 the question of using public funds for religious
purposes. In Article 3, Madison asks rhetorically, "Who does not see
that ... the same authority which can force a citizen to contribute
three pence only of his property for the support of any one estab-
lishment, may force him to conform to any other establishment in all
cases whatsoever?, 75 Since Madison was writing against a background
in which most colonies had exacted a tax for church support, Justice
Souter reasoned that Madison meant to indicate that "individual reli-
gious liberty could be achieved best under a government which was
stripped of all power to tax, to support, or otherwise to assist any or
all religions, or to interfere with the beliefs of any religious individual
or group." '7 6^ The same point, Justice Souter continued, was also made
by Jefferson in his "Virginia Bill for Establishing Religious Freedom."
The bill, which was passed after Madison orchestrated the defeat of
Patrick Henry's general assessment bill, declared that "to compel a
69 Weisman, (^) 505 U.S. (^) at 626. 70 Rosenberger (^) v. Rector & Visitors (^) of Univ. of Va., (^515) U.S. 819, 868 (1995) (^) (Souter, J., dis-
senting). 71 See id. (^) at 827 (majority opinion) (^) ("[The student (^) publication] filed (^) suit ... [and] alleged that refusal to authorize payment of the printing costs of the publication, solely on the basis of its religious editorial (^) viewpoint, violated their rights to freedom of speech and press, to the free exercise of religion, and to equal protection of the law."). 72 See id. at 863-64, (^868) (Souter, (^) J., dissenting) (^) ("The Court today, (^) for the first time, ap- proves direct funding of core religious activities by an arm of the State."). 73 See id. at (^) 868-72 (discussing (^) the role of Madison (^) in ensuring the (^) defeat of the Virginia tax assessment bill and the passage ofJefferson's Virginia BillforEstablishingReligious Freedom). 74 See id. at 868 ("Madison (^) gave his opinion (^) on the legitimacy (^) of using public funds for reli- gious purposes, in the (^) Memorial and Remonstrance .... ").
75 Id. (quoting James Madison, Memorial and Remonstrance Against Religious Assessments 1 3
(1785), reprinted in (^) Everson v. Bd.of Educ., 330 U.S. 1, app., at 65-66 (1947) [hereinafter Madi- son, Memorial and Remonstrance, reprinted in Everson]). 76 Id. (^) at 869 (quoting (^) Everson, (^330) U.S. (^) at 11).
JOURNAL OF CONSTITUTIONAL LAW
man to furnish contributions of money for the propagation of opin-
ions which he^ disbelieves,^ is^ sinful^ and^ tyrannical."^
7
In his Jaffree dissent, Justice Rehnquist questioned the relevance of
Jefferson (at all) and Madison (in the context of the Virginia debate)
for discerning the Establishment^ Clause's original^ meaning.^
78 Justice
Souter never addressed these points thematically; instead, he simply
cited and reasserts Everson's contention^ that
We [the Supreme Court] have "previously recognized 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."
Souter also cited three leading church-state scholars-Douglas Lay-
cock, Thomas Curry, andJesse Choper-who, subsequent to Everson,
supported its conclusions.
Justice Souter's return to Virginia in Rosenberger was matched by
Justice Clarence Thomas who, for the first time, entered the
"originalist" church-state fray. Concurring with the majority and re-
sponding to Justice Souter, Justice Thomas claimed that a proper un-
derstanding of Madison does not, in fact, lead to the "wall of separa-
tion" but rather to the principles of neutrality and non-
discrimination.S
Justice Thomas's opinion began by establishing the context of
Madison's "Memorial and Remonstrance."^82 Madison wrote the
"Memorial" in response to Patrick Henry's proposed religious assess-
ment tax bill.^8 3 Henry's proposal, however, was not a generally-
77 Id. at 871 (quoting Thomas Jefferson, (^) A Bill for Establishing (^) Religious Freedom (1779), (^) re- printed in 5 THE FOUNDERS' CONSTITUTION 77 (Philip B. Kurland & Ralph Lerner eds., 1987) [hereinafter THE FOUNDERS' CONSTITUTION]). 78 See Wallace (^) v. Jaffree, 472 U.S. 38, (^) 92 (1985) (Rehnquist, J., (^) dissenting) (noting that (^) Jef- ferson was not an "ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment"). 79 Rosenberger, 515 U.S. (^) at 871 (Souter, J., dissenting) (^) (quoting Everson, (^) 330 U.S. at 13).
80 Id. at 871-72 (citing JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY: PRINCIPLES FOR
JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES 16 (1995)); THOMASJ. CURRY, THE FIRST
FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF^ THE^ FIRST^ AMENDMENT^217
(1986); Laycock, supra note 55, at 923. 81 See Rosenberger, (^) 515 U.S. at 854, 858, 863 (^) (Thomas, J., concurring) ("Madison's (^) comments are more consistent with the neutrality principle that the dissent inexplicably dis- cards.... Stripped of its flawed historical premise, the dissent's argument is reduced to the claim that our Establishment Clause jurisprudence permits neutrality... 82 Id. at 854. 83 SeeJames (^) Madison, Memorial and (^) Remonstrance Against Religious (^) Assessments (1785), reprinted
in THE FOUNDERS' CONSTITUTION, supra note^ 77,^ at^^82 [hereinafter^ Madison,^ Memorial^ and^ Re- monstrance] ("We the subscribers, citizens of the said^ Commonwealth,^ having^ taken^ into^ serious consideration, a Bill ... entitled 'A Bill establishing a provision for Teachers of the Christian Religion,' and conceiving that the same^ if^ finally^ armed^ with^ the^ sanctions^ of^ a^ law,^ will^ be^ a
[Vol. 8:
JOURNAL OF CONSTITUTIONAL LA W
tably, the Court all but neglected the Founders in Zelman v. Simmons-
Harris, its contentious 2002 school voucher case."
C. The FederalistAlternative: Elk Grove Unified School
District v. Newdow
The Founders returned in a surprising manner in 2004 in Elk
Grove Unified School District v. Newdow, the Pledge of Allegiance case.^92
The case raised but failed to resolve the question of the constitution-
ality of the words "under God" in public school teacher-led recita-
tions of the Pledge. 93 More significantly from an Establishment
Clause jurisprudential standpoint was Justice Thomas's abandonment
of Justice Rehnquist's "non-preferentialism" and embrace of a feder-
alist interpretation of the Establishment Clause.
According to Justice Thomas's Newdow opinion, "[t] he text and
history of the Establishment Clause strongly suggest that it is a feder-
alism provision intended to prevent Congress from interfering with
state establishments. 9 4^ The Framers, he suggested, "made clear that
Congress could not interfere with state establishments, notwithstand-
ing any argument that could be made based on Congress' power un-
der the Necessary and Proper Clause." 95 Unlike the Free Exercise
Clause, " [ t] he Establishment Clause does not purport to protect indi-
vidual rights,
9 6 and thus "it makes little sense to incorporate [it].
Given that Justice Thomas altered his interpretation, he surpris-
ingly presented little evidence for his new approach. To demonstrate
that the Establishment Clause does not protect an individual right, he
offered less than one full paragraph of textual analysis. His primary
argument was to contrast the wording of Establishment Clause with
the other provisions of the First Amendment. "The Free Exercise
Clause," Justice Thomas stated, "plainly protects individuals against
congressional interference with the right to exercise their religion,
and the remaining Clauses within the First Amendment expressly dis-
able Congress from 'abridging [particular] fteedom[s].' '^9 But "re-
specting an," Justice Thomas continued, connotes a different under-
standing than "abridging."99 Why or how we are to understand this
91 536 U.S. 639 (2002).
92 542 U.S. 1 (2004).
93 The (^) Court, instead of reaching (^) the First Amendment (^) issue, concluded that respondent
Michael Newdow lacked standing to invoke the jurisdiction of the federal courts. Id. at 6. 94 Id. (^) at 49 (ThomasJ, (^) concurring). 95 Id. at 50. 96 Id. (^97) Id. (^) at (^) 49. (^98) Id. at 50 (alterations (^) in original). 99 Id. (^) at (^) 49-50.
[Vol. 8:
Aug. 2006] ORIGINAL (^) MEANING OF TIE ESTABLISHMENT CLAUSE 601
difference Thomas did not explain. He failed to address directly the
construction of "respecting an" offered by Justice Rutledge in Everson
and he neglected to analyze the words themselves. Instead, Justice
Thomas merely asserted that his textual analysis "is consistent with
the prevailing view that the Constitution left religion to the States." 00
For "the prevailing view," he referred to Justice Joseph Story's Com-
mentaries on the Constitution of the United States and Akhil Amar's The
Bill of Rights. °' Story and Amar may correctly capture "the prevailing
view" of the Founders, but citations to them alone seem inadequate
to demonstrate correctness of the assertion.
Justice Thomas also asserted that "[h]istory ... supports this [fed-
eralist] understanding.' 0 2 "At the [time of the] founding," he
pointed out, "at least six States had established religions.' '0 3^ While
factually correct, those states eventually disestablished their estab-
lishments. 0 4 Might they have ended their establishments to comply
after the fact with the constitutional principle set forth in the Estab-
lishment Clause-an ideal that only applied to the national govern-
ment until the adoption of the Fourteenth Amendment but which
was adopted by states individually prior to the Civil War? Other states
at the time of the founding, moreover, ended their establishments on
account of their perceived abridgment of the principle of religious
freedom. 15 The mere fact that state establishments existed at the
100 Id. at 50.
101 Id. Justice Thomas's full citation is as follows: "See, e.g., 2J. Story, Commentaries on the Constitution (^) of the United States § 1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32- 42; id., at 246-257." Id. (^102) Id. (^) at (^) 50. 103 Id. 104 The year (^) of disestablishment in (^) the various states depends (^) on how one defines (^) a religious establishment. Carl H. Esbeck, who defines a religious establishment (^) as the legal authority to assess taxes (^) for church support, identifies the following dates for disestablishment in the origi- nal states: Pennsylvania (no history of an establishment), Rhode Island (no history of an estab- lishment), (^) Delaware (1776), NewJersey (1776), North Carolina (1776), New York (1777), Vir- ginia (1776-1779), Maryland (1785), South Carolina (1790), Georgia (1798), Connecticut (1818), New Hampshire (^) (1819), and Massachusetts (1832-1833). Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. REV. 1385, 1457-58. For a general discussion of what constitutes an establishment, (^) see Michael W. McCon- nell, Establishment and Disestablishment at the Founding,PartI Establishment of Religion, 44 WM. & MARY L. REv. 2105 (2003). 103 For example, (^) Virginia's Act for Establishing Religious Freedom, which was adopted in 1785 and effective as ofJanuary 16, 1786, declared of the "natural rights of mankind": [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 that all men shall be free to profess, and by argument to maintain, their (^) opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. Act for Establishing Religious Freedom (^) (Va. 1785), reprinted in THE FOUNDERS' CONSTITUTION, supra note 77, at 84, 85.
Aug. 2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE 603
of this position. Recent scholarship, moreover, has rejected the Fed-
eralist thesis on historical grounds. 0 7 Prior scholars, furthermore,
have not sufficiently placed the drafting of the Establishment Clause
in its historical and political context.' °^ Specifically, the failure to ap-
tional government out of religious matters.... The states were to be unaffected by the (^) amend- ment .... [T]here is no part of the history of the fourteenth amendment that provides any guidance whatsoever for the application of the religious clauses to the states."); Kurt T. Lash, Power and the Subject of Religion, 59 OHIO (^) ST. L.J. 1069, 1116 (1998) ("Congress had no power whatsoever over the subject of religion. .. , power over (^) the same being reserved to the states."); Kurt T. Lash, The Second Adoption of the Establishment (^) Clause: The Rise of the NonestablishmentPrin- ciple, 27 ARIz. ST. L.J. 1085, 1085, 1089-92 (1995) [hereinafter Lash, Rise of the Nonestablishment Principle] (agreeing with other scholars that the (^) Establishment Clause was about federalism, in that the amendment intended only to prevent the federal government (^) from interfering with churches established by individual states); Kurt T. Lash, The Second Adaption of the Free Exercise Clause: Religious Exemptions Under the Fourteenth Amendment, 88 Nw. U. L. REv. 1106, 1111- (1994) [hereinafter Lash, Religious Exemptions Under (^) the Fourteenth Amendment] ("[T]he First Amendment begins a theme that runs as a leitmotif throughout the original Bill of Rights, that of federalism."); William K. Lietzau, Rediscoveringthe Establishment (^) Clause: Federalism and the Roll- back of Incorporation, 39 DEPAUL L. REV. 1191, 1191 (1990) (stating that the Establishment Clause created a "framework of federalism" that allowed states to make (^) their own decisions regarding religion); James (^) McClellan, Hand's Writing on the Wall of Separation: The Significance ofJaffree in Future Cases on Religious Establishment, in HOw DOES THE CONSTITUTION PROTECT RELIGIOUS FREEDOM? 43, 48 (Robert A. Goldwin & Art Kaufman eds., (^) 1987) ("The [First Amendment] was framed, considered, and adopted with federalism in mind, and it applied only to the federal government. Not even Madison wished to apply the establishment clause to the states ...."); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Estab- lishment Clause Adjudication, 61 NOTRE DAME L. REv. 311, 317 (1986) (^) (arguing that the Estab- lishment Clause (^) was intended "to forbid establishment of a national religion and to prevent federal interference with a state's choice of whether or not to have an (^) official state religion"); William C. Porth & Robert P. George, Timming the Ivy: A BicentennialRe-Examination of the Estab- lishment Clause, 90 W. VA. L. REv. 109, 136-39 (1987) (noting that the Establishment (^) Clause was intended to prevent the federal government from disestablishing or interfering with official state churches); Joseph M. Snee, Religious Disestablishment and the Fourteenth (^) Amendment, 1954 WASH. U. L.Q. 371, 372-73, 406-07 ("[T]he Establishment Clause... should not, and histori- cally and logically cannot, be incorporated into the liberty protected by the Fourteenth (^) Amend- ment."); Note, Rethinking the Incorporationof the Establishment Clause: A Federalist (^) View, 105 HARv. L. REV. 1700, 1701 (1992) (arguing that before Everson v. Board of Education in 1947, "the Estab- lishment Clause did not restrain the (^) states from promoting religion or even establishing one").
In an early religious (^) liberty case, the Supreme Court itself recognized that "[t]he Constitu- tion makes no provision for protecting the citizens of the respective states in their religious (^) lib- erties." Permoli v. Mun. No. 1 of New Orleans, 44 U.S. (3 How.) 589, 609 (1845). 107 See, e.g., Feldman, (^) supra note 15, at 407-08 (^) (noting the lack of (^) historical support in (^) the
debates for the Federalist interpretation). 108 For (^) an example of legal scholarship (^) that reflects (^) a lack of contextual analysis, (^) see William
C. Porth & Robert P. George, Trimming the Ivy:A Bicentennial (^) Re-Examination of the Establishment Clause, stating that: The obvious meaning of "respecting an" (^) establishment of religion, then as now, is "re- garding," or "having to do with," (^) or "in reference to" such an establishment. And these words are broad enough (^) to cover both a possible national establishment and actual (and potential) state establishments. They call particular attention (^) to the constitutional disen- titlement 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.
Porth & George, supra note 106, at 136-37.
JOURNAL OF CONSTITUTIONAL LA W
preciate the Founders' diversity of approaches to church-state ar-
rangements has led to a failure to articulate with precision the Anti-
Federalists' criticisms that led to the adoption of the Bill of Rights.
This failure, in turn, has led to misinterpretations of the original
meaning of the Establishment Clause and, correspondingly, the ap-
plication of erroneous historical narratives to modern church-state
109
cases.
II. THE HISTORICAL CONTEXT OF THE DRAFTING OF THE
FIRST AMENDMENT
To understand the original meaning of the Establishment Clause,
we have to understand the historical context in which the First
Amendment emerged and the particular circumstances that led to
the adoption of the Bill of Rights. The fundamental fact that almost
all scholars and jurists overlook is that the Founders did not share a
uniform understanding of the proper relationship between church
and state. After the American Revolution, various states adopted dif-
ferent church-state arrangements." 1 When the Constitution was pro-
posed to form a new national government, fears emerged that the
new Congress would impose one form of church-state relations
throughout the nation."' Anti-Federalists both articulated and exac-
erbated this fear in their arguments against the Constitution's ratifi-
cation." 2 The Establishment Clause was crafted by Federalists to quell
these concerns and to silence their Anti-Federalist critics.
To understand the original meaning of the Establishment Clause,
then, we first must describe the two leading approaches to church-
state relations present during the founding era. This investigation
sheds light on Anti-Federalist criticisms of the Constitution and their
proposed amendments. With the Anti-Federalists' positions set forth,
we can approach the actions of the First Federal Congress in its his-
torical context. That context reveals the original meaning and clear
intention expressed in the text of the First Amendment's Establish-
ment Clause. The First Federal Congress did not constitutionalize
one proper relationship between church and state, but rather it reaf-
109 See, e.g., infra (^) text accompanying notes (^) 263-69 (discussing (^) how the Everson Court, (^) in both
Justice Black's majority opinion and Justice Rutledge's dissent, and Justice Souter's (^) contempo- rary approach apply a historically-inaccurate view of the First Amendment (^) in determining the scope of the Establishment Clause). 110 See infra Part (^) II.A (discussing the two leading church-state positions: the "Massachusetts Way" and the "Virginia Understanding"). I See infra Part II.B (discussing (^) the Anti-Federalists' criticisms (^) of the Constitution, including the fear that the proposed (^) Congress could impose uniformity of religious practice in the United States). l1 See infra (^) Part II.B (noting the different (^) statements articulated by (^) the Anti-Federalists to warn against a national religious establishment).
[Vol. 8:
