February 23, 2012 – Essay #4 – The First Amendment: The Establishment Clause – Guest Essayist:David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.
The First Amendment: The Establishment Clause
The Establishment Clause of the First Amendment might be less well known today than “the wall of separation between church and state” metaphor used by President Thomas Jefferson in an 1802 letter. This misinterpreted metaphor has come to define the modern debate over church and state, leading many Americans to believe that the Constitution calls for the strict separation of religion and politics.
In fact, what the Establishment Clause actually accomplished is nearly opposite what the Supreme Court in the twentieth century said it means. In barring Congress from establishing a national church, the Establishment Clause marked an important commitment of the Founders to civil and religious liberty. Unlike England, America would not have an official church. This is good for government, and good for religion. Congress was prohibited from imposing a one-size-fits-all religious straitjacket on the nation, leaving state governments wide latitude of operation in matters of church and state.
In the 1947 Supreme Court decision in Everson v. Board of Education, the First Amendment policy of federalism was supplanted by the doctrine of incorporation. Ruling that the First Amendment’s Establishment Clause is applied not just against Congress but also against the states (through the Due Process Clause of the Fourteenth Amendment), the Court put itself on a quick path to becoming the national arbiter of all disputes over religious matters pertaining to public entities. As Justice Hugo Black wrote, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach . . . .”
Under this new standard, the Supreme Court found breaches in the wall nearly everywhere it looked, as it ruled unconstitutional many longstanding practices, including prayer and Bible reading in public schools. Assuming the mantle of a “national school board,” as one scholar put it, the Court put forward various “tests” by which it sought to determine the religious or secular purpose of public assistance to religion.
The modern legal understanding of the Establishment Clause has led to a confusing array of contradictory decisions. For instance, whether a municipal crèche display is an unconstitutional violation of the Establishment Clause hinges in part on what other symbols—religious or secular—are included in front of city hall. State laws allowing government funding of secular textbooks for private schools have been deemed by the Court constitutional, but government funding of field trips in private schools has been held unconstitutional.
For the Founders, public support of religion, whether by the federal or state government, was never tantamount to the unconstitutional establishment of religion. In fact, nearly all of the Founders held that the public promotion of religion and virtue was vital to the maintenance of republican institutions. Religion was affirmed as a public good, not an evil to be kept private. Prudence dictated, many early Americans believed, that state established churches did not make for good policy, but none argued that when a dispute arose in a state about its established church, or public support of religion, that the national government should step in and impose a solution. That was a matter for the states to decide, and increasingly they would do so informed by constitutions and laws that upheld the full natural rights of all citizens.
Protection of religious liberty was of paramount importance to the Founders, but the means by which citizens were protected in their liberty came not mainly in the adoption of the Establishment Clause, but in the constitutional architecture as a whole. “The Constitution is a bill of rights,” Alexander Hamilton said, emphasizing the fact that the locus of liberty is not any list, but rather the equipoise of limited government, federalism, and separation of powers that should be maintained in the Constitution’s structure.
Finally, it is worth noting that the First Amendment was not even first on the list of twelve that James Madison originally proposed in the First Congress in June 1789. Nor was it first in the list the Congress sent to the states in September of that same year. When the two amendments preceding what is now the First Amendment were not ratified immediately (one was about representative ratios, while the other, which was adopted as the 27th Amendment, was about congressional compensation), the Establishment Clause was thrust into its starring role as the first clause in the First Amendment.
The Establishment Clause of the First Amendment is a clear statement of the fact that the United States of America has no official church. In endorsing the federalism of the Constitution, and explicitly barring Congress from arrogating unto itself power it does not have, the Establishment Clause reaffirms the powerful commitment of the Constitution to the promotion of civil and religious liberty.
David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C. Hillsdale’s free online course, “Constitution 101,” starts this week. The U.S. Constitution: A Reader, around which the course is based, includes 113 documents, including a complete section on religious liberty.