The Religion Clauses of the First Amendment by West Ellis M.;

Author:West, Ellis M.;
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books
Published: 2012-08-15T00:00:00+00:00

VI. The Final Wording of the Establishment Clause

The fourth, and final, change in wording—and one that might have been intended to give the amendment federalist content—was the one made by the conference committee, i.e., the change from no law “establishing religion” (proposed by House) or “establishing articles of faith or a mode of worship” (proposed by Senate) to no law “respecting an establishment of religion.”[99] Although this final wording on its face is broad enough to make it consistent with a federalist interpretation of the religion clauses,[100] by itself that is insufficient to warrant the conclusion that the establishment clause “does not express a value of ‘nonestablishment’”[101] or that its sole purpose was to prevent Congress from overturning state laws on religion.[102]

Instead, given its wording, the clause could have been intended to prohibit the federal government from passing laws that Americans would have associated with traditional establishments of religion. In other words, the word “respecting” may have been added to the proposed amendment in order to prohibit not just a law establishing a religion but any and all laws that were characteristic of such an establishment, including laws that discriminate in any way on the basis of religious belief, practice, or membership. According to one group of scholars, “. . . many [may have] feared that while Congress might not have the power to officially proclaim an established religion in one stroke of the legislative pen, the same undesired end might be reached by smaller steps by the quiet enactment of laws which in themselves would not amount to an establishment, but when added together might have the cumulative effect of totaling a de facto establishment.”[103] Moreover, the reason for such a prohibition would have been normative—because such laws violate persons’ natural rights or threaten the unity and stability of the nation.[104] In 1785 a perfect example of this fear came from the pen of John Carroll, a Catholic priest who later became the first Catholic bishop in the United States: “[Catholics] have all smarted heretofore under the lash of an established church and shall therefore to [sic—be?]on our guard against every approach to it.”[105]

So which of these two readings—to protect state laws on religion or to protect religious liberty from anything like a national religious establishment—is the correct interpretation of the establishment clause?

Unfortunately we simply do not know for sure. There is nothing in the record of the First Congress or elsewhere that explains why the House/Senate committee worded the establishment clause the way it did. Specifically, there is no evidence showing that the clause was sought to protect state laws on religion, that persons who might have wanted to protect such laws were responsible for the final wording of the clause, or that anyone at the time of its drafting or ratification understood the establishment clause in this way.[106] Any explanation of the change, therefore, has to be based on circumstantial evidence.[107] This does not mean, however, that the circumstantial evidence supporting the competing interpretations of the establishment clause is equally strong and compelling.

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