Academic journal article
By Drakeman, Donald L.
Constitutional Commentary , Vol. 21, No. 3
In the Supreme Court's first case interpreting the Constitution's free exercise clause, Chief Justice Morrison Waite endowed the next two centuries of religion clause jurisprudence with a generous legacy of constitutional history. In that 1879 case, Reynolds v. United States, the Chief Justice called upon the founding fathers to decide whether polygamous Mormons in the Territory of Utah were immunized by their faith from prosecution under a federal statute outlawing bigamy. (1) The Court's ruling offered Mr. Reynolds, a minor Mormon official, no hope of sanctuary within the First Amendment. More important than this specific decision, however, was the historical approach to interpreting the religion clauses adopted by the Chief Justice, which has had the effect of essentially writing Thomas Jefferson and James Madison directly into the First Amendment. Not just any aspects of these two influential framers were incorporated into constitutional doctrine, but their writings that have come to stand for the principle of a strict separation of church and state: Two documents from colonial Virginia--Madison's Memorial and Remonstrance against Religious Assessments and Jefferson's Bill for Establishing Religious Freedom--together with Jefferson's now-famous letter to a group of Danbury, Connecticut, Baptists, declaring that the First Amendment erected a "wall of separation between church and state."
The opinion's expansive language about "the true distinction between what properly belongs to the church and what to the State," and its striking assertion that Jefferson's 1802 letter to the Danbury Baptists represents almost "an authoritative declaration of the scope and effect" of the First Amendment have created an enduring historical heritage not so much for the free exercise clause, but for the First Amendment's non-establishment provision. (2) While the establishment clause itself does not make its Supreme Court debut for another fifty years or so, the legacy of Reynolds is the extent to which it has cast a strict separationist hue on the First Amendment in a manner that has colored church-state constitutional analysis ever since, much to the consternation of those who would prefer an interpretation allowing the government to provide at least nondenominational support for religion. This group, generally called non-preferentialists or accommodationists, has engaged the historical debate, often arguing that the historical premise in Reynolds was correct--i.e., that Jefferson and Madison can tell us what the religion clauses mean--but asserting that a focus solely on the specific documents unearthed by Chief Justice Waite tell only part of the story, since even those framers had a record of approving some state support for religion. Some have even argued that the concept of Madisonian authorship of the religion clauses is wrong-headed, and that other members of the first Congress, such as New Hampshire's Samuel Livermore, deserve the credit.
My goal is not to add yet another voice to this sometimes ferocious fray, especially since there is abundant scholarly literature and a lengthy series of judicial opinions all questing for the historical First Amendment. Instead, my aim is to address a very different question, viz.: In an era during which the Supreme Court rarely consulted the founding fathers on constitutional issues, where did the Chief Justice find the historical sources that led him to such interesting and, ultimately, influential writings? The answer is, briefly: He consulted the greatest American historian of the nineteenth century, George Bancroft. Once directed to Virginia by Dr. Bancroft, who probably focused on that state because he was a devoted admirer of Thomas Jefferson, the Chief Justice came under the direct influence of two native Virginian historians. These historians shared the view that the Old Dominion was indeed the font of American freedoms. They also happened to be Baptist and Presbyterian ministers whose ardent opposition to ecclesiastical establishments was inspired by the dissenting churches' persecution at the hands of a legally established church, the "Nebuchadnezzars of the age. …