In a discussion on the religion law listserv last week, in an exchange with Jim Henderson, senior counsel with Pat Robertson's American Center for Law and Justice, the issue of constitutional law and original intent came up. Mr. Henderson was arguing that the original intent of the framers was the primary tool for constitutional interpretation and I, while agreeing with him that it is a very important tool, made the argument that it was not quite as simple as he seemed to think. The most obvious reason is because the framers themselves often disagreed on the meaning of various provisions. In that case, we must choose between competing interpretations. I gave him two easy and obvious examples.
Today we would surely all agree that the first amendment protects the right of newspapers to publish articles critical of the government. But the framers themselves disagreed on even so simple and obvious a question. In 1798, the Federalist-controlled Congress - federalists being the very same group that pushed for the ratification of the Constitution - passed the Sedition Act, making it a crime to say anything critical of the President or the Congress, either in speech or in print. Many newspaper publishers were fined and imprisoned for violating this act. After the election of 1800, then-President Thomas Jefferson pardoned all of those convicted under the act and refunded their fines. Surely, one must assume, the Federalists did not consider this act to be a violation of the first amendment freedom of speech or freedom of the press provisions; if they had, why would they have passed it? Yet today no one would look to this as evidence of the original intent of the first amendment.
Likewise the first amendment religion clauses, where there was wide disagreement on what exactly the clauses meant among the founders. Did the establishment clause prohibit the government from enforcing and coercing religious belief? Clearly so, and all of the founders agreed on that question. But what of endorsement that was non-coercive, such as proclamations of official days of prayer that, while no one was coerced into participation, nonetheless clearly was a government endorsement of religious practice, and often of Christianity itself? On this question, there was much disagreement. Washington, Adams and even Jefferson all issued such proclamations during their administrations. James Madison did so just once, under enormous political pressure, and after leaving office he expressed great regret for having done so because he viewed such proclamations as violations of the first amendment, which he himself had written and worked so hard to pass. Indeed, he wrote a document called the Detached Memoranda in which he argued that even the tiniest encroachments on complete separation of church and state must be resisted because they set a precedent that can later be used to push open the door to further encroachments. Reading that document today, most Americans would be shocked to see just how far Madison's views went, further even than most of the strictest separationsts would go today, including me.
For instance, in discussing the "danger of encroachment" that had been demonstrated by "precedents already furnished in their short history", he points to a Kentucky proposal to exempt churches from taxation, believing that to make churches tax exempt is to favor religion in violation of the first amendment. He even argued for laws limiting the amount of property a church could own, writing:
But besides the danger of a direct mixture of Religion & civil Government, there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations...
The excessive wealth of ecclesiastical Corporations and the misuse of it in many Countries of Europe has long been a topic of complaint. In some of them the Church has amassed half perhaps the property of the nation. When the reformation took place, an event promoted if not caused, by that disordered state of things, how enormous were the treasures of religious societies, and how gross the corruptions engendered by them; so enormous & so gross as to produce in the Cabinets & Councils of the Protestant states a disregard, of all the pleas of the interested party drawn from the sanctions of the law, and the sacredness of property held in religious trust.
He also argued that the existence of Congressional and military chaplaincies was unconstitutional, declaring, "The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship agst the members whose creeds & consciences forbid a participation in that of the majority." He further said that, mild as such an encroachment may be and laudable as the stated goal may be, it is best to be on guard against even the slightest precedent that might weaken the wall of separation, and even argued that the military should not provide chaplains for their soldiers:
Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex: or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura."
Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one.
Madison also argued strongly that government proclamations of thanksgiving, or days of prayer, were a dangerous precedent even if the participation of individuals was not compelled or coerced:
Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.
Altho' recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.
The objections to them are 1. that Govts ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt is a contradiction in terms. 2. The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people.
James Madison went further than even a staunch separationist like I would go. I have no problem with military chaplaincies, for instance, because I believe that they serve a clear secular purpose and help the military maintain morale. I also would strongly oppose a law that limited the amount of property that a church (or any other organization, for that matter) could buy. The point I'm trying to make, though, is that there was quite a range of opinion among the founders concerning the true meaning of the first amendement religion clauses.
We often hear from religious right apologists that the notion of separation of church and state requiring the government be entirely neutral on matters of religion is a "liberal invention" that didn't exist until the last half century. Madison's expressed views, which go even further than modern separationists and the courts have done, show this claim to be false. The strict separationist position can trace its pedigree back to the most important founding father of them all in terms of the actual written words found in the Constitution and the Bill of Rights. And he was not alone. Thomas Paine, Ethan Allen and others were also fervent supporters of this doctrine.
To bring this full circle, the argument I am making is this: constitutional interpretation often requires not merely looking for the "original intent", but choosing between opposite interpretations held by the framers themselves. I am not here arguing that we must therefore go with Madison's views, but that we must at least recognize that modern views of separation were not a 20th century invention and that the strict separationist view was not only present but prominent at the time of the founding. The argument then must proceed to the question of which of these competing views we should be using today, and why we should do so. That would surely include looking at things like the relative dominance of the various views among the founders, the understanding that the public voting for those provisions might have held ("original understanding" as opposed to "original intent"), and changes in our society that have taken place since that time that may have made one view more relevant than another (for instance, Madison's concern for minority views being locked out of the halls of power if the government makes religious proclamations surely applies more strongly today with our infinitely more diverse citizenry).
The same could also be said of the advocates of separation today, that they must recognize that the views that they oppose were very much accepted by a portion of the founding fathers. When Scalia, for example, implied during oral argument last week that the majority has a right to have its views acknowledged by government as long as those views are not imposed through coercion on others, he was espousing the accomodationist position that was accepted, at the very least, by Washington and Adams. Both the strict separationist position and the accomodationist position hold strong pedigrees that can be traced to the thoughts of the founders themselves. The real question, then, is not to determine the "original intent" but to establish some basis for deciding which competing view is more appropriate today.
Fabulous post Ed. Absolutely fabulous. How do you find the time?
Mr. Henderson was arguing that the original intent of the framers was the primary tool for constitutional interpretation...
He'd get a lot of argument there, and for good reason. While original intent is a legitimate interpretive modality, I do not agree that it is the primary modality, nor do I think it is the best modality. As you point out, ascertaining the legislative intent is often a fool's errand. Even if we can say that one legislator had a particular intent, that says nothing about the other legislators who were involved. Enacted law almost always involves compromise between different intentions. The same weakness is inherent in the "original understanding" modality. Of course, for someone who professes to be an originalist, therein lies the attractiveness of originalism. It is usually possible to find some expressed intention or understanding that supports the construction you like.
And of course if you call yourself a formalist, then you must be prepared to justify your formalist method over others, like text and structure. But you'll have a difficult time convincing me that any formalist method is inherently superior to any other. The bottom line, for me, is that originalism is a valid method of constitutional construction, but it is only one of many tools that we have at our disposal. While I appreciate the need for formalism, and I think it works well in the "easy" cases, it often falls short in the hard cases, like those involving the first amendment.
In those hard cases, what masquerades as formalism is often nothing more than realism dressed up in formalist trappings. Everyone does it; even Justice Scalia is a closet realist, a fact which he would vehemently deny, I'm sure. I have yet to find a formalist methodology that works in all cases, and there are people much smarter than me who have devoted much of their careers to this issue without much to show for it. At the end of the day, though, I think that is one of the things that makes the law so intriguing to me.
Religion law listserv? Where do I sign up? Or is it limited to attorneys?
No, the listserv is not limited to attorneys. I'm not an attorney myself. Eugene Volokh runs it, so if you send him an email he can tell you how to sign up for it. His email for the purposes of that list is email@example.com.
I substantially agree with Dan's points, but I'd like to add two others.
One, when "originalists" refer to the framers, who are they referring to? The particular individuals who wrote the constitution? The three individuals who tried to sell the constitution to the people of New York via the Federalist Papers? Them, and also, the legislators in the various states who voted to ratify the constitution? Them, and also, the voters in the various states who voted for the legislators? The idea that the "intent" of the people who wrote the constitution is to determine its meaning strains credulity. Are the intentions of the members of these other groups, who were actively involved in the ratification process, supposed to be ignored? If so, why? Originalists would have us ignore the intentions of members of these other groups.
Second, as has been noted elsewhere, the nation essentially died and was reborn during the period 1860-1880--the civil war--or the war of northern aggression, if you wish--reconstruction and finally the "readmission" of the southern states into the union. With the addition of the 13th, 14th and 15th amendments. It is not unreasonable to argue that that period death and rebirth, with the additional amendments, essentially marked a rebirth of the constitution. It marked a rather substantial revision of the relationships between the federal government and the states.
Thank you, Ed. I appreciate the information. I've sent a subscribe request.