The perpetual practice in all sects to teach no other morals to their youth than those of their own creed, introduces dangerous effects, foments divisions amongst mankind, [and] subjects liberal and solid sentiments to religious prejudices ... [I]f the Legislature wish to establish a perfect plan of moral instruction, they should propose a code that will no longer keep alive those religious prejudices among the different sects.
--Anonymous (William Smith), 1797 (1)
In short, nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now.
--Justice Clarence Thomas (2)
INTRODUCTION I. ENDURING SIGNIFICANCE OF ORIGINAL MEANING IN EDUCATION JURISPRUDENCE II. EDUCATION AND RELIGION IN THE LATE EIGHTEENTH CENTURY UNITED STATES III. JEFFERSON AND MADISON: THE PERILS OF ESTABLISHMENT A. The Place of Religion in Jefferson's Plans for Public Education B. James Madison's Views on Public Education and Religion IV. OTHER COMPREHENSIVE PUBLIC SCHOOL PLANS--HOW HIGH THE WALL? A. Benjamin Rush B. Noah Webster C. Robert Coram D. Pierre DuPont de Nemours V. THE AMERICAN PHILOSOPHICAL SOCIETY EDUCATION ESSAY CONTEST VI. ESTABLISHMENT AND EDUCATION LAWS OF THE EARLY REPUBLIC A. Northwest Ordinances B. State Constitutions C. Statutory Law VII. TOWARD AN ORIGINAL MEANING OF RELIGIOUS ESTABLISHMENT IN PUBLIC EDUCATION CONCLUSION INTRODUCTION
Does giving public school vouchers to religious organizations violate the First Amendment's Establishment Clause? To a surprising degree, this urgent policy question of the twenty-first century has been informed by historical interpretations of the intellectual landscape of the late eighteenth century. Indeed, on the broad question of providing any public support for religious schools, the Supreme Court has consistently invoked "original meanings" reasoning since the very first Establishment Clause case, Everson v. Board of Education. (3) Since the 1980s, however, a new politicization of historical interpretation in jurisprudence has fused with efforts to privatize all sectors of American government. Strident critics of public schooling have turned to history to make the case that school voucher programs that include religious schools are constitutionally permissible. Some have gone further and use history to make the radical argument that American public schools as they currently exist are actually unconstitutional because they exclude religious organizations or are hostile to them. (4) In Zelman v. Simmons-Harris, a majority of the Supreme Court agreed with the former proposition--that a Cleveland voucher program that included religious schools did not violate the First Amendment establishment prohibitions. (5) Elsewhere Justice Thomas has suggested sympathy with the latter position-arguing that state constitutional bans on public funding for religious schools should be "buried now." (6)
The following account challenges the idea that a doctrine of original meaning supports public voucher programs for religious schools. Weighing the narrow historical claims of formalist interpretations on their own terms, and looking beyond them to a more historically comprehensive view of past meanings and intentions, the originalist case is against vouchers. That the Constitution requires vouchers is false. That the Constitution permits them depends on how narrowly one inquires into the original meaning of the First Amendment as it related to theories of public education in the early republic. Certainly state-level constitutional prohibitions against public vouchers for religious schools are well aligned with the original meanings of the federal Constitution.
Making this case requires venturing into territory rarely visited by legal scholars and jurists in the voucher wars: educational plans, educational "research," and educational law of the 1780s and 1790s. While this lacuna may be explained by the fact that there were no modern public schools at the time of the ratification of the First Amendment, there were most certainly plans for them, alongside state and federal policies with clear trajectories regarding the relationship between religious bodies and universal civic education, some these works written by the founding fathers themselves. In these documents we see that public education for political purposes was viewed as a vital component of a republican form of government, while the public schools were viewed not as merely neutral public spaces subject to "true private choice" (the Supreme Court's guiding principle in Zelman), but as special sites of civic reproduction in which religious organizations had tenuous claims, at best.
Without wading too deeply into the morass of what constitutes the best form of originalist jurisprudence--which is to say, a jurisprudence that is informed in some way by the original historical meaning of constitutional laws--this Article engages in a catholic originalist inquiry to enrich the conversation about the original meaning of the First Amendment and its relationship to public education. Part I begins by briefly reviewing the role of originalist interpretation in public school establishment jurisprudence. Part II provides a brief overview of the historical context of American formal education in late eighteenth century. The next four Parts consider different categories of evidence from the first two decades of the early republican period (roughly 1780-1800), when the Constitution and Bill of Rights were drafted and ratified, and the country's intellectual and political leaders imagined state systems of mass, public education that were suited to the genius of the American form of government. Part III examines Thomas Jefferson and James Madison's views on religious establishment in mass, public education through their legislative proposals in Virginia and their public and private writings. Part IV seeks to understand the broader intellectual context in which Jefferson and Madison wrote (asking how mainstream their ideas were) by examining the most comprehensive public school plans written before or concurrently to the ratification of the First Amendment. So-called "living originalists" who consider context and meaning to understand the principles of the First Amendment and their application will find these sources congenial. Part V examines a singular event in the 1790s: an essay contest sponsored by the American Philosophical Society (APS) asking contestants to design a system of public education suited to the "genius" of the new national government. (9) This little-known set of remarkable sources has been absent in First Amendment debates on public education, and it useful to formalists as a "public act" as well as to living originalists who are more interested in contextual meanings. Part VI examines education-related laws developed during the early republic, including the Northwest Ordinances of 1785 and 1787, state constitutions, and state statutory law. Formalist originalists will find these types of sources more congenial to original meanings, though some scholars tend to weigh types of laws differently. (10)
Several themes emerge clearly and consistently across these categories of evidence. Part VII explores these in detail and sketches out their implications for contemporary debates about the meaning of ninteenth-century school history. From a practical standpoint, national systems of education did not contemplate voucher systems or church-based systems financed publicly because such plans were not feasible outside of large cities, of which there were few. Second, establishment concerns stemming from a sense of individual freedom from coercion, as well as substantive concerns about the divisive nature of sect-specific religion and its anti-republican political tendencies, gave pause to many writers about the desirability of ecclesiastical involvement in mass education. Finally, while state constitutions and statutory law did not establish anything resembling modern public schools, the decades surrounding the ratification of the First Amendment saw substantial movement in several states toward disestablishing religion within provisions for mass education.
This Article then concludes by briefly exploring the implications of a more historically robust originalist doctrine for contemporary debates about school choice. The purpose of this section is not to draw upon current research for or against school choice based on their academic effectiveness, but to stick to a purely originalist perspective. Such a focus leads me to three observations. First, permitting (let alone requiring) the indiscriminate funding of religious groups to provide mass, public education runs against the original meaning of the First Amendment, threatening the very basis of a republican form of government as the founders understood it. Second, the best way forward for proponents of school choice, ceteris paribus, would be to repudiate their flawed originalist interpretations and embrace the revolutionary aspects of their consumerist doctrine: that "true private choice" makes good sense today, even if it did not in the late eighteenth or nineteenth centuries. (11) Likewise, those opposed to privatizing mass education need look no further than the original intentions of the Founding Fathers of the Republic and the meaning of the laws they enacted to preserve a republican form of government.
Third, and perhaps most importantly, exploring the educational ideas and laws of the early republican period has a clear policy upshot beyond the parochial debates of legal historians. After all, at the federal level, voucher programs are now permissible. Where they pass state constitutional muster, the question is whether we want them. The national conversation on school reform today focuses on two unsatisfactory ways of...