The Religion Clauses of the First Amendment

Guarantees of States' Rights?

By (author) Ellis M. West

Publication date:

24 February 2011

Length of book:

250 pages

Publisher

Lexington Books

ISBN-13: 9780739146774

The First Amendment of the U. S. Constitution begins: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The Supreme Court has consistently held that these words, usually called the "religion clauses," were meant to prohibit laws that violate religious freedom or equality. In recent years, however, a growing number of constitutional law and history scholars have contended that the religion clauses were not intended to protect religious freedom, but to reserve the states' rights to legislate on. If the states' rights interpretation of the religion clauses were correct and came to be accepted by the Supreme Court, it could profoundly affect the way the Court decides church-state cases involving state laws. It would allow the states to legislate on religion-even to violate religious freedom, discriminate on the basis of religion, or to establish a particular religion. This book carefully, thoroughly, and critically examines all the arguments for such an interpretation and, more importantly, all the available historical evidence. It concludes that the clauses were meant to protect religious freedom and equality of the individuals not the states' rights

Preface
Introduction
Clarification of the Issue
The Origin of the "Substantive" Versus "Jurisdictional" Terminology
The Problem with the Word "Substantive"
The Problem with the Word "Jurisdictional"
Must the Religion Clauses Be Either Normative or Federalist?
The Different Federalist Interpretations of the Clauses
A Critical Analysis of the Federalist Interpretation
An Overview of the Arguments
An Assessment of the Arguments' Logic
The Ratification Debate and Proposed Religion Clauses
The Significance of the Debate
Issues: What Kind of Laws Pertaining to Religion Did Both Federalists and Anti-federalists Want to Prohibit, and Why?
The Views of the Federalists
The Views of the Anti-federalists
The Drafting of the Religion Clauses
The Role and Views of James Madison
A Summary of What Happened in the First Congress
The Meaning of the Debate in the House on August 15
Changes in the Wording of the Clauses
The Final Wording of the Establishment Clause
The Relevance of Madison's Amendment to Protect Religious Liberty in the States
Summary
Were the Framers Hopelessly Divided over Government and Religion?
The Case for Lack of Consensus
An Assessment of the Case for Lack of Consensus
The Case for the Existence of Consensus
Conclusion
The Early American Understanding of the Religion Clauses
Comments on the Clauses during Their Ratification
Interpretations of the Clauses by the Clergy
Interpretations of the Clauses by Other Public Figures
Commentaries on the Constitution
The Widespread Belief that the Bill of Rights Applied to the States
Jefferson and Madison's Interpretation of the Clauses
Conclusion
The Federalist Interpretation of the Religion Clauses: A Concluding Assessment

This book addresses the question whether the two religion clauses, Establishment and Free Exercise, should be understood as merely 'jurisdictional,' that is, as merely precluding Congressional action over religion without conveying any substantive understanding of religious freedom. West has done a thorough job of examining the evidence and demonstrating that the 'jurisdictional' interpretation of the religion clauses fails, regardless of what one thinks about using the due process clause of the Fourteenth Amendment to apply the Establishment Clause against the states.