|The Constitutional Principle: Separation of Church and State|
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The accommodationist interpretation of Article III revolves around the undeniable fact that the "religion, morality and knowledge" clause is positioned in the text as a justification for encouraging schools. Apparently, the framers of the Ordinance believed that, in encouraging education, they were encouraging religion and, as a result, good government.
And, in fact, we would hardly expect otherwise; in 1780s America, virtually all education was controlled by religious institutions, and it was the popular consensus that religion was an important backbone of sound government. But having agreed with the accommodationists that the language of Article III implies a link between education and religion, we note that the existence of this link is not what is at issue with us. Rather, what's at issue is what accommodationists conclude from this link, i.e., that the framers of the Ordinance thought it was in their power to give non-preferential religious aid to the public schools.
Briefly, we find little in Article III that supports the accommodationist position. Indeed, we suggest there is nothing in Article III--unless one is reading the Article in a perversely pro-accommodationist manner--that either provided non-preferential religious aid to the public schools, or suggests that the framers thought they had the power to provide such aid. At least three arguments suggest this conclusion.
First, and most concretely, Article III provided no aid of any kind whatsoever to the public schools. There is no possibility of religious aid being provided to schools because no type of any aid was provided. Note, in particular, what the Article doesn't do: it appropriates no money, builds no schools, creates no educational bureaucracy, prescribes no curriculum, establishes no mode of instruction, and contains no enforcement mechanisms. The Article provides no aid because its purpose was not to provide aid; it was to commit the federal government to an attitude of support for education, the details of that support to be filled out by subsequent legislation. It is impossible, in other words, to find in Article III a grant of non-preferential aid. There is no aid there to find.
Second, the language of the article does not appear even to allow for religious aid. We note, in particular, that the "encouragement" clause says nothing about religion. To say that "religion, morality, and knowledge" is necessary to good government is not the same thing as saying that religious aid can be provided to the schools. On the contrary, it is just as reasonable to conclude (as did, for example, the Ohio Supreme Court in Minor v. Ohio), that Article III mentioned religion and morality in connection with education simply because the framers believed that educated people are more likely to be religious, moral, and knowledgeable than uneducated people. Accommodationists, in other words, do not argue on the basis of the text of Article III when they claim it proves an intent to provide religious aid to schools. Rather, they argue on the basis of an inference that is nowhere supported in the text.
Conversely, the text of Article III does seem to distinguish between encouragement of religion and encouragement of education. We note, in particular, that the absence of the word "religion" from the "encouragement" clause is conspicuous in the face of its presence only one clause earlier. It suggests that the framers were consciously distinguishing between religion and education; while religion might be important to good government, only education was to be officially encouraged. The linguistic (as opposed to substantive) distinction is undeniable; that the accommodationist argument ignores this distinction does nothing to increase its probability.
Finally, we note that the original wording of Article III provided explicitly for the encouragement of religious institutions (see our discussion of this issue elsewhere); this language was replaced with our current text, which encourages education only. Hence, the accommodationist argument assumes--perversely, as suggested above--that framers who desired religious aid for the schools abandoned exactly the language they wanted in favor of language that gave them nothing. It further assumes--again, perversely--that one can infer the intent to allow for religious aid from a clause that does not mention religion at all. Hence, we conclude there is nothing in the history of Article III that indicates an intent to provide non-preferential aid of a religious nature to the public schools of the Northwest Territory.