Controversy Among the Founders

[Douglas Laycock]

        I was not clear when I said the best guide to what the Founders
rejected in government and religion was what was controversial among
Protestants.  I was not proposing a legal standard, although the observation
might inform legal standards.  I was offering a descriptive account of
practices in the founding generation.

        A large element of the debate of the last fifty years has consisted
of the two sides reciting competing lists of what the founding generation
did.  The secular side says the Founders abolished the established churches
outside New England by the 1780s, and inside New England by 1833.  They
abolished financial support for churches.  They rejected the general
assessment.  Madison wrote that three pence was as bad as any larger sum
whatever.  They had no chaplain at the constitutional convention.  The wrote
the test oath clause so that even atheists were protected.

        The conservative religious side says the Founders had a
Congressional chaplain, they set aside days of prayer and thanksgiving, they
had prayer at all sorts of public events, they enforced Sabbath laws, they
sent missionaries to the Indians, they set aside land to support schools in
the Northwest Territory and recited as part of the reason that religion was
important, and when they later started public schools, they had prayers and
Bible readings.

        The conservative religious side might also say, but usually doesn't,
the Founders had blasphemy laws, they had religious requirements for voting,
they hated and feared Catholics.

        The secular side has largely ignored the religious side's examples.
The religious side has done somewhat better; it has at least tried to offer
theories to account for the two lists.  The argument that Virginia is
exceptional and that we should think more about New England is an argument
that we don't have to make sense of *all* the data -- we can dismiss part of
it as irrelevant.  The theories that aid to religion was OK if it is
nonpreferential, and/or that aid to religion is OK if it is noncoercive, are
attempts to make sense of all or most of the data.  These theories attempt
to impose a pattern on what the Founders accepted and what they rejected.

        I think, for reasons I have published, that nonpreferentialism and
noncoercion fail to account for the data.  I think the evidence is
overwhelming that nonpreferentialism fails to account for the data; the last
gasp effort to save the establishment was various versions of
nonpreferentialism, all of them eventually rejected.  The evidence on
noncoercion is more equivocal, but the Founders used coercion where they did
not disagree on the goal -- e.g., Sabbath observance, taxation to support
the missionaries -- and they occasionally objected to things that look to me
like bare endorsements.

        So what does explain what they objected to?  This is a descriptive
factual point:  I think that they did not object to government involvement
in religious practices that were not controversial among Protestants.  That
statement risks tautology, but I think it has some independent content.
Most clearly, the major Protestant denominations had fundamentally different
ideas about financing churches, and not surprisingly, church finance was the
most controversial church-state issue of the time.

Douglas Laycock
The University of Texas School of Law
727 E. 26th St.
Austin, TX  78705

512-471-3275 (voice)
512-471-6988 (fax)
dlaycock at mail.law.utexas.edu