view of the religion clauses.
64 The truth is quite the reverse. The report is literally
accurate in noting the absence of a conscience guarantee in what was intended
by Congress to diminish the protections suggested by "conscience" as opposed
to "exercise." The Senate's next interpretation is quite correct: a national religion
could not be established, but that did not mean no financial aid to religion.
Finally, the senators do not say, as Levy says they did, that Congress may prefer
one denomination, though that was surely the impression they intended to convey.
But they did so by raising the prospect of a subtle, long-developing insinuation
into power that might eventually have the effect of an establishment. The Senate
critique was certainly a politically charged, hyperbolic statement but in that
regard not nearly the equal of the "Memorial and Remonstrance" eagerly embraced as gospel by the Supreme Court. And however "inaccurate," the senators
published their interpretation in the Richmond paper, and it stands as the clearest,
most concise, most authoritative definition of the religious clauses in the entire
history of ratification by the states.
C. Wolfe, The Rise of Modern Judicial Review 34 ( 1986).
Maxwell v. Dow, 176 U.S. 581, 601-2 ( 1900).
See, e.g., Brown v. Board of education, 347 U.S. 483 ( 1954); Williams v. Florida, 399 U.S. 78, 92-97 ( 1970).
R. Rutland, The Birth of the Bill of Rights, 1776-1791 ( 1955).
United States v. Burr, F. Case 14693 ( 1807).
R. Berger, Executive Privilege: A Constitutional Myth 35 ( 1976).
L. Levy, Legacy of Suppression224-25 ( 1960). Levy reiterated the point in his
revision of Legacy, The Emergence of a Free Press267 ( 1985).
D. Anderson, "The Origins of the Press Clause," 30 UCLA L. Rev.455, 486 n.
192 ( 1983).
G. Gunther, Constitutional Law: Cases and Materials 477 ( 10th ed. 1980).
Anderson, "Origins," at 486 n. 192.
Levy, Legacy. In his preface Levy capsulizes the traditional understanding as
Anderson, "Origins," at 465.
Levy maintained that the Blackstonian conception included only freedom from
prior restraints. Levy, Legacy, at x.
See notes 17-30 and accompanying text.
R. Rotunda, and
N. Young, Constitutional Law 1117 ( 2d ed. 1983).
A Journal of the Proceedings of the Honorable House of Representatives of the
State of New Hampshire, January 25, 1790.
A Journal of the Proceedings of the Honorable Senate of the State of New Hampshire at a Session of the Great Court, January 20, 1790.
A Journal of the Proceedings of the General Assembly of Vermont Session at
Windsor, November 2, 1791.
Ibid., November 3, 1791.