Date: Wed Oct 08 09:12:22 1997
To: Frank Grose
From: Rob Weinberg
Frank,
Here is the second of the two memos I wrote nearly ten years ago.
Attachment: original.intent.wpd
TO: Don Siegelman, Attorney General
FROM: Robert M. Weinberg, Assistant Attorney General
DATE: September 25, 1989
RE: Original Intent and the Establishment Clause of the First Amendment
This memo is in response to specific questions you've raised following my earlier August 31 memo on prayer in public schools and institutions. You've asked the following questions:
1. What did the original framers of the constitution intend the Establishment Clause to mean?
2. What kind of prayer is allowed?
3. Can this issue (of state sponsored or endorsed prayer) be reconsidered by the Supreme Court on the issue of original intent.
The quick answer is that original intent is of little utility in determining constitutional questions, that no prayer is allowed; and that it is highly unlikely the Supreme Court would give much weight to an original intent argument the next time it has an opportunity to hear a case involving the separation of church and state. I'll try to answer question two briefly first; questions one and three are considered together.
The only kind of state or publicly sponsored prayer which the Supreme Court has upheld is legislative invocations, i.e., religious invocations which precede the commencement of a legislative session or day. See Marsh v. Chambers, 463 U.S. 783 (1983) which suggests that prayer might have been acceptable because of longstanding tradition and the fact that the legislative body is composed of adults as opposed to children, an argument that the violation is somehow de minimis. Some circuits have attempted to use this case to fashion a new test of when prayer may be constitutionally acceptable at a state sponsored event such as graduation ceremonies. However, this case is an exception to ordinary Establishment Clause analyses and, as I've indicated earlier, has not been cited by the Supreme Court in subsequent cases as authority for any new kind of test based on "tradition," "historical significance," or de minimis injury.
In Marsh and other cases the Supreme Court has acknowledged that the use of such phrases as "God save the United States and this Honorable Court," which opens judicial sessions in the federal courts, and "In God We Trust," and "One Nation Under God" may ring unconstitutional, but have dismissed the argument on the grounds that the use of such invocations has, over time, lost all religious significance. Marsh, 463 U.S. at 818 (Brennan, J., dissenting). Thus, the only kind of prayer which is allowed would be prayer which has no religious value, if such a thing could be imagined.
It would be easier to answer the question "what kind of prayer is allowed?" if I knew specifically when, where, and why the person asking wanted to pray. I simply can't think of a hypothetical example of permissible state sponsored or endorsed prayer, or prayer at a state sponsored event or institution. Prayer is religion, or an integral part of most religions (interestingly, some religions do not include the institution of prayer, id. at 819 n.40). By definition, prayer serves no secular purpose, and state sponsored or endorsed prayer is, per se, a violation of the first amendment.
This does not mean that individuals can not pray while they are in school. It has jokingly been observed that students pray all the time in school, particularly around exam time. I'm sure a number of high school football players and fans do too before and during football games without the benefit or necessity of being led in religious invocation by the state.
But there are simply no exceptions to the rule that I've been able to find; and while it has been argued that certain "prayers" are so brief or content neutral as to present only a de minimis or negligible injury to those who object, such arguments have been soundly rejected, in both the 11th Circuit and the Supreme Court. And it is no answer to those who do not wish to pray or be subject to state sponsored prayer (even non denominational) — and frankly it is an insult and an affront to the religious dignity and individual conscious of those who do object that they don't have to listen or participate if they don't want to. It is a harsh rule, perhaps, but because it is designed to protect the minority from the tyranny of the majority, a rule which suggests no compromise.
There are a number of problems with "original intent" arguments. I read a few law review articles on the subject; it's a running debate among scholars and historians. You might recall that Robert Bork got scorched by the Senate Judiciary committee during his nomination to the Supreme Court for some of his views on original intent and the scope of the Constitution's protections as envisioned by the framers.
The first problem is that no one knows exactly what the framers intended because there's no formal legislative history available. While James Madison did keep records of the proceedings it is said that he jealously guarded his notes precisely because he didn't want later court cases delving into original intent. Although there is discussion and speculation about what the framers intended in the cases, original intent has not been the basis of the Court's rulings, even where, for instance, legislative invocations have been upheld as in Marsh. Rather, the Court carved out a one time exception based on "unique history" and established practice, and discussed, but did not rely on original intent.
Both Madison and Thomas Jefferson in writings subsequent to the ratification of the first amendment were adamant in maintaining the wall of separation between church and state, neither saw any room for compromise. See Marsh 463 U.S. at 807 (Brennan, J., dissenting). Madison later wrote that he believed that the bill authorizing payment for the office of chaplain for Congress, which I referred to in the first memo, to be unconstitutional, although he had originally voted for it. Interestingly, that Madison originally voted the way he did appears to be one of the factors the Supreme Court gave some weight to in upholding legislative prayer, although the Court ignores Madison's later thinking on the subject.
Thomas Jefferson and Andrew Jackson both refused to declare national days of thanksgiving while they were president because they believed it to be a violation of the Establishment Clause. There is probably considerably more authority for the proposition that the original framers intended the prohibition on church and state to be absolute than there is to the contrary.
Another problem in original intent analysis of the constitution is whose intent you look to. Is it really the intent of the individual framers of the constitution that we are considering, or do we try to determine the original intent of the ratifying states and their legislatures? Id. at 815. The question becomes not what the framers intended the first amendment to mean, but what the states understood they were ratifying. Courts are quick to point out that the Constitution is a living document, and will not be bound by arguments of what the framers might have been thinking, certainly when they couldn't have anticipated a problem like, for example, prayer at public football games.
Another wrinkle: Until the fourteenth amendment was passed, the Bill of Rights only applied to the federal government; and it was not, I believe, until the 1940's that the first amendment was found applicable to the states. So we may be looking at another tier of analysis, i.e., what did the states believe or understand the effect of applying the first amendment to the states to be when the fourteenth amendment was ratified. Even as conservative as the Supreme Court has become recently, there won't be much room for "original intent" argument in first amendment cases. Constitutional cases simply have a life of their own wholly independent from legislative history. I recall hearing once that Justice Antonin Scalia says he doesn't care at all about what the record of the intent of the legislature is in deciding cases of statutory construction. Although it is tempting for some to criticize the Court with arguments about original intent, I can not recall a case of constitutional significance which has ever been decided on that basis.
To recap, the framers original intent is (1) probably irrelevant to the analysis in constitutional cases, and (2) to the extent it is relevant, probably wholly supports the Supreme Court's absolute prohibition on church and state. The Establishment Clause is a tough rule, but one couched in absolute terms: "Congress shall make no law respecting the establishment of religion..." Should anyone take issue with it, I would recommend they see about amending the Constitution.
All Rights Reserved
0 comments:
Post a Comment