Of Walls, Gardens, Wilderness, and Original Intent: Religion and the First Amendment

Of Walls, Gardens, Wilderness, and Original Intent: Religion and the First Amendment

Description

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” This constitutional law of church and state is at an impasse. For four decades, the Supreme Court has struggled to articulate a coherent interpretation of the religion clauses of the First Amendment. Yet today the enterprise has stalled, with the justices sharply divided over the meaning of the clauses—and with some justices apparently even willing to discard previous doctrine in favor of new approaches. At the same time, significant groups who never were happy with the Court’s church-state decisions have mobilized a vigorous assault—often with the assistance of the Reagan administration—on the intellectual roots of those decisions and the doctrines they produced. The present impasse has many causes, but one undoubtedly is the selective and self-contradictory use of historical evidence by advocates on both sides. In no area of American Constitutional law have judges and scholar more consistently resorted to historical materials as the foundation of their analytical structures than in the church-state area. Yet, to date, they generally have used these materials in a way that has obscured the meaning of the First Amendment’s provisions on religion. In this essay, I describe the traditional focus of judicial and scholarly commentary on the meaning of the religion clauses. After identifying the two major competing interpretive positions and the standoff now existing between them, I demonstrate how each major interpretive camp is, in its own way, guilty of doing what others have called “lawyers’ legal history”—a phrase describing the advocate’s tendency to view historical evidence solely by reference to how it affects his or her position, a tendency that encourages the use of nonhistorical or even antihistorical criteria to select and analyze historical data. My principal aim, however, is to expose a fundamental flaw in the major premise of both major interpretive camps: limiting the historical inquiry to what I call the “Period of Formulation” (the fifteen years between the adoption of the Virginia Declaration of Rights in 1776 and the ratification of the federal Bill of Rights in 1791). By so limiting their inquiry, both camps are guilty of doing what I call “freeze-frame history” – the tendency, in examining the history of a constitutional provision (here, the religion clauses), to neglect the developing understanding of the provision throughout the constitutional era, during what I call the “Period of Elaboration.” My thesis is that any valid interpretation of the religion clauses must address not only the history that preceded and surrounded their adoption but also the history that followed it, that unfolded as the life of the nation and its law was shaped or (just as important) left untouched by the constitutional provisions. Thus, as we enlist history in the enterprise of constitutional interpretation, we must both cultivate a sense of the complexity and ambiguity of the historical record in the Period of Formulation and honor the essential character of history as a chronicle of change and development during the Period of Elaboration.

Source Publication

America in Theory

Source Editors/Authors

Leslie Berlowitz, Denis Donoghue, Louis Menand

Publication Date

1988

Of Walls, Gardens, Wilderness, and Original Intent: Religion and the First Amendment

Find @ NYU

Share

COinS