December 6, 2011


Interpreting the Establishment Clause (without an Agenda) (Russell Nieli, December 5, 2011, Public Discourse)

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.

Posted by at December 6, 2011 5:46 AM

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