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(ebates, the wording of the establishment clause was very different t:om the wording we know now. During the debates, the clause was Worded "no religion shall be established by law," or "no national religion shall be established," or "no particular sect shall be estabI shed.” Only at the last minute was the wording changed to "no law respecting an establishment of religion." The strange wording was sponsible for the Supreme Court's mistaken idea that the amendrent required strict neutrality between religion and irreligion. But te real reason for the shift related to an entirely different issue, the i sue of federalism.
No single subject dominated the considerations of the First Congress as much as federalism. Thus it should be no surprise that concern over the power of the national government surfaced during consideration of the Bill of Rights. Antifederalists were concerned tiat Congress might restrict the power of the states to help religion. Specifically, Elbridge Gerry of Massachusetts and other Antifederalists fom states with established churches wanted to make sure that Congress could not do anything to harm their states' religious establishn.ents. That is the reason for that strange language in the First Amendnient-"no law respecting an establishment of religion.” Congress vas prohibited not only from doing anything that tended to establish or favor a particular religion on the national level; it was also prohibited from doing anything respecting, or with respect to, the relizious establishments in the states. The Supreme Court missed this point entirely in 1947. The decision to apply the establishment clause to the states involved an obvious circularity-how, after all, can the s.ates be prohibited from passing laws that affect state religious e tablishments?
Let us assume, however, that the application of the establishnent clause to the states is an irreversible fact. What would happen if we were to apply the rest of the original meaning of the establishment clause--no discrimination among religions--to today's relig ously diverse nation? I believe that the original rule probably would prohibit Congress from doing most of what worries modern separationists. For example, it clearly would prohibit the governrent from prescribing school prayers for children, even supposedly voluntary prayers. A moment of silence would be all right, and p: obably a good idea. However, it would be impossible to write an olícial prayer today without offending some religious people. People from one religion would be offended by prayers chosen from another, de vout people from most faiths would be offended by lowest common
denominator pablum, and followers of crtain Oriental religions that do not believe in a God to whom one prays would be offended by the implications of praying itself.
On the other hand, the establishment lause was not meant to prohibit truly nondiscriminatory forms of aid to religion. One such form of aid was adopted by the First Congress itself when it reenacted the Northwest Ordinance, which contained a clause giving free land to anyone who wanted to build churches or schools, including church schools, in the Northwest Territory. The land was available on a first-come, first-served basis. I would maintain that today's tuition tax credits or tuition vouchers are nondiscriminatory forms of aid not far different from the Northwest Ordinance. Tax credits and vouchers obviously raise different issues of public policy. Tax credits are easier to administer, but vouchers can be structured to give the public school system positive incentives to improve itself. Constitutionally, however, they are the same. They provide aid to parents without discriminating between secular and religious schools, let alone among religious sects.
While the issues seem clear under the original meaning of the First Amendment, they have been made less clear by the Supreme Court's reinterpretation of the religion clauses since 1947. It can almost be said of the modern court, as Kar. Marx once said of the relationship between his own thoughts and Hegel's, that the Court has stood the First Amendment on its head. On the one hand, the Court correctly perceives that the framers wanted to encourage religion. But the Court has used the free exercise clause to grant religion special favors the framers never thought were required, while at the same time prohibiting the nondiscriminator) assistance the framers would have permitted. On the other hand, the Court also correctly sees that the Constitution is at its core a secular document. But the Court implements this perception through its reading of the establishment clause, while not permitting a religiously neutral application of civil law under the free exercise clause. The Court thus has created religious rights where none had existed, permitting religious opinion to stand as judge of the civil realm, while preventing the civil realm from helping religion on civil society's terms.
Lost somewhere in the theoretical murkiness of the Court's position is any indication of an awareness of the way the Founding Fathers meant the Declaration, Constitution and Bill of Rights to promote both religious health and civil peace. Unfortunately, some of the Court's modern conservative critics seem equally unaware of the deepest purposes of the nation's founding documents. By trying to
The Intentions of
Michael J. Malbin
American Enterprise Institute for Public Policy Research
Michael J. Malbin is resident journalist at the American Enterprise
Library of Congress Catalog Card No. 78-18353
AEI Studies 200
Second printing, August 1981
© 1978 by American Enterprise Institute for Public Policy Research,
Printed in the United States of America