Intent

The terms of this discussion seem to have been proscribed by an assumption that I join many others in rejecting: namely, that what the founders or framers or ratifiers or anyone else in the late eighteenth century meant or intended ought to be dispositive to how the Constitution is interpreted today.

The fact is that people did then, as people do now, profess and entertain a variety of religious opinions. The overarching idea of the "no-establishment" and free exercise clauses is that such opinions cannot be promoted or prevented by the coercion of the state. Neither is it permissible for government to become involved in the institutional competence ("establishment") of religious opinions and practices.

The Federal Constitution was quite self-consciously a document created with the inherent flexibility to outlast the "factions" for whom it was itself a compromise. By embodying great liberal principles in simple and abstract rhetoric, the Framers left a document that we are forced to interpret. So the choice is not whether to interpret or not. The choice is whether the private opinions of the framers/founders ought to inform that interpretation, and if so, how much.

Ronald Dworkin has a parable: A CEO of a large corporation calls in his chief of personnel and tells her that a new vacancy has opened for a vice president of sales. The CEO tells the personnel manager that the CEO's own son is applying for the job. The intention of the CEO is to direct the personnel manager to hire the CEO's son for the job because in the opinion of the CEO, her son was the best qualified for the job. But the personnel manager hires someone else.

Was the personnel manager doing her job even though she was betraying the "original intent" of the CEO?

The issue of the relationship between governmental action and religious institutions cannot be resolved by referring to the presumed religious "atmosphere" of the late eighteenth century in England and her colonies. Nor can the historical circumstances which first informed the Framers to create and ratify the First Amendment have anything but cursory relevance to the application of that text to the modern situation. All we can know is that generally, government must not "respect" any establishment of religion, and it must not interfere with "the free exercise thereof." Insofar as much of the recent case law in this area has also implicated free speech (e.g., Rosenberger, Lamb's Chapel) and even Congressional power (City of Boerne v. Flores), the question of accommodation arises in an atmosphere that the Framers could not have anticipated.

I am referring here to the enormous influence that the 14th Amendment has had in shaping American constitutionalism in the 130 years since its framing. (Substantive) Due Process and Equal protection are not just provisions. They are paradigms that reshape the way all provisions of the Constitution must be understood.

Stephen McLeod