Indiana Law Review


Rediscovering the Link Between the Establishment Clause

and the Fourteenth Amendment: The Citizenship
Declaration

Gary C. Leedes*

Introduction

In order to strengthen the United States Supreme Court's jurispru-

dence in Establishment Clause cases, this Article proposes a new, useful,

and realistic model of adjudication. More specifically, the introductory
section of the Fourteenth Amendment (the * 'citizenship declaration' ') is
depicted as a bridge between the Establishment Clause and the three

prohibitions in Section One of the Fourteenth Amendment. The citi-
zenship declaration prohibits the federal and state governments from

subverting a citizen's status in the political community because of his

or her creed or lack of religious commitment. For example, some gov-

ernment endorsements of religion make nonbelievers feel like outsiders
and second-class citizens. This is not permitted by the citizenship dec-

laration. Using the principle of equal citizenship in Establishment Clause

cases, there is no longer a need for judges to distort the meaning and

significance of documents written by James Madison and Thomas Jef-
ferson.

America's legal history is an ongoing dialogue between the past,

present, and future. This complicated history can be organized and

understood as an intelligible text. An important part of this text is the
Fourteenth Amendment's citizenship declaration, which is a key provision
subjecting state action to the prohibitions of the Establishment Clause.

Almost nothing in politics leads to more incongruous coalitions, 1

produces as many heated arguments, and excites deeper feelings than
church-state issues. Pitted against secularists, reform Jews, liberal Cath-

olics, and progressive Protestants on church-state issues are nearly all

Christian fundamentalists, most conservative Catholics and many Or-
thodox Jews. Battles over the role of religion in public life and arguments

over the allocation of government resources for religious purposes are

* Professor of Law, University of Richmond Law School. B.S., 1960, Wharton
School of the University of Pennsylvania; L.L.B., 1962, Temple University; L.L.M., 1973,

Harvard Law School; S.J.D., 1978, Harvard Law School.
1. On separation of church and state issues, there are more overlapping agreements

and disagreements among secular and sectarian groups than many pundits realize. See
Robert N. Bellah et al., The Good Society 181 (1991).



470 INDIANA LAW REVIEW [Vol. 26:469

important in their own right and are linked closely to contests over
family values, privacy rights, woman's rights, gay rights, multi-cultur-
alism, funding for the arts, the content of public school textbooks, and

similar contests too numerous to mention here. 2 The stakes are high

because there are irreconcilable differences of opinion about the content

of the common good, the existence and nature of truth, and the moral
equivalency of life-style choices.

Many relentless secularists who condemn alliances between religious
institutions and government3 treat "religion as an unreasoned, aggressive,

exclusionary, and divisive force that must be confined to the private

sphere." 4 On the other hand, many cultural conservatives who believe
that morality is reinforced by religion call the secularists misguided,

elitist, paranoid, and intolerant. Bitterness between the warring camps

causes politically destabilizing (even potentially violent) divisiveness along

sectarian lines, 5 and the antagonists are not tranquilized by seemingly

endless litigation. United States Supreme Court decisions often provoke

new waves of impassioned rhetoric by those who care, and millions of
Americans do care fervently about church-state issues. 6

Many judges who decide church-state issues try to apply neutral
principles of law. However, what one litigating side sees as neutrality,

another sees as callous indifference or hostility. 7 Moreover, what one

• 2. See James D. Hunter, Culture Wars: The Struggle to Define America

xi-xii, 52-64 (1991).

3. See, e.g., Kathleen M. Sullivan, Religion and Liberal Democracy, 59 U. Cm.
L. Rev. 195, 213-14 (1992).

4. Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Cm. L.
Rev. 115, 120 (1992). Justice Black improperly referred to Catholics who favored textbook
loans to religious schools as "powerful sectarian religious propagandists" whose "pre-

ferences and prejudices" impel them to look forward to "complete domination and

supremacy of their particular brand of religion." Id. at 121 (quoting Board of Educ. v.

Allen, 392 U.S. 236, 251 (1968)(Black, J., dissenting)).

5. After intimating in Lynch v. Donnelly, 465 U.S. 668 (1984), that political

divisiveness was not ordinarily an independent ground for nullifying government support

for religion, the United States Supreme Court changed its mind in Aguilar v. Felton, 473

U.S. 402 (1985). Showing its concern again in Lee v. Weisman, 112 S. Ct. 2649 (1992),

the Court stated that "[t]he potential for divisiveness [along religious lines] is of particular

relevance here." Id. at 2656. Justice Blackmun also observed that "[r]eligion has not lost

its power to engender divisiveness." Id. at 2666 n.10 (Blackmun, J., concurring). Scholars

share the Court's concerns about a kulturkampf (i.e, a culture war). See, e.g., Leonard

W. Levy, The Establishment Clause: Religion and the First Amendment ix (1986).
6. "Of all the issues the ACLU takes on — reproductive rights, discrimination

. . . police brutality, to name a few — by far the most volatile issue is that of school
prayer. Michele A. Parish, Graduation Prayer Violates the Bill of Rights, 4 Utah B.J.
19 (June/July 1991), cited in Lee v. Weisman, 112 S. Ct. 2649, 2666 n.10 (1992) (Blackmun,

J., concurring).

7. The Court sometimes claims that governmental "neutrality" toward religion is



1993] THE CITIZENSHIP DECLARATION 471

side views as benevolent, nonpreferential aid to mediating religious in-

stitutions, the other views as impermissible and threatening official spon-

sorship.

On church-state issues, reasonable moderates on both sides think
the neutrality ideal is chimerical. For example, moderate accommoda-

tionists cannot understand how government aid to charitable nonreligious
institutions is neutral if aid is not given to charitable religious institutions,

and moderate secularists do not understand why the display of a religious
symbol on government property is a legitimate accommodation, rather

than an impermissible endorsement, of religion. Whatever the issue, and

despite the judiciary's efforts to depoliticize religion and diminish dis-

unity, 8 anger flares anew each time the United States Supreme Court

interprets the Establishment Clause.9

In constitutional law cases, the meaning of the Constitution "is

always partly determined ... by the historical situation of the interpreter
..." who understands the text in ways different from its authors. 10

Jurists, therefore, should concede that the Constitution's meaning is

influenced by their cultural preconceptions and predispositions (avoidable

and unavoidable). Judges should be self-consciously critical of their habits

of thought. 11

The Court's habitual repetition of its flawed reconstruction of the

original meaning of the First Amendment's religion phrases is partly
responsible for the deplorable condition of its Establishment Clause

jurisprudence. 12 A former United States Solicitor General rates the doc-

the preeminent goal of the First Amendment. See, e.g., Grand Rapids Sch. Dist. v. Ball,

473 U.S. 373, 382 (1985); Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 747 (1976)
(plurality opinion); Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 792-93 (1973). However, the Court's concept of neutrality as applied does not always

appear neutral to those excluded from programs because of their religious affiliations.

For example, the principle that parochial schools may not obtain aid for secular programs
identical to programs in public schools is arguably not neutral if an institution would be

entitled to aid but for its religious affiliation.

8. In the view of James Madison, the more factions there were, the less likely

were the chances of a coalition powerful enough to endanger religious liberty. William

L. Miller, The Business of May Next: James Madison and the Founding 13 (1992).
9. U.S. Const, amend. I. The First Amendment to the United States Constitution,

in part, provides: "Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise [of religion] . ..." Id.

10. Hans Georg-Gadamer, Truth and Method 263 (Continuum 1975) (2nd ed.
1965).

11. See Joel C. Weinsheimer, Gadamer's Hermeneutics, A Reading of Truth
and Method 175 (1985).

12. There is discontent along the entire liberal-conservative spectrum of political

thought. See Steven D. Smith, Separation and the "Secular": Reconstructing the Dises-

tablishment Decision, 67 Tex. L. Rev. 955, 956 (1989). The Court's Establishment Clause



472 INDIANA LAW REVIEW [Vol. 26:469

trinal coherence of the Supreme Court's Establishment Clause cases on

a scale of one to ten as between "zero" and "less than zero." 13 Because

of a barrage of criticism directed against hyperactive judges (and other

causes beyond the scope of this Article), 14 the public thinks we have a
government of persons, not of laws. Before the general public became

so aware of the Supreme Court's fallibility and lack of judicial restraint,

the Justices could more easily convince the American people that the
text of the Constitution, as illuminated by the intentions of the Founding

Fathers, dictated their Establishment Clause decisions.

In Everson v. Board of Education ,
15 the Court announced that the

Establishment Clause (supplemented by the Fourteenth Amendment) means
at least this: "Neither a state nor the Federal Government . . . can pass

laws which aid one religion, aid all religions, or prefer one religion over

another." 16 To support this statement, Justice Black equated the pro-
hibitions of the Establishment Clause with the provisions of Thomas
Jefferson's "Virginia Bill for Establishing Religious Freedom." 17 Justice

Rutledge also relied on history, especially Virginia's history. In dissent,

he would have prohibited payment of bus fares for children who went
to parochial schools even though the legislature authorized payment for

all children transported to school. 18 According to Justice Rutledge, "[n]o

provision of the Constitution is more closely tied to or given [more

authentic] content by its generating history than the religious clause of

the First Amendment." 19 A year later, in Illinois ex rel. McCollum v.
Board of Education,20 eight Justices endorsed without qualification the

accuracy and sufficiency of Justice Rutledge's historical research.

Justice Rutledge considered the views expressed by James Madison

during the Virginia disestablishment process as authoritative, 21 and wrote,

tests consist of "contradictory principles, vaguely defined tests, and eccentric distinctions."

Phillip T. Johnson, Concepts and Compromise in First Amendment Religious Doctrine,
72 Cal. L. Rev. 817, 817 (1984).

13. Rex Lee, The Religion Clauses: Problems and Prospects, 1986 B.Y.U. L. Rev.

337, 338.

14. Other causes of public mistrust include, for example, the media's reportage,

which has exposed the political agendas of the Court's left and right wings.

15. 330 U.S. 1 (1947).

16. Id. at 15.

17. Id. at 13. One version of Jefferson's Bill, dated June 12, 1779, is reprinted
in 5 The Founders' Constitution 77 (Phillip B. Kurland & Ralph Lerner eds., 1987).

18. 330 U.S. at 52-53 (Rutledge, J., dissenting).

19. Id. at 33 (Rutledge, J., dissenting). The opinions in Everson "invoked the

names of Madison and Jefferson, singly or jointly, some three and half dozen times

(excluding footnotes)." Daniel L. Dreisbach, Thomas Jefferson and Bills Number 82-86

of the Revision of the Laws Of Virginia, 1776-1786: New Light on the Jeffersonian Model
of Church-State Relations, 69 N.C. L. Rev. 159, 175 n.83 (1990).

20. 333 U.S. 203 (1948).

21. As an antidote, see Rodney K. Smith, Public Prayer and the Constitution



1993] THE CITIZENSHIP DECLARATION 473

"[w]ith Jefferson, Madison believed that to tolerate any fragment of

establishment would be [unacceptable]. Hence, [Madison] sought to tear

out the institution not partially but root and branch and to bar its

return forever.'

'

22 Justice Rutledge's hero-worshipping narrative attaches

undue importance to Virginia's "Bill for Religious Freedom," which

does not in its enacting clauses expressly prohibit establishment of religion

and to Madison's Memorial and Remonstrance against religious assess-

ments (a petition more well known now than two centuries ago). Both
documents have been cited and relied upon by courts in scores of cases, 23

although it is at best dubious to assume that the ratifiers of the First

Amendment intended to impose upon the entire United States the same
disestablishment policy that the Commonwealth of Virginia adopted. 24

I. Demythologizing Jefferson and Madison

A Justice who relies on Thomas Jefferson must be very cautious.
"Jefferson was not wholly consistent when it came to an establishment
of religion."25 His "views [on religion] were sufficiently unorthodox for

him to take care that they [did] not become generally known."26 Although

ordinarily he was among the strictest of American disestablishment pro-
ponents, he did not object to some treaties and legislation that provided

federal funds to meet the religious needs of Native Americans, and

which "propagate[d] the Gospel among the Heathen."27 He also used
religion manipulatively to rally the colonists against Great Britain. 28

Jefferson's contributions advancing the cause of disestablishment,

although undeniably important, are often exaggerated by jurists. Indeed,

the momentous social transformation called disestablishment cannot be
reduced to anecdotes about Jefferson's efforts in Virginia during the

1780s. The disestablishment of religion has been a complex, variable

125-32 (1987) (discussing why Justice Rutledge's position is weakly supported by the
historical record).

22. Everson, 330 U.S. at 40.

23. Dreisbach, supra note 19, at 173-74 n.78.

24. See Mark D. Howe, Religion and the Free Society: The Constitutional Question,
in Selected Essays on Constitutional Law 1938-1962, 780, 781 (Association of American
Law Schools ed., 1963).

25. Levy, supra note 5, at 183. Jefferson, acting as Rector of the University of

Virginia, did not entirely exclude religious education from the University, a point discussed

at some length by Justice Reed. See Illinois ex rel. McCollum v. Board of Educ, 333

U.S. 203, 245-47 (1948) (Reed, J., dissenting). Madison approved of Jefferson's decision

as rector. Id. at 248.

26. Garry Wills, Under God: Religion and American Politics 354 (1990).
27. See Levy, supra note 5, at 183.

28. Wills, supra note 26, at 359-60.



474 INDIANA LAW REVIEW [Vol. 26:469

process occurring throughout the Western world over a long period of

time.

Unlike the French immediately after the French Revolution, "the

Americans did not regard their revolution as a repudiation of the Christian

past." 29 Moreover, for believing Americans, the new nation under the
new Constitution was "not perceived to be inimical to the Christian

church or Christian beliefs." 30 Before 1800, in some respects, the dis-

establishment process in France,31 Austria, and the Kingdom of Tuscany
advanced faster than in Massachusetts.

The Court's doctrine which is shaped by its excessive reliance on
Virginia's disestablishment of the Anglican Church is vulnerable to dev-

astating criticism. 32 As Professor Howe wrote, "[b]y superficial and
purposive interpretations of the past, the Court has dishonored the arts

of the historian and degraded the talents of the lawyer." 33 Fortunately,

the Court today seems aware that the versions of history presented by

Justices Rutledge and Black are incomplete. Nevertheless, judicial opi-

nions still invoke the names of James Madison and Thomas Jefferson
as if recurrence to their guiding principles were a simple hermeneutical

task. Not so; our world view as we approach the 21st century is not
the same as the founding generation's. There are continuities of course,

but there are many discontinuities as well. Contrary to now-discredited
hermeneutic theories, the past cannot be studied as if it is fixed or

static.

The founding generation, on religious and other questions, was not

of one mind but rather was split into politically partisan factions. The

United States Supreme Court mistakenly emphasizes only one side of

the debate that divided the young American republic's founding gen-

eration. It hears the voices of Jefferson and Madison but not Alexander

Hamilton, Benjamin Rush, John Jay or political leaders in New England,
like Noah Webster, who relied on government supported religion to
inculcate civic virtue.

29. Id. at 115.

30. Miller, supra note 8, at 114.

31. The ultimate disestablishment, although temporary, occurred in France in 1795

when formal separation of Church and State was decreed and when Pope Pius VI became

a French prisoner.

See Paul Johnson, A History of Christianity 360 (1976).
32. See Mark D. Howe, The Garden And The Wilderness: Religion And

Government In American Constitutional History (1965). Justice Brennan warned against

a "too literal quest for the advice of the Founding Fathers upon the issues of [religious

establishment]." Abington School Dist. v. Schempp, 374 U.S. 203, 237 (1963) (Brennan,

J., concurring).

33. Howe, supra note 32, at 4.



1993] THE CITIZENSHIP DECLARATION 475

The Establishment Clause contains traces of meaningful information

that are usually deleted in judicial opinions. The Court minimizes the

importance of the earliest applications of the Establishment Clause by

Congress, the courts, and by officials in the executive branch as if these

telling state and federal precedents are de minimis or were inexplicable

mistakes, e.g., laws against blasphemy, official resolutions for days of

fasting and Thanksgiving, presidential inaugural addresses, and the ap-

pointment of Chaplains to the Congress. Indeed, the First Congress

supported "sectarian education on Indian reservations, provid[ed] for

religious objects on public property, and permitted] public property to

be used for religious purposes." 34 Apparently, the Court wants to have

it both ways; it wants to rely on the history that supports its theory

of the Constitution's religion provision and it wants to ignore the history

that does not. For example, the Court has never addressed the apparent

"conflict between Jefferson's law punishing 'Sabbath Breakers' and the

strict separationist position attributed to Jefferson by the Everson Court." 35

Writing "law office" history is not the Court's only failing. The

Justices often approach their interpretive duties with too much of a
clause-bound approach. The meaning of the Establishment Clause (and

the known intentions of those who supported its inclusion in the Con-
stitution) must not be interpreted only sentence by sentence; the provisions

of the eritire document must be read holistically and integrated with

each other. For example, the Establishment Clause cannot be completely

understood until it is juxtaposed, if not reconciled with, the Constitution's

Preamble, 36 its Clause guaranteeing a republican government, 37 the Tenth

Amendment, 38 the Free Exercise Clause, 39 and the declaration of citi-

zenship in the Fourteenth Amendment, which secures the citizenship

status of all persons born in the United States, regardless of their creed. 40

In this Article, I criticize the arguments used by judges to justify

their historically flawed Establishment Clause decisions. I suggest that

judges who attempt to understand the lineage of the language of the
Constitution in the context of history must recognize that the writings

of Madison and Jefferson and the records of the Virginia disestablishment

34. Rodney K. Smith, Nonpreferentialism in Establishment Clause Analysis: A
Response to Professor Laycock, 65 St. John's L. Rev. 245, 255 (1991). See also supra

note 27 and accompanying text.

35. Dreisbach, supra note 19, at 204.

36. U.S. Const, pmbl.

37. U.S. Const, art. IV, § 4.

38. U.S. Const, amend. X.

39. U.S. Const, amend. I.

40. The Fourteenth Amendment reads in part: "All persons born or naturalized
in the United States, and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside." U.S. Const, amend. XIV, § 1.



476 INDIANA LAW REVIEW [Vol. 26:469

process are merely small pieces in a large puzzle.41 The Virginians' views
were opposed in other regions of the country. Few of the Founders
thought that the Establishment Clause of the First Amendment limits
state power or preempts state constitutions advancing religion. 42 Even

Jefferson understood that the United States Constitution did "not stop

the States from assuming authority in the matters of religion."43

Madison and Jefferson were not one-dimensional thinkers. Their

respective world views contained contradictions, some of which were

irreconcilable. Their views on established religion were integrated with

their views about science, religious enthusiasm, the moral sense, repub-

licanism, separation of powers, federalism, and myriad other issues.

41. Thomas Jefferson was not actually in the Country during the relevant time
period. He sailed to Paris in 1784 as a United States Ambassador to France. See Dumas
Malone, Jefferson The Virginian 422 (1948). Jefferson sailed back home to America
late in October of 1789. See Adrienne Koch & William Peden, Introduction to The Life
and Selected Writings of Thomas Jefferson at xxvi (Adrienne Koch & William Peden
eds., 1944). See also, Robert L. Cord, Separation of Church and State: Historical
Fact and Current Fiction 85-86 (1982).

42. Justice Stewart grasped this point writing that:

the Establishment Clause was primarily an attempt to insure that Congress not

only would be powerless to establish a national church, but would also be unable

to interfere with existing state establishments. Each state was left free to go its

own way and pursue its own policy with respect to religion.
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 309-10 (1963) (Stewart, J., dissenting).

Justice Stewart noted that "it is not without irony that a constitutional provision evidently

designed to leave the States free to go their own way should now have become a restriction
upon their autonomy." Id. at 310.

Levy also writes: "As at the Constitutional Convention, a widespread understanding

existed in the states during the ratification controversy that the new central government

would have no power whatever to legislate on the subject of religion." Levy, supra note

5, at 74. See also Cord, supra note 41, at 40; Wilbur G. Katz, Religion and American

Constitutions 8-10 (1964); Martin E. Marty, Pilgrims In Their Own Land 163 (1984);
Akhil R. Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991);

Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 Nw. U.
L. Rev. 1113, 1132-35 (1988); Edward S. Corwin, The Supreme Court as National School

Board, 14 Law & Contemp. Probs. 3, 14 (1949); Mary Ann Glendon & Raul F. Yanes,
Structural Free Exercise, 90 Mich. L. Rev. 477, 481-82 (1991); Clifton B. Kruse, Jr.,

The Historical Meaning and Judicial Construction of the Establishment of Religion Clause

of the First Amendment, 2 Washburn L.J. 65, 66 (1962); William K. Lietzau, Rediscovering
the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L.

Rev. 1191, 1201-02 (1990); Michael A. Paulsen, Religion, Equality, and the Constitution:

An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame
L. Rev. 311, 317 (1986); Joseph M. Snee, Religious Disestablishment and the Fourteenth

Amendment, 1954 Wash. U. L.Q. 371-73, 406-07; William Van Alstyne, What Is "An
Establishment of Religion, " 65 N.C. L. Rev. 909, 910 (1987); Note, Rethinking the

Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700,
1700 (1992).

43. Cord, supra note 41, at 40.



1993] THE CITIZENSHIP DECLARATION 477

Madison and Jefferson, who did not always agree with each other, were
both willing to negotiate with their political opponents. Indeed, Madison

was a successful politician not because he was doctrinaire but because

he was willing to compromise,44 even on some matters of principle. 45

Madison's vision of disestablishment for Virginia was more com-

prehensive than most of his contemporaries who voted to ratify the First
Amendment in order to prevent Congress from meddling with state
establishments. 46 This policy of nonintervention was, in effect, a mul-

tilateral nonaggression pact. The ratifying conventions in each state after

the summer of 1787 and the verbal exchanges in the First Congress
during the summer of 1789 strongly suggest that the polemics of both
Madison and Jefferson (regarding the nature and pace of disestablishment

in Virginia) diverged from the ideas of most Americans.47 Both Virginians

were ahead of their time, and their advocacy was not always indicative

of public opinion.

Madison's Remonstrance (circa June 1785), the now famous petition
listing objections to Patrick Henry's bill providing tax funds to teachers

of the Christian religion, was a broadside that has gained in stature

and influence48 since it was written anonymously and considered at the

44. Madison was not a rigid ideologue "nor a man of doctrinaire temperament,
nor marked by any nostalgia for the absolute." Miller, supra note 8, at 285. He was
among other things a "tactician, the compromiser, the 'skillful organizer who could keep
various factions and pressure groups together'." Id. at 12. When his proposals for a bill
of rights were opposed, he skillfully set about bringing his opponents into the fold. Id.

at 268.

45. For an unusually informative article proving that Madison and Jefferson were

willing to compromise their principles during the Virginia disestablishment process, see

generally, Dreisbach, supra note 19, at 159. Jefferson apparently authored A Bill for
Appointing Days of Public Fasting and Thanksgiving, id. at 193, and A Bill Annulling
Marriages Prohibited by the Levitical Law, and Appointing the Mode of Solemnizing
Lawful Marriage. Id. at 199. Dreisbach writes, "Jefferson [at least in the 1780sJ may
have held a more accommodating view of church-state relations than the strict separationist

version of legal history would suggest." Id. at 203. "While Madison's 'Memoranda' and

Jefferson's 'wall [of separation]' metaphor are frequently invoked by the judiciary, their

'Bill for Appointing Days of Public Fasting and Thanksgiving' is largely forgotten." Id.

at 195. For another discussion of Jefferson's Bill for Punishing Disturbers of Religious

Worship and Sabbath Breakers, see Robert L. Cord, Interpreting the Establishment Clause

of the First Amendment: A "Non-Absolute Separationist" Approach, 4 Notre Dame J.L.
Ethics & Pub. Pol'y 731, 735-36 (1990).

46. The Court, contrary to the founding generation, treats the establishment-of-

religion issue by local officials as legally impermissible.

47. Madison and Jefferson both knew that for many Americans religious loyalties
were more obligatory than loyalty to the nation. Bellah et al., supra note 1, at 181.

48. See Thomas J. Curry, The First Freedoms: Church and State in America
to the Passage of the First Amendment 143 (1986).



478 INDIANA LAW REVIEW [Vol. 26:469

time "a mite excessive."49 For example, Madison went into rhetorical

overdrive when he suggested that Patrick Henry's proposed tax was, in
principle, as objectionable as the Inquisition. 50 In his Remonstrance,

Madison's entire list of argumentative objections to the proposed tax

assessment did not express the national will51 respecting disestablishment

because by 1791, national disestablishment issues were discussed in the

context of a debate over states' rights. Judges, advocates, and academics

on opposite sides of contemporary church-state issues, however, cite

passages from Madison's memorabilia as if Madison himself anticipated

the Fourteenth Amendment issues that are now being brought to the
Court.

The fact that we delude ourselves about our history when we think
we are not deluding ourselves is a puzzling irony developed by contem-
porary hermeneutists. 52 "Constitutional history almost always suffers

from what T.S. Eliot described as the cruelty of mixing memory with
desire." 53

Contrary to legends popularized by the Court, Madison's views

changed over time and the views he expressed in public changed depending

on his various roles as advocate, candidate for office, member of the
Virginia General Assembly, member of the United States House of
Representatives, President, private letter writer, and writer of memoranda54

published posthumously. For example, all the arguments in Madison's

Remonstrance against a bill attempting "to enforce by legal sanctions,

acts obnoxious [to most Virginians]" 55 were not entirely germane when
he served in the United States House of Representatives and proposed
amendments to the Constitution. Obviously, Madison's role in the House

was different from his role as a ghost writer for a Presbyterian faction.

His role was also different when he served in the Virginia General
Assembly. For example, in 1785, he introduced a bill (probably drafted

49. William L. Miller, The First Liberty: Religion and the American Republic
137 (1985).

50. Id.

51. When published in 1785, the Remonstrance was not the most widely supported
published petition protesting Patrick Henry's Assessment Bill. See Id. at 39.

52. See generally Georg-Gadamer, supra note 10.

53. Philip B. Kurland, The Origins Of The Religion Clauses Of The Constitution,
27 Wm. & Mary L. Rev. 839, 860 (1986) (invoking T.S. Eliot, The Waste Land, in
Collected Poems 1909-1962, at 53 (1963)).

54. Madison's views in the so-called Detached Memoranda written during his
declining years, although often cited by judges, do not necessarily coincide with his views

in 1789 when he proposed amendments to the Constitution including the precursor of the

Establishment Clause.

55. James Madison, Memorial and Remonstrance Against Religious Assessments

(1785), reprinted in 5 The Founders' Constitution, supra note 17, at 84.



1993] THE CITIZENSHIP DECLARATION 479

by Jefferson) providing for punishment of
'

'sabbath breakers." 56 One
of his biographers describes how Madison adeptly shifted his roles from
"the statesman of artful accommodations' ' to "single-principled abso-

lutist."
57

Madison's arguments why Christian teachers should not be paid by
the government's treasury in 1785 were cited by the Court in Lee v.

Weisman5* to justify its condemnation of graduation prayers in public

schools, but Madison's own arguments against chaplains to Congress
were not heeded by the House of Representatives and Senate whose

resolutions authorized the national Treasury to appoint and pay their

official chaplains in 1789 and 1790.59 Congressional action appointing

chaplains and endorsing prayer might show that Congress deviated from

the Constitution's principles as Justice Souter recently argued,60 but it

also tends to prove that Congress did not agree with Madison's privately

published interpretations of the Establishment Clause.

By 1789, Madison had become the nation's most important advocate

for a bill of rights. 61 Nevertheless many facets of the Virginian's views
were not known,62 understood, debated, or approved by most ratifiers

of the Establishment Clause. Furthermore, "[t]here were important changes

in . . . language as these proposed amendments passed from James

Madison's hand, on June 8, 1789, through the complicated process in

the House, the Senate, the conference committee, and the ratifications

56. Dreisbach, supra note 19, at 190. The religious nature of the bill punishing

sabbath breakers is undeniable; it was not introduced primarily for secular purposes. See

id. at 191.

57. Miller, supra note 49, at 137.

58. 112 S. Ct. 2649, 2657 (1991).

59. The House and Senate, even after proposing the Establishment Clause for

ratification, appointed paid Chaplains to both houses of Congress. See 3 Documentary
History of the First Federal Congress, 1789-1791 251, 254, 623-25 (Linda Grant De
Pauw ed., 1977). See also Letter from James Madison to Edward Livingston (July 10,
1822) reprinted in 5 The Founders' Constitution, supra note 17, at 105 (containing
Madison's explanation of his position at the time). This letter was cited by Justice Souter

in Weisman, 112 S. Ct. at 2675 n.6 (Souter, J., concurring). Justice Souter understands,

however, that "the Framers simply did not share a common understanding of the Es-
tablishment Clause." Id.

60. Weisman, 112 S. Ct. at 2675.

61. Miller, supra note 8, at 6. Madison screened the proposed amendments to

the Constitution and decided which ones were not likely to be seriously controversial. Id.

at 253. He did some editing, and engaged in considerable prodding. Id. at 252. The list
of rights that were eventually ratified through his leadership were similar to those selected

by Madison, although the proposed amendment he thought most important, dealing with

limitations on state power to regulate religion, did not survive in the Senate. Id. at 252-

259.

62. Madison in the 1780s was reluctant to admit that he wrote the Remonstrance.

Miller, supra note 49, at 98.



480 INDIANA LAW REVIEW [Vol. 26:469

by the state legislatures, into the Constitution of the United States on

December 15, 1791." 63

Seemingly oblivious to problems caused by excessive reliance on

selected snippets from Madison's writings, Justice Blackmun in Weisman
relies on Madison's Remonstrance as if it memorializes the founders'

understanding of the First Amendment's unchanging meaning. 64 This type
of propaganda is needlessly primitive. Justice Souter, concurring in

Weisman, cites Madison's "Detached Memoranda"65 which are not a
reliable record of the national will that prevailed when the First Amend-
ment was ratified. Written in Madison's declining years between 1817

and 1832, the Memoranda contain personal opinions that contradict some
of Madison's other writings and actions concerning disestablishment. 66

Let me now clarify what I am not arguing. I am not denying that
Madison and Jefferson were remarkably influential leaders of public

opinion, and I concede that late eighteenth century history is pertinent

in Establishment Clause cases brought under the Fourteenth Amendment.

I am arguing, however, in support of a diachronic rather than a syn-
chronic view of history. Instead of isolating a slice of time— for example,
the period between 1785 and 1791—the Court should consider the sweep
of history that indicates the long term dialogical and doctrinal continuities

and discontinuities that are relevant in a particular case.

Instead of a diachronic approach, the Court isolated brief fragments

of recorded history when, citing the words of Jefferson, Justice Black

attempted to "erect 'a wall of separation between Church and State.'
"67

The Court did not give any weight to the opinions of leaders who
disagreed with Jefferson and his allies. The Court in 1947 did not

consider the anti-slavery origins of the Fourteenth Amendment's citi-

zenship declaration, which arguably prohibits noncoercive state aid to

religion only if it subverts a person's citizenship status. Clearly, the

Court in Everson was attempting to transform the American people's

understanding of their past in order to influence their future. 68 Everson's

63. Miller, supra note 8, at 259.

64. Weisman 112 S. Ct. at 2666 (Blackmun, J., concurring).

65. Id. at 2673, 2675, 2675 n.6 (Souter, J., concurring).

66. Cord, supra note 41, at 30-31. I should point out that Justice Souter does

not rely on Madison as much as on Justices Rutledge, Black, or Blackmun; his point is

that the critics of the Court's rendition of history have not presented arguments that are

cogent enough to overturn prior precedent. See Weisman, 112 S. Ct. at 2673-76 (Souter,

J., concurring).

67. Everson v. Board of Educ, 330 U.S. 1, 16 (quoting Reynolds v. United States,

98 U.S. 145, 164 (1878)).

68. In Weisman, Justice Blackmun cited Justice Black's dicta, calling it "the

touchstone of Establishment Clause jurisprudence." 112 S. Ct. at 2662 (Blackmun, J.,



1993] THE CITIZENSHIP DECLARATION 481

dicta led to the school prayer cases in the 1960s69 and scores of other

decisions condemning relationships between local governments and re-

ligious institutions.

Because of Everson, the federalism shield limiting the reach of the

Establishment Clause has ironically been transformed into a sword for

attacking state laws respecting religion. 70 The judge-made doctrine in-

corporating the Establishment Clause as a negation of the States' power

to aid religion noncoercively and nonpreferentially seems entrenched for

the foreseeable future. 71 The Court's muddled theory of selective in-
corporation can be improved without a dramatic invalidation of precedent

if the Court uses the Fourteenth Amendment's declaration of citizenship,
which protects the immunities of individuals in addition to their liberties. 72

According to the model described in this Article, if the government

endorses religion and if the endorsement detracts from a person's cit-

izenship status, then the citizenship declaration, which augments the

Establishment Clause, is violated. Consider, for example, the situation

of Jews in the United States. 73 In the words of Professor Alan Dershowitz,

"[t]he separation of church and state in America is the foundation on

which the first-class legal status of American Jews rests." 74 He is partially
correct; his emphasis on separation, however, does not fully guarantee

the status of Jews; the Fourteenth Amendment's declaration of citizenship
does (explained below in Section IV).

Dershowitz writes, "The goal of the Christian right is to convert
Jews, or at the very least, to relegate them to second class status in

their Christian America."75 Although Dershowitz's assertion is overin-

concurring). Justice Souter referred favorably to dicta in Everson prohibiting any and all

aid to religion even if State programs "aid all religions." Id. at 2667 (Souter, J., concurring)

(quoting Everson, 330 U.S. at 15). Justice Stevens and Justice O'Connor joined the

concurring opinions of Justices Blackmun and Souter. Id. at 2661, 2667.

69. See Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963) (holding the practice

of daily Bible reading and recitation of Lord's Prayer in elementary and secondary public

schools unconstitutional); Engle v. Vitale, 370 U.S. 421 (1962) (holding the practice of

reciting a nondenominational prayer written by state officials unconstitutional).

70. Curry, supra note 48, at 208. Levy concedes that "religion as a subject of
legislation was reserved exclusively to the states." Levy, supra note 5, at 74. He adds,
however, that "[t]o expect the Supreme Court to turn back the clock by scrapping the

entire incorporation doctrine is so unrealistic as not to warrant consideration." Id. at

166.

71. See Weisman, 112 S. Ct. at 2673 n.4 (Souter, J., concurring).

72. See Kenneth L. Karst, Belonging to America: Equal Citizenship and the
Constitution 52 (1989).

73. The status and standing of Jews in the United States is vastly different from
countries where, throughout history, they have been unwelcome, vilified, and savagely

persecuted.

74. Alan M. Dershowitz, Chutzpah 313 (1991).
75. Id. at 336.



482 INDIANA LAW REVIEW [Vol. 26:469

elusive, courts must protect all citizens vigorously when government
endorsements of religion subvert any person's citizenship status and

immunities. Recently, however, the Court has observed that '"the gov-

ernment may (and sometimes must) accommodate religious practices and
that it may do so without violating the Establishment Clause'." 76 Ac-
cordingly, the government does not establish religion when it is necessary
to "lift a discernible burden on the free exercise of religion." 77 This

position leads to the accommodationists' interpretation of the Estab-

lishment Clause.78 Yet, how far down that road will the Court travel?
Moderates on the Court have signified most recently in Lee v. Weisman

that there is a line beyond which the government may not accommodate
religion.

79

Weisman was not an easy case because the record barely supports

Justice Kennedy's inference that petitioner Deborah Weisman was psy-
chologically coerced to participate in the religious exercise she challenged

as unconstitutional,80 especially in view of her counsel's stipulation that

her attendance at graduation was "voluntary." Deborah was not coerced

by state law, as Justice Scalia asserts with some rancor. 81 Justice Kennedy

explained, however, that official school policy forced Deborah to choose

76. Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 334 (1987) (citing

Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144-45 (1987)).
77. Lee v. Weisman, 112 S. Ct 2649, 2677 (1992).

78. Accommodationist Richard John Neuhaus, author of the influential The Naked

Public Square, thinks "it is past time" for the Court to recognize candidly that **[i]n a

society that is strongly and pervasively religious, it is not possible to have a government

that is both democratic and, at the same time, indifferent or hostile to religion." Richard

J. Neuhaus, The Naked Public Square: A Metaphor Reconsidered, in First Things 78,
80 (The Inst, on Religion and Public Life ed., May 1992).

79. In Weisman a trio of Justices having varying degrees of enthusiasm for ac-

commodation (Justices O'Connor, Souter, and Kennedy) joined with two Justices with

stricter separationists views (Justices Blackmun and Stevens) and voted together as the

Court condemned a nonsectarian prayer delivered by a rabbi at graduation exercises at

a public school. Justice Souter decided that "the graduation prayers at issue . . . crossed

the line from permissible accommodation to unconstitutional establishment." Weisman,

112 S. Ct. at 2677 (Souter, J., concurring).

80. The Court's finding of coercion was predicated on the following facts not

disputed by the litigants: In 1989, a public school principal decided to include as part of

a graduation ceremony an invocation and benediction. Over the objections of Deborah

Weisman and her father, the principal selected a clergyman, in this case a rabbi, to lead

the audience of children and adults assembled in prayer. The rabbi was advised to deliver

a non-sectarian prayer, and the school principal provided him with guidelines distinguishing

between appropriate and inappropriate prayers. Weisman, 112 S. Ct. at 2652-53. The

rabbi chose a prayer that was based in part on the Book of the Prophet Micah, Ch. 6,

v. 8 from the Hebrew Scriptures. Id. at 2664 n.5 (Blackmun, J., concurring).

81. Id. at 2683-84. (Scalia, J., dissenting).



1993] THE CITIZENSHIP DECLARATION 483

between * 'social isolation" 82 and "prayers [that] were offensive/' 83 Ar-

guably for many teenagers in Deborah's situation, the only realistic
alternative is to submit to a religious exercise that is offensive—since a
graduation ceremony to most adolescents "is one of life's most significant

occasions." 84 Given this scenario, described with an empathy not present

in the dissenting opinion (which implies that Deborah is a little too thin-

skinned for her own and society's good), the Court held that "[t]he
Constitution forbids the State to exact religious conformity from a student

as the price of attending her own high school graduation." 85

An accommodationist whose citizenship status is not threatened by
the anti-Semitic currents in public opinion might wonder why Deborah
cannot take the bitter with the sweet? Is the "bitter" (i.e., the subtle,

psychological coercion of peer pressure) really the functional equivalent

of "legal coercion?86 The answer is yes, according to Justice Kennedy,

although his concept of psychological coercion has the potential—as
pointed out by Justice Scalia—of being "a boundless and boundlessly
manipulable test," one that varies in accordance with the "philosophical

predilections of the Justices." 87 Despite this dangerous potential, the

general principle "that the government may no more use social pressure
to enforce orthodoxy than it may use more direct means" 88 is, in theory,
judicially manageable. Moreover, the controversial principle protects the

citizenship status of persons who are stigmatized as outsiders if they do
not submit to social pressures exerted by government officials.

Court watchers had expected Justice Kennedy to adhere to the

principles he expressed in County of Allegheny v. ACLU*9 in which he
attacked the Court's "unjustified hostility toward religion."90 Although

Justice Kennedy's Weisman opinion modifies his previously stated po-
sition that "the Establishment Clause must be construed in light of the

'[government policies of accommodation, acknowledgment, and support

82. id.

83. Id. at 2659.

84. Id.

85. Id. at 2660.

86. Id. at 2683 (Scalia, J., dissenting).

87. Id. at 2679 (Scalia, J., dissenting). The dissenters concede that government-

sponsored endorsement of [sectarian] religion is out of order but not "the officially

sponsored non-denominational invocation and benediction read by Rabbi Gutterman." Id.

at 2684 (Scalia, J., dissenting).

88. Id. at 2659. As Professor McConnell wrote prophetically before Weisman,

there is an element of coercion when a student, in order to attend her graduation, is
forced to become a member of a captive audience which is subjected to a prayer, the
content of which is influenced by the government. McConnell, supra note 4, at 158.

89. 492 U.S. 573 (1989).

90. Id. at 655 (Kennedy, J., concurring in the judgment and dissenting in part).



484 INDIANA LAW REVIEW [Vol. 26:469

for religion [that] are an accepted part of our political and cultural

heritage,'"91 nothing in Weisman departs his general view that "[a]
relentless and all-pervasive attempt to exclude religion from every aspect

of public life could itself be inconsistent with the Constitution.

"

92

Significantly, Justice Kennedy did not rely on the guidelines of Lemon
v. Kurtzman 93 which have failed to produce a coherent body of law.94

The so-called Lemon "guidelines," 95 although more accommodating than
strict separationism, have confused lawyers and judges and have caused

persistent divisions among the Justices of the Supreme Court. The Court
in Weisman, however, declined invitations to abandon Lemon.96 Instead,
it relied on a rule inferable from previous precedent: viz., no public

school below the college level "can persuade or compel a student to

91. Weisman, 112 S. Ct. at 2678 (Scalia, J., dissenting) (quoting County of

Allegheny v. ACLU, 492 U.S. 573, 657 (1989) (Kennedy, J., concurring in the judgment
and dissenting in part)).

92. Id. at 2661.

93. 403 U.S. 602 (1971). To satisfy the Establishment Clause under the three Lemon
guidelines, "a governmental practice must (1) reflect a clearly secular purpose; (2) have

a primary effect that neither advances nor inhibits religion; and (3) avoid excessive

government entanglement with religion." Weisman, 112 S. Ct. at 2654. The first two

guidelines are derived from Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963); the

third is taken from Walz v. Tax Comm'n, 397 U.S. 664 (1970).
'94. Chief Justice Burger, the author of Lemon, admitted "[c]andor compels ack-

nowledgment . . . that we can only dimly perceive the lines of demarcation in this

extraordinarily sensitive area of law." Lemon v. Kurtzman, 403 U.S. at 612. Justice White
claims that the Lemon test "sacrifices clarity and predictability for flexibility." Committee
for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 662 (1980). Justice Scalia
calls the Supreme Court's establishment clause jurisprudence "embarrassing." Edwards v.

Aguillar, 482 U.S. 578, 639 n.7 (1987) (Scalia, J., dissenting), and describes the Lemon-

guided decisions as variations on a "theme of chaos." Id. at 640. Chief Justice Rehnquist,

referring to Lemon, called it a theory that "has no basis in the history of the amendment

it seeks to interpret, is difficult to apply and yields unprincipled results." Wallace v.

Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, C.J., dissenting). Justice O'Connor has

expressed doubts about the test. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573,
623 (1989); Aguilar v. Felton, 473 U.S. 402, 429 (1985) (O'Connor, J., dissenting). An
inviting pre-Weisman opinion written by Justice Kennedy indicates that a "[substantial

revision of our Establishment Clause doctrine may be in order." County of Allegheny v.
ACLU, 492 U.S. 573, 656 (1989) (Kennedy, J., concurring in the judgment and dissenting
in part).

95. It was Chief Justice Burger himself who explained that the three factors function
as a guideline, not a test. See Lynch v. Donnelly, 465 U.S. 668, 679 (1984). "Since 1971,

the Court has decided 31 Establishment Clause cases" and prior to Weisman, it had rested

all of those decisions, save one, "on the basic principles described in Lemon." Weisman,

112 S. Ct. at 2663 n.4 (Blackmun, J., concurring). The exceptional case was Marsh v.

Chambers, 463 U.S. 783 (1983) (upholding prayer opening a session of the state legislature).

96. Weisman, 112 S. Ct. at 2655. The lower courts had relied on Lemon, as the

Court noted. Id. at 2654-55.



1993] THE CITIZENSHIP DECLARATION 485

participate in a religious exercise." 97 The Court's expanded conception

of impermissible coercion in Weisman allowed it to postpone the difficult

business of clarifying or replacing the Lemon framework of analysis.
What is needed is a new and enduring model of adjudication that

is based on guidelines that can be plausibly derived from the Constitution.

Saying what is needed is obviously easier than providing an exemplar

that fulfills the need. Section IV of this Article constructs a new frame-

work of analysis that is faithful to the Constitution's text read holistically.

However, the state constitutions in effect at the time the Establishment

Clause was ratified must be taken into consideration. They created a
diminished citizenship status for non-Christians. Indeed, the endorsements

of religion in many late-eighteenth century state constitutions demonstrate
why the Court's version of American history is flawed, incomplete, and
misleading.

II. The Diminishing but Lingering Influence of Christianity in
State Constitutions

In 1740, a combination of religious beliefs and social attitudes known
as Puritanism was still the strongest cultural force in the New England
colonies destined to become independent States. 98 By 1776, the year of
the Declaration of Independence,99 such habits of mind had been unsettled

by influences stemming from "the Enlightenment, and several variants

of traditional Christianity." 500 Nevertheless, the heady wines of spirit-

filled revivalism and the Enlightenment were imbibed with moderation

in North America, where traditional modes of Christianity remained an

inhibiting reality.

97. Id. at 2661.

98. A. James Reichley, Religion in American Public Life 6 (1985).
99. The self-evident truths of the Declaration drew upon English legal theory, the

Whig political tradition, and Enlightenment themes that melded with Puritan covenant
theology. During the 18th century Enlightenment, new thinking in theology demystified
medieval and post-Reformation dogmatics. The Founding Generation was influenced by

John Locke's political theories and his great work, The Reasonableness of Christianity

(1695), which exalted human reason without denying the Gospel. Lest we forget, however,
the Declaration's first paragraph contains two references to the Deity: "Nature's God"
and "Creator." In the final paragraph, there are two more references: "Supreme Judge

of the world" and "Divine Providence." See The Declaration of Independence para.
1-2 (U.S. 1776). "[T]he signers generally agreed that a transcendent Creator had conferred

certain inalienable rights that were beyond the dominion of human government." Arlin
M. Adams & Charles J. Emmerich, A Nation Dedicated to Religious Liberty: The
Constitutional Heritage of the Religion Clauses 8 (1990). For a general discussion

of the Declaration's religious references, see Asan P. Stokes & Leo Pfeffer, Church
and State in the United States 561-66 (Greenwood Press rev. ed. 1975) (1964).

100. Reichley, supra note 98, at 6.



486 INDIANA LAW REVIEW [Vol. 26:469

In the new Federal Constitution, no provision was made for a state
supported church, and persons were not required to take any sort of

religious oath or test in order to hold a public office of the United

States.
101

It is a mistake, however, to think that secularists desiring

separation of church and state achieved their goals. The ties between
the several states and religious institutions were left undisturbed by the

Constitution. As William Lee Miller writes, "[although the Christian
religion in Europe was often, and often seen to be, the great opponent

of the modern age—of liberalism, of republicanism—in the United States
it was no opponent but a friend." 102 With the advent of the new
Constitution, there was only one United States, not two, as there were

two Frances, two Italys and two Spains. The United States had "not
divide[d] politically or systematically along a religious faultline." 103

Most disestablishmentarians in the United States were not zealously
anti-religious like the revolutionaries in France. Disestablishment did not

mean that Christianity would be confined to a ghetto totally isolated
from the public square. The founding generation,

explicitly disentangled themselves from . . . hierarchy, and im-

plicitly repudiated priesthood, and set in place a new nation
with liberty and equality at the center, without casting the Chris-

tian religion as an opponent.

The United States managed to come into being as a modern
democratic state with the connection to the Christian past un-

broken. 104

Although the influence of Christianity persisted, "every colony-turned-

state altered the Church-State arrangements it had inherited from colonial

times." 105

At the time the Bill of Rights was ratified, "[t]he pattern of es-

tablishment was bewilderingly diverse. . . . Some [jurisdictions] main-
tained dual establishments, others multiple establishments [of several

denominations and sects] with free exercise for dissenters." 106 According

to Leonard W. Levy, six of the original thirteen states had multiple

101. The Constitution provides, "no religious Test shall ever be required as a
Qualification to any Office or public Trust under the United States." U.S. Const, art.

VI, § 3.

102. Miller, supra note 8, at 114.

103. Miller, supra note 8, at 115.

104. Miller, supra note 8, at 116.

105. Curry, supra note 48, at 134.

106. Leonard W. Levy, Judgments: Essays on American Constitutional History
196 (1972).



1993] THE CITIZENSHIP DECLARATION 487

establishments; 107 namely, Connecticut, New Hampshire, Massachusetts,
Maryland, Georgia, and South Carolina. 108 Professor Levy does not

consider the laws in force at the time in Rhode Island, Delaware,
Pennsylvania, or New Jersey to be establishments. 109 His conclusion is
questionable; laws in those states disfavored non-Christians and in some

instances Roman Catholics. The following summary of all the state
constitutions discloses that there were elements of established religion

remaining in each state at the time the First Amendment was ratified.
In Rhode Island, perhaps the most tolerant state, Catholics were

ineligible for public office and Jews, although free to practice their

religion, were considered "second class citizens/' 110 Delaware's Consti-

tution also discriminated in favor of Christians. It provided that "all

persons professing the Christian religion ought forever to enjoy equal

rights and privileges in this state." 111 Pennsylvania, as late as 1790,

excluded from public office atheists and those who did not believe in
"a future state of rewards and punishments." 112 Pennsylvania's discrim-

ination was not considered invidious by disestablishmentarians in the

late eighteenth century only because "the values, customs, and forms

of Protestant Christianity thoroughly permeated civil and political life." 113

The same values underpinned New Jersey's constitution of 1776, which
provided that "no Protestant inhabitant of this Colony shall be denied
the enjoyment of any civil right, merely on account of his religious

principles." 114

Maryland's constitution of 1776 granted equal religious liberty only

to "persons professing the Christian religion"; 115 it also authorized "a
general and equal tax, for the support of the Christian religion." 116

Moreover, there was a religious test for office holders who were required
to declare a belief in the Christian religion. 117 A tax supporting religion

107. A multiple establishment, according to Levy, exists when the state provides
impartial tax support of religious institutions. Id. at 202.

108. Id. at 197-99.

109. Id. at 192.

110. Curry, supra note 48, at 91. Curry describes the situation in Rhode Island

helpfully and succinctly. Id. at 90-91.

111. Del. Declaration of Rights of 1776, § 3, reprinted in Adams & Emmerich,
supra note 99, at 116.

112. Curry, supra note 48, at 161 (quoting Pa. Const, of 1790).

113. Curry, supra note 48, at 219.

114. N.J. Const, of 1776, art. XIX (1776) reprinted in 5 The Founders' Con-
stitution, supra note 17, at 71.

115. Md. Const, of 1776, Declaration of Rights, no. 33, reprinted in 5 The
Founders' Constitution, supra note 17, at 70.

116. Md. Const, of 1776, Declaration of Rights, no. 33, reprinted in 5 The
Founders' Constitution, supra note 17, at 70.

117. Md. Const, of 1776, Declaration of Rights, no. 33, reprinted in 5 The
Founders' Constitution, supra note 17, at 70.



488 INDIANA LAW REVIEW [Vol. 26:469

was not repealed until 1810, but even then "Maryland continued . . .

to proclaim itself a Christian state and to exclude non-Christians from

office." 118 "[N]on-Christians would achieve political and civil rights [in

Maryland] only after a bitter struggle in the early nineteenth century." 119

South Carolina's constitution of 1778 provided inter alia that "[t]he

Christian Protestant religion shall be deemed . . . the established re-

ligion." 120 Moreover, it stated that "God is publicly to be worshipped,"
"[t]hat the Christian religion is the true religion" and "[t]hat the holy

scriptures of the Old and New Testaments are of divine inspiration, and
are the rule of faith and practice." 121 Although individuals were not

obligated to support any "religious worship," 122 the Constitution excluded

non-Protestants from "equal religious and civil privileges." 123 The es-
tablishment of religion by South Carolina's Constitution could not be

more explicit. 124 Georgia's Constitution, drawn in 1777, "limited off-

iceholding to Protestants," and "made possible a general assessment
type of support of religion." 125 A statute enacted in 1785 contained
language designating Christianity as the established religion. 126

Similarly, according to North Carolina's constitution of 1776, persons

who denied the truth of the Protestant religion were "[in]capable of
holding any office or place of trust or profit in the [state's] civil

department." 127 Eligibility for public office was not extended to all

Christians until 1835. 128 The disabilities of Jews in North Carolina were

not removed until 1868 when the state "constitution was changed to

118. Curry, supra note 48, at 157.

119. Curry, supra note 48, at 158. Maryland's religious test stayed in force until

invalidated by the Supreme Court in Torcaso v. Watkins, 367 U.S. 488 (1961).

120. S.C. Const, of 1778, art. XXXVIII, reprinted in 5 The Founders' Consti-

tution, supra note 17, at 76. "The Episcopal was made the State Church in South

Carolina by its first constitution, 1776." 1 Francis N. Thorpe, A Constitutional History
of the American People 1760-1850 53 (1898).

121. S.C. Const, of 1778, 5 The Founders' Constitution supra note 17, at 76.

See also Adams & Emmerich, supra note 99, at 118.
122. See supra note 121.

123. See supra note 121.

124. As Stokes and Pfeffer correctly conclude, South Carolina continued to maintain

its religious establishments. See Stokes & Pfeffer, supra note 99, at 81.
125. Curry, supra note 48, at 153.

126. The statute provided in part "that as the Christian religion redounded to the

benefit of society, its regular establishment and support is among the most important

objects of legislative determination." Id.

127. N.C. Const, of 1776, art. XXXII, reprinted in 5 The Founders' Constitution,

supra note 17, at 71. The Constitution excluded ministers from the legislature and limited

officeholding to Protestants.

128. Stokes & Pfeffer, supra note 99, at 72.



1993] THE CITIZENSHIP DECLARATION 489

disqualify from public office only persons 'who [shall] deny the being

of Almighty GodV M29
During the disestablishment process in Virginia, many opponents of

the established religion wanted to eliminate laws burdening religious

liberty, and some wanted to go further and keep the Gospel pure from

the contaminating influence of government. 130 They suffered a setback

in December 1784 when Virginia passed an act incorporating the Episcopal

Church. 131 Almost immediately thereafter, however, the Old Dominion's

disestablishmentarians were encouraged132 when Patrick Henry's General
Assessment Bill 133 died in committee. 134 In its place, the governor signed

Virginia's Act for Establishing Religious Freedom 135 in January, 1786

129. Stokes & Pfeffer, supra note 99, at 72 (quoting 5 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws of the States, Ter-
ritories, and Colonies Now or Heretofore Forming the United States of America
38 (Francis N. Thorpe ed., 1909) [hereinafter Federal and State Constitutions]).

130. "The most intense religious sects opposed establishment on the ground that it

injured religion and subjected it to the control of civil authorities." Michael W. McConnell,
The Origins and Historical Understanding of the Free Exercise of Religion, 103 Harv.

L. Rev. 1410, 1438 (1990). James Madison championed their cause well. Jefferson also

argued at times that true religion was corrupted by government. He wanted "to protect
religion, not dishonor it, by disestablishment." Wills, supra note 26, at 372. Jefferson

also supported disestablishment because he objected to irrational religion's power over the

electorate but he did not often make this argument in public. Wells, supra note 26, at
363-72.

131. Michael J. Malbin, Religion And Politics: The Intentions of the Authors
of the First Amendment 23 (1978). Presbyterians worried that Virginia's act incorporating
the Episcopal Church would replace the Anglican church as the Commonwealth's established

church. See id. at 24.

132. The disestablishment process began in 1776 when Virginia adopted a new

constitution. Section 16 of its Declaration of Rights provided in part "[t]hat religion, or

the duty which we owe to our Creator, and the manner of discharging it, can be directed

only by reason and conviction . . . and that it is the mutual duty of all to practice

Christian forbearance, love, and charity towards each other." Va. Declaration of Rights

§ 16 (1776), reprinted in 5 The Founders' Constitution, supra note 17, at 70. See also
Va. Const, art. I, § 16.

As I argued in the foregoing section, "[i]t would be a mistake ... to interpret the

establishment clause wholly in terms of what Madison and Jefferson thought." Paul G.

Kauper, Everson v. Board of Education: A Product of the Judicial Will, 15 Ariz. L.
Rev. 307, 318-19 (1973). It is also a mistake to suggest that the First Amendment's

meaning is discernible from arguments made during Virginia's disestablishment process
since such arguments were neither presented nor considered by the framers and ratifiers

of the Establishment Clause. See John T. Valauri, Constitutional Hermeneutics, in The
Interpretive Turn: Philosophy, Science, Culture 245 (David R. Hiley et al., eds.,

1991).

133. A general assessment normally is distributed equally to all Christian religions.
See Winthrop S. Hudson, Religion in America, 103 (3rd Ed. 1981).

134. Malbin, supra note 131, at 24.

135. The reverential preamble of the Act acknowledged "Almighty God," the "Al-



490 INDIANA LAW REVIEW [Vol. 26:469

(authored by Jefferson in somewhat different form in 1779). 136 In 1786,
the State also repealed the act incorporating the Episcopal Church. 137

All legally significant vestiges of the established Episcopal (formerly

Anglican) church were removed in 1802, when the Virginia General
Assembly ordered the sale of its glebe lands. Officials were required to

use the receipts from the land sale to pay parish debts, support the

poor, and provide funds "for any other nonreligious purpose which a

majority of the voters might decide.

'

M38 The rhetoric inspiring Virginia's

movement toward total disestablishment was adopted by the United States
Supreme Court in 1947, but the Court ignored the eighteenth century

state constitutions that continued to treat non-Protestants as second class

citizens.

The New York Constitution of 1777 guaranteed "the free exercise
and enjoyment of religious profession and worship, without discrimi-

nation or preference." 139 However, legal restrictions aimed at and ad-

versely affecting Roman Catholics remained on the statute books until
1806. 140 The 1777 Constitution also discriminated against those with no

religious beliefs to the extent that it decreed laws "as may be construed
to establish or maintain any particular denomination of Christians or

their ministers . . . are, abrogated and rejected." 141 Indeed, a state statute

enacted in 1784 "took note of the duty of governments to 'countenance

and encourage virtue and religion'.

"

142 Professor Curry explains, "New
York inherited the common colonial ethos that America was a Protestant

mighty power" and the "plan of the Holy author of our religion, who [is] Lord both
of body and mind." Act For Establishing Religious Freedom (Virginia), in 5 The Founders'

Constitution, supra note 17, at 84.

136. The wording of Jefferson's Bill For Establishing Religious Freedom began with

the phrase, "(w]ell aware that the opinions and belief of men depend not on their own
will, but follow involuntarily the evidence proposed to their minds, that Almighty God
hath created the mind free, . . . ." Id. at 77. As enacted, the Act For Establishing Religious

Freedom deleted this phrase; instead, the Act began with the phrase, "[W]hereas Almighty

God hath created the mind free." Id. at 84. Thanks to Madison's skilful political leadership,
the Act became law in January of 1786, upon the governor's approval. An Act for
Establishing Religious Freedom, ch. 83, 12 Va. Statutes at Large 84 (William W. Hening
ed., 1785).

137. Malbin, supra note 131, at 25.

138. Stokes & Pfeffer, supra note 99, at 71.
139. N.Y. Const, of 1777, art. XXXVIII, reprinted in 5 The Founders' Consti-

tution, supra note 17, at 75.

140. Stokes & Pfeffer, supra note 99, at 73.
141. Federal and State Constitutions, supra note 128, at 2636 (emphasis added).

Accordingly, no longer could the counties of metropolitan New York support the Anglican
church with taxes. See McConnell, supra note 130, at 1436.

142. Curry, supra note 48, at 162 (quoting New York Session Laws 21 (New York,
1784)).



1993] THE CITIZENSHIP DECLARATION 491

country and simply assumed that Protestantism should be encouraged." 143

Connecticut made no excuses for its tax supported establishment of
religion.

144
Its "preferential" establishment of Congregationalism, 145 with

tax exemptions provided for Quakers and Baptists, endured until 181 8. 146

New Hampshire adhered to its religious establishment long after it
ratified the first Amendment. 147 Its Constitution of 1784 encouraged "the
public worship of the DEITY, and of public instruction in morality and
religion." 148 It empowered,

the legislature to authorize from time to time, the several towns,

parishes, bodies-corporate, or religious societies within this state,

to make adequate provision at their own expense, for the support
and maintenance of public protestant teachers of piety, religion

and morality:

Provided notwithstanding, That the several towns, parishes, bod-

ies-corporate, or religious societies, shall at all times have the

exclusive right of electing their own [Protestant religious] teach-
ers, and ... no person of any one particular religious sect or

denomination, shall ever be compelled to pay towards the support

of the teacher or teachers of another persuasion, sect, or de-

nomination. 149

New Hampshire's ecclesiastical system was not toppled until 1819. 15° The
state's provisions preventing non-Protestants from serving in the state

legislature were not removed until 1852. 151 Despite New Hampshire's
laws respecting an establishment of religion, it promptly ratified the

Establishment Clause.

Like New Hampshire's Constitution, Article III of the Constitution
of Massachusetts of 1780152 empowered the legislature to authorize towns

143. Curry, supra note 48, at 162.

144. Curry, supra note 48, at 183. Connecticut's Act for securing Rights of Con-

science in Matters of Religion, to Christians of every Denomination (1 784) allowed persons

who were not members of the established Congregationalists church to pay their taxes to
their own church if they regularly attended its religious services. Curry, supra note 48,
at 180-81.

145. See Levy, supra note 5, at 41.

146. See Levy, supra note 106, at 198.

147. See Stokes & Pfeffer, supra note 99, at 81.
148. N.H. Const, of 1784, pt. 1., art. 6, reprinted in 5 The Founders' Constitution,

supra note 17, at 81.

149. N.H. Const, of 1784, pt. 1., art. 6, reprinted in 5 The Founders' Constitution,
supra note 17, at 81.

150. See Curry, supra note 48, at 187-88.

151. See Stokes & Pfeffer, supra note 99, at 78.
152. John Adams was the principal author of this Massachusetts Constitution. See

Harold J. Berman, The Impact of the Enlightenment on American Constitutional Law,

4 Yale J. L. & Human. 311, 325 (1992).



492 INDIANA LAW REVIEW [Vol. 26:469

and parishes "to make suitable provision, at their own expense, for the
institution of the public worship of God and for the support and
maintenance of public Protestant teachers of piety, religion, and morality

in all cases where such provision shall not be made voluntarily." 153

Although a Massachusetts taxpayer could in theory be forced to support

only teachers of his own religious sect or denomination, 154 the tax system
was discriminatory in practice. 155 In fact, unless the taxpayer actually

received instruction from a teacher of his own sect, 156 the funds collected
from his taxes were paid to religious teachers elected in each town or

parish (virtually always Congregationalists). 157 Massachusetts did not com-

pletely terminate its system of tax supported religion until 1833. 158

Vermont's Constitution of 1777, stated in part:

Section XLI. [A]ll religious societies . . . that have or may be
hereafter united and incorporated, for the advancement of re-

ligion and learning, or for other pious and charitable purposes,

shall be encouraged and protected in the enjoyment of the

privileges, immunities and estates which they, in justice, ought

to enjoy, under such regulations, as the General Assembly of

this State shall direct. 159

The belief in Vermont and elsewhere that the use of tax funds in support

of religion is not necessarily an impermissible establishment of religion160

153. Mass. Const, of 1780, pt. 1, art. Ill, reprinted in 5 The Founders' Con-
stitution, supra note 17, at 11-IS.

154. See Levy, supra note 106, at 197.

155. "[T]he Congregationalists were the chief beneficiaries of the establishment

primarily because they were by far the most numerous and because they resorted to various

tricks to fleece non-Congregationalists out of their share of religious taxes." Leonard W.
Levy, The Original Meaning of the Establishment Clause of the First Amendment, in

Religion and the State: Essays in Honor of Leo Pfeffer 43, 72 (James E. Wood,
Jr. ed., 1985).

156. See id.

157. The "Congregationalist dominance of local elections was foreseen and in-

tended." Douglas Laycock, "Nonpreferential" Aid to Religion: A False Claim About
Original Intent, 27 Wm. & Mary L. Rev. 875, 912 (1986).

158. Levy, supra note 155, at 73.

159. Vt. Const, of 1777, ch. 1, § 3; ch. 2, § 41, excerpted in 5 The Founders'

Constitution, supra note 17, at 75.

160. Any claim that Vermont, New Hampshire, and Massachusetts did not have an
established church makes sense only if it is compared to the Anglican establishment model

in England where the Anglican bishops, although subordinate to the British monarchy,

"exercise[d] spiritual and temporal powers — powers made the more fearful because no
proper distinction between them was made." Edwin S. Gausted, A Disestablished Society:
Origins of the First Amendment, 11 J. Church & St. 409, 414 (1969). For this reason,
"[T]the Framers [of the Federal Constitution and the Bill of Rights] appeared united in

the belief that a national church, patterned after the English model, posed the greatest

threat to [religious! liberty." Adams & Emmerich, supra note 99, at 45.



1993] THE CITIZENSHIP DECLARATION 493

indicates that the meaning of the term "establishment" in late eighteenth

century varied from state to state, from town to town, and to a great

extent from person to person. The sometimes strong, sometimes weak

support for religion in all state constitutions suggests that an establishment

of religion was then, as now, a question of degree. 161

Obviously, nothing similar to the line drawn by the modern Court

between permissible and impermissible state establishments was prevalent

when the Establishment Clause was ratified since "[t]he First Amendment
originally functioned as a restraint [solely] on the federal government

rather than on the States." 162 States with an established religion, like

New Hampshire, would not have ratified the Establishment Clause if it
had invalidated their constitutions. The ratifiers "intended to prevent

the federal government from interfering with state religious establish-

ments." 163 Once again, it is relevant to reiterate that Justice Black's

dicta in Everson v. Board of Education went beyond the historical

evidence164 when he asserted that the Establishment Clause "means at
least this: Neither a state nor the Federal Government . . . can pass

laws which aid ... all religions." 165 Indeed, when the Establishment
Clause was ratified, many persons were viewed within their states as
second class citizens because of their lack of religious commitment to

established denominations.

161. See Robert Audi, The Separation of Church and State and the Obligations of
Citizenship, 18 Phil. & Pub. Aff., 259, 263 (1989) (recognizing that establishment of
religion is a matter of degree).

162. Edward M. Gaffney, Jr. & Philip C. Sorenson, Ascending Liability in
Religious and Other Nonprofit Organizations 48 (Howard R. Griffin ed., 1984). The
founding generation "generally believed that civil authority in religious matters, to the

extent it could be exercised, was a state function." Adams & Emmerich, supra note 99,
at 45.

163. Kruse, supra note 42, at 84. The records of the State Ratifying Conventions

collected by Elliot "clearly show that the federal government's potential religious activity

was the object of fear." Kruse, supra note 42, at 76 (referring to The Debates of the
Several State Conventions on the Adoption of the Federal Constitution (Jonathan

Elliot ed., 2d ed., 1836)). The framers and ratifiers wanted to make sure that Congress
could not "molest state religious programs." Kruse, supra note 42, at 85.

164. When Justice Black relied on Virginia's experience in his Everson v. Board of
Education opinion, he "neglected to mention . . . that church-state arrangements in the

original thirteen states were as diverse as the views of the Founders, with Virginia

representing but one model on a spectrum that ranged from disestablishment through

official state establishment, with various cooperative arrangements in between." Glendon

& Yanes, supra note 42, at 483. Under Black's model, Congress may not give nondis-
criminatory aid to religion, and "whatever Congress could not do, the states could not

do either." Malbin, supra note 131, at 2. Justice Black did not cite the legislative history

of the Establishment Clause as it underwent scrutiny by the First Congress.

165. Everson v. Board of Educ, 330 U.S. 1, 15 (1947).



494 INDIANA LAW REVIEW [Vol. 26:469

In the following section, I describe the relevant responses by members
of the First Congress after Madison proposed a Bill of Rights. Admittedly,

the hermeneutical problems presented by the recorded debates range from

the "paradoxical to [the] impenetrable, ,,,66 but one generalization can

be made safely: The framers of the First Amendment (namely the First
Congress) and the ratifiers (the state legislatures responding favorably

to the First Congress' recommendation) did not intend to subvert any

of the existing state constitutions which established religion.

III. The First Congress Restricts Itself but Not The States

A. The State Ratifying Conventions Express Their Concerns About
Centralized Control over Religion

The United States Constitution would not have been ratified if it

had endorsed a religion or a religious doctrine. This situation was well

understood by delegates attending the Philadelphia Convention during

the Summer of 1787. Accordingly, in none of the Constitution's sub-
stantive provisions are there professions of faith, sentiments of thanks-

giving to a deity, or religious commitments. "The United States was

not to be a 'confessing' state." 167 Of course, the Constitution does not
repudiate the nation's Christian heritage. 168 The new nation and its new

Constitution "were not perceived to be inimical to the Christian Church

or Christian beliefs." 169

Religion was still considered by many of the Founders to be "the
strongest promoter of virtue, the most important ally of a well-constituted

republic." 170 Unfortunately, many religious Americans were openly hostile

166. Curry, supra note 48, at 193.

167. Miller, supra note 8, at 107.

168. "The vast majority of Americans assumed that theirs was a Christian, i.e.

Protestant, country and they automatically expected that the government would uphold

the commonly agreed on Protestant ethos and morality." Curry, supra note 48, at 219.

It was hard in the 1780s and 1790s "to define where Protestantism ended and secular

life began." Curry, supra note 48, at 218.

169. Miller, supra note 8, at 115. In a New York case decided in 1811, Chancellor
James Kent upheld a conviction for blasphemy on the ground that "we are a Christian
people, and the morality of this country is deeply ingrafted upon Christianity." People

v. Ruggles, 8 Johns. 290, 295 (N.Y. Sup. Ct. 1811). Joseph Story's Commentaries note

that, when the First Amendment was adopted, "the general, if not the universal, sentiment
in America was, that Christianity ought to receive encouragement from the state, so far

as was not incompatible with the private rights of conscience, and the Freedom of religious

worship." 3 Joseph Story, Commentaries on the Constitution of the United States

§ 1868 (1833).

170. Gordon S. Wood, The Creation of the American Republic, 1776-1787 427

(1969).



1993] THE CITIZENSHIP DECLARATION 495

to non-Protestant faiths. 171 Protestant sects continued to be selectively

privileged in many state constitutions. 172 Professor Laycock summarizes
the situation as follows:

State aid [to religion] was both preferential and coercive. The

states continued practices that no one would defend today. All

but two states had religious qualifications for holding public

office, and at least five states denied full civil rights to Catholics.

Blasphemy was commonly a crime; in Vermont blasphemy against
the Trinity was a capital offense, although it presumably was

not enforced as such. Observance of the Christian Sabbath was

widely enforced [as such] with little in the way of fictitious
[secular] explanations about a neutrally selected day for families

to be together. 173

Accordingly, the Framers understood that a national establishment

or disestablishment of religion(s) would be undesirable, unpopular, and

unachievable. Even so, outspoken opponents of ratification feared that

the federal branches of government would ' 'alter, abrogate, or infringe

. . . part[s] of the constitution of the several states which provide for

the preservation of liberty in matters of religion." 174 There was also fear

that the new consolidated, central government could not be sensitive to
local establishments of religion. 175 Anti-federalists 176 along with other

groups and individuals 177 who lacked "confidence in the federal legis-

171. See Laycock, supra note 157, at 918.

172. "[A]lmost no one thought that government support of Protestantism was

inconsistent with religious liberty because. . . . [pjrotestantism ran so deep among such
overwhelming numbers of people." Laycock, supra note 157, at 918.

173. Laycock, supra note 157, at 916-17.

174. The Case Against The Constitution: From Antifederalists to the Present
76 (John F. Manley & Kenneth M. Dolbeare eds., 1987).

175. See Conkle, supra note 42, 1135.

176. Antifederalists generally deplored the Constitution's potential to subvert their

state laws and customs. See Herbert J. Storing, What the Anti-Federalist Were For
7 (Murray Dry ed., 1981). They wanted the states to be the primary units of government.

They opposed strengthening the federal or general authority in ways that would undermine

the states and endanger if not destroy local habits and attachments. See id. at 9-10. Many
Federalists were also protective of their state constitutions establishing religion. For example,

John Adams, a Federalist, drafted most of the Massachusetts Constitution of 1780. Berman,
supra note 152, at 326. He would have opposed any attempt by the central government
to abrogate its provisions establishing a religion. The arch-Federalist Joseph Story also

made it clear that he was in favor of state autonony with respect to religious establishments.
Story, supra note 169 § 1873.

177. For a description of the odd coalition opposing the Constitution's ratification,

see Jackson T. Main, The Antifederalists: Critics of the Constitution 1781-1788
259-62 (1961). The ratification debates split many religious sects. For example, some
Baptists supported ratification; others did not. Id. at 260-61.



496 INDIANA LAW REVIEW [Vol. 26:469

lature's ability to truly represent the people" 178 made their views known
in state ratifying conventions.

Ratifying conventions in several states recommended more than 200
proposed changes to the Constitution. 179 Five states—their delegates wor-
ried about the federal government's potential jurisdiction over religious

establishments—formally requested amendments limiting the national gov-
ernment's power to enact laws endangering rights of conscience and

religious liberties. 180 New Hampshire, for example, proposed an amend-
ment which read as follows: "Congress shall make no laws touching
religion, or to infringe the rights of conscience." 181 This wording, con-

sidered in light of relevant local concerns, indicates that New Hampshire's
ratifying convention did not want Congress to establish any religion

other than the Protestant denominations endorsed by its state constitution.

Although the wording of the Establishment Clause was not the same

as the language proposed by New Hampshire's ratifying convention, its
state legislature was satisfied that its system of financial support for

elected Protestant teachers of piety, religion and morality was secure

and for that reason it ratified the First Amendment. 182

During the North Carolina Ratification Convention, Richard Spaight

said, "[a]s to the subject of religion. . . . [a]ny act of Congress . . .

would be a usurpation." 183 Mindful that North Carolina restricted the

holding of state office to Protestants, 184 James Iredell insisted that the

United States Congress lacks "authority to interfere in the establishment

of any religion whatsoever"; it has no "power ... in matters of

178. Amar, supra note 42, at 1140.

179. Miller, supra note 8, at 252.

180. See Daniel A. Farber & Suzanna Sherry, A History of the American
Constitution 226 (1990). See also McGowan v. Maryland, 366 U.S. 420, 486 (1960)
(Frankfurter, J., concurring). The five states were North Carolina, Virginia, New York,
New Hampshire, and Rhode Island. States ratifying the Constitution without formal requests
for an amendment prohibiting establishments of religion were Delaware, Pennsylvania,

New Jersey, Georgia, Connecticut, Maryland, South Carolina, and Massachusetts. See
Joint Comm. on Printing, Documents Illustrative of the Formation of the Union

of the American States 1009-24, H. Doc. No. 398, 69th Cong., 1st Sess. (1927). Ten

of the original 13 states sent in timely returns ratifying the First Amendment. Id. at 1065

n.2.

181. The Debates of the Several State Conventions on the Adoption of the

Federal Constitution, supra note 163, at 326. This language, urged upon the House of

Representatives by Mr. Livermore, was eventually rejected in favor of the language that

is now the Establishment Clause. See infra notes 233-39 and accompanying text.
182. See Curry, supra note 48, at 220.

183. 5 The Founders' Constitution, supra note 17, at 92.
184. N.C. Const, of 1776, art. XXXII, reprinted in 5 The Founders' Constitution,

supra note 17, at 71.



1993] THE CITIZENSHIP DECLARATION 497

religion." 185 Speeches made during ratifying conventions in other states
demonstrate the delegates' desires to have the subject of religion remain

one * 'within the exclusive cognizance of the respective states." 186

B. The First Congress and the Relevant Legislative History of the

Establishment Clause

Turning now to the surviving legislative history made by the First
Congress, Madison—elected to the House of Representatives after he
promised the Virginia Convention that he personally would work for

the adoption of amendments—proposed changes to the Constitution in
early May of 1789. 187 Madison sifted through more than 200 amendments188

that had been proposed by seven of the state ratifying conventions." 189

He condensed the list to a set of nine major proposals 190 which were
debated in June, mainly because of his persistence.

Madison shrewdly managed to satisfy the diverging interests of the

religious factions—the disestablishmentarians and the antifederalists. Justice
Rutledge stated, however, that the debates of the First Congress con-

sidered together with Madison's efforts to disestablish religion in Virginia

show that the Establishment Clause "forbids any appropriation, large

or small, from public funds to aid or support any and all religious

exercises." 191 However, the debates of the First Congress disclose that

"[t]he only thing we really know about the original meaning of the 'no
establishment' clause is that it forbade Congress to disestablish as well

as to establish religion." 192

185. 5 The Founders' Constitution, supra note 17, at 90. Madison, during the
Virginia Ratifying Convention, makes a similar point: "There is not a shadow of right

in the general government to intermeddle with religion. Its least interference with it, would

be a most flagrant usurpation." 5 The Founders' Constitution, supra note 17, at 88.

186. Snee, supra note 42, at 373-78.

187. On May 4, 1789, Madison moved to debate his list of proposed amendments
to the Constitution, 4 Documentary History of the First Federal Congress, 1789-

1791 3 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) and announced that he
would bring up the amendments on May 25. Miller, supra note 8, at 251.

188. See Curry, supra note 48, at 204 (citing Senator Pierce Butler of South

Carolina). See also Theodore Sky, The Establishment Clause, the Congress and the Schools:

An Historical Perspective, 52 Va. L. Rev. 1395, 1406-07 (1966).
189. Miller, supra note 8, at 252.

190. See 1 Annals of Cong. 433-36 (Joseph Gales ed., 1789). See also Robert A.

Rutland, James Madison: The Founding Father 62 (1987).
191. Everson v. Board of Educ, 330 U.S. 1, 41 (1947) (Rutledge J., dissenting).

One wonders why Vermont and New Hampshire ratified the amendment that, according
to Justice Rutledge, invalidated their system of appropriating money from public funds
to aid religious ministries. See infra notes 233-38 and accompanying text.

192. Katz, supra note 42, at 11.



498 INDIANA LAW REVIEW [Vol. 26:469

For the better part of the day on June 8, 1789, 193 Madison spoke

in favor of the nine proposals that he presented to the House. Some
of the proposals were in the nature of a "bill of rights," 194 others were

introduced as changes to the body of the Constitution. More specifically,
Madison favored amendments to Articles I, III, and VI of the Consti-
tution. He also wanted to add a new Article between Articles VI and
VII. 195 His proposed amendment prohibiting Congress from establishing
any national religion was intended by him to be placed—and this is
significant—in Article I, Section Nine. 196 His proposed amendment pro-
tecting "equal rights of conscience" against state action (the "Lost

Amendment") was intended to be placed in Article I, Section Ten. 197

The limited reach of the original version of the Establishment Clause

is indicated by its proposed placement in Article I, Section Nine (which

limits federal power) rather than in Article I, Section Ten (which limits

the states' powers). 198

Madison's "Lost Amendment" stated: "No State shall violate the
equal rights of conscience, or the freedom of the press, or the trial by

jury in criminal cases." 199 Unsuccessfully, Madison argued that "State

Governments are as liable to attack these invaluable privileges as the

General Government."200 He described his Lost Amendment as "the
most valuable amendment in the whole list." 201 Subsequently reworded,
the Lost Amendment became Article XIV in a list of proposed amend-
ments sent to the Senate, 202 where it was killed on September 7, 1789. 203

To Madison's dismay, the Lost Amendment could not be resurrected
in the conference committee composed of Senate and House members.

Although other proposals favored by Madison were not adopted by

193. Rutland, supra note 190, at 63.

194. 1 Annals of Cong. 436 (Joseph Gales ed., 1789).
195. Id. at 435-36.

196. Id. at 434.

197. Id. at 435.

198. All the substantive provisions in Section Ten of Article I limit state power.

See U.S. Const, art. I, § 10. On or about August 21, 1789, perhaps even earlier, the
idea of incorporating the proposed establishment clause into the body of the original

Constitution was dropped after the House Committee of the Whole abided by the Report

of the House Select Committee that recommended seventeen articles of amendment in the

nature of a bill of rights. See 3 Documentary History of the First Federal Congress,

1789-1791, supra note 59, at 158-62; Rutland, supra note 190, at 68.

199. 1 Annals of Cong., supra note 190, at 435; see also 4 Documentary History

of the First Federal Congress, 1789-1791, supra note 187, at 11.

200. 1 Annals of Cong., supra note 190, at 441.

201. 1 Annals of Cong., supra note 190, at 755.

202. 1 Documentary History of the First Federal Congress 1789-1791, 138
(Linda Grant DePauw ed., 1972). The Senate rejected Article XIV. See id. at 158.

203. See Miller, supra note 8, at 255.



1993] THE CITIZENSHIP DECLARATION 499

Congress,204 the defeat of the Lost Amendment "was the change he felt
most keenly."205 Evidently, Madison's unacceptable "Lost Amendment'

'

was considered an unwanted invasion of the states' powers, whereas the

proposal (which became the Establishment Clause) protected the states'

authority and traditional prerogatives.

Madison's first draft of the proposal, which eventually became the

Establishment Clause, states: "The civil rights of none shall be abridged

on account of religious belief or worship, nor shall any national religion

be established, nor shall the full and equal rights of conscience be in

any manner . . . infringed."206 Madison's original proposal leaves state

establishments of religion intact. The proposal was sent to a Select

Committee of the House (sometimes called the Committee of Eleven),207

whose report was issued on July 28. 208 Without explanation, Madison's

draft was changed to read: "No religion shall be established by law,
nor shall the equal rights of conscience be infringed."209

A revealing discussion in the House on August 15, provides persuasive
evidence that the Establishment Clause was never intended to prohibit

state action. The first speaker, Peter Sylvester from New York, voiced
his concern about the House Select Committee's revision of Madison's

204. Madison also failed to persuade the Congress to adopt his submission of the

proposal that became the Second Amendment. His submission read: "The right of the

people to keep and bear arms shall not be infringed; a well armed and well regulated

militia being the best security of a free country; but no person religiously scrupulous of

bearing arms shall be compelled to render military service in person." 1 Annals of

Congress, supra note 190, at 434 (emphasis added). The italicized portion of this proposal

was deleted by the Senate. Miller, supra note 8, at 254-56. The Senate's deletion is

consistent with the idea of powers reserved to the states and the people.

205. Miller, supra note 8, at 255. Madison was ahead of his time. "The protection

of liberties against the states (and all subordinate units) by the federal bill of rights had

to wait until after the Civil War." Id.

206. 1 Annals of Cong., supra note 190, at 434; 4 Documentary History of the

First Federal Congress, 1789-1791, supra note 187, at 10. This wording provides am-

munition to accommodationists who argue that this formulation containing the words
"national religion" indicates that Madison was willing to settle for an arrangement that

would not ban noncoercive, nonpreferential, impartial aids to religion. Even if this is

incorrect, the point that should be considered is not what Madison wanted, but whether

the Court can make good on its claim that its interpretation of the Establishment Clause

is supported by history.

207. See, e.g., Stokes & Pfeffer, supra note 99, at 94. The Committee was appointed
on July 21. Its members included Madison and one member from the other ten states
(in addition to Virginia) that were represented in the House. Id.

208. 4 Documentary History of the First Federal Congress, 1789-1791, supra
note 187, at 4.

209. 1 Annals of Cong., supra note 190, at 729. Madison did not always get his
way, although the Court's mythmaking efforts do not emphasize this point.



500 INDIANA LAW REVIEW [Vol. 26:469

first draft.
210 He argued that the new language had a tendency "to

abolish religion altogether. ,,2n Sylvester's objection made sense to his
constituents who would have been appalled if any constitutional amend-
ment nullified New York's state Constitution discriminating against non-
believers and Roman Catholics 212 or invalidated its statute "[taking]
note of the duty of governments to 'countenance and encourage virtue

and religion'."213

Elbridge Gerry suggested that the proposed Establishment Clause

"would read better if it was [reworded to state] that no religious doctrine

shall be established by law." 214 Gerry's proposed language allays Sylves-

ter's concern and safeguards his own state's religious establishment.
Roger Sherman, a strong supporter of the United States Constitution,

originally resisted the demands for a Bill of Rights because the powers

granted to Congress by the Constitution "extend only to matters re-

specting the common interests of the Union, and are specially defined,
so that particular states retain their sovereignty in all other matters." 215

On August 15, 1789, Sherman reiterated his previously stated view that
state constitutions were not in danger of being abrogated under the

original Constitution sans amendments. Representative Daniel Carroll of

Maryland, however, wanted to make sure that the proposed amendment
dealing with establishments of religion allayed the fears voiced by es-

tablished sects in several states who believe they "are not well secured
under the present Constitution." 216 Carroll was mindful that Maryland's

Constitution at the time secured the rights of Christian sects and only

210. According to Justice Souter, the House rejected its Select Committee's revision

of Madison's first draft, which "arguably ensured only that 'no religion' enjoyed an

official preference over others." Lee v. Weisman, 112 S. Ct. 2649, 2669 (1992) (Souter

J., concurring). He draws the inference that the House's rejection of the Select Committee's
revision indicates the Framers' intention to ban all "nonpreferential aid to religion." Id.

Justice Souter's analysis of the textual development of the Establishment Clause's revisions

turns out to be a predicate for his adoption of the so-called "powerful argument supporting

the Court's jurisprudence following Everson." Id. at 2668.

211. 1 Annals of Cong., supra note 190, at 729.

212. See supra text accompanying note 139.

213. Curry, supra note 48, at 162 (quoting Hanover Presbytery Petition 1777, in

James, Documentary History 226 (1971)).
214. 1 Annals of Cong., supra note 190, at 730.

215. See Letter from the Hon. Roger Sherman and the Hon. Oliver Ellsworth,

Esquires, Delegates From the State of Connecticut, in the Late Federal Convention to
His Excellency, the Governor of the Same State, in 1 The Debates of the Several State

Conventions on the Adoption of the Federal Constitution, supra note 163, at 491,

492.

216. Carroll said, in part, that "many sects have concurred in opinion that they
are not well secured under the present Constitution." 1 Annals of Cong., supra note

190, at 730.



1993] THE CITIZENSHIP DECLARATION 501

Christian sects. Moreover, Maryland's state Constitution authorized a

general tax for the support of Christian sects. 217

Madison attempted to pacify Carroll. Madison also addressed the

fears and concerns of Gerry, Sherman and Sylvester—all hailing from
states with partial religious establishments. He explained that the language
of the House Select Committee limits only the necessary and proper

clause powers of Congress in accordance with the recommendations of

several state ratifying conventions.218 Moreover, in Madison's reassuring

words, "Congress should not establish a religion, and enforce the legal

observation of it by law, nor compel men to worship God in any manner
contrary to their conscience." 219

The foregoing explanation by Madison of the Establishment Clause's

function does not suggest that he was trying to impose on the nation

Virginia's policy of disestablishment. Indeed, if Madison had chosen to

impose Virginia's resolution of the general assessment tax issue upon

other states, then he would have confirmed the fears of all those state

ratifying convention delegates who were afraid of the central government's
augmented powers.220 Yet in Lee v. Weisman, Justice Souter remains

wedded to Justice Black's tall stories. Dismissing in a footnote221 Chief

Justice Rehnquist's challenge (in Wallace v. Jaffree222) to the renditions

of history by Justices Black and Rutledge, Justice Souter follows Everson

and argues that nonpreferential state aid is prohibited inter alia on the

basis of the debates in the First Congress, Madison's Remonstrance, his

Detached Memoranda, and The Virginia Statute for Religious Freedom.223

But Madison did not cite his Remonstrance or the famous Virginia

Statute when he replied to Congressman Huntington from Connecticut,

217. See supra note 115.

218. 1 Annals of Cong., supra note 190, at 730.

219. 1 Annals of Cong., supra note 190, at 730 (emphasis added). Cord argues

that Madison's reply indicates that the Establishment Clause is "addressed to the possible

imposition of a single church or religion by the Federal Congress." Cord, supra note

41, at 10. This arguably is too much of a stretch. Yet, Justice Souter concedes that the
placement of an indefinite article before the word "religion" is evidence that the Framers

intended only to ban preferential establishments. See Lee v. Weisman, 112 S. Ct. 2649,

2669-70 n.2 (1992) (Souter J., concurring).

220. Indeed, Richard Spaight of North Carolina felt the important question was:

"If the judiciary acts as a check on the legislature, then who was to act as a check upon

the judiciary?" Richard E. Ellis, The Jeffersonian Crisis: Courts and Politics in

the Young Republic 8 (1971).
221. Weisman, 112 S. Ct. at 2670 n.3 (Souter, J., concurring).

222. 472 U.S. 38 (1985) (Rehnquist, C.J., dissenting).

223. Weisman, 112 S. Ct. at 2668-71 (Souter, J., concurring). It is foolishness if

anyone thinks that Madison, who was playing the role of a dealmaker in August of 1789,
planned diabolically to incorporate norms advocated in his Remonstrance into the First

Amendment. If he had such intentions, they were frustrated when the Senate killed his

"Lost Amendment." See supra text accompanying notes 199-205.



502 INDIANA LAW REVIEW [Vol. 26:469

a state whose constitution provided for the financial support of Con-

gregationalist clergy. 224 Huntington "wanted to keep the federal gov-

ernment from any pronouncement that might tend to affect Connecticut's

Church-State system.'' 225 Huntington found the House Select Committee's
wording defended by Madison "objectionable because it might be in-

terpreted not merely to outlaw a congressional establishment of religion

—

a worthy and legitimate aim—but also to disable a federal court from
enforcing a minister's claim against his parish."226 Huntington did not

want the enforcement of a Congregationalist's minister's claim "construed

into a religious establishment." 227 He agreed with Sylvester from New
York who feared for religion's survival228 and he "hoped the amendment
would . . . not . . . patronize those who professed no religion at all."229

Madison's reassuring response to Huntington suggested that the proposed

amendment merely responded to those delegates of state ratifying con-
ventions who "feared" that religious factions who obtain control of the
national government could "compel others to conform" to a national

religion.230 To prevent a nationalized religion, he suggested, once again,
the insertion of the word "national" before the word "religion" 231 so
that the proposed amendment would read: "No national religion shall
be established by law, nor shall the equal rights of conscience be in-

fringed." Madison's response to Huntington, in effect, assures him that

Connecticut's establishment of religion is not jeopardized by the proposed

amendment.

224. See supra text accompanying notes 144-46.

225. Curry, supra note 48, at 203.

226. Howe, supra note 32, at 20-21. Like many others in the First Congress,
"Huntington was anxious ... to preserve the freedom of the states to enforce such

principles relating to religion as they saw fit." Id. at 22. Huntington "was calling attention

to the fact that the states, in many varying ways, did support and aid religious enterprise,"
and that it would be unfortunate if the federal courts were deprived "of power to respect

state law when it happened to sustain a religious enterprise." Id. at 23.

227. 1 Annals of Cong., supra note 190, at 730.

228. See Laycock, supra note 157, at 889. It should be noted that Justice Rutledge

in Everson suggests incorrectly that religion was not supported financially by taxes. See

Everson v. Board of Educ, 330 U.S. 1, 42-43 n.34. Towns in Connecticut, contrary to

Justice Rutledge, were taxed for the support of their ministers. See Curry, supra note

48, at 203. Moreover, Massachusetts, like the other states, had other laws respecting an

establishment. For example, laws "for Making More Effectual Provision for the Due

Observation of the Lord's Day." McGowan v. Maryland, 366 U.S. 420, 546 (appendix
to opinion of Frankfurter, J., concurring). Because Massachusetts ratified the Establishment

Clause, its approval suggests a meaning far different from the meaning attributed to it

by the Supreme Court.

229. 1 Annals of Cong., supra note 190, at 730-31.

230. 1 Annals of Cong., supra note 190, at 731.

231. 1 Annals of Cong., supra note 190, at 731.



1993] THE CITIZENSHIP DECLARATION 503

Samuel Livermore was a Federalist from New Hampshire, a state
whose laws supported religious ministries. 232 His motion to change the

proposed Establishment Clause reads as follows: "Congress shall make
no laws touching religion, or infringing the rights of conscience."233

Livermore's language was briefly adopted by the House.234 His choice

of wording (the same as that proposed by New Hampshire's ratifying
convention)235 prevents Congress from disestablishing as well as estab-

lishing a religion. Livermore would have voted against (and New Hamp-
shire would have rejected) any amendment nullifying a parish's tax for

the support of elected Protestant teachers. 236 Although Justice Souter

tells us that he does not know what the eventual congressional rejection
of Livermore's language means,237 New Hampshire's ratification of the
Establishment Clause suggests that its state legislature was assured that

its established religion was still protected from the central government.

Livermore's language was altered on August 21, to read: "Congress

shall make no law establishing religion, or to prevent the free exercise
thereof, or to infringe upon the rights of conscience."238 Arguably, this

proposal did not differ in substance from Livermore's, and Madison

decided the alteration was acceptable. 239 The House's proposal was not

favorably received by the Senate.

After a secret Senate debate240 on September 9, the Senate's draft

read: "Congress shall make no law establishing articles of faith or a

232. See supra text accompanying note 149.

233. 1 Annals of Cong., supra note 190, at 731. The language proposed by

Livermore is similar to the amendment proposed by New Hampshire's ratifying convention.
See supra note 181.

234. 1 Annals of Cong., supra note 190, at 731.
235. Livermore was "wedded" to the language adopted by the New Hampshire

ratifying convention. See Curry, supra note 48, at 203.

236. One commentator notes that "freedom of religion to Livermore, as to so many
other Federalists, seemed to be limited to Protestants, and only to particular kinds of

Protestants." Morton Borden, Federalists, Antifederalists, and Religious Freedom, 21 J.

Church & St. 469, 478 (1979).
237. Lee v. Weisman, 112 S. Ct. 2649, 2669 (1992) (Souter, J., concurring).

238. 1 Annals of Cong., supra note 190, at 766-67, 773; see also 4 Documentary
History of the First Federal Congress, 1789-1791, supra note 187, at 28 n.9; 3

Documentary History of the First Federal Congress, 1789-1791, supra note 59, at
159.

239. See Curry, supra note 48, at 214.

240. On September 3, three motions changing the wording in the proposed religion
amendments were defeated: First, "[Congress shall make no law establishing] fojne Religious

Sect or Society in preference to others, nor shall the rights of conscience be infringed."

Weisman, 112 S. Ct. at 2669 (Souter, J., concurring) (quoting 1 Documentary History

of the First Federal Congress, 1789-1791, supra note 202, at 151 (emphasis added).

Second, "Congress shall not make any law infringing the rights of conscience or establishing



504 INDIANA LAW REVIEW [Vol. 26:469

mode of worship, or prohibiting the free exercise of religion . . . ." 241

This provision, having a potential for congressional action terminating

state religious establishments, was unacceptable to the House. A joint
conference committee quickly ironed out the differences between the

House and Senate versions of the Amendment, and their wording is
now the First Amendment. 242

Commenting on the joint conference committee's work following
the Senate's action, Justice Souter in Lee v. Weisman generalizes much
too broadly as follows: "The Framers . . . extended their prohibition
to state support for religion in general" and rejected narrower language

prohibiting only preferential establishments. 243 Notwithstanding Justice

Souter's generalization, state establishments of religion were not pro-

hibited by the Framers.

Nearly every scholar agrees that whatever the First Amendment
means, originally it did not reach the states.244 For example, Professor

Kurland agrees that "the evidence of the nonapplicability of the [F]irst

[A]mendment to the states is clear and convincing as far as the intent

of the authors and ratifiers of the [F]irst [AJmendment is concerned."245

The First Congress was wise and prudent enough to realize that state
officials were better informed and more politically accountable than

any Religious Sect or Society." Third, "Congress shall make no law establishing any
particular denomination of religion in preference to another, or prohibiting the free exercise

thereof, nor shall the rights of conscience be infringed." 1 Documentary History of
the First Federal Congress, 1789-1791, supra note 202, at 151 (emphasis added).

241. 1 Documentary History of the First Federal Congress, 1789-1791, supra
note 202, at 166.

242. There is no documentation of the conference committee's discussions. After it

reached an agreement, its report was published on the 24th of September. 4 Documentary
History of the First Federal Congress, 1789-1791, supra note 187, at 47-48. The

language reported by the conference committee is the same as the religion provision of

the First Amendment. Id.

243. Lee v. Weisman, 112 S. Ct. 2649, 2669-70 (Souter, J., concurring).

244. Cord, supra note 41, at 14; Curry, supra note 48, at 215; Edward Dumbauld,
The Bill of Rights And What it Means Today 104, 104 n.5 (1957); Levy, supra note
5, at 122; Malbin, supra note 131, at 16 (The Establishment "[CJlause prohibited Congress

from tampering with state religious establishments."); Story, supra note 169, at 730-31;

Amar, supra note 42, at 1157-60; Kruse, supra note 42, at 84-85, 127-30; Lietzau, supra

note 42, at 1191; Paulsen, supra note 42, at 321-23; Rodney K. Smith, Getting Off on

the Wrong Foot and Back on Again: A Reexamination of the History of the Framing
of the Religion Clauses of the First Amendment and a Critique of the Reynolds and
Everson Decisions, 20 Wake Forest L. Rev. 569, 619 (1984). See also Snee, supra note
42, at 388.

245. Kurland, supra note 53, at 844. In a similar vein, Wilbur Katz writes, "It

seems undeniable that the First Amendment operated, and was intended to operate, to
protect from Congressional interference the varying state policies of church establishment.

The Amendment thus embodied a principle of federalism." Katz, supra note 42, at 9.



1993] THE CITIZENSHIP DECLARATION 505

federal officials. Moreover, Americans in 1789 largely believed that

church-state issues should be settled in accordance with the preferences

of local communities — preferences that varied dramatically in different
areas of the nation. Nevertheless, liberal and moderate United States

Supreme Court Justices continue to rely excessively on James Madison

and the debates of the First Congress to reinforce the Court's view that

each state should be subjected to the same limitations as Congress.

The United States Supreme Court distorts what Madison really ac-

complished in the First Congress. Madison was the moving force behind

the Bill of Rights, a facilitator, a prodder, an editor, a diligent deal

maker. He selected the amendments to be debated (and omitted the ones
he did not want debated). His influence in pushing through the Bill of

Rights cannot be gainsaid, even though there were some important

alterations to his first draft which eventually became the Establishment

Clause. However, neither his first draft nor the subsequent revisions by

the First Congress threatened the antidisestablishmentarians in the several

states (unlike the views expressed in Madison's Remonstrance, his De-

tached Memoranda, and Jefferson's views about walls of separation

which did threaten the antidisestablishmentarians). Indeed, the Estab-

lishment Clause is part of our Constitution now only because Madison
managed to satisfy the reservations of antidisestablishmentarians without

impeding the disestablishment process ongoing in several states. There-

fore, contrary to misleading impressions created by the Court since 1947,

Madison's views, which he expressed during Virginia's disestablishment

battles, are of limited relevance when the meaning of the Establishment

Clause is debated. The Fourteenth Amendment is at least as relevant
as the Establishment Clause. Nonetheless, the Court still leans on Ma-
dison's collected papers as a crutch to support its position that federal

courts may enjoin non-stigmatizing state aid to religion.
To sum up the foregoing, the Founders in Philadelphia during the

summer of 1787 agreed that the federal government lacked power to
disestablish religions established by state law. Public opinion did not

change when the First Amendment was framed in 1789 and ratified in
1791 246 t^ Establishment Clause, as it was originally projected in 1791,
did not encroach upon any of the unspecified residual powers reserved

to the states. 247 Perhaps I have been belaboring the obvious. On its face

246. Since no records were kept of the debates in the state legislatures that ratified

the Bill of Rights, we do not know what the legislators of the various ratifying and
nonratifying States said about the scope and reach of the Establishment Clause. Neither

the relevant correspondence of public figures nor newspaper comments have "uncovered

anything particularly revealing. ..." Levy, supra note 5, at 189.

247. Even Jefferson "understood the states' rights aspect of the original establishment



506 INDIANA LAW REVIEW [Vol. 26:469

the Establishment Clause prevents congressional interference with laws

in the states regulating religion and the language chosen by the First

Congress performed that function until the 1940s. 248 The Court's in-
corporation doctrine has, however, transformed the Establishment Clause

from a guarantee of state autonomy249 to a provision limiting state
powers.

IV. The Neglected Citizenship Declaration: A Bridge from the
Establishment Clause to the Fourteenth Amendment's

Prohibitions Against State Action

A. Identifying the Missing Link in the Court's Establishment Clause

Chain of Reasoning

The Supreme Court's Establishment Clause jurisprudence is most
vulnerable to criticism when state support of religion is enjoined at the
behest of a litigant whose freedom is not violated. Nevertheless, the

Court repeatedly reaffirms without reservations or qualifications the

decision in Everson v. Board of Education,150 which "ensconced separ-

ationism as an end in itself." 251 Unfortunately, the Court has never

found a cogent way to connect the Establishment Clause to the three
prohibitions in Section One of the Fourteenth Amendment. 252 This missing
link253 weakens the Court's Establishment Clause jurisprudence. In this

clause." See Amar, supra note 42, at 1159. Moreover, when Jefferson was the Governor

of Virginia, he endorsed theistic beliefs when it suited him. Indeed, "he was so enamored

of the motto ['Rebellion to tyrants is obedience to God'] that he included it on the seal

of Virginia and stamped it on the wax with which he sealed his own letters." Richard
B. Morris, Seven Who Shaped Our Destiny: The Founding Fathers as Revolutionaries
137 (1973).

248. Glendon & Yanes, supra note 42, at 481-82 ("the historical record is clear
that when the religious language was first adopted it was designed to restrain the federal

government from interfering with the variety of state-church arrangements then in place").

249. See Amar, supra note 42, at 1136.

250. 330 U.S. 1 (1947). Perhaps the most controversial line in Everson is the one

stating that "[njeither a state nor the Federal government can . . . pass laws which aid

one religion, aid all religions, or prefer one religion over another." Id. at 15.

251. Glendon & Yanes, supra note 42, at 535.
252. The three prohibitions read:

No State shall make or enforce any law which shall abridge the privileges and
immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.

U.S. Const, amend. XIV, § 1.

253. The missing link referred to in the text is the introductory sentence of the

Fourteenth Amendment which reads as follows: "All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United States

and of the State wherein they reside."



1993] THE CITIZENSHIP DECLARATION 507

section I will focus on the cases dealing with symbolic state support for

religion, that is, support which does not violate anyone's religious liberty

but which might subvert an individual's citizenship status.

In County of Allegheny v. ACLU 2S4 the Court permanently enjoined
a county from placing on the beautiful "Grand Staircase'' of its court-
house a privately donated creche depicting the Christian nativity scene

during the Christmas holiday season. County ofAllegheny has a rationale

that makes sense given the doctrine of paramount national citizenship

embodied in the Fourteenth Amendment. Indeed, the Court's emphasis
on the states' duty to protect persons who are stigmatized as outsiders
by government endorsements of religion enables us to see the missing

link connecting the Establishment Clause with the commands of the
Fourteenth Amendment. However, this missing link was not noticed in
Everson. I describe below the endorsement rationale ventilated in County

of Allegheny, but let us first re-examine the incorporation doctrine

"slipped" into the Everson opinion.

Everson explains that the Establishment Clause is incorporated by

the Fourteenth Amendment because the Court had already incorporated
the Free Exercise Clause into the Establishment Clause and because the

Establishment Clause complements and is interrelated with the Free

Exercise Clause. 255 But this justification of the Court's incorporation of

the Establishment Clause does not explain why state laws not burdening
free exercise, are invalid when challenged by a plaintiff who is offended
by nonpreferential government aid to all charitable institutions, including

religious ones.

Shortly after Justice Black's remarkably brief and unconvincing jus-

tification for incorporating the Establishment Clause in Everson, he

wrote an extraordinary dissenting opinion attempting to justify incor-

poration of the first eight amendments in toto. 256 Justice Black's total
incorporation theory has never attracted a majority of the Justices because

his reconstruction of legislative history has been correctly deemed un-
convincing. This is not to say that the framers of the Fourteenth Amend-
ment did not want to incorporate some of the first eight amendments;
they did. But any explanation that the Establishment Clause is incor-

porated because the Fourteenth Amendment's framers expressed collec-
tively their objections to state aid to religion cannot be documented by
substantial evidence. The Thirty-ninth Congress and the ratifying states
did not, pace Justice Black, consciously constitutionalize a doctrine totally

254. 492 U.S. 573 (1989).

255. Everson v. Board of Educ, 330 U.S. 1, 15.
256. See Adamson v. California, 332 U.S. 46, 68-123 (1947) (Black, J., dissenting)

(involving the Fifth Amendment's guarantee against self-incrimination).



508 INDIANA LAW REVIEW [Vol. 26:469

separating church and state in every town, hamlet, prison, public school,

and state-subsidized orphanage. 257

It is extremely awkward to incorporate the Establishment Clause258

into the Fourteenth Amendment for reasons well expressed by Justice
Black when he argued that the Ninth Amendment was not incorporated
by the Fourteenth. As Justice Black pointed out, it is illogical to convert
an amendment "enacted to protect state powers against federal invasion"
into "a weapon of federal power to prevent state legislatures from
passing laws they consider appropriate to govern local affairs."259 The

same reasoning applies to the Establishment Clause. Furthermore, in-

corporating a "policy of states' rights for application against the states

[is] utter nonsense" because "[i]t would be the incorporation of an

empty set of values, akin to the incorporation of the [T]enth [A]mendment

for application against the states."260

Although the Court has never embraced Justice Black's total in-

corporation theory, it selectively incorporates individual rights which are

protected against state action by the Due Process Clause of the Fourteenth
Amendment.261 The process of selective incorporation involves a search
for the principles of ordered liberty and justice that give content to the

provisions of the Fourteenth Amendment. 262 One source for the content
of such principles is "the traditions and conscience of our people." 263

Some aspects of the Court's doctrine of separation of church and
state are deeply rooted in the ideals and aspirations of our people,

whereas other aspects of separationism are traditionally resisted by a

large segment of the population. Separationism as an end in itself is

incompatible with many traditional American values especially when the

257. As Paulsen writes, "the Supreme Court forced a square historical peg into a

round doctrinal hole by filing off a few of the more inconvenient sharp edges of history."

Paulsen, supra note 42, at 317-18. There is less than a scintilla of evidence indicating

that the Thirty-Ninth Congress intended to limit the state government's power to establish

religion. Hardly sounding like a disestablishmentarian, Lyman Trumbull informed the
Senate during the Thirty-ninth Congress' deliberations over the pending Civil Rights Bill:

"Now, our laws are to be enacted with a view to educate, improve, enlighten, and
Christianize the negro." Cong. Globe, 39th Cong., 1st Sess. 322 (1866) (emphasis added).

For some recent histories of the Fourteenth Amendment, see generally Earl M.
Maltz, Civil Rights, The Constitution, and Congress, 1863-1869 (1990); William E.
Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine

(1988); Michael K. Curtis, No State Shall Abridge: The Fourteenth Amendment
and the Bill of Rights (1986).

258. See Amar, supra note 42, at 1158.

259. Griswold v. Connecticut, 381 U.S. 479, 520 (Black, J., dissenting).

260. Conkle, supra note 42, at 1141.

261. See, e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).
262. See id. at 174-80 (Harlan, J., dissenting).

263. Palko v. Connecticut, 302 U.S. 319, 325 (1937).



1993] THE CITIZENSHIP DECLARATION 509

Court spells out the most extreme implications of a doctrine erecting a

high and impregnable "wall of separation.

"

264

Americans, however, traditionally boast that our land is a place of

refuge for persons who feel they are dishonored in other countries because
of their religion. Therefore, it violates enduring American traditions of

justice if state supported religion * "sends a message to nonadherents [of

the aided religion(s)] that they are outsiders, not full members of the

political community'."265 Under such circumstances, the Court labels the

impermissible state action an * 'endorsement.'

'

The endorsement rationale, which was adopted by the Court in

County of Allegheny, recognizes that under some circumstances state
aid to religion, even if it is not coercive or deliberately preferential,

"mak[es] religion relevant, in reality or public perception, to status in

the political community'/'266 Such "endorsements" violate the Estab-

lishment Clause regardless of whether they also violate the Equal Pro-

tection Clause267 or the Free Exercise Clause. 268

The Court's endorsement doctrine was foreshadowed in 1785 when
Madison warned Virginians that an establishment of religion that departs

264. Everson v. Board of Educ, 330 U.S. 1, 16 (1947) (quoting Reynolds v. United

States 98 U.S. 145, 164 (1898)).

265. County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989) (quoting Lynch v.
Donnelly, 465 U.S. 668, 688 (1984) (O'Connor., J., concurring)).

266. Id. at 626 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor,

J., concurring)) (emphasis added).

267. In Larsen v. Valente, 456 U.S. 228, 254 (1982), the Court explained: "The

clearest command of the Establishment Clause is that one religious denomination cannot
be officially preferred over another." Id. at 244. Justices Rehnquist and White point out,

however, that the premise for the Court's holding in Larsen "is that the challenged

provision [in the law] is a deliberate and explicit legislative preference for some religious

denominations over others." Id. at 260 (White, J., dissenting). The Larsen Court's Equal

Protection Clause test is not nearly as broad as the Court's Establishment Clause doctrine.

Neither is Paulsen's. Paulsen advances an Equal Protection Clause test that triggers

heightened judicial scrutiny only when "government policy has coercive or discriminatory

effects on an individual's religious exercise." Paulsen, supra note 42, at 336. Certainly,

the Equal Protection Clause's principles are pertinent in Establishment Clause cases, but

they are bolstered and given more content by the citizenship declaration.

268. Even Justice Scalia concedes that legal coercion is not required when the

government endorsement of religion is sectarian. See Lee v. Weisman, 112 S. Ct. 2649,

2683-84 (1992) (Scalia, J., dissenting). "To require a showing of coercion, even indirect
coercion, as an essential element of an Establishment Clause violation would make the
Free Exercise Clause a redundancy." County of Allegheny, 492 U.S at 628 (O'Connor,

J., concurring). In Engel v. Vitale, 370 U.S. 421, 430 (1962), the Court's plurality opinion

states: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon
any showing of direct governmental compulsion." See also Committee for Public Educ.

& Religious Liberty v. Nyquist, 413 U.S. 756, 786 (1973); Abington Sch. Dist. v. Schempp,
374 U.S. 203, 222-23 (1963).



510 INDIANA LAW REVIEW [Vol. 26:469

from the policy of offering asylum to the persecuted of every religion

"degrades from the equal rank of Citizens . . . .'
,269 There was, however,

no well-developed conception of paramount national citizenship in 1785

and Madison's "Lost Amendment,'' which limited state power in order

to protect rights of conscience, was killed in the Senate in 1789.270 Given

the Fourteenth Amendment's very first sentence, which replaced the older
dual citizenship doctrine, paramount national citizenship is the mid-

nineteenth century doctrine that makes, once again, Madison's concern

about degraded citizenship relevant outside of Virginia.

Under the older, superceded doctrine of national citizenship, one

could not be considered a citizen of the United States if he lacked "the

full rights of a citizen in the State of his residence." 271 Under this view,

United States citizenship is derived from state citizenship. 272 During this

early period of our history, Madison's concern about degraded citizenship

was inapplicable on a national level. During the 1830's, however, and

increasingly thereafter, the abolitionists articulated a conception of par-

amount national citizenship273 which was incompatible with state laws

adversely affecting persons marginalized as if they were alien to the

political community. The abolitionists, among others, were outraged when
Dred Scott v. Sandford214 upheld a doctrine of diminished citizenship
reinforcing "deep and enduring marks of inferiority and degradation"

on free blacks born in the United States. 275

The doctrine of national citizenship was not yet the law in 1862

when the Attorney General of the United States was unable to clearly
answer the question: Who is a citizen?276 By 1866, however, the abo-
litionists' conception of paramount national citizenship was widely shared

269. Remonstrance, par. 9, in 5 The Founders' Constitution, supra note 17, at
83.

270. See supra text accompanying note 203.

271. 1 Op. Att'y Gen. 506-9 (1821).

272. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 94 (1873) (Field, J., dissenting)

(citing John C. Calhoun's 1833 speech in the Senate on the Force Bill).

273. See generally Jacobus tenBroek, Equal Under Law (Collier Books ed. 1965)
(1951).

274. 60 U.S. (19 How.) 393 (1856).

275. Id. at 416.

276. Excerpts from an 1862 opinion of the Attorney General of the United States

follows:

Who is a citizen? What constitutes a citizen of the United States? I have often
been pained by the fruitless search in our law books for a clear and satisfactory

definition of the phrase citizen of the United States .... Eighty years of

practical enjoyment of citizenship under the Constitution have not sufficed to

teach us either the exact meaning of the words, or the constituent elements of

the thing we prize so highly ....

10 Op. Att'y Gen. 383 (1862).



1993] THE CITIZENSHIP DECLARATION 511

by the Republican dominated Congress and it became embodied in the

introductory clause of the Fourteenth Amendment (hereinafter the cit-
izenship declaration) which states: "All persons born or naturalized in

the United States, and subject to the jurisdiction thereof are citizens of

the United States and of the State wherein they reside."277 This language,

deliberately chosen because of its breadth, secures the immunities, priv-

ileges, and liberties of the people as a body politic. 278 The citizenship
declaration embodies a conception of citizenship broader than the widely

shared concerns about the recurrence of badges and incidents of slavery.

Indeed, it eliminates the stigma of second class citizenship.

Since social stigmatization because of creed is incompatible with an

individual's equal citizenship status, the citizenship declaration can serve

plausibly as a bridge historically, 279 functionally, 280 and hermeneutically281

linking the Establishment Clause with all three overlapping prohibitions

of state action in the Fourteenth Amendment. Realization of its potential
was delayed when "in the Slaughter-House Cases™1 the Court narrowly
rejected the notion that there was independent substantive content in

the amendment's citizenship provisions."283 It was necessary and appro-

priate, however, for the Court to belatedly recognize "that the Fourteenth

Amendment was designed to, and does, protect every citizen of this

277. U.S. Const, amend. XIV, § 1.

278. The most prominent writers on constitutional law during the post-Civil War
period noticed that the Fourteenth Amendment's broad scope extended far beyond the

need to protect persons of color. See, e.g., Herbert Hovenkamp, Enterprise and
American Law 1836-1937 96 (1991).

279. The framers and ratifiers of the Fourteenth Amendment gave very little thought,
if any, to separation of church and state issues but the yearnings and aspirations embodied

in the citizenship declaration enable the sensitive interpreter of the Constitution to "honor []
original intent and, yet, adapt [] it to contemporary issues." Arlin M. Adams, Justice
Brennan and the Religion Clauses: The Concept Of A "Living Constitution," 139 U. Pa.
L. Rev. 1319, 1330 (1991).

280. The framers of the Fourteenth Amendment "saw themselves as adopting a
principle of equal citizenship, and that the principle was 'capable of growth'." Kenneth

L. Karst, Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L.
Rev. 1, 17 (1977) (quoting Alexander Bickel, The Original Understanding and the Seg-
regation Decision, 69 Harv. L. Rev. 1, 63 (1955)).

281. Charles Black has argued that much of the case law ascribed to the framers
of the Fourteenth Amendment could be accomplished based solely on the citizenship
declaration. Charles Black, Structure and Relationship in Constitutional Law 51-
66 (1969). In other words, even without the Privileges and Immunities Clause, even without

the Equal Protection Clause, and even without the Establishment Clause, the citizenship

declaration has an independent potency. The citizenship declaration, however, also acts

synergistically with the prohibitions of the Fourteenth Amendment.
282. 83 U.S. (16 Wall.) 36 (1873).

283. Karst, supra note 280, at 18.



512 INDIANA LAW REVIEW [Vol. 26:469

Nation against a forcible destruction [by Congress] of his citizenship,

whatever his creed. . . ,"284

In sum, the citizenship declaration of the Fourteenth Amendment
describes the eligibility requirements for United States citizenship and

recognizes a legal status with concomitant privileges and immunities for

all citizens.
285 The citizenship declaration constitutionalizes the aboli-

tionists' doctrine of paramount national citizenship, and this Article is

intended to demonstrate how it augments the reach and scope of the
Establishment Clause. 286

B. The Function of the Citizenship Declaration

In our nation, citizenship is a "fundamental right";287 it is a legal

status but one not like "a license that expires upon misbehavior." 288

Citizenship status in America, in theory, is without gradations; there is

no intermediate class of persons between citizens and aliens.289 There

are not any second class citizens—again, at least not in theory. There
are no separate estates of the realm as in Great Britain—Lords, clergy
and people. "The essence of equal citizenship is the dignity of full
membership in the society," 290 a principle that "guards against degra-

dation or the imposition of stigma." 291 The status of being a citizen of

the United States differentiates a person legally from aliens,292 foreigners,

corporations, and other non-citizens. 293

284. Afroyim v. Rusk, 387 U.S. 253, 268 (1967).

285. Justice Bradley wrote prophetically, "[i]t was not necessary to say in words

that the citizens of the United States should have and exercise all the privileges of citizens

.... [t]heir very citizenship conferred these privileges, if they not possess them before."

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 119 (1873) (Bradley, J., dissenting).

286. See Afroyim, 387 U.S. at 284 n.42 (Harlan, J., dissenting).

287. Trop v. Dulles, 356 U.S. 86, 93 (1958). Dissenting in Perez v. Brownell, Chief

Justice Warren called United States citizenship the American people's "most basic right."

356 U.S. 44, 64 (1958) (Warren, C.J., dissenting).

288. Trop, 356 U.S. at 92.

289. The Constitution's identification of persons who are citizens necessarily gives
them "full partnership in political society." Maltz, supra note 257, at 4 (1990). According

to Representative Bingham, addressing the House in 1866, citizenship makes every person

born in the United States "a partner in the government of the country." Cong. Globe,

supra note 257, at 1291 (speech in support of the Civil Rights Act of 1866).

290. Karst, supra note 280, at 5.

291. Karst, supra note 280, at 6.

292. The Justice Department insists that the First Amendment rights enjoyed by
citizens are more extensive than those guaranteed to resident aliens. See Trial May Turn
on Issue of Aliens' Rights, Wall St. J., Aug. 14, 1992, at B8. The alien, however, has
never had legal parity with the citizen. See, e.g., Harisiades v. Shaughnessy, 342 U.S.

580 (1952) (upholding deportation of alien who in 1939 had been a member of the
Communist Party in Greece). An alien cannot stand for election to many public offices.



1993] THE CITIZENSHIP DECLARATION 513

The problem of limits is inescapable when theorists identify a concept
of equal citizenship as a source of basic rights. 294 There are limits to

my conception of the citizenship declaration, which is not radical or
transformative. In Establishment Clause cases, the citizenship declaration

merely supplies a missing link in the Supreme Court's Establishment

Clause jurisprudence; it is not the foundation for an entirely new edifice

of privileges, immunities, and rights, although it does add content to

the Equal Protection Clause and adds strength to existing immunities. 295

With a proper view of the citizenship declaration, however, it is no

longer necessary to rely primarily on the Court's frequently criticized

theory of selective incorporation in Establishment Clause cases when a
litigant's citizenship status is wrongfully degraded on the basis of his

or her faith or lack of religious beliefs.296

Respect for beliefs is the common denominator of the endorsement
of religion cases like County of Allegheny and the "citizenship" cases

providing a citizen with an immunity against Congress when laws alter
citizenship status on the basis of creed. 297 Only the overbreadth of the

Court's Establishment Clause jurisprudence is eliminated by recognizing

the function of the citizenship declaration. The immunity associated with

citizen status does not need to come into play when nonpreferential,
noncoercive state aid to religion advances legitimate secular objectives

and does not stigmatize members of religious outgroups. It needs to
come into play if, and only if, noncoercive state aid to religion mar-
ginalizes citizens who do not share the creed of the aided religion.

For example, Art. 1, § 2, cl. 2, & § 3, cl. 3 of the Constitution, respectively, require
that candidates for election to the House of Representatives and Senate be citizens. The

Court still refuses to '"obliterate all the distinctions between citizens and aliens, and thus

depreciate the historic values of citizenship'." Foley v. Connelie, 435 U.S. 291, 295 (1978)

(quoting Nyquist v. Mauclet, 432 U.S. 1, 14 (1977) (Burger, C.J., dissenting)).

293. Birthright citizenship was not extended to American Indians born on reservations

until 1924 by an Act of Congress. Act of June 2, 1924, ch. 233, 68 Stat. 253 (1924).

294. A theory of judicial review without limits encourages excessive judicial activism.
295. An immunity disempowers the government from acting to deprive a person of

his or her privileges, entitlements, right, liberties, or status as a citizen. Cf Judith Jarvis
Thompson, The Realm of Rights, 59, 283 (1990). For example, Congress lacks power
to divest persons of their citizenship absent their voluntary renunciation. See Afroyim v.

Rusk, 387 U.S. 253 (1967). There is an obvious difference however between divestment

of citizenship on the one hand and a stigma that makes one seem like a second class

citizen. In the latter situation, there is a qualified immunity that can be overcome if the

government shoulders a heavy burden of persuasion by presenting evidence and arguments

justifying its stigmatizing action aiding religion. See infra text accompanying notes 312-

15.

296. The Court protects citizenship status from alteration on the basis of "creed,
color, or race." Afroyim, 387 U.S. at 268.

297. Id. at 268.



514 INDIANA LAW REVIEW [Vol. 26:469

The supporters of the citizenship declaration "wanted to put citi-
zenship beyond the power of any governmental unit to destroy." 298 United

States citizenship "means something
;" 299

it means that a person's status

is protected as well as her liberty. Chief Justice Warren labelled citizenship
"man's basic right for it is nothing less than the right to have rights." 300

Although countless governmental classifications treat dissimilarly situated

citizens differently on the basis of traits relevant to legitimate govern-

mental objectives, persons301 (whose religious commitments are not en-

dorsed by the majority or consensus view) may no longer be stigmatized
as inferior by the government's aid to religion. The foregoing proposition
is captured, as stated above, by the Court's endorsement rationale in

County ofAllegheny, but I have not yet answered one important question:

Why was it necessary for the citizenship declaration to link the Estab-
lishment Clause with the three prohibitions on state action in the Four-

teenth Amendment?
The answer to the foregoing question is this: The citizenship dec-

laration became necessary because the states did not fulfill one of their

original obligations. More specifically, national unity was one of the
Founders' ideals that transcended religious differences and states were

expected to respect the national citizenship of the individuals comprising

the sovereign people of the United States. The states failed to advance

the national goal of unity when they failed to adequately protect the
citizenship status of many people who were marginalized because of
their race or creed. Therefore, more protection by the national govern-
ment was needed. It was provided via the citizenship declaration. Hence,

the citizenship declaration is the bridge connecting the Establishment

Clause with the three prohibitions on state action in the Fourteenth

Amendment. In short, the citizenship declaration is both remedial and
reconfiguring. It is reconfiguring because the nineteenth-century notion

that the United States is a Christian nation is no longer an accurate

description of our polity.

The citizenship declaration is especially pertinent when state aid to
religion belittles non-Christians whose very identities are sustained by

298. Id. at 263. The government may not "'abridge,' 'affect,' 'restrict the effect
of,'[or] 'take . . . away' citizenship." Id. at 267 (quoting U.S. Const, amend XIV).

299. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 114 (1873).

300. Perez v. Brownell, 356 U.S. 44, 64 (1958) (Warren, C.J., dissenting). Justice

Douglas, dissenting in Perez, stated, "Citizenship, like freedom of . . . religion, occupies

a preferred position in our written Constitution, because it is a grant absolute in terms."

Id. at 84 (Douglas, J., dissenting).

301. Aliens would usually be protected against state action because of the Court's

Equal Protection Clause cases protecting aliens and because state action is preempted by

Congress' power to prescribe the conditions for an alien's lawful residence in the United

States.



1993] THE CITIZENSHIP DECLARATION 515

the knowledge that they can stand tall—even in a nation that has a
strong Christian heritage. A communitarian approach, instead of a one
dimensional focus on individual rights, supports the ideal of equal
citizenship in an illuminating way.302 "From the communitarian per-
spective, citizenship is seen as an organic relationship between the citizen

and the state." 303 A citizen of course is a member of a community304
and is constituted in part by his embeddedness in that community. To
subvert that membership is to undermine not merely rights, but human
dignity. One's conception of self includes one's sense of being an Amer-
ican citizen. This sense of being an American, according to Professor

Dershowitz, is threatened when the government aids Christian denom-
inations. 305

The connection between a creche displayed at Christmas and the
threat to Jews that Dershowitz describes is not immediately evident to

everyone. For example, Justice Scalia has indicated that he lacks empathy

with any person, Jew or Gentile, who is traumatized when government
officials facilitate public prayer. 306 Minority groups are in trouble when
judges lose their ability to place themselves in the shoes of those who
depend upon their sensitivity as well as their good legal judgment. We
know from reliable testimony that persons who object to religious rituals
sponsored by the government "bec[o]me the objects of ridicule and

anger" when others learn of their beliefs. 307 Under such circumstances,
the government's aid to religion has the impermissible effect of "mak[ing]

religion relevant, in reality or public perception, to status in the political

community."308

Admittedly, it is difficult for many mainstream Americans, especially
mainstream Christians, to empathize with persons with nonconforming

302. See T. Alexander Aleinikoff, Theories of Loss of Citizenship, 84 Mich. L.

Rev. 1471, 1494-98 (1986).

303. Id. at 1494.

304. The Court has recognized that "citizenship is ... a relevant ground for

determining membership in the political community." Cabell v. Chavez-Salido, 454 U.S.

432, 438 (1982).

305. Dershowitz, supra note 74, at 336. See also supra note 105 and accompanying

text.

306. Lee v. Weisman, 112 S. Ct. 2649, 2681-83, 2686 (1992).

307. Judy Gordon Lessin, who many years ago sued unsuccessfully in Richmond
to ban an invocation and benediction at her high school graduation, remembers and writes:

"[W]e believed in our cause enough to defend ourselves" by filing a lawsuit but "[wjhen

our case made the front page of the TIMES-DISPATCH, we became the objects of
ridicule and anger from some students and faculty." Judy G. Lessin, Letter to the Editor,
Rich. Times-Dispatch, July 11, 1992, at A9. In short, Ms. Lessin was made to feel like
a second-class citizen.

308. County of Allegheny v. ACLU, 492 U.S. 573, 626 (1989) (quoting Lynch v.
Donnelly, 465 U.S. 668, 692 (1984) (O'Connor, J., concurring)).



516 INDIANA LAW REVIEW [Vol. 26:469

religious beliefs. They ask why members of nonconforming religions or
sects cannot "go along to get along" without filing lawsuits. However,

for some members of minority religions, the psychological peer pressure
generated by government-sponsored religious rituals is traumatic. Peer

acceptance and self-image, for some insecure, as well as some outer-
directed, persons are closely related. When peer pressure is aided or
supported by the government's endorsement of a religious ceremony,

symbol or belief, a reasonable dissenter309 might, under the circumstances,

consider herself viewed as less than a full member of the national
community. 310 Non-degradable, equal citizenship status, however, is that

victim-dissenter's birthright under the Fourteenth Amendment's citizen-
ship declaration.

When a state subverts the status of patriotic Americans whose cit-
izenship status is an inseparable part of their identity and self-esteem,

the invasive state action tears away an invaluable component of one's
very being.311 If this is how a typical (as opposed to hyper-sensitive)
member of a minority religion responds to a city-sponsored religious
symbol (for example, a nativity scene), the injury is not merely a

subjective chill.312 At the very least, a normal reaction of this sort is

an Article III injury313 deserving of standing to sue. Moreover, under

County of Allegheny, a cause of action is stated and the government

should have the burden of persuasion to show why compelling secular
interests justify its sponsorship of religion.

309. What matters is that given all the facts and circumstances of a case, the party
who complains about the stigmatizing effects of state aid to religion is perceived as "a
reasonable dissenter." See Weisman, 112 S. Ct. at 2658. Certainly not "every state action

implicating religion is invalid if one or a few citizens find it offensive." Id. at 2661.

310. Some offensive government action is tolerable because "offense alone does not
in every case show a violation" of the Constitution. Id.

311. See Aleinikoff, supra note 302, at 1495.

312. See Laird v. Tatum, 408 U.S. 1 (1972) (denying standing to sue because

plaintiffs' injuries were labelled a "subjective chill"). The reasonable observer test is

arguably adequate in most endorsement cases brought under the Establishment Clause.

On the other hand, experience might show that the reasonable observer standard may not
be sufficiently sensitive, if the plaintiffs are members of minority religions and the fact

finder is not empathetic. Just as in racial harassment and sexual harassment cases, where

some courts are applying a "reasonable black person" and a "reasonable women" test,
so too in cases involving deeply offended religious persons, a reasonable dissenter's test

might be needed. See, e.g., Harris v. International Paper Co., 765 F. Supp. 1509, 1513,

vacated in part, 765 F. Supp. 1529 (D. Me. 1991) (amendment only of injunction and

order) (using, in racial harassment case, a reasonable black person standard); Ellison v.

Brady, 924 F.2d 872 (9th Cir. 1991) (using reasonable woman standard in sexual harassment
case); Andrews v. Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990) (using, in sexual

harassment case, standard of reasonable person of the same sex in that position).

313. U.S. Const, art. Ill, § 2.



1993] THE CITIZENSHIP DECLARATION 517

I can, however, think of five compelling governmental interests that

might, if substantially furthered, justify noncoercive, nonpreferential aid

to religion. Such aid could be justified if it: (1) facilitates the free exercise

of religion without hardship to others, (2) increases options for a parent

subject to a compulsory education law in a school district where the

public education provided does not meet the religious beliefs of a rea-

sonable parent, 314 (3) is an essential part of a program of equal access

to government property, 315 (4) is an accommodation deemed necessary

to accord religious persons or entities the same treatment as others

similarly situated, 316 or (5) is a precaution necessary to avoid the ap-

pearance of hostility or callous indifference toward religion(s).317 In such

situations, under the model of adjudication proposed in this Article, the

government can often carry its exceedingly heavy burden of persuasion.

When courts realize that there is a framework of analysis that will
neither dramatically overturn precedent nor detract from the Court's

legitimacy, judges might turn away from the spurious history and rely

instead on the bridging function of the citizenship declaration.

V. Conclusion

The Fourteenth Amendment's provisions have an "overlapping and
duplicatory nature."318 The Fourteenth Amendment does not, however,
give judges a blank check to use the rhetoric of * 'establishment' ' as an

excuse to eliminate all religious symbolism in the public square. Ironically,

the Court de-emphasizes Madison's concern about the connection between

religious autonomy and citizenship status. 319 Although Madison lost his
battle to obtain an amendment limiting the states' power to degrade a
person's equal citizenship status, the general idea of national citizenship

has survived, and it delimits the powers of both the state and federal

government. For example, no religious person can be singled out and
given privileges or disabilities because of his or her religious faith or

314. See Pierce v. Society of Sisters, 268 U.S. 510 (1925).

315. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226, 248-53 (1990)
(upholding Equal Access statute enacted by Congress making it unlawful for a public-

secondary school to deny equal access to students wishing to hold religious meetings).

316. Widmar v. Vincent, 454 U.S. 263 (1981) (invalidating university regulation
denying religious groups equal access to university facilities used as a public form).

317. Lee v. Weisman, 112 S. Ct. 2649, 2661 (1991) ("A relentless and all-pervasive
attempt to exclude religion from every aspect of public life could itself become inconsistent

with the Constitution.").

318. See TenBroek, supra note 273, at 123. The Establishment Clause protects

states rights; quite different is the protection of individual rights provided by the Fourteenth

Amendment. Unfortunately, the Court often neither sees nor appreciates this basic dif-
ference.

319. See supra text accompanying note 269.



518 INDIANA LAW REVIEW [Vol. 26:469

loyalties. Indeed religious faith and loyalties are irrelevant to the rights

and duties of citizens. 320

This Article does not reconstruct the mindsets of Madison or those

who influenced the framing of the Fourteenth Amendment, but I have
tried to tease out the hitherto unnoticed dormant meaning of the Amend-
ment's citizenship declaration. One aspect of that meaning must be made
clear: the concept of national citizenship increases the rights of individuals

at the expense of state sovereignty.

Our generation, and future ones, have the responsibility to develop
and clarify a doctrine of citizenship status that gives citizens of the

United States the dignity, honor, and protection they are due. Part of

what is due in establishment of religion cases is a legal environment

that is caring and respectful of persons regardless of their creed or lack

of religious commitment. To give each citizen the protection and dignity
that is his or her entitlement, without denigrating the importance of the

spiritual dimension in the lives of many Americans, the meaning of the
Establishment Clause should not be contaminated by a radical secularism

that poses dangers akin to those posed by any other ideology taken

relentlessly to an extreme. Accordingly, the Court's Establishment Clause

doctrine must respect the equal citizenship status of individuals who
need the presence of religious symbolism in the public square without

debasing the equal citizenship status of individuals who feel, quite often
reasonably, threatened by such symbolism. To perform this delicate task
with adequate sensitivity, the Court must decide the cases one at a time

without dogmatic prejudgments that indiscriminately view all kinds of

aid to religion as if all aid is, without exception, forbidden fruit.

320. The term "citizenship" has had a variety of meanings in American history;

it is a dynamic concept that cannot be discussed in a vacuum. See Judith N. Shklar,

American Citizenship: The Quest for Inclusion 3, 8 (1991). One danger of any theory
privileging citizenship, of course, is that it marginalizes aliens, including permanent residents,

but this danger was with us when the Bill of Rights was drafted since the Founders tended

not to regard aliens as parties to the social contract, i.e., citizens. See Gerald L. Neuman,

Whose Constitution? 100 Yale L.J. 909, 927-38 (1991). Nothing, in this Article, however,

provides a basis for reducing the Court's level of careful scrutiny (in equal protection

cases) of state classifications based on alienage. Therefore, aliens who are made to appear
as outsiders because of their religious beliefs are not unprotected, but their protection

depends on a representation-reinforcing rationale that is beyond the scope of this Article.

See John Hart Ely, Democracy and Distrust 148-49, 160-62 (1980).