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Everson’s Syllogism

Almost every constitutional law scholar—Left, Right, and center—agrees that the U.S. Supreme Court’s Establishment Clause jurisprudence is, to put it kindly, confused. Much of the blame for this mess can be laid at the feet of Everson v. Board of Education, which turns 70 this year.

Justice Hugo Black, who wrote Everson’s majority opinion, and Justice Wiley Rutledge, who wrote the dissent, differed as to the outcome of the case; but Black agreed with Rutledge when the latter declared: “No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history.”[1]

Since 1947, virtually every Supreme Court justice has embraced this historical approach to interpreting the Establishment Clause.[2] Indeed, judicial liberals have appealed to America’s Founders to shine light on this constitutional provision more often than have judicial conservatives. Unfortunately, the liberals have embraced a faulty historical argument that I refer to as “Everson’s syllogism.” It goes as follows:

The Establishment Clause must be interpreted in light of the Founders’ intent.

Thomas Jefferson and James Madison represent the Founders.

Jefferson and Madison wanted to build a wall of separation between church and state.

Therefore, the Establishment Clause requires a wall of separation between church and state.

In his opinion for the Court, Black made five distinct references each to Jefferson and Madison, but appealed to only one other Founder (Patrick Henry, in his capacity as an attorney in the “Parson’s Cause”). In his dissenting opinion, Rutledge made a whopping 62 distinct historical appeals—including 11 to Thomas Jefferson and 28 to James Madison—to support his conclusion that the Founders desired to erect a high wall of separation between church and state. Lest anyone miss Madison’s significance, Rutledge appended to his opinion the text of the Memorial and Remonstrance (1785).

Everson’s syllogism went largely unchallenged by the Supreme Court until William Rehnquist’s dissenting opinion in Wallace v. Jaffree (1985). Even after this devastating critique, far too many jurists have continued to rely on its faulty historical narrative. Numerous academics and activists have done the same.

The syllogism is flawed at a number of levels. To begin, it is not evident why the Establishment Clause should be interpreted in light of the views of a Founder (Jefferson) who was not even in the country when it was drafted. It is often asserted that members of the first federal Congress were influenced by his Virginia Statute for Religious Liberty, drafted in 1777, but there is virtually no evidence that this was the case. [3]

Problematic as well (as I have pointed out elsewhere) is that while Jefferson and Madison wanted greater separation between church and state than did most Founders, they had no desire to build the sort of high wall of separation desired by groups such as Protestants and Others United for Separation of Church and State or the American Civil Liberties Union.

Finally, there is no good reason to think that Jefferson’s and Madison’s views on church-state relations were widely accepted. Indeed, in this and many other respects, they were outside the mainstream.

Everson’s syllogism is bad history, and it leads to bad law and public policy. Its logic has been used to restrict, or attempt to restrict, religious liberty. For instance, opponents of religious accommodations for pacifists, equal access, and school vouchers have all contended that statutes designed to protect or promote religious freedom violate the Founders’ commitment to the separation of church and state.

America’s Founders clearly did not want a national church, but they had no desire to remove religion from the public square. They certainly did not intend for the Establishment Clause to limit the ability of legislatures to protect religious liberty or enable parents to send their children to schools of their own choosing.

Our country is far more pluralistic today than it was in the late 18th century, and there are very good reasons for government officials not to favor one religion or denomination over another. But these are questions of civility and prudence that should be addressed by elected officials, not by jurists or advocacy groups who embrace a faulty understanding of the First Amendment’s generating history.

To grasp the Founders’ views of religious liberty and church-state relations, one should consider the words and deeds of more than two men, no matter how influential. To mark Everson’s 70th anniversary, Law and Liberty has asked me to write a series of posts highlighting how different Founders approached these issues. The series will include men such as Roger Sherman, Charles Carroll, Oliver Ellsworth, Benjamin Huntington, Samuel Livermore, Abraham Baldwin, and Fisher Ames, all of whom played a significant role in drafting the First Amendment.

The series will also consider figures such as George Washington, John Adams, George Mason, John Jay, John Marshall, Isaac Backus, John Dickinson, Patrick Henry, John Witherspoon, and Luther Martin. While they were not directly involved in writing this constitutional provision, all participated in the debates of that era over religious liberty and church-state relations. If one is interested in the views of “the Founders,” surely these individuals should be included in the discussion.

Everson’s syllogism has contributed significantly to the Supreme Court’s confused Establishment Clause jurisprudence. It has also been used to threaten what the Founders regularly referred to as the sacred rights of conscience. The posts to follow will hopefully put to rest Everson’s syllogism, provide a more accurate account of the generating history of the First Amendment, and provoke a robust discussion about how religious liberty can best be protected today.

[1] Rutledge in Everson v. Board of Education 330 U.S. 1 (1947), 33.

[2] I document the Supreme Court’s use of history in its Religion Clause jurisprudence in “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases,” Oregon Law Review 85 (2006), 563-614.

[3] See Mark David Hall, “Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment,” American Political Thought 3 (Spring 2014), 32-63.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 12, 2017 at 12:25:25 pm

Promises to be interesting - looking forward to follow on essays.

For those interested, here is a link to "Memorial and Remonstrance" with some background notes:

https://founders.archives.gov/documents/Madison/01-08-02-0163

In the brief notes, Henry's role is interesting as is the position of the Presbyterians, who were against it BUT wanted to share in the "booty."

Yep, I think this series will be fun!

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gabe
on January 12, 2017 at 19:44:32 pm

I disagree that Jefferson and Madison wanted to build a wall of separation between church and state in the manner you are talking about. The "wall" they were trying to build was merely one of preventing government from using its coercive powers to impose religion on people who did not want it. Right before Jefferson used those words he made clear he meant "that the legitimate powers of government reach actions only, & not opinions." To me this is made obvious by the fact that Jefferson, Madison and many other founders had Church service in the House of Representatives. This is clearly religion being "in the public square" (its hard to get more so then the floor of the House of Representatives).

One example of a coercive power would be if government taxed you and then gave that money to religious organizations. Such actions would violate the First Amendment. But giving money to parents to provide the education of their choice is not the same as giving money to churches (even if they choose to spend that on churches). It would be like claiming that a government employee cant give a part of their paycheck to a church. People are free to proclaim their religion in the public square, but no one can be compelled to support any religious organization.

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Devin Watkins
on January 13, 2017 at 21:35:41 pm

I wander about these analysis. To put it simply didn't 7 of the original 13 states have a state religion and the antiestablishment clause merely guarantee that a national church would be imposed. Reviewing the 13 original state constitutions, much of the 10 amendments looks like political guarantees the Feds would not attempt to impose various laws on the states, I.e. sort of a states rights sort of thing.

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Stan on the Brazos
on January 17, 2017 at 15:28:34 pm

Did the founders provide a means for the National Government to restrain State Legislatures from establishing their own state religion? My thought is that men of the 18th century expected each state to decide those matters for themselves.

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Leonard Kramer
on January 18, 2017 at 14:38:47 pm

The author trips over a flaw in many strains of originalism.

It is not the INTENT of the founders (or any other drafters of law) that matters, it is the commonly understood MEANING of their words at the time they were enacted.

The INTENT of Jefferson, Madison and others is ONLY important in understanding the words.

The purported sylogism here is evident in every attempt to judge the intent of founders, framers, etc.

The federalist and anti-federalist papers are not significant because Hamilton, Madison and Jay wrote them, but because they were the public expression of the meaning of the constitution that people relied on at the time they ratified it.

Adam's assertion that we are a nation of laws not men. Reflects that the law must not reflect the whim or "intent" of a single or small number of people - not even framers or founders, but of the nation as a whole at the time. That is why "textualism" is valid, while other forms of originalism are not.

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jbsay
on January 18, 2017 at 14:54:45 pm

I find fixations on the establishment clause a reflection of the significance of the argument AGAINST the bill of rights.

I tire of debating whether some religious freedom permits bakers to choose not to bake cakes for gay weddings.

What is wrong with just plain ordinary freedom entitling them to exactly that ?

The constitution enumerates the powers of the government - everything aside those powers is reserved for the people.

Limited government inherently means that for individuals all is permitted except what is explicitly denied, and for government - all is prohibited except what is explicitly permited.

Our constitutional framework dances around that. But does nto quite reach it.

Many of the founders and framers were classical liberals in some form or another. Some were even members of the scottish enlightenment.

As a result we created the most libertarian govenrment that has ever existed.
But we did not create a perfectly consistent classical liberal libertarian government.

Our founders mostly grasped that slavery was an abomination, a grotesque violation of their own core beliefs, but they were unable to let go of it yet, and it is enshrined in our constitution.

The same or similar can be said of the founders regarding myriads of other issues.
It is doubtful they were tolerant of homosexuality. The regard of many for women was no better than for slaves. On numerous issues they did not think about what we think about today - they could not afford to. more than 50% of their effort was directed at feeding themselves - while less than 5% of ours is.

But in general they did grasp that government should act where the use of force is actually necessary and should otherwise leave people free.

Subsequently as we are expanding government increasing the use of force and limiting individual liberty, we are concurrently learning that the domain where force is necescary and benficial is much smaller than our founders imagined.

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jbsay
on October 14, 2017 at 07:57:43 am

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

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