Beyond the Conventional Establishment Clause Narrative

• Publication year: 2004
• Citation: Vol. 28 No. 02

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 2WINTER 2005

Beyond the Conventional Establishment Clause Narrative

Richard Albert(fn*)

I. Introduction

Long departed, the founding fathers nevertheless continue to exert an appreciable influence upon constitutional jurisprudence. They retain a distinctly audible voice in the national discourse, and they remain conclusive authorities in public deliberation. This is so, despite strident calls for an end to the submissive deference afforded them in contemporary America.(fn1)

The enduring practice to rely upon the founders is most prominent in the judiciary. Jurists have long looked to the founders for guidance in elaborating the freedoms and liberties enshrined in the Bill of Rights, particularly the Establishment Clause.(fn2) In expounding their Establishment Clause judgments, jurists have commonly invoked the views or actions of the founders as their decisional authority.

Scholars have taken note of this curious feature of American jurisprudence. "Because of the reverence most Americans have for the nation's founders," comments one writer, "the nation is generally committed, although sometimes excessively it would seem, to the founders' intentions. We hang on their words as if they were Scripture."(fn3) This seems to candidly capture the curious inclination to seek validation from the nation's colonial forefathers. As another scholar has observed in this regard, the tendency to refer to the constitutional framers as a short answer to legal questions likely finds its origin in the founders' time-honored and long-established image as a super-legislature of sorts. "Just as our representatives in Congress have the power to tell us how to act, so do, in a more indirect way, the Framers."(fn4) Another insightful thinker has articulated this point quite well with respect to religion: "The Framer's [sic] model of religion is the most contested because of its legitimating power, the difficulty of uncovering its historical nature and its use to bolster current legal formulas."(fn5)

Indeed, jurists unwaveringly turn to the founders to substantiate their Establishment Clause decisions.(fn6) The founding fathers, in effect, serve as an interpretative compass. But this should not necessarily be so-at least not exclusively. In giving meaning to the Establishment Clause, jurists should also turn to the framers and ratifiers of the Fourteenth Amendment,(fn7) which was drafted and ratified nearly a full century after the Establishment Clause and the other amendments that constitute the Bill of Rights. The Fourteenth Amendment transformed the original meaning of the civil protections preserved in the Bill of Rights. In light of the transformative effect of the Fourteenth Amendment, those responsible for its conception and confirmation must be consulted-of course in concert with Jefferson, Madison, and other founding leaders-in order to fully and properly gauge the meaning of the modern Establishment Clause.

A. Conventional Narrative

Akhil Reed Amar, hailed as "the leading liberal constitutional law professor of his generation,"(fn8) has illuminated a peculiar feature of American constitutional jurisprudence. In his sequel to The Bill of Rights As a Constitution(fn9) Amar explains that "in the very process of being absorbed into the Fourteenth Amendment, various rights and freedoms of the original Bill [were] subtly but importantly transformed in much the same way the Bill of Rights transformed language it had absorbed from still earlier sources."(fn10) In a fuller book treatment of the questions he explores in these two articles, Amar eloquently sheds light upon a glaring deficiency in the current discourse on the meaning of the civil rights and liberties shielded under the cover of the Bill of Rights:The conventional narrative focuses on those present at the Creation-on the hasty oversights and omissions in the last days of a hot summer in Philadelphia; on the centrality of the (absence of a) Bill of Rights in ratification debates; and on the quick repair worked by the First Congress, fixing in place the keystone of the arch of liberty. And we all lived happily ever after. There is some truth in this stock story so far as it goes, but it doesn't go far enough. Most dramatically, it ignores the ways in which the Reconstruction generation-not their Founding fathers or grandfathers-took a crumbling and somewhat obscure edifice, placed it on a new, high ground, and remade it so that it truly would stand as a temple of liberty and justice for all.(fn11)

The conventional narrative would therefore insist upon a narrow reliance on the founding fathers to understand the Bill of Rights. But, as Amar proves in compelling fashion, this conventional story fails to acknowledge the Fourteenth Amendment's transformation of the Bill of Rights from its federalist roots to its reconstructionist timbre of individual and minority rights.(fn12) Adherence to the conventional narrative results in a jurisprudential myopia that fails to fully appreciate American constitutional history. Instead of appealing exclusively to Madison, among other founding figures, as what Amar calls an "anachronistic trope" to give meaning to the Establishment Clause, those seeking to ascertain its meaning should also canvass the reconstructionist intentions of the principal draftsmen of the Fourteenth Amendment.(fn13)

In effectively juxtaposing "the emblematic drafters, poets, and orators of the Creation and the Reconstruction," Amar concludes that, if his thesis is right (and the scholarly community generally believes it is(fn14)), "then many of us are guilty of a kind of curiously selective ancestor worship-one that gives too much credit to James Madison and not enough to John Bingham, that celebrates Thomas Jefferson and Patrick Henry but slights Harriet Beecher Stowe and Frederick Douglass."(fn15)

B. Forsaken Authority

Amar is not alone in giving life to this thesis. Constitutional scholar Kurt Lash has drawn on this Amarian insight to develop a pointed critique of Establishment Clause jurisprudence. In an influential article, Lash suggests that jurists have long mistakenly sought to resolve Establishment Clause disputes by summoning the intentions of the founders as authority, instead of more properly summoning the views, actions, and words of those who drafted and ratified the Fourteenth Amendment.(fn16)

Lash's powerful thesis in this context is that the Fourteenth Amendment imbued the Establishment Clause with significance wholly different from its founding meaning.(fn17) Specifically, Lash declares the following common assumption to be wide of the mark: "The historical period surrounding the adoption of the original Establishment Clause is directly relevant to determining the intent behind the incorporated Establishment Clause."(fn18) This assumption is irrevocably flawed, contends Lash in his distinguishing wit, because it "places the Founding cart before the Incorporation horse."(fn19) He continues, giving careful shape to his metaphor: Incorporation doctrine assumes that, at some point, the people changed their collective mind about the role of federalism in the protection of individual liberties; what was once left to state discretion is now restricted by the Fourteenth Amendment. But if the people changed their mind about the role of federalism in the promotion of individual liberty, perhaps they also changed their mind about the role of the Establishment Clause.(fn20)

Lash leaves little doubt that nineteenth century Americans did indeed change their minds about the meaning of the Establishment Clause. And this, he suggests, presents an indisputable reason to question jurists' enduring reliance upon the Establishment Clause views of the founding fathers.(fn21)

To illustrate this misguided dependence upon the founders, Lash references the seminal Establishment Clause case in American constitutional history: "When the Supreme Court decided Everson v. Board of Education, it did so with citations to James Madison and Thomas Jefferson, not the members of the thirty-ninth Congress."(fn22) But the Court should have looked to the thirty-ninth Congress, the body responsible for enshrining the revolutionary Fourteenth Amendment. As Lash writes, time did not stop at the founding.(fn23) The Fourteenth Amendment has bestowed upon the Establishment Clause (or imposed upon the Clause, depending upon one's perspective(fn24)) a connotation much different from its original founding understanding.(fn25) To Lash, the result is clear: The meaning of the transformed Establishment Clause is not to be found in the writings of James Madison or Thomas Jefferson.(fn26) Instead, as Lash tells us in persuasive fashion, authority for interpreting the Establishment Clause more accurately lies in the contemporary understanding of those responsible for drafting and ratifying the Fourteenth Amendment, which forever changed the face of the Establishment Clause.(fn27)

We may readily perceive two distinguishable elements to Lash's thesis: (1) Establishment Clause jurisprudence has misguidedly relied only upon the founding fathers as interpretational authority; and (2) Establishment Clause jurisprudence should not forsake those individuals responsible for crafting the Fourteenth Amendment, which has everlastingly amended the original Establishment Clause.

C. Accepting the...