The Framers' Establishment Clause: How High the Wall?

I. INTRODUCTION Our nation's motto is "In God we trust."1 The motto, taken from the closing bars of our national anthem, "The Star Spangled Banner,"2 has appeared on United States coins and currency since 1865(3) and is emblazoned over the entrance to the Senate Chamber in the Capitol.4 When we pledge allegiance to our flag, we proclaim "one Nation under God."5 Public officials complete their oaths of office with "the final supplication, `So help me God.'"6 Both houses of Congress have paid chaplains,4 who begin each day's session with prayer.8 Likewise, the Supreme Court crier, since Chief Justice Marshall's tenure, has invoked God's grace on the Court each time it takes the bench.9 Religion has long been a part of our country's fabric.10 The possibility of restraints on the development of this religious heritage was an early concern of our forefathers.11 In 1791, the First Amendment to the Constitution was ratified. With regard to religion, this timehonored amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . ."12 This phrase consists of two clauses, which some suggest have contradictory meanings to an extent.13 One clause, the "Free Exercise Clause," gives individuals the right to worship as they choose without the fear of governmental regulation or reprisal.14 The other clause, the "Establishment Clause," has proven to be more difficult for the courts of this land to explain or understand. Several Supreme Court cases interpret the Establishment Clause as creating an impenetrable wall that prohibits any relations between a government and the churches within its borders.15 However, nowhere in the Constitution are the words "separation of church and state" to be found.16 Those of us who earn our living in the legal system have sometimes coined phrases that help us to understand principles underlying the various doctrines with which we work. At times, these phrases, such as "separation of church and state," are so widely and repeatedly used that we begin to substitute the phrase for the actual underlying rule. Many legal historians believe that the courts have misunderstood the Framers' intent in drafting the Establishment Clause.17 It has been argued that a more realistic phrase to describe the original meaning of the Establishment Clause would be "no preferential treatment for a particular church."18 Some scholars assert that the Supreme Court itself has admitted to misreading the historical meaning of the Establishment Clause, yet instead of following the Framers' intentions, the Court has perpetuated a contemporary rendition of the First Amendment that erroneously bars any mixing of church and state.19 I have long advocated interpreting the Constitution and the Bill of Rights based upon the intent of the Constitutional Founders (Founders) and of the Framers of the Bill of Rights (Framers),20 Such an approach, I hold, follows naturally from the constitutional principle of separation of powers, as well as from the intrinsic value of democracy.21 The people ratified the First Amendment through their chosen delegates,22 who were commissioned with the responsibility of setting social policy. Those delegates devoted a substantial amount of study, debate, and compromise to arrive at a final draft of the First Amendment.23 Looking to original intent also "provides [greater] predictability and stability" in matters of constitutional law.24 Recognizing Congress's role as policy setter and lawmaker, the courts have traditionally looked to history in religion cases to aid in their interpretation of the amendments.25 But in its historical analysis,26 the Supreme Court has ignored certain crucial facts, creating a distorted picture of what the Framers intended. In this article, I reexamine what the members of Congress meant by the Establishment Clause when they prohibited "an establishment of religion." Part II reviews aspects of the broader context in which the Constitution and First Amendment were drafted. …