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The historical debate among legal scholars and constitutional interpreters regarding the original intent of the Establishment Clause in the US Constitution. various interpretations of the clause, including its jurisdictional nature and its implications for religious freedom and federalism. The document also highlights the perspectives of key figures such as Jefferson, Madison, and Marshall.
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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.
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.").
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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).
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Aug.2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE (^) 589
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
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2'
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.
(^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).
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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).
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Aug. 2006] ORIGINAL MEANING OF THE ESTABLISHMENT CLA USE 595
(^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.,
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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 .... ").
(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).
7
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).
(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
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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.
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Aug. 2006] ORIGINAL (^) MEANING OF TIE ESTABLISHMENT CLAUSE 601
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.
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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.
109
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).
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