Posted: November 30, 2010
n 1947, the Supreme Court, invoking Thomas Jefferson, declared that the First Amendment erects a "wall of separation" between church and state. The decision in Everson v. Board of Education has long been criticized for misinterpreting Jefferson's metaphor and misunderstanding the original meaning of the Constitution's text. Nonetheless, the metaphor and precedent have stuck. In 2005, the Court reaffirmed both while striking down a Kentucky courthouse Ten Commandments display. In that case, Justice David Souter, writing for the majority, found that historical evidence "supports no solid argument for changing course" from Everson's separationist dictate.
It is too bad that Donald Drakeman's Church, State, and Original Intent had not yet appeared. With its publication, no judge—at least not one who approaches history candidly—can defend Everson on historical grounds. A lecturer in Princeton University's politics department, Drakeman decisively and definitively exposes the anti-Catholic animus behind the precedent, while also setting forth an alternative account of the Establishment Clause's original meaning.
The book's most interesting and most persuasive chapter investigates the crafting of the Everson opinions. The case involved a New Jersey school district policy that reimbursed parents for the costs of transporting their children to public and Catholic schools. In a narrow 5-4 decision, the Court upheld the policy. But all nine justices agreed with Hugo Black's "wall of separation" reading of the Establishment Clause.
In his impressive Separation of Church and State (2002), Columbia Law School professor Philip Hamburger noted that Justice Black, the author of Everson's majority opinion, belonged to the Ku Klux Klan as a young politician (a revelation made prominent by Black's biographer Roger Newman). Drakeman deepens the story, arguing that it was not only Black's hostility to Catholicism that animated the Everson court. The real force behind the precedent, it turns out, was Black's fellow Southern Baptist, Wiley Rutledge. By combing previously unnoticed records of the justices' conference meetings, opinion drafts, and private correspondence, Drakeman reveals that it was Justice Rutledge who first turned to Jefferson and James Madison—in an early draft of his dissenting opinion which, in turn, prompted Black to turn to the framers when later crafting his majority opinion. And Rutledge consulted the framers not to discover the original meaning of the Establishment Clause, but rather, according to Drakeman, to "validate" and "camouflage" his "preordained conclusion."
For Rutledge, the case was about preventing Catholic schools from receiving public funds, once and for all. In a memorandum he drafted after the justices had met to discuss the case, he wrote, "We all know, as Justice Frankfurter stated, that this [law] is really a fight by the Catholic schools to secure this money from the public treasury. It is aggressive and on a wide scale." At the Court's conference committee, he was recorded as saying,
First it was textbooks, now buses and transportation, and next it will be lunches and teachers.... You can't draw the line between a little and a lot of pregnancy. If you can justify this law, then you can go much further.... We must stop this thing right at the threshold of the public schools.
Even though Rutledge lost the case against bus fares, he would go on to win the larger battle, as his opinion influenced later court rulings against public funding for Catholic schools.
* * *
Beyond uncovering the historically dubious and ideologically troubling paternity of the Court's separationist jurisprudence, Drakeman seeks to provide a historically accurate interpretation of the Establishment Clause's original meaning. In his account, the clause was adopted to preclude Congress from instituting a national religion. That's it; nothing more. And nothing more specific than that.
Drakeman traces this purpose to the Anti-Federalists' fears during the ratification debate that the new national government might establish a national religion. The Federalists responded that the new national government, being one of delegated powers, would lack authority to do so. But the Anti-Federalists persisted with their call for amendments, so the Federalists who dominated the First Congress gave them some, including the First Amendment with its Establishment Clause.
For those who drafted the Bill of Rights in the First Congress, the Establishment Clause wasn't a big deal. Drakeman explains:
There were no eloquent speeches extolling either the virtues of the strict separation of church and state or the importance of religion to the federal government, no clarifying comments about how the clause should permit (or forbid) nonpreferential support for religion, no careful commentary about the meaning of the word "establishment."
The First Amendment's drafters didn't engage in such high-level conversations because they didn't understand themselves to be adopting the abstract principle, or any principle, of church-state separation. They thought they were stating the obvious, that there was to be no national church of the United States. And to do this, Drakeman suggests, they did not even need to agree about what constituted a religious "establishment," because they all agreed that the national government lacked authority to make one, whatever it consisted of.
Although he does not dwell on or emphasize the point, Drakeman's impressive reconsideration of the Establishment Clause amounts to an academic scolding of the judges, law professors, and historians who have so badly misinterpreted the historical record for judicially partisan purposes.
Strict-separationists receive the hardest blows. Not only did they lack laudable motives in Everson, their textual constructions were wildly inaccurate. Justice Rutledge in Everson and Justices John Paul Stevens and Souter, more recently, have interpreted the First Amendment's words "respecting an establishment" to mean that the government may not make any law remotely resembling or tending towards an establishment. For separationists, "respecting an" expands the First Amendment's prohibition of government promotion of religion. Drakeman convincingly argues that no evidence exists to support this reading of the text. No framer suggested "respecting an" was intended to demark a broad principle of separation, and "respecting" was not used in this way at the time. As for Jefferson's "wall of separation," Drakeman notes that Jefferson was in France at the time of the drafting of the Bill of Rights and had nothing to do with the adoption of the Establishment Clause.
Nonpreferentialism, the doctrinal alternative championed by William Rehnquist and long favored by conservatives, does not fare much better. Drakeman's evidence here is straightforward: when the founding generation supported religion, they did not do so in a nonpreferential manner. The founders favored Protestantism. They were not nonsectarian and did not treat all religions equally. Given their own practice, it would be a historical anachronism to read nonpreferentialism back into the text.
Drakeman also singles out for criticism Justice Clarence Thomas and the handful of scholars who have suggested that the Establishment Clause was concerned with federalism, although here he treads a bit more lightly and, I think, a bit less persuasively. In more than one opinion, Thomas has contended that the original purpose of the Establishment Clause was similar to that of the Tenth Amendment, and that through it the framers aimed to protect the states' jurisdiction in church-state matters. This interpretation has received academic backing from Robert George, law professors Steven Smith and Akhil Amar, and other scholars. Drakeman says that there "there is no specific support in the records of the [drafting] debates" that endorses such a reading of the Establishment Clause. Moreover, there is "no evidence of the New England (or other) states calling for an amendment that would shield their ecclesiastical laws from federal interference; there is no significant record of speeches, sermons, or newspaper articles seeking such protection."
* * *
Yet the words of the Constitution do seem concerned with federalism. Drakeman fails to provide a convincing interpretation of the words "respecting an." If he is right and the framers really did intend merely to prevent the creation of a "Church of the United States," they could have said so. They could have easily drafted an amendment stating, "no national religion shall be established by law" or "Congress shall make no law establishing religion." Both textual formulations were proposed in the House. But both were rejected. Instead, the awkward sounding phrase "respecting an establishment" was adopted by a joint House-Senate conference committee. Why?
That reason has to do with federalism. Contrary to what Drakeman says, during the drafting debates congressmen from New England objected to proposed language that could have been construed to interfere with then-existing state policies toward religion. We also know that the Senate eliminated the single amendment directed at restricting the state governments. We do not know why exactly, since the Senate did not publish detailed records of its proceedings—but we do know that, when considering the Bill of Rights, the Senate acted to protect the authority of the states in church-state matters. There is evidence that the members of the First Congress were concerned with and attentive to federalism.
But more important is the text. The words "respecting an" were added to the Establishment Clause. They must have been intended to do some work. The Constitution employs the word "respecting" one other time. Article IV, Section 6 declares, "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States." This text grants Congress complete authority (thereby denying the states any authority) over a particular jurisdictional area-the territories and other property belonging to the United States. The Establishment Clause was composed to do the opposite: it denies Congress jurisdiction (thereby recognizing the complete authority of the states) over laws regarding the establishment of religion. Akhil Amar has also noted that the words heading the First Amendment, "Congress shall make no law," precisely track and invert the Necessary and Proper Clause in Article I, Section 8, "Congress shall have power...to make all laws...." By adding the word "respecting" to the phrase "Congress shall make no law," the conference committee appears to have reverse engineered words already present in the Constitution to make clear that the national government lacked, and that the states retained, all jurisdiction over religious establishments. It was a remarkable piece of constitutional craftsmanship that precluded the national government both from making an establishment and from interfering with the states' church-state arrangements. Drakeman misses the latter purpose.
But this is a narrow criticism of a splendid book. Even with this one reservation, Church, State, and Original Intent is the most comprehensive, most authoritative, and simply put, the best book published to date on the original meaning of the Establishment Clause.