Guest Essayist: Michael Krauss, Professor of Law, George Mason University School of Law

The very first part of the First Amendment to our Constitution reads as follows: “Congress shall make no law respecting an establishment of religion…”   What does this text (commonly known as the Establishment Clause) mean?  Does it mean the same thing today as it did when it was enacted?  Today’s post will focus on this topic.

The first ten Amendments to the United States Constitution were adopted because many of the Founders feared that the new federal government they were setting up would become tyrannical.  Other Founders did not share that fear, because the federal government was to have only enumerated powers and not general powers to do anything it deemed to be in the general welfare.  [Today many in Congress seem to believe that the federal government has just this plenary power – perhaps this is a tribute to the prescience of the “anti-Federalists” who insisted on inserting these amendments.]  As regards the establishment clause, it is clear that at the very least it was meant to prevent the federal government from creating a new Church, on the model of the Church of England – let’s call it the “Church of the United States.”  The fear was that this church would be “established” and funded with taxpayer dollars throughout the land.  The creation of a compulsory, or even a subsidized, American church was precisely the kind of British model that the founders all wished to avoid, and so James Madison (who was one of those who felt there was no real risk of federal expansion anyway) was quite content to accede to the requests of his more nervous colleagues and write this prohibition into the Constitution.  No federal church was established, of course, but the same people who adopted the Establishment Clause also created a national day of prayer, named Chaplains for the military academies and allocated moneys for the evangelization of Indian tribes.  A few (notably Thomas Jefferson) wrote that government should be totally divorced from any religious actions, but even Jefferson as President allocated money to pay for priests and churches on Indian reservations, if the Indians so requested.  Again, support for religion in general, without preference for any specific sect, was the order of the day.

But if an established federal church was to be prohibited by the clause, it is clear that established state churches were not to be touched (one early version of the clause also affected the states, but it was quickly abandoned).  All the New England states (from Connecticut north), and all the Southern States (from Maryland south) had established churches at the time the First Amendment was adopted – different Protestant denominations in each state.  Jews and Catholics suffered under various legal disabilities in different states until all were removed in the mid-nineteenth century.  The states were quite clearly to be free to continue in this path – recall that the Clause states only that “CONGRESS shall make no laws…”  After the Civil War, other amendments were adopted to ensure that the new American citizens (the freed slaves and their descendants) would have full citizenship rights in every state, and one of these Amendments, the Fourteenth Amendment (about which someone else will be blogging) was interpreted by the Supreme Court as incorporating most (likely all) of the limitations of the first ten Amendments against all the states.    As the “incorporation” doctrine became entrenched, the case law concerning the Establishment Clause increased.

This case law slowly veered Establishment Clause jurisprudence away from non-preferentialism and toward antipathy to religion.  In the 1879 Reynolds case (in which a Mormon unsuccessfully claimed a religious right to practice polygamy), the Supreme Court opined (though it did not have to decide this question to resolve the case at hand) that Jefferson’s declared view (that the federal government should not even acknowledge religious activity) was the authoritative meaning of the Establishment Clause.  American legal history was replete with examples to the contrary (not only most Founders’ declarations, the national prayer day, the chaplaincies and the Indian missions, but also the declaration of Christmas as a national holiday and the mentions of God on our money and on our Supreme Court building).  In 1947, the Everson case allowed states to pay for school busses for all students (even those who frequented religious schools) but signaled that governments’ recognition of citizens’ religious choices could go little further.  Since then cases have denied the right of public school boards to have ecumenical invocations before solemn events.  Last week a federal judge struck down National Prayer Day – though this had been an institution since the time of the Founding!

In God We Trust is a maxim many of us hold dear.  Most of our Presidents finish their speeches by asking God to bless our people.  Our Supreme Court itself is adorned with multiple sculptures depicting the Ten Commandments, and the Justices begin each and every session with the intonement, “”God save the United States and this honorable court.” Will these reminders of the ultimate authority of the values upon which America was built be one day banned?  The answer to these questions and more ultimately will be resolved by the Supreme Court’s interpretation of the U.S. Constitution and the Bill of Rights.

April 27, 2010

Michael Krauss

Professor of Law

George Mason University School of Law

Arlington, Virginia  22201

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