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The Structure of the Religious Liberty Guarantee

Published online by Cambridge University Press:  24 April 2015

Robert A. Destro
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Extract

I met John Noonan in the office of the late David W. Louisell in January, 1974, and remember to this day just how awestruck I was at being in the company of such great scholars. I find myself even more humbled as I pen this essay in honor of the birthday of my esteemed teacher, advisor, and friend. To be invited to join the festschrift is an extraordinary honor for a former student but it is also an immense challenge. The task of writing a coherent essay for one's professor usually ends upon graduation from law school. To write one in honor of a professor (and a favorite one at that) is an altogether new experience.

Because I write to pay tribute to a man whose manner of thinking has indelibly shaped the manner in which I teach my own students, my goal is to write an essay that builds upon the work he has done in the field of law and religion. And if, in the final analysis, it meets that standard, it will do so, in part, because of John Noonan's efforts as a teacher, scholar and role model.

Type
Symposium in Honor of Judge John T. Noonan, Jr.
Information
Journal of Law and Religion , Volume 11 , Issue 1 , February 1994 , pp. 355 - 409
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1994

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References

1. The phrase is borrowed from Louis Lusky. Lusky, Louis, By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution (Michie, 1975)Google Scholar.

2. US Const Arts I, IV, V.

3. See US Const Art I, § 8, cl (1-18), §§ 9-10; Art IV.

4. US Const Art VI, cl 3.

5. US Const Amend I (1791).

6. US Const Amend V (1791).

7. US Const Amends IX, X (1791).

8. 5 US (1 Cranch) 137, 177 (1803).

9. During the debate of the House of Representatives, sitting as a Committee of the Whole on August 15, 1789 Congressman Daniel Carroll of Maryland is quoted as having noted that “the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand”. Antieau, Chester J., Downey, Arthur T. & Roberts, Edward C., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses 126 (Bruce, 1964)Google Scholar, quoting Annals of Congress I.

10. It has long been held that the Constitution is not the creature of the States, but of the People themselves, acting in Convention; for it was by the action of the Constitutional Convention and the State ratifying conventions that the delegation and reservation of powers and rights obtains its binding force. See US Const, Preamble, Art V; McCulloch v Maryland, 17 US (4 Wheat) 316, 403-06 (1819).

11. The Preamble to the ABAs Model Rules of Professional Responsibility states that the Model Rules define, for lawyers, “their relationship to our legal system.” ABA Model Rules of Professional Responsibility, Preamble [12] in Dzienkowski, John S., ed, Selected Statutes, Rules and Standards on the Legal Profession at 7 (West, 1993)Google Scholar.

12. See Presser, Stephen B., The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist Jurisprudence at 6–7 (Academic Press, 1991)Google Scholar. Professor Presser suggests that the task is to determine the “plain meaning” of the document. Unlike theories of “original intent” which attempt to divine (usually unsuccessfully) the legislative intent of the framers on given issues, compare Powell, H. Jefferson, The Original Understanding of Original Intent, 98 Harv L Rev 885 (1985)CrossRefGoogle Scholar, Presser argues that it is

necessary for us to try to determine the political, linguistic, or cultural ‘structure’ which the Constitution implied, on which the drafters and first interpreters of the document would have been expected to rely, and on which their claims for an objective interpretation of the Constitution would have been staked.

13. Among these are: the importance of a clearly-articulated vision of religious liberty in the formulation of public policy, the debate among advocates for religious liberty which has followed in the wake of the Supreme Court's decision in Employment Division v Smith, 494 US 872 (1990), and the substantive vision of religious liberty which can be derived from the Court's holdings.

14. 494 US 872 (1990).

15. At this point in the inquiry, it is not necessary to determine either the substantive content of the right protected, or the manner in which it should be characterized for purposes of constitutional analysis. The initial focus is on the text of the amended Constitution itself. This fact is underscored most forcefully by the Test Clause of Article VI. At the time of the Constitutional Convention, all of the States required religious tests for public office. The decision by the Convention that the federal government should have no religiously-based conditions for office-holding was, therefore, a significant advance for religious liberty at the federal level. Warren, Charles, The Making of the Constitution at 425–26 (Little Brown & Co, 1937)Google Scholar. The Test Clause is discussed at greater length in the text accompanying notes 36 to 62.

16. US Const Art VI, cl 3.

17. The dissenting members of the Pennsylvania ratifying convention were perhaps the most explicit on this point. Twenty-one of the twenty-three members of the minority signed a dissenting address which appeared in the Pennsylvania Packet and Daily Advertiser on December 18, 1787, six days after Pennsylvania's convention had voted (46-23) to ratify. The first of its “propositions to the convention” reads as follows:

1. The right of conscience shall be held inviolable; and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the preservation of liberty in matters of religion.

“The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents” (December 18, 1787) (attributed to Samuel Bryan, the author of “Centinel”), in Ketcham, Ralph, ed, The Anti-Federalist Papers and the Constitutional Convention Debates at 239 (Mentor, 1986)Google Scholar. See also notes 157 to 186 and accompanying text.

18. See McCulloch v Maryland, 17 US (4 Wheat) 316 (1819). The debate over whether the Congress had the authority to “establish” a national religion or church is not unlike the question of whether Congress had the power to establish the Bank of the United States. Congressional power was given broad berth in McCulloch, where the Court held that Congress “would have some choice of means[, and] might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional.” Id, 17 US at 419. Given the federalist reading of the Constitution, both at the time of the Convention and in practice once it had been ratified, there is (or should be) little doubt that a plausible case could be (and was) made by the antifederalists that the prohibition with respect to matters of religion needed to be explicit.

19. See Amar, Akhil Reed, The Bill of Rights and the Fourteenth Amendment, 101 Yale L J 1193, 1198–1203 (1992)CrossRefGoogle Scholar [(discussing the relationship between the general prohibitions of Art I, § 9, and the specific prohibitions of the Art I, § 10 (binding the States), and the First Amendment (binding Congress alone)] [hereafter, Amar, The Fourteenth Amendment]; Amar, Akhil Reed, The Bill of Rights as a Constitution, 100 Yale L J 1131, 1138-1141, 1146–62 (1991)CrossRefGoogle Scholar (discussing the Federalist and Anti-Federalist critiques of the Constitution, as well as the federalism components of the proposals which evolved into the First Amendment as we know it today) [hereafter, Amar, The Bill of Rights].

This reading of the enumerated powers is also supported by the lengthy list of enactments passed by the First and subsequent Congresses dealing with the subject of religion, including the Northwest ordinance of 1787, Statutes of 1789, c 8 (August 7, 1789) (“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.”), and religious exemptions from laws of general applicability. See, for example 2 Stat 194 (adopting Virginia tax exemption for churches in a taxing plan for the County of Alexandria); Act of July 9, 1798, 8, 1 Stat 585 (requiring that all lands and dwellings in the federal district be appraised for tax purposes of federal taxes notwithstanding their exemption under state law); Act of July 14, 1798, 2, 1 Stat 598; Act of August 2, 1813, 4, 3 Stat 71; Act of January 9, 1815, 5, 3 Stat 166 (direct taxes levied by Congress which expressly or impliedly incorporated state exemptions for religious organizations). All of these are laws of general applicability and were adopted by Congress in a field clearly committed to it by the text of the Constitution. See also 6 Stat 116 (1813) and 6 Stat 162 (1816) (exempting plates for printing Bibles from import duties); 6 Stat 346 (1826) (same; exempting church vestments, furniture and paintings); 6 Stat 675 (1834) (same; exempting church bells); 12 Stat 717, c74 (37th Cong. 3d Sess 1863) (“exempting from duty [printing] plate belonging to religious societies”).

20. As used here, the phrase “limited political competence” is intended to convey the same sort of conceptual limitation on the policy-making function as the phrase “limited subject matter jurisdiction” does in the context of judicial decision-making. As applied to the federal government, the phrase refers to limits on the authority of federal officials to make, implement, enforce or interpret federal statutory and constitutional law which are derived either from the limited scope of the power granted, or explicit limits, such as the First Amendment. See United States v Lopez, — US —, 115 S Ct 1624 (1995); Oregon v Mitchell, 400 US 112 (1970) (opinion of Harlan). Justice Scalia's dissenting opinion in Hartford Fire Insurance Co. v California, 113 S Ct 2891, 2918 (1993) drew the distinction nicely when he stated, among other things, that jurisdiction to prescribe (such as to make the rule of decision) is “quite a separate matter from jurisdiction to adjudicate” as defined in § 231 of the Restatement of Foreign Relations. Compare Restatement of the Law (3d) Foreign Relations Law of The United States § 401 (Categories Of Jurisdiction) [defining and distinguishing “jurisdiction to prescribe,” “jurisdiction to adjudicate” and “jurisdiction to enforce”].

21. McCulloch v Maryland, 17 US (4 Wheat) 316, 407 (1819) (emphasis added).

22. Federalist 78 (Hamilton) in Rossiter, Clinton, ed, The Federalist Papers 467 (Mentor, 1961)Google Scholar.

23. Id.

24. Id at 467-68. The Preamble, US Const, Preamble (1787), the Supremacy Clause, US Const Art VI, cl 3 (1787), and the amendatory powers contained in Article V, US Const Art V (1787), are among the express affirmations of the sovereignty of the people.

25. Federalist 78 (Hamilton) at 468 (cited in note 22).

26. Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803).

27. The late Justice Robert Jackson coined the now-famous phrase: “We are not final because we are infallible, but we are infallible only because we are final.” Brown v Allen, 344 US 443, 540 (1953) (opinion concurring in result). The use of such imagery to describe the Court's work leads to quite a few misunderstandings concerning the nature of power in the federal system, and how, if at all, it is shared among all those who participate in its governance, including “the People”. See Louis Fisher (cited in note 29).

28. For an extended, and illuminating, discussion of the rule of stare decisis, see Planned Parenthood of Southeastern Pennsylvania v Casey, 112 S Ct 2791 (1992). See also Cooper, Charles L., Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L Rev 401 (1988)Google Scholar; Douglas, William O., Stare Decisis, 49 Colum L Rev 735 (1949)CrossRefGoogle Scholar.

29. See generally Fisher, Louis, The Curious Belief in Judicial Supremacy, 25 Suffolk L Rev 85 (1991)Google Scholar.

30. US Const Art VI, cl 2 (Supremacy Clause).

31. Compare Amar, 101 Yale L J at 1131-33 (cited in note 19) with Gutman, Howard, Academic Determinism: The Division of the Bill of Rights, 54 S Cal L Rev 295, 328-31, 379–81 (1981)Google Scholar.

32. Nearly thirty years ago, Justice William Brennan described the “logical interrelationship between the Establishment and Free Exercise Clauses” as a “paradox central to our scheme of liberty.” School Dist. of Abington Township v Schempp, 374 US 203, 247, 230, 231 (Brennan concurring). In Texas Monthly v Bullock, Justices Blackmun and O'Connor agreed with Justice Scalia's observation that the Free Exercise and Establishment Clauses often appear like Scylla and Charybdis, leaving a State little room to maneuver between them,” and added their own impression that “The Press Clause adds yet a third hazard to a State's safe passage through the legislative waters.… We in the judiciary must be wary of interpreting these three constitutional Clauses in a manner that negates the legislative role altogether”. Texas Monthly v Bullock, 489 US 1, 28 (Blackmun and O'Connor concurring in the judgment).

33. See Torcaso v Watkins, 367 US 488 (1961). See generally Bradley, Gerard, The No Religious Test Clause and the Constitution of Religious Liberty: A Machine that Has Gone of Itself, 37 Case W Res L Rev 674 (1987)Google Scholar; McConnell, Michael W., The Origins and Historical Understanding of Free Exercise of Religion 103 Harv L Rev 1410 (1990)CrossRefGoogle Scholar. Professor Bradley notes that “one outstanding example of article VI neglect is Professor Tribe's relegation of his article VI discussion to a single footnote. He observes that it is ‘now of little independent significance.’ That's it.” Bradley at 677-78 & n 19, citing Tribe, Laurence, American Constitutional Law 813 n 1 (Foundation Press, 1978)Google Scholar. In the second edition, Professor Tribe takes the same position. Tribe, Laurence, American Constitutional Law 1155 n 1 (Foundation Press, 2d ed, 1988)Google Scholar.

34. The Congress long exempted itself from the civil rights laws it applied to everyone else, but the first bill reported out of the 104th Congress is legislation which ends those exemptions. Congressional Accountability Act of 1995, Pub L104-1, 109 Stat 5, codified at 2 USC §§ 1301, 1302, 1317, 1351, 1361, 1381-85, 1405, 1408-15, 1438. Though House and Senate Rules forbade most forms of discrimination in employment, including discrimination on the basis of religion, there was, prior to the passage of the Accountability Act, no procedure for enforcement of these guarantees which is comparable to that afforded citizens who do not work for Congress. See Title VII of the Civil Rights Act of 1964, 42 USC § 2000e-16 (West, 1992); Civil Rights Act of 1991 § 117, PL 102-166, 105 Stat 1071 (102nd Cong 1st Sess.) Compare Davis v Passman, 442 US 228 (1979); Powell v McCormack, 395 US 486 (1969). See generally Weisberg, Jacob, “Do As IS AY,” The New Republic v 193, at 12 (11 18, 1985)Google Scholar; Rapoport, Daniel, “The Imperial Congress—Living Above the Law,” 11 National Journal at 911 (1979)Google Scholar.

35. Extensive discussion of the Ninth and Tenth Amendments is beyond the scope of this essay. It is interesting to note, however, that neither the Court nor the academy quite know what to do with either of them. Though intended as a limit on federal power, there is an extensive literature on the Ninth Amendment as a justification for expanding it. See, for example, Barnett, Randy E., ed, Symposium on Interpreting the Ninth Amendment, 64 Chi-Kent L Rev 37–268 (1988)Google Scholar; Lawrence Sager, You Can Raise the First, Hide Behind the Fourth, and Plead the Fifth, But What on Earth Can You Do With the Ninth Amendment?, Id at 239; Barnett, Randy E., ed, The Rights Retained By The People: The History And Meaning Of The Ninth Amendment (George Mason Press, 1989)Google Scholar; Black, Charles L., Decision According To Law (W. W. Norton & Co, 1981)Google Scholar. A notable exception is Professor Calvin Massey's article, The Anti-federalist Ninth Amendment and Its Implications For State Constitutional Law, 1990 Wis L Rev 1229Google Scholar. Not only is Professor Massey's thesis an interesting one, it contains an extremely useful collection of the literature. See Massey at 1229-39 & n 2 (discussing the academic literature).

The Tenth Amendment, by contrast, is conceded by the Court to provide some limit on federal authority, including its own, but the extent to which it will be exercised is not at all clear. Compare New York v United States, 505 US —, 112 S Ct 2408 (1992); South Carolina v Baker, 486 US 505 (1988); and San Antonio Metropolitan Transit Authority v Garcia, 469 US 547 (1985), with National League of Cities v Usery, 426 US 833 (1976). The United States Supreme Court did not address the Tenth Amendment issue in its recent decision in United States v Lopez, — US —, 115 S Ct 1624 (1995) (5-4 decision). Significantly, however, it did rest its holding that Congress did not possess a generalized police power on a structural analysis of the reach of the Commerce Clause. All of the opinions, save the separate dissent of Justice Stevens, address the jurisdictional question from that perspective.

36. US Const Art VI, cl 3 (emphasis added).

37. US Const Art II § 2, cl 2.

38. Id.

39. Though Professor Bradley believes that the Framers' discussions of Article VI indicate “that [it] was applicable to the entire lawmaking process, and occurred against a background of religious tests for precisely those high executive and legislative offices supposed to have been excepted by such technical distinctions[,]” neither his reading of the discussions, nor parsing of the Constitutional text, lead to a conclusion that they are “self-evident.” See Bradley, , 37 Case W Res L Rev at 718–19 (cited in note 33)Google Scholar.

The Interpretive Problem is multi-faceted, and must be divided along federal-state lines; for the power of the States to set the qualifications for members of Congress remains a hotly disputed issue. See US Term Limits Inc. v Hill, 115 S Ct 1842, 63 USLW 4113 (US May 22, 1995) (5-4 decision). See generally Gorsuch, Neil & Guzman, Michael, Will The Gentlemen Please Yield? A Defense Of The Constitutionality Of State-imposed Term Limitations, 20 Hofstra L Rev 341 (1991)Google Scholar; Cohen, Linda & Spitzer, Matthew, Term Limits in Symposium: Positive Political Theory and Public Law 80 Georgetown L J 477 (1992)Google Scholar. The power of either House of Congress to “judge… the elections, returns and qualifications of its own members,” Art I § 5, appears to allow for the possibility that such qualifications could, if either the House or Senate so chose, include some form of religious test or test oath. Neither Senators nor Representatives hold an “Office … under the United States” as that term is used in the Constitution. They are not “civil officers of the United States” subject to impeachment under Article II § 4, and may not hold such offices while serving in Congress. Art I § 5, cl 3. Legislators do, however, hold a “public Trust” as that term was understood in the late eighteenth century—that of the people of the State or district which elects them. See Lucaites, John Louis, Flexibility and Consistency in Eighteenth-Century Anglo-Whiggisnv A Case Study of the Rhetorical Dimensions of Legitimacy at 77–107 (PhD dissertation, University of Iowa, 08 1984)Google Scholar (available through U Microfilms International Dissertation Information Services, Ann Arbor, Michigan). The precise nature of this “public trust” figures prominently in the Supreme Court's recent decision in US Term Limits v Hill (cited above). The majority opinion indicates that “representatives owe primary allegiance not to the people of a State, but to the people of the Nation. As Justice Story observed, each Member of Congress is ‘an officer of the union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states.… Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people.’ 1 Story [Commentaries on the Constitution] § 627. Representatives and Senators are as much officers of the entire union as is the President.” Id at 1853 (majority opinion, per Stevens). The majority's distinction between an “officer of the United States” and an “officer of the Union”, while relevant to the distribution of power within the federal system, is not relevant to the duty imposed by the Test Clause. Compare US Term Limits at 1875 (Kennedy concurring) (recognizing “a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere.”) with id 1877 (Thomas, Scalia, O'Connor, and Rehnquist dissenting) (noting that “[t]he Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”).

40. US Const Art I § 3.

41. US Const Art II § 2, cl 3.

42. US Const Amends XII § 4 (1804); XX § 4 (1933).

43. US Const Art I § 2, cl 5.

44. US Const Amends XII (1804); XX § (1933).

45. Though there are no cases which hold that employment in the legislative branch is an “office or public Trust under the United States” under Article VI, there are two ways in which to support the conclusion made in the text. The first is statutory. Individuals who work for Congress are classified in a number of different ways for statutory purposes, see, for example, 5 USC § 2107 (defining the term “Congressional employee”), but all are engaged in “discharging … official functions] under or in connection with the United States” as that phrase is used in 5 USC § 2105 (cited in note 34). The second is by reference to the concept of “public Trust” itself. If the personal staff members of Senators, Representatives or the leadership of House and Senate are not considered to be “Congressional employees”, their close identification with the individual who employs them makes them administrators of the public Trust held by that individual.

There is a practical side to this question. Though it appears that the practice is less widespread today, religious discrimination in Senate and Congressional offices has been practiced openly for years. “In 1974 the Fort Worth Star-Telegram created a minor furor when it reported that the House placement office regularly removed stipulations like ‘white only’ and ‘attractive, smart, young, and no Catholics …’ from hiring orders sent by congressional offices.” Weisberg, Jacob, Do As ISAY, The New Republic v 193, at 12 (11 18, 1985)Google Scholar. To the extent that the Test Clause itself protects Congressional employees from discrimination on the basis of religion, the civil rights exemptions Congress provided for itself were on flimsy ground indeed. (See note 34).

46. US Const Amend XVII (1913).

47. US Const Art I § 3, cl 1.

48. US Const Amend XVII cl 2 (1913).

49. US Const Art II § 1, cl 2.

50. US Const Art I § 2, cl 1. Though presidential electors act by the authority of the State and are not federal officials, Ray v Blair, 343 US 214, 224-225 (1952); In re Green, 134 US 377, 379 (1890), Article II's incompatibility clause, US Const Art II § 1, cl 2, recognizes not only the federal nature of their function, compare Oregon v Mitchell, 400 US 112 (1970), but also that the public trust which reposes in that office is incompatible with political, appointive or positions of “profit” under the United States. See generally 5 USC § 2105 (West, 1992). See also Reservists Committee to Stop War v Laird, 323 F Supp 833 (DC 1971), aff'd 495 F 2d 1075, 162 US App DC 19, rev'd on other grounds, 418 US 208.

51. Professor Bradley notes that just

as in the voter qualifications actually left to state law by article I, the Framers could have cut into the comparatively ‘illiberal’ state orders had they wanted to. Put differently and largely as a matter of legal analysis and not political wisdom, an incision at this point could certainly have been justified as a necessary, limited protection of the federal regime, and not as a wholesale invasion of state autonomy. This reticence and the overall sparseness of the record at least plausibly confirm Pinckney's proposal as a matter of observation, both about the completed legal framework and the Framers' intentions: Congress should not regulate the ‘subject of religion.’”

Bradley, , 37 Cas W Res L Rev at 693 (cited in note 33)Google Scholar. See also text at notes 157 to 175.

For an informative discussion of Federalist and Anti-Federalist views concerning the allocation of legislative jurisdiction, including both jurisdiction to prescribe and enforce, see generally Prakash, Saikrishna Bangalore, Field Office Federalism 79 Va L Rev 1957 (1993)CrossRefGoogle Scholar.

52. Torpey, William G., Judicial Doctrines of Religious Rights in America at 16 (UNC Press, 1948)Google Scholar, quoting Cobb, Sanford H., The Rise of Religious Liberty in America at 501 (MacMillan, 1902)Google Scholar (compiling statistics “relative to religious qualifications for officeholders in the first thirteen state constitutions.”)

53. McDaniel v Paty, 435 US 618 (1978), rev'g, Paty v McDaniel, 547 SW2d 897 (Tenn, 1977).

54. See Bradley, , 37 Cas W Res L Rev at 709 (cited in note 33)Google Scholar quoting IV Elliot's Debates on the Federal Constitution at 196 (speech of Iredell, James)Google Scholar. This is a significant point, especially in light of the current Court's understanding of the Establishment Clause. See note 62. It seems to have been forgotten in contemporary church-state jurisprudence that an “establishment of religion” was a many faceted enterprise which included, in addition to the preferential treatment of and support for identifiable religious groups, there were also legal mechanisms designed to enforce the political and civil subordination of the disfavored religions and their adherents. Among these were test oaths, requirements of church membership and worship, and other civil disabilities. See generally Blakely, William A., ed. & The Religious Liberty Ass'n, American State Papers and Related Documents on Freedom in Religion 17–92 (Review and Herald, 1949)Google Scholar.

55. Bradley, , 37 Case W Res L Rev at 709 (Cited in note 33)Google Scholar.

56. Id at 694-711.

57. Federalist 52, 57 (Madison), (cited in note 22). See generally Federalist 10, 51 (Madison) (cited in note 22). Professor Bradley writes that “[t]he no-test clause was sold as a constitutionalized Golden Rule with a Machiavellian spin to it: ‘Constrain yourself as you would constrain others.’” Madison's views on the role factions should play in the protection of all forms of liberty are thus clearly in evidence here. Bradley, , 37 Cas W Res L Rev at 702–707 (cited in note 33)Google Scholar. The importance of Madison's views respecting the role of politics in disputes over the meaning of religious liberty is discussed in the text accompanying notes 157 to 183.

58. This statement presumes action by those exercising governmental authority derived from the federal constitution. At the time of the Convention in 1787, “ ‘non-Christians’ could not hold public office anywhere in the states, except perhaps in Virginia, and there is no record of that actually occurring[, and] Catholics[,]… the only non-Protestant Christians around… were clearly eligible in Pennsylvania, Delaware and Maryland … Elsewhere only Protestants could hold office.” Bradley, , 37 Case W Res L Rev at 681–87 (cited in note 33)Google Scholar (emphasis in the original).

59. There are only a few sources which shed light on the content of the phrase “any Office or public Trust under the United States.” The first part—“office … under the United States”—is relatively clear given the language of Article I, § 6 (Incompatibility Clause) and Art, II, §§ 1, 2. It is arguable, though not by any means settled, that all persons who hold elective offices, federal appointments, or who perform a federal function of any sort, including members of the Armed Services and presidential Electors, are protected by the Test Clause. See 5 USC § 2104 (defining as an “officer” all Justices and judges, as well as appointees of the President, the courts, heads of executive branch and military departments and agencies, or any other person “engaged in the performance of a Federal function under authority of law or an Executive act”). This would arguably include federal civil servants; for even if they are not “inferior officers” under Article II, Congress has explicitly recognized that they are indeed officers, 5 USC § 2104, and “individuals] holding an office of trust or profit or discharging an official function under or in connection with the United States.” See 5 USC § 2105 (West 1992) (“employee” includes “officers” and civil service appointees).

The more interesting question is what constitutes a “public Trust under the United States.” The phrase appears to be broader than the term “office,” a construction supported by the phrase “office of trust or profit under the United States” which appears in the incompatibility clause of Article II, as well as by Congress' own distinction between individuals “holding an office of trust or profit” and those who may be “discharging an official function under or in connection with the United States”. 5 USC § 2105(d) (emphasis added).

Federal case law sheds very little light on this question, but there are a number of State cases construing the phrases “office or public Trust” and “Office of Trust or Profit” which do provide some guidance on the meaning of the term “office of public trust or profit”. Those terms are commonly found in the incompatibility provisions of state constitutions. See, for example, Commonwealth of Pennsylvania v Dallas, 4 US (4 Dall) 229 (1801) (US Attorney and Recorder of City of Philadelphia); Begich v Jefferson, 441 P 2d 27 (Alaska 1968) (position as state or federal legislator is incompatible with superintendent or teaching positions in state operated school districts); Commonwealth ex rel Hancock v Clark, 506 S W2d 503 (Ky, 1974) (postmaster of a fourth class post office was not exercising an office of trust or profit under the United States ineligible to hold or exercise any office of trust or profit under the Kentucky Constitution and so could serve as a member of a county school board); Brown v Lillard, 814 P2d 1040 (Okla 1991) [position of state judge (an office) is incompatible with compensated full or part-time teaching at a state institution (a position of “profit”)]; State v Turner, 168 Wis 170, 169 NW 304 (1918) (acceptance by circuit court commissioner of the office of United States commissioner operated to vacate ipso facto his office of circuit court commissioner under Wisconsin Const, Art 13, § 3). See also Maxey v Bell, 41 Ga 183 (1870) (holding that the office of guardian is a “public trust” under the Georgia Constitution, and thus subject to the rule that religious tests may not be required). For a more generalized discussion of the term “public Trust” as the term was commonly used in the Eighteenth Century, see Lucaites, Flexibility and Consistency (cited in note 39).

Given the advent of the modern administrative state and laws which require federal contractors and grantees of federal funding to comply with federal law in their dealings with the public, see, for example, 42 USC § 2000d (Title VI of the Civil Rights Act of 1964); Civil Rights Restoration Act of 1987, Pub L 100-259, Mar 22, 1988, 102 Stat 28, 20 USC §§ 1681 note, 1687, 1687 notes, 1688, 1688 note; 29 USC §§ 706, 794; 42 USC §§ 2000d-4a, 6107, it is arguable that the explicit non-discrimination norm of the Test Clause applies not only to federal employment, but also to federal contracting and grant-eligibility considerations as well. Compare Bowen v Kendrick, 487 US 589 (1987); Walz v Tax Comm'n, 397 US 664 (1970) with Bob Jones University v United States, 461 US 574 (1983).

There is not much federal case law on the topic, but that which does exist seems to support a broad reading of the term. The Claims Court has stated that “[t]ransactions relating to the expenditure of public funds require the highest degree of public trust and an impeccable standard of conduct.” Refine Construction Co. v United States, 12 Cl Ct 56, 63 (1987) (government contracts). Environmental Protection Agency grants for the construction of certain public works projects also constitute a public trust. See 40 CFR §§ 30.120, 33.300; Town of Fallsburg v United States, 22 Cl Ct 633, 641 (1991). And finally, the grantee of broadcasting license is considered to be a public trustee, who must serve the broad goals of the public interest convenience and necessity. Red Lion Broadcasting v. FCC, 395 US 367, 383 (1969); Office of Communication of the United Church of Christ v FCC, 707 F2d 1413, 1427-28 (DC Cir 1983). This question is discussed at greater length in a forthcoming article.

60. See McDaniel v Paty, 435 US 618 (1978); Torcaso v Watkins, 367 US 488 (1961).

61. “Torcaso, if it is to be grasped at all, affects an “incorporation” of article VI as much as if the Court expressly said so.” Bradley, 37 Case W Res L Rev at 718 (cited in note 33).

62. The point here is that intentional discrimination on the basis of religion is problematic not only under the First Amendment, but also under the Test, Fourteenth Amendment Privileges and Immunities, Citizenship, and Equal Protection Clauses as well. The Court has not been entirely consistent on this point. Compare, for example, 113 S Ct 2217 (1993) (indicating that discrimination is forbidden) with State v Davis, 504 NW2d 767 (Minn, 1993) cert den; sub nom Davis v Minnesota, 114 SCt 2120 (permitting religion-based peremptory strikes in jury selection).

63. For example, US Const Art I § 7, 8; Art IV § 3 (1787). See The Federalist, 32 (Hamilton), (cited in note 22).

64. See generally Snee, Joseph M., Religious Disestablishment and the Fourteenth Amendment, 1954 Wash U L Q 371Google Scholar; Kruse, Clifton B., The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L J 65 (1962)Google Scholar; Giannella, Donald A., Religious Liberty, Nonestablishment and Doctrinal Development: Part II. The Nonestablishment Principle, 81 Harv L Rev 513 (1968)CrossRefGoogle Scholar; Leitzau, William K., Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 De Paul L Rev 1191 (1990)Google Scholar; Akhil Reed Amar, 100 Yale L J at 1157–62 (cited in note 19)Google Scholar.

65. See Larsen v Valente, 456 US 228 (1982). Compare Washington v Davis, 426 US 229 (1976). See generally Giannella, Donald, Religious Liberty, Nonestablishment and Doctrinal Development: Part I. The Religious Liberty Guarantee, 80 Harv L Rev 1381 (1967)CrossRefGoogle Scholar. The question of whether or not the Free Exercise Clause operates to grant an exception for religious belief or practice burdened by otherwise constitutional laws of general applicability was answered in the negative in Employment Division v Smith, 494 US 872 (1990). Arguing from historical materials, Professor Michael McConnell has argued that the Court's conclusion is in error. McConnell, Michael, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv L Rev 1409 (1990)CrossRefGoogle Scholar. Professors Gerard Bradley and Phillip Hamburger argue that McConnell is wrong. Bradley, Gerard V., Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L Rev 245 (1991)Google Scholar; Hamburger, Phillip A., A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo Wash L Rev 915 (1992)Google Scholar.

Federal laws which relieve specific burdens on religion, see, for example, 42 USC §§ 2000e(j), 2000e-2(e), or which encourage it as a general matter, see, for example, IRC § 501(c)(3), raise a number of interpretive questions which are beyond the scope of the present essay. The application of structural analysis to such questions will be addressed in a forthcoming essay.

66. Patterson v Colorado, 205 US 454, 464 (1907) (Harlan dissenting).

67. Amar, 101 Yale L J at 1274 (cited in note 19).

68. Congress makes “laws” only through the constitutionally ordained mechanism of bicameralism and presentment. Immigration and Naturalization Service v Chadha, 462 US 919 (1983).

69. US Const Art II, § 1, cl 8.

70. Art I, § 7, cl 3. Compare Andrew Jackson, Veto Message of July 10, 1832, relating to the Bank of the United States, Richardson, James J., ed, 3 Messages and Papers of the Presidents 1139 (Bureau of National Literature, Inc., 1896)Google Scholar with Daniel Webster, Address of July 11, 1832 Concerning the Veto of the Re-Chartering of the Second Bank of the United States, Whipple, Edwin P., ed, The Great Speeches and Orations of Daniel Webster (Little Brown & Co., 1889)Google Scholar.

71. US Const Art II, § 3, cl 2.

72. A discussion of the President's power to decline to enforce laws which have either become law without signature, Art I, § 7, cl 2, or which have been signed into law with “reservations,” but without an objection having been made in proper form is beyond the scope of this essay. All such refusals are, of course, subject to judicial review.

73. US Const Art II § 1, cl 8. See Youngstown Sheet & Tube Co. v Sawyer, 343 US 579 (1952).

74. The first line of attack against a presidential directive restricting First Amendment rights would be that it is not authorized by law. If it is authorized, the focus is properly on the right of Congress to provide the authorization. If not, the action is valid only if the President has other constitutional authority to act. See Youngstown Sheet & Tube Co. v Sawyer, 343 US at 635-39 (Jackson concurring).

75. This, of course, is what Justice Jackson described as the “zone of twilight in which [the President] and Congress may have concurrent authority, or in which its distribution is uncertain.” Youngstown Sheet & Tube Co. v Sawyer, 343 US at 637 (Jackson concurring).

76. Justice Jackson noted further that “Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown Sheet & Tube Co. v Sawyer, 343 US at 637-638 (Jackson concurring).

77. Id, 343 US at 637 (Jackson concurring).

78. Federalist, 69 (Hamilton) at 422 (cited in note 22).

79. US Const Art I, § 1 and § 8, cl 14. Compare Goldman v Weinberger, 475 US 503 (1986) with 10 USC § 774, PL 100-180, Div A, tit V, § 508(A)(2), December 4, 1987, 101 Stat 1086 (restricting the scope of command discretion to forbid the wearing of religious symbols by military personnel). See generally United States Department of Defense, Joint Service Study on Religious Matters: Report of the Joint Study Group on Religious Practice (03, 1985)Google Scholar. See also Katcoffv Marsh, 755 F2d 223 (2d Cir, 1985) (rejecting a challenge to the Congressional practice of authorizing military chaplains).

80. The question of whether or not the Chief Executive (or, perhaps more importantly, the Presidential staff) respects the prohibition is another matter entirely. Compare note 85.

81. The power to conduct foreign policy is often differentiated by courts both from the power to make it, see, for example, Johnson v Eisentrager, 339 US 763 (1950); Greenham Women Against Cruise Missiles v Reagan, 755 F2d 34 (2d Cir 1985) (per curiam); Dickson v Ford, 521 F2d 234 (5th Cir 1975), and the power to implement policies enacted by the Congress, including foreign assistance. There is broad agreement that the exercise of the former are inherently political questions for which exist “a ‘textually demonstrable constitutional commitment of the issue to a coordinate political department.’ “ Klinghoffer v S.N.C. Achille Lauro, 937 F2d 44, 49 (2d Cir 1991), quoting Baker v Carr, 369 US 186, 217 (1962). See generally Japan Whaling Ass'n v American Cetacean Soc'y, 478 US 221 (1986); Reid v Covert, 354 US 1 (1957) (plurality opinion); Oetjen v Central Leather Co., 246 US 297 (1918). The difficulty arises when courts attempt to distinguish “making” or “conducting” foreign policy from actions “implementing” it. See Lamont v Woods, 948 F2d 825, 843 (2d Cir 1991) (Walker concurring), (“the seemingly facile distinction between “implementation” and “policy” raises more questions than it answers.”)

To the extent that the President's actions are expressly or impliedly authorized by Congress, the executive's actions are governed by a number of constitutional constraints, including the separation of powers mandate that the judiciary have a due concern for the “possible consequences of judicial action.” Lamont v Woods, 948 F2d 825, 843 (2d Cir 1991) (Walker concurring), quoting Baker v Carr, 369 US at 211-212. United States v Cur-tiss-Wright Export Corp., 299 US 304 (1936). In addition, the manner and degree to which the Bill of Rights applies extraterritorially is an unsettled question, not only because the status of the parties and the specific guarantees involved might point to differing results, see United States v Verdugo-Urquidez, 494 US 259 (1990), but also because it can be difficult to discern the precise nature of the right infringed. Where the courts perceive the issue to be clearly presented, however, they have intervened. See, for example, Lamont v Woods, 948 F2d 825, 830 (2d Cir 1991) (Establishment Clause challenge to foreign assistance to church related schools and hospitals); Planned Parenthood Federation v AID, 838 F2d 649 (2d Cir 1988) (challenge to executive decision banning aid to organizations which perform abortions held to be justiciable), on remand 915 F2d 59 (2d Cir 1991) (rejecting Erst and Fourteenth Amendment claims on the merits). Compare Lujan v Defenders of Wildlife, 505 US 555 (1992) (standing).

82. The term was coined by President Theodore Roosevelt. See generally Fairbanks, James David, The Priestly Functions of the Presidency: A Discussion of the Literature on Civil Religion and its Implications for the Study of Presidential Leadership, 11 Presidential Studies Quarterly 214 (1981)Google Scholar.

83. Whether Presidential proclamations, speeches or lobbying activity can violate either the First or the Fourteenth Amendments is a matter of some dispute which need not be addressed here. That the President's views concerning religious liberty issues are of considerable political importance is well-documented. See, for example, Remarks of Senator John F. Kennedy Before a Meeting of the Greater Houston Ministerial Assn., Houston, Texas, 09 12, 1960Google Scholar; Johnson, J., A Born Again Style at the White House, Washington Post, 01 21, 1977, p A18, col 3Google Scholar; Remarks of President Ronald W. Reagan to the Ecumenical Prayer Breakfast, Dallas, Texas, 08 23, 1984Google Scholar; Remarks of Walter F. Mondale to the International Convention of B'nai B'rith, Washington, D.C., 09 6, 1984Google Scholar; Cuomo, Governor Mario M., Religious Belief and Public Morality: A Catholic Governor's Perspective delivered to the Department of Theology, University of Notre Dame, South Bend, Indiana, 09 13, 1984 (Governor of New York)Google Scholar; Representative Hyde, Henry J., Keeping God in the Closet: Some Thoughts on the Exorcism of Religious Values from Public Life, delivered at the Thomas J. White Center on Law & Government, School of Law, University of Notre Dame, South Bend, Indiana, 09 24, 1984Google Scholar; SenatorKennedy, Edward M., Faith and Freedom, delivered at Tavern on the Green, New York City, before the Coalition of Conscience, 09 10, 1984Google Scholar. See generally Bernardin, Joseph Cardinal, Role of the Religious Leader in the Development of Public Policy in Symposium: The Religious Leader and Public Policy, 2 J Law & Relig 367, 369 (1984)CrossRefGoogle Scholar; Gaffney, Edward M., Biblical Religion and American Politics: Some Historical and Theological Reflections, 1 J Law & Relig 171 (1983)CrossRefGoogle Scholar; Neuhaus, Richard J., The Naked Public Square: Religion and Democracy in America (Eerdmans, 1984)Google Scholar; Handlin, Oscar, Al Smith and His America (Little, Brown & Co., 1958)Google Scholar; Myers, Gustavus, History of Bigotry in the United States (Random House, 1943)Google Scholar.

84. Justice Jackson wrote that the “actual test of power [in such circumstances] is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Youngstown Sheet & Tube Co. v Sawyer, 343 US at 637 (Jackson concurring). The Court's approach in practice bears witness to the validity of his observation. The judicial doctrines of standing, justiciability, and political question are designed to limit judicial intervention when abstract theories of law are not adequate to the “imperatives of events and contemporary imponderables” which are entrusted by the Constitution to the political branches. Examples include: extraterritorial application of the Constitution to federal authorities acting in foreign nations, the degree to which the either separation of powers or the First Amendment itself protects the President from judicial or Congressional oversight of the contents of Presidential negotiations, speeches, correspondence, and proclamations, and decisions made by the President, with the advice and consent of the Senate, to grant official status to foreign governments and non-governmental organizations. See, for example, Phelps v Reagan, 812 F2d 1293 (10th Cir 1987) (appointment of ambassador to the Vatican); Americans United for Separation of Church and State v Reagan, 786 F2d 194 (3d Cir 1986), cert denied sub nom American Baptist Churches v Reagan, 479 US 914 (1986) (same). See generally Fairbanks, James David, Religious Dimensions of Presidential Leadership: The Case of Dwight Eisenhower, 12 Presidential Quarterly Studies 261 (1982)Google Scholar; Flowers, Ronald B., President Jimmy Carter, Evangelicalism, Church-State Relations, and Civil Religion, 25 Journal of Church & State 113 (1983)CrossRefGoogle Scholar; Menendez, Albert J., Was Kennedy Sincere About Church-State Separation?, Church & State (11, 1977) 12Google Scholar.

85. US Const Art VI, cl 3 (Test Clause). Politicians, however, sometimes forget that religion should not qualify or disqualify a judicial candidate—concerns about “balance” on the Court to the contrary notwithstanding. The comments of Virginia Governor Douglas Wilder, who suggested that Justice (then-nominee) Clarence Thomas should be examined by the Senators concerning his “allegiance to the Pope” were notable in that they disclose all too clearly that religious tests for public office are not a vestige of the past. The commentary which appeared after Wilder's comments was even more interesting, in that much of it assumed that a judicial candidate's religious views are legitimate cause for concern when they may disagree with a publicly stated position of the United States Supreme Court. See Cleardy, Jim, Wilder on Defensive after Gaffe, The Washington Times (11 4, 1991)Google Scholar. See also Posner, Michael, Wilder, Descendent of Slaves, Has Major Mark in History Books, Reuters (01 8, 1992)Google Scholar. See Kannar, George, Thomas & Benedict: The Judge's Patron Saint; Clarence Thomas; Saint Benedict the Moor, The New Republic (10 14, 1991)Google Scholar. West Virginia Senator Robert Byrd, who voted against Thomas after noting approvingly that Hill's family “had belonged to the church and belong to the church today,” and that she “was evidently reared by religious parents” provides another example. See Chapman, Stephen, The Odd Role Of Religion In The Hill-Thomas Uproar, Chicago Tribune, 10 20, 1991 (final ed)Google Scholar, Perspective p 3, zone c. Why Ms. Hill's credibility was enhanced by her religious upbringing (identified by the news media as Baptist), but Judge Thomas' credibility was not, leads to either of two unsavory conclusions: 1) that Senator Byrd was looking for a political excuse that would sound good to the people of West Virginia (the more likely reason); or 2) that Senator Byrd actually believes that one can trust a Baptist to tell the truth more than one can trust a person raised as a Catholic. Both cases, Wilder's and Byrd's, stand as stark reminders that even public servants who believe themselves to be strong supporters of “civil rights” misunderstand (or ignore) the fact that religious liberty—in this case freedom from religious tests for public office—is also a “civil right”.

86. US Const Art VI, cl 3, Marbury v Madison, 5 US (1 Cranch) 137 (1803).

87. US Const Art III § 2.

88. The notion that any court might consider the religious preference of the parties to a case to be a legitimate factor influencing its decision in a case where the issue was not directly relevant to the merits of the controversy is so outlandish as not to warrant further mention. It should be noted, however, that the potential for disparate treatment of financial obligations to religious societies by the federal courts was a concern of Representative Huntington of Connecticut:

If an action was brought before a Federal Court on any of these cases, he feared the person who had neglected to perform his engagements could not be compelled to do it; for support of ministers, or building of places of worship might be construed into a religious establishment.

Madison responded by underscoring the point of his proposal: to assure that the power of the federal government (he used the term “national”) would not be utilized to “establish a [national] religion to which they would compel others to conform.” Annals of Congress, I, 757-59. Compare Jones v Wolf, 443 US 595 (1979) (“neutral principles of law utilized to decide civil controversies arising from intra-church disputes).

89. The methodology utilized to decide cases like Wallace v Jaffree, 472 US 38 (1985) and Edwards v Aguillard, 482 US 578 (1987), 107 S Ct 2573 (1987), where the Court concluded that the statutes involved had no secular purpose, is distinguishable, both legally and politically, from the admittedly idealized proposition stated in the text. The Court's religious liberty jurisprudence, including the three-pronged test enunciated in Lemon v Kurtzman, 403 US 602 (1971) simply assumes that the Fourteenth Amendment empowers it to make such determinations. See notes 111-153 and 186-202.

90. The term here is used in both its constitutional and its “generic” sense. It includes, for example, the power of Congress, acting pursuant to the Commerce Clause, to forbid religious discrimination by private employers, see Title VII of the Civil Rights Act of 1964, as amended, §§ 701(j), 702, and 703(a-e), 42 USC §§ 2000e(j), 2000e-1, 2000e-2(a-e), as well as the power of Congress to legislate against the possession and distribution of controlled substances which move in interstate or international commerce. See, for example, United States v Rush, 738 F2d 497 (1st Cir 1984), cert denied, 470 US 1004 (1985) (rules applied to Ethiopian Coptic Church, which views marijuana as a sacramental object); Olsen v Iowa, 649 F Supp 14 (S D Iowa, 1986), aff'd, 808 F2d 652 (8th Cir, 1986) (same, as applied to a priest of the Church).

91. See, for example, United States v Lee, 455 US 252 (1982); Reynolds v United States, 98 US 145 (1878).

92. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Amos, 483 US 327 (1987); Bowen v Kendrick, 484 US 942 (1987); N.L.R.B. v Catholic Bishop of Chicago, 440 US 490 (1971).

93. US Const Art VI, cl 2 (Supremacy Clause) The most obvious examples are those setting forth the Court's jurisdiction, separation of powers, and federalism. See cases cited at note 84. Equally significant are the protection of free speech, press, the right to petition for redress of grievances, US Const Amend I (1791), and equal protection of the laws. US Const Amend V. See Boiling v Sharpe, 347 US 497 (1954).

94. In diversity cases, for example, federal courts apply State or foreign law to resolve the merits of the underlying controversy because the federal government may have no authority to supply the rule of decision. Compare Erie v Tompkins, 304 US 64 (1938)(stat-utory and decisional law) with Swift v Tyson, 41 US (16 Pet) 1 (1842). They nonetheless retain their character as federal tribunals, bound to perform their duty in a manner otherwise consistent with the Constitution and laws of the United States. Hanna v Plumer, 380 US 460 (1965) (Federal Rules of Civil Procedure); Byrd v Blue Ridge Rural Electric Cooperative, Inc., 356 US 525 (1958) (Seventh Amendment). Judicial intervention in intra-reli-gious disputes raises “jurisdictional issues of this type. See, for example, Jones v Wolf, 443 US 595 (1979); Serbian Eastern Orthodox Diocese v Milivojevich, 426 US 696 (1976); Ray-burn v General Conference of Seventh-day Adventists, 772 F2d 1164 (4th Cir 1985).

95. 304 US 64 (1938). See text at note 27.

96. Compare Fallon, Richard H. Jr., Book Review, Common Law Court Or Council Of Revision?, 101 Yale L J 949 (1992)CrossRefGoogle Scholar [reviewing Wellington, Harry H., Interpreting the Constitution (Yale U Press, 1990)Google Scholar].

97. Howe, Mark DeWolfe, The Garden and the Wilderness 3 (U Chicago Press, 1965)Google Scholar.

98. An extensive discussion of this point is beyond the scope of this paper. A useful set of the distinctions is drawn in Lusky's, Louis chapter entitled “Lawmaking and Constitution-making”, in Lusky, , By What Right? A Commentary on the Supreme Court's Power to Revise the Constitution at 59 (cited in note 1)Google Scholar. James B. Beam Distilling Co. v Georgia, 111 S Ct 2439 (1991) is a recent example of the continuing debate among the Justices on the nature of the judicial lawmaking function. The case is discussed at note 103.

99. See US Const Art I §§ 1; 8; Art II, § 1, cl 4, § 2; Art III §§ 1-3; Art IV §§ 1, 3; Art V.

100. See, for example, Bradfield v Roberts, 175 US 291 (1899) (Art I, § 8, cl 17 [Seat of Government Clause] (was a grant to a District of Columbia hospital operated by an order of Catholic nuns a law respecting an “establishment of religion?”); Rector of Holy Trinity Church v United States, 143 US 457 (1892) (Art I, § 8, cl 4 [power to prescribe uniform rules of naturalization]; application of facially neutral immigration law to clergy immigrating from abroad to meet the religious needs of the faithful).

101. US Const Art III.

102. The “Virginia Plan” submitted to the Convention by Governor Edmund Randolph, but proposed by Madison himself, contained provisions for both a Congressional negative on State laws, and a Council of Revision comprised of the Executive and members of the judiciary which would pre-screen laws passed by Congress. Both were rejected. For the text of the Virginia Plan, see Ketcham, Ralph, The Anti-Federalist Papers and the Constitutional Convention Debates at 35–39 (Mentor, 1986)Google Scholar. For a discussion of the fate of these proposals, see Hobson, Charles F., The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government, 36 The WM & Mary Q 215 (1979)CrossRefGoogle Scholar; Berger, Raoul, Government by Judiciary at 300–312 (Harvard U Press, 1977)Google Scholar; Berger, Raoul, Congress vs. The Supreme Court at 47–119 (Harvard U Press, 1966)Google Scholar.

103. Another good example is the debate among the members of the Court on the question of the retroactive effect of newly-announced constitutional rules. See, for example, James B. Beam Distilling Co. v Georgia, 501 US 529 (1991); American Trucking Ass'n, Inc. v Smith, 496 US 167 (1990); Griffith v Kentucky, 479 US 314 (1987). See also Lampf, Pleva, Lipkind v Gilberton, 501 US 350 (1991) (power to imply a statute of limitations governing and “implied” cause of action under the Securities Act of 1934). In James B. Beam, the Court was badly split (2-1-3-3) over the precise mechanism by which retroactivity issues are to be determined. The differences cast considerable light on their views concerning the role of the judiciary under Article III.

The six-member plurality in James B. Beam held that “when the Court has applied a rule of law to the litigants in one case it must do so with respect to all others not barred by procedural requirements or res judicata.” 501 US at 543. The concurring opinions of Justices Scalia, Marshall and Blackmun take the most “structural” approach to this question, viewing the issue of retroactivity as one of which involves “basic norms of constitutional adjudication.” Id at 547 (Blackmun, Marshall and Scalia concurring in the judgment); id at 547-549 (Scalia, Marshall and Blackmun concurring in the judgment). In the view of these three Justices, prospectivity, (both “selective” and “pure”) are unconstitutional assertions of a power to “applfy] principles determined to be wrong to litigants who are in or may still come to court.” Id at 547-548 (opinion of Blackmun, Marshall and Scalia), and the existence of such a power “render[s] courts substantially more free to ‘make new law,’ and thus to alter in a fundamental way the assigned balance of responsibility and power among the three Branches.” Id at 549 (opinion of Scalia, Marshall and Blackmun). Justices Souter & Stevens, who announced the judgment of the Court in James B. Beam, view the issue of retroactivity as involving both a “choice-of-law” component (which law to apply-old or new), and a remedial question which arises when the choice is to apply the new ruling retroactively. Id at 534-535 (opinion of Souter & Stevens). Given their holding that once a constitutional rule has been altered, “[t]he applicability of rules of law are not to be switched on and off according to individual hardship.” Id at 543, their rejection of “modified prospectivity” has strong Article III, Supremacy Clause, Due Process and Equal Protection components. Justices O'Connor, Kennedy, White, and Chief Justice Rehnquist, by contrast, view the judicial role as an active one, in which the Court must “determine the equities of retroactive application of a new rule” under the multi-factor “balancing of equities” analysis of Chevron Oil Co. v Huson, 404 US 97 (1971). In their view, the outcome of the choice of law decision determines “whether there is a constitutional violation” to be remedied “in the first place.” American Trucking Ass'ns, Inc. v Smith, 496 US 167, 181 (1990) (opinion of O'Connor, White and Kennedy, and Rehnquist). Accord, James B. Beam, 501 US at 546 (White concurring in the judgment) (specifically rejecting the structural approach of Justices Scalia, Marshall and Blackmun as “unpersuasive” because judges do “in a real sense ‘make’ law” and everybody knows it.)

104. Justice Scalia has been the most articulate expositor of this position. See Mistretta v United States, 488 US 361, 413 (1989) (Scalia dissenting); Midwesco v Bendix, 486 US 888, 895 (1988) (Scalia, J. concurring in judgment); CTS Corp. v Dynamics Corp. of America, 481 US 69, 94, 107 S Ct 1637, 1652 (1987) (Scalia concurring in part and concurring in judgment). In Midwesco, for example, Justice Scalia distinguished between the balance struck between competing claims of authority, including those involving individual rights, and the more policy-oriented forms of balancing which characterize much of the jurisprudence under the Dormant Commerce Clause:

Having evaluated the interests on both sides as roughly as this, the Court then proceeds to judge which is more important. This process is ordinarily called “balancing,” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174 (1970), but the scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy. All I am really persuaded of by the Court's opinion is that the burdens the Court labels “significant” are more determinative of its decision than the benefits it labels “important.” Were it not for the brief implication that there is here a discrimination unjustified by any state interest, (citation omitted), I suggest an opinion could as persuasively have been written coming out the opposite way. We sometimes make similar “balancing” judgments in determining how far the needs of the State can intrude upon the liberties of the individual, see, e.g., Boos v. Barry, [citation omitted], but that is of the essence of the courts' function as the nonpolitical branch. Weighing the governmental interests of a State against the needs of interstate commerce is, by contrast, a task squarely within the responsibility of Congress, see U.S. Const., Art. I, s. 8, cl. 3, and “ill suited to the judicial function. CTS Corp. v Dynamics Corp. of America, 481 U.S. 69, 95, (1987) Midwesco v Bendix, 486 US 888 at 897 (Scalia concurring in part and concurring in judgment).

105. See, for example, United States v Lopez, — US —l, 115 S Ct 1624 (1995); New York v United States, 112 S Ct 2408 (1992) (elaborating upon the relationship of the Tenth Amendment to the enumerated powers of Congress, and holding that to the extent that Congress decides to adopt unpopular policy choices, it must do so by exercising its enumerated powers directly. It may not, therefore, attempt to shift the blame for such decisions from itself to state and local politicians by compelling the States to exercise their sovereign powers in a manner dictated by Congress.) Five members of the Court appear to accept this proposition in American Trucking Ass'ns, Inc. v Smith, 496 US 167, 200 (1990) as well. Justice Scalia, concurring in the judgment, argued that both the obligations of the State, and hence the propriety of the exercise of Article III power, depend upon a proper understanding of the constitutional norms which govern the case or controversy. Though they reached a different conclusion on the merits of the case because they disagreed with Justice Scalia's view of the constitutional norm (in this case, the “Dormant Commerce Clause”), they clearly agreed with his analytical approach. See id, 496 US 205 (Stevens, Brennan, Marshall and Blackmun dissenting). The agreement among these members of the Court is even more explicit in James B. Beam Distilling Co. v Georgia, 501 US 529 (1991), discussed at greater length at note 103.

106. Speech of Chief Justice Charles Evans Hughes at Elmira, New York, May 3, 1907, in Bartlett, John, Familiar Quotations at 700 (Little Brown & Co, 15th and 125th Anniversary ed, 1980)Google Scholar.

107. See Erie v Tompkins, 304 US 64 (1938), rev'g Swift v Tyson, 41 US (16 Pet) 1 (1842).

108. Discussion of the concept of “federal common law” is beyond the scope of this paper. It should be sufficient to note that, to the extent that it is accurate to describe what is known as “federal common law” as “common law” as that term is commonly understood, its validity rests on powers clearly enumerated in, or necessarily implied from, the Constitution itself.

109. See sources cited at note 111-112.

110. In Lamont v Woods, 948 F2d 825, 836 n 8 (2d Cir 1991), for example, Chief Judge Oakes opined that while “a corollary purpose of the Establishment Clause was to forbid the federal government from interfering with the religious establishments maintained by the States of the Union[, citations omitted] this purpose became irrelevant in 1947, when the Supreme Court applied the Establishment Clause to the states through the Fourteenth Amendment. See Everson v Board of Ed., 330 US 1, 15-16 (1947).”

111. See Amar, 101 Yale L J at 1193-94 (cited in note 19) (collecting quotes from some of the most influential commentators on constitutional law and theory).

112. Amar, 100 Yale L J at 1136-37 (cited in note 19).

113. US Const Amend XIV § 5 (1868).

114. The Court's understanding of religious liberty is not discussed in detail in this essay, but is the topic of its sequel. The problems which arise from the “selective incorporation” doctrine are discussed in the text at notes 194 to 200.

115. Section One of the Fourteenth Amendment contains four distinct clauses: Citizenship, Privileges and Immunities, Due Process and Equal Protection. The suggestion here is that they should be read together; and to the extent that other relevant constitutional provisions are germane to the inquiry, those should also factor into the analysis. See, for example, US Const Art IV, §§ 1, 4 (Interstate Privileges and Immunities and Guaranty Clauses); Art VI, cl 3 (Test Clause).

116. Locke, John, A Letter Concerning Toleration 1686, Popple trans 1689)Google Scholar, in Noonan, John T. Jr., The Believer and the Powers that Are at 80 (Macmillan, 1987)Google Scholar.

117. Glendon, Mary Ann & Yanes, Raul F., Structural Free Exercise, 90 Mich L Rev 477, 482 (1991)CrossRefGoogle Scholar. This topic is discussed in greater detail in the text accompanying notes 194 to 200.

118. Amar, 100 Yale L J at 1136 (cited in note 19)Google Scholar.

119. Everson v Board of Education, 330 US 1 (1947); Cantwell v Connecticut, 310 US 296 (1940).

120. Cantwell v Connecticut, 310 US 296 (1940).

121. See, for example, Young, L. Benjamin Jr., Justice Scalia's History and Tradition: The Chief Nightmare in Professor Tribe's Anxiety Closet, 78 Va L Rev 581 (1992)CrossRefGoogle Scholar.

122. Compare, for example, Michael H. v Gerald D., 491 US 110 (1989).

123. A notable exception may be Judge Bownes of the United States Court of Appeals for the First Circuit. Concurring in Weisman v Lee, 908 F2d 1090 (1st Cir 1990), aff'g, 728 F Supp 68 (DRI 1990), Judge Bownes observed that since “the ‘plain meaning’ of the text is of little help in determining results in [cases involving school prayer]… the interpretation and practice that has evolved throughout the past two hundred years” is determinative. After dismissing both the “intent of the framers” and the teachings of history in both the ratification period and the nineteenth century, he concludes that

It is useless to rehash this continuing debate. The ground has been trodden so much that it is barren of meaning and persuasive power. The “historical record” is inconclusive on the various cross-currents in the minds of the framers. Because of the tangled and often conflicting historical record, it is unlikely that, as an empirical matter, we can ever know the original intention of the authors of the Constitution. Even if we could reconstruct the framers' intent, that would not necessarily be determinative in this case, given our two hundred years of experience with the Constitution and changing circumstances. Id at 908 F2d at 1093. (footnote omitted)

124. The Second Circuit has held, for example, that “The drafting and adoption of the First Amendment, in which Madison and Jefferson played leading roles, can only be understood in light of the Virginia experience.” Lamont v Woods, 948 F2d 825, 837 (2d Cir 1991). It even goes so far as to allege that alternative arguments which challenge the prevailing reliance on the Virginia experience represent “scholarship born of advocacy” which present a “treatment of history [that] is selective and one-sided.” Id at 836.

125. See, for example, Lee v Weisman, 112 S Ct 2649, 2656-58 (opinion of the Court, per Kennedy) (1992); id at 2667 (Souter, O'Connor and Stevens concurring in the judgment); id 2678 (Scalia and Thomas, and Rehnquist dissenting); Everson v Board of Education, 330 US 1 (1947). See also Laycock, Douglas, “Non-preferential” Aid to Religion: A False Claim About Original Intent, 27 Wm & Mary L Rev 875 (1985–1986)Google Scholar; Fisher, Louis A., American Constitutional Law at 698–783 (McGraw-Hill, 1990)Google Scholar.

126. See note 33.

127. A notable exception is Akhil Reed Amar's discussion of the close connection between the abolitionist movement's reliance on the rights of speech, petition, press and the religious exercise of preaching as the means of spreading their message. He notes for example, a speech given in 1866 by John Bingham, the author of Section One of the Fourteenth Amendment, in which “he reminded his audience that men had been imprisoned in Georgia for teaching the Bible,” and another by Lyman Trumbull, who introduced the Civil Rights Bill of 1866 “by stressing the need to protect the freedom ‘to teach’ and ‘to preach,’ citing a Mississippi Black Code punishing any ‘free negroes and mulattoes’ who dared to ‘exercis[e] the functions of a minister of the gospel.” Amar, 101 Yale L J at 1275–77 (cited in note 19)Google Scholar.

128. One of the more interesting debates within the Court on this topic occurs in Michael H. and Victoria D. v Gerald D., 491 US 110 (1989).

129. See, for example, Sullivan, Kathleen, Religion and Liberal Democracy, 59 U Chi L Rev 195, 198–201 (1992)CrossRefGoogle Scholar. Professor Sullivan suggests that the correct baseline for the Religion Clause “is not unfettered religious liberty, but rather religious liberty insofar as it is consistent with the establishment of the secular public moral order,” and appears to suggest that the members of the Supreme Court know enough about both philosophy and theology to “draw a distinction between [them].” The point here is not to debate either the substance of Professor Sullivan's views about the privileges which are to be enjoyed by a “secular moral order”, or the validity of her implicit assumption that the legal training of judges and Justices equips them to make fine philosophical and theological distinctions which can (or should) have the force of law. In structural terms, Professor Sullivan's argument has two glaring weaknesses, neither of which is addressed in her article.

First, she does not demonstrate the existence of a grant of authority to the federal government, express or implied, which would empower it to “establish” any “moral order,” secular or otherwise. That would be impossible. Her argument, instead, is that “[j]ust as the affirmative right to practice a specific religion implies the negative right to practice none, so the negative bar against establishment of religion implies the affirmative ‘establishment’ of a civil order for the resolution of public moral disputes.” 59 U Chi L Rev 19798. The key word here is “implies”—and her use of it to transform the Establishment Clause into an affirmative grant of federal authority to define and enforce a “secular” moral order illustrates the point made in the text. Reading the First Amendment, both as a whole and in light of its history and that of the Test Clause, illustrates that “establishment” of either an exclusive moral or political orthodoxy by the federal government is precisely what the Framers feared-and they explicitly rejected the existence of any such power by adopting the Test Clause and the First, Ninth and Tenth Amendments.

The second structural point is related to the first. Professor Sullivan's position that religious liberty is not “unfettered” rests on the structural argument that the Establishment Clause should have a legal effect which is quite distinct from that of either the Free Exercise or Speech Clause. Yet like most commentators on the Religion Clause, she ignores an important structural and analytical component of her own argument: the Fourteenth Amendment. The operative constitutional provision at the heart of most of the cases she cites is not the First Amendment, but the Due Process Clause of the Fourteenth. And since the regime of religious liberty she elaborates is dependent on the meaning of that amendment (at least insofar as it binds the States), an argument which ignores its impact is, at the very least, inconsistent with the view that constitutional provisions should be read as having distinct legal effects.

In sum, Professor Sullivan's argument is structurally incomplete to the extent that the analysis rests, ultimately, on a reading of the Establishment and Free Exercise Clauses which holds only them in “tension.” See note 32. If she is correct that the correct baseline “is not unfettered religious liberty,” but only that which “is consistent with the establishment of the secular public moral order,” the same must also be true with respect to all other forms of “liberty” incorporated by or implicit in the Due Process Clause of the Fourteenth Amendment, including speech, association, and the personal interests collectively known as “privacy” rights. Compare Post, Robert, Cultural Heterogeneity and Law: Pornography, Blasphemy and the First Amendment, 76 Cal L Rev 297 (1988)CrossRefGoogle Scholar.

130. Noonan, , The Believer and the Powers That Are at 93–113 (cited in note 116)Google Scholar (recounting the Virginia experience).

131. Even though the struggle for religious liberty in other States contains important insights concerning some of the evils against which the Test Clause and First Amendment were directed, they have never figured, prominently or otherwise, in the Supreme Court's interpretation of the non-establishment norm. See Antieau, Chester J., Downey, Arthur T. & Roberts, Edward C., Freedom from Federal Establishment Formation and Early History of the First Amendment Religion Clauses at 161–63 (Bruce, 1964)Google Scholar (briefly discussing developments in the States from 1776-1825). Neither, for that matter, lias either the text or structure of the Constitution itself. See, for example, Everson v Board of Education, 330 US 1 (1947). Members of the Court have, however, utilized the Virginia debate over general assessments for the payment of the salaries of Christian ministers as the jumping off point for an elaboration of their own respective views concerning the “proper” relationship of law to religious activity. See id, 330 US at 11-14, 31-32 (Rutledge, Frankfurter, Burton and Jackson dissenting) (“[T]he object [of the first amendment] was… to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”)

132. See, for example, Isaac, Rhys, Evangelical Revolt: The Nature of the Baptists' Challenge to the Traditional Order in Virginia, 1765 to 1775, 31 Wm & Mary Q 345 (1974)CrossRefGoogle Scholar. Professor Isaac's article notes the important cultural components pf the Virginia experience, and their relationship to “assumptions concerning the nature of community religious corporateness that underlay aggressive defense against the Baptists.” Id at 368. That the Revolution's republican ideology played a major role in rendering such assumptions illegitimate, and led to the eventual adoption of a policy of “accommodation in a more pluralist republican society” in Virginia is significant in both structural and substantive terms. Id. At the structural level, the concern for the maintenance of the integrity of individual political and faith communities is an important motivation for the political insistence on the part of the Anti-federalists and the States for the adoption of a Bill of Rights. The Civil War and later voting rights amendments make it clear at the substantive level that all citizens are members of those “pluralistic, republican communities,” and are entitled to equal civil and political rights. Notably, each amendment contains an important structural component as well.

133. See, for example, Lee v Weisman, 112 S Ct 2649, 2667, 2770 (1992) (Souter, Stevens and O'Connor concurring) (relying on the Virginia experience and Statute for Religious Freedom as indicative of “separationist response” throughout the country). Examination of the ratification debates generally—and those involving the Test Clause in particular—indicate that one criticism of the new Constitution is that it did not invoke the name of the Deity. Another was that the absence of religious tests might make for a regime of religious liberty which was too tolerant of religious diversity; for it would permit “a Papist or an infidel” to serve in the federal government. See Antieau, , Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses at 92–113 (cited in note 9)Google Scholar; Bradley, , 37 Case W L Rev 674 (cited in note 33)Google Scholar.

134. The most recent—and controversial—example is Employment Division, Department of Human Resources of Oregon v Smith, 494 US 872 (1990).

135. 98 US 145 (1878).

136. A good example is the opinion of Justice O'Connor concurring in the judgment in Smith II. Condemning the majority's approach to Free Exercise Clause cases, Justice O'Connor, joined on this point by Justices Brennan, Marshall, and Blackmun, wrote:

To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute, [citing Cantwell and Reynolds v United States]. Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

Smith, II, 494 US at 894.

137. The imagery of community, race and culture evoked by Chief Justice Waite's opinion for the Court rejecting the Mormon practice of polygamy could not have been clearer: “Polygamy,” he stated, “ha[d] always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Reynolds v United States, 98 US (8 Otto) 145, 164 (1878). The similarity between Chief Justice Waite's concepts of legitimate culture, which certainly reflected the views of “the thoughtful part of the Nation” at the time Reynolds was decided, and those of the Virginia gentry during the Revolutionary period, who also considered themselves to be “the thoughtful part of their community, are striking. See Destro, Robert A., Review Essay, The Supreme Court, the “Facts of Life,” and the Moral Sensibilities of “the Thoughtful Part of the Nation,” 20 Human Life Rev 28–48 (Summer, 1994)Google Scholar (reviewing David Garrow's Liberty & Sexuality: The Rights of Privacy and the Making of Roe v. Wade).

138. Compare, Laycock, “Non-Preferential” Aid to Religion (cited in note 125) (extensive analysis of history), with Giannella, Donald A., Religious Liberty, Nonestablishment and Doctrinal Development Part I. The Religious Liberty Guarantee, 80 Harv L Rev 1381 (1968)CrossRefGoogle Scholar (no real historical analysis) and McConnell, , 103 Harv L Rev 1410 (cited in note 33)(extensive historical analysis)Google Scholar.

139. But see Paulsen, Michael A., Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L Rev 311 (1986)Google Scholar.

140. See generally, Brownstein, Alan E., Harmonizing the Heavenly and Earthly Spheres: The Fragmentation and Synthesis of Religion, Equality, and Speech in the Constitution, 51 Ohio St L J 89 (1990)(Due Process analysis of religious liberty generally)Google Scholar; Bradley, , 20 Hofstra L Rev 245 (cited in note 65) (historical analysis of free exercise norms)Google Scholar; Lupu, Ira C., Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion, 140 U Pa L Rev 555 (1991)CrossRefGoogle Scholar; Marshall, William P., In Defense of Smith and Free Exercise Revisionism, 58 U Chi L Rev 308 (1991)CrossRefGoogle Scholar; Tribe, Laurence, American Constitutional Law (Foundation Press 2d ed 1988) 1154–1301 (religious freedom as a right of “personal autonomy”)Google Scholar; West, Ellis, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J of Law, Ethics & Pub Pol'y 591 (1990)Google Scholar.

141. The Late Corporation of the Church of Jesus Christ of Latter Day Saints v United States, 136 US 1 (1889)Google Scholar; Davis v Beason, 133 US 333 (1889); Reynolds v United States, 98 US 145 (1878).

142. Noonan, John T. Jr., The Believer and the Powers That Are at xiii (Macmillan 1987)Google Scholar.

143. Barron v Mayor and City Council of Baltimore, 32 US (7 Pet) 243 (1833).

144. Locke, A Letter Concerning Toleration (cited in note 116).

145. See generally Alley, Robert S., ed, James Madison on Religious Liberty (Prometheus Books, 1985)Google Scholar; Antieau, Freedom From Federal Establishment (cited in note 9); Cord, Robert L., Separation of Church and State — Historical Fact and Current Fiction (Lambeth Press, 1982)Google Scholar; Howe, Mark DeWolfe, The Garden and the Wilderness (U of Chicago Press, 1965)Google Scholar; Levy, Leonard W., The Establishment Clause (Macmillan, 1986)Google Scholar; Noonan, The Believer and the Powers That Are (cited in note 116); Tbrpey, William G., Judicial Doctrines of Religious Rights in America (U of North Carolina Press, 1948)Google Scholar.

146. US Const Art VI, cl 3 (1787), amends IX, X (1791). See Permoli v Municipality No. 1 of the City of New Orleans, 44 US (3 How) 589, 609 (1845) (“the Constitution makes no provision for protecting the citizens of the respective States in their religious liberties; this is left to the State constitutions and laws; nor is there any inhibition imposed by the Constitution of the United States in this respect on the States.”); Hale v Everett, 53 NH 9, 16 Am Rep 82 (NH, 1868) The First, Ninth and Tenth Amendments were adopted at a time of transition in the Nation's understanding of the concept of religious liberty. Though some States, such as New York and Virginia, had abolished their official “establishments,” others, such as Connecticut and Massachusetts had not. Religiously based civil and political disabilities were prominent features of most of the States at the time of ratification, and for many years thereafter.

147. See note 20.

148. See United States v Lopez, 115 S Ct 1624, 1637-1638 (1995). See generally, Amar, 100 Yale L J 1131 (cited in note 19)Google Scholar.

149. Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803) (“… it is emphatically the province and duty of the judicial department to say what the law is.”)

150. Quick Bear v Leupp, 210 US 50 (1908) (upholding tuition grants for Sioux Indians in Catholic schools); Bradfield v Roberts, 175 US 291 (1899)(upholding federal funding of Catholic hospital in the District of Columbia); The Late Corporation of the Church of Jesus Christ of Latter Day Saints v United States, 136 US 1 (1890); Davis v Beason, 133 US 333 (1890); Reynolds v United States, 98 US 145 (1878). See Permoli v Municipality No. 1 of the City of New Orleans, 44 US (3 How) 589, 609 (1845).

151. US Const Amend XIV § 1, cl 2 (1868).

152. US Const Amend XIV § 5 (1868). See generally Berger, Raoul, Government By Judiciary at 31–51 (Harvard U Press, 1977)Google Scholar; Akhil Reed Amar, 101 Yale L J at 1193 (cited in note 19)Google Scholar..

153. See, for example, County of Santa Clara v Southern Pac. R. Co., 118 US 394 (1886) (assuming that corporations are “persons” protected by the Fourteenth Amendment); Ex Parte Young, 209 US 123 (1908).

154. Plessy v Ferguson, 163 US 537 (1896).

155. See text accompanying note 111.

156. See, for example, Roberts v United States Jaycees, 468 US 609 (1984) (upholding Minnesota's ban on sex-discrimination as applied to a private association). Another good example is the fact that several State constitutions explicitly protect the rights to informational and other types of privacy, whereas the federal constitution does not. See, for example, Ariz Const art 2, section 8; Fla Const art 1, section 23; Wash Const art 1, section 7.

157. The most recent author to attribute what are essentially anti-federalist views to Madison is Akhil Reed Amar. Amar, 100 Yale L J at 1134–36 (cited in note 19)Google Scholar. See also Marshall, Price, “No Political Truth:” The Federalist And Justice Scalia On The Separation Of Powers, 12 U Ark Little Rock L J 245 (1989)Google Scholar. See generally Presser, Stephen B., The Original Misunderstanding: The English, the Americans and the Dialectic of Federalist Jurisprudence (Carolina Academic Press, 1991)Google Scholar.

158. Hobson, , 36 The Wm & Mary Q at 232–234 (cited in note 102)Google Scholar.

159. See Debate on the Judiciary, the Veto and Separation of Powers, July 21, 1787, in Ketcham, , ed, The Anti-Federalist Papers and the Constitutional Convention Debates, at 120–124 (Mentor, 1986)(cited in note 17) (speeches of Madison and Wilson)Google Scholar.

160. See Debate on State Equality in the Senate, June 28-July 2, 1787, in Ketcham, , ed, The Ann-Federalist Papers and the Constitutional Convention Debates at 93–113 (cited in note 17)Google Scholar.

161. Hobson, , 36 The Wm & Mary Q at 230 (cited in note 102)Google Scholar quoting Letter of James Madison to Thomas Jefferson, September 6, 1787, Papers of Madison, X, 163–164Google Scholar.

162. This point was raised in the House debate over the First Amendment by Elbridge Gerry, who

did not like the term national, proposed by the gentleman from Virginia [Madison]…It had been insisted upon by those who were called antifederalists, that this form of Government consolidated the Union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made. Their names then ought not to have been distinguished by federalists and antifederalists, but rats and antirats. Mr. Madison withdrew his motion, but observed that the words ‘no national religion shall be established by law,’ did not imply the government was a national one;…

Annals of Congress, I, 757–59Google Scholar.

163. See, for example, “The Address and Reasons of Dissent of the Minority of the convention of Pennsylvania to their Constituents” (December 18, 1787) (attributed to Samuel Bryan, the author of “Centinel”), in Ketcham, , ed, The Anti-Federalist Papers and the Constitutional Convention Debates at 237 (cited in note 17)Google Scholar.

164. R. Ketcham, Antifederalist Political Thought, in id at 17. See Debate on State Equality in the Senate, June 28-July 2, 1787, in Ketcham, , ed, The Anti-Federalist Papers and the Constitutional Convention Debates at 95 (cited in note 17) (remarks of Dr. Johnson)Google Scholar.

165. The phrase is Olliver Ellsworth's, who admitted “that the effect of this motion [for equal suffrage in the Senate] was to make the general government partly federal and partly national,” a characterization which Madison denied in his speech of July 14, 1787. Hobson, , 36 The Wm & Mary Q at 228 n 28 (cited in note 102)Google Scholar.

166. Id at 223.

167. Id at 225.

168. See Brutus, No 2, November 1, 1787 in Storing, J., ed. The Complete Anti-Federalist at 372–377 (U of Chicago Press, 1981)CrossRefGoogle Scholar.

169. Debate on State Equality in the Senate, June 28-July 2, 1787, in Ketcham, , ed, The Anti-Federalist Papers and the Constitutional Convention Debates at 101 (cited in note 17)Google Scholar.

170. Hobson, , 36 The Wm & Mary Q at 225 (cited in note 102)Google Scholar.

171. Id at 233.

172. Letter of James Madison to Thomas Jefferson, October 24, 1787, Papers of James Madison, X, 212-214, id at 230-33.

173. Id at 233.

174. See generally Farber, Daniel A. & Sherry, Suzanna, A History of the American Constitution at 175–245 (West, 1990)Google Scholar.

175. See Madison, J., General Defense of the Constitution (06 12, 1788)Google Scholar [presented during the Virginia Ratification debate]; Letter to Thomas Jefferson—October 17, 1788; Letter to George Eve—January 2, 1789 in Alley, , James Madison on Religious Liberty at 70–75 (cited in note 145)Google Scholar; Antieau, Chester J., Downey, Arthur T. & Roberts, Edward C., Freedom from Federal Establishment: Formation and Early History of the First Amendment Religion Clauses at 111–158 (Bruce, 1964)Google Scholar.

176. See, for example, US Const Amends XI (1795); XII (1804); XVII (1913); XXI 2 (1933); XXII (1951); XXIV (1964); XXVII (1992).

177. US Const Art VI.

178. Except to the extent necessary to illustrate a point in the discussion, I will not make any attempt to discuss the philosophical particulars of Madison's views. That task is best left to historians, and biographers and philosophers.

179. In his letter to Thomas Jefferson dated October 17, 1788, Madison wrote:

Wherever the real power of Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from actions in which the Government is the mere instrument of the major number of the constituents … Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince…What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution. I. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. 2. Altho' it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter sources; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.

Alley, R.S., James Madison on Religious Liberty at 73 (cited in note 145)(emphasis in the original)Google Scholar.

180. Marvin K. Singleton has noted that “Madison had a secular alternative to [Jefferson's suggestion of devout] prayer [for the death of Patrick Henry]: get Henry out of the legislature by having him elected governor.” See Singleton, Marvin K., Colonial Virginia as First Amendment Matrix: Henry, Madison and the Assessment Establishment in Alley, , James Madison on Religious Liberty at 164 (cited in note 145)Google Scholar. Singleton's account of Madison's role in the Virginia assessment controversy notes that

Madison's role in the assessment fight has been diversely evaluated by posterity. Eckenrode has asserted that Henry's effort to implement assessment was defeated “by the spirit of the age rather than the skill of [its] opponents.” This judgment is inaccurate. Madison and his colleagues proved themselves astute in their management of the threatened levy. Without the resources of a party behind him, without the machinery of caucus, and without charisma, Madison handled well both parliamentary matters and crystallization of public opinion.

Id at 169.

181. Federalist 10 (Madison) 82 (cited in note 22). Religion was listed first among the types of faction which needed to be controlled: “The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points ….” Id at 79.

182. See generally Robert S. Alley, The Church of England and Virginia Politics, and Marvin K. Singleton, Colonial Virginia as First Amendment Matrix: Henry, Madison and Assessment Establishment in Alley, , James Madison on Religious Liberty at 153–172 (cited in note 145)Google Scholar.

183. See Lupu, 140 U Pa L Rev 555 (cited in note 140).

184. Hobson reports that Madison viewed the judicial remedy as inadequate to the task of protecting individual rights. “[U]nlike the legislative veto, it could not operate until after the injury had occurred. The procedure was too cumbersome and costly, and would therefore fail to provide an immediate and full measure of justice.” Hobson, , 36 The Wm & Mary Q at 229 & n 31 (cited in note 102)Google Scholar.

185. What Professor Amar describes as the “Madisonian insight that localism and liberty can sometimes work together, rather than at cross-purposes” is perhaps more accurately described as a reflection of Madison's exquisite political sense concerning the impact that contending, self-interested factions would have on the liberties of individuals in an extended republic. Amar, 100 Yale L J at 1136 (cited in note 19)Google Scholar.

Professor Amar is particularly critical of Dean Jesse Choper's position that “[T]he assertion that federalism was meant to protect individual constitutional freedoms … has no solid historical or logical basis,” describing it as “outlandish” and “odd” from the perspective of the founding generation. See id at 1205-1206. With due respect to my former teacher, I wholeheartedly agree with Professor Amar. The language and logic of the Test Clause and First Amendment point clearly to federalism as a structural mechanism for the protection of religious liberty. There is no question that a federal test oath would inhibit the religious liberty of any individual forced to swear it. The threat to liberty it addressed arose at the federal level. The fact that the very same individual might be forced to swear a similar, but inconsistent, test oath to qualify for State office illustrates clearly that the logic of utilizing structural mechanisms such as federalism to protect individuals from federal overreaching was as apparent to States which had established religions (such as Massachusetts), as it was to the Virginia of Jefferson and Madison, which did not.

186. See Missouri Pacific Ry. Co. v Nebraska, 164 US 403 (1896); Chicago, B. & Q. Ry. Co. v Chicago, 166 US 226 (1897). The Court had earlier rejected the concept. SlaughterHouse Cases, 83 US (16 Wall) 36 (1873). See generally Fairman, Charles, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stan L Rev 5 (1949)CrossRefGoogle Scholar; Berger, Government By Judiciary (cited in note 102).

187. Louis Fisher has prepared a very useful table which traces the steps by which incorporation has been accomplished. See Fisher, Louis, American Constitutional Law at 393–94 (cited in note 125)Google Scholar. See generally Henkin, Louis, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L J 74 (1963)CrossRefGoogle Scholar; Lockhart, William B., Kamisar, Yale, Choper, Jesse H. & Shiffrin, Steven H., Constitutional Law (West, 7th Ed 1991)Google Scholar.

188. Witters v State, Com'n for the Blind, 102 Wash 2d 624, 689 P2d 53 (1984), rev'd, 474 US 481 (1986), reaffirmed on state constitutional grounds, 112 Wash 2d 363, 771 P2d 1119 (1989), cert denied, 475 US 1091 (1989) (denial of educational grant to blind student on the grounds that he would use it to study for the ministry). Four of the nine Justices of the Washington Supreme Court dissented, and three wrote opinions. Justices Utter, Dolliver & Dore dissented on the grounds that the majority's holding was inconsistent with the language of the Washington State Constitution, and that it denied Mr. Witters the right to practice his religion as he chose. Id 771 P2d at 1124. Justices Dolliver and Dore dissented on the grounds that the majority's ruling was a denial of Witters' rights under the Free Exercise Clause. Id, 771 P2d at 1132. And Justice Durham dissented on the grounds that the Washington State Constitution's Establishment Clause should not be construed so broadly in a case such as this one. Id, 771 P2d at 1136.

189. The question of just how the Fourteenth Amendment “incorporates” the liberty and equality norms of the Constitution and Bill of Rights is a subject beyond the scope of this paper. Akhil Reed Amar's work on the meaning of the Privileges and Immunities Clause provides much useful background and critical analysis of earlier sources. See Amar, Akhil Reed, The Bill of Rights as a Constitution, 100 Yale L J 1131 (1991)CrossRefGoogle Scholar.

190. Wallace v Jaffree, 472 US 38 (1985).

191. See Jaffree v James, 554 F Supp 1130, 1132 (SD Ala 1983), rev'd 705 F2d 1526 (11th Cir 1983) and 713 F2d 614 (11th Cir 1983) aff'd, Wallace v Jaffree, 472 US 38 (1985). See also Jaffree v Board of School Comm'rs of Mobile County, 459 US 1314, 1315-1316 (1983) (Powell, J. Circuit Justice).

192. Wallace v Jaffree, 472 US at 49.

193. This topic is developed in considerable detail in the part of this essay which could not be included here due to space limitations. That manuscript, entitled “By What Right?” The Sources and Limits of Federal Court and Congressional Jurisdiction Over Matters “Touching Religion,” has only recently been submitted for editorial consideration.

194. In Oregon v Mitchell, 400 US 112 (1970), Justice Brennan wrote that:

“[T]he statements of Bingham and Howard in the text indicate, the framers of the [Fourteenth] Amendment were not always clear whether they understood it merely as a grant of power to Congress or whether they thought, in addition, that it would confer power upon the courts, which the courts would use to achieve equality of rights. Since § 5 is clear in its grant of power to Congress and we have consistently held that the Admendment grants power to the courts, this issue is of academic interest only.” Id 400 US at 264 & n 37.

195. 330 US 1, 15-16 (1947) (citation omitted) (emphasis added).

196. See Restatement (First) Conflict of Laws, § 451(2) (Supp. 1948) (discussing the availability of collateral attack on a judgment for lack of subject matter jurisdiction); Restatement (2d) Judgments § 11 (1982).

197. Erie v Tompkins, 304 US 64, 79 (1938). See Reid v Covert, 354 US 1, 5-6 (1957) (plurality opinion, per Black) (footnote omitted) (“[T]he United States is entirely a creature of the Constitution. Its power and authority have no other source.”).

198. 302 US 319 (1937).

199. Glendon & Yanes, 90 Mich L Rev at 479 (cited in note 117)Google Scholar.

200. Id at 479.

201. Id at 479, quoting Palko v Connecticut, 302 US 319, 325 (1937) (quoting Snyder v Massachusetts, 291 US 97, 105 (1934)).

202. Id at 479.

203. Id at 482.

204. See Amar, Akhil Reed, 100 Yale L J 1131 (1991)CrossRefGoogle Scholar; Glendon & Yanes, 90 Mich L Rev at 482 & n 25 (cited in note 17) (noting Amar's work)Google Scholar.

205. Though each of these questions could be the subject of a separate essay, an exhaustive treatment is not possible here. The intention is simply to raise the questions, and to note that the answers may require reconsideration of some of the existing case law. (See note 193).

206. See Leedes, Gary C., Rediscovering the Link Between the Establishment Clause and the Fourteenth Amendment: The Citizenship Declaration, 26 Ind L Rev 469 (1993)Google Scholar (“Church and state law represents the quintessential opportunity for application of federalist principles. While federalism does not eliminate religious liberty concerns, it provides a solution which mitigates deleterious effects on freedom. It is a solution which represents the wisdom of both the past and the present.”)

207. See note 193.

208. See, for example, Madsen v Women's Health Center, Inc., 114 S Ct 2516 (1994).

209. Noonan, J.T. Jr., The Believer and the Powers That Are (Macmillan,. 1987) xiiiGoogle Scholar.

210. Noonan's, John newest book, Free Exercise! The American Experience of Religious Freedom is due out in 1996Google Scholar.