Correcting the record.

CORRECTING THE RECORD

THE BULK of the Supreme Court's church-state opinions have tended to give the misimpression that Thomas Jefferson and James Madison embraced a doctrine of absolute separation of church and state. William Rehnquist's dissent in Wallace v. Jaffree, the Alabama "silent moment of prayer or meditation" case, offers a recent expression of the correct historical view. Justice Rehnquist's arguments are, of course, unpopular with liberals, and have been attacked by them in The New Republic, among other places. If I defend his position, that is in part because his historical analysis in that case drew heavily on my recent book, Separation of Church and State: Hostorical Fact and Current Fiction, which the Justice cites.

Justice Rehnquist asserted that the Founding Fathers never intended to establish an absolute wall between church and state, but instead had a narrower goal: that of prohibiting the Federal Government from designating any one national church, or asserting a preference for one religious denomination or sect over others. Liberal orthodoxy holds that the Founders sought a much larger end. "There is no doubt," wrote The New Republic's analyst, expressing the liberal view, "that Madison had Virginia law in mind"--Jefferson's Statute of Religious Liberty of 1786--"when he distilled his thoughts on religious liberty into ten words in the First Amendment to the new U.S. Constitution." In fact, there is a great deal of doubt. In the first place, MAdison did not even write the ten words of the First Amendment reading: "Congress shall make no law respecting an establishment of religion." As the Annals of the First Federal Congress show, Madison's own proposal was much narrower. Madison's proposed wording was: ". . . The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established. . . ." (Emphasis added.) Even after Madison's draft was changed, when asked in debate on the House floor what the re-worded clause meant, Madison replied "that Congress should not establish a religion, and enforce the legal observation of it by law. . . ." The requests by many of the state ratifying conventions, that further religious guarantees be added to the Constitution, support both Congressman Madison's interpretation and Justice Rehnquist's dissent.

WHEN ALL the relevant documents are probated, 1785 and 1786 cannot be considered good years for absolute separationists. Acting as Jefferson's surrogate in the Virginia Assembly in 1785, Madison did introduce Jefferson's "Bill for Establishing Religious Freedom." However, on the same day--October 31, 1785--Madison also introduced Jefferson's proposed "Bill for Punishing . . . Sabbath Breakers." Both bills became Virginia law in 1786. Do these two laws taken together indicate that Madison and Jefferson subscribed to an absolute wall of separation between church and state in Virginia?

Liberals looking for separationist sentiment among the Founding Fathers often cite Madison's "Detached Memoranda." Written in his twilight years--and first published in 1946--Madison's "Memoranda" do say unequivocally that chaplains in Congress and national Thanksgiving Day Proclamations violate the Constitution. But as a member of the first House of Representatives, Congressman James Madison was one of six members of the joint House-Senate Committee that in 1789 recommended the establishment of the congressional chaplain system. Pursuant to the committee's recommendations, Congress appropriated $500 of federal tax money annually to pay for public prayers in Congress. Congressman Madison also did not object--as some others did--to the congressional resolution asking President Washington to issue the nation's first Thanksgiving Day Proclamation under the new Constitution. Finally, as President, James Madison issued at least four discretionary Presidential Thanksgiving Day Proclamations. One of those proclamations--that of November 16, 1814--called for, among other things, a day "to be observed by the people of the United States [for] public humiliation and fasting and prayer to Almighty God. . . ."

Reliance on the statements set forth in Madison's "Detached Memoranda" as the key to understanding the church-state views of the Founding Fathers--or, for that matter, even those of an earlier James Madison--is, at best, mis-guided. In Walz v. New York, Justice Brennan--perhaps the most absolute separationist member of the present Supreme Court--appropriately dismissed the worth of Madison's statements in the "Memoranda" when he wrote: ". . . These arguments were advanced long . . . after the adoption of the Establishment Clause. They represent at most an extreme view of church-state relations, which Madison himself may have reached only late in life. He certainly expressed no such understanding of Establishment during the debates on the First Amendment. . . . And even if he privately held these views at that time, there is no evidence that they were shared by others among the Framers and Ratifiers of the Bill of Rights."

A more balanced and accurate understanding of the "Founders' intentions" on church and state requires a careful reading of the many primary historical documents. Justice Rehnquist has invested the necessary time and thought. So should liberals.