by Donald L. Drakeman. New York, NY: Cambridge University Press, 2009. 382pp. Cloth. $90.00/£55.00. ISBN: 9780521119184. Paper. $29.99/£19.99. ISBN: 9780521134521. eBook. $24.00. ISBN:9780511758126.
Reviewed by Helena Silverstein, Professor of Government and Law, Lafayette College. Email: silversh [at] lafayette.edu.
In the two-hundred-year quest for the original meaning of the establishment clause, all of the various commentators – historians, judges, lawyers, political scientists, and the like – have poured out thousands of heavily footnoted pages divining the meaning of a remarkably small documentary record. It is not for lack of attention, then, that there are such enduring constitutional controversies over the meaning of fairly simple words such as “an” and “respecting,” a situation that hardly bodes well for our ability to resolve disputes over genuinely challenging concepts such as “establishment” and “religion” (p.326)
So begins the concluding chapter of Donald L. Drakeman’s CHURCH, STATE, AND ORIGINAL INTENT, a volume that adds 345 more footnoted pages and attention to the perennial dispute over the establishment clause and church/state relations. Cognizant of, yet undaunted by, the wealth of ink spilled over the historical meaning of the establishment clause, Drakeman wades into the debate with two objectives. First, Drakeman seeks to explain how and why the Supreme Court originally came to adopt an originalist approach to interpreting the religion clauses, and, in so doing, aims to identify the historical sources that shaped what he calls “the classical mythology” of those clauses (p.19). Second, while steering clear of whether the Court should adopt an originalist approach, Drakeman strives to present a fair interpretation of the establishment clause’s original meaning.
The effort to achieve the first goal proceeds with a richly detailed examination of two foundational religion clause cases that rely on, and indeed construct, an originalist account of constitutional meaning. Chapter 2 takes up REYNOLDS v. UNITED STATES (1879), the Court’s first treatment of the free exercise clause. There, the Court upheld a federal statute outlawing bigamy against the free exercise claims of George Reynolds, a practitioner the Mormon faith. Central to this holding, Drakeman explains, is Chief Justice Waite’s “historical construction of constitutional reality” (p.24), which imbues the First Amendment with Thomas Jefferson’s “wall of separation” metaphor and Bill for Establishing Religious Freedom, and with James Madison’s Memorial and Remonstrance against Religious Assessments. The case did not raise establishment clause issues, and Reynolds lost his free exercise claim. Still, the legacy of Waite’s particular historical account, Drakeman argues, “is the extent to which it has cast a strict separationist hue on the First Amendment in a manner that has colored church-state constitutional analysis ever since, much to the consternation of those who would prefer an interpretation allowing the [*564] government to provide at least nondenominational support for religion” (p.22).
Drakeman concedes that we do not know why Waite adopted an originalist approach, but he explains that the strict separationist hue cast by Waite derives from a leading nineteenth century historian, and Waite’s friend and former neighbor, George Bancroft. Bancroft pointed Waite to Jefferson and Virginia, and Waite, directed to these origins, appears to have conducted his own considerable historical research to uncover the meaning of the First Amendment. Though Waite’s papers do not specify his research method, Drakeman pours over Waite’s opinion and its references in order to reconstruct Waite’s historical analysis. Drakeman reviews Robert Howison’s HISTORY OF VIRGINIA, which Waite’s opinion cites, and even reviews some of the works Howison cites, speculating that Waite may have followed the historian’s citations. Waite’s research and his decision to use an originalist approach resulted in an interpretation of the religion clauses focused on the Virginia experience and the idea of strict separation. Characterizing Waite’s construction of constitutional reality as a good faith, if flawed and oversimplified, effort to determine the original meaning of the First Amendment, Drakeman distinguishes the Court’s opinion from “law office history,” that is, the search for historical evidence that serves a particular legal outcome. Good faith notwithstanding, Waite’s telling of the founding moment is myth-building, and it is the enduring wall of separation that Waite helps to build.
Chapter 3 examines EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP (1947) and continues Drakeman’s effort to unpack how the Supreme Court adopted its establishment clause originalism. In EVERSON, the Court examined the constitutionality of a New Jersey plan that reimbursed parents for the costs of busing their children to schools and permitted such reimbursements even where children were being transported to parochial schools. The Court upheld the program against the claim that it violated the establishment clause, but, as in REYNOLDS, the primary impact of the precedent has far less to do with the specific holding and far more to do with the Court’s historical rendering of the meaning of establishment clause. Here, as in REYNOLDS, that historical rendering constructed a wall of separation. Here, as in REYNOLDS, the Court produces a creation myth grounded in the origins of colonial Virginia (though the role played by Madison is more pronounced in EVERSON than in REYNOLDS). And here, as in REYNOLDS, the justices rely on noted historians – especially Charles Beard and Irving Brant – to craft their versions of a “Virginia-centric First Amendment creation myth” (p.146).
According to Drakeman, EVERSON is notable for “how certain works of Madison and Jefferson have become indelibly written into First Amendment jurisprudence,” including Madison’s Memorial and Remonstrance Against Religious Assessments and Jefferson’s “wall of separation” letter to the Danbury Baptists (p.79). It is also notable, but in Drakeman’s account distinct from REYNOLDS, as a case of law office history, with Justice Hugo [*565] Black (writing for the Court) and Justice Wiley Rutledge (writing in dissent) engaging in “a premeditated search-and-employ mission to locate historical events that would be, in Rutledge’s words, ‘admirable for the…purpose’ of letting him express his strong feelings about the case without ‘pointing what [he] had to say in the direction of any specific sect,’ namely, Roman Catholicism…. It is also possible to see how professional historians aided and abetted the justices’ efforts via a goal-oriented, Whiggish approach to historical interpretation” (pp.79-80). The result is the production of a “Gilgamesh epic” (p.82) that remains the jurisprudentially official, though hotly contested, version of First Amendment origins.
Drakeman traces how the opinions in EVERSON emerged, emphasizing that Black’s ruling for the Court did not originally include any concern with First Amendment origins and crediting Rutledge for inspiring Black’s turn to origins. Drakeman criticizes Black’s historical account for generalizing without evidence from colonial Virginia’s views about religion to the nation at large at the founding. Black “characterizes support for religious liberty and disestablishment as essentially a national movement,” Drakeman says, “[y]et he cites no scholars nor does he produce any historical evidence to buttress his claim that the acts and writings of Jefferson and Madison in Virginia were, in fact, fairly representative of a disestablishmentarian movement throughout the colonies that eventually culminated first in the Old Dominion’s rejection of the general assessment proposal and later in the First Amendment…. [E]very time he offers evidence in support of his generalizations, he can only cite examples from the Old Dominion” (pp.112-13). Black’s famous declaration defining what the establishment clause permits and proscribes does not come with commentary on the sources for the declaration, Drakeman notes, except when he ultimately quotes from Jefferson’s letter to the Danbury Baptists: “In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State’” (pp.117-18, citing EVERSON).
In a less critical evaluation of Rutledge’s historical account, Drakeman argues that the dissenting justice offers stronger support than that provided by Black or Waite before him “for breathing the spirit of the Virginia church-state experience into the body of the First Amendment” (p.122). In addition, Rutledge’s broad and detailed historical analysis “creates the Court’s most sophisticated argument to that time (and since then) for placing at least James Madison, and perhaps Thomas Jefferson as well, at the heart of the religion clauses” (p.129). Still, Drakeman characterizes Rutledge’s account as results-oriented, derived after his conclusions had been firmly set. Though careful to note that Rutledge’s utilitarian appeal to history was not likely borne from anti-Catholic bigotry nor the approach of a cynic who knows his history to be false but espouses it nonetheless, Drakeman defends his characterization of Rutledge’s opinion as an instance of law office history by noting the justice’s silence about Madison and only minor references to Jefferson in his comments during the [*566] conference discussion of the case and in conference memorandum. Drakeman also notes that not until Rutledge circulated the third draft of his dissent did Madison emerge as the centerpiece of his historical telling. Finally, Drakeman cites one of Rutledge’s private letters in which the justice says, “I felt pretty strongly about the Everson case but tried to keep the tone of what I had to say moderate and also to avoid pointing what I had to say in the direction of any specific sect. The Virginia history was admirable for the latter purpose” (p.131, emphasis added by Drakeman).
Having chronicled the historical stories crafted in EVERSON and REYNOLDS, Drakeman turns his attention in Chapters 4, 5, and 6 to, respectively, an extensive exploration of scholarly analyses of church-state histories that followed EVERSON, an examination of eighteenth century source material that illuminates the meaning of the establishment clause during the founding period, and an exploration of establishment clause interpretations proffered by presidents, legislators, judges, and the public prior to REYNOLDS. In each of these chapters, Drakeman aims to provide the foundations for advancing the book’s second goal of presenting a fair reading of the original meaning of the establishment clause given the available historical material.
Review of the scholarly literature in Chapter 4 highlights the framing of the post-EVERSON debate as one between the nonpreferentialist position and the strict separationist view. The issue up for grabs is whether the historical evidence supports the view that the establishment clause permits government aid to religion as long as aid is distributed in a neutral and nondiscriminatory fashion or whether the establishment clause forbids all government aid to religious organizations. In his lengthy literature review, Drakeman summarizes the arguments and evidence put forward by James M. O’Neill, Leo Pfeffer, Robert L. Cord, Leonard Levy, Gerard V. Bradley, Douglas Laycock, Steven D. Smith, William C. Porth, Robert P. Grange, Thomas John Curry, and Philip A. Hamburger. Drakeman ultimately concludes with the harsh assessment that, “just as historians such as Bancroft, Brant, and Beard got us into this originalist quagmire, their successors – O’Neil (sic), Pfeffer, Cord, Levy, and many others – have led us down a historical dead-end by superimposing a nonexistent strict separationism/ nonpreferentialism dispute onto a constitutional record that shows no visible signs of these two convenient political principles or, in fact, of any kind of disagreement or political principle at all” (p.343).
Further review of the historical landscape takes place in Chapters 5 and 6. In the former, Drakeman works through proposed Amendments to the Constitution and evidence from the First Congress and the ratification debates, concluding that the establishment clause was a “milk and water” amendment that represented no more than the prevailing noncontroversial view against the establishment of a national religion and church. Beyond that, there is no evidence of a broadly shared set of values about the meaning of the establishment clause, whether in favor strict separation or nonpreferentialism. [*567] In Chapter 6, Drakeman looks at how various political actors from 1789 to Reconstruction responded to such things as government declarations of days of prayer, legislative church services, the appointment of chaplains, the incorporation of churches, and federal Indian policy. Drakeman concludes that views about the relationship between church and state continued to remain unclear and lacking in broad and substantive consensus beyond agreement that the creation of a national church was prohibited. “By the time of the Fourteenth Amendment, then, the ‘separation of church and state’ had been virtually universally accepted as an American truism, but, as Professor Diman pointed out in 1876, the proper relation of religion and government was no closer to settled than it had been a century before upon the adoption of the establishment clause” (p.325).
Based on his expedition through this historical and scholarly terrain, Drakeman arrives at his assessment of the original meaning of the establishment clause: “We know with a fairly high degree of confidence what most people were saying about the establishment clause at the time it was adopted and ratified: nothing” (p.327). Drakeman continues, saying that the “most typical establishment clause comment was no comment at all,” and “[t]he most striking – and curious – incident surrounding the adoption of the establishment clause then was this lack of hue and cry” (p.327). Evaluating the original meaning of the establishment clause must attend to this silence, to this lack of excitement, to “the fact that the clause engendered no public controversy” (p.328). Absent such controversy, the meaning of the clause must be read, Drakeman urges, as a “milk and water” amendment. The establishment clause was understood as a noncontroversial ban on a national church and those things attendant to the creation of a national church. “People were being asked to pledge allegiance to obvious things in which they already believed, in this case: no national religion” (p.330). And that is all. The establishment clause was not, Drakeman insists, “the statement of a principle of secularism, separation, disestablishment, or anything else. It was the answer to a very specific question: Would the new government countenance a move by the larger Protestant denominations to join together and form a national church? The answer was no” (p.330). As such, a fair and reasonable originalist account of the establishment does not, on Drakeman’s view, provide the constitutional foundation for any grand theory of church/state interaction.
There is much to laud in CHURCH, STATE, AND ORIGINAL INTENT. Worth of the attention it will no doubt receive, the book is interesting, well-written, and forceful. Drakeman presents a well-argued case, arrived at by way of thorough excavation. Those who care about originalism and who believe that within history we can discover a “milk and honey” version of the religion clauses will have to grapple with his “milk and water” view of the establishment clause. Even if one does not, in end, find Drakeman’s arguments and historical reading persuasive – whether one continues to find strict separationist views or nonpreferentialist sentiments dominating the historical record – the book provides a wealth of information and insight. And even those who do not accept originalism as an (or the) [*568] appropriate method for interpreting the constitution will find Drakeman’s work compelling, especially his accounts of the judicial use and misuse of history, and the way constitutional meaning is thus constructed.
Among the things Drakeman is right about is his concluding remark that a “reading of the establishment clause that makes it noncontroversial to the founding generation will surely be highly controversial to this one, for virtually all voices in the originalism debate have found clear answers to difficult questions in the history of the establishment clause, from strict separationism to nonpreferentialism, from no power to launch a new establishment to no power to threaten existing ones” (p.328). Indeed. With so much substantive and divisive meaning having been located in the establishment clause by justices, historians, legal scholars, politicians, political pundits, and the public, an analysis like Drakeman’s that argues for dislocation will contribute to ongoing divisiveness over the First Amendment. This is not a failing of Drakeman’s book. It is, rather, a reflection of the contentious state of the church/state debate.
EVERSON v. BOARD OF EDUCATION OF EWING TOWNSHIP, 330 U.S. 1 (1947).
REYNOLDS v. UNITED STATES, 98 U.S. 145 (1879).
© Copyright 2010 by the author, Helena Silverstein.