Don Drakeman, venture capitalist, lawyer, and professor at Princeton University, spoke about the original intent behind the US Constitution’s controversial Establishment Clause during a talk givenat the Eck Hall of Law April 7.
The Establishment Clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion…”
In the twentieth and twenty-first centuries, debate about the intent of the Framers and what the clause as written means when applied to matters such as vouchers for parochial schools, statues of the Ten Commandments at courthouses, and Christmas trees on public property.
Drakeman said the intent of the Framers is quite simple: They did not want a national church. Although there was disagreement among the Framers about the proper relationship should be, there was universal agreement that Congress should not establish a national church.
“No one wrote in favor of a national religion or the power to have one,” Drakeman claimed.
The Federalists and Anti-Federalists even agreed on this point. The point of disagreement was over whether a constitutional amendment was necessary, Drakeman said.
Because many at state constitutional conventions were concerned that Congress could try to establish a national religion through the “necessary and proper” clause of the Constitution in the future, the Establishment Clause was implemented as a part of the First Amendment.
Since the Framers were Protestants, their intent was to ensure that one denomination would not dominate the others at the national level, Drakeman said.
According to Drakeman, many have gone beyond what the Framers intended by attaching principles to the Establishment Clause. He identified three major groups who have tried to solve church-state relations issues through constitutional interpretation.
The first group, the strict separationists, wants no connection or relationship between the government and churches. Protestants and the Republican Party of the Ulysses S. Grant era often used this argument to prevent government appropriations going to Catholic schools.
The second group, the “non-preferentialists,” argues that government can aid religious organizations as long as it does not favor groups at the expense of others. The non-preferentialists aim at assuring non-discrimination in the allotment of government assistance to religious groups.
For example, the government funded missions to convert Native Americans to Christianity. For non-preferentialists, this program was acceptable because both Protestant and Catholic churches received direct appropriations from the government, Drakeman said.
The third group, the “jurisdictionalists,” interpret the Establishment Clause as restricting the federal government from interfering with states’ relations with religion. In other words, the Establishment Clause does not apply to the states because the language of the clause applies only to the U.S. Congress.
Although he admits that the jurisdictionalist argument, based on the actual text of the clause, is a strong one, Drakeman still holds that the Framers, in all of their debates, did not intend any more than to prohibit Congress from establishing a national church.
They did not proscribe, one way or the other, what the relationship between religious organizations and the states should be.
He compared the situation to a business deal. As a biotech entrepreneur, Drakeman frequently enters into business agreements with other firms. Sometimes, he said, lawyers do not write down the terms in a way that mirror what the parties actually intended the agreement to be.
Applied to the Establishment Clause, Drakeman said that one should not just focus on the text of the clause because the Framers were “not paying attention to the wording” because everyone agreed on the fundamental meaning of it.
Through the examination historical documents, one cannot correctly claim that the Framers intended anything further than prohibiting Congress from establishing a national church in the Establishment Clause, Drakeman said.
These three “principled” approaches “cherry pick” the evidence and pay attention to particular Framers but ignore others, Drakeman commented.
“The Framers gave us an unprincipled Establishment Clause,” he stated.
The other approaches dig for answers to the problem of church-state relations, not the original intent of the Framers.
Mickey Gardella is a sophomore majoring in political science. Life’s a playground, and he just wants someone to play with. He can be contacted at mgardell@nd.edu.
