What hope for the courts?

National Review, August 28, 1987 by Linda Bridges

On the matter of the First Amendment-specifically, what the Framers meant by "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"-Bradford took us through the prevailing customs in the original states at the time the Bill of Rights was being drafted. He went down the list of the states, pointing out which ones had religious establishments of one sort or another (and many of these arrangements continued well into the nineteenth century), and down the list of Framers, noting that, contrary to what we have been taught about the prevalence of Deism in that milieu, 52 out of the 55 members of the Constitutional Convention were Christians. This meant, added Russell Kirk, that "they took their primary assumptions about the human condition, consciously or unconsciously, from the Bible and, for many or most of them, from the Book of Common Prayer." They were not French philosophes: They were "assembled not in hope of creating the terrestrial paradise, but rather to contrive a tolerable, practical plan of general government designed for survival."

It would be impossible, said Evans, to mistake this background were it not for "the liberal history lesson," in line with which "the Court has undertaken to rewrite our intellectual history." Evans examined the Supreme Court's postwar contortions in First Amendment cases, starting with the Everson decision, written by Justice Black in 1947. "The establishment-of religion clause of the First Amendment," he quoted Black, "means at least this: neither a state nor the Federal Government can set up a church; neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . . No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they might adopt to teach or practice religion." This is the "animating passage," said Evans, in First Amendment cases, referred to over and over again in decisions on matters of school prayer, state aid to parochial-school students, and so forth. And yet, "What is remarkable about that statement is that it is false in every particular."

As Bradford's tour through the various states showed, the overwhelming weight of contemporaneous practice and opinion was in favor of permitting each state to decide what it wanted to do about religious establishment.

Why, then, is this clause so misunderstood? Because, Bork argued,"the political values of the non-originalists . . . are far different, not only from the values of the Constitution, but from those of the American people. The trick is to appropriate the veneration we feel for, and the obedience we give to, the actual Constitution, for non-originalist political results."

Forrest McDonald's topic-"the economic order contemplated by the Framers" -was a case study not precisely of interpretation, but of the way that framework, the Constitution, did get filled in practice. "It is unnecessary," said McDonald, "for our purposes to inquire whether the Framers of the Constitution intended to . . . bring about a new economic order. Some did in fact, and some did not. The relevant fact is that the adoption of the Constitution made such a transformation possible" -by, among other things, the contracts clause (Article I, Section 10), which "paved the way for the development of a market economy based upon the consent of contracting parties"; the provision for public debt; the provision that made the United States "the largest contiguous area of free trade" in the world; and, above all, "a limited government under law . . . which made possible almost unlimited human achievement. "