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The Establishment Clause: Religion and the First Amendment

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With attempts by our current President to allow federal funds to go to religious charities, a better understanding of the history and meaning of the First Amendment is desparately needed. One could hardly be better qualified to give us such an education than Leonard W. Levy in his book on the Establishment Clause.

In his book, Levy refutes the nonpreferentialists' claim that the First Amendment clause, "Congress shall make no law respecting an establishment of religion," merely prohibits Congress from providing preferential aid to one church. If "an establishment of religion" meant only single-church establishments, Congress would only be prohibited from exclusively benefiting one church but not prohibited from aiding religion impartially. But, as Levy points out, history does not support the nonpreferentialists' interpretation.

Although the five southern colonies did have exclusive Anglical establishments, the colonies of New York, Massachusetts, Connecticut, and New Hampshire came to have multiple religious establishments, and, indeed, the colonies of Rhode Island, Pennsylvania, Delaware, and New Jersey never had establishments of any kind. After the Revolution, opposition to establishments increased, resulting in states having to replace their exclusive or dual establishments or even ending their establishments altogether. Thus, the historical fact of multiple establishments of religion contradicts the nonpreferentialists' interpretation that "an establishment of religion" referred only to single-church establishments, and, therefore, does not support their claim that the establishment clause only prohibits Congress from making laws preferring one church. Nor is their interpretation supported by the debates between the Federalists and Anti-federalists.

Anti-federalists feared loss of liberty and pressured Federalists to accept recommendations for amendments to the new Constitution, which included protection of religious liberty. But Federalists countered that such amendments were superfluous because, as Levy succinctly restates the argument, "[T]he unamended Constitution vests no power over religion." Moreover, Madison stated in an October 17, 1788 letter to Jefferson that these amendments ought to be "so framed as not to imply powers not meant to be included in the enumeration." Thus, Levy concludes, "To argue, as the nonpreferentialists do, that the establishment clause should be construed to permit nondiscriminatory aid to religion leads to the impossible conclusion that the First Amendment added to the powers of Congress even though it was framed to restrict Congress. It is not only an impossible conclusion; it is ridiculous."

From his demolition of the nonpreferentialists' interpretation of the establishment clause and his statement in the Preface that his "sympathies are clearly with the separationists," one might conclude that Levy is a strict advocate of an impregnable wall of separation between church and state. However, he is not. Of zealous separationists who interpret every crack in the wall as disaster, Levy says, "[They are] like Chicken Little, screaming, 'The wall is falling, the wall is falling.' It really is not and will not, so long as it leaks just a little at the seams. If it did not leak a little, pressure on the wall might generate enough force to break it."

Examples of leaks which Levy feels need not be repaired are the Supreme Court beginning its sessions with "God save this honorable Court," the money motto "In God We Trust," the words "under God" in the Pledge of Allegiance, tax-supported chaplains for military and legislative bodies, etc. Although Levy is aware of the concern of separationists that "big oaks grow from small acorns," he invokes for "trivial" leaks an aphorism which was also advocated by Madison: "De minimis non curat lex" ("The law does not bother with trifles"). A more controversial leak, however, is Levy's advocacy of tax aid for parochial schools.

Although he agrees that the "claim of 'double taxation' is a misnomer," he asserts that the Supreme Court "ought to relieve the burden of so called double taxation on those who pay to send their children to private school." He also says, "If proper restraints exist on the funds for parochial schools so that tax monies are not spent for religious purposes, and the aid rendered is comparable to the value of the secular education provided by the schools, fairness seems to be on the accomodationist side." To say the least, Levy's leaky wall is problematic. It is impossible that parochial school aid would not set free additional dollars for sectarian indoctrination, and the idea that, with "proper restraints," taxpayers' dollars could be secure from misuse is too good to be true.

In the course of discussing establishment-clause cases, Levy amuses his reader with some pot shots at the High Court. He says, for example, that "the Court has managed to unite those who stand at polar opposites on the results that the Court reaches: a strict separationist and zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices."

Levy obviously writes with passion, and his scholarship is as good as his views are controversial. Notwithstanding my disagreement with him over parochial school aid, I found his book both provoking and educational.

This is a relatively short book by the noted legal historian and constitutional scholar Leonard Levy. Somewhat polemical in nature, this book is concerned primarily with rebutting the 'original intention' approach to the establishment clause of the First Amendment. Written originally in response to Reagan era claims that the establishment clause permitted non-preferential aid to religion, this book maintains its relevance as this claims continue to be made by a variety of conservative politicians and legal theorists. The non-preferentialist approach states that the establishment clause authorizes federal aid to religion so long as it is not preferential and specifically avoids a single church. The opposite, separationist approach, advocates the so-called "wall" between church and state with the federal government prohibited from aiding religion. Levy systemically examines the nature of religous establishments at the time of the formulation of the constitution, the attitudes of the Framers towards separation, the rationale for seperation, and the basic logic of the Bill of Rights (a subject on which Levy is an established authority). The result is a devastating critique of non-preferentialism based on original intent. Levy shows well that religous establishments in several colonies/states were plural in nature, so establishment can't refer just to favoring one religion. In line with a great deal of other scholarship, he shows that the framers were definitely separationist in orientation. With other scholars, Levy stresses that separationism was advocated by a coaltion of relatively secular intellectuals like Madison and Jefferson and a group of devout churchmen like the Baptists Isaac Backus and John Leland, all of whom felt that separation was necessary to safeguard religion. Finally, he scornfully but correctly exposes the basic weakness of arguing that the establishment clause authorizes non-preferential aid by pointing out that the basic thrust of the Bill of Rights is to constrain Federal power, not to enumerate its powers. Levy's arguments are presented well and are convincing. While non-preferentialism may one day be a viable policy, its advocates will have to search elsewhere for a constitutional justification.

The last couple of chapters of the book are devoted to related topics. Levy has an effective chapter on the inconsistencies of Supreme Court rulings on the establishment clause. He characterizes well the confusion engendered by these often unclear rulings and makes a very good point that the contradictory rulings and often poorly argued decisions are contributing factors to social discord on this issue. Part of this chapter, however, is a bit confusing because Levy wanders into a general discussion of originalist interpretation. This prefigures one of his later books but is not strictly germane to the topic of this book.

Levy also has some interesting comments on his attitude towards separation. While the logic of his arguments leads to strict separationism, he reveals himself to be a modest accomodationist with considerable respect for religion and its important place in American life.

The confrontation between religious and secular values is one of the hottest issues that will confront the Supreme Court in the twenty-first century. Surprisingly, few Americans are schooled in the origins of the First Amendment and the thinking of James Madison, Thomas Jefferson, and other founding founders in including this clause as part of the Bill of Rights. A good portion of the volume discusses this extremely relevant topic. We learn that Madison was instrumental in the passage of the Establishment Clause. He saw it as a limitation on the power of Congress to coerce individuals to worship God in any manner inconsistent with their conscience, indeed to enact any law that involved religious topics.

The book continues its discussion of efforts to promote prayer and religious doctrine through government backing by examining leading 19th and 20th century Supreme Court cases. I learned that the celebrated liberal Justice William O. Douglas wrote opinions that weakened the wall of separation; he authored conservative decisions that called for the encouragement of religion by the state...(I expected the opposite). Every informed citizen probably should read this book to discover why the establishment clause is an essential pillar of American liberty.

A scholarly review of the 1st Amendment as applied in America throughout it's history since 1492. It describes the beliefs and laws in the various colonies as well as the States after 1776. Just might surprise you what the Founding Fathers actually meant by this Amendment.