Wrong Jurisdiction
Steven D. Smith March/April 1998
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What is the "original meaning" of the First Amendment's religion clauses?
Though in Everson v. Board of Education (1947), the Supreme Court advanced the "strict separation" account of the Establishment Clause, dissenting scholars and judges have argued for an "accommodationist" alternative instead. In Boerne v. Flores, meanwhile, Justices O'Connor and Scalia used history to defend opposite positions on free exercise: O'Connor thinks the framers of that clause intended to exempt religious objectors from generally applicable laws, while Scalia is convinced they didn't.
These types of fundamental disagreements are typical. In fact, even after more than 200 years scholars still disagree over the substance and meaning of the two clauses on which America's religious freedoms have been based.
Why such discrepancies from the same 16 simple words? The problem, scholars sometimes suggest, is that the framers said very little about what they were doing. In stark contrast to debates at the state level on religious matters, congressional discussions of the religion clauses were astoundingly brief, and the little they did say seems lamentably obscure. Leonard Levy complains that congressional discussion of the clauses was "sometimes irrelevant, usually apathetic and unclear. Ambiguity, brevity, and imprecision in thought and expression characterizes the comments of the few members who spoke." 1
Donald Drakeman adds that arguments about the establishment clause's original meaning "are just short of complete speculation because they are based solely on the extremely sparse and highly questionable historical records. The records simply contain too little evidence."2
Yet the problem goes deeper than the mere scanty historical evidence. So much confusion exists over the religion clauses because the wrong questions have been asked about them. Modern scholars and jurists have tried to squeeze out of history answers to questions that the framers of the religion clauses self-consciously chose not to address.
In other words, for decades jurists and scholars have been looking to the religion clauses for some overarching principle of substantive rights when, in fact, the clauses weren't written to give any such theory. The religion clauses, instead, simply assigned the jurisdiction of religious matters to the states, and had nothing to do with formulating any kind of religious liberty theory that could be the basis of all church-state jurisprudence. Thus, the confusion exists because scholars have been trying to find from these clauses something that isn't there.
What the Framers' Question Was-And Wasn't
Modern judges and legal scholars typically look to the history of the religion clauses with these central questions in mind: "What kind of right or principle of religious freedom did the framers intend to adopt?" Was it a "strict separation" principle? A "no discrimination among religions" principle? Or did the framers enact a right to free exercise exemptions from general laws similar to that contained in the Religious Freedom Restoration Act, recently invalidated in Boerne?
These kinds of questions are natural enough; indeed, the mind-set of modern constitutionalists, with their fixation on rights and principles, probably makes such questions inevitable. Yet are these questions what the framers were even addressing with the clauses? The historical context suggest that they weren't.
First, the delegates to the Constitutional Convention and the members of the First Congress that drafted the Bill of Rights, including the First Amendment, were politicians, which means that for the most part they were not detached academicians or legal philosophers. On the contrary, they were drawing on practical political wisdom to deal with urgent practical and political problems. Second, and more specifically, the foremost practical and political problem that immediately confronted the founders was a huge one: they were trying to gain acceptance for a comprehensive scheme of government that allocated powers between state and national government in a way that was both novel and highly controversial. Whether the new scheme would succeed was touch-and-go.
In this context it shouldn't be surprising that while the founders addressed what had to be addressed, they carefully abstained from taking general positions on inflammatory issues that could be deferred or avoided. Madison explained, for instance, that in drafting the Bill of Rights he shunned "everything of a controvertible nature."3 In this context, what were the alternatives available to the founders with respect to church-state relations?
The founders might have tried to grapple directly with the problem by inserting into the Constitution some substantive principle regulating the relations between all government in general and religion. Or they could avoid, or at least defer, the substantive problem by assigning it to some other body or level of government-in particular, the states.
From today's standpoint it might be convenient if they had chosen the first alternative. Indeed, we have typically supposed that they did. Thus, on that assumption, we have proceeded to try to figure out what substantive principle or right they did adopt-and then, of course, to explain away all of their apparent departures (legislative chaplains, or Thanksgiving Day proclamations, or financial subsidies to support religion among the Indian tribes) from the principle attributed to them.
However, considering the historical context, it is easy to understand why the founders chose the second. Establishing some substantive principle that regulated the relation between government and religion would likely have been impossible (see below). On the other hand, virtually everyone agreed that religion was a matter for the states to regulate. In fact, the disputes did not question this assignment of jurisdiction, but only whether the assignment was adequately spelled out in the Constitution. Thus, it's not surprising that the founders carefully avoided adopting any general principle or right of religious freedom; instead they simply made it explicit that religion was within the jurisdiction of the states, not the national government.
Why the Founders Couldn't Have Adopted a Substantive Principle of Religious Freedom
At the time of the founding, opinions on the subject of governmental relations to religion fell into two broad and antagonistic categories: "traditionalist" and "voluntarist."
The traditional position holds, first, that religion is the necessary foundation for a stable social and political order, and second, that this religious foundation can be maintained only with governmental support. The traditional position, although alien today, had been almost universally held in Western societies for centuries. Even in this country it continued to elicit vocal support well into the nineteenth century from people such as Yale president Timothy Dwight. Moreover, the traditional position was clearly evident in the constitutions of states such as Massachusetts and Connecticut, which maintained not only established churches well after the First Amendment was adopted, but state laws that punished blasphemy and Sabbathbreaking and that imposed rigorous religious requirements as a condition of holding public office.
For example, in relatively liberal Pennsylvania it was a crime to "wilfully, premeditatively, and despitefully blaspheme, or speak lightly or profanely of Almighty God, Christ Jesus, the Holy Spirit, or the Scriptures of Truth." In 1791 the New Hampshire legislature narrowly defeated a bill providing that persons "convicted of speaking disrespectfully of any part of the Bible should have their tongues bored thro with a hot iron." New England states not only subsidized churches but also prohibited "unnecessary walking" on the Sabbath and imposed fines for irregular church attendance.4
But if the traditional view was influential, it didn't go unchallenged. The voluntarist position accepted the first but not the second of the traditionalist claims. Voluntarists typically agreed that religion was necessary to a stable society, but they did not think religion needed or should receive governmental support. Genuine religion would flourish as well or better, voluntarists predicted, if separated from the state. Dissenting religionists such as the Baptists, as well as enlightened politicians such as Madison and Jefferson, often advocated this position. The adoption in Virginia of Jefferson's Bill for Establishing Religious Freedom reflected voluntarist principles.
In addition, a few people like Jefferson may privately have rejected the need for religious faith altogether. At least Jefferson's critics sometimes suspected as much. Robert Baird, the nineteenth-century religious historian, maintained that Jefferson, "the arch-infidel," was "a very bitter enemy to Christianity, and we may even assume that he wished to see not only the Episcopal church separated from the state in Virginia, but the utter overthrow of everything in the shape of a church throughout the country."5
But whatever Jefferson's personal views may have been, even the tamer and more widely held traditional and voluntarist positions diverged radically on the fundamental question of the proper relation of government to religion. Though both agreed that religion was necessary to society, one thought government support for religion was essential, the other that it was anathema.
Each of these views was surely represented in both the Constitutional Convention and the First Congress. Madison, for example, had argued eloquently for the voluntarist position in the Virginia legislature; representatives from New England states probably inclined to the more traditional view. What would have been obvious to any clear-sighted politician, however, is that prospects for producing a consensus regarding these radically opposed views were nonexistent. Fortunately, there was no need for one, because both supporters and opponents of the new constitutional regime agreed that the national government was to be one of limited powers-powers that would not extend to the regulation of religion.
Consequently, supporters of the Constitution (the "Federalists") did what any sensible politician would do: They steered clear of the volatile religion issue by insisting on the uncontroversial proposition that religion should remain within the exclusive domain of the states. Thus, in the state debates over ratification of the proposed Constitution, Madison insisted that "there is not a shadow of right in the general government to intermeddle with religion." Other proponents of the Constitution made similar statements.6
In short, while the Constitution would leave Virginia free to disestablish religion, it would leave Massachusetts free to maintain its establishment (which it did well into the next century). The Bill of Rights, rather than enunciating some grand principle of religious freedom, left the states total autonomy in religious matters.
The Federalist First Amendment
Whatever the deep division in the founding period about the proper relationship between government and religion, there was general agreement that religion was a matter for the states. The only problem was that critics of the proposed Constitution (the Antifederalists) were not convinced that the Constitution would actually limit national powers in the way Federalists promised. True, the Constitution did not explicitly confer power over religion on the national government. But with admirable foresight, Antifederalists feared that the new government's implied powers, derived from sources such as the "necessary and proper" clause, would expand the national domain well beyond the Federalists' modest projections. So these critics demanded more explicit limitations on national power over subjects such as religion.
Federalists like Madison, however, argued that more explicit restrictions on the federal government were not needed, though they finally agreed to put the limitations on national jurisdiction in writing. Thus when Madison proposed what would become the First Amendment in the House of Representatives, Roger Sherman objected that the measure was "altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the constitution to make religious establishments." Madison expressly declined to disagree, but countered that it would appease some fears and do no harm to make the limitation on national jurisdiction more explicit.7
The very wording of the First Amendment reflects this jurisdictional purpose: "Congress [as opposed to the states] shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The denial of national jurisdiction over religion would satisfy voluntarists in Virginia that Congress could not establish a national church; it would also satisfy New England traditionalists that Congress would not meddle with state establishments and regulations of religion. And because the amendment was merely making explicit a jurisdictional division that both Federalists and Antifederalists already favored, it is not surprising that discussion of the amendment was both relatively brief and complacent.
To be sure, representatives like Madison might have wished for more; they might have liked to entrench voluntarist commitments in the Constitution. In fact, Madison proposed an amendment that would have prohibited the states from "[infringing] the equal rights of conscience." But the proposal was rejected in the Senate and never presented to the states for ratification.8 The Congress and the nation were evidently committed to the more limited federalist solution; they were unwilling to approve a more substantive principle of religious freedom.
Modern scholars may find the founders' strategy of using jurisdictional assignments to avoid substantive questions disappointing, or even incomprehensible. But the charge of scholars like Leonard Levy that congressional discussion of the religion clauses was often "irrelevant" seems misconceived. In fact, the discussion was highly relevant to the issues of jurisdiction the founders were concerned with; if the discussion seems irrelevant to the more substantive questions that Levy and other modern scholars and jurists are interested in, perhaps that should say something about the questions they've been asking.
Moreover, viewed in context, the founders' avoidance of controversial questions about religion seems sensible, even necessary. An effort to link the new government to either side of a fundamental disagreement about the relation between society and religion would probably have doomed the new constitutional regime. So instead the founder did the only prudent thing they could do: they stayed noncommittal on the conflict between the traditional and voluntarist views, a position reflected in the First Amendment.
The Futility of Modern "Original Intent" Advocacy
Modern law and scholarship have forgotten or perhaps repudiated the founders' federalist strategy; judges and scholars have taken it for granted that both the national and state governments should be subject to similar constitutional restrictions in the area of religion. This discussion does not show this supposition to be wrong.
What the analysis does suggest, however, is that contemporary constitutional restrictions cannot be derived from the original meaning or purpose of the religion clauses. Consequently, arguments calculated to show that the founders' original intentions mandate some particular principle of religious freedom-whether a "strict separation" or a "no preference" principle or something else-will inevitably rest on distorted history.
Typically such arguments come in two stages. First the advocate will produce evidence of what one or more of the framers or their contemporaries thought, not so much about the religion clauses per se, but about the meaning or value of religious freedom. Next the advocate will attribute that particular understanding of religious freedom to all the framers of the First Amendment. Whatever that person said, whatever the context, is suddenly applied to the Free Exercise and Establishment Clauses of the First Amendment to the U.S. Constitution.
Here is where the argument breaks down. Indeed, the very problem that makes resort to the two-stage argument necessary in the first place-that is, the absence of any serious discussion within the First Congress of the substantive problem of religious freedom, or of any substantive principle or right that the religion clauses might have been enacting-means that the application of a particular principle of religious freedom to one that the framers held in general is not persuasive.
Everson v. Board of Education nicely illustrates the futility of this sort of advocacy. Everson spends several pages discussing the colonial background and the content of Jefferson's Bill for Establishing Religious Freedom, which had been enacted in Virginia. Then, in a sentence, the Court infers that since Jefferson and Madison were heavily involved in drafting and supporting the Establishment Clause, that clause must be understood to have the same meaning as the Virginia statute.
Leaving aside the fact that Jefferson was not involved in drafting and enacting the Establishment Clause (although he did support a bill of rights), the Court's inference is plainly untenable. Although Madison supported or sponsored both measures, the differences are vast. To begin, the Establishment Clause is worded very differently from the Virginia statute. The Virginia statute was passed at a different time than the Bill of Rights, by an entirely different group of people than at the First Congress, and it was born in a completely different context that dealt with issues radically different from what those who drafted the Bill of Rights were dealing with.
To suppose that because Madison was heavily involved with both measures they must mean the same thing is like saying that since as a state legislator Senator Jones previously supported a particular measure dealing with state taxation, a national tax law sponsored years later by Senator Jones must have the same content as the state measure-even though the text of the national law is nothing like that of the state statute.
Freedom to Debate Religious Freedom
Of course, debates between separationists, accommodationists, and others will continue. Ongoing questions about aid to religious, private, or charter schools will inevitably to provoke controversy. What to do about the recently invalidated Religious Freedom Restoration Act will raise different questions as well.
In addressing these issues we can, of course, learn from history, but we should not be restricted or bound by any principle of religious freedom enacted by the framers of the First Amendment. In fact, their more jurisdictional resolution-the federalist solution of simply leaving the states free to deal with religion however they might choose-is one that has already been completely disregarded. Yet as long we keep trying to find in those clauses what isn't there, we will continue to get divisive and contradictory answers to some of the most fundamental and important questions that can be asked by a people who cherish their religious freedoms.
Steven D. Smith is the Byron R. White Professor of Law at the University of Colorado and author of Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (Oxford University Press).
FOOTNOTES
1. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (1986), p. 79.
2. Donald L. Drakeman, Church-State Constitutional Issues (1991), pp. 71, 72.
3. The quotation is reported in Gerard V. Bradley, Church-State Relations in America (1987),p. 88.
4. See generally Steven D. Smith, Foreordained Failure: The Question for a Constitutional Principle of Religious Freedom (1995), pp. 38, 39, 140, 141.
5. Robert Baird, Religion in the United States of America (1844; Arno Press, 1969), p. 230.
6. See Michael W. McConnell, "The Origins and Historical Understanding of the Free Exercise of Religion," Harvard Law Review 103 (1990): 1409, 1477.
7. The entire brief discussion in the House is reprinted in Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (1986), pp. 200-202.
8.Ibid., pp. 204-206.