University of Missouri School of Law Scholarship Repository Faculty Publications Fall 2011 Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation Carl H. Esbeck University of Missouri School of Law, [email protected] Follow this and additional works at: http://scholarship.law.missouri.edu/facpubs Part of the Constitutional Law Commons, and the Religion Law Commons Recommended Citation Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489 (2011) This Article is brought to you for free and open access by University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Faculty Publications by an authorized administrator of University of Missouri School of Law Scholarship Repository. USES AND ABUSES OF TEXTUALISM AND ORIGINALISM IN ESTABLISHMENT CLAUSE INTERPRETATION Carl H. Esbeck* TABLE OF CONTENTS I. INTRODUCTION ........................................................... 490 II. RELIGION AND RELIGIOUS FREEDOM DURING THE CONSTITUTIONAL CONVENTION OF 1787.................................................496 A. Religion and Religious Freedom in the 1787 Constitution...... ..... 496 B. Religion and Religious Freedom at the Convention ........... ..... 498 C. The Constitution's Overall Theory ...................... ..... 499 D. Historians and the Business of Over-Reading the Constitution.................504 E. The Religious Test Clause & FailedProposals .................... 506 III. RELIGION AND RELIGIOUS FREEDOM DURING THE STATE RATIFICATION OF THE 1787 CONSTITUTION ................................................ 508 IV. DRAFTING THE PHRASES ON RELIGIOUS FREEDOM IN THE FIRST FEDERAL CONGRESS, MAY TO SEPTEMBER 1789, AND ENSUING STATE RATIFICATION.....525 A. Before the House ofRepresentatives ................................527 B. Before the United States Senate.............................555 C. Back to the House ofRepresentatives........................... 560 D. Back to the United States Senate............................561 E. The Committee of Conference.............. ................ 561 F. FinalAction in the House ofRepresentatives..................... 564 G. FinalAction in the United States Senate .................. ..... 565 H. Refuting the Theory of Specific Federalism......... ............. :567 1. Grammar....................................... ..... 568 2. Reason......5........................569 3. Answering the Proponents ............................... 571 L Ratification in the States, October 1789 to March 1792......... ........ 575 V. PLAIN MEANING OF THE TEXT OF THE ESTABLISHMENT CLAUSE..................583 A. The Establishment Clause Does Not Codify a PreexistingRight ............... 583 B. The Establishment Clause Is Not Limited to Protecting Only Conscience..................................... ...... 587 C. The Establishment Clause's Negation ofPower Is Limited and Permits Regulatory Exemptions ............................ ............... 593 VI. THE CONSTITUTION'S OVERALL STRUCTURE AND UNDERLYING POLITICAL THEORY AS BEARING ON THE MEANING OF THE ESTABLISHMENT CLAUSE........596 A. Incorporatingthe Establishment Clause: Confusing a FederalistClause with a JurisdictionalClause.................................. 596 B. The Impossibility of Tension between the Religion Clauses..... ..... 601 ©C 2011 Carl H. Esbeck, R.B. Price Professor and Isabelle Wade & Paul C. Lyda Professor of Law at the University of Missouri. 489 HeinOnline -- 2011 Utah L. Rev. 489 2011 490 UTAH LAW REVIEW [No. 2 C. The FirstAmendment Restrains Government, Not the Private Sector ....... 608 VII. EARLY APPLICATIONS OF THE ESTABLISHMENT CLAUSE BY FEDERAL OFFICIALS ........................................... ..... 612 VIII. CONCLUSION ............................................. ........621 I. INTRODUCTION The text and original meaning' of the Establishment Clause 2 as drafted by the First Federal Congress was diminished in its importance when the United States Supreme Court handed down its decision in Everson v. Board of Education of the Township of Ewing in 1947.' Instead of looking to the record of the debates and journals of the First Congress, the- Everson Court adopted the principles animating the disestablishment struggle in Virginia, and less so the disestablishment experiences in other newly formed states, to give substantive content to the Establishment Clause.4 The dissenting justices in Everson would have taken the The focus of originalism has evolved from the "original intent" of the drafters, to the "original understanding" of those who gave their approval to the law in question, to the "original meaning" of the final text that also considers the conduct of those who first applied the Constitution. Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution's Secret Drafting History, 91 GEO. L.J. 1113, 1134-40 (2003). It is not that original intent or original understanding are no longer relevant. Rather, they remain major factors under the umbrella of original meaning. 2 The First Amendment reads as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. CONST. amend. I (the Establishment Clause appears in italics). 3 330 U.S. 1 (1947). 4Id. at 11-13. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia ... provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group. Id. at 11. In order to capture the states' disestablishment history in a single phrase, the Court drew upon Thomas Jefferson's letter of January 1802 wherein he had written the Danbury Baptist Association in Connecticut that "the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State."' Id. at 16 (citation omitted). However, Jefferson's metaphor was not precise enough an image to actually resolve the difficult church-state cases of the sort that were litigated after Everson. See Lynch v. Donnelly, 465 U.S. 668, 673 (1984) ("The concept of a 'wall' of separation is a useful figure of speech .... But the metaphor itself is not a wholly accurate HeinOnline -- 2011 Utah L. Rev. 490 2011 2011] ESTABLISHMENT CLAUSE INTERPRETATION 491 matter even a step further by generally conflating the beliefs of James Madison of Virginia with the meaning of the Establishment Clause. The imputation of the disestablishment experience in Virginia to the adoption of the Establishment Clause by the First Federal Congress is open to question as a matter of history. Not only were these two experiences very different law-making events, separated by four years, but the Virginia House of Delegates of 1784-1785 and the First Congress of 1789 were also elected by very different constituencies, composed of quite different legislative officials, bore different responsibilities, and harbored different ambitions and allegiances. The one common denominator in the two events was the active involvement of James Madison, a highly capable statesman with well-developed and strongly held views on church-government relations. Even Madison, however, was not singularly focused on religious freedom as Congress assembled itself in New York City in the spring of 1789. As a member of the House of Representatives and someone who had the ear of President George Washington, Madison was as much or more devoted to the implementation of a federated government of robust powers to replace the ineffectual Confederation Congress. When he did focus on religious freedom, Madison had the good sense to take into account that the First Congress was an description of the practical aspects of the relationship that in fact exists between church and state."). As matters have developed from Everson going forward, the meaning the Court would give to "the wall" metaphor was to be found in the ideas animating the Virginia and other state disestablishments. See McGowan v. Maryland, 366 U.S. 420, 442 (1961) ("[T]his Court has given the Amendment a 'broad interpretation ... in the light of its history and the evils it was designed forever to suppress."' (quoting Everson, 330 U.S. at 14-15)). 5Everson, 330 U.S. at 33-43, 52, 57, 63 (Rutledge, J., dissenting): No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history. The history includes not only Madison's authorship and the proceedings before the First Congress, but also the long and intensive struggle for religious freedom in America, more especially in Virginia, of which the Amendment was the direct culmination. In the documents of the times, particularly of Madison, who was leader in the Virginia struggle before he became the Amendment's sponsor, but also in the writings of Jefferson and others and in the