Madison and his liberal colleagues in the House and in the states won the debates of 1789-91; and since 1947 the Supreme Court, by and large, has correctly interpreted their intentions. The question is whether they will continue to win the debates of the 1980's, or whether their version of the First Amendment will in turn be amended or "reformed" by politicians, a judiciary, and a citizenry who follow "beguiling half-truths" or "plausible falsehoods" rather than "significant truth."
My point is that the public discussion of constitutional issues raised by these different interpretations of the First Amendment should be informed by the best scholarship available. President Reagan argues that politics and morality are inseparable; and since morality's foundation is religion, religion and politics are necessarily related; and this is what the Founding Fathers believed. Echoes and re-echoes of similar moralistic views are being heard in the conservative columns of William F. Buckley, Jr., James J. Kilpatrick, and George Will and in the political and religious efforts of such fundamentalist groups as the Christian Nation Movement, the Conservative Digest, the Populist Conservative Tax Coalition, the Moral Majority, the Liberty Federation, the Christian Broadcasting Network, the American Coalition for Traditional Values, and many more.
But I would maintain that there is an overwhelming weight of academic scholarship in political and constitutional history that belies such arguments. Major examples in the 1950s and 1960s were the authoritative works of Anson Phelps Stokes, Leo Pfeffer, and Herman Pritchett.
Since those early works, I think it is fair to say that the predominant stream of constitutional, legal, and historical scholarship has continued to point to the broader, separatist and secular meaning of the First Amendment as over against the narrower, cooperationist, or accommodationist meaning.
73 There is no way for a non-specialist to encompass the vast literature on this subject, but a valuable and readily available source of evidence is the publication, This Constitution, issued quarterly since 1983, by Project 87, jointly sponsored by the American Political Science Association and the American Historical Association. Note especially articles by Gordon S.
Wood of Brown, Richard B. Morris of Columbia, James MacGregor Burns of Williams, Michael Kammen of Cornell, Paul L. Murphy of Minnesota, A.E. Dick Howard of Virginia, Donald S. Lutz of Houston, Thomas L. Pangle of Toronto, Rogers M. Smith of Yale, and Robert S. Alley of The University of Richmond.
For example, Professor Lutz reminds us that the Preamble to the Constitution "encapsulates and reflects the various sources of, and influences upon, our constitutional tradition." These include not only the religiously oriented covenants and compacts of the early seventeenth century but also the eighteenth century political thought of English Commonwealth radicals, the Renaissance classical humanists who harkened back to Greek and
Roman republicanism, and the rationalist Enlightenment thought on
natural rights and the social contract of Hobbes, Locke, Hume, and Montesquieu. Thus, the federal Constitution removed the emphasis on Biblical sources, God's dispensation, and "the moralistic stance with respect to politics" that marked several of the state constitutions of the 1770s and 1780s.
74 Similarly, Professor Pangle says, "The authors of The Federalist
remain almost totally silent about "awe for the divine." Instead, they refer repeatedly to the civic virtue of "moderation" by which they mean "calm and prudent calculation of self-interest that serves to temper fanaticism including excessive zeal for religion and for moral virtue."
75
Rogers M. Smith carefully identifies three basic conceptions or "ideal types" of American citizenship which have struggled for predominance: the liberal conception that came from the 19th century Enlightenment stressing freedom and equality; the republican conception of 17th and 18th century revolutionaries who echoed classical proponents of political participation and civic virtue; and the nativist conception that grew primarily in the 19th and 20th century as white European Protestant males reacted against ethnic, religious, and cultural diversity.
76 Robert S. Alley said, "Until his death in 1836 James Madison believed that the nation supported his commitment to total and complete separation of church and state."
77
In addition to the accumulated scholarly documentation during the past 30 years regarding the meaning of the First Amendment in general, the most recent and authoritative research on the establishment clause itself is that of Leonard W. Levy, who is Andrew W. Mellon All-Claremont Professor of Humanities and chairman of the Claremont Graduate Faculty of History. Levy is the editor of a dozen books on constitutional history and of
the recent four-volume Encyclopedia of the American Constitution published by Macmillan and author of a dozen books on the Constitution, especially the Bill of Rights.
I am particularly pleased to find that his research validates and is fully consonant with my own earlier studies. He presents convincing documentary evidence that the framers' prohibition of the broader meaning of establishment is historically more accurate than the narrow prohibition claimed by O'Neill, Malbin, and Cord.
He recognizes, as I do, that the historical "intentions" are more debatable than extreme partisans of the narrow or the broad views of the establishment clause would have us believe, but the "preponderance of evidence indicates that the Supreme Court's [broader] interpretation is historically the more accurate."
78
Now, in his book on the First Amendment's establishment clause itself, Levy has marshaled massive documentary evidence from primary sources and from unexceptionable scholarly studies of the past 20 years. These sources, cited in 30 pages of endnotes and an annotated bibliography, lead Levy to a conclusion with which I fully agree and which I tried to substantiate with the relatively meager historiographical resources I had at my disposal 40 years ago. Levy sums up the meaning of "an establishment of
religion" as follows:
Levy explicitly deals with these and similar arguments advanced by Robert Cord and others that some of the state ratifying conventions urged an amendment prohibiting a single establishment of religion at the federal level. He shows that this reflected the language used by aggressive Anti-Federalists in those states, who feared a strong national government. The language did not represent the practice in the states where establishments
were still authorized. He reminds us that when Congress in 1789
reenacted the Northwest Ordinance of 1787, into which Massachusetts promoters had injected provisions for land grants to aid religion, these provisions were deleted.
Levy urges both the extremists of absolute separation and of aggressive, activist accommodation to adopt more moderate views toward those less important issues that require litigation over creches in the public square, posting of the Ten Commandments in schoolrooms, or a moment of genuine silence in the public schools. He reemphasizes the legal maxim that the law should not concern itself with trifles and aptly jests, "Let sleeping dogmas lie. But above all, he underscores the inconsistency of conservatives who would reduce government support of domestic public services but would increase the power of government to support religion with government funds.
I agree with Levy's history and his plea for moderation, but the important goals for the future of public education and its civic mission must not be forgotten. Acceptance of a narrow, accommodationist view of the history of the establishment clause should not be allowed to be turned into public policies that serve to increase public support for religious schools in the form of vouchers or tax credits, or otherwise aid the extremes of parental choice; or to increase the role of religion in public schools in the form of organized prayer, teaching of Creationism, "throwing out" of textbooks on the basis of their "secular humanism," or "opting out" of required studies in citizenship on the grounds that they offend any sincerely held religious
belief.
From the time President Reagan advocated the adoption of a constitutional amendment to permit organized prayer in public schools in May 1982 Congress has been bitterly divided over repeated efforts to pass legislation aimed either at amending the Constitution or stripping the Supreme Court and the federal courts of jurisdiction in deciding cases of school prayer in
the public schools. Similar debates and controversies have arisen over efforts of the Reagan Administration to promote tuition tax credits and vouchers that would give public financial aid to parents who send their children to private religious schools.
This contest has been fueled especially since 1984, not only by powerful voices from President Reagan in the White House itself but also by the Justice Department led by Attorney General Edwin Meese III, the Department of Education under Secretary William J. Bennett, the Republican-controlled Senate Judiciary Committee led by Senators Strom Thurmond and Orrin Hatch, and from a divided Supreme Court itself.
The complexities and details of this contest cannot be followed here, but it was symbolized in the summer and fall of 1986 when fundamentalist Christian parents in Tennessee and Alabama brought suit in federal courts for relief from a public school curriculum whose textbooks they claimed violated their religious beliefs because of the "secular humanist" values being purveyed in the books.
In October 1986 Federal Judge Thomas G. Hull in the Tennessee Eastern District decided that the children of fundamentalist Christian families need not be required to study the Holt, Rinehart and Winston readers, because they were offensive to their conscientiously held religious beliefs:
Plaintiffs sincerely believe that the repetitive affirmation of these philosophical viewpoints is repulsive to the Christian faith--so repulsive that they must not allow their children to be exposed to the Holt Series...
It seems obvious that this question must be answered in the affirmative.
...the Court must also find that no compelling state interest justifies the burden on the plaintiffs and that the state's interests can be served by less restrictive means."
81
In fact, a three-judge panel of the 6th Circuit Court of Appeals unanimously reversed Judge Hull's decision on August 24, 1987; and the parents appealed to the full 15-judge Court of Appeals in October 1987, with the help of the National Legal Foundation of Virginia Beach, Virginia, founded by Pat Robertson, but on February 22, 1988 the Supreme Court let stand the ruling against Judge Hull.
Meanwhile, in October 1986 another case involving fundamentalist Christian parents was in the process of decision by Federal Judge Brevard Hand in Mobile, Alabama, whose sympathies for the parents had already been expressed in his earlier decision allowing prayer in the public schools, a decision overturned by the Supreme Court as we have seen. In this case, the parents were asking for books that teach "secular humanism" to be removed from the Mobile schools curriculum on the grounds that secular humanism is actually a religion, and thus its teaching must be banned along with Christianity, Islam, and Judaism. Concerned Women for America were aiding the parents; People for the American Way were opposing.
In a decision on March 4, 1987 Judge Hand decided for the parents, agreeing that 46 textbooks approved by the Alabama State Board of Education be removed from all the schools of the state or that certain parts of some of the books be removed. His list included seven home economics books, nine history books, and thirty elementary school social studies books. The publishers included Ginn, McGraw-Hill, Scott, Foresman, Macmillan, Holt, Rinehart and Winston. Harcourt Brace Jovanovich, Houghton Mifflin, and Rand McNally among others.
82
Judge Hand proclaimed that the case was not a matter of censorship by narrow-minded proreligionists who deemed the books undesirable, improper, or immoral. It was simply a matter of prohibiting the religious beliefs of secular humanism from being taught in violation of the establishment clause of the First Amendment. Judge Hand accepted testimony that secular humanism was a belief system making statements based on faith assumptions amounting to a religion and therefore must be prohibited. In addition, the systematic omission of references to the role of
the Christian religion in the history books amounted to indoctrination of irreligious beliefs and thus discrimination against religion, also prohibited by the First Amendment.
When the Court of Appeals of the 1lth Circuit reversed Judge Hand's decision, it seemed likely that either or both of these cases would be appealed and possibly reach the Supreme Court, now headed by Chief Justice Rehnquist who had approved Judge Hand's earlier decision in the prayer case and absent retired Justice Lewis Powell who had joined in overthrowing it.
83
If the "opt out" case and the "throw out" case regarding textbooks should be upheld, we could arrive at the ultimate elevation of parental choice and the virtual disappearance of an academic or professional role in formulating the curriculum for civic education in public schools.
If parents can opt out of what academics and professionals propose and public authorities approve, or if courts can throw out what academics and professionals propose and public authorities approve, what standards of excellence or achievement can be expected? From what source comes a common core of studies, of civic discourse, of civic values? One can argue, as many have done, that some or all of the textbooks in these cases reflected shoddy scholarship and deserved to be opted out or thrown out.
But that was not the basis on which they were attacked and removed from study.
Even the question of scholarship was not fully settled, despite the Supreme Court's decision by 7-2 on June 19, 1987 striking down Louisiana's law requiring equal time for the teaching of creationist science whenever evolution is taught in the schools.
84 Justice William J. Brennan's decision for the Court called the law an effort to bring religious doctrines into the schools under the heading of a sham creation science. But Chief Justice Rehnquist and newly-appointed Associate Justice Antonin Scalia dissented, and who knows how persuasive they may be for Anthony M. Kennedy, the newest appointee replacing Justice Powell, and perhaps for some of the others?
These cases, as in so many other instances, ranged such organizations as the American Civil Liberties Union and People for the American Way on one side and such organizations as Concerned Women of America and the Freedom Council Foundation (established by the television evangelist, Pat Robertson) on the other side. They involve complex constitutional questions relating to religion, education, and the First and Fourteenth Amendments, but they also involve complex questions of public policy for educators, legislators, parents, and school officials. How are the schools and textbook publishers going to respond when both sides profess belief in and commitment to basic "American values?"
Practices that promote religion by opting out or throwing out textbooks, by "praying in" at public schools, or by "cashing in" vouchers for religious schools not only violate good public policy, but they offend the major thrust toward separation of church and state which, with minor exceptions, marked the entire careers of Madison and Jefferson. The most succinct summary of their views that I have seen recently is that by William Lee
Miller, professor of religious studies at the University of Virginia:
Did this liberty of belief for Jefferson and Madison entail separation of church and state? Yes. A ban on tax aid to religion? Yes. On state help to religion? Yes. Even religion-in-general? Yes. Even if it were extended without any favoritism among religious groups? Yes. The completely voluntary way in religion? Yes.
Did all the founders agree with Jefferson and Madison? Certainly
not. Otherwise there wouldn't have been a fight.
85
So, it behooves the educational profession to study these issues in depth, to consider the best historical scholarship available, and to judge present issues of religion and education accordingly. Unless the profession and the public together alert themselves this time to the need for a "history and civics lesson" about the First Amendment on religion and education, we
may find the realm of public education narrowing and disintegrating under a massive conservative counter-reformation that seeks to reverse 40 years of liberal jurisprudence. We may witness the effort to excommunicate the doctrine of separation of church and state and condemn it as a heresy perpetrated by an erring Supreme court, which must be taught to dance to the true tune of "original intent" being orchestrated by Attorney General
Meese and Chief Justice Rehnquist. This was one of the constitutional questions at issue in the confirmation hearings on Judge Bork. In the words of David G. Savage or the Los Angeles Times, "Will the Center Hold?"
87
Now, as we continue our commemoration of the Bicentennial of the Constitution, let us not forget the importance of history as well as civics in improving the role of education in preparing youth for citizenship. The history and civics lessons should go together. I suggest these civics lessons from history.
Beliefs about the proper relationships among religion, morality, and citizenship have always been very complicated, often in conflict. Religious zealotry, even fanaticism, as well as religious liberty have appeared and reappeared throughout American history. There are no easy or simple generalizations, but the overall trend of 300 years has been toward delimiting an~ then removing religious belief and practice as tests for good citizenship.
88 The Constitution and Bill of Rights were framed in the midst of this process of secularizing and redefining the meaning of citizenship for the new nation, basing it on civic values rather than religious values.
The framers were not all of one mind about religion, character, and citizenship. Some came from the six states whose constitutions ordained Christianity in general or Protestant Christianity in particular as the established religion of the state and thus gave public support to all the denominations thereof. Others came from the seven states that had already disestablished their churches or never had legally authorized any. While several state constitutions were originally couched in highly moralistic or religious terms, the Constitution, the Federalist Papers, and the Bill of Rights were not. In the Congressional debates over the First Amendment, Madison's liberal views won out over conservatives who approved state support for religion.
There is no way that the non-specialist can encompass the vast accumulation of scholarship in constitutional history and law. Yet, there is now easily available a most useful compilation of primary sources bearing on the origins of the Constitution and Bill of Rights, edited by Philip B. Kurland and Ralph Lemer, two noted scholars at the University of Chicago, and entitled The Founders' Constitution. Volume 5 is devoted to the Bill of
Rights, its background in the state constitutions and debates over ratification; and of particular interest here are the 69 primary documents revealing the historical context of the religious clauses of the First Amendment dating from the 1630s to the 1830s. 89 In reviewing the volumes, Paul A. Freund, distinguished professor of jurisprudence of Harvard Law School and himself an editor of a projected 11 volume history of the Supreme Court, made the point succinctly:
Through their scholarship and large-mindedness, Mr. Kurland
and Mr. Lerner have laid before us a rich legacy of thought that
will help us understand the origins, the historic "meaning" in the fullest senses, of our basic charter. Their book is a singularly valuable offering in this bicentennial year.
91
At other times, conservative reformers sought social cohesion by aggressively reasserting their cherished traditional, moral, or religious values as a means of combating threats from sources they perceived to be alien or subversive as in the Protestant "counter-reformation" of the early 19th century, recurring nativist xenophobia over massive immigration in the 19th and 20th centuries, the "reactionary impulse" to counteract the radicalism loosed by world wars or cold wars in the 20th century, and
recent campaigns against personal lifestyles that weaken the traditional family.
Schools and educators have often been caught in the crossfire between such contending forces, as I hope prior chapters have demonstrated. No wonder that many administrators and teachers prefer to try to ignore both kinds of claims and concentrate on academic basics or job preparation through science, mathematics, or computer technology. This reminds us that the achievement of either citizenship or character values is made more difficult not only because of persisting cultural pluralisms of race, religion,
language, and ethnicity, but also because of pervasive changes in industrial and urban society, in the economy and workplace, in the family, and in the whole paraphernalia of technology and modernization. General lesson: there are no easy, simplistic lessons to be learned from the appeal to history or to the Constitution.
I believe that the educational profession should reaffirm the
priority of its historic mandate to educate for citizenship and to do so by promoting the most careful scholarly study of the basic historic concepts, principles, and values underlying the constitutional order about which there has been controversy since the Constitutional Convention of 1787, and by giving fair treatment to conflicting views as revealed in current controversies over the function of government and the meaning of constitutional principles today.
I have in mind the ideas and values on which our institutions of
self-government presumably rest: those ideas that promote cohesion and unity in a democratic political community--justice,
equality, legitimate authority, civic participation, and personal
obligation for the public good; and those ideas that promote
pluralism and individualism in a democratic political community--
freedom, diversity, privacy, due process, and human rights. There is tension, sometimes conflict, between these sets of ideas. But I believe that schools should try to promote a realistic understanding of their meaning in the past and in the present, in theory and in practice.
93
Virtually all assessments conducted in recent years attest to the deficiency of knowledge about the Constitution among most American citizens. For example, in 1987 a Hearst poll of adults and a field test of high school students conducted by the Center for Civic Education underlined the need for more knowledge and better understanding among both groups.
94 Both surveys attempted to probe ideas and concepts underlying the Constitution rather than simple identification of facts or phrases.
In response to a query from The New York Times concerning "What Children Should Know" about the Constitution, two Supreme Court justices replied in similar vein, despite their often differing judicial opinions. Justice Sandra Day O'Connor said:
....But our understanding today must go beyond the recognition that "liberty lies in [our] hearts" to the further recognition that only citizens with knowledge about the content and meaning of our constitutional guarantees of liberty are likely to cherish those concepts.... Without an educational structure which fosters
and encourages each successive group of students to learn about
the structure of our government and the history of its development, we would soon see young hearts barren of those sentiments and understandings out of which our nation came into existence. To fulfill our obligations as citizens, to understand and uphold our Constitution, we must have educational institutions which foster the acceptance of the individual responsibility of citizenship which each of us must bear.
95
Official endorsements by state departments of education and other public bodies are undoubtedly useful. For example, the California State Board of Education passed such a resolution of endorsement at its meeting of April 9-10, 1987, affirming that the Competition instructional materials were "totally compatible with the State Social Studies Framework and are appropriate for use in United States History and Government classes in California schools.
97
It is difficult to measure accurately the specific influence of such endorsements. Perhaps the influence is even more direct over a longer period of time when the state officials in charge of curriculum development also take actions to promote the program in their jurisdictions. Such was the case in the New York State Education Department where Michael G. Fischer, associate in the Bureau of Social Studies, was also state coordinator for the
Bicentennial Competition, strongly supported by Donald H. Bragaw, longtime chief of the Bureau of Social Studies Education.
To make matters still better, the first of six historical units in the year-long required course on U.S. History and Government at the 1lth grade is entitled "Constitutional Foundations for the United States Democratic Republic."
98 This unit and the Regents' examinations based on it assure that the Constitution will gain early and sustained attention of teachers and students alike. In fact, the whole course treats the "Thirteen Enduring Constitutional Issues" identified by Project '87 as recurring "Main Ideas" in its chronological approach to history and government. If teachers develop their courses in this way, the civic and constitutional themes will not get lost in the chronology, but may even give life and vitality to the chronology
by linking the past to the present and showing that Constitutional matters were not finished on September 17, 1787 or even in December 1791.
72. This history is detailed in R. Freeman Butts, The American Tradition in Religion and Education, Chapter 5. back
73. See, for example, Anson Phelps Stokes and Leo Pfeffer, Church and State in the United States (New York: Harper and Row, 1950 and 1964); Leo Pfeffer, Church, State, and Freedom (Boston: Beacon Press, 1953 and 1967); C. Herman Pritchett, The American Constitution, 3rd ed. (New York: McGraw-Hill, 1977); Robert S. Alley, ed., James Madison on Religious Liberty (Buffalo, N.Y.: Prometheus Books, 1985); Leonard Levy, The Establishment Clause: Religion and the First Amendment (New
of York: Macmillan, 1986); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford, 1986). For generally excellent encyclopedia articles, see Leonard Levy, Kenneth Karst, and Dennis Mahoney, eds., The Encyclopedia of the American Constitution, 4 vols. (New York: Macmillan, 1986); Philip Kurland and Ralph Lerner, eds., The Founders' Constitution, 5 vols. (Chicago: University of Chicago Press, 1987); and references cited in the Notes for Chapters Three and Four. back
74. this Constitution, September 1983, p. 28. back
75. Ibid., Winter 1984, pp. 22-23. back
76. Ibid., Fall 1985, pp. 12-13. back
77. Ibid., Fall 1986, p. 33. back
78. Leonard W. Levy, "The Original Meaning of the Establishment Clause of the First Amendment" in James E. Wood, Jr., ed., Religion and the State; Essays In Honor of Leo Pfeffer (Waco, Texas: Baylor University
Press, 1985), p. 44. back
79. Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), p. xvi. back
81. Mozert a. Hawkins County Public Schools, U.S. District Court of the Eastern District of Tennessee, Northeastern Division, No. CIV-2-83-401, 1986. back
82. Smith v. Board of School Commissioners of Mobile County, U.S. District Court for the Southern District of Alabama, Southern Division, No. CIV 82-0544-BH, March 4, 1987. back
83. Ibid, U.S. Court of Appeals, Eleventh Circuit, No. 87-7216, August 26, 1987. However, it was reported in early December 1987 that the parents had decided not to appeal to the Supreme Court (Education Week, December 9, 1987). back
84. Edwards v. Aguilard, No. 85-1513 (1987). back
85. The Washington Post National Weekly Edition, October 13, 1986. See also William Lee Miller, The First Liberty: Religion and the American Republic (New York: Knopf, 1986). back
86. Karcher v. May, 87 Daily Journal D.A.R. 9290. On December 1, 1987 the Supreme Court declined to reverse the lower courts, on the procedural grounds that the appellants, who had been in the New Jersey legislature when the law was passed, had no legal standing because they
were no longer in the legislature. A similar ruling of "no standing" had been made by the Court in March 1986 regarding voluntary student prayer meetings on school grounds; Bender v. Williamsport (Pa.) Area School District, 106 S. Ct. 1326 (1986). back
87. David G. Savage, "Watching a Changing Court: Will the Center Hold?" Phi Delta Kappan, October 1987, pp. 135-137. For example, the Supreme Court agreed on November 9, 1987 to decide whether a law passed by Congress, the Adolescent Family Life Act of 1981, is unconstitutional because it grants federal funds to religious organizations to
enable them to promote their religious teachings regarding premarital sex, birth control, and abortion. If the Supreme Court upholds the district judge, it will be the first time a Congressional Act has been declared unconstitutional under the establishment clause, Bowen v. Kendrick, No. 87-250. back
88. See, e.g., James H. Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill, N.C.: University of North Carolina Press, 1978); Robert T. Miller and Ronald B. Flowers, eds., Toward Benevolent Neutrality; Church, State, and the Supreme Court (Waco, Texas: Baylor University Press, 1982); and Rogers M. Smith, Citizenship Without Consent (New Haven, Conn.: Yale University Press, 1985). back
89. Philip B. Kurland and Ralph Lerner, eds., The Founders' Constitution, 5 vols. (Chicago: University of Chicago Press, 1987). In Volume 5, see especially pp. 1-43 for 13 documents regarding the Bill of Rights in general
and pp. 43-111 for 69 documents pertinent to the religious clauses of the First Amendment. back
90. Paul A. Freund, "What They Said, What They Read," The New York Times Book Review, March 15, 1987, p. 3. back
92. Robert H. Wiebe, The Segmented Society: An Introduction to the Meaning of America (New York: Oxford University Press, 1975), Chap. 4 back
93. R. Freeman Butts, "The Dilemma of Civic Learning in the Schools of a Pluralist Democracy" in Lewis H. Lapham, ed., ) High Technology and Human Freedom (Washington, D.C.: Smithsonian Institution Press, 1985), pp. 60-61. back
94. A Hearst Report, The American Public's Knowledge of the U.S. Constitution; A National Survey of Public Awareness and Personal Opinion (New York: Hearst Corporation, 1987); and Center for Civic Education, Preliminary Report on High School Students' Knowledge of the History
and Principles of the United States Constitution and Bill of Rights (Calabasas, Calif.: Center for Civic Education, 1987). back
95. "Justices on the Constitution: What Children Should Know," The New York Times, Education Life Section, August 2, 1987, p. 33. back
97. California State Board of Education, Board Highlights, April 9-10, 1987 Board Meeting, Vol. 10, No. 8. back
98. Social Studies 11: United States History and Government; Tentative Syllabus (Albany, N.Y.: New York State Education Department, 1987), pp. 21-35. back
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After the American Revolution seven of the fourteen states that comprised the Union in 1791 authorized establishments of religion by law. Not one state maintained a single or preferential establishment of religion. An establishment of religion meant to those who framed and ratified the First Amendment what it meant in those seven states, and in all seven it meant public support of religion on a nonpreferential basis. It was specifically this support on a nonpreferential basis that the establishment clause of the First Amendment sought to forbid. 79
Levy deals at length with the histories of each of the six original states (plus Vermont admitted in 1791) that had originally authorized single establishments, but had been forced to make concessions to the growing sentiment against any kind of establishment. This took many forms of compromise, all of which moved from single establishment to multiple establishment:The evidence relating to each of the six proves that, while it lasted, an establishment of religion was not restricted in meaning to a state church or to a system of public support of one sect alone; instead, an establishment of religion meant public support of several or all churches, with preference to none. 80
Levy notes how imprecise and how inadequate many of the original sources are and how difficult it is to draw exact or simple conclusions. He cites the complexity of the issues involved in the separation of church and state and recognizes the important exception of tax exemption for churches. But he also demolishes the attempt by various authors to try to prove that exceptions were the rule; e.g., that Madison had a narrow view of the establishment clause because he issued proclamations recommending observance of Thanksgiving (which Jefferson refused to do) or that Madison was on a committee that recommended the appointment of chaplains (which Madison later said he was opposed to).The plaintiffs believe that, after reading the entire Holt series, a child might adopt the views of a feminist, a humanist, a pacifist, an anti-Christian, a vegetarian, or an advocate of a "one-world government."
The judge conceded that the state has a compelling interest in providing schools for education in citizenship, but...the Court must decide whether the state can achieve literacy
and good citizenship for all students without forcing them to read the Holt series.
Among those means were "opting out" of the school district's reading program whenever offensive books are being studied. Children may receive instruction by parents at home, so long as they meet standardized testing requirements. Although the judge declared that this is to be a narrow case applying only to the families bringing the suit, it was widely agreed that appeals to higher courts would ensue and a rash of similar cases could break out in many parts of the country.Did "religious freedom" for Jefferson and Madison extend to atheists? Yes. To agnostics, unbelievers, and pagans? Yes. To heretics and blasphemers and the sacrilegious? Yes. To "the Jew and the Gentile, the Christian and Mohametan, the Hindoo, and infidel of every denomination"? Yes. To people who want freedom from religion? Yes. To people who want freedom
against religion? Yes....
And the fight not only continues, it seems to be intensifying on many fronts. For example, the question of prayer in public schools does not remain settled. The Supreme Court found Alabama's law authorizing a moment of silence or voluntary prayer or meditation to be motivated by religious purposes and thus unconstitutional. But what about New Jersey's law of 1982, which contains no mention of prayer, but simply mentions a one-minute period of silence to be used solely at the discretion of the individual student "for quiet and private contemplation or introspection"? Lower courts held the law to be unconstitutional because it was motivated by a desire to inject prayer into the in public schools. The case on appeal was argued in the 1987 fall term of the Supreme Court, this time under the close scrutiny of one or two new justices of conservative persuasion whose votes could reverse the lower courts as the Justice Department's brief of April 1987
86 argued should be done. It is estimated that some form of "moment of silence" laws has been passed in 25 states, but their constitutionality has not been finally decided.Citizenship is Based on Civic Not Religious Values
All in all, I think it is fair to say that the predominant stream of constitutional, legal, and historical scholarship points to the liberal, separatist, and secular meaning of the First Amendment as over against the conservative, "cooperationist," or "accommodationist" meaning, much as the weight of scientific and academic scholarship points to the theory of evolution as over against "scientific creationism."The Constitution, however it is approached, presents a series of double aspects. It is at once the supreme law of the land, secular and coercive, and a symbol of our common ideals, an icon, some would say, of a civic religion....
90
There Are No Easy Answers
The urge to promote explicit civic values or character values in the schools intensifies in times of perceived national crisis or dangerous social change. It takes on special urgency when the need for social cohesion and unity is seen to be particularly acute. For example, liberal reformers sought to mobilize diverse groups to work together to achieve (in historian Robert Wiebe's terms) "a new social integration, a higher form of social harmony" as in the Revolutionary Era, the early Reconstruction, the Progressive Era, the New Deal, and the New Frontier/Great Society.
92 A Defensible Conception of Citizenship Is Needed
The continuing controversies over religion and education, so prominent in recent politics, are only samples of the kinds of public issues that require fundamental analysis and discussion throughout the country. In a recent volume from the Smithsonian Press, I make the point this way:We should try to develop an intellectual framework about civic values by means of which citizens may better judge the policies put forward by business or labor groups, political parties, religious groups, or other special interest groups. I believe that the primary focus of schools should be on the civic values that pertain to the public life of the political community and not on the private values of religious belief or personal lifestyles that individuals and groups should be free to choose but not impose on others, especially not by legislation or government regulation.
To be prepared to undertake this formidable but necessary task, the public and the teaching profession need to work together to formulate and promote a serious and sustained education in civic learning if they are to be able to separate the chaff of rhetoric from the grain of reality and thus contribute to the enduring health of the body politic. A renaissance of the civic sense of community through the appeal to history and to the Constitution is especially urgent and timely as we grapple with the persistent, fractious policies of religion, education, and the First Amendment. By all means, let us heed the former Chief Justice's call to make the Bicentennial period a reinvigorated history and civics lesson for us all.Our Constitution was not intended solely, or even primarily for judges. The strength of our systems of government and of our freedoms depends on how firmly they stand in the hearts of our citizens....
Justice William J. Brennan, Jr. said:Students should leave high school aware that the Constitution and the Bill of Rights constitute the raw material of a government under the Rule of Law, a set of principles protecting human dignity which must be understood, grappled with, fought for and constantly reassessed and applied under fire. The challenge to students is to further the values the protection of which underlies our whole concept of ordered liberty. Those values implicate both sides of the coin--not just the rights but also the reciprocal responsibilities.
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Such views typified the growing bipartisan support for study of the Constitution in the schools. This took many forms under many auspices, a few of which I have mentioned. To cite again the one with which I am most familiar, the director of the National Bicentennial Competition, Charles N. Quigley, announced early in February 1988 that its 1lth grade constitutional materials had been used by more than 6,000 teachers and had reached well over 300,000 students in the first year of the Competition, which had been held in 423 of the 450 Congressional Districts. The numbers involved will be multiplied in successive years as materials for 8th and 5th grade students become available.
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