Laycock’s Insights and His Impact on the Debate

To appreciate the breadth of Laycock’s contributions to our understanding of founding-era history and its relation to modern law, the first task is to appreciate the myriad ways that he has shaped the debate. Some controversies about the Establishment Clause back then are no longer significant controversies now, in part because of Laycock’s historical interventions. Other controversies have taken on a fundamentally different shape because of his insights. And even where the debate continues, he has helped define the issues and further understanding.

Consider one of Laycock’s earliest and most famous articles, “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent.”Footnote ¹² Prior to publication of that article, several scholars insisted that, as originally understood, the Establishment Clause did not prohibit government from sponsoring religion or even taxing citizens solely to fund religious worship, so long as it refrained from favoring any particular religion in doing so. To support that reading, the theory’s proponents focused primarily on the wording of several proposed amendments predating the Establishment Clause, which suggested that “no particular religious sect or society ought to be favored or established, by law, in preference to others.”Footnote ¹³ Nonpreferentialists also stressed that the First Amendment’s final wording prohibited only “an establishment of religion,” ostensibly implying that while establishing a particular religion was prohibited, an inclusive “nondiscriminatory” establishment was permissible.Footnote ¹⁴ Within a few years, at least one Supreme Court justice accepted the nonpreferentialist view,Footnote ¹⁵ as did a U.S. attorney general and several other well-known scholars.Footnote ¹⁶

Laycock responded with a now-classic piece of scholarship, rebutting the theory’s core assumptions. Beginning with the drafting history of the Establishment Clause, he provided numerous examples suggesting that—contra the nonpreferentialists—the wording of the First Amendment did not authorize a nondiscriminatory establishment. Rather, Congress considered and rejected versions of the Establishment Clause expressing the nonpreferentialist idea, adopting instead the more sweeping ban on any “law respecting an establishment of religion.”Footnote ¹⁷ If the framers of the constitution meant to authorize a nonpreferential federal establishment, the language they used was a poor fit.

Defenders of the nonpreferentialist theory responded by pointing out that the First Amendment’s language is hardly unambiguous.Footnote ¹⁸ And undoubtedly, that is true. But in my judgment, Laycock correctly suggested that in its historical context, the phrase “an establishment of religion” was not an implicit permission for Congress to establish religion generally. Instead, it was a prohibition on federal legislation that resembled or related to “an establishment” of any kind. That ban likely would have included policies like the web of law and practice that had characterized the English establishment.Footnote ¹⁹ But arguably, it also included the milder, more tolerant forms of establishment that existed in some states.Footnote ²⁰ And in focusing on evidence from the states, Laycock’s work also served as a watershed.

State-level controversies at the time of the founding of the United States do not provide direct evidence about the meaning of the federal Establishment Clause. Nonetheless, as Laycock pointed out repeatedly in his early scholarship, those controversies are probably some of the best evidence we possess—even beyond the debates in Congress—for how the “concept of establishment was understood in the Framers’ generation.”Footnote ²¹ The history surrounding the drafting of the clause in Congress is brief and at times even nonexistent (for example, we possess no record at all of the debate accompanying various drafts proposed in the Senate). But public disputes over disestablishment in the states provide a wellspring of evidence for understanding founding-era views on the nature and logic of establishment, as well as arguments that contributed to its eventual rejection.Footnote ²² And here, too, Laycock’s marshalling of that evidence in his early work provided some basic insights that have continued to inform and influence present scholarship.

Probably the most important point involved the scope of founding-era arguments against disestablishment. In his debate with nonpreferentialists, Laycock pointed out that the rejection of church-tax regimes in many states involved more than just a rejection of religious preference. Rather, in states such as Maryland and Virginia, founding-era elites went further, rejecting even church-tax schemes that allowed citizens of any religion to avoid state-mandated tithes by directing their money to other goods such as education or aid to the poor.Footnote ²³ Likewise, Laycock observed in later scholarship that founding-era Americans rejected laws requiring citizens to attend state-approved worship, even after states relaxed those laws to allow citizens to worship at a place of their own choosing.Footnote ²⁴ In at least these ways and probably others, founding-era objections to religious establishment extended beyond what some modern accounts sometimes assume.

Laycock’s scholarship did not focus on the theories of natural rights and social contract that informed these founding-era conclusions. But in many ways, more recent scholarship emphasizing those themes is best understood as expanding on the basic conclusions about the historical record that Laycock reached more than three decades ago. In rejecting things like church-tax schemes and church-attendance laws, founding-era supporters of religious liberty rejected not just religious preference of one sort or another. Instead, they rejected whole idea that government had authority to command religious duties through law or assert authority over matters of private religious opinion.Footnote ²⁵

For most scholars, one influential intervention would be a career-making achievement. But in Laycock’s case, as with so many other aspects of his career, that was just the beginning. Besides fundamentally impacting the debate over nonpreferentialism, Laycock’s historical work has also done a tremendous amount to shape other modern debates surrounding the meaning of the Establishment Clause. And on this score, one theme alone stands out above all others. Laycock’s historical work stands as a model in drawing insightful and nuanced conclusions about both the similarities and differences between the modern world and the world of the founding era.

To understand this point, consider first Laycock’s work on the Establishment Clause and religious exemptions. In earlier decades and still today, some have argued that religious exemptions are a mode of religious favoritism at odds the Establishment Clause.Footnote ²⁶ But as Laycock’s work demonstrated, a proper understanding of the history of disestablishment renders that argument highly dubious. From the beginning, religious exemptions from things like oath-taking, military service, and mandatory church attendance all served to protect religious dissenters, not bolster establishment.Footnote ²⁷ Indeed, recognizing the connection between disestablishment and exemptions reveals that, at their heart, religious exemptions have always functioned as a means of resisting rather than furthering state-mandated religious conformity.Footnote ²⁸ Exemptions were assaults on the logic of religious establishments.

To be clear, Laycock’s historical work did not resolve the debate over the propriety or desirability of religious exemptions writ large—nor did it purport to do so. But no one engaging these issues can now ignore the connection between religious exemptions and disestablishment as a key data point. Laycock situated those issues within a larger historical frame, in a way that laid bare some important continuity between historical disputes and modern questions.

But if Laycock has sometimes unearthed continuity between founding-era history and modern questions, it has also identified complexity. On this point, Laycock’s most important insights have concerned questions about funding. In articles discussing this topic, Laycock has consistently eschewed sloganeering and isolated quotations from Madison and Jefferson. Instead, he has sought to identify how eighteenth-century disputes about funding are both similar and different from disputes that occupy courts today. And here, Laycock’s sensitivity to these issues has set the gold standard, at least in my view.

On the one hand, Laycock has consistently approached the historical sources with modesty. In his writings on the subject, Laycock has noted that during the founding-era and beyond, both the federal government and the states provided money to religious schools. Yet Laycock resisted the temptation of concluding that, standing alone, this evidence somehow decides modern questions.Footnote ²⁹ At the same time, he has perceptively noted that, whereas the eighteenth-century controversies were about preferential funding for purely religious activities, modern controversies pose a much different question: whether discrimination against religion is permissible or even required where the government funds a larger category of conduct.Footnote ³⁰

In the founders’ time, when government funded almost nothing in the private sector, the rejection of church-tax schemes sat comfortably with divesting power over religion and leaving religious practice to private choice. But in our world, where government subsidies reign, expanding those historic objections to cover modern, religiously-neutral programs has the opposite effect. And from this perspective, faithfulness to founding-era understandings means acknowledging those differences and shaping constitutional law accordingly—and with an eye toward minimizing government influence. Here as elsewhere, one can agree or disagree with Laycock’s specific conclusions. But it is hard to dispute that Laycock’s analysis of the historical evidence presents an especially sophisticated effort to grapple with the complexity of history and its modern implications.

The discussion above touches on just a handful of Laycock’s lasting historical insights. But I hope it is sufficient to illustrate some of Laycock’s achievements. As a scholar, Laycock has done a tremendous amount to educate other lawyers about the historical meaning of the Establishment Clause, and to highlight founding-era evidence in ways that shed light on contemporary problems. Yet even those things are just scratching the surface. As I explain in more detail below, the immense value of Laycock’s contributions lies not just in what he has taught us about history, but in how he has done so.

Laycock’s Ecumenical Method

The use of history in constitutional interpretation is a fraught enterprise. Many people believe that history ought to play at least some role in constitutional interpretation. But exactly how and when history ought to matter is, to put it mildly, a matter of serious dispute. And the most prominent theories of constitutional interpretation approach that problem in very different ways.

I cannot possibly do justice to all the various interpretive theories on offer. So I mention just two of the most prominent families of interpretation: originalism on the one hand, and what Mitchell Berman has recently called “normative” or “anti-positivist” approaches on the other.Footnote ³¹

Originalism in its most common varieties contends that the constitution’s meaning is “fixed at the time each provision was framed and ratified.”Footnote ³² As a result, this mode of constitutional interpretation is probably best understood as “a species of intellectual history which seeks to understand ideas [ensconced in the constitutional text] as they were understood at the time.”Footnote ³³ Interpretation is a search for fixed meaning, informed by historical context.

By contrast, normative or anti-positivist approaches view constitutional interpretation not as a search for fixed meaning, but instead as a search for evolving moral principles that “show[] our legal practices in the best light.”Footnote ³⁴ Under this view—of which Ronald Dworkin is probably the key expositor—constitutional text might hold decisive authority in some limited set of cases. But where the text speaks in ambiguous or general language, judges ought to expound the constitution’s provisions in a way that “does the most credit to the nation,” by pushing our institutions toward more just or morally desirable outcomes.Footnote ³⁵ The most fundamental task, in other words, is not discerning fixed meaning, but giving voice to the right set of contemporary moral values.

I readily admit that each of these approaches contains nuances that my rough-and-ready description elides. For my purposes, though, the point is more general. At its core, Laycock’s approach to founding-era history does not validate one of these approaches over the other. Instead, it points the way to correcting some of the temptations and pathologies that plague both families of theories. And by doing so—maybe unintentionally—Laycock’s work offers a model for mediating between them.

Consider Laycock’s basic description of the interpretive enterprise: “Constitutional interpretation requires the identification of coherent principles in the constitutional text, reasoned elaboration of the implications of those principles, and application of the principles … to current conditions.”Footnote ³⁶ Laycock’s mention of “coherent principles” and their application to “current conditions” has at least some affinities to standard normative or anti-positivist approaches. But as I understand him, Laycock’s position is also more nuanced.

By speaking in terms of “principles,” I do not take Laycock to mean a judge’s own principles as divined by the best contemporary moral theory.Footnote ³⁷ Rather, he means that judges should seek out and apply the principles “ratified in the text”—that is, principles agreed on at least partially at some prior time—which we discern “in light of the [historical] controversies” that produced them.Footnote ³⁸ Yes, principles matter in constitutional law. And, as Laycock contends, part of the task of constitutional interpretation involves “elaboration” and “application of the principles, including their [discovered] implications, to current conditions.”Footnote ³⁹ But against at least some normative approaches, Laycock’s work suggests that—rather than an invitation to pour our own moral theories into the constitution—the task of constitutional interpretation is to “start with the text” and the history surrounding it as providing genuine direction and limitations, even if we also “fill in … the rest of the argument ourselves” by applying those historic principles to new contexts and situations.Footnote ⁴⁰

But how exactly should we approach the historical inquiry? Early on, originalists contended that the proper mode of inquiry involved a search for the “original intentions” of the framers of the U.S constitution—the meanings the framers desired or anticipated the constitution to have.Footnote ⁴¹ Later, originalists generally abandoned the search for original intentions for a search for “original public meaning”—the semantic meaning of the text at the time it was ratified.Footnote ⁴² Emphatically, Laycock is not nor has he ever claimed to be an originalist. But in many ways, Laycock’s writings anticipated this move before originalists made it. In fact, years before anyone had uttered the phrase “original public meaning,” Laycock had already hit on the key point: “The text is superior in authority to intent, because only the text was submitted to the vote of the ratifiers.”Footnote ⁴³ Yet in anticipating the superiority of the text over intent, Laycock’s mode of constitutional interpretation also reveals significant shortcomings underlying some versions of originalism—and most especially, originalism as sometimes practiced by the Supreme Court.

The first important point involves the relation between the constitutional text and founding-era practice. In a series of Establishment Clause cases, the Supreme Court has insisted that the Establishment Clause ought to be interpreted primarily in light of “historical practices and understandings.”Footnote ⁴⁴ When making such claims, however, some justices have sometimes insisted that the mere existence of a contemporaneous practice is sufficient to demonstrate the practice is and always was constitutional. For instance, writing for a majority of the court, Justice Kennedy suggested that we need not inquire into the permissibility of things like legislative chaplains or legislative prayer, because the bare fact that Congress carried on those practices close in time with the First Amendment’s adoption indicates that “the specific practice is permitted,” even without “defin[ing] the precise boundary of the Establishment Clause.”Footnote ⁴⁵ Likewise, Justice Scalia sometimes suggested that government may engage in religious speech consistent with a general monotheism—seemingly without limit—because the government often engaged in similar speech in the founders’ time.Footnote ⁴⁶

Laycock has criticized these lines of argument, and for a simple reason: they are not genuine acts of constitutional interpretation at all. Yes, contemporaneous practice can be relevant indirect evidence for identifying the principles or legal content instantiated in the constitutional text. But arguments like those noted above are doing something more. Rather than seeking to offer a positive interpretation of the constitution in light of contemporary practice, these arguments eschew interpretation altogether—they insist that “it is not necessary to define” the meaning of the constitution if the founders engaged in a certain practice.Footnote ⁴⁷ Yet as Laycock has rightly noted, that approach inverts our system of written law. An argument that a practice is permitted solely because the founders did it “lets the behavior of government officials control the meaning of the constitution, when the whole point is for the constitution to control the behavior of government officials.”Footnote ⁴⁸ Rightly understood, contemporaneous practice is evidence in service of articulating what the constitution actually means, not an independent basis of authority.Footnote ⁴⁹

There is also a second insight here. Versions of the argument that “the founders did it, so it must be constitutional” tacitly rely on the premise that everything the founders did was consistent with the legal content they wrote into the constitution. But here too, as Laycock has noted, that conclusion does not necessarily follow. Even if one assumes that history can illuminate the meaning of a constitutional provision, it would not be surprising to discover that, at least sometimes, “principles stated in the text … [may] have implications that the Founders did not contemplate.”Footnote ⁵⁰ As Laycock rightly notes, practices or policies that were not controversial in the founders’ time “received no serious scrutiny.”Footnote ⁵¹ As a result, determining whether those practices are consistent with the constitution necessarily requires asking how a relatively uncontroversial or unexamined practice squares with the text as we have it. It means interpreting the text at a modest level of generality appropriate to the words, in light of the historical views underlying the text and the abuses it was drafted to eliminate.

There is a common theme here. As I read it, Laycock’s understanding of the role of history in constitutional interpretation—both as explained and as practiced in his writings—challenges aspects of both originalist and normative approaches to interpretation. But the nature of those challenges is rooted in his long-standing insistence that “the most important source of constitutional meaning is the constitutional text.”Footnote ⁵² The constitution is not a cipher for a judge’s ideal moral judgments. But neither is it an empty vessel that can be overlooked as long as the founders engaged in some loosely related past practice. Both positions are attempts to ignore or downplay the authority of the constitutional text in favor of substitutes, whether tradition or grand philosophizing.

At bottom, Laycock’s constitutional theory is a rallying cry in favor of the constitutional text against attempts to ignore or escape the text to arrive at different results. Determining the meaning of that text is a historical inquiry, at least in part, as Laycock’s own work indicates. But applying the text in our time also involves positive argumentation linking those historical meanings to new questions, and linking history to problems that the framers did not and probably could not anticipate.