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Original Intent, History, and Levy's Establishment Clause
Published online by Cambridge University Press: 27 December 2018
Abstract
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- Review Essay
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- Copyright © American Bar Foundation, 1990
References
1 347 U.S. 483 (1954).Google Scholar
2 . 410 U.S. 113 (1973).Google Scholar
3 . Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar
4 . Address of Edwin Meese Before the ABA (July 9, 1985), “The Great Debate: Interpreting Our Written Constitution,” Occasional Paper No. 2, Federalist Society, 1986; Brennan, W., “The Constitution of the United States: Contemporary Ratification” (Address to Georgetown University, 12 Oct. 1985). 19 U.C. Davis L Rev. 2 (1985); 27 S. Tex. L Rev. 433 (1986); see also Stevens, J. P., “Construing the Constitution” (Address to Federal Bar Association, 23 Oct. 1985). 19 U.C. Davis L Rev. 15 (1985). See also Stevens, J. P., “The Supreme Court of the United States: Reflections After a Summer Recess,” 27 S. Tex. L. Rev. 447 (1986).Google Scholar
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8 . While the proponents of the original intent method of interpretation and of government aid to religion overlap, they are not identical. Originalist proponents of government support for religion include: Berns, W., The First Amendment and the Fume of American Democracy (1976); Bradley, G., Church-State Relationships in America (1987); Cord, R, Separation of Church and State: Historical Fact and Current Fiction (1982); Howe, M., The Garden and the Wilderness (1965); Malbin, M., Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Inst. 1978) (“Malbin, Religion and Politics”); see also Corwin, E., “The Supreme Court As National School Board,” Law & Contemp. Prob. 14 (1949); Antieau, J., Downey, L., & Roberts, C., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses (1964); J. O'Neill, Religion and Education Under the Constitution (1949). There are advocates of government aid for religion on nonoriginal intent grounds, as well as originalists who oppose government aid. Leading advocates of separation of church and state from an intentionalist perspective are L. Levy, The Establishment Clause; D. Laycock, “Nonpreferential Aid to Religion: A False Claim About Original Intent,” 27 Wm & Mary L. Rev. 875 (1986); Kurland, P., “The Origins of the Religion Clauses.” 27 Wm. & Mary L. Rev. 839 (1986). See also Pfeffer, L., Church, State and Freedom (1967) (replying to originalist accommodationists), and Curry, T., The First Freedoms 83 (1986) (“Curry, First Freedoms”).Google Scholar
9 . The strict intentionalist approach conflicts both with ordinary legislative interpretation method and, interestingly as a historical matter, with the approach to statutory interpretation employed during the founding period, which looked first to objective evidence of intention, and not legislative history. See Powell J., “The Original Understanding of Original Intent,” 98 Harv. L. Rev. 885 (1985).Google Scholar
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12 . “History suggests answers but the constitutional text does not” (at xvi). P. Brest, “The Misconceived Quest for the Original Understanding,” 60 B.U.L Rev. 204, 209 n.28 (1980). Some commentators suggest that broad text provides the parameters for acceptable interpretation. See Dworkin, R., Law's Empire 398 (1986), and Schauer, , 29 U.C.L.A. L. Rev. at 829–30.Google Scholar
13 U.S. Const. Amend. I, cl. 1.Google Scholar
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15 . For an intentionalist historian's arguments against incorporation of state and federal constitutional standards see Berger, R., Government by Judiciary (1977); For an intentionalist lawyer's argument against incorporation see Meese, E., “The Supreme Court of the United States,” 27 S. Tex. L. Rev. 455 (1986). For historical sources supporting incorporation via the privileges and immunities clause, see Cong. Globe, 39th Cong., 1st Sess. 2765–66 (1866) (remarks of Sen. Howard). See generally M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). See Story, J., Commentaries on the Constitution of the United States (Rotunda & Now & ed. 1986). In addition to the intentionalist argument against incorporation is the current call for “interpretive communities,” which would aka seem to argue against an automatic equation of state and national understandings. See, e.g., Tushnet, M., Red, White, and Blue at 315–16 (1988).Google Scholar
16 . See Levy at 33 (regarding the 1820 Convention to reconsider art. 3 of the 1780 Massachusetts Constitution). See also McDaniel v. Paty, 435 U.S. 618, 629 (1978) (Brennan J., concurring) (discussing the irrelevance of state practices to the federal understanding of the establishment clause).Google Scholar
17 In Massachusetts, for example, there was a dispute between the trinitarians and the unitarians as to which was the “official” religious society and accordingly authorized to receive the state disbursement of taxes.Google Scholar
18 In Connecticut, to be excused from taxes supporting the majoritarian Congregationalist establishment, the “dissenters,” consisting of Baptists, Methodists and Episcopalians, were required to obtain a certificate showing membership in and tax contributions to a recognized religious body. The certificate procedure marked one as a “dissenter” and often resulted in social stigma. See Gaustad, E., The Emergence of Religious Freedom, Religion and the State (J. Wood ed. 1985). Also undermining the equation of the multiple establishments with nonpreferential support was the existence in some state constitutions of additional “nonpreference” clauses, e.g., Massachusetts and New Hampshire; if you accept Levy's argument these would seem redundant (see p. 38). Levy also does not explain North Virginia's constitution, which proscribes establishment and defines it as unidenominational. These examples illustrate the problem with the term “nonpreferential aid”; it assumes a consensus among religions on the valuation of government benefits. If there was no consensus on this question two hundred years ago, today our greater religious diversity makes it virtually unattainable.Google Scholar
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30 Gadamer notes the very idea of the hermeneutical “situation” means “we are in the midst of it” and, therefore, are unable to have any “objective knowledge of it.” Id.Google Scholar
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