George Washington the forgotten Founder

The Prayer at Valley Forge by Arnold Friberg

* Sung to the tune of Old-Time Religion

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I am generally opposed to the doctrines of "originalism," "original meaning," "original intent," etc., the ideas that the courts' interpretations of the Constitution should be solely based on the thoughts of the Founders (or Framers). However, IMO those who do support these doctrines should at least be whole-hog about it but most -- e.g., Fatheaded Ed Brayton -- are just half-assed about it, conveniently ignoring the views of the "father of his country," George Washington. An article titled "Equal Billing: On Religion, Washington's Views Should be Considered, Too," a book review of a book titled "Under God: George Washington and the Question of Church and State," in the Texas Review of Law & Politics, said,
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"Washington's opinions deserve at least as much attention as those of Jefferson." That is the final sentence, and raison d'etre, of Under God: George Washington and the Question of Church and State, by Tara Ross and Joseph Smith. Ostensibly a compendium of Washington's views on the proper relationship between church and state, Under God aims to correct a perceived historical wrong in the relative weight given by the modern Supreme Court to the views of Washington and Thomas Jefferson in interpreting the Religion Clauses of the United States Constitution.. .. . . .(page 2 of pdf file, page 208 of original document)

Jefferson, of course, coined the phrase "separation of church and state" in his oft-quoted 1802 Letter to the Danbury Baptists. This phrase has seared itself into the public consciousness as the dominant metaphor for the meaning of the Religion Clauses of the First Amendment, in no small part because the Supreme Court has so frequently employed it in rendering Religion Clause decisions. In the body of their book, Mrs. Ross and Mr. Smith show that Washington would have rejected this metaphor. To the contrary, he believed it important "for government to accommodate and even to encourage the practice of religion, albeit in ways that were typically non-denominational and tolerant of religious minorities." The authors further suggest that Washington's views were closer to the American mainstream than were Jefferson's -- before, during, and after the framing of the Constitution and the enactment of the Bill of Rights -- and thus are a better guide to ascertaining the original meaning of the First Amendment . . . . (pages 2-3 of pdf file, pages 208-209 of the original document)

. . . After reading Under God, one cannot dispute that the views of Washington deserve greater consideration than they have heretofore received as Religion Clause litigation and legal scholarship. Do the views of Washington deserve greater consideration than the views of Jefferson, as Mrs. Ross and Mr. Smith suggest, or of Madison, who at times appeared to be as ardent a separationist as Jefferson? That, of course, depends: first, on the extent to which one embraces originalism as an interpretive philosophy(emphasis added); second, on the extent to [which] Washington was representative of the views of the framers, or of the common understanding of what the Religion Clauses meant in 1789. On the latter question, Mrs. Ross and Mr. Smith offer reasons to believe that Washington was closer to the American center than was Jefferson, but the former question is beyond the scope of their project and a matter of sharp disagreement among current members of the Supreme Court. Suffice it to say, the life of Washington presents an alternative vision to that of a "high and impregnable" wall of separation between church and state. (page 15 of pdf file, page 221 of original document)

This book Under God: George Washington and the Question of Church and State illustrates the folly of the "original intent" doctrine. That stupid judge John E. Jones III showed extreme prejudice against the defendants in Kitzmiller v. Dover -- regardless of whether or not Intelligent Design is a religious concept -- by saying in a Dickinson College commencement speech that his decision was based on his notion that the Founders based the establishment clause upon a belief that organized religions are not "true" religions. He said,

. . . this much is very clear. The Founders believed that true religion was not something handed down by a church or contained in a Bible, but was to be found through free, rational inquiry. At bottom then, this core set of beliefs led the Founders, who constantly engaged and questioned things, to secure their idea of religious freedom by barring any alliance between church and state.

Ironically, he gave the speech while standing behind the Dickinson College seal, which was designed by USA Founders Benjamin Rush and John Dickinson and which contains a picture of an open bible and the college motto "religion and learning, the bulwark of liberty" in Latin.

What if some judge(s) came along with the arguable notion that the USA was founded as a Christian nation and that the only purpose of the establishment clause was to prevent individual Christian sects from being established as official state religions? We could then end up with a ruling that, say, non-sectarian school prayer is constitutional.

IMO the best interpretation of the establishment clause is Justice O'Connor's "endorsement test" and she didn't need to use the "original intent" doctrine to attempt to support the test. Here is her statement of the endorsement test, from her concurring opinion in Lynch v. Donnelly, 465 U.S. 668, 687-688:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. E.g., Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982). The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message. See generally Abington School District v. Schempp, 374 U.S. 203 (1963).

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