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02/07/2021

Carl Esbeck on Establishment Clause Originalism
Michael Ramsey

Carl H. Esbeck (University of Missouri School of Law) has posted The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text (22 Federalist Society Review 26 (2021)) (30 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 failing 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.

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.

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.”

New Originalism looks at a narrower slice of the historical record, maintaining a laser-like focus on the September 1789 meaning of the final words of the Establishment Clause. Still, this interpretative theory requires some knowledge of a wider context to understand what the First Federal Congress was trying to do in settling on this text. Stated a little differently, the authors of a law choose their words to fit the task. How did those in control at the First Congress conceive of their task?

Answering this question requires first going back and briefly exploring the task of the delegates to the 1787 Constitutional Convention, which is the topic of Part I. Then Part II takes up the task of the First Congress in composing and sending amendments to the states. From the start 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. We look at some of the day-to-day debates in the House and Senate concerning the religious establishment question, not with the aim of determining the original intent of the framers but with the aim of getting insight into the meaning of the words they chose to fit the task.

Part III then hazards what we have learned concerning the original public meaning of the First Amendment text “respecting an establishment of religion.” Finally, no interpretive rule is required when the text alone is definitive. Thus, Part IV turns to consider what we can know from the grammar and plain text of the Religion Clauses. Whether one is an originalist or not, such a textual investigation allows us to put to bed some longstanding myths, such as the claim that the two clauses are in tension and sometimes conflict.