“The First Amnesty” – The New York Times

November 24, 2016 / Debbie / Leave a comment

“America’s first illegal-alien amnesty wasn’t the biggest in our history, but it was the most influential.”

“Thanksgiving is a lovely story we tell ourselves, about kindness and tolerance and white people fitting in. The American story got richer and deeper over time, with many grave sins and slaughters, not least for indigenous peoples, but generally hewing to a spirit of growing inclusion and welcome for newcomers. How alien that all feels today, in the dawn of Donald Trump’s America.”

This may not be the most uplifting Thanksgiving message, but it is, nevertheless, fitting.

Happy Thanksgiving!

Source: The First Amnesty – The New York Times

“Climate Change in Trump’s Age of Ignorance” – The New York Times

November 20, 2016November 20, 2016 / Debbie / Leave a comment

The historian of science Robert N. Proctor writes about the campaigns of deception that have been using science “as an instrument of deception on issues like global warming.” I don’t think this topic gets the attention that it should. The successful campaigns of deception by self-interested corporations has had a devastating effect on the health and well-being of many people here in the U.S. and across the globe. It may be difficult to educate the general population on this subject in the “Age of Ignorance,” but we should at least try. Ignorance is particularly dangerous in this “Age of Deception.”

I also think that us educators need to seriously think about how we prepare our students to sort through all the nonsense they are bombarded with in the age of the internet. We also need to teach our students how, and why, science works, not just the basic findings of science. This is one of the reasons why the testing craze that promotes rote memorization over thinking is so destructive. If there ever was a time that critical thinking skills were absolutely critical to our well-being, it is now!

Excerpt from the article: “We now live in a world where ignorance of a very dangerous sort is being deliberately manufactured, to protect certain kinds of unfettered corporate enterprise. The global climate catastrophe gets short shrift, largely because powerful fossil fuel producers still have enormous political clout, following decades-long campaigns to sow doubt about whether anthropogenic emissions are really causing planetary warming. Trust in science suffers, but also trust in government. And that is not an accident. Climate deniers are not so much anti-science as anti-regulation and anti-government.”

Source: Climate Change in Trump’s Age of Ignorance – The New York Times

First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786” (Part I)

November 19, 2016 / Debbie / 2 Comments

Click here for the Introduction.

I. James Madison and the Virginia Declaration of Rights (1776)

After declaring independence from Britain in 1776, delegates at a special Convention took up the tasks of creating a state constitution and a Declaration of Rights (DOR). As one of the first bills of rights created by the newly independent states, Virginia’s DOR was held up as a model expressing the enlightened values that were to shape the new nation. The distinguished statesman George Mason had been enlisted to draft this foundational document, and Mason did not disappoint. His draft was greeted with overwhelming praise in and outside the Convention. (1) As a result, few changes would be made to Mason’s draft, but one of these changes was prompted by the young and idealistic James Madison. Determined to set Virginia on the path toward religious liberty, Madison succeeded in altering the article concerning religious rights (Article 16).

James Madison

The original article promised that “all Men should enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” Aware of the implications of this wording, Madison vigorously objected. The word “toleration” implies a hierarchy of religions in which some groups (or only one) are privileged, while all others are merely tolerated. After several attempts, and with the help of his future nemesis Patrick Henry, Madison’s wording (“all men are equally entitled to the full and free exercise of it [religion] accordg to the dictates of Conscience”) replaced Mason’s. (2) Madison indicated that his change “declared the freedom of conscience to be a natural and absolute right.” (3) Madison’s modification had important implications for the established Church of England, which had not been not legally disestablished at the Convention of 1776.

Concerning these events at the Convention, Esbeck makes several claims:

Madison believed that “a civil state had no jurisdiction in matters of organized religion.” (p. 67)
the “equality” clause was about the equality of religions, not individual equality. (p. 69)
there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other.” (p. 70)

How well do these claims hold up against the evidence?

1. Did Madison believe that “a civil state had no jurisdiction in matters of organized religion”?

By claiming that it was “organized religion” alone that Madison saw as outside the bounds of governmental powers, Esbeck gives a misleading characterization of Madison’s views. Rather than speaking in terms of “organized religion,” Madison consistently claimed that it was “Religion” that was “wholly exempt from its [government’s] cognizance.” (4) (italics mine) (see endnote for more examples from his writings) This is a much broader limit on government’s power. If religion in general is beyond the jurisdiction of government then the legislature cannot pass any laws on the subject of religion except those protecting rights, as Madison and the dissenters frequently professed. For example, a popular dissenter petition requested that “the Legislature interfere[] only to support them in their just Rights and equal privileges.” (5)

Madison’s broader limit also places all government support (financial, legal, or symbolic) of religion outside the bounds of governmental powers. This strict separation of religion and government was seen as necessary to protect the individual rights of conscience. In Madison’s Memorial & Remonstrance protesting against a proposed tax to support religion, he wrote, “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” (M&R, point 1) Just as central to Madison’s case against “the establishment proposed by the Bill” was equality. It was Madison’s contention that

the Bill violates the equality which ought to be the basis of every law, and which is more indispensable, in proportion as the validity or expediency of any law is more liable to be impeached. If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an ‘equal title to the free exercise of Religion according to the dictates of Conscience.’ (M&R #4)

These two individual rights, which were enshrined in the Virginia DOR, were the foundation of Madison’s case against the establishment of a tax for religion. This cannot be squared with Esbeck’s “voluntaryism” principle, which denies that the movements against establishments were about protecting individual rights. Rather than speaking about establishments in terms of the relationship between two centers of power (“government and organized religion”), (6) Madison saw all establishments of religion as a threat to the natural rights of all men.

2. Did the new clause refer to individual equality or equality “among all religions”?

Consistent with his claim that establishment issues are not about individual rights, Esbeck claims that Madison’s equality clause “could be read to imply equality not with respect to individuals, but among all religions.” (p. 69) The only evidence presented in support of this claim comes from Edmund Randolph’s History of Virginia. In the relevant section, Randolph recounts that Patrick Henry was asked whether the article “was designed as a prelude to an attack on the established church, and he disclaimed such an object.” (7) There is seemingly nothing in this brief account of events that indicates that the clause was about the equality of religions. To understand how Esbeck sees proof in this simple statement for his position we need to keep in mind Esbeck’s conviction that objections to establishments were not about protecting rights. He therefore, insists that individual equality could not be the basis for “an attack on the established church,” and from there it follows that Madison’s clause had to be about the collective equality of all religions. To Esbeck only the equality of all religions “would disestablish the Church of England.” (p. 69)

The problem with Esbeck’s inference is that it rests on his own assumptions about the relationship between rights and establishments, for which he has not so far found any evidence in the eighteenth-century sources. In fact, all the evidence points in a different direction. The most obvious conclusion is that some were concerned that the individual right promised in Article 16 required the disestablishment of the Church of England, something the conservative Anglicans at the Convention were unwilling to do. They must have been reassured by Patrick Henry’s statement. Henry was most certainly unaware of the implications of the clause and, therefore, honestly saw no threat to the “established church.” Madison, aware that his proposal would fail if its implications had been known, seems to have decided to remain silent on the issue.

More problematic for Esbeck’s claim is the fact that the article itself undermines his claim. Here’s the entire final version Article 16:

That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. (8)

Notice that the equality of “all men” follows from the conscience of individuals. There is nothing in the passage about the equality of all religions or religious denominations. The article declares an individual right, which belongs to all equally.

The issue raised at the Convention was not about the distinction between individual and collective rights, but whether or not the individual right given in Article 16 necessitated the disestablishment of religion. To Madison and the dissenters, it certainly did. After the Convention, the dissenters immediately began their campaign demanding that “all Church establishments might be pulled down” on the on the grounds that it was contrary to the individual rights enshrined in the Declaration of Rights. (9)

The conservative delegates, who were Anglicans devoted to the establishment of their Church, failed to see the implications of Madison’s change to the article, and were, therefore, stunned when the dissenters began demanding the disestablishment of the Church of England. They had earlier rejected part of Madison’s first proposal (in italics below), but they failed to realize that this statement was a logical extension of Madison’s equality phraseology, as can be seen from his original proposal (the section in brackets is from Mason’s version):

[That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion,] all men are equally entitled to the full and free exercise of it accordg to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges; nor subjected to any penalties or disabilities unless under &c. (10)

The “and therefore” makes it clear that the second (third if Mason’s opening clause is included) follows from the first (second). There is no way to see this as a statement about the equality of religions as opposed to the equality of individuals. This statement of individual rights would become the legal foundation of the dissenters’ case against all establishments of religion.

Once again Esbeck’s version of events does not hold up. The clause unequivocally places the individual at the center of its concern. The question now becomes, as it had at the Convention, about the relationship between this right and disestablishment.

3. Was there was a “bifurcation of the protection of individual religious conscience, on the one hand, and religious disestablishment on the other”?

Separating the individual right to the free exercise of religion from the issue of establishments is central to Esbeck’s project; his whole church-state theory rests on the assumption that individual rights have nothing to do with disestablishment. While it is true that states could and did grant all citizens the right to practice their religion while still maintaining an establishment, this arrangement is one of toleration and is not compatible with the religious liberty advocated by Madison and the dissenters. Maintaining establishments while granting the free exercise of religion creates a system of toleration, rather than religious freedom. Since this arrangement privileges the religious opinions of some citizens above others it is not compatible with religious liberty, which assumes individual equality. This is why, even without Madison’s “no privileges” clause, the dissenters began calling for the disestablishment of the Church of England, and all other privileging of a particular religion or denomination, on the grounds that establishments of religion are incompatible with Article 16. Esbeck’s assumption that the two issues are separate is undermined by this fact.

Conclusion:

So far there is little evidence supporting Esbeck’s voluntaryism principle. Given the minimal evidence associated with the Convention and the creation of the DOR, there is still the possibility that the dissenters advocated for a church-state arrangement along the lines of Esbeck’s principle. The real test of his claims will come with a review of the campaign against establishments that followed the enactment of the DOR. The first stage of this campaign begins with the closing of the Convention in 1776 and goes through 1779, when Jefferson attempts to pass his bill for Establishing Religious Freedom.

Mason’s proposed DOR appeared in the Virginia Gazette (May 27, 1776).
“Madison’s Amendments to the Declaration of Rights, [29 May-12 June 1776],” Founders Online, National Archives (last update: 2014-12-01]). Source: The Papers of James Madison, vol. 1 16 March 1751-16 December 1779, ed. William T. Hutchinson and William M.E. Rachal. Chicago: The University of Chicago Press, 1962, pp. 174-175.
James Madison, Autobiography (December 1830) at Founders Online.
James Madison, “Memorial and Remonstrance Against Religious Assessments” (June 20, 1785) at Founders Online. Here are some other examples from Madison’s writings (italics mine):

“Because Religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former.” (Memorial & Remonstrance, Point # 2)

“The settled opinion here is that religion is essentially distinct from Civil Govt and exempt from its cognizance; that a connection between them is injurious to both…” (Madison to Edward Everett, March 19, 1823) at Founders Online.

“I observe with particular pleasure the view you have of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace.” (Madison to Edward Livingston, July 10, 1822) at Founders Online.

“Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” (Detached Memoranda, ca. 31 Jan. 1820) at Founders Online.

“‘Ten-thousand name’ petition by Dissenters from whole state, for ending established church, and for institution of religious equality.” (October 16, 1776) at Library of Virginia: Digital Collection. (accessed November 2016). Since the original document is difficult to read a summary of the petition can be found in the Virginia Journal of the House of Delegates of Virginia, 1776 (Richmond: Samuel Shepherd & Co., 1828), 15.
Esbeck asserts that “the Establishment Clause was not so much about protecting individual rights qua rights (the Free Exercise Clause serves that role), as it is about the proper structuring of the relationship between two centers of authority, government and organized religion.” (61)
Moncure Daniel Conway, Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph, 2d ed. (New York: G.P. Putnam’s Sons, The Knickerbocker Press, 1889), 30. The account by Randolph was written years after the event and was found among Randolph’s papers after his death. He also describes Patrick Henry as the author of the sixteenth article, which is contradictory to the majority of the evidence.
“Article on Religion Adopted by Convention, [12 June 1776],” Founders Online.
The Virginia Journal of the House of Delegates (1776), 7.
“Madison’s Amendments to the Declaration of Rights, [29 May – 12 June, 1776]” at Founders Online.

First Amendment Folly: An Evaluation of Carl H. Esbeck’s “Protestant Dissent and the Virginia Disestablishment 1776-1786” (Introduction)

November 19, 2016November 19, 2016 / Debbie / 4 Comments

Several months ago I posted a blog on the abuse of history in constitutional law (“The Politics of Deception”), and this is the first of the promised evaluations exposing this abuse.

In the last several decades the Religious Right has cleverly repackaged itself as the champion of religious liberty. They have established law firms and organizations such as the Becket Fund for Religious Liberty that prominently display their religious liberty goals. (1) In 2009 numerous conservative religious and political leaders signed the Manhattan Declaration, which lists religious liberty among its other commitments to “human life,” marriage, and unjust laws. Among the victories of the phalanx of religious advocacy groups and their lawyers are state statutes modeled on the 1993 federal Religious Freedom Restoration Act (R.F.R.A.), which essentially allow businesses to discriminate in the name of religion. (2) As Linda Greenhouse rightly points out, this is a betrayal of the original mission of RFRA. It had been “embraced across the religious and political spectrum as a shield against the thoughtless oppression of religious minorities,” she asserts, “not [as] a sword in the hands of those who would invoke religion to carve a gaping hole in the fabric of civil society.” (3) This expansion of the free exercise of religion that benefits some at the expense of others has occurred at the same time that the powers of the Establishment Clause (EC) have been eroded. As a corrective, Greenhouse proposes a new piece of legislation: The Establishment Clause Restoration Act. Her suggestion is unlikely to go anywhere anytime soon, but it points to an often-overlooked aspect in the debates over the new religious liberty laws: the role of the EC. The combination of a strengthened Free Exercise Clause along with a weakened EC has gone a long way in tearing down Jefferson’s wall of separation. Under the guise of “religious liberty” the Religious Right has found a way to establish their religion in law, even if only partially.

The EC has been a target of the Religious Right since the Supreme Court handed down its 1947 decision in Everson v. Board of Education, which declared that the EC created “a wall of separation between church and state.” To those opposed to this ruling originalism seemed to provide the solution to challenging the interpretation. One of the most influential of the early originalist challenges to Everson came from “nonpreferentialists,” those who maintain that the EC allows government support of religion as long as all religions were treated equally. (4) This “nonpreferentialist” interpretation has recently declined in influence after several prominent scholars exposed its flawed reading of history. (5) Currently, the main “accommodationist” challenge comes from what today is known as the jurisdictional or federalist interpretation. The “federalists” argue that the intent of the framers was to prevent the federal government from interfering in the establishments in the states, while at the same time preventing the federal government from setting up an establishment. (6) Carl H. Esbeck makes a similar argument. (7) However, in “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” Esbeck forgoes this interpretation in favor of a different originalist interpretation. (8) Accepting the Everson case and its reliance on Virginia, he argues that its guiding principle is what he calls “voluntaryism,” a concept which he insists expresses the religious dissenters’ thinking on church-state relations in eighteenth-century Virginia. In other words, he accepts an Everson decision that has been refashioned to suit his purposes.

Esbeck defines “voluntaryism” as “the active support of religion must be voluntary and thus at the behest of the private sector, which is to say, not by the government.” (9) While it may appear to be a simple claim that religion is voluntary, implying “that there is an absence of government compulsion or coercion,” this is not what he means. To concede this would undermine his claim that the EC is not about rights. As a result, he relegates this right of non-coercion to the realm of free exercise of religion. (p. 61) Questions concerning religious establishments are about fixing the nature and extent of the relationship between the state and “organized religion,” according to Esbeck. Voluntaryism, as expressed in eighteenth-century Virginia, was about banning state intervention in “organized religion,” but not the other way around. This goal was pursued by the dissenters, in Esbeck’s telling, “out of a common desire to protect the church from undue control by the government,” whereas, the rationalists took up the cause because they were concerned about “the unity of the body politic.” (p. 103)

It is a term, according to Esbeck, that “the new nation called (and) spelled voluntaryism.” (pp. 51-2) However, he gives no source(s) supporting this claim in either “Protestant Dissent” or “Dissent and Disestablishment.” After searching hundreds of petitions, pamphlets, letters, and newspaper articles written by rationalists and dissenters across the new nation I have been unable to locate the term. This does not necessarily mean that the concept itself did not exist. If it is true that both the rationalists and religious dissenters “embraced” this form of church-state arrangement, we should be able to find it in the historical record.

Why Esbeck’s “Protestant Dissent”?

Given the flood of originalist works challenging the Everson precedent it may seem surprising that I selected a work that narrowly focuses on Virginia. But given Virginia’s prominent place in the history of both religious liberty and the EC it seems appropriate to begin with Virginia. The history of disestablishment in this newly independent state offers a more revealing glimpse into the perspectives on religious liberty in eighteenth-century America, than do the brief and flawed records of the First Federal Congress.

I also chose “Protestant Dissent” because Esbeck is a distinguished and well-connected constitutional scholar, who has been influential in shaping the interpretation of the First Amendment. According to his profile, he was “the progenitor” of the “Charitable Choice” initiatives, which were part of the 1996 welfare reform bill that allows religious social-service providers to contract with the government without having to compromise their religious identity. More significantly, he was part of George W. Bush’s task-force on faith-based initiatives. In this work, he had ties with the Center for Public Justice, a think tank that seeks “to equip citizens, develop leaders, and shape policy in pursuit of our purpose to serve God, advance justice, and transform public life.” Esbeck was also director of the Center for Law & Religious Freedom (CLRF) from 1999 to 2002. CLRF describes itself as “America’s oldest Christian advocacy ministry for religious freedom,” which “argues high impact cases and advises Congress on vital legislation to protect religious freedom.” On their website they boast that they “are blessed to serve as America’s RELIGIOUS LIBERTY ADVOCATES®.” In addition, he has written numerous articles on the meaning of the First Amendment’s Religion Clauses. (10) Currently, Esbeck is a professor of law at the University of Missouri, where he continues to advocate for his unique interpretation of the First Amendment.

Why does it matter?

We all have a stake in upholding our commitment to religious liberty, and thus in the meaning and interpretation of the EC. The stakes are much higher for those whose beliefs do not conform to the religious opinions of the majority. But those in the majority should care if for no other reason than the fact that they may someday find themselves in the minority. Of course, everyone claims to be devoted to religious liberty, but it is the very meaning of “religious liberty” itself which is at issue in the debates over the EC. Esbeck claims to be advancing religious freedom as the founders and religious dissenters understood it. Based on this understanding, he argues that the EC “does not require a showing of coercion of religion-based conscience or other religious harm.” (pp. 61-2)

This interpretation opens the way for the accommodation of religion in the public square in ways that violate the rights of some. It does so by stripping the EC of two of its most basic functions: 1) preventing the privileging of a particular religion or religious denomination; and 2) protecting individual rights. In addition to allowing religious groups to shape public policy in accordance with their own religious dogma, Esbeck’s rendering of the EC has also opened the way for laws and policies that provide financial support for religious organizations as long as the support is for things “not specifically religious.” In accordance with his understanding of the EC, Esbeck supports equal access to public forums for religious individuals and organizations, including schools, to promote their religious beliefs and agendas (fn. 200, p. 99); government aid to religious organizations providing public services (p. 101); and the use of public funds for school vouchers that will be used at private religious institutions (fn. 210, p. 101).

Driving Esbeck’s quest for an accommodationist interpretation of the First Amendment is the belief that separating government “from all that is arguably religious (or arguably has a religious foundation) … is hostile rather than neutral to the influence of religion on society.” (11) This oft repeated mantra rings true only for those who are in the majority; few others would agree that a check on the power of the majority to impose itself on others is hostile. It is also contrary to the conception of religious liberty of those very religious dissenters that Esbeck claims he is representing. As members of the minority, the religious dissenters knew all too well the tyranny of the majority. Petitioning against laws privileging the Episcopal Church, Baptists in Virginia protested, “As Religious Oppression, or the interfering with the Rights’ of Conscience, which God has made accountable to none but himself, is of all Oppression the most inhuman and insupportable, and as Partiality to any Religious Denomination is its genuine Offspring, your Memorialists have with Grief observed that Religious Liberty has not made a single Advance, in this Commonwealth, without some opposition.” (12) It is not hostility to religion that necessitates separating all that is religious from government, it is hostility to religious tyranny that mandates such an arrangement.

In addition to the perception of hostility, Esbeck is motivated by the belief that “[w]ithout church autonomy, civil society will lose organized religion as a check and limit on the pretensions of Caesar. And that would surely lead to a more authoritarian state. Whether one is personally religious or not, we all have a liberty stake in that not happening.” (p. 103) It is this genuinely held believe that underlies Esbeck’s push to accommodate religion, and as a result to abuse history. He is not alone in producing ideologically motivated scholarship; however, this is no excuse for the distortions, misleading interpretations, and omissions of inconvenient evidence. By making claims to “original intent” Esbeck and others, have been able to present themselves as objective intermediaries of the original meaning of the First Amendment without having to defend the religiously derived assumptions upon which their interpretations rest. Originalism has become a mask for specious arguments.

The examination of Esbeck’s claims will appear in four separate blog posts, following the main phases of disestablishment in Virginia. The first post will examine the creation of the religious liberty clause (Article 16) in the Virginia Declaration of Rights, which was enacted in 1776 after declaring independence from Great Britain. It was in the creation of this article that James Madison made his first significant contribution to the struggle for religious liberty. The significance of this contribution will become clear in the next post reviewing the petitions calling for an end to all establishments of religion. With the help of Thomas Jefferson, who was serving in the House of Delegates, the dissenters succeeded in freeing themselves from the burden of financially supported the still established Church of England, newly named the Episcopal Church. This victory was significant, but not enough for the dissenters who sought to end all unequal privileging based on religious opinions. Sharing the dissenters’ ultimate goal of religious liberty Thomas Jefferson introduced his Bill for Establishing Religious Freedom in 1779. This effort will be the subject of the third post. The bill failed, leaving the issue of disestablishment unsettled as Virginians dealt with the pressing concerns of war. The fourth, and most significant, phase, which began as the Revolutionary War came to a close, will be the subject of the fourth post. In the final showdown between the conservatives and the rationalist/dissenter coalition, a bill for a general assessment in support of the Christian religion was soundly defeated. It was during this phase that Madison wrote his celebrated Memorial and Remonstrance Against Religious Assessments. He also capitalized on the momentum and secured the passage of Jefferson’s religious freedom bill. The final post will summarize the results and declare the final verdict on Esbeck’s use of history.

Gustav Niebuhr, “Conservatives’ New Frontier: Religious Liberty Law Firms,” The New York Times (July 8, 1995).
David Cole, “The Angry New Frontier: Gay Rights vs. Religious Liberty,” The New York Review of Books (May 7, 2015).
Linda Greenhouse, “Church, State, and the Supreme Court’s Moment of Truth,” The New York Times (Oct. 29, 2015).
See Michael J. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (The American Enterprise Institute for Public Policy Research) 1978.
See Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill: The University of North Carolina Press), 1994.
Steven D. Smith, Foreordained Failure 1995. For an extensive critic of this interpretation see Ellis West in The Religion Clauses of the First Amendment: Guarantees of States’ Rights? Lanham, Maryland: Lexington Books, 2011.
Based on the debates from the First Federal Congress, Esbeck argues that the EC was designed to impose two limits on the powers of the federal government. First, it was meant to prevent the federal government from intervening in states’ church-state settlements. Second, it denied Congress only the power to legislate “respecting an establishment of religion,” thus leaving it free to legislate “respecting religion.” Esbeck, “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004), 1576-7. There are many reasons why his argument is wrong, but here I will only briefly address the flaws in his claims. A more robust counter to this argument will have to wait until later. The first problem is with the primary sources from the First Federal Congress. James H. Hutson, in his study of the documentary evidence, warns that most of the documents are defective. He determined that many of them “have been compromised – perhaps fatally – by the editorial interventions of hirelings and partisans.” Therefore, he concludes that “[t]o recover original intent from these records may be an impossible hermeneutic assignment.” [“The Creation of the Constitution: The Integrity of the Documentary Record,” Texas Law Review 65 (1986): 2.] To get to what he calls a “structuralist” interpretation of the Establishment Clause (EC), Esbeck misconstrues and misinterprets the little evidence there is. In a future post I’ll more adequately address the flaws in his argument. Esbeck’s argument shares a lot in common with the “federalists” who argue that the EC was meant to prevent the federal government from intervening in the state establishments of religion. Ellis M. West in The Religion Clauses of the First Amendment: Guarantees of State’s Rights? (2011) exposes the flaws in this interpretation.
Carl H. Esbeck, “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009) 51-103.
Esbeck, “Protestant Dissent,” 53 and 98. Esbeck makes the same claim in “Dissent and Disestablishment,” where he examines the history of disestablishment in the original thirteen colonies plus Vermont. (“Dissent and Disestablishment,” 1590-1)
Some of Esbeck’s works on the First Amendment: “The First Federal Congress and the Formation of the Establishment Clause of the First Amendment,” in No Establishment of Religion: America’s original Contribution to Religious Liberty, edited by Jeremy T. Gunn & John Witte, Jr., 208-251. New York: Oxford University Press, 2012; “Protestant Dissent and the Virginia Disestablishment, 1776-1786,” The Georgetown Journal of Law & Public Policy 7 (2009): 51 – 103; “When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis,” West Virginia Law Review 110 (2007); “Dissent and Disestablishment: The Church-State Settlement in the Early American Republic,” Brigham Young University Law Review (2004): 1385-1592; “Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause,” Notre Dame Journal of Law, Ethics & Public Policy 13 (1999): 285-319; and “Five Views of Church-State Relations in Contemporary American Thought,” Brigham Young University Law Review (1986): 371-404.
Esbeck, “Myths, Miscues and Misconceptions,” 309-10.
“Baptist Association: Petition” (November 8, 1780) at the Library of Virginia: Digital Collection.