“But the Original Intent of the Constitution Would be Restored”: Catholic Legal Thought and the Emergence of First Amendment Originalism, 1947-1987

Newberry Seminar on Religion and Culture in the Americas

Dennis J. Wieboldt III, University of Notre Dame

“But the Original Intent of the Constitution Would be Restored”: Catholic Legal Thought and the Emergence of First Amendment Originalism, 1947-1987

Several scholars of twentieth-century American legal history have recently argued that originalism—a method of constitutional interpretation commonly associated with the conservative legal movement—first emerged as southern Republicans and conservative Democrats (many of whom were evangelical Protestants) reacted to the U.S. Supreme Court’s 1954 decision in Brown v. Board of Education. But southern opponents of Brown were not the only figures to have self-consciously introduced originalist ways of thinking about the Constitution into the nation’s legal vocabulary at mid-century. Indeed, this article reveals that, nearly a decade before Brown, Catholics hundreds of miles away from Selma and Little Rock similarly sought to convince their neighbors that the Constitution ought to be understood according to the intentions of its eighteenth-century drafters (or, when appropriate, its nineteenth-century amenders). And importantly, they did so not to undermine the Civil Rights Movement, but rather to ensure that the Court’s 1947 decision in Everson v. Board of Education would not stymie the American Catholic Church’s efforts to obtain public financial assistance for parochial schools.

In encouraging jurists, scholars, and voters to understand the First Amendment’s Religion Clauses through the lens of founding-era history, post-Everson Catholics became as responsible as anyone outside of the Supreme Court for originalism’s decisive (re-)shaping of the Religion Clauses during the next half-century. But this triumph of First Amendment originalism ultimately proved troubling to some as the conservative legal movement began to capture the federal judiciary in the 1980s. From the perspective of these critics, God’s natural law, not Thomas Jefferson’s metaphorical “wall of separation” between church and state, should determine the First Amendment’s meaning. In concluding, this article therefore suggests that Catholics initially turned to originalism to pragmatically vindicate their background philosophical and theological conceptions of religious liberty but increasingly came to realize that originalism—to the extent that it relied on positivist assumptions about the nature of individual rights—was inadequate.

Commentator: Eric Wang, Emory University

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