The Religion Clauses of the First Amendment: Guarantees of States' Rights?
Drakeman, Donald L., The Journal of Southern History
The Religion Clauses of the First Amendment: Guarantees of States' Rights? By Ellis M. West. (Lanham, Md., and other cities: Lexington Books, c. 2011. Pp. xii, 202. $70.00, ISBN 978-0-7391-4677-4.)
Ellis M. West's new book grew out of another project. He set out to explore the original meaning of the free exercise clause of the First Amendment. But because so many "very reputable professors of law" were arguing for a "jurisdictional or states' rights interpretation of both religion clauses," West felt obliged to show first "that the clause[s] had meaning of some sort, other than that of giving the states jurisdiction over church-state issues" (pp. viii-ix). In the end, having "tried to be as fair and gentle as possible in my criticism," he concludes that "much of what has been published to support the states' right interpretation ... does not reflect well on the field of American constitutional law/history" (p. x).
Much of the scholarship on these issues has centered on the establishment clause, and West sets the states' rights approach in opposition to what he sees as "the traditional, normative interpretation of the clause, whereby Congress is prohibited from doing anything like establishing a religion because that would threaten individuals' freedom of religion and the unity of the nation" (p. 28). After meticulously parsing the arguments and weighing the evidence, he concludes that the jurisdictional interpretation is "simply" wrong (p. 185). In particular, he notes that the states' rights advocates "fail to cite a single statement by any early American that the religion clauses were meant to protect states' rights.... Rather, all the evidence is circumstantial" (p. 45).
West's analysis begins with the Anti-Federalists' insistence on a bill of rights, together with the Federalists' agreement to provide one, and he asks a good question: "What problem were they trying to solve or prevent? …