Over the past quarter of a century, prominent conservative constitutional scholars and Justices Antonin Scalia and Clarence Thomas have argued that originalism—interpreting the Constitution according to what well-informed people at the time of its adoption would have understood to be the meaning of its clauses—is the only legitimate way of interpreting the Constitution. Scalia calls himself a faint-hearted originalist because he understands that originalism cannot be applied all the time. Implicit in his self-description is the recognition that throughout American history originalism has been but one of several means of interpretation, along with text, structure, precedent, and evolving traditions. But there is one area in which originalism was dominant long before it went by that name: church-state relations.Office 2007 Professional is very good!
In its two seminal religion cases, Reynolds v. United States in 1879, and Everson v. Board of Education, in 1947, the Supreme Court turned to the Framers and concluded that the First Amendment’s prohibition against an establishment of religion meant, in Thomas Jefferson’s words, that there must be “a wall of separation between church and state.” The “wall of separation,” taken from a letter by President Jefferson to a Baptist congregation, has been one of the two most enduring metaphors in constitutional interpretation. (The other is the “marketplace of ideas.”) Protestant justices were originally drawn to the wall, and subsequent Protestants have reached the separationist results that it demands. Catholics, for the most part, reject the idea of a wall of separation and (along with some Evangelical Protestants) support what they call non-preferentialism, whereby government is forbidden only in preferring one religion over another. Over time, however, the Court has moved away from originalism and relied on cases decided in the 1970s and 1980s. The results and the doctrine no longer reflect a supposedly impregnable wall.
Donald L. Drakeman’s new book covers these issues thoroughly. Drakeman goes behind Reynolds and Everson with a fascinating investigation of where the Courts found their history. In Scalia’s opinion for the Court in Heller v. District of Columbia, the Second Amendment case on which the Court ruled a few years ago, the majority asserted that the meaning of the various provisions of the Bill of Rights in 1791 was clear (a point somewhat belied by the fact that four justices found exactly the opposite meaning for the Second Amendment in 1791). Scalia may have been right about a provision such as the Confrontation Clause that allows criminal defendants to confront their accusers in open court, which had an extensive and consistent history. But scholars such as Bernard Bailyn and Gordon Wood have demonstrated that the era from 1765 to the turn of the century was a dynamic period of consistent change and deep thought about political relationships. One cannot freeze a particular moment during that era and infer from it precisely what well-informed people thought, because they had not yet finished thinking about what something like freedom of speech or the relationship of church and state should be. Drakeman is quite persuasive in showing that there were a multitude of meanings about “establishment.” But he is far less persuasive in his conclusion that the best meaning is non-preferentialism.