In 1775, a 36-year-old named Patrick Henry swung the balance of the Second Virginia Convention with these words:
Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!
This impassioned statement, with its famous concluding phrase, convinced the delegates to commit troops to the War of Independence. Henry dominates the American imagination as a fiery orator and champion of independence.
Oregon’s Governor has said she will sign legislation that will require insurance companies (with one exception) to provide their beneficiaries, at no cost, and for any reason, abortions and contraceptive drugs that can be abortifacients. California has a similar law. Unlike California’s law, churches and religious organizations that object to abortion and/or contraception are exempt, but there is no protection for business owners who desire to use any insurance company other than Providence Health Plans (the one faith-based insurance company that was exempted). The Oregon legislation also expands state funding to pay for abortions for citizens and non-citizens who do not have private insurance.
Scholars regularly assert that America’s Founders were deists who desired the strict separation of church and state.
Frank Lambert, for example, writes that “the significance of the Enlightenment and Deism for the birth of the American republic, and especially the relationship between church and state within it, can hardly be overstated.” Similarly, his fellow historian Richard Hughes claims “most of the American founders embraced some form of Deism, not historically orthodox Christianity.” Although many more examples could be given, I’ll close by quoting law professor Geoffrey R. Stone, who contends that “deistic beliefs played a central role in the framing of the American republic . . . . [The] founding generation viewed religion, and particularly religion’s relation to government, through an Enlightenment lens that was deeply skeptical of orthodox Christianity.”
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…
Connecticut’s Roger Sherman was the only Founder to help draft and sign the Declaration and Resolves (1774), the Articles of Association (1774), the Declaration of American Independence (1776), the Articles of Confederation (1777, 1778), and the U.S. Constitution (1787). As a member of the first federal Congress, he played an influential role in drafting the First Amendment.
Yet when Supreme Court justices have turned to history to interpret the Establishment Clause, they have referenced Sherman only three times. By way of contrast, Thomas Jefferson, a man who played no role in drafting or ratifying the amendment, is referenced 112 times.
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.