This Headline is False

Gene Garman May/June 1999
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U.S. Supreme Court justice William Rehnquist's dissent in Wallace v. Jaffree (472 U.S. 38), 1985, is considered by many (see p. ?) one of the best historical defenses of a limited view of the reach and meaning of the Establishment Clause, a view that's increasingly gaining ground in American jurisprudence. Included in his dissent is this sentence: "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history."1

The justice is right, for how could one build sound constitutional doctrine upon historical error? There's a great irony here, however, because his dissent is itself built on "a mistaken understanding of constitutional history." In short, however logically paradoxical, his Jaffree dissent proves the point that Justice Rehnquist wanted to make (though probably not in ways that the good justice intended).

Justice Rehnquist's first historical mistake comes early when, talking about the influence of what he called "Jefferson's misleading metaphor" (the "wall of separation between church and state") he declares: "Thomas Jefferson was of course in France at the time the constitutional amendments known as the Bill of Rights were passed by Congress and ratified by the states."2

Wrong. The House of Representatives of the Congress of the United States approved the final draft of the religion clauses on September 24, 1789, and the Senate on September 25, 1789 (Religious Freedom Day). Jefferson left France aboard the ship Anna on October 8, 1789, arrived in Virginia on November 23, 1789, and soon thereafter became President George Washington's secretary of state. Ratification occurred on December 15, 1791 (Bill of Rights Day). Jefferson had been back in America for more than two years.

In his next sentence Justice Rehnquist says: "His [Jefferson's] letter to the Danbury Baptist Association [where Jefferson used the "misleading metaphor"] was a short note of courtesy, written 14 years after the amendments were passed by Congress."3 Jefferson's letter was, in fact, written on January 1, 1802; the amendments were passed on September 25, 1789, which is closer to 12 years than to "fourteen years" after the amendments were passed by Congress.

These mistakes, admittedly nitpicky and trivial, do, however, demonstrate a basic historical inaccuracy (as well as Justice Rehnquist's effort to question President Jefferson's credibility and to reduce the significance of his letter to the Baptists, which the historical record proves was much more than a "short note of courtesy" [see Liberty, January/February 1997, p. 19]) that gets worse at the dissent continues.

Justice Rehnquist's next sentence reads: "He [Jefferson] would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the religion clauses of the First Amendment."4

To the contrary. Any detached observer or historian should conclude that Jefferson would be a much better source of contemporary history as to the meaning of the religion clauses than would Justice Rehnquist. After all, Jefferson was a contemporary of the Americans who ratified the Bill of Rights, and he was one of the most well-known and pivotal figures in early American history. The man was, after all, there when it happened, as opposed to looking back on it 200 years after the fact.

In the attempt to establish his position regarding President Jefferson's "wall of separation," Justice Rehnquist wrote: "When we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, . . . we see a far different picture of its purpose than the highly simplified `wall of separation between church and State.'"5 Justice Rehnquist then cites the printed version of the proceedings of the First Congress, commonly known as the Annals of Congress, and directs attention specifically to debates in the House of Representatives dated Saturday, August 15, 1789. "The entire debate on the religion clauses," he wrote, "is contained in two full columns of the Annals, and does not seem particularly illuminating."6

Was "the entire debate on the religion clauses . . . contained in two full columns of the Annals"? In his book The Establishment Clause constitutional historian and Pulitzer Prize winner Leonard W. Levy wrote: "No official records were kept of the debate in either the Senate or the House. Because the Senate during the First Congress met in secret session, no reporters were present to take even unofficial notes . . . . No account of the debates [in the Senate] exists, and the only Senate document we have is a meager record of action taken on motions and bills.

"The situation in the House is considerably better but unsatisfactory. . . . The House, unlike the Senate, permitted entry to reporters who took shorthand notes. But these unofficial reports, which were published in the contemporary press, have numerous deficiencies. The reporters took notes on the debates and rephrased these notes for publication. The shorthand in use at that time was too slow to permit verbatim transcription of all speeches, with the result that a reporter, in preparing his copy for the press, frequently relied upon his memory as well as his notes and gave what seemed to him the substance, but not necessarily the actual phraseology, of speeches. . . . The Annals of Congress was published in 1834. . . . The House debates, as recorded in the Annals of Congress for the session of the Congress that framed the Bill of Rights, derive from contemporary newspaper accounts, especially from the pages of a weekly periodical known as Lloyd's Congressional Register. . . . The reports of these House debates `were so condensed' by the compilers of the Annals of Congress `that much information about the debates was omitted entirely or was presented only in garbled form.' Lloyd recorded `skeleton' versions of speeches, which he could make intelligible only by imaginative and knowledgeable editing. He used few connectives or articles, and he embellished considerably. Madison spoke of his `mutilation and perversion.' . . . Madison observed of Lloyd that he `was indolent and sometimes filled up blanks in his notes from his memory or imagination,' and added that Lloyd had become a `votary of the bottle and perhaps made too free use of it sometimes at the period of his printed debates.'

"Thus, our record of the House debates does not necessarily reveal all that was said about the Bill of Rights, nor is the report necessarily accurate as far as it goes. Accordingly, quotations from the Annals of Congress purporting to represent a speaker's words must be regarded with some skepticism, a fact of particular importance in cases where slight changes in phraseology may shift the speaker's meaning, as in the debateon the establishment clause. Relying on one article rather than another in a motion that was not adopted . . . is absurdly naive.

"Finally, there is no record of the minutes of the special House committee on amendments; it was this committee that, using Madison's original proposals, drafted the version of the Bill of Rights submitted to the House for approval. Nor is there any existing record of the minutes of the joint Senate-House conference committee that worked out a compromise draft between Senate and House versions of the proposed amendments. . . .

"Moreover, as a historian who scoured the sources has pointed out, `the finished amendments were not the subject of any special newspaper comment, and there is little comment in the available correspondence.' . . . Because no records were kept of the debates, we do not know what the legislators of the various states understood to be the meanings of the various parts of the Bill of Rights. Nor has any scholar who has read the contemporary newspapers uncovered anything particularly revealing as to these meanings. Public interest in the proposed amendments was desultory, and public discussion of them largely confined to generalities."7

Therefore, contrary to Justice Rehnquist's assertion, it would seem that the Annals of Congress do not represent "the entire debate on the religion clauses" in the House of Representatives on August 15, 1789. The Annals record of that debate is useful as a newspaper reporter's summary, but it does not provide an actual word-for-word transcript.

Nevertheless, Justice Rehnquist relied heavily upon the Annals of Congress, particularly regarding a few suggestions that use of the word national be included in the Establishment Clause. In fact, despite the historical record, which clearly shows that the debates and the numerous revisions concerning wording of the Establishment Clause included various suggestions (both with and without the idea of a "national" religion), Justice Rehnquist still declares: "The true meaning of the Establishment Clause can only be seen in its history. . . . The Framers intended the Establishment Clause to prohibit the designation of any church as a `national' one."8

To the contrary. The Annals of Congress and the Journal of the First Session of the Senate show that use of the word national was only one ofthe suggested wordings for the amendment, a wording that was, in fact, rejected. Obviously, if the Framers intended the Establishment Clause to prohibit only the designation of any church as a "national" one (as Justice Rehnquist claims), they would have included the word national in text. The "true meaning" of the religion clauses should be determined by what was finally adopted, not by what was rejected!

The last version of the religion clauses as presented by the House is worded as follows: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."9 The last version of the Senate reads: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."10 Neither final proposal uses the word national. In fact, the House version speaks of establishing "religion," and the Senate speaks of establishing "articles of faith." The majority of members of the First Congress intended that Congress would have no authority to make any law establishing "religion" or "articles of faith," terms much broader than merely a "national" church. The majority in the First Congress intended for the Establishment Clause to prohibit more than an official church or a national religion. The record of history shows that a majority in the First Congress wanted the Establishment Clause to read that "Congress shall make no law" establishing religion, articles of faith, or a mode of worship.

The debate was over. The issue of a compromise wording was submitted to a joint Senate-House conference committee, which drafted the following proposal: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

This wording was accepted by the House on September 24 and by the Senate on September 25, 1789. On December 15, 1791, the Bill of Rights was ratified by the states. The historical record does not support Justice Rehnquist's notion that the Framers of the Establishment Clause simply intended to "prohibit the designation of any church as a `national' one." Through their representatives, the American people amended the Constitution to read that "religion" would not be established by law, a term that, though including a prohibition on a "national church," certainly extends beyond it.

Furthermore, after adoption of the religion clauses by the First Congress,only one of the six members of the conference committee, which composed the final wording, left any specific definition as to what the Establishment Clause means and to what it applies. This was James Madison, who more than once expressed his views on the meaning of the Establishment Clause, views that seems to extend the Establishment Clause provisions far beyond Justice Rehnquist's position.

In 1790 Congressman James Madison wrote: "The general government is proscribed from the interfering, in any manner whatever, in matters respecting religion."11

In 1811, President James Madison wrote: "To the House of Representatives of the United States:

"Having examined and considered the bill entitled `An Act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia,' I now return the bill to the House of Representatives, in which it originated, with the following objections:

"Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares that `Congress shall make no law respecting a religious establishment.' ...This particular church, therefore, would so far be a religious establishment by law.

"Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty."12

In 1811 President James Madison wrote: "To the House of Representatives of the United States:

"Having examined and considered the bill entitled `An act for the relief of . . . the Baptist Church at Salem Meeting House, in the Mississippi Territory,' I now return the same to the House of Representatives, in which it originated, with the following objection:

"Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that `Congress shall make no law respecting a religious establishment.'13

In 1819 James Madison wrote: "The Civil Government . . . functions with complete success; whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the Church from the State."14

In 1822, James Madison wrote: "Notwithstanding the general progress made within the two last centuries . . . , there remains . . . a strong bias towards the old error, that without some sort of alliance or coalition between Government and religion neither can be duly supported. . . . Every new and successful example therefore of a perfect separation between ecclesiastical and civil matters is of importance."15

In an undated essay (probably 1817 or later) James Madison wrote: "Strongly guarded as is the separation between religion and Government in the Constitution of the United States, the danger of encroachment by ecclesiastical bodies may be illustrated by precedents already furnished in their short history. . . .

"But besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. . . .

"The Constitution of the United States forbids everything like an establishment of a national religion. The law appointing chaplains establishes a religious worship for the national representatives, to be performed by ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the constituent, as well as of the representative body approved by the majority, and conducted by ministers of religion paid by the entire nation?

"The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of constitutional principles. . . .

"If religion consist in voluntary acts of individuals singly, or voluntarily associated, and it be proper that public functionaries, as well as their constituents, should discharge their religious duties, let them, like their constituents, do so at their own expense. How small a contribution from each member of Congress would suffice for the purpose? How just would it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience?"16

Madison's words show that while the Establishment Clause clearly forbade a "national religion," it forbade a lot more as well.

In spite of these statements from James Madison, in which he described applications of the Establishment Clause in specific terms of separating religion and government, Justice Rehnquist proclaims that "there is simply no historical foundation for the proposition that the Framers intended to build the `wall of separation' that was constitutionalized in Everson"17 and that "the `wall of separation between church and State' is a metaphor based on bad history."18 James Madison was a member of the Constitutional Convention in 1787, he was a member of the joint Senate- House conference committee, and he used the word separation (just as President Jefferson did) in defining the meaning of the Establishment Clause and the Framers' intent regarding the Constitution and First Amendment. Interestingly enough, Justice Rehnquist did not refer to even one of Madison's above statements, which were made after the adoption of the religion clauses.

The majority of justices in Wallace v. Jaffree rejected Justice Rehnquist's dissenting argument and understood that the Establishment Clause prohibits more than just a single official church or national religion. Wallace v. Jaffree ruled that the state of Alabama does not have authority to, even indirectly, promote "prayer" during a moment of required silence in public schools. The Court ruled correctly because the promotion of religion is not the business of government, and it has no authority to require "prayer" any more than it could by law require belief in the Trinity, infant baptism, transubstantiation, or Christianity.

Justice Rehnquist's dissent creates one of these paradoxes that drive mathematicians and logicians crazy. It's like Epimenides' line: "This statement is false." If it's true, it's false; if it's false, it's true. But how can it be both false and true? The same with this dissent. Justice Rehnquist uses "a mistaken understanding of constitutional history" to argue against using "a mistaken understanding of constitutional history." But how can his point be correct if what he uses to make it refutes the very point he's making? The dissent is self-refuting and, therefore, logically absurd, even if it still does prove his point (talk about paradox!).

Fortunately, and for more reasons than pure logic alone, it was only a minority dissent, not a majority opinion.

Gene Garman is a graduate student at Pittsburg State University in Kansas.


1 Wallace v. Jaffree, 472 U.S. 38 at 93 (1985).
2 Ibid.
3 Ibid.
4 Ibid.
5 Ibid.
6 Ibid., at 96.
7 Leonard W. Levy, The Establishment Clause (Chapel Hill:, N.C. University of North Carolina Press, 1994), pp. 257-259.
8 Wallace v. Jaffree, 472 U.S. 38 at 114.
9 Ibid., at 98.
10 Ibid.
11 William T. Hutchinson and William M. E. Rachal, The Papers of James Madison (Chicago: University of Chicago Press, 1962), vol. 13, p. 16.
12 Gaillard Hunt, The Writings of James Madison (New York: G. P. Putnam's Sons, 1908), vol. 8, p. 132.
13 Ibid., p. 133.
14 Ibid., p. 432.
15 Ibid., vol. 9, pp. 101, 102.
16 Elizabeth Fleet, ed., "Madison's `Detached Memoranda,'" William and Mary Quarterly 3 (October 1946): 555.
17 Wallace v. Jaffree, 472 U.S. 38 at 107.
18 Ibid., at 108.

Article Author: Gene Garman