that the states retain their traditional plenary authority in church-state relations. In order that the Committee may fully review the history of the Establishment Clause, I ask that Dr. McClellan's article previously mentioned in my testimony be included in the Record. I have a copy for the Clerk. Thank you. A Blueprint for Judicial Reform Edited By FREE CONGRESS RESEARCH & EDUCATION FOUNDATION THE FREE CONGRESS RESEARCH AND EDUCATION FOUNDATION Officers and Board Kathleen Teague, Chairman Dr. Charles Moser, Secretary-Treasurer Dr. Robert J. Billings Dr. Onalee McGraw Senator William L. Armstrong Foundation Staff Paul M. Weyrich, President Connaught C. Marshner, Director, Family Policy Division; Editor, Family Protection Report Dr. Stuart Rothenberg, Director, Political Division; Editor, Political Report Patrick B. McGuigan, Editor, Initiative and Referendum Report Eric Licht, Vice-President for Operations Robert Billings, Vice-President for Development Assistants: Elia Dal Bello, Wanda Woods, Claudia Keiper Judicial Reform Project Staff Patrick B. McGuigan, Director Randall R. Rader, Consultant James S. Denniston, Assistant Director Claudia Keiper, Legal Research Assistant Elia Dal Bello, Secretary A Blueprint for Judicial Reform edited by Patrick B. McGuigan and Randall R. Rader Copyright 1981 by the Free Congress Research and Education Foundation, Inc. 721 Second Street, N.E. Washington, D.C. 20002 202-546-3004 Library of Congress Catalog Card No.: 81-70375 First Printing Price: $7.95 (paperback); $10.95 (hardcover) 20 THE MAKING AND THE UNMAKING OF THE ESTABLISHMENT CLAUSE James McClellan The disestablishment of the Anglican Church in Virginia, which Thomas Jefferson accomplished in 1786 with the help of James Madison, is commonly thought to have prepared the way for the adoption of the First Amendment to the Constitution of 1791, declaring that "Congress shall make no law respecting the Establishment of a Religion."As Justice Joseph Story later observed in his famed Commentaries on the Constitution, "the real object of the [First] Amendment was not to countenance, much less to advance Mohametanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government." Directed solely against Congress, the establishment clause gave the states, by implication, full authority to determine church-state relations within their respective jurisdictions. Thus the establishment clause actually had a dual purpose: to guarantee to each individual that Congress would not impose a national religion, and to each state that it was free to define the meaning of religious establishment under its own state constitution and laws. The federal government, in other words, simply had no authority over the states respecting the matter of church-state relations. To be sure, one of the principal reasons for the adoption of the entire Bill of Rights, as we shall see, was to deny the federal government a commanding voice in the general area of civil liberties, except as stipulated in the Constitution itself. The power to define civil liberties within the several states, including the power to decide what practices were acceptable under the general heading of church-state relations, was, in the true sense of that much abused term, the state's right, as determined by state constitutions and state bills of rights. Such is where matters stood until 1947, when the Supreme Court endeavored for the first time to expound upon the meaning of the establishment clause in the landmark case of Everson v. Board of Education (1947). Pursuant to a state law, the township of Ewing, New Jersey authorized the reimbursement to parents of money expended for the transportation of their children to and from public and parochial schools. A taxpayer challenged the validity of the law on the grounds that it violated the due process clause of the Fourteenth Amendment, and also constituted an unconstitutional "establishment of religion." Speaking for a sharply divided Court, Mr. Justice Black announced that: "The First Amendment, as made applicable to the states by the fourteenth...commands that a state 'shall make no law respecting an establishment of religion.' " This was the first instance in which the Court interpreted the establishment clause as a restriction on the states. It was a bold and revolutionary step, overturning more than a century and a half of established precedent that had uniformly permitted the States to set public policy regarding their relations with religious organizations. No less novel was the Court's newfangled theory of the establishment clause and its formal adoption of Thomas Jefferson's "Wall of Separation" doctrine. The First Amendment, said Black, "erected a wall of separation between church and state," prohibiting the federal and state governments from giving aid of any kind not only to particular religious sects, but to all religions in general. "Neither a state nor the federal government," contended Justice Black, "can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... No tax in any amount, large or small, can be levied to support any religious activities or institutions....' 116 This absolutist pronouncement by Justice Black, it must be emphasized, has become the foundation stone for the modern Court's interpretation of the establishment clause. Whether the issue has been Bible-reading, prayer in the public schools, or tuition grants for parochial school children, Black's oft-quoted dictum is sure to be found at the heart of the Court's opinion. But in Everson the Court softened the impact of its new view of the establishment clause by upholding the law in question as a welfare measure assisting children rather than religion. Thus the real significance of Everson lies not in the Court's ruling, but in its adoption of an absolutist theory of church-state relations. Both the majority and dissenting members of the Court were unanimously agreed that the establishment clause should be interpreted as an absolute restriction on governmental aid to religion. "In the words of Jefferson," concluded the Court, "the clause against the establishment of religion by law was intended to erect a wall of separation between church and state." " The judicial history of the establishment clause since 1947 has |