Federal Judge John E. Jones III’s finding that the decision of a school board in Dover, Pa. to place “intelligent design” alongside Darwinian evolution in the scientific curriculum violates the Constitution has drawn praise from the usual quarters. The Washington Post was quick to pen an editorial commending Judge Jones on his “intelligent decision” while Ralph Neas, president of People for the American Way, called the ruling a “resounding victory for the Constitution.” Which Constitution Neas was referring to is unclear, for this latest dictate from the federal judiciary would have astounded the architects of ours.

In his lengthy opinion, Jones writes that the Dover board’s policy promotes religion and thus violates the Establishment Clause of the First Amendment. The irony in Jones’ judgment is that the Establishment Clause was originally devised as a protection against the exact type of federal encroachment on the autonomy of local communities his ruling represents.

At the time the Constitution was ratified, the American people were not a religiously homogenous lot. Roman Catholics were strong in Maryland, the Congregationalists supreme in New England, and Baptists and Methodists were dominant in the South. This diversity was reflected in the constitutions and laws of the states as several maintained established churches well into the nineteenth century.

The legality of these arrangements was never questioned by the generation of statesmen who framed the Constitution. The so-called “wall of separation” between church and state that was allegedly constructed by the Establishment Clause was a promise of federal non-intervention in religion – in essence, a guarantee of States’ rights on the subject to assuage Antifederalist concerns that the central government might infringe upon state sovereignty and interfere with the established churches in the states. This is why the First Amendment says clearly that “Congress” – as in the federal legislature – “shall make no law respecting an establishment of religion,” meaning that the federal government not only should be neutral on the issue of religion, but that it cannot make any law that meddles with the religious policies of the states (thus the language “no law respecting an establishment of religion”).

Some may object to this rendition of the historical record by pointing to the fact that there were early American leaders who strongly objected to established religion, notably Thomas Jefferson. While it is true that Jefferson worked diligently to disestablish the Virginia church, it must be noted that his was a position on state and not federal policy. As one of the strongest supporters of states’ rights in early America, Jefferson did not question the constitutionality of the religious establishments in the states. Indeed, in an 1808 letter – written more than six years after his famous “wall of separation” dispatch to the Danbury Baptists – Jefferson acknowledged that the Constitution grants no power to the federal government to legislate on religion and that the issue “must then rest with the states, as far as it can be in any human authority.”

This recognition of the supremacy of states’ rights was the generally accepted view of the Supreme Court throughout the nineteenth and on into the twentieth century. However, in Everson v. Board of Education (1947), Justice Hugo Black changed all of that by writing a majority opinion in which the Supreme Court held that the Fourteenth Amendment imposed or “incorporated” the Establishment Clause onto the states, thereby laying the foundation for federal judicial supremacy on matters of religion in the public square. This is the lectern that Jones rules from.

Yet Black’s incorporation doctrine is problematic on several grounds. First, from the standpoint of logical rigor, how can Black use a clause intended to protect the states from federal power as a battering ram against their sovereignty?

Second, if the Fourteenth Amendment was designed to incorporate the Establishment Clause onto the states, why did it take nearly 80 years for the Supreme Court to recognize that fact? As Felix Frankfurter, an Associate Supreme Court Justice and a founding member of the ACLU observed in Adamson v. California (1947): 43 justices – including legal minds celebrated by the progressive left like Oliver Wendell Holmes – evaluated the Fourteenth Amendment’s impact on federal-state relations after its adoption in 1868 with only a single “eccentric exception” taking Black’s view of the subject in nearly 80 years of jurisprudence.

Third, Black’s principle is further torpedoed by a look at legislative history. In 1875, James Blaine – Speaker of the House and a member of the Congress that passed the Fourteenth Amendment – proposed a Constitutional amendment (which was never passed by Congress) that would have explicitly imposed the Establishment Clause onto the states. The first clause of Blaine’s amendment says, “No State shall make any law respecting an establishment of religion, or of prohibiting the free exercise thereof.” That this passage bears a remarkable resemblance to the Establishment Clause (“Congress shall make no law respecting an establishment of religion or of prohibiting the free exercise thereof”) is not an accident. From just a cursory examination of the text above it is clear that the Blaine Amendment was an attempt to limit the power of state governments to legislate on religion in the same way the Establishment Clause limited the federal government. This being the case, it is difficult to believe that a statesman like Blaine would see the need in offering such an amendment if the Fourteenth Amendment had already imposed the Establishment Clause onto the states.

The irrepressible conclusion here then is that the Fourteenth Amendment was not intended to incorporate the Establishment Clause. Thus Black’s legal concepts, and by extension the body of the Supreme Court’s modern church-state doctrines as expounded by Jones, are based upon flawed historical analyses that substitutes what the Constitution actually says with the wishes of the justices.

Whatever one thinks of the merits of intelligent design, the decision of whether or not it belongs in public schools should be made at the local and state level by parents, not federal judges. Far from a victory for our Constitution, continued judicial disregard for the decentralized federalist system the Framers crafted distorts original intent and imperils self-government.


James R. Lawrence, III is the editor-in-chief of Broadside Magazine and a senior double majoring in biomedical engineering and political science.

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