One could be forgiven for thinking that there is nothing new and interesting to say about the Supreme Court's interpretation of the First Amendment provision forbidding any law “respecting an establishment of religion.” Over the last six decades, the Court's Establishment Clause jurisprudence has generated so much judicial and scholarly controversy that it is hard to see what could be added to the mountain of briefs, opinions, articles, and books already written on the subject. In Church, State, and Original Intent, however, Donald L. Drakeman defies such expectations and offers a fresh perspective. Moreover, and to his credit, Drakeman achieves this novelty not by straining for it but by returning to the relevant primary source materials—the congressional debates over the language of the Establishment Clause, and more generally the founding-era discourse on church–state relations—and persuasively contending that they have been selectively understood (and hence misunderstood) by modern interpreters seeking to justify modern interpretations.

Drakeman's twofold purpose is, first, to discover how the Supreme Court arrived at the originalist reading that has guided its interpretation of the Establishment Clause, and, second, to provide a historically accurate understanding of the clause's original meaning, in contrast to the errors that he believes have misled the Court and many scholars. He pursues this aim in the course of seven chapters. After the Chapter 1 introduction to Establishment Clause jurisprudence and scholarship, Chapters 2 and 3 offer detailed accounts of the crafting of the key opinions in Reynolds v. U.S. (1878) and Everson v. Board of Education (1947), the two cases in which the Court introduced the historical account of the religion clauses claiming to support a strict separation of church and state. Chapter 4 examines the dominant scholarly interpretations of the original meaning of the Establishment Clause, and Chapter 5 tests them all against Drakeman's review of the historical evidence, contending that they all fall short. Seeking the original meaning of the “incorporated” Establishment Clause, Chapter 6 explores the public understanding of that provision from the founding up to the time of the adoption of the Fourteenth Amendment, which has been held, through the Court's doctrine of “incorporation,” to apply the requirements of the Establishment Clause to the states. Finally, in Chapter 7, the author advances his own originalist interpretation of the Establishment Clause, one that differs significantly from the ones that have, until now, dominated the debate.

Drakeman's enterprise might provoke the following objection: Why should we be guided by the original meaning of the Establishment Clause? After all, as an approach to constitutional interpretation, originalism is controversial: Many scholars, lawyers, and judges deny that the original intention of constitutional provisions is necessarily authoritative for contemporary courts. For that matter, even Drakeman presents himself not as a committed originalist but as open to other approaches. It is reasonable, however, for him to confine his investigation in this book to original intent because, as he correctly notes, the debate over the Establishment Clause has been, as a matter of historical fact, overwhelmingly dominated by dueling originalisms. While justices and commentators have differed widely over the kind of church–state policy that is appropriate, they have all sought to justify their positions in relation to the views of those Founders whom they regarded as key to understanding the Establishment Clause.

Drakeman's pursuit of his twofold purpose makes a worthy contribution to Establishment Clause scholarship that is likewise twofold. In the first place, his account of how the Court came to its dominant, strict separationist reading of the original meaning is very helpful. Much of the most prominent scholarship has been concerned primarily with returning directly to the founding in search of evidence that supports or confutes the Court's interpretation. In contrast, Drakeman, by examining the briefs and (where available) the record of the arguments made by the justices in conference and the development of the draft opinions, reconstructs the path by which the Court returned to what it held to be the original intention of the Establishment Clause. This inquiry is interesting in its own right, but it also buttresses the author's critique of the Court's account. He shows persuasively that the justices came up with the famous “wall of separation,” not by an impartial review of all the relevant historical materials but under the influence of prominent contemporary historians (George Bancroft in the case of Chief Justice Waite in the Reynolds case, and Irving Brant in the case of Justices Rutledge and Black in Everson) who were ardent proponents of one view of church–state relations among those contending at the time of the founding—the strict separation that prevailed in Virginia and that was explicated most famously by Thomas Jefferson and James Madison.

In the second place, Drakeman's conclusions about the genuine original meaning of the Establishment Clause offer a plausible alternative to the familiar theories. Key to his interpretation is his provocative but persuasive contention that the Establishment Clause was just not as important to the Founders as it appears to us. The debate over the clause's original meaning has been dominated by the scholarly partisans of the Court's aforementioned strict separationism and by academic and judicial defenders of “nonpreferentialism,” the view that the Establishment Clause permits general governmental support for religion so long as it does not favor one religion over others. More recently, some have contended that what Drakeman calls an “enhanced federalism” reading is one holding that the clause aimed only to prevent federal interference with existing state establishments of religion. Drakeman finds that the latter view, while a plausible reading of the text itself, is insufficiently supported by the surrounding debates. The dominant strict separation and nonpreferential views, in contrast, would have generated serious controversy and, hence, extensive recorded debate on the Establishment Clause's meaning. Instead, he observes, we find a very sparse record of argument, in both the Congress itself and in the ratifying conventions. Drakeman's conclusion: The Establishment Clause was a mere “milk and water” amendment, an essentially noncontroversial provision designed to ease the minds of skittish antifederalists by explicitly prohibiting what nobody thought Congress had the power to do in any case, namely, to establish a national religion.

This conclusion may give many readers pause, since it leaves the government almost completely independent of judicial supervision in its conduct of church–state relations. After all, if the Establishment Clause aimed only to prevent the erection of a national religion, then any government support for religion short of that, even if it prefers some religions over others, is permissible under the Constitution, at least according to an originalist construction. Mindful of this consideration, and favoring a moderate church–state policy himself, Drakeman concludes his study with a helpful suggestion for the future conduct of public debate over the Establishment Clause: We can still turn to the diverse views of the Founders to inform our public deliberations on church and state, even if we cannot, with historical honesty, make the views of certain favored Founders constitutionally authoritative by equating them with the original public understanding of the Establishment Clause.