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Gene Garman, Author of America's Real Religion January 26, 2001 

In 1998, for a graduate colloquium, I prepared a research paper titled "Justice William H. Rehnquist's Dissenting Opinion in Wallace v. Jaffree." The paper was subsequently published in Liberty magazine. However, the magazine condensed the paper for publication and some of the research in the paper was not printed with the article. At the end of this commentary, you will be able to click on a link which will take you directly to the article and the greater part of the text which Liberty did publish. I have chosen to publish a summary of the information omitted by Liberty because it is relevant to the essence of the article and to my paper's emphasis upon Justice Rehnquist's abuse of the historical record relating to the First Amendment's Establishment Clause. In other words, the research information from the paper which the magazine did not print will be summarized in this essay. 

The thesis of the following commentary is that Justice William H. Rehnquist distorted, abused, and misused the good name of history in his attempt to justify his dissent in Wallace v. Jaffree (472 U.S. 38, 1985). There seems to be two explanations for Justice Rehnquist's abuse of the historical record: 

(1) Justice Rehnquist deliberately and dishonestly ignored James Madison's writings about the meaning of the Establishment Clause, which writings were written after the final version was drafted by the Senate- House conference committee, or 

(2) Justice Rehnquist is undereducated and his neglect of documentation from James Madison, as to the meaning of the Establishment Clause, was honest ignorance of the complete historical record. Whatever the reason for Justice Rehnquist's distortion of history in Wallace v. Jaffree, he 

(1) continues, fifteen years later, to assert the same distortion by promoting his 1985 dissent regarding the meaning of the Establishment Clause and 

(2) has never acknowledged the existence of James Madison's definitions of the Establishment Clause. I have submitted documentation to his office which thoroughly discredits his misuse of the record of history. Neither Chief Justice Rehnquist nor anyone from his staff has ever responded to my inquiries about his abuse of history. It could be argued that Chief Justice Rehnquist's law clerks and staff direct his mail and shield him from input, which leaves the possibility that he is honestly ignorant. One thing for sure, he is not an historian; thus, he should not assert use of history as if he were. Justice Rehnquist, nonetheless, is not the only American refusing to acknowledge James Madison's input to this issue. Justice Rehnquist shares the deliberate distortion or honest ignorance with other famous names, like Rush Limbaugh, who also has never responded to my inquiries about the Madison false quotation in his books. It is indeed frustrating that the distortion about the wording and meaning of the Establishment Clause continues to be published and promoted all across America by justices and judges, radio and TV broadcasters, undereducated newspaper columnists, politically pandering politicians, and misinformed writers of letters to editors. Those persons who would establish religion through law and government could not care less about what James Madison or the other Founding Fathers at the 1787 convention said. 

It is common for those who would utilize government and its institutions to promote religion to be shameless in their abuse of constitutional principles and the facts of history. They are not strict constructionists; they are revisionists who change the wording in the Establishment Clause from "religion" to "church." It is also frustrating that organizations (such as ACLU, AU, and PFAW) which herald themselves defenders of the constitutional principle, as expressed in the Establishment Clause, continue to misrepresent it through unending repetition of the words "separation of church and state," words which are not in the Constitution. This misleading usage feeds the fire of those who assert that the Establishment Clause was meant only to prohibit a state church, as existed in England--Chief Justice Rehnquist's basic assertion! To the contrary, the word in the Constitution is "religion," not church. It is way past time for historians and defenders of the Establishment Clause to start using constitutional terminology: "separation between Religion and Government"-- James Madison's words. It is "religion" which is not to be established by law, not just a church. It is way past time for Justice Rehnquist, the other Justices on the Supreme Court, and judges throughout America to be taken to task for their continued abuse of the wording and history of the Establishment Clause. Thus, it is no surprise that the Supreme Court's recent applications of the Establishment Clause are marked by complete disagreements, inconsistency, and a misunderstanding of the facts of history. Unlike today, the nine justices in the 1947 Everson v. Board (330 U.S. 1) school bus transportation decision were in complete agreement--a unanimous precedent about the facts of history relating to the Establishment Clause; but, they did divide five to four about the extent of its application. 

One thing is for sure, no student is required to attend a private school; and, beyond the public transportation bus door, none of the nine justices in Everson approved of public financial aid to students who of their own free choice attended private parochial schools. The four dissenters in Everson would not have allowed the parochial school children even the bus transportation from Ewing township (which did not have a public high school). Unfortunately, national organizations and personalities leading the effort to defend the essence and intent of the Establishment Clause have too often failed to convince the high court or even the general public and are a major reason for the lack of understanding and agreement as to the meaning of the First Amendment's religion clauses. The constitutional clauses are not in conflict. For further information, read my website essay "The Free Exercise Clause: A License for Anarchy?" and my book America's Real Religion. Nevertheless, the following is a summary of the historical information about the Establishment Clause which Liberty did not print from the paper prepared for the colloquium. On January 1, 1802, President Thomas Jefferson deliberately took advantage of the opportunity to publicly express his appreciation regarding the significance of the Establishment Clause. The Baptists of Connecticut had written to Jefferson because they knew he sympathized with the situation in which they (the Baptists) were, among other acts of religious tyranny, still under the burden of paying taxes for support of Congregational and Episcopal churches of Connecticut. The Baptists of Connecticut knew that Jefferson and Virginia Baptists had fought such injustice in Virginia over twenty years earlier. Jefferson's reply to the Baptists was about his sovereign reverence for the Establishment Clause which he said had "built a wall of separation between Church & State" at the national level. Jefferson's choice of wording was unfortunate because the words "church and state" are not in the Constitution and the erroneous concept is regularly used by accommodationists to distort the actual wording of the Establishment Clause. 

Justice Rehnquist has it both ways when he chooses to accept and use Jefferson's incorrect wording in order to emphasize a suggested limitation upon the broader understanding and application of the principle of separation, that is, to just the establishment of a church; yet, on the other hand, Justice Rehnquist chooses to reject Jefferson's wording in terms of his use of the word "wall." Fortunately, it is the wording of the Constitution which is authoritative; and, that is the wording which the Court should uphold. Further, the Supreme Court of the United States in 1879 (Reynolds v. U.S., 98 US 145) and in 1947 (Everson) established, in both cases, a unanimous precedent which accepted Jefferson's letter to the Danbury Baptists as an authoritative understanding of the meaning of the Establishment Clause. Justice Rehnquist acknowledges the Court's past acceptance of the Jefferson letter, but he dismisses Jefferson's "wall" as a "misleading metaphor." More significantly, Justice Rehnquist deliberately chooses to reject these two unanimous Court case precedents, including the use of James Madison's "Remonstrance," as referenced in Everson (330 U.S. at 12, notes 12 and 13). If Justice Rehnquist is going to use the record of history as a means for establishing his position, he should at least be honest and accurate in his use of history, including the unanimous opinions expressed in Reynolds and Everson. Instead, Justice Rehnquist not only attempts to discredit President Jefferson's letter as a mere letter of courtesy written by someone whom he falsely asserts as not being in America during the time when the Establishment Clause was being debated in the states; but, he also questions the credibility of the eighteen Supreme Court Justices who wrote the Reynolds and Everson decisions which unanimously recognized President Jefferson's letter as an authoritative expression of the constitutional principle of separation. 

Furthermore, in regard to the use of history, Justice Rehnquist erroneously uses the Annals of Congress as if they were the final word in understanding the intent of the First Congress and the meaning of the Establishment Clause. The fact is that there is information about the Establishment Clause which Rehnquist did not use in his dissent. As recorded in the Annals, after several and various versions to deal with religion and government in the Bill of Rights, a joint Senate-House conference committee was appointed to produce an acceptable wording. Rehnquist did not even mention that committee. The joint committee consisted of six persons. The three House members were cochairman James Madison, John Vining, and Roger Sherman. The three Senate members were cochairman Oliver Ellsworth, William Paterson, and Charles Carroll. No one who reads the biographies of these men can accuse this committee of being anti- religion. Justice Rehnquist does not point out that this committee rejected all of the variously worded proposals which had been offered previously on the floor of the House, and in the Senate, including Justice Rehnquist's preference for the word "national" prior to religion. The Committee instead simply agreed (and the members of the First Congress accepted) that it was "religion" itself which could not be established by law or Congress, and "religion" itself is the only word that makes sense out of the following Free Exercise Clause word "thereof" which gains its entire meaning from the preceding wording in the Establishment Clause. Just try to make sense out of "thereof" if it means national religion, denomination, or state church. There is more to what Justice Rehnquist did not mention in his minority dissent about the conference committee which worded the final draft of the religion clauses. Of the six members only one of them left specific and deliberate statements, after ratification on December 15, 1791, as to what the religion clauses meant in terms of application and understanding. Justice Rehnquist never mentioned James Madison's veto messages of February 21 and 28, 1811 (Writings of James Madison, 8:132-33), which applied the Establishment Clause and vetoed unconstitutional bills passed by Congress. 

Justice Rehnquist never mentioned James Madison's undated essay "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments" (William and Mary Quarterly, 1946, 3:555) in which Madison wrote "strongly guarded . . . is the separation between Religion and Government in the Constitution of the United States." In other words, Justice Rehnquist failed to use all of the record of history in his attempt to justify his dissent. The father of the Constitution, James Madison, was in Congress in 1789, was on the conference committee which drafted the final wording of the religion clauses, and left subsequent definitions in writing as to the meaning of the religion clauses. Justice Rehnquist's omission of this significant part of the historical record is an unacceptable abuse of history. Justice Rehnquist was joined in this distortion and abuse by two other constitutional revisionists, Justice Antonin Scalia and Justice Clarence Thomas. There is one more unacceptable omission in the Wallace v. Jaffree decision. Not only did Rehnquist, Scalia, and Thomas fail to use the complete record of history regarding the Establishment Clause, neither did the other six Justices. Not one of the other six refuted or corrected the obvious historical inaccuracies in Justice Rehnquist's dissent. They were all guilty of abusing the historical record. Therefore, I must rest my case with a conclusion that the Court and its staff of law clerks in Wallace v. Jaffree were perhaps not dishonest, apparently just undereducated and ignorant of the complete historical record. 

Unfortunately, fifteen years later, the current members of the Supreme Court have not only rejected Everson; but, they have thoroughly distorted the Establishment Clause from meaning what it says. The Court has effectively rewritten the Establishment Clause from "no law respecting an establishment of religion," to "no law respecting establishment of an excessive entanglement with religion." The distortion approved in Lemon (403 U.S. 602, 1971) should be rejected, but that is another essay. Read my research paper's essay about Justice Rehnquist's abuse of history, as published in Liberty magazine, by clicking on the following url: <

Copyright 2001 Gene Garman 

Reprinted by permission