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07/18/2020

Carl Esbeck on the Original Meaning of the Establishment Clause
Michael Ramsey

Carl H. Esbeck (University of Missouri School of Law) has posted The Establishment Clause: What the Text and Record in the First Federal Congress Can Tell Us About Original Meaning (33 pages) on SSRN.  Here is the abstract:

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent actors reflecting original intent. This is now considered Old Originalism. Its defect is that lawmaking is a collective task, the work of many individuals with multiple intents. Jurisprudential conservatives have urged an interpretation of the U.S. Constitution that is faithful to its time of inception. They increasingly look to New Originalism. This is an interpretive principle that adheres to the ordinary meaning of the text when adopted. Originalism—first old and now new—has especially been a long-term project of religious traditionalists when it comes to the Establishment Clause.

Seemingly Everson and its progeny were asking the wrong question (Old Originalism) about the wrong event (Virginia). The First Amendment is from a different time (1789-90) and lawmaking body (Congress and ratifying states). James Madison is the one common denominator, but his purposes and power to successfully shape the law emerging from these events were altogether different in the two instances. While New Originalism looks at a narrower slice of the historical record, it still requires knowledge of context to fully understand what Congress was trying to do in settling on a particular text.

As the First Congress assembled in New York City in April 1789, Madison still did not concede that a bill of rights was needed to thwart abuses by the new federal government. Yet he saw its usefulness “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” From the start, then, Congress’s task was made easier because the purpose was not to formulate a comprehensive list of unalienable or natural rights. The effort was the far more modest, and hence achievable, task of agreeing on what powers were not vested in the new government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do.

With the question thus framed, this article explores what New Originalism yields concerning the original meaning of the words “respecting an establishment of religion.” It turns out the text tells us a fair amount, including what these words did not mean.