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S EVERAL SENATORS HAVE
No one expects the candidate to say (even in the unlikely case he thought it) that the original intention of the framers is of no relevance whatever in deciding cases before the Supreme Court, or that the Constitution is a blank whose entire meaning is filled in by the current justices.
On the other hand, discerning the original intention of historical documents, especially one agreed to by a large body of politicians long dead, is not as simple as it might first seem. After all, not everyone who first read the Constitution or had a hand in its writing had exactly the same thing in mind. Diversity of opinion is not a 21st-century invention. Disagreement and compromise were alive and well in the 18th century.
Take, for example, the First Amendment to the Constitution, which forbids Congress (though not the states) to pass any laws that establish religion or hinder its free exercise. The first problem is terminological. The word "religion" was often used in the early republic as a synonym for Christianity, especially in its Protestant forms. "Getting religion" was another way of talking about a conversion to Christianity. Although the framers were aware of non-Christian religions, they were not the primary focus of the First Amendment.
What worried Thomas Jefferson and James Madison were the various Christian establishments that had once existed in colonies like Virginia and continued to exist in Europe. In the 16th century, Christian Europe had picked specific churches to back, usually with tax money gathered from the purses of the willing and unwilling alike. England was Anglican, Sweden Lutheran, France Roman Catholic, Holland Reformed and Russia Eastern Orthodox.
Where one form of Christianity was supported by the state, very little breathing room was left for all the others. John Bunyan wrote his classic, "Pilgrim's Progress," while imprisoned in Bedford jail for his activities as a Baptist minister in Anglican England. Establishment of religion and the prohibition of free exercise were two sides of the same coin.
Even among people who opposed the establishment of religion, there was a diversity of opinion. Some supporters, like Patrick Henry in Virginia, thought that the Anglican church should be disestablished, but that church taxes should continue to be collected. Henry wanted to share the tax revenues with all the churches, not just the once-established Anglicans.
American refugees from state churches (like the Mennonites of Pennsylvania) thought that any government support was bad for churches, which should remain completely independent from all government support and entanglement.
Other Americans like Thomas Jefferson thought entanglement with churches was bad for the state. He even opposed the right of clergy to run for political office, a position successfully defeated by fellow Virginian James Madison. In Madison's view, such a position would deprive a group of citizens--namely, clergy--of a natural right conferred on them by God, or, at the very least, not conferred by the state.
Madison thought that establishment was bad for both state and church. In his view (which proved to be correct), religion would thrive if the smothering hand of the state were withdrawn. The state, after all, is almost comically incompetent in theological matters and should stick to the more mundane business it understands.
What Madison promoted was neutrality, an American state that neither embraced one religious group at the expense of all others nor restricted the free religious practice of its citizens. As Madison saw it, establishment was bad because it was contrary to natural rights and inevitably drove some forms of religious belief and practice from the public square.
In other words, the 18th century saw not one but several "original intentions"--from Henry, who wanted to support all religious groups, to Jefferson, who thought it better to support none. Madison took the middle road by envisioning a state that is religiously neutral rather than religiously unfriendly.
So perhaps the question the senators should ask Roberts is this: "Of all the framers of the Constitution, whose understanding of its original intention do you find most persuasive?"