Donald Drakeman on the Establishment Clause

Lee J. Strang, Church, State, and Original Intent:

Drakeman’s work bolsters that of other scholars, such as Philip Hamburger in his Separation of Church and State, who have shown that many aspects of the Supreme Court’s strict-separationist interpretation were, as Justice Clarence Thomas described it in Mitchell v. Helms (2000), the product of anti-Catholic animosity. His exposition of the Everson court’s flawed history is both a cautionary tale for originalists and a lesson that today’s sophisticated originalism is a viable project.

First, originalism’s critics have frequently argued that originalism is a flawed interpretative methodology because it requires honest historical analysis of issues of great import and this is simply too much to ask of judges. There is a significant amount of truth to this criticism. Everson shows that judges can construct a plausible case for mistaken historical claims to achieve desired policy outcomes.

This brings us to the second lesson: Originalists, recognizing this criticism, have rearticulated originalism to overcome it. For example, today’s originalism focuses on the constitutional text’s publicly understood meaning when it was ratified, instead of the purported “intent” of the Clause’s framers. This makes it harder for justices to cherry-pick “framers” to reach their desired result. Justice Scalia’s majority opinion in District of Columbia v. Heller (2008), exemplifies this approach.

Another move made by originalists, one followed by Drakeman, is distinguishing between constitutional interpretation and constitutional construction. Interpretation is the activity of recovering the Constitution’s determinate original public meaning. Construction is the activity of creating constitutional meaning when the original meaning is indeterminate. This distinction permits originalists to acknowledge when history “runs out.” It makes originalists modest in their historical claims by relieving them of the task of finding all the answers in history.

Given the Supreme Court’s historical focus and, more importantly, the stakes for the contending sides in the church-state debate, it is not surprising that Everson “created a cottage industry populated by prolific originalists.” Drakeman groups them into nonpreferentialists, strict-separationists, and the “enhanced federal[ists].”

Nonpreferentialists claim that the Clause permits nondiscriminatory aid to religious groups and activities, while strict-separationists contend that it forbids governmental aid to religion. Enhanced federalists make the more limited claim that the Clause preserves state jurisdiction over religious matters and denies jurisdiction to the federal government.

Drakeman gives each camp a fair hearing and, in doing so, performs his own historical analysis. He concludes—noting that this conclusion does not fit his policy preferences—that the Clause’s “original meaning was to forbid the establishment of a single national religion.” (Call this the “no-national-church” interpretation.)

The most important historical fact, he writes, is that the Clause’s adoption engendered little controversy or debate. The strict-separationist interpretation, which would have, is therefore implausible. Only the no-national-church interpretation, which was widely accepted by Americans in 1791, can account for this lack of significant debate.

The enhanced federalism position fits the absence of controversy and is therefore a plausible reading of the Clause’s text, but Drakeman rejects it. It “is arguably consistent with the language but unsupported by the documentary record [while the] no-national-church reading [has] a great deal of evidence in the records of all of the relevant events.”

Other historical evidence, he argues, makes his no-national-church interpretation superior to the strict-separationist and enhanced federalism interpretations. For example, both state and later the federal governments aided religion, while the primary substantive concern behind the Clause was that a Protestant denomination would become the established national church.

How does the enhanced federalism interpretation differ from the no national church interpretation? It seems to me that the former can be understood as being a version of the latter. The difference would be that the former explicitly gives states the right to establish a church, while the latter does not explicitly deny this right to the states.