Thomas Jefferson did not help draft or ratify the First Amendment, but one argument for favoring his views over those of a Roger Sherman or an Oliver Ellsworth when investigating the “generating history” of the Constitution’s religion clauses is that Jefferson was more important than most Founders. By that measure, investigators of that history ought not to ignore George Washington. Nor shall this series on participants in the Founding-era debates over religious liberty and church-state relations.
In his magisterial Separation of Church and State (2002), Philip Hamburger demonstrates that anti-Catholic animus contributed significantly to the post-Civil War movement to separate church and state. In the 19th century, this separation was usually between states and “sectarian” Catholic institutions and programs. “Non-sectarian” Protestant institutions and programs were largely exempt.
At the national level, the most notable manifestation of this anti-Catholic animus was the constitutional amendment proposed by Representative James Blaine (R-Maine) to prevent, among other things, public funding of schools “under the control of any religious sect.” Proposed in 1875, the amendment passed overwhelmingly in the House but did not receive the necessary two-thirds majority in the Senate. However, many states soon amended their constitutions to include similar amendments. Missouri did so in the same year that Blaine’s Amendment failed in the Senate.
Far too many jurists and scholars treat the American Founding as if it began and ended with the words and deeds of only a few prominent men. There are a host of problems with this tendency to simplify, not the least of which is that it leaves by the wayside some interesting individuals who had a profound influence on key documents even though their accomplishments were not sufficient to warrant their elevation to the status of “famous Founder.” Oliver Ellsworth, coauthor of the Connecticut Compromise, architect of the Judiciary Act of 1789, and James Madison’s senatorial counterpart on the conference…
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.