Dear all,
I appreciate Marty's kind words, and accept his entirely appropriate
critique of my post yesterday regarding Davey. Marty is right to
remind us -- that is, to remind me -- that "there are
two pertinent Washington Constitutional
provisions, both of which were included in the original Washington
Constitution."
I'm "on the road" today, so I apologize for my inability
to clarify my earlier remarks, or document my earlier claims, to the
extent I would like.
I do want to emphasize again, though, that (like Marty) I did not expect
that the connections between 19th Century anti-Catholicism and provisions
like those at issue in Davey would be outcome-determinative. As
many on this list have shown (I'm thinking, in particular, of Chip Lupu,
Steve Smith, and Bob Tuttle), no-aid separationism can be respectably and
powerfully defended today without relying on anti-Catholicism.
I should also say -- and I regret that I have not always been clear on
this point in my own work -- that I regard "anti-Catholicism"
as something distinguishable from "bigotry." (I try to
flesh out this argument in a short essay, "The Theology of the
Blaine Amendments,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=455220) There is
and has long been such a thing as "anti-Catholic bigotry", but
I (now) believe it is more important to think about the arguments of
those who feared and disagreed with, and not simply disliked, Roman
Catholicism.
As Marty points out, in the Becket Fund brief -- to which I contributed,
and which was endorsed by a number of distinguished historians, including
John Witte, Charles Glenn, George Marsden, etc. -- discussed the Blaine
Amendments, their progeny, and their origins in a general way. The
brief also addressed the Washington Constitution, and Article IX, Sec. 4
specifically. It did not speak directly to Section 11, though it
did respond at some length to the suggestion that motives other than
anti-Catholicism (again, I would not want to say that anti-Catholicism
was always mere "animus") animated Washington's anti-aid
provisions.
In my view -- and I realize that, for now, this is an assertion, not a
demonstration -- the "original" meaning and purpose of Sec. 11,
unlike, perhaps, its "social meaning" today, cannot be divorced
from the thoroughgoing anti-Catholicism that shaped and permeated 19th
Century American thinking about religious liberty, citizenship, and
education. In my judgment, the evidence establishes the fact that
legislative provisions and public arguments speaking to the funding of
religious (or "sectarian") schools and education are in large
measure the result of concerns about the loyalty of Catholics and the
compatibility of Catholicism with American nationalism and liberal --
and, at the time, Protestant -- citizenship.
To be sure, the text from Section 11, cited by Marty --
"No public money or property shall be
appropriated for or applied to any religious worship, exercise or
instruction, or the support of any religious establishment" --
certainly does not sound "anti-Catholic," and it probably does
not today have an "anti-Catholic" social meaning. Still,
the provision would not exist, in my judgment,
but for the threats to American values that -- many believed -- were
posed by Catholicism. This connection is established in the
recent work of Hamburger, McGreevy, and many others. And, I believe
that the Court was too quick to dismiss it.
All that said, thanks to Marty for "calling" me on this
point.
best,
Rick Garnett
At 01:06 AM 2/26/2004 -0500, you wrote:
It's
great to see Professor Garnett contributing to the list on Davey;
he has addressed these issues with uncommon insight, rigor and nuance,
and our discussion undoubtedly will be richer and more thought-provoking
for his participation.
A great number of things in the Chief's opinion
may, and certainly will, be subject to serious debate. I am a bit
perplexed, however, that Prof. Garnett has saved his strongest fire for
the footnote 7 discussion of the Blaine Amendment. For one thing, I
doubt very much that the outcome of Davey turned on the historical
question of "intent"; I think it highly unlikely that the Court
would be inclined to permit the "dead hand" of 115-year-old
underlying intent at the federal level to determine the
constitutionality of a modern state program. In fairness to Rick,
however, that is not what troubles him. He is, instread,
"shock[ed]" by the "grossly mistaken assertion that such
[anti-Catholic] views had no role in . . . relation to the Washington
provisions at issue," and by "the Court's naked assertion that
the relevant Washington provisions, unlike the proposed Blaine Amendment
proper, owe nothing to anti-Catholicism."
There is definitely a disconnect here, and I
would genuinely welcome clarification.
There are two pertinent Washington
Constitutional provisions, both of which were included in the original
Washington Constitution.
The first, Article IX, section 4,
pro
