The qualities of completeness: more? Or less?

• Date: 01 May 1999
• Author: Killenbeck, Mark R.

THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, & ORIGINS. Edited by Ned H. Cogan. New York: Oxford University Press. 1997. Pp. 1x, 708. $95.

On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791,"(1) Judge Hand held that the people of Alabama were perfectly free to "establish[] a religion," in this instance by allowing public school teachers to begin the school day with prayer.(2) The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as "state involvement respecting an establishment of religion" that was barred by "binding precedent which this Court is under a duty to follow[.]"(3) On further reflection, however, Judge Hand concluded that the decisions commanding that result had, "in fact, amended the Constitution to the consternation of the republic.(4) That, Judge Hand believed, led ineluctably to a sense of "justice [that] is myopic, obtuse, and janus-like,"(5) a juris-prudential world he no longer wished to inhabit.

Predictably, those enamored of the idea of formal prayer in public school classrooms praised the decision as "historic," a ruling that "breathes new life into the Constitution of these United States."(6) Those inclined to take seriously the Court's rulings, in turn, characterized it as "an act of anarchy,"(7) a direct assault on settled precedent declaring that "It]he `establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church."(8) Indeed, Judge Hand himself admitted that his was "a voice crying in the wilderness[an] attempt to right that which the Court is persuaded is a misreading of history," and predicted that his decision would likely "come to nothing more than blowing in the hurricane[.]"(9) On that score at least, he was certainly correct. The winds of reversal arose quickly and swept away his constitutional heresies. On February 11, Justice Powell, sitting as Circuit Justice, entered an order staying the judgment, observing that there was "little doubt ... that conducting prayers as part of a school program is unconstitutional under this Court's decisions."(10) Three months later, a panel of the Court of Appeals for the Eleventh Circuit reversed that portion of Judge Hand's ruling allowing for state establishment, stressing that "[t]he Supreme Court ... has carefully considered [Judge Hand's] arguments and rejected them."(11) And in June 1985, in a ruling focusing on the related question of whether the state could call for a moment of silence, the Court itself administered the coup de grace, stressing that "it [is] unnecessary to comment at length on the District Court's remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion," and reminding one and all "how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States."(12)

Judge Hand's opinion is, I suspect, not much read today. Indeed, the Supreme Court's repudiation of his views is itself largely absent from the major texts used to instruct the next generation of lawyers, generally appearing, if at all, as a short extract used to illustrate the nature and scope of what are now perceived to be more important decisions.(13) And while the Court's Establishment Clause jurisprudence is itself in disarray, there is little doubt that formal prayers, organized by a state official and recited as a part of a mandatory public school exercise, are unconstitutional as matters stand today.(14) Little doubt, that is, unless one is inclined to take liberties with the Court's holdings by going to elaborate lengths to ground the decision in notions that the particular prayers it seeks to sustain are "permi[ssive]," "passive," and "the result of student, not government choice."(15) Or unless one takes seriously the originalist enterprise and realizes, as did Judge Hand, that many of the practices he was asked to condemn in Jaffree were routinely embraced by virtually every member of the founding generation who had occasion to pass judgment on them.(16)

The issue, for purposes of this review, is not whether the Bill of Rights should somehow have been understood in 1791 to limit the power of the states to engage in or support a variety of religious practices.(17) As Chief Justice Marshall would subsequently affirm, the clear understanding was that "[t]hese amendments demanded security against the apprehended encroachments of the general government -- not against those of the local governments."(18) Rather, the question is how we are to understand the prohibition on the establishment of religion. For Judge Hand, "[a]nything short of the outright establishment of a national religion," even if undertaken by Congress, would not violate the First Amendment.(19) Congress, after all, concluded its first session with a joint resolution calling on the President to "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a constitution of government for their safety and happiness."(20) Why, then, were the people of Alabama forbidden to enact a measure calling for an announcement, at the beginning of the school day, of "a period of silence, not to exceed one minute in duration ... for meditation or voluntary prayer"?(21)

Dean Neil Cogan's The Complete Bill of Rights(22) is, by any reasonable standard of measurement, a magnificent accomplishment. Cited by the Court while still in galleys,(23) The Complete Bill of Rights is likely to become the standard source book for those seeking to ground their examination of the issues posed by the first ten amendments in the original source materials describing their drafting, discussion, and ratification. Cogan's work is, by design, intended to be more comprehensive and more definitive than previously available compilations.(24) There is, he informs us, "no satisfactory set of texts," no set that is "complete, accurate, and accessible" (p. lvii). And by most reasonable standards, he succeeds admirably. An individual interested, for example, in examining the antecedents of a given amendment in the many state and colonial constitutions, charters, and laws finds each provision set forth sequentially, by amendment, rather than, as is the case in other works, scattered throughout several volumes and then provided only as a sometimes difficult-to-find part of a more extensive document.(25) This does not mean that the execution is perfect or that one is likely to find everything one might seek or believe to be important. As Cogan himself acknowledges, "there have been choices and difficulties," and the work itself is, accordingly, only "reasonably complete" (p. lviii).

That is not, however, the only problem. For example, were the only possible quarrel one about the decision to limit discussions taken from treatises to those found in Blackstone's Commentaries there would be little to argue about.(26) In these, as in so many other matters editorial, decisions reflect tastes and perspectives. There is, then, little to be gained by disputing individual choices, although, as I will make clear in Part I of this review, I have my reservations about some of the decisions Dean Cogan has made. My major concerns, however, deal with much more fundamental matters. For as Cogan himself makes entirely dear, The Complete Bill of Rights is arguably the complete record only if one believes, as Dean Cogan apparently does, that what is needed are those "materials ... that are of significant use and value to originalists and the many nonoriginalists who include originalist texts in their interpretations and other work" (pp. 1vii-1viii). And even then, it is complete only if the version of originalism one accepts confines itself to the meanings and inferences that may be gleaned from the words of a rather limited number of individuals and entities, speaking over a very limited period of time.

There is nothing necessarily wrong with either of these propositions, although, as I will explain in Parts II and III of this review, I have substantial reservations about the originalist enterprise as it is commonly practiced and will illustrate those concerns by examining two issues of particular interest. The first, the nature of the relationship between the federal and state governments, is a matter of some concern given the language and import of the Tenth Amendment. The second, in turn, while not "perhaps our oldest question of constitutional law"(27) -- a description aptly applied to the sovereignty concerns I address in Part II -- is nevertheless a matter of extraordinary contemporary interest: the extent to which the Establishment Clause commands that there must be "a wall of separation between Church and State."(28)

In particular, I am concerned about any originalist inquiry that believes it appropriate to assume that a compilation that places an outer limit of September 2, 1790, on the materials it collects is, in any meaningful sense, "complete."(29) And I suspect that the individuals who drafted, debated, and ratified the proposals that became the Bill of Rights would agree. This does not mean that an argument cannot be made that Madison, for example, embraced what might be characterized as a form of originalism, although as Jack Rakove has demonstrated far more ably than I might, it is essential that we...