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Blaine Amendments: Time To
End the Bigotry
By David W. Kirkpatrick (October 08, 2007)
Senior Education Fellow
U.S. Freedom Foundation www.freedomfoundation.us
In 1875 Congressman James G. Blaine proposed amending the U.S. Constitution to prohibit aid to religious schools, Catholic schools in particular. While his effort failed, Congress subsequently required a number of new states to place such a restriction in their constitutions as a condition to receive approval for statehood. It is in the constitutions of additional state and has been used to block parental choice with publicly funded vouchers/scholarships. That bigotry is receiving long overdue attention.
Some states, Vermont in particular, have had publicly funded school choice programs since the 19th century. In 1990 Wisconsin established one in Milwaukee, as did Ohio for Cleveland in 1996. In 1997 Arizona adopted a plan using tax credits for individuals who gave up to $500 contributions to nonprofit tuition organizations In 1999 when the state's Supreme Court ruled that those credits are constitutional both the majority and dissenting opinions referred to Blaine.
The majority opinion said:
"The Blaine amendment was a clear manifestation of religious bigotry, part of a crusade manufactured by the contemporary Protestant establishment, to counter what was perceived as a growing ‘Catholic menace...' contemporary sources labeled the amendment part of a plan to ‘institute a general war against the Catholic church.'...we would be hard pressed to divorce the amendment's language from the insidious discriminatory intent that prompted it."
In 2000, Justice Clarence Thomas, writing the majority opinion in the U.S. Supreme Court's Helms decision, noting the background for the alleged church-state problem in education, wrote: "[N]othing in the establishment clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs...This doctrine, born of bigotry, should be buried now. ‘ Then,, in 2002, the Supreme Court specifically upheld the Cleveland program settling the constitutional question at the national level.
This controversy is not to be found in the original Constitution of 1787. But, in 1947, U.S. Supreme Court's Everson decision linked the 1st and 14th amendments, establishing the "separation of church and state" issue. This despite a First Amendment that says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
The prohibition had hitherto been generally accepted as clearly meaning Congress could not create or fund a national church. It certainly did not mean the states, since 9 of the original 13 had official churches in 1787. Linking the two amendments in Everson extended the meaning of "Congress" to include other governmental bodies. It ignored the long history of Bible reading, prayer, and religious classes in public schools. And it stretched the phrase "make no law" to include virtually any governmental involvement with religious sentiments.
The 14th Amendment was adopted in 1868 before Pres. Grant, Rep. Blaine, and others tried to abolish aid to religious schools. Obviously they saw no link between the 1st and the new 14th amendment. Otherwise they would have been trying to place something in the Constitution that was already there.
Krista Kafer, in School Choice 2003, from The Heritage Foundation, found Blaine amendments in 37 state constitutions: Twenty-nine state constitutions contain language understandingly prohibiting governments from compelling citizens to attend, or contribute to, a state-designated church. Some states have both provisions and only two or three lack at least one of them.
Here is a chronological list of twenty states that adopted Blaine amendments in their constitutions: 1844, New Jersey; 1850, Michigan; 1851, Ohio & Indiana; 1855, Massachusetts; 1857, Iowa; 1868, South Carolina & Arkansas; 1870, Illinois; 1872, Pennsylvania; 1875, Alabama & Missouri; 1876, North Carolina & Texas; 1877, Minnesota & Georgia; 1879, California & Louisiana LA; 1885, Florida; and, 1897, Delaware. (1894, New York)
Seventeen states entered the union with Blaine amendments: 1848, Wisconsin; 1857, Oregon; 1859, Kansas; 1864, Nevada; 1867, Nebraska; 1872, West Virginia; 1876, Colorado; 1889, Montana, North & South Dakota, and Washington; 1890, Idaho & Wyoming; 1896, Utah; 1907, Oklahoma; and 1912, New Mexico & Arizona.
The list is indicative, not definitive since constitutions are subject to reinterpretation and amending. Also, whatever one thinks of these statements and amendments, like Blaine and Grant, the states would not have thought them necessary if the federal constitution already possessed such restrictions. During all these years, the U.S. Supreme Court was largely silent. Until 1947.
What's been done should be undone.
(Also see www.blaineamendments.org.)
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In 1875, "The Blaine Amendment did not receive the necessary votes in the Senate. For the next half century it was reintroduced in Congress after Congress. It never passed. It was not abandoned, however, until the Supreme Court, by judicial fiat, made it superfluous." p. 15, George Goldberg, Church, State and the Constitution, Washington, DC: Regnery Gateway, 1987, 1984
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Copyright 2007 David W. Kirkpatrick
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Douglassville, Pennsylvania 19518-9240
Phone: (610) 689-0633