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PREFACE

Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof..

What precisely do these sixteen words from the First Amendment to the U.S. Constitution prevent Congress from doing? The Supreme Court has held since 1947 that the establishment clause requires both Congress and the states to maintain strict neutrality between religion and irreligion in any laws that might conceivably aid private religious organizations. Legal disputes since then have had to do with the differences between "aid" to religion (prohibited by the Court), neutrality (required), and hostility (supposedly prohibited). Free exercise legal doctrine, in contrast, has been anything but neutral. The Supreme Court has said since 1961 that people with religious objections to valid secular statutes may, under certain circumstances, have a right to be exempted from the statute's requirements.

As the Court has espoused its doctrines, it has relied on an incredibly flawed reading of the intentions of the authors of the First Amendment. Unfortunately, most scholarly writings on the subject are little better. Some are good on isolated points, but rarely has one tried

'There is one noteworthy exception: Walter Berns, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976), pp. 1-32. Berns's conclusions and mine are similar, although the evidence we use is different. This monograph is based on a Ph.D. dissertation Berns supervised: M. Malbin, The Supreme Court and the Definition of Religion (Cornell University, 1973). I should like here to express my thanks to him for his help and advice. Thanks also to Ann Diamond for her helpful comments.

The late Herbert J. Storing also read an early version of this work and made what for him were his normal quota of penetrating, insightful observations. I took Professor Storing's course on the American Founding at the University of Chicago in 1964. It was my first course in graduate school, but I can honestly say that none after that influenced my understanding of U.S. politics as deeply. I was one student in a fairly large class, and I transferred schools before reaching the dissertation stage. Yet, Professor Storing always managed to find the time to read my manuscripts or answer my questions, as he did with scores of others across the country.

to explain the complexities of the establishment issue or the relationship between establishment and free exercise.2

This monograph attempts to correct that deficiency. It argues that the debates in the First Congress suggest that Congress did not mean the establishment clause to require strict neutrality between religion and irreligion. Aid to religion was to be permitted as long as it furthered a purpose the federal government legitimately could pursue and as long as it did not discriminate in favor of some sects or against others.

Federal aid to private schools would thus have been allowed under the original meaning of the establishment clause. Indeed, aid could even have been limited to religious schools, if Congress had a valid secular reason for doing so and if it could somehow manage to define “religion” in a way that did not exclude minor religions. However, these obstacles to limiting aid to religious schools would be substantial, perhaps insurmountable, in our modern, pluralistic nation, with its vast multiplicity of sects. The original purposes of the establishment clause applied today might well require government aid to include some or all secular schools, as well as the religious schools. Similarly, the original rule of law, applied today, would probably be inconsistent with such traditional practices as school prayers. Thus, a fully enforced requirement of nondiscrimination might not change many of the Supreme Court's specific holdings of recent decades. A return to the original conception, however, would surely alter the basic view of the relationship between religion and government in a way that would affect future legislation and future court cases.

A return to the original understanding of free exercise would work a similarly fundamental change in the way judges view court cases without compelling a reversal of many recent holdings. While there is less direct documentary evidence on free exercise than on establishment, the framers unquestionably denied that anyone had a right to claim an exemption from a valid, secularly based law because of a

The two works which best seem to recognize the complexities of the historical establishment clause are Mark DeWolfe Howe, The Garden and the Wilderness (Chicago: University of Chicago Press, 1965) and David Lowenthal, “The Place of Religion in American Public Life: A Critique of Absolute Separationism" (Unpublished, 1969). The best known attempt to treat the two clauses as a unit is Phillip Kurland, Religion and the Law (Chicago: Aldine Publishing Co., 1962), which does not claim to be an interpretation of the work of the First Congress. Neither do the articles that deal with both clauses, such as Marc Galanter, “Religious Freedoms in the United States-A Turning Point?" 1966 Wisc L Rev 217; Donald A. Gianella's two-part "Religious Liberty, Nonestablishment and Doctrinal Development," 80 Harvard L Rev 1381 (1967) and 81 Harvard L Rev 513 (1968); and Paul G. Kauper, "Schempp and Sherbert: Studies in Neutrality and Accommodation," 1963, Religion and the Public Order 3.

religious objection to it. Legislatures were encouraged to grant exemptions, but they were not required to do so. Precisely what was meant when the people were granted the right to exercise their religion freely needs detailed exploration. It is clear, however, that it did not mean what modern judges claim.

1

The Establishment Clause

A great deal has been written about the original meaning of the establishment of religion clause, much more than has been written about free exercise. But for all of this writing, nobody has tried to interpret the debates in the First Congress on a speech-by-speech basis.

One reason for this reluctance to look into the legislative history has to do with the sources available to the scholar. It always has been known that the Annals of Congress, by far the most complete records of the debate available, is taken from the shorthand notes of a reporter, Thomas Lloyd, who compiled them for private sale. Because there were no verbatim or official notes of those early congressional debates, most historians have been reluctant to lean too heavily on them for their interpretations.

Recent archival work has made it possible for the student of the religion clauses to use the Annals with much greater confidence than might have been felt in the past. The First Congress Project at George Washington University, sponsored by the National Archives, has been collecting a massive amount of material in preparation for what it expects to be the definitive multivolume documentary history of the First Congress. While the same cannot be said for all of the clauses in the Bill of Rights, nothing collected by the First Congress Project suggests any reason for dissatisfaction with the Annals on the religion clauses. Lloyd may not have recorded every word of every speech, but at no point do the other accounts of the debates add new information to the Annals or alter what was in them.

'The project director is Professor Linda Grant DePauw. The first of a projected seventeen volumes was: Documentary History of the First Federal Congress of the United States of America, Vol. 1: Senate Legislative Journal (Baltimore and London: Johns Hopkins University Press, 1972). I should like to thank the project's two assistant editors, Charlene B. Bickford and Lavonne M. Hoffman, for their assistance.

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