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Federalism and State Establishments

Research and writing by Tom Peters

In this article we will first define federalism and then explain its relevance to the debate over church/state separation.

Definition of Federalism:

Federalism is a mode of political organization that unites independent states within a larger political framework while still allowing each state to maintain its own political integrity (Encyclopedia Britannica, 1994, vol. 4, p. 712). While the distribution of power between states and the federal authority will vary from system to system, all federal systems preserve the ability of state governments to decide matters of local importance without interference from the federal superstructure.

In the American system, for example, the states are considered to be the source of political power; it is the states that call the federal government into existence, and it is the states that have the right to legislate on matters of local concern. Conversely, the federal government enjoys delegated power, i.e., power that the states hand over to the federal government for the purpose of dealing with issues of national scope. Critically, the federal government is limited to these delegations of power; in the absence of a delegation, the federal government has no lawful ability to act. Our Constitution was set up this way to ameliorate the general concern of the framers that a federal government would try to expand its power at the expense of state autonomy.

Relevance to the debate

The issue of federalism points up an extraordinary historical improbability that lies at the very center of the accomodationist position. Putting aside such technical issues as the history of the establishment clause, the grammar of the First Amendment, and the like, the accomodationists argument requires us to believe that the states --who otherwise jealously guarded their sovereign rights, and who were utterly suspicious of federal authority--delegated to the federal government expansive power to interfere with their internal policies on religion. We believe this argument is implausible on it's face; moreover, it ignores the heated nature of the struggle within states to work out their own policies over religious establishments.

As even a cursory review of Colonial history suggests, battles over state establishment were hard-fought and divisive; states would often struggle for years to hit on a policy that preserved the peace in their often religiously diverse populations. Nor was there any consistency to these policies; at time of the federal Constitution some states had long histories of religious freedom, others had what are commonly referred to as multiple religious establishments, while others were in periods of transition. Beyond this, the states had been exercising control over spiritual matters for centuries; there was no felt need (and certainly no precedent) for the states to look to a centralized authority to help them organize their religious affairs. Hence, it is unlikely that the states would have approved a Constitution that gave the federal government the power to aid religion on a non-preferential basis; such aid would have effectively compromised the ability of each state to work out a church/state relationship that satisfied its own needs.

Historical examples:

Virginia: in 1786 Virginia enacted Jefferson's "Bill for the Establishment of Religious Liberty." Virginia's enactment disestablished the Anglican Church, outlawed all public assessments for religion, and placed the various religious denominations on an equal legal footing. As documented by historian Thomas Curry (The First Freedoms, pp. 134-138), the debate over disestablishment was protracted and intense, and it turned on the general feeling that requiring people to support religion against their will was a violation of religious liberty. Given these facts, how likely is it that the state of Virginia would--the very next year--turn around and support a Constitution which granted the federal government the power to provide non- preferential aid to religion? Non-preferential aid, by definition, requires people to support religions with which they do not agree, precisely the point at issue in the Virginia debate. It is doubtful, in other words, that Virginians would have approved the Constitution if they understood it to do what accomodationists say it did.

Massachusetts: in 1780 Massachusetts adopted a Constitution that reenforced and extended that state's Protestant religious establishment. As Curry notes (The First Freedoms, pp. 163 ff.), this Constitution required Catholics to contribute to Protestant churches, and effectively barred Catholics from public office (quite in keeping with the popular religious sentiments of the time). How likely is it that Massachusetts would have accepted a Constitution that would have allowed the Federal government to aid the Catholic church as part of non-preferential distribution of funds? Non-preferential aid, no matter how widely distributed, would have diverted at least some funds to Catholicism. Again, we think this scenario highly unlikely.

The same argument can be made with respect to any of the remaining states; it is simply not plausible that the states, who had a vested interest in maintaining their own religious policies (policies that had been formulated with the state's religious history, attitudes, and temperament in mind) would have ceded even a shred of power over religion to the federal government. The suspicion with which states viewed federal authority is a well documented finding of Constitutional history; to suggest that the states made an exception in the case of religion--a subject that produced impassioned debate whenever it was discussed in the colonies--is, in our view, untenable.

No reason for granting power:

Our point is made stronger by noting that accomodationists have been unable to suggest a plausible reason for supposing that the framers would have granted the federal government power over religion in the first place. What purpose would it serve to give the federal government to aid religion, even non-preferentially? As even accomodationists note, religion was a matter of disagreement among the states; establishment of a national church would surely have torn the young nation apart. Would not have non-preferential aid done the same? Aid to Baptists in Connecticut? Aid to any religion in a state that had abolished establishment? Aid to Deists and Unitarians almost anywhere? Would not this have caused many of the same problems the framers sought to avoid by prohibiting the establishment of a single, national religion? And why involve the federal government in aiding religion when each state was perfectly capable of appropriating its own money for that purpose if it so chose? Even in the absence of our knowledge of state distrust of federal power, in other words, there is little reason to suppose the framers would have considered giving the federal government power to aid religion.

Our conclusion, then, is that the widespread distrust of federal power, distrust that manifested itself in the creation of a federal system of government, would make it unlikely that the states would grant power over religion to a central authority. On the contrary, the states had a vested interest in protecting their own church/state arrangements, and federal power to aid non- preferentially would surely have disturbed these arrangements. There is simply no good reason for thinking that the states would have vested the federal government with power over issues that were better handled at the state level.

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