Constitutional Contortions

      The United States Constitution is the one of the world’s oldest frameworks for national governance that is still extant, and has successfully guided American democracy through wars, depressions, turmoil, upheavals, and multiple elections in which power changed hands willingly, if not gracefully. It is astonishing to consider that the drafting of the Constitution took almost a year to compose, almost two years to win ratification, and yet has been subjected to consistent and usually contentious amendment in the 220 years plus since its original appearance. The Constitutional Convention weighed different and competing interests, resolving some issues forever and leaving others to future generations to refine. In some cases (the framework for the three branches of government) it remains mostly unchanged, whereas in others, the simple intent of the Framers has become almost unrecognizable and far afield from a clear and logical reading of the text.

      A case in point is the relationship between government and religion that is one subject of the First Amendment to the Constitution, approved by the States as part of the “Bill of Rights” in the early 1790’s. In pertinent part, it reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” Both the words and the intent seem unequivocally clear: Congress shall have no right to declare an official state religion, in obvious contradistinction to Britain where the Anglican Church is the official state church and the monarch the titular head of that church. The United States was to have no official state religion, a practice that has been scrupulously followed in the more than two centuries since.

      It never dawned on the Framers that prayer in public schools or the provision of tacit assistance to parochial schools could be “unconstitutional,” because neither involved the “establishment of religion” by Congress. Nor did the Framers ever intend that the federal government for constitutional reasons had to consistently demonstrate hostility or aversion to religion. Chaplains in Congress and the military, paid for by the federal government, and opening sessions with prayers, were the norms then and now.

    Hence the puzzle of the Supreme Court’s First Amendment jurisprudence that has stretched the “free exercise” clause beyond all reasonable definition and greatly encumbered the practice of religion in America. For example, the Supremes last week heard argument in the case of Arizona Christian School Tuition Organization v. Winn. The facts are simple: in 1997, the state of Arizona passed a law that allows residents to contribute $500 ($1000 for a married couple) to a non-profit school tuition organization that they would otherwise pay in taxes. The choice of organization is solely and exclusively that of the parents, and can go to private or parochial school; government is uninvolved in the decision, except to the extent that the tax credit afforded the parents is money that otherwise would have gone to the government. It seems constitutionally innocuous, and a sensible, if modest, way to reimburse families who prefer a religious-based, private education for their children for their otherwise unrecompensed contributions to the public school education of their neighbors’ children. Orthodox Jews, for example, have long been victims of this double-taxation – paying for both the public education of others and the private education of our own children (who, in fact, would greatly encumber the public school system if educated there). In effect, the public school system gets a free ride on the backs of private or parochial school parents, and traditionally the private school parents have little recourse but to fume, skimp, grin and bear these additional costs. The Arizona law was a small attempt to redress this imbalance, which offended Winn, clearly some local busybody and troublemaker.

     Yet, the super-liberal Ninth Circuit Court of Appeals, based in San Francisco, struck down this law as unconstitutional on the grounds that it violates the “establishment of religion” clause, leading to its current hearing before the Supreme Court. But how precisely does affording individual parents the right to divert some of their state tax dollars to their own children’s education amount to a violation of a mandate that “Congress shall make no law respecting an establishment of religion…” ? How is Congress involved, and how does this law establish a religion ? It allows people of all religions or no religion to effectively minimize the costs of their children’s private school education.

        To its continuing shame, the Anti-Defamation League (and the American Jewish Committee, among other useless and superfluous organizations) filed “Friend of the Court” briefs in support of the respondent Winn, arguing against the Arizona law. This approach is in keeping with the grand traditions of those Jewish organizations in protecting the Jews from the Christian “menace” by waging war against Torah education in America, a war that has been remarkably successful in greasing the skids of assimilation and intermarriage in this country. To its credit, Agudath Israel and the Orthodox Union filed briefs in support of the Petitioners, and in support of the Arizona law, which they asserted follows prior Supreme Court precedent (Zelman v. Simmons-Harris, 2002). In a 5-4 vote, the Court there upheld a Cleveland school voucher program where the choice of schools was, again, parent-driven and not determined by the government. But why would even four Supremes vote then that the voucher program is unconstitutional ?

    The first breach in diluting the simple meaning of the Constitution came in a letter written by President Thomas Jefferson in 1802 to the Danbury Baptists Association which feared state government encroachment on their religious practices. Jefferson argued there that the First Amendment built “a wall of separation between Church and State.” The phrase, of course, never appears in the Constitution, and it is clear that Jefferson meant that the State has no right to interfere, obstruct, impede or otherwise hinder the practice of religion. But Jefferson certainly never intended that the “wall of separation” prohibited government from extending benefits to all religions or required government to penalize the practice of religion. Yet, that is how anti-religion groups like “Americans United for Separation of Church and State,” joined by their fellow travelers in the ADL, et al, insist that the Constitution must be interpreted, and that is how the Supreme Court began interpreting it in the 1950s.

     In the 19th century, the provisions of the First Amendment and much of the Bill of Rights was made applicable to the states, and when the secular-progressive agenda began to dominate American culture and the media elite in the late 1950s and early 1960s, the Supremes took due notice – questioning (though eventually permitting) the funding of the transportation of parochial school students; banning prayer in public schools – even being troubled by a moment of silence; declaring that the state cannot defray the salaries of secular teachers in parochial schools (bizarre, because the government would have had to pay to build schools, hire teachers, etc., to accommodate these students if there weren’t any parochial schools); permitting the provision of textbooks and milk (sometimes the Supreme Court’s logic is exceedingly arcane, if indecipherable – and sometimes, it just depends on who is sitting on the Court at any particular time); prohibiting religious prayers at graduations, and dancing through hoops wrestling with religious displays on public grounds during holiday seasons, alternatively permitting and prohibiting them depending on obscure factors and dubious reasoning. (The Menora is not a religious symbol? Huh?) Personally, I have always found Jewish objections to Christian religious displays around holiday season to be a function of small-mindedness coupled with intolerance; America is, after all, almost 85% Christian.

       To further complicate matters, then-Senator Lyndon Johnson pushed through an amendment to a bill in 1954 that prohibited non-profits and religious organizations from endorsing or opposing political candidates, a gross violation of another clause in the First Amendment that prohibits Congress from making any law “abridging the freedom of speech.” Johnson justified this restriction on grounds of the “wall of separation,” again completely distorting Jefferson’s meaning of the phrase. (Johnson had been under terrific pressure from some Christian groups, so he just silenced them.)

       But, most recently, the issue of school vouchers and tax credits for private and parochial school families has heralded the Court’s reversion to a more text-based and reasonable interpretation of the “establishment” and “free exercise” clauses. It is therefore astonishing that the secular Jewish groups are trapped in a reading of the Constitution that was popular with the Court from the 1950s-1980s, and is more guided by liberal dogma than original intent or, especially, recognitions of the general value of religion in public school and the specific Jewish interest in easing the financial burdens on doubly-taxed Jewish families. Shame on them. They seem to be petrified of the role of Christianity in American life and the threat allegedly posed therefore to the survival of Judaism. Evidently, they fear that Crusaders are lurking around every street corner (hence their perception that Christian evangelicals pose a great danger to Jewish life than radical Muslims), and do not recognize that the greatest hazard is not missionizing Christians but Jews who are ignorant of our heritage. In so many ways, and especially in this instance, these organizations are ossified, incarcerated in the past, and irrelevant to modern Jewish life.

      The Supremes are always hard to read, and their decisions these days on controversial cases usually rest on one vote – that of swing Justice Anthony Kennedy. And these matters always trigger discussions of the correct mode of Constitutional interpretation – between those who favor “original intent” (ascertaining what the Framers meant, because otherwise the Constitution becomes ultimately meaningless and can be twisted by every generation or Justice) and those who see the Constitution as a “living document” that can be updated by every generation. According to the latter, capital punishment can be “unconstitutional” even though the Framers of the Constitution referred to it and accepted it, and new provisions – like the “right to privacy” – can be located within the penumbra of the document, or hovering in the thin air just above it. (It is fascinating that the Torah is loosely subject to the same dispute as to interpretation – between traditional Torah Jews who are bound to the original intent and try to ascertain the Torah’s meaning based on precedent and application, and the non-Orthodox Jews who shape the Torah as a ball of wax according to their current assessment of prevailing moral notions and the public good.)

     In any event, we should hope that the Supreme Court reverses the Ninth Circuit (as they often do), upholds the Arizona law, and strengthens and protects the practice of religion in America so the United States returns to the traditional religious moorings that are the foundation of this Republic.

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4 responses to “Constitutional Contortions

  1. While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment’s terms and legislative history, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion–stopping just short of formally establishing a church.

    It is true that it never dawned on the framers that prayer in public schools was unconstitutional–but hardly for the reason you suppose. At the time the First Amendment was adopted, there were no federal public schools, so there was no occasion for the question even to arise. It was not until adoption of the 14th Amendment after the Civil War and development of public schools–long after the framers’ generation had died–that the question could arise.

    The principle of separation of church and state does not call for government to “consistently demonstrate hostility of aversion to religion” as you assert. Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

    As for chaplains in Congress and the military, the impropriety of this practice did dawn on the framers. James Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    He also addressed the question of what to make of the government’s actions appointing such chaplains and issuing such proclamations. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people would be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In its jurisprudence, the Supreme Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some nominally religious governmental statements or actions as ceremonial deism or some such.

    • Thank you for your thoughts. Obviously, we disagree in significant areas, but I will note one misstatement: technically, there are still no “federal public schools” except in DC. The public schools then extant, and until 1962, always began the day with a prayer. When the Fourteenth Amendment made the provisions of the First Amendment applicable to the states, there was still no inkling that somehow that prayer could be unconstitutional. That conclusion had to await a sea change in the culture, but it has little to do with constitutional imperative.

      And how do you suggest that the Court’s nitpicking on religious displays, moments of silence, etc., involves it in anything but “trifles,” to use Madison’s phrase. Surely America can withstand those threats, as it did for the first 170 years of the Republic. I maintain that the Court’s steady distortion of the original intent of the religious freedoms clauses remains unrefuted. Thank you again.

      • I referred to federal public schools because, until the 14th Amendment, such schools would have been the only ones conceivably subject to the First Amendment. While it was not until 1947 that the Supreme Court got around to deciding that that the 14th Amendment extends the constraints of the First Amendment religion clauses to the states, such time frames are par for the course in constitutional law. Note that the Court only last year decided that the 14th Amendment extends the Second Amendment’s constraints to the states.

        What you discount as nitpicking is the courts’ effort, and a necessary one at that, to distinguish “individual” from “government” speech on religion. The First Amendment protects the right of individuals to exercise their religions–publicly and privately–and constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical. The Wake Forest paper does a nice job of elaborating on this.

  2. I am fairly certain that no one on the Supreme Court favors “ascertaining what the framers meant” when interpreting the Constitution, or at least that none of the justices with a stated theory of jurisprudence believes in doing that. Scalia, who is the most associated with originalism, is certainly fiercely opposed to doing so. His belief is in maintaining the original meaning, even where that completely ignores the intent of the framers. (He’s said ” I don’t care if the framers of the Constitution had some secret meaning in mind when they adopted its words”) Fidelity to the words of the Constitution without any concern for interpretive meaning would make him (and at least Thomas) a Karaite, if anything.