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Thursday, February 14, 2019

Chapman, "Money for Missionaries"

Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN.  It's called "Money for Missionaries:  Rethinking Establishment Clause History."  (He workshopped this paper a while back, at Notre Dame, and I learned a lot.)  Here's the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

Posted by Rick Garnett on February 14, 2019 at 09:48 AM in Religion | Permalink

Comments

What sort of missionaries received it? Were they all Protestant?

I wonder whether the conservatives who call for a rethinking of the Establishment Clause would accept public schools teaching the evils of papacy.

Posted by: Jr | Feb 17, 2019 4:26:28 AM

It can't hurt to have more evidence, but isn't the Northwest Ordinance (originally passed under the Articles of Confederation but then repassed in the first Congress under the Constitution), which provided that "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged," proof enough that religious public education was considered OK?

I know, I should read the article, but I don't see what the "challenge" is. If you interpret "establish" to be mean "establish," nothing forbids Congress from encouraging religion.

Posted by: Biff | Feb 14, 2019 11:38:32 PM

Excellent.One may also raise the issue of foreign aid or support,and directly so,to religious minorities or generally speaking religious purposes,as in apparent violation of the first amendment(although in terms of standing,this is really a different animal).Here:

" Iraq and Syria Genocide Relief and Accountability Act of 2018’’

stating clearly in :

SEC. 2. FINDINGS.

Congress finds the following:

(2) According to the Department of State’s annual reports
on international religious freedom—

(A) the number of Christians living in Iraq has dropped
from an estimated 800,000 to 1,400,000 in 2002 to fewer
than 250,000 in 2017

May be reached here :

https://www.congress.gov/115/bills/hr390/BILLS-115hr390enr.pdf

Or the :

"Jerusalem embassy act of 1995 ",stating clearly that I quote:

SEC. 2. FINDINGS.

The Congress makes the following findings:

(4) The city of Jerusalem is the spiritual center of Judaism,and is also considered a holy city by the members of other religious faiths.

Here:

https://www.congress.gov/104/plaws/publ45/PLAW-104publ45.pdf

Thanks

Posted by: El roam | Feb 14, 2019 11:09:45 AM

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