Tyler Broker (Privacy and Free Expression Fellow, University of Arizona James E. Rogers College of Law) has posted Church And State Originalism (University of Memphis Law Review, forthcoming) (34 pages) on SSRN. Here is the abstract:
This work focuses on the religious separation clauses contained within the First Amendment and offers both a descriptive claim that current doctrine is far too narrow, and a normative claim that a broader Madisonian framework of free conscience religious liberty is superior to current doctrine.
And from the introduction (footnotes omitted):
An intellectual distinction between “civil” and “spiritual” authority long preceded the enactment of the United States Constitution. It was not until ratification however, that the first country in recorded history with no established religion arose into actual practice. The religious separation clauses contained within the First Amendment are also unique in that, unlike most other historic provisions debated during ratification, battle lines based on political affiliation, educational background, or religious association did not develop in Congress over the issue. The reason for unity behind such an unprecedented commitment was most Founders viewed the principle behind separation, the so-called “liberty of conscience”, as an unalienable right necessary to the Lockean commitment to life, liberty, and property.
How the abstract principle of free conscience was expressed in practice depended, of course, on the concerns, customs, and institutions of the time. At the time of the Founding, two chief concerns of the citizenry were limitations on the power of the federal government in general and limitations on the government’s power to tax in particular. The antitax rhetoric of the revolution produced “from the moment of independence from England in 1776 . . . formal protests with state legislatures around the country, demanding to be freed of the responsibility to pay taxes to support churches from whose doctrines they dissented.” Such widespread responses demonstrated an obvious practical reality for the Founders; mandatory religious taxation was problematic in such a religiously diverse country. There were still some at the state level however, who remained committed to government funding of churches. The desire to keep tax assessments for religious purposes at the state level led to informative debates regarding the fundamental elements of religious separation.
The most famous and influential of these debates occurred in pre-Constitution Virginia where a bill was proposed that would have permitted tax assessments for churches, but afforded citizens complete individual autonomy to select which church could receive the funds. The bill also included specific exemptions for Quakers and Mennonites who belonged to churches without clergy. Along with the specific exemptions, all undesignated funds were to be directed to the state general fund for developing “seminaries of learning” that were not required by the text of bill to be religious in nature in order to receive funding.
In the view of the bill’s proponents, including founders such as Patrick Henry, the absence of continued public funding of religion at the state level was “fatal to the Strength and Stability of civil government.” However, because the proposed bill “would have no Sect or Denomination of Christians privileged to encroach upon the rights of another” and granted the individual total autonomy to direct the funds, its proponents argued they were offering “a General and equal contribution of the whole state upon the most equitable footing that is possible to place it.” To James Madison however, this nonpreferential, neutrally applied, and individual choice assessment framework proposed in Virginia remained impermissibly coercive to freedom of conscience.
…
Madison ultimately succeeded in defeating the religious assessment bill in Virginia. However, Madison’s victory in establishing his own framework of religious freedom of conscience was, at first, limited to the state of Virginia. In fact, many other states adopted the type of framework Madison successfully rejected and kept such systems in place well after ratification of the federal constitution. Although not every state legislature adopted Madison’s exact structure, during ratification of the federal Constitution Madison was successful in persuading Congress to embrace his principled version of freedom of conscience that he had successfully passed in Virginia….
… To understand how the freedom of conscience principles championed by Madison in Virginia became the fundamental American precepts of religious separation in the Constitution, one need only examine the history and plain language of the religious separation clauses contained within the First Amendment.
Posted at 6:09 AM