Pseudo Complexities and the First Amendment

by Carl H. Esbeck *

This winter the U. S. Supreme Court will hear argument in Mitchell v. Helms, a case involving a federal program for lending library books and educational equipment such as computers and overhead projectors to K_12 schools, including religious schools. The Supreme Court's past decisions on direct aid to religious schools have been beset with real but constitutionally irrelevant distinctions based on the form of the aid — for example, wall maps are unconstitutional but textbooks are not. The Court is surely guilty of making this First Amendment issue harder than it really is. But there are commentators as well who have an interest in keeping the law of church and state either freighted with minutia or shrouded in mystery. The matter of religion and the U. S. Constitution is far simpler than these activists and special — interest groups make it out to be. Surrounding this venerable charter with a pseudo complexity concerning religion creates confusion, and confusion begets the opportunity for distortion if not outright manipulation. Bringing clarity to the original settlement concerning church/state relations in America means turning to the basics and to the past.

Basics and a Little History

The Constitution consists of rights and structure. People (including organized groups of people) have rights. Governments do not have rights. Governments, rather, have powers and immunities. The powers of the national government are enumerated and limited, an original understanding later made explicit in the Tenth Amendment. National powers are delegated to one of three branches, shared by specified branches, denied to all three, or shared with the several states. These delegations and denials of power constitute the organizational structure of the national government.

A primary cause of discontent with the Constitution of 1787, adopted over stiff opposition by Anti-federalists, was that powers implied from the more open-ended phrases (the Necessary and Proper Clause was cited as an example) might be invoked by Congress to enact legislation that trammeled on individual rights. The Constitution's foremost architect, James Madison, acknowledged as much in a speech before the House of Representatives. Introducing his draft of a Bill of Rights on June 8, 1789, Madison described its purpose as having "the great object . . . to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act." The Federalists gave little resistance to this enterprise because their position all along had been that the national government was not, in the first instance, delegated such powers as to be able to interfere with fundamental rights.

In late September of 1789, a resolution listing twelve articles of amendment was settled on by the House and Senate and sent to the states along with a preamble explaining the submission as engendered because "conventions of a number of states had . . . expressed a desire, in order to prevent misconstruction or abuse of powers, that further declaratory and restrictive clauses should be added." The third of these articles contained the now familiar passage, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Only the third through the twelfth articles received the necessary approval by three-quarters of the states; thus the third was denominated the "First Amendment." The ten successful amendments, popularly referred to as the Bill of Rights, were thought to have altered the status quo very little, but they did calm the fears of many while serving as a useful hedge against possible future encroachments.

A Check On Government

A useful principle that flows from the foregoing is that the Bill of Rights limited the power of government under the Constitution, while vesting no new powers therein. The principle has ready application in sorting through some of the present-day pseudo complexities. For example, it is often said that the First Amendment guarantees a "freedom from religion." The claim has a surface plausibility, at least if one of the purposes of the First Amendment is envisioned as holding religion in check. But the amendment's task is to limit government, not to restrain believers, churches, or religion in general. Thus the role of the First Amendment is not to protect the nonreligious from the religious. Nor is it to protect minority religions from majority religions. Nor is it to protect government from the churches. The amendment is a check on government and government alone. Accordingly, the amendment guarantees a "freedom from religion" only in the sense that it is a restraint on what government may do by way of appropriating religious symbols and authority and using them to serve the aims of state.

Clauses In Conflict

Another pseudo complexity is the oft-repeated claim that there is a "tension" between the religion clauses of the First Amendment. Indeed, the current practice in the courts is to regard the government's duty to comply with the establishment clause as a "compelling interest" overriding the free exercise clause. This makes no sense. One could just as easily — and as just arbitrarily — assume that the duty to comply with the free exercise clause overrides no-establishment. Arguing a clash-of-the-clauses is to suppose the improbable: the Framers drafted an amendment with two fundamental guarantees side-by-side pulling in opposite directions.

This "tension" sophistry is inconsistent with the First Amendment's text, for neither clause states that it has primacy over the other. The clauses-in-conflict contention (uncritically repeated by courts and commentators alike) is dangerous, for whenever there is a conflict between two legal rules the courts are invariably called upon to use "broad discretion" and to "balance" one clause against the other. But there is no principled basis on which to create a sliding scale of constitutional values, with free exercise less "valuable" than no-establishment or vice versa. The judiciary, which is not so much hostile to religion as it is ignorant of it, will more often than not "balance" matters in a way that either trivializes or privatizes matters of faith.

We have seen that neither the free exercise nor establishment clause vested new powers in Congress (or the Executive or Judiciary, for that matter). Just the opposite was the case: each was a qualification on powers previously delegated to the government. It is logically impossible for one clause to clash with another if the purpose of both is to negate the government's power. To be sure, the clauses can overlap and thus compliment one another, but two carve-outs of power can never conflict.

A False Symmetry

A new and very promising construction of the establishment clause is the neutrality principle, also characterized in the literature as a rule of "evenhandedness," "equal treatment," or "nondiscrimination." The principle is currently favored by religious-liberty advocacy groups representing traditional Catholics, evangelicals, and Orthodox Jews. In the main, it is also the principle behind the Supreme Court's most recent pronouncements on the establishment clause, Rosenberger v. Rector and Visitors of the University of