Kent Greenawalt's elusive Constitution.

• Author: Smith, Steven D.
• Position: Symposium: Establishment and Fairness

In his magisterial opus which culminates with Religion and the Constitution: Establishment and Fairness, (1) Kent Greenawalt makes claims--many of them--about what "the Constitution" forbids, permits, and demands. But what conception of "the Constitution," or of constitutional interpretation, informs these claims? It is easier, I think, to say what Greenawalt's conception is not than to say what it is.

Original meaning? It is clear, for example, that Greenawalt is not relying on an originalist conception. He tells us so: original meaning is something to consider, but it is not determinative. (2) His second chapter, which offers an extended discussion of the original meaning of the establishment clause, might mislead an inattentive reader. Greenawalt's purpose in this chapter is defensive: he attempts to say not so much what the original meaning was, but what it was not.

More specifically, he criticizes at length the interpretation (proposed in various versions by, among others, Justice Thomas, Akhil Amar, and myself (3)) which holds that the enactors did not mean to adopt any substantive principle of religious freedom. Instead, they basically intended to confirm what virtually everyone at the time agreed on--namely, that the matter of "establishment of religion" would remain within the jurisdiction of the states, not the national government. If accepted, this interpretation could be embarrassing to the more expansive constitutional jurisprudence favored by many today--including Greenawalt, who accordingly resists the jurisdictional interpretation.

Whether or not his conclusions are correct in this respect, (4) however, nothing in his project hinges on these questions. In his own analyses of establishment clause controversies, Greenawalt does not rely on original meaning for support; on the contrary, he concedes that much in modern establishment clause jurisprudence, and many of his own conclusions, are at odds with the understandings and expectations of the Framers. (5) Indeed, Greenawalt's bottom line on original meaning is almost startlingly negative in character:

The modern Supreme Court's treatment of the scope of the religion clauses cannot be justified on originalist grounds.... But the latitude with which the Supreme Court has departed from these original understandings is no greater than it has exhibited with other parts of the First Amendment and with other guarantees in the Bill of Rights. Whatever bases one may have to criticize the Supreme Court's religion clause jurisprudence, it is not distinctly unfaithful to original understandings (pp. 38-39). Text plus precedent? Greenawalt rejects originalism because he thinks courts need to be able to develop constitutional meanings "in light of changing social conditions and evolving moral and political premises" (p. 193). This emphasis on the need for judicially evolved meanings, together with Greenawalt's extensive and careful attention to the Supreme Court's modern case law, might suggest that he adopts the common lawyerly view that "the Constitution" consists of the text plus judicial precedent.

But this reading seems mistaken. In fact, though he is generally sympathetic to the Supreme Court's doctrine and decisions, Greenawalt is also highly critical of some precedents, (6) and indeed of whole lines of precedent. For example, he opposes the trend toward allowing greater financial aid to religious schools (pp. 400-24). So it seems that some judicially evolved meanings are consistent with "the Constitution" and some are not. Clearly "the Constitution" for Greenawalt somehow subsists independent of precedent.

Tradition? If the evolving constitutional meanings are not to be supplied by precedent...