But even the most objective scholars can not provide jurists with the one, true answer about the 18th-century meaning of the Establishment Clause.
Opinions of the founding generation were scattered all across the spectrum on the question of the assistance government could give religion. Consider the Baptists, the most ardent separationists in the Founding Era. Some Baptists in Massachusetts and Maryland actually favored selective state financial subsidies for churches; others, while disapproving financial support, encouraged the state to print and distribute bibles; Virginia Baptists opposed both measures but were happy to accept public accommodations for church services. Presbyterians were divided over state financial assistance to churches as were political leaders in virtually every state. Statesmen like George Washington changed their mind on the issue. James Madison participated intermittently in public religious acts for 30 years, i.e., in issuing religious proclamations, which in the privacy of retirement he deplored. Jefferson permitted church services to be held in federal office buildings but was accused of hypocrisy for doing so.
Confronted by opinions so diverse and problematic, the best scholarship can be of only limited assistance in supplying the "correct" answer about the framers' precise intentions regarding government assistance to religion—a painful conclusion for a supporter of the "jurisprudence of original intent." Yet, according to a Massachusetts commentator in 1780, the meaning of the term, establishment of religion, was even then "prodigiously obscure." If so, do today's judges not deserve a degree of sympathy as they try to tease out the intentions of the drafters and ratifiers of the First Amendment?
Dreisbach's superb book, and Hamburger's as well, pierce the fog to this extent. They inform us that, if there is no "right" answer about how far the founding generation would have permitted government to go in assisting religion, there is indisputably a wrong one: the radical, unprecedented divorce of church from state that the Court has decreed since 1947.
Tuesday, May 31, 2022
Hutson: Up Against the Wall ["of Separation"]
From James H. Hutson, former chief of the manuscript division at the Library of Congress and author of Religion and the Founding of the American Republic, in the Claremont Review of Books: