I want to thank Vincent Phillip Munoz, one of my favorite Establishment Clause scholars on the anti-Separation side, for sending me this article on the constitutionality of posting the Ten Commandments and asking for my comments.
The article comprehensively looks at all of the Supreme Court Justices' views on public displays of the Decalogue in the McCreary and Van Orden opinions, compares them with the personal views of the Founding Fathers so invoked in those cases, offers Munoz's opinion on the proper constitutional outcome according to the original meaning of the Establishment Clause, and finally, speculates on the future of such "display" jurisprudence.
I have a couple of comments on his article:
First, Munoz notes Justice Souter's majority opinion in McCreary, and that "[a]ccording to Justice Souter, the 'touchstone' of the Court’s Establishment Clause analysis is,
the principle that the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides."
This leads to an interesting comparison between the views of James Madison and Justice Souter. Souter's "neutrality" principle does have its roots in Founding thought. However, according to Munoz, Souter doesn't quite understand the principle of neutrality as James Madison did. As Munoz writes:
Madisonian non-cognizance differs from Justice Souter’s neutrality in that Madison would allow religions and religious citizens to participate in public programs so long as they did so along non-religious terms. Justice Souter’s neutrality, by contrast, necessarily requires government cognizance of religion in order to prevent governmental advancement of it.143
For more on the controversy over how to properly understand Madison's views via his Memorial and Remonstrance, see the illuminating exchange between Justices Souter and Thomas in Rosenberger v. University of Virginia, where Thomas argues Munoz's point, and notes the principle of "religious equality" drives the argument of Madison's Remonstrance: "The assessment violated the 'equality' principle not because it allowed religious groups to participate in a generally available government program, but because the bill singled out religious entities for special benefits."
While Souter claims, "JUSTICE THOMAS suggests that Madison would have approved of the assessment bill if only it had satisfied the principle of evenhandedness. Nowhere in the Remonstrance, however, did Madison advance the view that Virginia should be able to provide financial support for religion as part of a generally available subsidy program." Souter would thus disallow direct public aid to religion, even if available on generally applicable, neutral grounds.
Personally, I agree with the Munoz/Thomas view that government aid to religion would be perfectly okay with a Jeffersonian-Madisonian natural rights view, as long as the aid is available on neutral or "religion blind" grounds. But such "even handedness" also perfectly parallels Justice Souter's (and Everson's) assertion that "the First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Take vouchers as the quintessential example. Public monies to religion in the form of vouchers are just fine as long as government is neutral "between religion and religion" -- Christian schools, Muslim schools, Hindu schools, Scientologist schools, Unitarian schools etc., all would be eligible -- and "between religion and nonreligion" -- secular private schools also would be eligible for such aid.
And Madison's ideals likewise reach the same result as Souter's majority opinion in McCreary. As Munoz puts it:
In the Ten Commandments cases, Madisonian non-cognizance likely would have reached the same results as Justice Souter’s “neutrality,” but the Madisonian approach would have approached the cases differently. It would not have inquired about advancement of religion but instead asked whether, in posting the Ten Commandments, the state become cognizant of religion as such. The answer in Van Orden would turn on the determination of whether Texas recognized only the Eagles’ civic contribution when accepting and erecting their Ten Commandments monument or whether the state also—as is likely—recognized religion as such. McCreary County would seem to contain a much more straightforward example of impermissible government cognizance of religion.
However, both Munoz and Thomas assert that such personal ideals of Madison are not properly part of the original meaning of the Establishment Clause. As Munoz writes: "It also should be noted that no evidence exists to suggest that when the First Congress drafted the Establishment Clause, it understood itself to be adopting Madison’s position of 'non-cognizance.'" And as Thomas noted in Rosenberger:
(Madison's views "as reflected by actions on the floor of the House in 1789, [indicate] that he saw the [First] Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects," but not "as requiring neutrality on the part of government between religion and irreligion"). Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from "arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society," Cord, supra, at 22, rather than the principle of nonestablishment in the Constitution. In any event, the views of one man do not establish the original understanding of the First Amendment.
Both Munoz and Thomas support the view that the Establishment Clause was originally a "federalism only" provision and is thus not properly incorporated against the states.
As Munoz writes:
Justice Thomas is the only Justice who has offered an interpretation that appreciates the diversity of the Founders’ disagreement about church and state and what that diversity implies about the Establishment Clause’s original meaning. Because they disagreed, the Founders agreed to live with disagreement—that is, they agreed to keep matters pertaining to religious establishments at the state level. The Establishment Clause was drafted to recognize explicitly that religious establishments were the exclusive jurisdiction of the states.158 A jurisprudence faithful to this original meaning would require the dis-incorporation of the Establishment Clause, something that no Justice other than Justice Thomas seems willing to consider.
Indeed, Munoz has an article coming out entitled The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. PA. J. CONST. L. (forthcoming 2006).
Thomas offers as a "compromise" a way of properly incorporating the Establishment Clause. Munoz continues:
As a compromise, Justice Thomas suggests that either the Establishment Clause or the Free Exercise Clause may be understood to prohibit religious establishments, precisely and historically defined, at all levels of government. This interpretation fails to apply the historical meaning or purpose of the Establishment Clause and is contrary to the beliefs of those Framers who thought a mild religious establishment was compatible with religious free exercise.159 Nevertheless, Justice Thomas’s approach captures one of the Framers’ core constitutional values: the protection of religious liberty through the prohibition of religious coercion. Despite their disagreements, the leading Founding Fathers agreed that the coercion of religious belief and practice violated the right to religious liberty.160 Justice Thomas’s approach is most consistent with the thought and practice of the Founding Fathers, although he recognizes that it is not an exact application of the First Amendment’s original meaning.
My critique of the "federalism only" view of the Establishment Clause.
While no doubt, allowing the states to decide on establishment matters was a core purpose of the original Establishment Clause, it was also a core purpose of the entire Bill of Rights, all of which originally restrained the federal government only. If we accept the doctrine of incorporation, then what must be answered is why should the entire first eight Amendments of the Bill of Rights save the Establishment Clause be incorporated?
Perhaps this could be justified under a "selective incorporation" theory. But almost all originalists who support the doctrine of incorporation argue that the selective incorporation doctrine has no merit, that indeed, the entire first eight Amendments of the Bill of Rights are incorporated, as "Privileges or Immunities," which no state shall abridge. Indeed John Bingham, the principle draftsman of sec. 1 of the 14th Amendment, in an 1871 speech, read verbatim the first eight amendments, including the Establishment Clause, as part of the "privileges or immunities" of citizens of the United States. And by that time, all states had disestablished their official churches (Massachusetts being the last to do so by 1833).
Privileges or Immunities are by their very nature "individual rights." The strongest argument that can be made against incorporating the Establishment Clause is that it, unlike the rest of the Bill of Rights, doesn't relate to an individual right. This is a complicated question that needs to be more thoroughly explored in scholarly detail. But I'll briefly raise some relevant points here:
First, I would disagree that the only purpose of the Establishment Clause in 1789 was federalism. Rather, I would argue, while federalism was one core purpose, another core purpose was that the Establishment Clause, along with the Free Exercise Clause, Art. VI's "No Religious Test" Clause, and the oft-forgotten doctrine of enumerated powers all together acted to secure the unalienable rights of conscience against federal violations. State governments were responsible for guarding such rights against state and local violations.
So then, how would the Establishment Clause protect individual rights? At the very least, the Framers of the 14th would have it protect against the "coercive establishments" discussed above, perhaps more. But, a different part of the 14th Amendment may be the proper place for whatever protection beyond prohibiting "coercive establishments" is guaranteed. While "Free Exercise" clearly relates to a "liberty" right, "equality" is the other half of the twin pillars of liberalism that undergirds the Declaration, the original Constitution, and the 14th Amendment. And the Equal Protection Clause properly vindicates equality claims.
This is what Akhil Amar argues in his excellent book on the Bill of Rights. (See my past post.)
Perhaps the greatest elaboration came from Thomas Cooley's influential 1868 treatise. Under prevailing state constitutions, wrote Cooley, states generally could not enact "[a]ny law respecting an establishment of religion....There is not religious liberty where any one sect is favored by the State....It is not toleration which is established in our system, but religious equality." Even a noncoercive establishment, Cooley suggested, violated principles of religious liberty and religious equality -- violated norms of equal rights and privileges. And once we see this, it turns out that the question -- should we incorporate the establishment clause? -- may not matter all that much, because even if we did not, principles of religious liberty and equality could be vindicated via the free-exercise clause (whose text, history, and logic make it a paradigmatic case for incorporation) and the equal protection clause (which frowns on state laws that unjustifiably single out some folks for special privileges and relegate others to second-class status). Surely Alabama could not adopt a state motto proclaiming itself "the White Supremacy State"; such a motto would offend basic principles of equal citizenship and equal protection. And so a law that proclaimed Utah a Mormon state should be suspect whether we call this a violation of establishment principles, free-exercise principles, equal-protection principles, equal-citizenship principles, or religious-liberty principles. Once we remember that we are not incorporating clauses mechanically but reconstructing rights, we reach the unsurprising conclusion that our basic touchstones should be the animating Fourteenth Amendment ideals of liberty and equality. pp. 253-4
Now, it might seem a little odd that the Supreme Court uses the wrong clause to achieve the right results. But, the Supreme Court has a perverse history of doing exactly this. Keep in mind, the Supreme Court currently has incorporation taking place, not through the Privileges or Immunities Clause, but through the Due Process Clause. And that clearly is the "wrong" place.
Moreover, as noted above, Madison's Memorial and Remonstrance (and much else in his writing) is driven by a notion of religious equality. Indeed in Madison's first draft of the First Amendment, he included a clause which stated "No state shall violate the equal rights of conscience." While that clause wasn't adopted in the original Constitution, arguably it is encompassed by the 14th Amendment's substantive guarantee of equality.
Another reason why Madison's Memorial and Remonstrance and Jefferson's Virginia Statute on Religious Freedom are relevant for determining constitutional religious rights is that they are "natural rights" documents. As Justice Thomas, quoting another scholar, above said: "Moreover, even if more extreme notions of the separation of church and state can be attributed to Madison, many of them clearly stem from 'arguments reflecting the concepts of natural law, natural rights, and the social contract between government and a civil society....'" This is the same Justice Thomas, keep in mind, who believes that the Declaration of Independence's organic natural law should be given constitutional status! But the Declaration doesn't exist in a vacuum. Madison's Memorial and Remonstrance and Jefferson's Virginia Statute are part-and-parcel of the same organic natural law as the Declaration of Independence.
So Justice Thomas needs to answer why he would give the Declaration status in constitutional law, but not the Memorial and Remonstrance or Virginia Statute on Religious Freedom.
Perhaps because doing so would validate at least some of the results of the Court's post-Everson rulings. But "originalists" are not supposed to be "results oriented."