accountabilitybloke (old blog)

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The “Establishment Clause”: the battle of the revisionists

Both sides of the current “separation of church and state” debate are relying on revisionist histories of why the First Amendment is phrased as it is. The O’Donnell’s of the world are not as stupid as they might seem; but their framing of the historical meaning of the establishment clause is just as distorted as those who assume it is clearly a manifestation of some Enlightenment principle.

One must recall that the Constitution – including the first Amendments which emerged from promises made during the ratification process – was the product of political compromises crafted in the heat of a major transformation of government. Whatever philosophical or principled rationales have been used to justify the ratification of the Constitution (e.g., the Federalist Papers) or the formulation of the Bill of Rights, the reality is that they emerged out of political necessity given the manifold arguments against the Constitution.

Despite scholarly efforts to create the image of an “Antifederalist” (anti-Constitution)  movement at the time of ratification, there was no effective unified opposition to the Constitution; rather, there was a state-by-state opposition in which each jurisdiction (assembled as ratifying conventions) had to be satisfied that its sovereignty and interest was being addressed.  In some instances this could be done through persuasion with little or no substantive change to the document put on the table (e.g., Delaware). In other cases, some promises of formal  adjustments were made, or a contingency was added to a state’s official ratification (e.g., the inclusion of a Bill of Rights). At the other extreme, of course, was Rhode Island which (quite frankly) was eventually threatened with military action by its neighbors (Massachusetts and Connecticut) unless it ratified. The bottom line is that there was no consensus on many provisions of the Constitution and much of what was included at Philadelphia and through ratification amounted to political bargains struck in order to get the new constitutional regime in place.

Seen in that light, the establishment clause was a political solution to the bothersome problem that certain states did in fact have an official (and constitutional) tie with certain churches. While many state charters or laws contained provisions for the “toleration” of religious choice (often restricted to Christians, however), established churches existed before and after the passage of the First Amendment. In fact, it was not until 1811 that Connecticut gave up its official church, and Massachusetts got around to it in 1832. In light of these facts, the establishment clause was in fact a protection of state religions from action by Congress that might challenge the official state religions of the states.  In that sense, the establishment clause was designed to support state religion (at the state and local levels) rather than prohibit it.

In short, the establishment clause was not related to some Enlightenment principle of separation of church and state. Rather, it was part of the “federalism” compromise that facilitated the adoption of the Constitution itself.

Over the years, however, the provision has taken more substantive meanings related to the separation of church and state. One can trace the often cited positions of Jefferson and Madison, for example, not to debates over establishment of a national church, but rather to the heated rhetoric surrounding how their State of Virginia would handle the church-state issue within its jurisdiction. This was not a new issue for the framers’ generation, but rather something colonists had wrestled with for at least 150 years prior. (The history of Maryland’s efforts to create and sustain Catholicism as the state religion during the 1600s is instructive, not only for that colony, but also for its influence on the British approach to colonial governance.) The First Amendment was not designed to end those state-level debates, but rather to take the national government factor out of the equation.

The state-level debates were over options that ran the range from retaining a state religion (again, the Massachusetts example is instructive), to having a strong “religious toleration” provision in law as a supplement to the adoption of a state religion, to an outright and explicit prohibition against the establishment of a state religion (e.g., the debate in Virginia). The First Amendment was relevant only in that it left such decisions up to the states (and some ended up leaving it up to local jurisdictions).

Through interpretations and constitutional constructions overtime, the establishment clause eventually took on a meaning associated with the “wall of separation” doctrine, and when the 14th Amendment extended (over time)) the provisions of the Bill of Rights from Congress to the states, the wall of separation doctrine came along with it. That interpretive and constructed “meaning” of the establishment clause as creating a “wall of separation” may be – as Rehnquist once argued – based on “bad history” in the narrow sense of distorted facts; but the salient fact is that it is the working and operational view of the establishment clause. To see it through purely “originalist” eyes (as many on the political Right would like to) is to ignore the reality of 225 years of historical record.

October 20th, 2010 Posted by | accountabilitybloke | no comments

Sunstein for Attorney General…and/or Justice of Supreme Court

The CEO model of the US presidency implied in the unitary executive theory has become so ingrained in our governance psyche that it clearly shapes the  rhetoric of campaigns such as the one we have just been through. I cringe whenever I hear the cliche of choosing between the lesser of two evils, but often that is the case when it comes to the presidency. Both candidates tend to play to the biggest base of them all: a public that is blindly committed to the idea that we have (and should have) a White House-centered system.

I suspect I am far from the typical “liberal” in my commitment to an “anti-unitary” theory of executive power — and a view of the American constitutional system as Article I (Congress) centered. Whatever might be owed to the heroic ideal fostered by the Roosevelt (TR as well as FDR) presidencies, the past 8 years demonstrate the wisdom of a more “conservative” notion of US governance. (Damn the labels!)

[Interestingly, the individual perhaps most responsible for pushing the unitary theory in practice, David Addington (he of the soon-to-be-history Dick Cheney regime) claims to “not know” what it is — unless you ask him the right way. See http://tinyurl.com/6xuc4f.]

For all the rhetoric of the Obama platform and campaign that implies a belief and commitment to the CEO model, I found flashes of a real understanding in some of his comments during the race that give me some hope of a commitment to bring some sanity and balance back into the separation of powers. His most direct response to issues raised in this regard are found in December 2007 interview: http://tinyurl.com/35jo46. (Also see http://tinyurl.com/6484qz.)

The other indication that Obama may bring the practice of executive power back in line is his (alleged) close relationship with Cass Sunstein — an brilliant scholar/lawyer who has (along with Lawrence Lessig, of “Code” fame) provided us with the clearest analysis of the theory and its problematics (see http://tinyurl.com/5rg7gs for Sunstein blog post on issue).

Which makes me think that Cass Sunstein would make one hell of an Attorney General — if not a great Supreme Court Justice.

November 5th, 2008 Posted by | accountabilitybloke | one comment