Following the Supreme Court’s (in)famous 1947 decision, Everson v. Board of Education, which constitutionalized a strict-separationist interpretation of the Establishment Clause on the basis of the Clause’s purported original meaning, generations of scholars have sharply disagreed on what the original meaning actually is. In Church, State, and Original Intent, Donald Drakeman, a lecturer in Princeton University’s department of politics, shows that the strict-separationist interpretation was a house built on sand.
Beginning with the Mormon polygamy case, Reynolds v. United States (1879), the Court repeatedly turned to the most distinguished historians of the era to ground its historical claims. In writing their Everson opinions, Justices Hugo Black and Wiley Rutledge followed historians Charles Beard and Irving Brant.
The weak foundation they provided for the strict-separationist interpretation was the claim that James Madison’s and Thomas Jefferson’s activities and writings, particularly Madison’s Memorial and Remonstrance and Jefferson’s Letter to the Danbury Baptist Association, grounded the Establishment Clause’s original meaning. “[E]stablishment clause jurisprudence,” Drakeman writes, “clearly owes a considerable debt to Whiggish myth-making by a number of respected historians in the nineteenth and early twentieth centuries.”
Relying on the Justices’ notes and correspondence, Drakeman argues that both Black and Rutledge “set off on a premeditated search-and-employ mission to locate historical events” to support their preferred outcomes.
Rutledge, for example, marshaled the writings of Madison and Jefferson to protect “secular” public schools—and hence, in his view, American democracy—by refusing public funding for Catholic schools. He admitted to a friend that he “felt pretty strongly about the Everson case but tried to keep the tone of what I had to say moderate and also to avoid pointing what I had to say in the direction of any specific sect. The Virginia history was admirable for the latter purpose.”
Black agreed to the funding at issue in Everson, but refused to countenance further religious school funding. He then set out to cull arguments from Reynolds and the ACLU’s brief to support this outcome.
Drakeman’s work bolsters that of other scholars, such as Philip Hamburger in his Separation of Church and State, who have shown that many aspects of the Supreme Court’s strict-separationist interpretation were, as Justice Clarence Thomas described it in Mitchell v. Helms (2000), the product of anti-Catholic animosity. His exposition of the Everson court’s flawed history is both a cautionary tale for originalists and a lesson that today’s sophisticated originalism is a viable project.
First, originalism’s critics have frequently argued that originalism is a flawed interpretative methodology because it requires honest historical analysis of issues of great import and this is simply too much to ask of judges. There is a significant amount of truth to this criticism. Everson shows that judges can construct a plausible case for mistaken historical claims to achieve desired policy outcomes.
This brings us to the second lesson: Originalists, recognizing this criticism, have rearticulated originalism to overcome it. For example, today’s originalism focuses on the constitutional text’s publicly understood meaning when it was ratified, instead of the purported “intent” of the Clause’s framers. This makes it harder for justices to cherry-pick “framers” to reach their desired result. Justice Scalia’s majority opinion in District of Columbia v. Heller (2008), exemplifies this approach.
Another move made by originalists, one followed by Drakeman, is distinguishing between constitutional interpretation and constitutional construction. Interpretation is the activity of recovering the Constitution’s determinate original public meaning. Construction is the activity of creating constitutional meaning when the original meaning is indeterminate. This distinction permits originalists to acknowledge when history “runs out.” It makes originalists modest in their historical claims by relieving them of the task of finding all the answers in history.
Given the Supreme Court’s historical focus and, more importantly, the stakes for the contending sides in the church-state debate, it is not surprising that Everson “created a cottage industry populated by prolific originalists.” Drakeman groups them into nonpreferentialists, strict-separationists, and the “enhanced federal[ists].”
Nonpreferentialists claim that the Clause permits nondiscriminatory aid to religious groups and activities, while strict-separationists contend that it forbids governmental aid to religion. Enhanced federalists make the more limited claim that the Clause preserves state jurisdiction over religious matters and denies jurisdiction to the federal government.
Drakeman gives each camp a fair hearing and, in doing so, performs his own historical analysis. He concludes—noting that this conclusion does not fit his policy preferences—that the Clause’s “original meaning was to forbid the establishment of a single national religion.” (Call this the “no-national-church” interpretation.)
The most important historical fact, he writes, is that the Clause’s adoption engendered little controversy or debate. The strict-separationist interpretation, which would have, is therefore implausible. Only the no-national-church interpretation, which was widely accepted by Americans in 1791, can account for this lack of significant debate.
The enhanced federalism position fits the absence of controversy and is therefore a plausible reading of the Clause’s text, but Drakeman rejects it. It “is arguably consistent with the language but unsupported by the documentary record [while the] no-national-church reading [has] a great deal of evidence in the records of all of the relevant events.”
Other historical evidence, he argues, makes his no-national-church interpretation superior to the strict-separationist and enhanced federalism interpretations. For example, both state and later the federal governments aided religion, while the primary substantive concern behind the Clause was that a Protestant denomination would become the established national church.
Drakeman also rejects the nonpreferentialist interpretation, though here his arguments are less persuasive. He acknowledges that state and federal governments aided religious groups and activities—both materially and rhetorically—but argues that, since this aid was primarily directed at Protestant denominations—to the exclusion of Catholics, Jews, and other religious groups—it is not evidence of truly nonpreferential aid. “Whether genuinely nonpreferential financial support for religion in general would have constituted an establishment in the minds of Americans in the Founding Era is an interesting but entirely hypothetical question.”
Why, then, if preferential aid to religion is not an establishment, nonpreferential aid is? If the original meaning of “establishment” did not preclude preferential aid to religion, it would not preclude practices less analogous to an established church, such as nonpreferential aid.
Perhaps the most potent example of federal nonpreferential aid to religion, as Drakeman notes, was the continuous federal aid to Indian missionaries, including Catholic missionaries. The extensive record of government aid to religion shows that the nonpreferential interpretation was, like Drakeman’s own no-national-church interpretation, relatively noncontroversial and therefore a plausible interpretation.
The no-national-church interpretation of the Clause, Drakeman argues, is the broadest interpretation the evidence will support. Beyond that core of determinate original meaning, there is insufficient linguistic consensus.
For instance, as he argues, the term “establishment” included legally established preferences for one sect or denomination, but we do not know what it may have meant beyond that. Hence, the Clause does not answer many of the questions that exercise church-state debates today. These are (or ought to be, under the Constitution) the domain of constitutional construction by the political branches.
Though one may disagree with this conclusion, Church, State, and Original Intent is a valuable addition to our understanding of the Constitution’s original meaning, even in a crowded scholarly field. Donald Drakeman provides a fair and accessible review of the history and scholarship on the Establishment Clause’s original meaning, shining a light on the unpersuasive historical basis upon which the Supreme Court adopted its strict-separationist interpretation.
Lee J. Strang is associate professor of law at the University of Toledo College of Law and is currently writing on the history of Catholic legal education (with John M. Breen) and on the place of virtue ethics in originalism .