JB

David Wagner, who runs Ninomania, has pointed out that there is evidence that the First Congress that drafted the Establishment Clause and the Congress that framed the Fourteenth Amendment engaged in support of religion in ways that many scholars today think would violate the Establishment Clause:

But then surely Prof. Balkin can see (perhaps he has never denied it -- I don't know) that the accommodations of public religiosity undertaken by the federal government in the 18th and 19th centuries, as detailed by Justice Rehnquist in his Jaffree dissent, must have been perfectly in keeping with the Establishment Clause.

Some of Rehnquist's exhibits, it must be noted, antedate the ratification, though not the enactment by Congress, of the 1st Amendment. Does that mean Congress was hastening to enact financial and symbolic support for religion (e.g. reenactment of the Northwest Ordinance; resolution requesting a Thanksgiving Day proclamation) that it knew perfectly well was about to become unconstitutional? Does it not seem (quoting Rehnquist) "highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals"?

David's argument rests on a confusion about my views and about the nature of the criticism I was making against Justice Scalia. I myself am not an originalist, nor do I regard original intention or original understanding as the touchstone to all legitimate constitutional interpretation. I think that there are many modalities of constitutional interpretation, of equal validity, including text, history, original understandings, original intentions, consequences, structure, and narrative ethos. Moreover, I am a constitutional historicist. My view is that what the Constitution means changes over time, in response to constitutional politics and social movement contestation. Thus, you can see my views are quite different from Justice Scalia's.

My criticism of Scalia is that he states that original understanding is the touchstone of all legitimate constitutional interpretation (a view I do not hold) but he nevertheless picks and chooses the occaisions under which he will invoke original understandings, based on his substantive views about the Constitution. Pointing this fact out does not commit me to acceptance of the philosophy of original understanding as the touchstone of all legitimate constitutional interpretation. Rather, it suggests that Scalia isn't being entirely honest about what his views on constitutional interpretation are.

Indeed, my view is that people who think that original understanding is the touchstone of all legitimate constitutional interpretation often (1) don't know enough of the relevant history; (2) conveniently fail to invoke originalist arguments when they collide with their substantive views about the Constitution; or (3) fall back on various forms of prudential argument-- like reliance on previous decisions and stare decisis, to avoid unpalatable results. However, the argument for reliance on stare decisis is itself applied inconsistently, since originalists do not think that all previous decisions are immune to originalist attack, just the ones that they think aren't too bad or that they actively support. As a result, originalists generally produce constitutional interpretations that are largely (if imperfectly) consonant with their substantive views about the Constitution. This fact completely undermines the justification given for originalist interpretation-- that it restrains judges from imposing their own substantive political and policy views into constitutional law. In theory originalism does so, but in practice the interpretations of originalist judges are often tethered to their preexisting political views, and this is as true of originalists on the left like Justice Hugo Black as it is with originalists on the right, like Antonin Scalia. Both Black and Scalia have many fine qualities, but neither is (or was, in the case of Black) a particularly good historian and neither is or was really consistent about their originalism.

Now, back to David's point about the Establishment Clause. My understanding of the original understanding of the Establishment Clause was that it was a rule of federalism, allowing the states to have their own established churches, but denying an established church to the federal government. Nevertheless the antebellum Congress did a lot of things that we today would think violated separation of church and state; they supported Protestant Christianity nonpreferentially. It is mistake to think that they supported all religions equally, or even all Christian denominations equally. Rather, they tried as best they could to be neutral as between Protestant sects, much to the chagrin of Catholic immigrants who began entering the country in large numbers in the 1830's. Nobody thought there was any obligation to be even handed with respect to Judaism or Islam. So the practices of the antebellum Congress are hardly an appropriate model for constitutional conduct today. (Again, this is part of the problem of invoking original understanding as a justification without knowing how deeply embarassing the actual history often is).

After the Civil War, the Establishment Clause could not coherently be understood as a federalism principle, precisely because if one believed that it was incorporated into the Fourteenth Amendment, it would apply to the states as well. And for many years after the Civil War, the states, I might point out, were perfectly happy to impose Protestantism on their citizens, again, to the chagrin of Catholic immigrants.

The contemporary notion of nonpreferentialism as between all religions is a product of the twentieth century, and the notion that atheists and agnostics are also protected by the Establishment Clause is a product of the second part of the twentieth century. Today many religious conservatives argue that government should be permitted to promote religion (as opposed to atheism and agnosticism), as long as the govenrment promotes all religions equally. But it is a fantasy to think that this position is the same as that of the original understanding. Every originalist today who argues for nonpreferentialism between different religions is actually arguing for a position that developed at least a century after the Establishment Clause was framed. Once again this is bad history in the service of a particular substantive agenda, not devotion to the Framers' original understandings.