FROM THE ARCHIVES : ESTABLISHMENT IS AN AWFULLY HIGH BAR:

If we seek evidence of the broadly shared public view of the meaning of the Establishment Clause at the time of the Founding, we find not an insistence on strict separation of church and state but instead a largely uncontroversial willingness to see the government act in a non-coercive and non-discriminatory manner to encourage religious belief and practice.

This brings us to Thanksgiving and the country's tradition of presidential proclamations of thanksgiving. As Rehnquist observes in his Wallace dissent, the First Congress--the same Congress that Madison led in drafting the Establishment Clause--passed a resolution asking President George Washington to proclaim a day of thanksgiving for the nation. Washington complied, and his proclamation of October 3, 1789, is as clear an example as one could wish of government encouragement of religion.

Washington began by claiming that it is "the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor." He then proceeded to "recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious being, who is the beneficent Author of all the good that was, that is, or that will be." To believe that the original understanding of the Establishment Clause requires strict separation of church and state, or utter government neutrality between religion and irreligion, we would have to believe that the first Congress and the first president pursued a line of conduct that was inconsistent with the Constitution they were then in the process of implementing.

In response, defenders of strict separation have argued that Washington's 1789 Thanksgiving Proclamation does not necessarily shed any light on the founding generation's understanding of the Establishment Clause. After all, they point out, although the First Amendment was being crafted at the same time as Congress requested the Thanksgiving Proclamation, it was not ratified for another two years. Washington's Proclamation, then, was not a violation of the Constitution because the Constitution at that time did not include the Establishment Clause. Therefore, the fact that these founding statesmen did not seem to be conscious of anything unconstitutional in their actions does not necessarily shed light on the meaning of the yet-to-be formalized Establishment Clause.

This argument is clever but unpersuasive. Clearly, the first Congress passed the Establishment Clause--adding it to the nation's fundamental law--because they thought it would be deeply improper for Congress to make any law respecting an establishment of religion. If strict separationism is a correct interpretation of the founders' understanding, then we must believe that they thought, in addition, that any government promotion of religious belief--no matter how non-discriminatory and non-coercive--was also deeply improper.

If that was in fact their belief, it is not credible that they would have sought the Thanksgiving Proclamation as they did, even if the Amendment formally prohibiting what they thought deeply improper had not yet been ratified. It is hardly reasonable to think of the leading statesmen of the founding period as the kind of men to eagerly seize the chance to get away with something they disapproved of and were in the process of forbidding. They would no more have done so than they would have tried to use unreasonable searches and seizures or deprive citizens of the right to confront their accusers while the rest of the Bill of Rights was still pending before the states.

In any case, this argument is also undercut by the fact that Washington issued a very similar proclamation in 1795, after the First Amendment had been ratified and was an operative part of the Constitution. In this pronouncement, Washington once again reminded Americans of their "duty as a people, with devout reverence and affectionate gratitude, to acknowledge our many and great obligations to Almighty God and to implore him to continue and confirm the blessings we experience." Once again, Washington went on to recommend "to all persons whomsoever" in the United States to set aside a specified day "as a day of public thanksgiving and prayer."

Similar proclamations of days of thanksgiving were issued by Washington's successor in the presidency, John Adams. And while Jefferson declined to issue any during his presidency, even James Madison, Jefferson's partner in disapproval of governmental support for religion, issued them during his tenure as president. It may well be that Madison did so against his better judgment to placate the public's expectations. Those expectations, however, once again confirm that the dominant sense of the founding generation was that there was nothing constitutionally improper in a governmental exhortation to religious activity.

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