Consistency Among the Founders

Brooks Fudenberg bfudenbe at LAW.MIAMI.EDU
Tue Mar 4 15:21:41 PST 1997

On Mon, 3 Mar 1997, Douglas Laycock wrote:

>         If early post-ratification conduct is controlling on interpretation,
> then the Alien and Sedition Acts define the Free Speech Clause, and Jim Crow
> defines the Equal Protection Clause.

I must disagree re:  the Alien and Sedition Acts.  The Acts led to very
public opposition by the anti-Federalists, precisely because the Acts were
thought to be unconstitutional.  The Anti-Federalists won that debate,
in part by ratification of their view by the true "framers"--the People--who
voted the Federalists out of power, again, in part because they thought
the Acts unconstitutional.

The opening prayer is a very different case--in part because of the much
lower degree of opposition to the prayers; in part because no major party
ever implicitly ran and won on the view that the prayer is

Blasphemy laws and Protestant-only
> voting define free exercise in the states, and it would be hard to see why
> religious liberty meant something more at the federal level.
>         Marie is right about expediency.  Even more fundamentally,
> constitutional rights grow out of great controversies, when one side
> identifies an abuse that is likely to recur and assembles a super-majority
> to ban the abuse.  The other side does not disappear from the polity and it
> does not change its mind.  That some of the abuse continues is no surprise;
> it is exactly what was feared by the Amendment's supporters.  It is
> therefore a most unreliable guide to interpretation.  Practice of the time
> is relevant, but it can never be dispositive.
>         I still think the best guide to what the Founders disapproved of in
> government involvement with religion is that if it was controversial among
> among groups with more than trivial numbers (i.e., if it was controversial
> among Protestants), it was something government should not do.  Consistent
> application of that principle might change the result on government prayer
> after the Catholic and Jewish immigration of the 19th century, which led to
> deep, longstanding, and occasionally violent controversies over religious
> observance in the schools.  There remains the question of whether the
> especially sensitive context of the schools is unique, or whether our
> revealed inability to agree on forms of prayer and religious observance
> should extend the constitutional rule to other government-sponsored observances.

Brooks R. Fudenberg
University of Miami School of Law

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