Church-State Relationships in America

By Gerard V. Bradley | Go to book overview

2
The Sacred Canopy: Law and Lexicon of Church-State in the Founding Era

Justice Rutledge's "sparse Congressional discussion"-- because the essential issues had been settled" 1--unwittingly, and perversely, contains the key to understanding the Establishment Clause. His statement is only almost literally true. Sparseness is relative, and compared to the discussion of other Bill of Rights provisions, the Establishment Clause was much debated, although it received in absolute terms only a little careful attention. The justice is "perversely" correct because the implication of his comments is subtly misleading. He suggests that the nagging church-state issue was finally settled by the Establishment Clause when only the meaning of nonestablishment as sect equality was. The more general issue continues to nag American society, especially the Supreme Court, to this day. But Rutledge could not have more accurately, however unwittingly, explained the relatively little commotion greeting disestablishment in Congress: everyone knew it meant no sect preference and agreed that it was an appropriate federal norm. This consensus or convergence quality of the Establishment Clause--that the meaning of it (like most of the rest of the Bill of Rights) was not novel and represented conventional thought--is apparent throughout this book and impels the discussion first to that terrain in which both prevailing norms of church and state and the legal language transporting those norms were clearly marked. The Constitution and laws of the states, as well as the experiences captured within them, are the indispensable referents, and for three reasons. Before the revolution, there was no nation from which to derive a national norm. Even during the brief Articles of Confederation period, union was so attenuated and the national government so weak that it serves poorly as a prism for focusing the genuine sentiments of the people. The second reason

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