“If the establishment clause applied to the states then it would not have been necessary for Jefferson to write his own Virgina Statute for Religious Freedom.”
—The Constitution didn’t exist. The Virginia Statute for Religious Freedom was written well before the first amendment.
If the Constitution with the Bill of Rights did exist, than I think it likely that Jefferson wouldn’t have bothered creating the Statute. Same with Madison and the “Memorial and Remonstrance Against Religious Assessments”, which was written before the Constitution.
Determining “original intent” for the religion clauses may not be very useful in determining their correct application. The founders seem to have had disparate views on what they actually meant. There are at least three distinct views of thought that can be discerned from the time of the founding:
1) The evangelical view: that “worldly corruptions...might consume the churches if sturdy fences against the wilderness were not maintained.” (mainly from Roger Williams)
2) Jefferson’s view that the church should be walled off from the state in order to protect secular interests (public and private) against “ecclesiastical depredations and incursions.”
3) Madison’s view that religious and secular interests alike would be advanced best by diffusing and decentralizing power so as to assure competition among sects rather than dominance by any one.
The problem is further compounded by the changes in the country since that time. The founders knew differences primarily between Protestant sects; the country is far more heterogeneous religiously today.
Moreover, with regard to the Crevo debate occurring on this thread, public education did not exist, as we know it, at the time of the founding. It is difficult to apply their conception of the religion clauses to situations they could not have imagined.
For instance, views passed down from the 18th century will have little use in deciding how our conception of public education being “available to all citizens” informs what might constitute an “establishment of religion” with regard to public schools.
Essentially, the divergent views of the framers makes it possible for those on all sides of the debate to invoke history in support of their propositions. This is often the case in answering constitutional questions. For this reason, I’m often frustrated by appeals to “original intent.” Whose intent, exactly?
According to which document? For instance, many FReepers are fans of the Federalist. I am too, but one ought to keep in mind that they were newspaper editorials designed with a very specific purpose. They wanted to convince the people of New York State to ratify the Constitution. They may have emphasized aspects which New Yorkers would find appealing and glossed over or “spun” others that they might not have agreed with so easily.
Furthermore, people often conflate “literalism” or “plain meaning” of the text with “original intent.” But they’re actually quite different. For instance; the Constitution says that Congress shall have the power “To establish Post Offices and post Roads...” Read literally, this, along with the 10th Amendment, might suggest that Congress only has the power to operate Post Offices and build post Roads, but not actually to deliver the mail using those Post Offices and post Roads. Maybe the States were supposed to deliver the mail. But both common sense and original intent tell us that, no, the founders intended the Federal Government to deliver the mail as well, using those Post Offices and post Roads.
And what if applying the text literally or according to founders’ intent creates perverse consequences which actually contradict the underlying purpose (as opposed to intent)?
For instance, does Congress have the power to use the mail as a weapon? Nowadays, we don’t think of it as a very big deal, but way back when, the Post Office was how the Federal Government extended its power throughout the union. Without it, commerce came to a halt. So can the Federal Government use it as a coercive tool by threatening to withhold it, as it does highway funds? If not, why not? IF it has the power to operate a Post Office, why can’t it withhold that service from a State?
All I’m trying to say is... “Plain meaning,” “original intent,” and “underlying purpose” usually don’t get you very far in practice, even with something as simple as the post office. The Constitution is vague and ambiguous, and it was likely “intended” that way.