Church, State, and Original Intent. By Donald L. Drakeman

Donald Drakeman's Church, State, and Original Intent opens with a study of two Supreme Court cases familiar to church–state scholars: Reynolds v. United States (1879) and Everson v. Board of Education (1947). While much ink has already been spilt on these cases, Drakeman brings a unique perspective by examining the role of originalist interpretive methods in the decisions. The judges who authored the opinions, in Drakeman's telling, interpreted the First Amendment's religion clauses in light of claims about original historical meaning, a novel development given that this was “an era during which the Supreme Court rarely consulted the Founding Fathers on constitutional issues” (22). Yet, it was not simply this turn to history that was significant, but that the justices took their history from leading scholars who privileged “colonial Virginia, as well as Jefferson and Madison, as the crux of the religion clauses” (81). As such, the First Amendment came to be understood against the background of the Virginia experience and Jefferson's “wall of separation.” Both proponents and critics of greater separation now took this history as the ordering narrative of legal debate. The future possibilities of legal analysis were thus circumscribed, leading Catholic priest John Courtney Murray to write in response to Everson that “we have won on busing but lost on the First Amendment” (147).