The Establishment Clause by Leonard W. Levy

Author:Leonard W. Levy
Language: eng
Format: epub
Publisher: The University of North Carolina Press
Published: 1994-01-15T00:00:00+00:00

The facts show that the treasured principle of nonpreference, which nonpreferentialists converted wrongly into an allowance of government aid on an impartial basis, is, in effect, irrelevant. States with no history of establishments (Rhode Island, Pennsylvania, Delaware, and New Jersey) endorsed the no-preference principle yet kept religion privately supported, while Massachusetts, New Hampshire, and Vermont endorsed the same principle yet maintained tax-supported compulsory public worship. Or take Rhode Island and Connecticut, the two states that had no written constitutions. After 1784 the laws of neither provided preference, yet one always had an establishment and one never did.

Two hundred years ago, when the United States was substantially a nation of Protestants and the links between government and religion were close in many ways, people did not quibble as we do about whether the integrity of the principle of separation depended on the use of the definite or the indefinite article or whether the law provided for absolutist language or language that by logical deduction allowed for important exceptions. The significant case of Isaac Backus, the great Baptist leader of Massachusetts, illustrates that fact. It has been said of him that “no individual in America since Roger Williams stands out so preeminently as the champion of religious liberty.”67 Backus, a veteran of the struggle against the establishment provision of the Massachusetts constitution of 1780, was a member of the Massachusetts ratifying convention in 1788 and supported ratification of the Constitution secure in the knowledge that the United States had no power to legislate on the subject of religion. In his History of New England, with Particular Reference to the Denomination of Christians Called Baptists (3 vols., 1777–96) and in the later one-volume abridgment (1804), he misquoted the First Amendment entirely as stating the following: “Congress shall make no law, establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.”68 The point is that he regarded such language, which the Senate had adopted at one point, as sufficient to condemn the establishments of religion in Massachusetts and Connecticut.69 Nonpreferentialists would construe that language as the narrowest proposed during the entire legislative history of the First Amendment, logically allowing impartial government aid to religion of the sort that Backus opposed. Backus was misinformed but not naive; he was a veteran of the separationists’ campaign to make the support of religion purely voluntary. As Thomas Curry noted, in his analysis of the original meaning of the establishment clause, “Eighteenth-century American history offers abundant examples of writers using the concept of preference, when, in fact, they were referring to a ban on all government assistance to religion.”70

Curry also observed that the Senate debate in its historical context “represented no sharply divided opinions about the nature of the amendment on religion. Senators who believed that religion should be supported voluntarily could subscribe to the formula banning an establishment of ‘One Religious Sect or Society in preference to others’ as readily as their colleagues, especially from New England, who believed that the states should make provisions for the support of religion.

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