Donald L. Drakeman . Church, State, and Original Intent . New York: Cambridge University Press. 2010. Pp. x, 371. Cloth $90.00, paper $29.99.

Abstract

Donald L. Drakeman could have titled his book Church, State, and Original Sin, because his history of Establishment Clause jurisprudence exposes more sins than intentions. One by one, Drakeman takes on the historians, constitutional law scholars, and Supreme Court justices who have opined on the original meaning of the First Amendment clause “Congress shall make no law respecting an establishment of religion” and finds all of their conclusions tainted by sins of bias, result-orientation, or “law office history.” Rather than accept the inadequacy of originalism in constitutional interpretation, however, he retains a conservative faith in that approach and offers his own version of the framers' intent that would permit virtually unlimited aid to religion. “Mr. Chief Justice,” Drakeman all but declares based on his reading of original intent, “tear down Jefferson's wall.” His critique of others is noteworthy; his own conclusions less so. Drakeman begins his inquisition with long chapters on the Supreme Court's two foundational Establishment Clause decisions, Reynolds (1878) and Everson (1947). Both opinions draw on the writings of Thomas Jefferson and James Madison to construct a high wall of separation and impose a no-aid formula on government funding for religious activities, with Reynolds addressing federal funds and Everson reaching the states via the Fourteenth Amendment. Finding fault with using selected writings by two founders to divine original intent, Drakeman places blame for the Court's misdirection on the anti-Catholic bias of historians relied on by the justices who wrote these opinions. Like many late nineteenth and early twentieth-century Protestants and secularists, these historians worried that Catholic immigrants would resist assimilation by raiding the public purse for their own parochial schools, and they read those fears back into the founding era. Drakeman makes a strong case. Indeed, he may not go far enough. He absolves the author of Reynolds, Chief Justice Morrison Waite, of direct bias. Yet Waite was an obscure Ohio lawyer when tapped for the court by President Ulysses S. Grant with the support of Senator James Blaine, both of whom appealed to nativist fears by denouncing Catholic schools as un-American. More investigation might find Waite, long derided for rolling back Reconstruction-era protections for freed slaves, complicit in pushing the Supreme Court's no-aid formula.