How the Supreme Court Found the Wall

Many Americans know that the Supreme Court has stated that the Framers intended the Establishment Clause “to erect ‘a wall of separation between Church and State.'” A smaller number know that the Court was quoting a letter from President Thomas Jefferson to Baptists in Danbury, Connecticut–a bit of bad history, since Jefferson’s  idiosyncratic views did not fairly reflect the consensus on church-state relations at the time of the Framing. A still smaller number know that the metaphor of the wall goes back even further, to Roger Williams, who adapted it from the Book of Isaiah.

But hardly anyone knows the very interesting story that historian and sometime CLR Forum guest Don Drakeman (Church, State, and Original Intent) tells in a recent paper. In “Why Do We Think the American Framers Wanted to Separate Church and State?,” delivered at Oxford’s Rothmere American Institute last month, Don explains that Chief Justice Morrison Waite (above) first used the metaphor in Reynolds v United States (1878), a case involving a ban on polygamy. According to Drakeman, Waite came upon the metaphor more or less by accident. Waite happened to live next door to the eminent American historian George Bancroft, for whom Jefferson was a hero. Waite consulted Bancroft about the case, and Bancroft advised that, if Waite wanted to know the Framers’ views on establishment, he should consult Jefferson:

The Chief Justice then went to the library and skimmed through the index to Jefferson’s collected works. There, he discovered an 1802 letter, in which Jefferson said that the First Amendment built a “wall of separation between church and state.” This statement had been buried for nearly 80 years until Chief Justice Waite unearthed it and cemented it into the foundations of church-state jurisprudence. Bancroft, by the way, got a thank-you note, but no visible credit for creating the Jeffersonian First Amendment.

So much for good originalism. Indeed, so much for ex parte communications about a pending lawsuit! But there it is. Don’s essay is a delight. Check it out here.

Cilardo (ed.), “The Early History of Ismaili Jurisprudence”

Last December, I.B. Tauris Publishers published The Early History of Ismaili Jurisprudence: Law Under the Fatimids edited by Agostino Cilardo (Naples Eastern University). The publisher’s description follows.The Early History of Ismaili Jurisprudence

Since the early 1930s, researchers have shed light on the literary production of the Ismailis. The cataloguing of these works has been carried out by Ivanow, Fyzee, Goriawala, Poonawala, Gacek, Cortese and de Blois. Many works attributed to Ismaili scholars, however, are still unavailable, either because they remain hidden in private collections, or because they have not survived. As regards Ismaili law, in particular, it is still a largely unexplored field of study. Al-Qadi Abu Hanifa al-Nu’man is generally considered as the founder and the greatest exponent of Ismaili jurisprudence. Many of his works have been lost; scattered information on some others is found here and there; some works are still in manuscript form; few others have been published.This book is a critical edition and translation of al-Nu’man’s Minhaj al-fara’id, based on the three known copies of it. It deals with the law of inheritance, one of the most difficult Islamic law institutions throughout Islamic law.

Strasser on the Establishment Clause

Mark Strasser (Capital University Law School) has posted The Endorsement Test is Alive and Well: A Cause for Celebration and Sorrow. The abstract follows.

The endorsement test, first explained by Justice O’Connor, provides one way to determine whether state action violates Establishment Clause guarantees. Now that Justice O’Connor has retired, there is some question whether the endorsement test will survive. Commentators’ claims to the contrary notwithstanding, however, there is no reason to think that the endorsement test retired along with Justice O’Connor, although a separate issue is whether those on the Court using the test will do more than give occasional lip service to the interests and perspectives of minority religious groups. At this point, the most likely scenario is that the Court will sometimes use the test, but will be unlikely to use it to strike down a particular practice. The article concludes that the test is likely to remain one of the tests used by the Court to determine whether Establishment Clause guarantees have been violated — the test will retain its potential to assure that individuals will not be treated as second-class citizens because of their religious beliefs but will in reality do little or nothing to take account of religious minorities’ sincere reactions to a variety of practices privileging some religions over others and privileging religion over non-religion.