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Lloyd's notes tell us that the members of the First Congress did not intend the establishment clause to mean anything remotely resembling what the Supreme Court has been saying it means, at least since 1947. Some of the justices in recent years appear to have recognized that the Court's rulings have not been based on a proper reading of 1789 history.? But the justices have not replaced the earlier misreadings of history with an alternative interpretation. Instead, they have been acting almost as if their recognition of their predecessors' historical errors have liberated them from the need to consider what purposes the members of the First Congress may have meant the religion clauses to serve.

The turning point in the recent history of the establishment clause was the 1947 parochial school busing case of Everson v. Board of Education." In the opinion written for the Court by Hugo Black, the Court announced a rule of law, endorsed by dissenters as well as by the five-justice majority:

The "establishment of religion" clause of the First Amend-
ment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion

over another.“ There were two key elements in this rule. (1) The Court said that Congress cannot give nondiscriminatory aid to religion. There never was any question that the clause prohibited Congress from preferring one religion or group of religions over another, but this was the first time the Supreme Court took the additional step of prohibiting nonpreferential aid to religion as such. (2) The other key element in the Everson rule was its effect on the states. For the first time, the Court said that whatever Congress could not do, the states could not do either.

The Everson Court claimed that it based its reading of the establishment clause on the intentions of the people in the First Congress. Later, the Court led by Chief Justice Earl Warren reiterated this historical assertion in opinions endorsing the Everson rule. While a number

2See, for example, Walz v. Tax Commission of the City of New York, 397 U.S. 664,668,90 S. Ct. 1409, 25 L.ed.2d 697 (1970), where Chief Justice Burger refers favorably to C. J. Antieau, A. T. Downey, and E. G. Roberts, Freedom from Federal Establishment: Formation and History of the First Amendment Religion Clauses (Milwaukee: Bruce, 1964), p. 6, note 9, without adopting their affirmative thesis. 3330 U.S. 1, 67 S. Ct. 504, 91 L.ed. 711 (1947). 4330 U.S. 1, 15. 5330 U.S. 1, 13. •McGowan v. Maryland, 366 U.S. 420, 440-41, 81 S. Ct. 1101, 6 L.ed.2d 393 (1961); Engel v. Vitale, 370 U.S. 421, 425, 82 S. Ct. 1261,8 L.ed.2d 601 (1962); Abington School District v. Schempp, 374 U.S. 203, 213-14, 83 S. Ct. 1560, 10 L.ed.2d 844 (1963).

of legal scholars have supported Everson's reading of history,' the reading has not gone unchallenged. An impressive number of scholars has written in opposition to either the no-aid rule or the extension of the establishment clause to the states, but none has tried to interpret Lloyd's notes on a speech-by-speech basis. When we look at these notes carefully, we find that not one, but both, halves of the Everson rule fly in the face of the intended meaning of the establishment clause.

Amendments Proposed

The Constitution, as ratified, mentioned religion only once—in the Article VI clause prohibiting religious tests for national office. The delegates at the Philadelphia Convention thought that, since they were creating a government of limited powers, with no authority to act in matters relating to religion, no further protection was necessary. An extended, commercial republic, made up of people of all faiths, would never let the government impose a religious orthodoxy, as long as all kinds of people could be represented in the legislature.

This argument was not enough to satisfy many of those attending state ratifying conventions. Many of them were concerned that the federal government, using its constitutionally delegated powers, might pass laws indirectly affecting religion or other subjects previously reserved for the states. As a result, many of these ratifying conventions urged the national government to amend the Constitution as soon after ratification as possible. A few states specifically urged the inclusion of a bill of rights. Virginia and North Carolina proposed identical provisions dealing with religion:

"Robert G. Dixon, "Religion, Schools and the Open Society," 13 Journal of Public Law 267, 278 (1964); Leonard Levy, Judgments: Essays on American Constitutional History (New York: Quadrangle, 1972) and "School Prayers and the Founding Fathers," Commentary, vol. 34 (September 1962), p. 225; Leo Pfeffer, “The Case for Separation," in J. Cogley, ed., Religion in America: Original Essays on Religion in a Free Society (New York: Meridian, 1968), pp. 57-73. *Antieau, Downey, and Roberts, Freedom from Federal Establishment; Edward S. Corwin, "The Supreme Court as a National School Board," 14 Law and Contemporary Problems 3 (1949); Lowenthal, “The Place of Religion in American Public Life: A Critique of Absolute Separatism” (Unpublished, 1969); Edward R. Norman, The Conscience of State in North America (London: Cambridge University Press, 1964); James M. O'Neill, Religion and Education Under the Constitution (New York: Harper, 1949); Charles E. Rice, The Supreme Court and Public Prayer (New York: Fordham, 1964). 'Mark DeWolfe Howe, The Garden and the Wilderness (Chicago: University of Chicago Press, 1965), pp. 22-23; Wilbur Katz, Religion and the American Constitutions (Evanston, III.: Northwestern University Press, 1964) and "The Case for Religious Liberty," in Cogley, ed., Religion in America, p. 101; Lowenthal, “The Place of Religion," p. 19; O'Neill, Religion and Education, p. 10; Joseph Snee, “Religious Disestablishment and the Fourteenth Amendment," 1954 Washington University Law Quarterly 371.

Lloyd's notes tell us that the members of the First Congress did not intend the establishment clause to mean anything remotely resembling what the Supreme Court has been saying it means, at least since 1947. Some of the justices in recent years appear to have recognized that the Court's rulings have not been based on a proper reading of 1789 history.? But the justices have not replaced the earlier misreadings of history with an alternative interpretation. Instead, they have been acting almost as if their recognition of their predecessors' historical errors have liberated them from the need to consider what purposes the members of the First Congress may have meant the religion clauses to serve.

The turning point in the recent history of the establishment clause was the 1947 parochial school busing case of Everson v. Board of Education.' In the opinion written for the Court by Hugo Black, the Court announced a rule of law, endorsed by dissenters as well as by the five-justice majority:

The "establishment of religion" clause of the First Amend-
ment means at least this: Neither a state nor the Federal
Government can set up a church. Neither can pass laws
which aid one religion, aid all religions, or prefer one religion

over another. There were two key elements in this rule. (1) The Court said that Congress cannot give nondiscriminatory aid to religion. There never was any question that the clause prohibited Congress from preferring one religion or group of religions over another, but this was the first time the Supreme Court took the additional step of prohibiting nonpreferential aid to religion as such. (2) The other key element in the Everson rule was its effect on the states. For the first time, the Court said that whatever Congress could not do, the states could not do either.

The Everson Court claimed that it based its reading of the establishment clause on the intentions of the people in the First Congress.s Later, the Court led by Chief Justice Earl Warren reiterated this historical assertion in opinions endorsing the Everson rule. While a number

2See, for example, Walz v. Tax Commission of the City of New York, 397 U.S. 664, 668,90 S. Ct. 1409, 25 L.ed.2d 697 (1970), where Chief Justice Burger refers favorably to C. J. Antieau, A. T. Downey, and E. G. Roberts, Freedom from Federal Establishment: Formation and History of the First Amendment Religion Clauses (Milwaukee: Bruce, 1964), p. 6, note 9, without adopting their affirmative thesis. 1330 U.S. 1, 67 S. Ct. 504, 91 L.ed. 711 (1947). *330 U.S. 1, 15. 5330 U.S. 1, 13. •McGowan v. Maryland, 366 U.S. 420, 440-41, 81 S. Ct. 1101, 6 L.ed.2d 393 (1961); Engel v. Vitale, 370 U.S. 421, 425, 82 S. Ct. 1261,8 L.ed.2d 601 (1962); Abington School District v. Schempp, 374 U.S. 203, 213-14, 83 S. Ct. 1560, 10 L.ed.2d 844 (1963).

of legal scholars have supported Everson's reading of history,' the reading has not gone unchallenged. An impressive number of scholars has written in opposition to either the no-aid rule or the extension of the establishment clause to the states, but none has tried to interpret Lloyd's notes on a speech-by-speech basis. When we look at these notes carefully, we find that not one, but both, halves of the Everson rule fly in the face of the intended meaning of the establishment clause.

Amendments Proposed

The Constitution, as ratified, mentioned religion only once in the Article VI clause prohibiting religious tests for national office. The delegates at the Philadelphia Convention thought that, since they were creating a government of limited powers, with no authority to act in matters relating to religion, no further protection was necessary. An extended, commercial republic, made up of people of all faiths, would never let the government impose a religious orthodoxy, as long as all kinds of people could be represented in the legislature.

This argument was not enough to satisfy many of those attending state ratifying conventions. Many of them were concerned that the federal government, using its constitutionally delegated powers, might pass laws indirectly affecting religion or other subjects previously reserved for the states. As a result, many of these ratifying conventions urged the national government to amend the Constitution as soon after ratification as possible. A few states specifically urged the inclusion of a bill of rights. Virginia and North Carolina proposed identical provisions dealing with religion:

"Robert G. Dixon, “Religion, Schools and the Open Society," 13 Journal of Public Law 267, 278 (1964); Leonard Levy, Judgments: Essays on American Constitutional History (New York: Quadrangle, 1972) and "School Prayers and the Founding Fathers," Commentary, vol. 34 (September 1962), p. 225; Leo Pfeffer, “The Case for Separation," in J. Cogley, ed., Religion in America: Original Essays on Religion in a Free Society (New York: Meridian, 1968),

pp. 57-73.

Antieau, Downey, and Roberts, Freedom from Federal Establishment; Edward S. Corwin,
"The Supreme Court as a National School Board," 14 Law and Contemporary Problems 3
(1949); Lowenthal, “The Place of Religion in American Public Life: A Critique of Absolute
Separatism” (Unpublished, 1969); Edward R. Norman, The Conscience of State in North
America (London: Cambridge University Press, 1964); James M. O'Neill, Religion and
Education Under the Constitution (New York: Harper, 1949); Charles E. Rice, The Supreme
Court and Public Prayer (New York: Fordham, 1964).
'Mark DeWolfe Howe, The Garden and the Wilderness (Chicago: University of Chicago
Press, 1965), pp. 22-23; Wilbur Katz, Religion and the American Constitutions (Evanston,
II.: Northwestern University Press, 1964) and “The Case for Religious Liberty,“ in
Cogley, ed., Religion in America, p. 101; Lowenthal, “The Place of Religion," p. 19;
O'Neill, Religion and Education, p. 10; Joseph Snee, “Religious Disestablishment and the
Fourteenth Amendment,” 1954 Washington University Law Quarterly 371.

That religion, or the duty which we owe to our Creator, and
the manner of discharging it, can be directed only by reason
and conviction, not by force and violence; and therefore all
men have an equal, natural and unalienable right to the free
exercise of religion, according to the dictates of conscience,
and that no particular religious sect or society ought to be

favored or established by law in preference to others. 10 New York offered a provision similar to these, 11 while New Hampshire suggested that "Congress shall make no laws touching religion or to infringe the rights of conscience."12

When James Madison reworked the many amendments suggested by the states into one set of proposals to be presented to the First Congress, he revised this religion amendment and added a new one not suggested by the states that would have limited state power. The two amendments were introduced by Madison to Congress on June 7, 1789.

The Civil Rights of none shall be abridged on account of reli-
gious belief or worship, nor shall any national religion be es-
tablished, nor shall the full and equal rights of conscience be
in any manner, nor on any pretext infringed.13

No state shall violate the equal rights of conscience or the

freedom of the press, or the trial by jury in criminal cases.14 The language used in these amendments indicates that Madison wanted to prohibit both the states and the federal government from infringing on the rights of conscience. In contrast, the establishment clause was to apply only to the federal government.

Madison's proposed amendments were referred on June 7 to the Committee of the Whole House.15 After they sat idle for a month and a half, they were referred on July 21 to a specially formed Select Committee, of which Madison was a member. 16

The Select Committee acted fairly quickly, reporting to the House after one week, on July 28. The committee recommended the proposal to prohibit the states from violating the equal rights of conscience, and

'OJ. Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 2d ed., 5 vols. (Washington, D.C., 1836), vol. 3, p. 659 (Virginia) and vol. 4, p. 1244 (North Carolina). "Ibid., vol. 1, P.

328. 12Ibid., vol. 1, p. 362. 131 Annals of Congress 434 (June 8, 1789).

1*Ibid.,

P. 435,

"SIbid., p. 450. Ibid., p. 665.

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