Interpreting the Constitution

Free Exercise, Original Intent & the Meaning of Interpretation

By J.C. Herndon In his essay, "Original Intent and The Free Exercise of Religion," Joseph Zavaletta, Jr. offers what seems, at first glance, to be a reasonable view of the methods by which the Constitution ought to be viewed by the courts of the United States — most particularly the Supreme Court — with reference to the intention of the Framers. While I find myself in agreement with his basic argument regarding the tendency of the modern court to substitute judicial action in areas better suited to the legislative branch,[1] Zavaletta's approach to the problem of judicial interpretation simply does not pass constitutional, or historical muster. Zavaletta argues that "the primary tenets" of his "jurisprudence model are: first, that natural law as referenced in the Declaration is the primary legal foundation of American constitutional law,[2] rights and liberties; and second . . . that 'original intent' is a more accurate basis for interpreting the Constitution and the Bill of Rights." Unfortunately, his analysis of the doctrine of original intent, the authority of the court and the history of free exercise jurisprudence is fatally flawed.

Original Intent and the Power of the Courts

Perhaps the most problematic aspect of Zavaletta's discourse is in his conception of both the doctrine of original intent and the role of the Supreme Court in the constitutional government of the United States. Zavaletta tells us that in order to understand the original intent of the Framers it is necessary to look at the "records of the Constitutional Convention and the writings of the Framers."[3] Leaving aside the fact that despite his admonition Zavaletta never cites a discussion held in Convention in 1787, he attempts to make the case that the Supreme Court was not intended to be, in fact, the ultimate arbiter of Constitutional questions. To make his case, Zavaletta refers to numerous citations that correctly assert that of the three branches of government, the judiciary was seen as the weakest. However, at no point does Zavaletta inform us as to what the "judicial power" under the Constitution was intended to be. Indeed, while he cites a portion of Alexander Hamilton's, Federalist, Number 78, Zavaletta ignores the most trenchant portion thereof. According to Hamilton, The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.[4] In other words, it is the task of the court to determine which legislative acts, if any, are in violation of the fundamental law that governs all others in the United States. As James Madison correctly asserts, "an unconstitutional law is no law."[5] In response to those who would claim that such a power would elevate the judiciary above the legislature, Hamilton points out, There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.[6] Furthermore, Hamilton maintains that it is irrational to believe that the legislature is a competent judge of its own powers and that the courts are necessary as an "intermediate body" between the people and the danger of legislative tyranny.[7] The position first posited by Hamilton was incorporated into the corpus of American jurisprudence by Chief Justice John Marshall in Marbury v. Madison (1803).[8] Writing for the Court, Marshall maintains, "It is the province and duty of the judicial department, to say what the law is." In cases in which there is "opposition" to the Constitution in legislative acts, it is necessary that such legislative acts be declared "entirely void." Coupled with this assertion is the observation that the Supremacy Clause (Article I, section VI) only declares such legislative acts made "in pursuance of the Constitution" as valid parts of the law in the United States. Zavaletta warns us that "virtually everyone" incorrectly believes "that the Supreme Court is the ultimate authority on whether a law or policy is "constitutional." However, this assertion is false. An appeal to an authority warmly embraced by Zavaletta informs us that the ultimate interpreter of what the Constitution and the laws mean is, indeed, the Supreme Court. Justice Joseph Story, who is cited by Zavaletta as "the father of American jurisprudence," maintains in his Commentaries on the Constitution of the United States, that in cases that are amenable to "judicial inquiry and decision," such as those arising from constitutional questions, "there is a final and common arbiter provided by the constitution itself, to whose decisions all others are subordinate; and that arbiter is the supreme judicial authority of the courts of the Union."[9] Story goes on to tell the reader that "reasoning from the terms of the constitution, and the known principles of our jurisprudence, the appropriate conclusion is, that the judicial department of the United States is, in the last resort, the final expositor of the constitution, as to all questions of a judicial nature." Furthermore, "That this view of the constitution was taken by its framers and friends, and was submitted to the people before its adoption, is positively certain." [10] In fact, it is one of the great ironies that at least one opponent of ratification cited the fear that the courts would be incapable of determining acts of the legislature to be invalid one of the weaknesses of the proposed system. At the Virginia ratifying convention, Patrick Henry observed that in Virginia: Yes, sir, our judges opposed the acts of the legislature. We have this landmark to guide us. They had fortitude to declare that they were the judiciary, and would oppose unconstitutional acts. Are you sure that your federal judiciary will act thus? Is that judiciary as well constructed, and as independent of the other branches, as our state judiciary? Where are your landmarks in this government? I will be bold to say you cannot find any in it. I take it as the highest encomium on this country, that the acts of the legislature, if unconstitutional, are liable to be opposed by the judiciary.[11] In other words, if the Constitution is going to work, Henry tells us, the courts must have the authority to determine if legislative acts are consistent with the Constitution. By definition, the decisions of the Supreme Court become, for all practical purposes, part of the Constitution — in keeping with the common law tradition in American jurisprudence. With this in mind, it is shocking to find Zavaletta making a fundamental error in his analysis with regard to the manner in which Supreme Court decisions are confronted by the other branches. The particular instance cited, the response to the Dred Scott case is both in error and misleading. According to Zavaletta, Abraham Lincoln, in issuing the Emancipation Proclamation, and Congress, in authoring the 13th Amendment, confronted the power of the Supreme Court which demonstrates, he argues, that "a century ago our leaders believed that both the President and Congress had the Constitutional authority to pass 'constitutional' laws or orders without waiting for Supreme Court review." This argument is tied to the assertion that "(l)egislation is not deemed 'constitutional' until the Supreme Court has ruled." Taking the last assertion first, it is really an example of putting the cart before the horse. When legislation is passed by Congress, it is, in fact, considered to be constitutional until the Supreme Court says otherwise. In other words, Zavalletta errs in assuming legislative acts are unconstitutional until the courts grant their approval. Consider the fact that most legislative acts are never considered by the courts in the United States at all — much less by the Supreme Court. It is unreasonable to think that all legislation, at the national, state and local levels, must be considered unconstitutional until they pass judicial muster — and that was never the intent or the practice in the United States. The argument about Lincoln and Congress recommendation of passage of the 13th Amendment is also flawed. The Emancipation Proclamation did not extend the protection of the laws of the United States to slaves simply because it only applied to those states and territories beyond the reach of the United States. In other words, while it was a brilliant move of propaganda, it had little effect on the persons for whom it was intended. As for the 13th Amendment, there are only two ways a Supreme Court decision can be undone.[12] First, a subsequent Supreme Court can overturn and earlier decision. The most obvious example is Brown v. Board of Education of Topeka (1954), which vacated the decision taken by the Supreme Court in Plessy v. Ferguson (1895). The second method by which a Supreme Court decision can be overturned is by the process of amendment. And in amending the Constitution, the approval of the Supreme Court is not required. Neither is the amending of the Constitution a "confrontation" with the Supreme Court, but is rather a recognition of the legitimacy of the power of the court.

The Free Exercise Clause Misconstrued

In First Amendment jurisprudence dealing with religion, there are fundamentally two questions that are raised in keeping with the dual phrases dealing with religion. The first question is to what degree can the state be involved in the religion and religious activities of the citizen? The second, is to what degree can religion be involved in the activities of the state? In the first instance we are dealing with questions of religious exercise. In the second we are dealing with the establishment clause. The distinction will become important, because in his discussion of "free exercise," Zavaletta has an unfortunate tendency to conflate the two clauses. Zavaletta maintains that Thomas Jefferson's letter to the Danbury Baptists in which Jefferson alluded to the First Amendment as "building a wall of separation between church and state," has been misconstrued by succeeding generations. Indeed, according to Zavaletta, Jefferson "clearly did not intend the modern notion of an impenetrable wall preventing individuals from religious expression." To which the question must be asked: where and when have individuals been prevented from religious expression in the United States? Indeed, Zavaletta seems more than a bit unclear about his position on the subject. Once again he cites Jefferson to the effect that the "power . . . to assume authority in religious discipline" has not been "delegated to the general government. It must then rest with the States." The problem with this citation, taken in conjunction with the previous one is that the Danbury Baptists were writing specifically with regards to the power of the state to regulate religious observances. In the portion of the letter not cited by Zavaletta, the Baptists recognize "that the President of the United States, is not the national legislator" and that "he cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth."[13] In other words, they are asking for Jefferson to use his influence to reduce restrictions imposed by the state. Undaunted, Zavaletta then moves into the conflation of free exercise and establishment under the rubric of First Amendment jurisprudence. In particular, Zavaletta construes the incorporation of the establishment clause in Everson v. Board of Education of Ewing Township (1947), to be that of the free exercise clause. Furthermore, Zavaletta seems shocked — rather like Louis when he discovers gambling at Rick's in Casablanca — that the Supreme Court would apply the Bill of Rights, in particular the First Amendment to the states.[14] In Everson, the Supreme Court upheld a tax that existed to provide bus service to take children to and from parochial schools in New Jersey. The Supreme Court held that the tax in question did not support the establishment of religion since its sole purpose was to provide transportation "safely and expeditiously to and from accredited schools."[15] In his discussion of "free exercise," Zavaletta pointedly ignores the case by which the free exercise clause was incorporated to the states, Cantwell v. Connecticut (1940), in which the right of a Jehovah's Witness to distribute literature on a city street was upheld. In other words, in the case that incorporated "free exercise," the right to the exercise of religion was actually expanded contrary to the wishes of the state.[16] In his citations of Lee v. Weisman (1992)[17] and Zorach v. Clauson (1952),[18] Zavaletta is once again dealing, not with questions regarding the free exercise of religion, but rather the degree to which the state and its functionaries can mandate religion. In Lee, the issue was whether or not a school asking for the delivery of a prayer at graduation linked the state with the promotion of a particular religious view. In the opinion of the Supreme Court, it did, Justice Scalia's interesting dissent notwithstanding. In Zorach the court upheld release time for public school students to attend religious instruction off public school because it was not a violation of the establishment clause. It is difficult to see how establishment cases in which religious activity is allowed are somehow proof that the Supreme Court has upset the proverbial apple cart when it comes to free exercise. Furthermore, while it is a neat rhetorical trick to include Scalia's dissent in O'Hare Truck Service, Inc. v. City of Northlake (1996) — after all who could resist repeating the phrase "secret knowledge" — but the case itself has no relationship to either the free exercise clause or the establishment clause. The issue in O'Hare revolved around free speech and association and government contracts — not religion! It is a false analogy that violates the rules of logic and reasonable argument. Indeed, Zavaletta's recitation of cases to support his claim that the Supreme Court has trampled on free exercise rights only works if one is not familiar with the content of the cases themselves. For example, in his endnotes, Zavaletta presents a series of cases by which that he contends demonstrate the triumph of the court's reasoning in Everson. Unfortunately, with the exception of being related in so far as they are cases that deal with religion, they are tenuous with regard to their direct applicability under the terms Zavaletta would have us understand. Each case represented state mandated religious activities being imposed upon children in public schools.[19] As such, each case deals, not with the free exercise clause, but once again with the establishment clause. In an interesting twist on his own argument, Zavaletta condemns the Supreme Court's ruling in Boerne v. Flores (1997) in which the Religious Freedom and Restoration Act was declared unconstitutional. It is interesting in so far as Justice Scalia seems somehow to have availed himself of the "secret knowledge" regarding constitutionality since he was part of the majority along with Chief Justice William Rehnquist. The issue in Boerne v. Flores was whether or not a church could violate an otherwise legitimate law under the color of "free exercise." The city of Boerne had denied a building permit for the expansion of a church in its historic district, since such construction would violate its zoning ordinances. Ultimately, the problem with the RFRA was that it redefined the meaning of the First Amendment. The Court held that Congress had overreached in seeking to define almost any activity undertaken as "free exercise" as legitimate. Scalia, himself, in a concurring opinion, notes that "the most plausible reading of the 'free exercise' enactments" is that "(r)eligious exercise shall be permitted so long as it does not violate general laws governing conduct."[20]


At the outset of his essay, Zavaletta tells us that he is going to demonstrate two things: First, there is a "natural law" that serves as the primary foundation of American constitutional law. And second, original intent must be followed if we are to understand what the Constitution means. To demonstrate his point, Zavaletta then turns to what he terms "free exercise" jurisprudence to show the error of our ways. I am of the opinion that there is, indeed, a "higher law" background to American constitutional law. One can trace the development of the thread of natural law back to the ancient Greeks. Antigone, when confronted by Creon informs him that his proclamation that Oedipus would not be buried was a violation of "God's ordinances, unwritten and secure."[21] Aristotle reflects upon it with his contention in The Politics that "he who asks law to rule is asking God and intelligence an no others to rule; while he who asks for the rule of a human being is importing a wild beast too."[22] Aristotle's assertion would be passed on to through the Stoics, to Cicero, to John of Salisbury, to Harrington, to Algernon Sydney and then to the Framers of the Constitution. As Edward Corwin, historian of the Constitution and the Supreme Court observes, " the legality of the Constitution, its supremacy, and its claim to be worshipped, alike find common standing ground on the belief in a law superior to the will of human governors."[23] The problem is that Zavaletta does not bother to make the argument that such a rule exists, or that the Supreme Court is under any obligation to follow the dictates of the "unwritten law."[24] But even beyond the problem of the failure to establish the existence of a higher law to which the Constitution itself owes fealty is the problem of original intent and the role of the judiciary as envisioned by the Framers of the Constitution. We have seen that the intention of the Framers, as expressed in both The Federalist and in Justice Story's explication of the structure of the Constitution was, in fact, for the Supreme Court be the final arbiter regarding the constitutionality or unconstitutionality of acts that proceeded from the legislative body. However, the doctrine of "original intent" itself is fraught with difficulties. Put simply, if the Constitution is as clear as those who advocate original intent seem to think, then why did Hamilton and Jefferson have such a profound disagreement as to its meaning?[25] Finally, there is the question of First Amendment jurisprudence in light of the issues raised. We have seen that Zavaletta's argument rests upon somehow making decisions regarding the establishment clause to be applicable through some form of judicial legerdemain to the free exercise clause. But even if we accept that Zavaletta's contention that establishment equals free exercise and vice versa is true, it does not mitigate against the fact that his contention that the government has some form of obligation under the Constitution to promote religion is without merit on the basis of arguments advanced by the Framers themselves. To support his contention that government has a positive obligation to promote religion, Zavaletta cites a passage from George Washington's "Farewell Address." Washington tells us that "(o)f all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports."[26] However, this advice is that "of a parting friend." At no point in the address does Washington assert either what kind of "religion" is necessary for political prosperity, or that it is the government's obligation to seek to inculcate religious principles into the people at large. Indeed, the idea that government would somehow take the obligation for religious instruction upon itself would be seen as anathema to Washington. According to Washington, "every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience." [27] Note the hero of the War for American Independence does not say "according to the dictates of the government" or that the government has any responsibility other than to protect the rights of individuals. Zavaletta ends on a pessimistic note: "While our forefathers left us a legacy of faith, optimism and shared values, the Court has forced us to leave our children a moral wasteland littered with the refuse of cynicism, despair and anarchy." Personally, I prefer to consider James Madison's relative optimism. Near the end of his life Madison noted that with regard to religious liberty: Notwithstanding the general progress within the two last centuries in favour of this branch of liberty, & the full establishment of it, in some parts of our Country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Government & Religion neither can be duly supported. Such indeed is tendency to such a coalition and such its corrupting influence on both parties, that the danger cannot be too carefully guarded against. And in a Government of opinion, like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Government will both exist in greater purity, the less they are mixed together.[28] Indeed, most surveys show that Americans tend to be among the most religious people in the world — in part, perhaps, because the courts have kept the government out of the business of religion.


[1] See Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986).
[2] This is a dubious proposition as presented. In order to make this true, one would have to ignore the clear language of the Declaration itself. The Declaration tells us what it is and its purpose: to announce the severing of political ties between the states of North America and Great Britain and the reasons for that severance (on this subject see Willmoore Kendall and George W. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1970)). It was not until the Gettysburg Address that the Declaration began to take on the aura which we attribute to it (see Garry Wills, Lincoln at Gettysburg: The Words that Remade America (New York: Simon and Schuster, 1992)).
[3] It is interesting to note that this method runs contrary to that advocated by Justice Antonin Scalia. Scalia is a proponent of "textualism" and "originalism" which eschews consulting external sources, but rather relies upon the meaning of the words themselves in context. The question is whether or not a given intepretation is "reasonable" in light of the text itself. See Antonin Scalia, A Matter of Interpretation (Princeton: Princeton University Press, 1992). Furthermore, James Madison himself argued that the ratification debates were more instructive than the debates in Convention. See Max Farrand, ed. Records of the Federal Convention of 1787, (New Haven: Yale University Press, 1937) 4 vols., III, 374.
[4] Alexander Hamilton, James Madison and John Jay, The Federalist. Available on-line at
[5] James Madison, The Mind of the Founder: Sources of the Political Thought of James Madison, revised ed., edited with introduction and commentary by Marvin Myers (Hanover: University Press of New England, 1981), p. 436
[6] The Federalist, No. 78.
[7] Ibid.
[8] Marbury v. Madison, 1 Cranch (5 U.S.) 137. Available on-line at
[9] Joseph Story, Commentaries on the Constitution of the United States, 3 volumes. The particular citation can be found on-line at, section 347.
[10] Ibid, section 360.
[11] Jonathan Eliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, in 1787, 2nd edition, 5 volumes (Philadelphia: J.B. Lippincott, 1896), III, 325
[12] Implicit in Zavaletta's argument is that there can be an unconstitutional amendment — which, of course, would be an oxymoron.
[13] Both the letter from the Danbury Baptists and Jefferson's response are available at
[14] The "doctrine of incorporation" is a process by which selected portions of the Bill of Rights are deemed by the Supreme Court to applicable to the state and local governments under the rubric of the 14th Amendment. The test is whether or not such rights "are among the fundamental rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment from the states" (Gitlow v. New York, 268 U.S. 652; available online at
[15] Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947), available on-line at
[16] Cantwell v. Connecticut, 310 U.S. 96 (1940), available on-line at On the expansion of free exercise see Jones v. Opelika, 319 U.S. 103 (1943), Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105 (1943), Martin v. Struthers, 319 U.S. 141 (1943), Douglas v. City of Jeannette, 319 U.S. 157 (1943), West Virginia State Board of Education v. Barnette, 319 U.S. 583 (1943) Follet v. McCormick, 321 U.S. 573 (1944), March v. Alabama, 326 U.S. 401 (1946), Niemotko v. Maryland, 346 U.S. 268 (1951), Fowler v. Rhode Island, 345 U.S. 67 (1953), Torcaso v. Watkins, 367 U.S. 488 (1961), Sherbert v. Verner, 374 U.S. 398 (1963), Winter v. Miller, et. al., 404 U.S. 985 (1971), Wisconsin v. Yoder, 406 U.S. 205 (1972), McDaniel v. Paty, 435 U.S. 618 (1978),
[17] Lee v. Weisman, 505 U.S. 577 (1992), on-line at
[18] Zorach v. Clauson, 343 U.S. 306 (1952), on-line at
[19] Illinois ex. rel. McCollum v. Board of Education, 333 U.S. 203 (1948). On-line at The court struck down a "release time" program in Illinois schools since the religious instruction was held during school hours, on school property using, in the words of the majority opinion, "the State's compulsory school machinery." Engel v. Vitale, 370 U.S. 421 (1962). On-line at . The first of the school prayer cases that is most often misrepresented by those who think jurisprudence in church-state relations is too intrusive. At issue was a prayer recommended by the New York State Board of Regents. The problem was, from the perspective of the 8:1 majority that "in this country it is no business of the government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government." Abington School District v. Schemp, and Murray v. Curlett, 374 U.S. 203 (1963). On-line at The state of Pennsylvania had a statutory requirement that the school day begin with a reading from the King James version of the Bible and the City of Baltimore School Board had required either a reading of Bible chapter "and/or the Lord's Prayer" at the beginning at each school day (contrary to Zevelatta's assertion, neither of the two cases dealt with "voluntary school prayer"). In a 144 page opinion, the Supreme Court held that both practices violated the establishment clause. In the opinion of the court, "The place of religion in our society is an exalted one, achieved thourhg a long tradition of reliance on the home, the church and the inviolable citadel fo the individual heart and ming. We have come to recognize through bitter experience that it is not within the power of the government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard." In Stone v. Graham, 449 U.S. 39 (1980), Zevaletta correctly asserts that the posting of the Ten Commandments was disallowed by the Supreme Court. The Court held that the posting of the Commandments in public schools served no educational function, but was rather intended to inculcate a sense of veneration. The really interesting thing about Zevaletta's commentary, however, is the observation that the Supreme Court chamber has the Ten Commandments on the wall. Also in the Chamber is the Code of Hammarabi — do we have a problem if we post that instead of the Ten Commandments?
[20] Boerne v. Flores, 95-2074 (1997), on-line at
[21] Sophocles, Antigone , 2nd edition, translated with an Introduction by David Grene (Chicago: University of Chicago Press, 1991), 495 (page 178).
[22] Aristotle, The Politics, translated by T.A. Sinclair, revised and re-presented by Trevor J. Saunders (New York: Penguin Books, 1992) 1287a30, page 126.
[23] Edward Corwin, The "Higher Law" Background of American Constitutional Law (Ithaca: Cornell University Press, 1961) page 5. Those interested in the "natural law" background of the Constitution would be advised to see this volume in addition to Ellis Sandoz's excellent book A Government of Laws: Political Theory, Religion and the American Founding (Baton Rouge: Louisiana State University Press, 1989).
[24] On this subject see "Natural Law, the Constitution, and the Theory and Practice of Judicial Review," in Vital Remnants: America's Founding and the Western Tradition, edited by Gary L. Gregg, II (Wilmington: ISI Books, 1999), pp. 151-174.
[25] On the subject of original intent see Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1997); Jack N. Rakove, ed., Interpreting the Constitution: The Debate over Original Intent (Boston: , 1990); and Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates Over Original Intent (Ithaca: Cornell University Press, 1999).
[26] George Washington, "Farewell Address," in George Washington: A Collection compiled and edited by W.B. Allen (Indianapolis: Liberty Classics, 1988), p. 521
[27] Washington, "To the United Baptist Churches in Virginia, May 10, 1789," in George Washington: A Collection, p. 532.
[28] James Madison, Letter to Edward Livingston, July 10, 1822, in The Mind of the Founder: Sources of the Political Thought of James Madison, pp. 340-341 (emphasis added)