APRIL 13, 2010
by Donald L. Drakeman
Cambridge University Press, 328 pp., $90
Over the past quarter of a century, prominent conservative constitutional scholars and Justices Antonin Scalia and Clarence Thomas have argued that originalism—interpreting the Constitution according to what well-informed people at the time of its adoption would have understood to be the meaning of its clauses—is the only legitimate way of interpreting the Constitution. Scalia calls himself a faint-hearted originalist because he understands that originalism cannot be applied all the time. Implicit in his self-description is the recognition that throughout American history originalism has been but one of several means of interpretation, along with text, structure, precedent, and evolving traditions. But there is one area in which originalism was dominant long before it went by that name: church-state relations.
In its two seminal religion cases, Reynolds v. United States in 1879, and Everson v. Board of Education, in 1947, the Supreme Court turned to the Framers and concluded that the First Amendment’s prohibition against an establishment of religion meant, in Thomas Jefferson’s words, that there must be “a wall of separation between church and state.” The “wall of separation,” taken from a letter by President Jefferson to a Baptist congregation, has been one of the two most enduring metaphors in constitutional interpretation. (The other is the “marketplace of ideas.”) Protestant justices were originally drawn to the wall, and subsequent Protestants have reached the separationist results that it demands. Catholics, for the most part, reject the idea of a wall of separation and (along with some Evangelical Protestants) support what they call non-preferentialism, whereby government is forbidden only in preferring one religion over another. Over time, however, the Court has moved away from originalism and relied on cases decided in the 1970s and 1980s. The results and the doctrine no longer reflect a supposedly impregnable wall.
Donald L. Drakeman’s new book covers these issues thoroughly. Drakeman goes behind Reynolds and Everson with a fascinating investigation of where the Courts found their history. In Scalia’s opinion for the Court in Heller v. District of Columbia, the Second Amendment case on which the Court ruled a few years ago, the majority asserted that the meaning of the various provisions of the Bill of Rights in 1791 was clear (a point somewhat belied by the fact that four justices found exactly the opposite meaning for the Second Amendment in 1791). Scalia may have been right about a provision such as the Confrontation Clause that allows criminal defendants to confront their accusers in open court, which had an extensive and consistent history. But scholars such as Bernard Bailyn and Gordon Wood have demonstrated that the era from 1765 to the turn of the century was a dynamic period of consistent change and deep thought about political relationships. One cannot freeze a particular moment during that era and infer from it precisely what well-informed people thought, because they had not yet finished thinking about what something like freedom of speech or the relationship of church and state should be. Drakeman is quite persuasive in showing that there were a multitude of meanings about “establishment.” But he is far less persuasive in his conclusion that the best meaning is non-preferentialism.
In Reynolds, which involved a Congressional prohibition of polygamy, Chief Justice Morrison Waite consulted with his former neighbor George Bancroft, the nation’s leading historian. The latter pointed Waite to Jefferson’s “Virginia Statute for Religious Freedom” and to books written by Baptist and Presbyterian historians about the Virginia experience with Establishment (and disestablishment)—books written from a separationist viewpoint. Owing to Bancroft, Waite concluded that it was Virginia’s unique history that was incorporated into the Constitution.
Everson, which dealt with a law allowing children free public bus rides to school even if that school was Catholic, brought forward a different Virginian: James Madison, author of both the “Memorial and Remonstrance against Religious Assessments” (which powerfully argued against public financial support for religion) and subsequently the First Amendment. Hugo Black, who wrote the majority opinion, adopted Jefferson’s wall but sustained the limited aid (while simultaneously proclaiming a “no aid” position) taking his eighteenth-century history from Charles Beard. Wiley Rutledge, who wrote the key dissent, borrowed from his friend Irving Brant, who was in the process of writing his multi-volume biography of Madison. Both opinions explicitly took a “no aid” approach—to any and all religions.
In his own investigation of the history of the Establishment Clause, Drakeman, like many before him, concludes that Waite, Black, and Rutledge were wrong in focusing exclusively on Virginia. After a lengthy and careful review of all the evidence, he comes to the conclusion that the Establishment Clause bars government from establishing a church, but does not preclude non-preferential aid to religions generally. He thus explicitly rejects the conclusion of Douglas Laycock, one of the nation’s leading scholars on the Religion Clauses, which states that a Senate vote in 1789 specifically rejecting non-preferential aid is the best evidence of the Framers’ intent. Given the conflicting evidence in the various states at the time of the Constitution, I agree with Laycock that the best evidence is what the Framers adopted and chose not to adopt. The First Amendment forbids “an Establishment of religion” not the establishment of a religion.
Three years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion. Commenting on the decision, Geoffrey Stone, a distinguished constitutional scholar at the University of Chicago, offered “a painfully awkward observation”: that all five justices in the majority were Catholics and the four dissenters were either Protestants or Jews. “It is mortifying to have to point this out,” Stone remarked. “But it is too obvious, and too telling, to ignore.” Scalia, one of the five in the majority and a former colleague of Stone’s, was outraged, calling the observation “a damn lie.”
Was Catholicism a factor in the decision? Scalia told the journalist Joan Biskupic that he does not separate his religious life from his intellectual life. A recent book on Anthony Kennedy, Justice Kennedy’s Jurisprudence, persuasively suggests that he has been influenced by Catholic moral teachings. Perhaps Stone was correct in his correlation of public jurisprudence with private faith, although evidence is hard to come by.
A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion. It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.
Scot Powe is the author of The Supreme Court and the American Elite, 1789-2008.