Interpreting the Establishment Clause (without an Agenda)

Today, most constitutional jurists pay at least some respect—even if just lip service—to what they call “original meaning,” “original understanding,” or “original intent.” While there is controversy over whose original meaning, understanding, or intent should count—the Framers of the Constitution, the members of state ratifying conventions, the members of the congresses that passed later amendments to the Constitution (including the first ten amendments that form our Bill of Rights), or the members of state legislatures that ratified the proposed amendments—”originalism” in some form influences the decisions of nearly every sitting judge across the ideological spectrum.

Yet judges and legal scholars rarely agree on what was the original meaning, understanding, or intent of controversial clauses of the Constitution. Perhaps no better example of this dispute exists than the slew of literature about the First Amendment’s establishment clause. Since the late 1940s, its ten words—”Congress shall make no law respecting an establishment of religion”—have probably been subjected to more detailed scrutiny and analysis than any other provision of the original ten amendments.

A number of different schools of interpretation have emerged since the 1940s, with the different schools usually more reflective of the differing policy preferences of their members than the kinds of genuine scholarly disputes that arise among philologists or classical scholars when disagreement emerges over the meaning of an ancient text. In the field of constitutional interpretation, ideology-driven conclusions are the norm, not the exception, and this is true even though the dispute under consideration may concern what seems to be the neutral assessment of the historical meaning of a dryly worded legal text. Too much is usually riding on the outcome in terms of current policy controversies for most constitutional scholars to display the disinterested cool and objectivity of, say, a Latin scholar interpreting the provisions of an ancient Roman law.

An exception to this ideology-driven, result-oriented historical scholarship is Donald Drakeman’s newest book, Church, State, and Original Intent. Indeed, this book may be the most honest, most comprehensive, most nuanced, and most illuminating scholarly study now available of what those ten words of the Establishment Clause probably meant to the many different Americans in 1789–1791 who would have read them. Drakeman has no obvious ideological or public policy agenda, and even the most discerning reader will be hard put to tell where he stands on the more controversial issues of the day regarding church-state relations. Drakeman clearly delivers on his promise in the book’s Preface to provide “an as-objective-as-possible analysis” of the history and original meaning of the Establishment Clause.

Drakeman first reviews the three most prominent ways of interpreting the Establishment Clause, most of which developed after the 1947 Everson decision that upheld amidst vigorous dissent state-subsidized bus transportation for parochial school students.

The strict separationist view is the first of these interpretations. Supporters of this view, including most Supreme Court justices, hold up Thomas Jefferson’s metaphor of a “wall of separation” between church and state. Strict separationists generally believe that the First Amendment’s establishment ban prohibits government not only from establishing a church or favoring one religion over another, but from favoring religion over non-religion, conducting prayer exercises or Bible readings in the public schools, sponsoring religious invocations at public-school sporting events, displaying religious symbols such as the Christian cross or nativity scenes on government property, opening legislative sessions with a prayer, giving school vouchers that go to students attending religious schools, or using the “In God We Trust” slogan on our currency or the “under God” declaration in the Pledge of Allegiance recited in public schools. On the strict separationist view, all of these prohibitions carry over to state governments through the Fourteenth Amendment’s Due Process Clause.

The second of these views, and the most forceful challenge to the strict separationists, comes from the non-preferentialists, a group that includes Justices Antonin Scalia and William Rehnquist and legal scholars such as Gerard V. Bradley. Non-preferentialists believe that the Establishment Clause aimed only (1) to prohibit the national government from establishing a single denominational church as the official church of the United States, and (2) to prohibit the favoring of one religion or religious sect over another. But the no-sect-preference principle, non-preferentialists say, was not designed to stop government support of religion over non-religion, or to stop the government from supporting piety, religiosity, and religiously grounded morality among the American people, as long as support was given on a sect-neutral basis. While the original understanding of the no-sect-preference principle was probably meant only to cover Christian sects (i.e., Christianity could be favored over Hinduism, Judaism, or Islam), today’s non-preferentialists generally extend their no-preference principle to all religions, Christian as well as non-Christian. Government can support religion and religious belief over its absence, they say, but not one religion or religious sect over another.

Finally, the jurisdictional or federalism-enhancing view, supported somewhat by Supreme Court Justice Clarence Thomas and legal scholars such as Robert P. George and Steven D. Smith, argues that the Establishment Clause was, in Smith’s words, “simply an assignment of jurisdiction over matters of religion to the states—no more, no less.” At the time of the adoption of the First Amendment, jurisdictionalists point out, several of the states (for example, Connecticut, Massachusetts, and New Hampshire) had state and local church-state arrangements that many would call “establishments of religion.” The Establishment Clause should be understood, then, as an attempt both to (1) prohibit such an establishment at the national level, and (2) offer protection of each state’s right to maintain such an establishment within its own borders. A major purpose of the Establishment Clause, say the jurisdictionalists, was to protect a state’s prerogative to establish a religion or support religion in any way it chose, whether preferentially or non-preferentially.

Drakeman rejects the conclusions of all three interpretations, at least insofar as they claim to explicate the original meaning or intent of the Establishment Clause. The strict separationists, Drakeman says, have tried to read the clause as the result of Madison’s and Jefferson’s efforts to determine the proper church-state relationship for their home state of Virginia under the Articles of Confederation. But their views, Drakeman argues, hardly can be equated with those of the nation as a whole, of the majority of the representatives and senators who passed the first ten amendments, or of the majority of state legislators who voted to ratify the Bill of Rights. Moreover, whatever was considered the proper course for their home state of Virginia, neither Jefferson nor Madison, Drakeman shows, believed that the national government should dictate to the states their proper manner of church-state relationship.

Against non-preferentialism Drakeman’s critique is a bit more restrained. It’s not that non-preferentialists read into the Establishment Clause what clearly isn’t there, or that they take a local state battle to be paradigmatic for a non-existent national dispute, but that they fail to realize that the term “establishment of religion” meant different things to different people and had a wider range of meanings across the American public spectrum than simply an established state church such as the Anglican Church in England.

Against the jurisdictionalists Drakeman offers a partial concession. It is undoubtedly true, he says, that those who passed and ratified the Bill of Rights in the 1789–1791 period would have understood the no-national-religion principle embodied in the First Amendment to be part of the overall constitutional structure of federalism whereby states would be free to set their own policies regarding church-state relationships even if the national government were more restricted in this area. Drakeman calls this “plain vanilla federalism.” He distinguishes this from the “federalism-enhancing federalism” of the jurisdictionalists who see a specific intent on the part of supporters of the Establishment Clause in states such as Connecticut and Massachusetts (which had state establishments) to protect their state establishments from outside national interference. The clause is seen by the jurisdictionalists as deliberately intended to create an extra layer of federalism protection to secure existing state religious establishments against national encroachment.

The major weakness with the jurisdictionalist interpretation, Drakeman says, is that there is no evidence for it. No one in the 1790s thought the national government would interfere with state church-state relationships, he says, so it is not surprising that no one known to us today ever expressed support for the Establishment Clause in the way the jurisdictionalists or federalism-enhancing interpreters of the clause assert.

Drakeman’s own interpretation of the clause is minimalist:

While some aspects of the evidence can be employed to support each of the various conventional interpretations [of the Establishment Clause], the only reading of the clause that is persuasively supported by all of the relevant data shows that its original meaning was to forbid the establishment of a single national religion. It is unclear whether such prohibitions only applied to an entity like the Church of England or whether more ecumenical forms of governmental financial aid might also have been included within the original meaning of the phrase “an establishment of religion.” On this latter point, the record is (and probably always will be) too murky to tell for sure.

Drakeman’s book is indispensable reading for anyone interested in church-state relations in the American constitutional order. It is constitutional analysis at the highest level of informed scholarship and is written with an openness and humanity that jump out from every page. Nevertheless, Drakeman fails to do full justice to those who see a crucial difference between the no-national-religion principle of the First Amendment and the five personal freedoms (speech, press, assembly, petition, and religious worship) guaranteed by that amendment against usurpation by the national government. Drakeman can argue, correctly, that the five personal freedoms enumerated in the First Amendment were intended just as much to be part of the federalism structure of the government created under the Constitution as the Establishment Clause insofar as the prohibition on their restriction was intended to apply only to government action at the national level, not the state level. States under the pre-incorporated First Amendment were just as free, under the confines of their own constitutions, to limit freedoms of speech, press, assembly, petition, and religious worship as they were free to establish a church and tax their inhabitants to support it. Drakeman seems to take this to mean that the difficulties under originalist jurisprudence of incorporating these five First Amendment freedoms under the liberty provision of the Fourteenth Amendment’s Due Process Clause—and applying them to cover government action by the several states as well as the national government—are no less than those of incorporating the Establishment Clause. Since the courts have seen no problem in overriding the original federalism structure in relation to five of the six provisions of the First Amendment, Drakeman’s reasoning seems to be, why not with the sixth as well?

I think there are two problems here. First there is the problem that the non-establishment principle is not what usually would be thought of as a “liberty” under the meaning of the Fourteenth Amendment’s Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). It is a collective non-endorsement principle more than a personal liberty principle. But aside from this difficulty (which some would get around by simply reformulating and restating the non-establishment principle in a personal-liberty-enhancing way), there is the fact that in the 1790s most Americans would have seen the rights of free speech, free assembly, freedom of the press, freedom to petition the government, and freedom of religious worship as universal natural rights—or at least the rights of adult American white males—whereas very few would have understood there being any general or natural right of this kind to live in a state or a nation which did not officially endorse one religion over another or all religions neutrally. Even if it is true that the First Amendment left it up to the states to protect their citizens from serious state and local usurpations of the freedoms of speech, assembly, press, petition, and worship, it was almost universally believed in the 1790s that such usurpations were grievous wrongs and violations of basic rights. There clearly was no such consensus, however, against a state establishing a religion, preferring one religion over another, or subsidizing all religions on a no-sect-preference basis. The latter were not seen by most Americans (with important regional exceptions) as grave usurpations of fundamental personal liberties or natural human rights. Hence they do not fit easily into the Fourteenth Amendment’s understanding of hallowed constitutional liberties that must not be infringed upon by government at any level.

There really do seem to be serious problems, then, even if we read the First Amendment through the lens of “plain vanilla” federalism rather than the more supercharged “enhanced” variety, with incorporating the non-establishment principle under any reasonable reading of the word “liberty” in the Fourteenth Amendment, and this issue touches the one area where Drakeman’s otherwise magnificent work falls short. On “original meaning” grounds, the jurisdictionalists, I believe—even the plain-vanilla variety—have a stronger case than he supposes.