History of the Establishment Clause

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FOOTNOTES

1 I have chosen to refer to the clause as the "Establishment Clause" rather than the "no-establishment clause" which was once my preference because of the possibility--sketched by modern accomodationists-- that some of the Framers intended by the clause to keep intact state establishments of religion. They wanted "establishment" (in their state) and therefore wanted to insure that the superior national government could not take it from them, thus the need for the establishment (not the "no-establishment"!) clause; laws touching state establishments would have been laws "respecting" establishment.

2 John Locke's defense of the sanctity of conscience influenced eighteenth century American thought including that of Jonathan Edwards, Thomas Jefferson and James Madison. Steven Smith, "Separation and the 'Secular,'" Texas Law Review, Vol. 67, 1989, 965 where he cites D. Richards, Toleration and the Constitution, 1986, 104-28.

3 The work of the Constitutional founding of America was understood until 1960 as primarily a liberal event. The writings of John Locke were considered the seminal influence, even though he might not have been widely read and even though many Americans were not even aware of his influence on them. [A seminal work would be that of Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (NY: Harcourt, Brace & World, 1955)]. In the 1960's, however, the Lockean, liberal reading of the founding was challenged by a number of scholars. Mildly the challenge was that Locke's influence was too simplistically accepted, and radically, that his influence was vastly overrated. Over the past twenty-five years new paradigms have arisen in attempts to fill the void created if the Lockean thesis is abandoned. Among these new paradigms are "classical republicanism, Scottish common-sense philosophy, and various forms of Calvinist Christianity." (Dale S. Kuehne, "Locke, Liberalism, and the Massachusetts Congregationalists" William Jewell College, Copyright by the American Political Science Association; presented at the 1993 annual meeting, Washington Hilton, Sept 2-5, 1993, p. 5.) "One of these locally important, but often overlooked groups is the Massachusetts Congregational clergy. In Massachusetts no group was more politically influential than the Congregationalists..." (Ibid, p. 8) William Lee Miller writes "It was not the rationalism of the Enlightenment--of those French books Jefferson sent across the Atlantic to Madison--that carried the day, important though it was...Out among the common people the evangelist's bible was even more important...America was born Protestant...and had to endure no Reformation...or religious wars." The First Liberty, 235, 247. Noted political scientist Ted Lowi has added to the list in his most recent book The End of the Republican Era. (Norman, OK: Oklahoma University Press, 1995). Lowi says America's truly conservative tradition has been missed by just about everybody. He says Hartz gave only half the truth (not, Lowi clarifies, a half-truth.) He writes, "It should have been Hartz's volume 2." (p. 23) Lowi is not referring to the conservative wing of the liberal tradition, present conservatives who are very much part of the liberal tradition. He is referring to classical conservatives who clearly put themselves outside of the liberal tradition (according to Lowi) with their insistence that the state can know the good and apply sanctions for deviation from it--such as the Congregationalists referred to above, or to give a modern example, the Religious Right. (137) Lowi writes, "...the conservative has confidence that true morality can be known...and once known, morality ought to be imposed--preferably by parents and community, but by law if necessary." (25). Another recent book among the growing number challenging the Hartzian thesis, from which this paper will draw evidence for the accomodationist position, is M. Stanton Evans' The Theme is Freedom: Religion, Politics, and the American Tradition, (Washington, DC: Regnery, 1994). Two others are political scientist Barry Alan Shain's The Myth of American Individualism: The Protestant Origins of American Political Thought (Princteon University Press, 1994), in which he argues that most 18th century Americans were not predominantly individualistic or classically republican but democratic and communal; and historian Stephen Innes' Creating the Commonwealth: The Economic Culture of Puritan New England (W.W. Norcott, 1995) which finds "communitarian capitalism," not raw economic individualism, in Puritan New England's robust economy.

4 One of the foremost concerns of antifederalists like Samuel Adams and Richard Henry Lee was the protection of individual liberty, especially in matters of conscience and religion. They pressed for the written protections of the Bill of Rights. The words of the dissenting minority from Pennsylvania's ratifying convention anticipates the Establishment Clause:

The right of conscience shall be held inviolable; and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate or infringe any part of the constitution of the several States, which provide for the preservation of liberty in matters of religion. (American Political Thought, Kenneth Dolbeare, ed., Chatham House Publishers, 1989, p. 137.)

5 Jefferson's intellectual influence as a champion for religious freedom and the severe limitation of governmental authority in the area of religion is acknowledged, at least in degree, by even modern opponents to the Jeffersonian view on establishment such as Robert Bork. While his influence is unquestioned, the debate turns on how extensive the influence is.

6 The term "step-parent" has been chosen in this metaphorical historical sketch of the Establishment Clause as a compromise between the traditional view sketched in the beginning of footnote 3 -- which would not acknowledge any parental role, surrogate or otherwise, for Protestant intellectual influence in the founding -- and the more recent view (which is gaining momentum with the new Republican domination of Congress and its close ties with the Religious Right) that insists that the Protestantism of the Founders is the key factor -- the "ubiquitous" parent -- in the early development of the republic.

7 Take, for instance, the view of Kathleen M. Sullivan in arguing against the darling-scholar for the Religious Right, Michael McConnell: she admits that "the culture of liberal democracy is a belief system comparable to a religious faith in the way it structures knowledge," yet "it has no fixed canon or creed.'" That is, it is both secular and relative. Religion must be privatized because of the prevailing secular liberalism. "Religion and Liberal Democracy," The University of Chicago Law Review, Vol. 59:195-214.

8 When this paper was first started, the Republican Congress had promised a Constitutional Amendment by July 4, 1995. It seemed to be in the same genre of previous such Amendments as dwelt with later in this paper. But the Amendment has taken on a matured form more promising for recovering some 'lost elements of the Establishment Clause. The "tomb" metaphor is thus hyperbole, but left for the time being because the Amendment has not yet run its course.

9 "In a rare and remarkable way, the Supreme Court's establishment clause jurisprudence has unified critical opinion: people who disagree about nearly everything else in the law agree that the establishment doctrine is seriously...defective." Steven D. Smith, "Separation and the 'Secular," Texas Law Review, Vol. 67, Number 5, April 1989, 956.

Stephen Carter agrees with Supreme Court Justice Clarence Thomas about the state of the Supreme Court's Establishment Clause jurisprudence: Thomas said it is "in hopeless disarray" and Carter writes, "The embarrassing truth is that the Establishment Clause has no theory; that is, the Supreme Court has not really offered guidance on how to tell when the clause is violated." (Carter, Culture of Disbelief, 109).

10 Evans, The Theme is Freedom, 67.

11 Justice Antonin Scalia in dissent in Kiryas Joel v. Grumet, 93-517, joined by J. Rehnquist and J. Thomas.

12 Bork, The Tempting of America: The Political Seduction of the Law, (NY: Simon & Schuster, Inc., 1990) 2.

13 Ibid, 5.

14 The Gun-Free School Zones Act of 1990, 18 U.S.C. 922(q)(1)(1988 ed., Supp. V.)

15 U.S. v. Alfonso Lopez, Jr.

16 Bork is obviously dealing with an ideal. Perhaps this is what judges should do. But not one of the political scientists who studies such things believes anybody is doing it. "I can think of no political scientists who would take plain meaning, intent of the framers, and precedent as good explanations of what the justices do in making decisions. Some political scientists and many lawyers think it would be nice if justices did follow precedent, the framers' intent, and so on; but that is another matter." Book Review of The Supreme Court and the Attitudinal Model by Gregory Caldeira, American Political Science Review, Vol 88, No. 2, 485.

17 Bork relates the dialogue between More and his son-in-law Roper taken from Robert Bolt's A Man For All Seasons, in his concluding chapter of The Tempting of America, 354-355.

18 Thomas states his view repeatedly in his short concurrence: "In my mind, government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple." Adarand v. Pena, Docket 93-1841, decided June 12, 1995. (Thomas, J., concurring)

19 William Kuntsler, Hints and Allegations: The World (in Poetry and Prose) (NY: Four Walls Eight Windows, 1994) 81.

20 From Rehnquist's dissent (under Chief Justice Burger) in Wallace v. Jaffree, as quoted in David M. O'Brien, Constitutional Law and Politics, Vol. II, Civil Rights and Civil Liberties, (NY: W.W. Norton, 1991) 698-699.

21 Even viewing what Rehnquist has said in its more favorable light, Robert Alley calls his "bad history" dismissal of the usual view of Madison on separation "the height of arrogance." Alley, School Prayer, (Buffalo, NY: Prometheus Books, 1994) 65. Perhaps Alley uses such strong language because the "bad history" view is exactly the view espoused by Justice Black in Everson v. Board of Ed (330 U.S. 1, 1947).

22 The two polar sides sketched here are incarnated in an recent exchange of letters between Leonard W. Levy, of the Claremont Graduate School, who has written a major book on the Establishment Clause (The Establishment Clause: Religion and the First Amendment, Univ. of North Carolina, 1994) and Judge Robert Bork, the rejected Supreme Court nominee, who is a Constitutional champion for many in the religious right. (Commentary, Vol. 100 #3, Sept. 1995, 12-14.) Levy argues for government neutrality toward religion, while Bork argues, drawing from actions toward religion by the First Congress, that the federal government could and should have a degree of involvement with religion, including offering aid.

23 The Court's decision June 29, 1995 in Rosenberger v. University of Virginia, may slow what had been a growing momentum for the Amendment, since that decision gives the Right the view of the Establishment Clause they were seeking by the amendment. In a June 30, 1995 interview, one of the consulting authors on the proposed amendment, University of Chicago law school professor Michael McConnell, called the decision "ambiguous" but admitted it would slow the amendment's progress. McConnell argued the case before the Supreme Court. He said if the Court had decided the case the other way, it would have "rapidly sped up the move for an amendment." Before the Court McConnell argued that the First Amendment does not prohibit all state support of religion, but only requires that a public institution resolving to underwrite religious activity must do so from a position of neutrality with respect to religion and with indifference regarding how the funds are spent.

24 Gary Bauer, head of the Family Research Council, a flagship organization of the Religious Right, called the Court's Establishment Clause jurisprudence "ridiculous" in a live interview with Dr. James Dobson on Dobson's Focus on the Family radio program, Dec. 11, 1995.

25 While Rehnquist is sure his history is in line with the Founders, Kunstler's couplet, ending a sonnet entitled "William H. Rehnquist" (Kuntsler, 144)--which alludes to Kunstler's theory that Rehnquist was responsible for the 18-minute gap in the Watergate tapes which would have revealed his leak to the White House of the outlawing of the "national security exception" to the Fourth Amendment which was to be formally announced the Monday after the Friday, June 15, 1972 break in--reveals a different take on Rehnquist and the Founders:

He bought his home where whites could live apart,/ And later still where Jews may not reside;

He railed against the laws that gave a start/ To freedom that had been so long denied.

He urged a prompt return to outworn goals/ When separate status was the legal rule;

He frightened new-born voters at the polls/ And fought to keep the segregated school.

He told the President he had the right/ To wiretap without a warrant's stay;

He never missed a chance to dim the light/ Ignited in a more heroic day.

The thought that such a man could lead the Court/ Might well have made the Framers self-abort.

26 William Lee Miller, The First Liberty: Religion and the American Republic, (NY: Alfred A. Knopf, 1986) 124.

27 While the stress here is on the polar positions of the two main groups about the meaning of the Establishment Clause, there are, of course, other perspectives, but most would be various amalgamations of these two opposed viewpoints.

28 O'Brien, 701.

29 Bork specifically differentiates two terms that are sometimes used interchangeably: "original understanding" and "original intent." Bork promotes original understanding because that phrase puts the focus on the people who would have been hearing or reading the words being studied. "Original intent," on the other hand, puts the focus on the mind of the Framer or Framers. Since Bork is focusing on law as a public act, the cerebral intricacies of the Framers, however brilliant, are irrelevant to how other legislators and citizens would have perceived the words.

30 Bork, 144. 31 For instance, Stephen Carter, in his popular work The Culture of Disbelief, says of the Memorial and Remonstrance: "...it plainly defends the separation of church and state..." 116.

32 Quoted by Justice Black in the majority opinion of Everson, O'Brien, 658.

33 O'Brien, 662.

34 Jeffrey St. John, Forge of Union, Anvil of Liberty, (Ottawa, IL: Jameson Books, 1992) 126, 195. Madison actually anticipated the "incorporation doctrine," the application of the provisions of the Bill of Rights to state actions, in one of the nineteen amendments, one of the few that was original with him: "No state shall infringe the equal rights of conscience, (religion: Cantwell, 1940 and Everson, 1947) nor the freedom of speech, (Gitlow, 1925) or of the press, (Gitlow, 1925) nor of the right of trial by jury in criminal cases." (Duncan v. Louisiana, 1968). See Larry Pahl, "The Founding Fathers Prophets," purchased by Liberty Magazine, a national religious liberty magazine, 12501 Old Columbia Pike, Silver Spring, MD, written while the author was a fellow with the Religious Liberty Institute, George Mason University, 1992.

35 William Lee Miller, 125.

36 Justice Clarence Thomas points to this view of the Establishment Clause by Madison in the House of the First Congress in his concurrence in Rosenberger v. University of Virginia, without giving the wider context mentioned in the text here. Also not mentioned is the fact that Madison used the word "establishment" at least five times in his Remonstrance in 1785, showing that in his mind "an establishment of religion" meant an official relationship between "the state and one church or many churches or all churches, and the imposition of taxation for the support of one church or many churches or all churches." Ervin, 225.

37 William Lee Miller, Ibid.

38 Lamb's Chapel v Center Moriches Union Free School District, et. al., 124 L Ed 2d 366. [No. 91-2024] (Decided June 7, 1993.) (Thomas, J., concurring).

39 William Lee Miller writes that the only difference is the breadth of the division: "There was a diversity of opinion then, as now, on these matters, though not so wide a spread as now." (Miller, 126)

40 Douglas Laycock, "Noncoercive Support for Religion: Another False Claim About the Establishment Clause," Valparaiso University Law Review, Vol 26, 1991, 48.

41 Scalia was the second of three Reagan appointees, Thomas a Bush appointee, and Rehnquist was appointed by President Richard Nixon and elevated to Chief Justice at the retirement of Warren Burger by President Reagan.

42 Such political pressure obviously operates on an "independent" judiciary with a greater cushion than it operates on directly elected political actors, but no modern scholar would deny its effects on the high court Justices. It should be well noted here that Justice Kennedy did not vote the Religious Right party line in the Lee v. Weissman case in which the high court said school-initiated prayers at graduation were unconstitutional, but he did in Rosenberger, where he wrote the decision for the Court, allowing a Christian newspaper to receive state-sponsored funding. Gary Bauer, President of the Family Research Council which is one of the most visible and vocal organs of the Right, belittled Kennedy by calling him "flipper" in his Weissman decision, because he had "flip-flopped" from the conservative position (allowing prayers in traditional situations such as graduations). Perhaps the jabs hurt Kennedy enough that they helped bring about another flip in Rosenberger.

43 "The debate began when President Clinton spoke out against 'loud and angry voices' advocating violence over the airwaves in two speeches last week in Minneapolis and Amass, Iowa. Although White House aides said he was not singling out any specific person or group, talk show hosts disagree." Peoria Journal Star, April 28, 1995, A12.

44 "The extreme right wing in our country wants to impose its views on all of the rest of America," Clinton said. "They killed this nomination with the help of the Republican leadership, who did as they were told. And they're just getting started." Peoria Journal Star, (AP), June 25, 1995, A2.

45 Bill Nichols, "Clinton: Prayer protected," USA Today, July 13, 1995, 1. The memo claimed to be setting "new groundless" for religious expression, but it was basically an explanation of the more permissive standards for religious expression from the Court since the flowering of the equal access cases.

46 Tony Mauro and Bill Nichols, "Middle Ground on School Prayer," USA Today, July 13, 1995, 6A.

47 Christine DeGregorio and Jack Rossotti, "Campaigning for the Court: Interest Group Participation in the Bork and Thomas Confirmation Processes," in Interest Group Politics, Allan Cigler and Burdett Loomis, eds., (Washington, D.C.: Congressional Quarterly Press, 1995) 228.

48 Ibid 232. 49 Nor has he disappointed them in another Establishment Clause case handed down the same day as Rosenberger, Capitol Square Review v. ...KKK, (No. 94-780), where he, while lashing out at the prejudice of the KKK in a concurrence, nonetheless joined Justice Scalia and the majority in agreeing that the Establishment Clause did not forbid the Klan's placing of a cross in a public square.

50 Which was signed by all the other dissenters; Justices Ginsburg, Breyer, and Stevens.

51 Petitioners Brief in Lamb's Chapel v. Center Moriches Union Free School District, 91-2024, October term, 1992, Jay Sekulow, Counsel of Record, 13-15.

52 G. Edward Reid, Even at the Door, (Hagerstown, MD: Review and Herald, 1994) 32.

53 And Capitol Square Review v. Pinette...and KKK, handed down the same day, June 29, 1995, where Justice Scalia draws heavily on Lamb's Chapel in the majority opinion: "Quite obviously, the factors that we considered determinative in Lamb's Chapel...exist here as well."

54 It should be noted here that the Court used the concept of "viewpoint discrimination" and the free speech clause, not the Establishment Clause, to decide the case. This is one reason McConnell called the decision "ambiguous." (Footnote 23) That Rosenberger raises issues of Establishment Clause concern seems elementary: a religious newspaper and a large state entity are in conflict over the newspaper's religious content. The "ambiguity" McConnell refers to is whether or not the Court is making a statement about the meaning of the Establishment Clause by choosing to decide the case on free speech grounds. Because of the Court's increasing use of Lamb's Chapel as a compass in Establishment Clause cases, and because the decision in Rosenberger followed the logic of Lamb's Chapel, Rosenberger seems implicate to be the latest sharpening of the Court's newly-emerging Establishment Clause cutting edge--"strike down the church-state 'wall of separation'". Justice Stevens, writing in dissent in the other Establishment Clause case handed down on the same day as Rosenberger, (Capitol Square), said, "this case illustrates the importance of rebuilding the wall of separation between church and State that Jefferson envisioned."

55 Ira Glasser, Undated letter from ACLU, 132 W. 43rd St., NY, NY 10036, 1.

56 Teresa Stack, circulation appeal letter from The Nation, 72 Fifth Ave., New York, NY 10011, January 1996.

57 Paul Starr, editor of The American Prospect, in an undated subscription appeal letter sent out in January 1996.

58 Some would, of course, say that what the Framers said is irrelevant. If they were awash with religious sentiment, that was their prejudice, unconsciously (or consciously) inflicted upon an entire nation. But even these writers like to point to the fact that Jefferson was not a professing Protestant 59 Article III reads: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." (David Barton, The Myth of Separation, (Aledo, TX: Wallbuilder Press, 37). Barton points out that the Congress wanted "schools" to promote religion.

60 330 U.S. 1, 18 (1947).

61 Ibid at 15, emphasis added.

62 Engel v Vitale, 370 US at 431.

63 Jaffree v. Wallace, 466 US 924 (1984), quoted in Laycock, 59; the Court is here quoting Justice O'Connor's concurrence in Lynch v. Donnelly, 465 US 668, (1984).

64 Laycock, 61. He specifically names Chief Justices Vinson, Warren, and Burger and Justices Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge, Burton, Clark, Minton, Harlan, Stewart, Brennan, White, Godlberg, Fortas, Marshall, Blackmun, Powell, Stevens, and O'Connor.

65 Ibid, 49.

66 David Barton, The Myth of Separation, (Aledo, TX: WallBuilder Press, 1991), 47.

67 A June 10, 1982 Gallop poll asked the question, "Do you favor or oppose the President's voluntary school prayer amendment?" Of those polled, 79 percent were in favor, 5 percent had no opinion, and only 16 percent said they opposed the amendment. A May 24, 1982 NBC/AP poll, and a May 6, 1982 CBS/New York Times poll produced similar results. (Testimony of Richard Dingman, legislative director of the Moral Majority, May 2, 1983 at Sen. Hatch's School Prayer hearings.) These studies are certainly witnessed to by Illinois Senator Everett Dirksen's comment: "I'm not going to let nine men say to 190 million people, including children, when and where they can utter prayers." Alley, 157.

68 Including increased access to Congress through the decentralization caused by stripping some seniority power, expanding the breadth, staffs, and powers of subcommittees, the increased ability to have influence and access through political action committees, and the breaking down of triangular power structures among bureaucracy--key congressmen--special interests which, combined, created more openings of power for more interest groups. H.R. Mahood reviews many of the reasons for this increase in Interest Group Politics in America: A New Intensity, (Englewood Cliffs, NJ: Prentice Hall, 1990) 17-20, including bureaucracy increase, increase in the size of the national government, new political tools and technology, greater American affluence, greater education of the electorate in political goods and the attendant ease of forming public-interest groups. James L. Guth, et. al., in "Onward Christian Soldiers: Religious Activist Groups in American Politics," in Allen Cigler and Burdett Loomis, eds, Interest Group Politics, (Washington, D.C.: Congressional Quarterly Press, 1995) 56, adds the decline of political parties, the rise of new, non-New Deal issues such as women's rights, minority rights, environmentalism and consumer protection, and the rapid expansion of the middle class.

69 "We argue that politically active elites--candidates and those who recruit and finance them-provide a crucial connecting link between national-level phenomena and individual voting decisions..." Gary Jacobsen and Samuel Kernell, Strategy and Choice in Congressional Elections, (New Haven, CN: Yale University Press, 1981) 2.

70 Rep. Celler, chairman of the House judiciary committee, had extensive research done before his hearings in 1964. The research found a vast number of religious groups in America. These "figure[s were] regularly employed by amendment proponents to suggest how easily such amendments might be implemented." Alley, 127-8. 71 Preliminary studies by the Celler Judiciary committee indicated that, while there were more than 18,000 religious bodies in the country with fewer than 50,000 members, there were relatively small numbers of churches with more than 50,000 adherents. Alley, 127. Amendment proponents thought from these figures that passage would be easily implemented. Ibid 127-8.

72 Alley, 128,150.

73 Alley, 110.

74 See the several charts with this paper.

75 U.S. Congress, House Hearings, School Prayers, vol. 3, 2483-87.

76 Alley, 151.

77 The constitutional law professors, attorney Leo Pfeffer, church history professor Franklin Littell of Chicago Theological Seminary (one of the most cogent and thoughtful presentations at the hearings, according to Alley, 143), well known religious historian Martin Marty, dean of the University of Chicago Divinity School.

78 Beginning with President Eisenhower in 1952.

79 Alley 143. The point here is that a representative cannot talk as freely when representing organized churches that each have their own, and slightly varying positions. But a representative group for many non-aligned individual churches is in a much better position to take more rigorous, principled, leadership stances.

80 Thus mimicking the legislative masterwork of James Madison who steered Virginia legislators to vote for a measure to establish the Episcopal Church in Virginia--a popular measure already on the legislative agenda--to keep them from voting on Patrick Henry's general assessment bill--the legislation that occasioned Madison's fabled Memorial and Remonstrance, one of North 'America's greatest statements on religious liberty--which would have provided for paying ministers from all denominations out of the state treasury. Madison knew he could not deflect both pieces of legislation. As Robert Alley writes, "Politicians were not likely to cast two votes 'against God' in the same session."! (Alley, 27.) As Madison wrote his father: "...incorporating the Episcopal Church...I assented to it with reluctance at the time, and with dissatisfaction...I consider the passage of this Act however as having been so far useful as to have parried for the present the Gen. Assesst. which would otherwise have certainly been saddled upon us..." ("Letter from James Madison, Jr. to James Madison, Sr., Jan. 6, 1785," in Robert Rutland and William M.R. Rachal, eds., The Papers of James Madison, vol. 8 [Chicago: Univ of Chicago Press, 1973] 217.)

81 Congressional Record, Senate, 87th Congress, 2nd Session, Sept. 20, 1966, 23161.

82 HR 121, 104th Congress.

83 Robert P. Dugan, editor, Insight, National Association of Evangelicals newsletter, Vol. XVIII, Number 1, January, 1996, 1.

84 Capitol Square Review and Advisory Board, et. al., Petitioners v. Vincent J. Pinette, Donnie A. Carr and Kinghts of the Klu Klux Klan, No. 94-780, J. Ginsburg, dissent.

85 Kathleen Sullivan, "Religion and Liberal Democracy," 59 University of Chicago Law Review 195, 197-214, 1992.

86 William Lee Miller, 247. This is Miller's twist on Louis Hartz' expansion (in The Liberal Tradition in America) of Tocquville's observation that American was born free or born equal ("really born 'liberal,'" as Miller puts it) and did not have to become so.

87 Steven Smith writes, "John Locke's defense of the sanctity of conscience influenced eighteenth century American thought. For the colonists, their own experiences and knowledge of European history confirmed the connection between a united church and state and the persecution of religious minorities." "Separation and the 'Secular': Reconstructing the Diestablishment Decision," Texas Law Review, Vol. 67, No. 5, April 1989, 965.

88 Quoted by Miller, 249.

89 Miller, 235. 90 Steven D. Smith offers some documentation for these conclusions in his "Separation and the 'Secular': Reconstructing the Diestablishment Decision," Texas Law Review, Vol. 67, No. 5, April 1989: Thomas Curry has noted that at the time of the Establishment Clause's adoption, "Protestant Christianity thoroughly permeated civil and political life." (967) Henry May begins his history of The Enlightenment in America with this observation:

We may be able to understand [eighteenth century American] political thought better if we start where they nearly always did, with religion. Men of the late eighteenth century, whether they were Calvinists or Arminians, deists or atheists, seldom thought about any branch of human affairs without referring consciously to some general beliefs about the nature of the universe and man's place in it, and about human nature itself. In this sense Jefferson and Paine were as religious as any New England Congregationalists. (966-967)

91 Smith writes "But even if the secular interpretation cannot be defended on originalist grounds, it may be justified if it corresponds to currently prevailing attitudes and political principles." Smith, 959. But using evaluative criteria favored by advocates of "nonoriginalist" interpretation, Smith still finds the construction deficient. (985-1014) Smith says that the Twentieth Century addendum by Supreme Court Justices and scholars, of a secularism requirement, evidenced, for instance, in the first two Lemon prongs, is not only alien to the Framers, but the cause of much of the inconsistency in Establishment Clause jurisprudence.

92 Madison's reflections here were not the self-flattering dotings of a retired elder statesman, seeking appreciation from a posterity which might not appreciate him. His judgment was that of the selfless and careful observer of history and politics, the judgment of one able to properly place the present in its right relation to the past. No less a religious historian and political scientist than William Lee Miller, has, two centuries later, come to the same assessment as Madison here: "The 'new world' worked out a fresh solution, quite unusual in the history of the human race, to the ancient tangled matter of religion and the state." (WL Miller, The First Liberty, 227.)

93 Smith, 971.

94 Stephen Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993) "Too often, our rhetoric treats the religious impulse to public action as presumptively wicked--indeed as necessarily oppressive. But this is historically bizarre... We err when we...insist that the devout should keep their religious ideas--whether good or bad--to themselves. We do no credit to the ideal of religious freedom when we talk as though religious belief is something of which public-spirited adults should be ashamed." 9-10. Carter wants to try and "discover whether there might be a way to preserve the separation of church and state without trivializing faith as we do today." 15.

95 To be distinguished from the intimate connection between government and religion just discussed.

96 Smith 977.

97 The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (Basic Books, 1993) 33.

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