The Insignificance of the Blaine Amendment

Abstract

Few events in American constitutional history have been as maligned as the Blaine Amendment of 1876. ' The proposed federal amendment sought to apply the proscriptions of the First Amendment religion clauses to the actions of state governments while it expressly prohibited the appropriation of public funds for the support of any school under the control of a religious sect or denomination.2 The Amendment came about at a time of heightened controversy over the religious character of American public education and the public funding of private religious schooling, primarily Catholic parochial schools.3 At times, the debate over the Amendment and the larger "School Question" devolved into ethnic and religious aspersions, a fact that has led critics to charge that the Amendment and the principles it represented were motivated chiefly by anti-Catholic animus.4 The Blaine Amendment failed to receive the necessary approval from the Senate,5 but several states subsequently enacted comparable amendments in their respective constitutions prohibiting the public funding of religious schooling.6 Critics have used the religious bigotry associated with the Blaine Amendment to discredit these state facsimiles and the no-funding principle they represent; as critic-in-chief Justice Clarence Thomas has written, the legal rule prohibiting funding of religious schools "has a shameful pedigree that we [should] not hesitate to disavow . . . . It is [a] doctrine, born of bigotry, [that] should be buried now."7 I have written previously about the background to the Blaine Amendment, arguing that neither the history nor meaning of the Amendment can be easily distilled.8 The Blaine Amendment was a fulcrum in the century-long struggle over the propriety, role, and character of universal public education in America while, at the same time, it served as the capstone of an eight year controversy over the legitimacy of Protestant-oriented public schooling, a controversy that raged along side the parochial school funding question. The Blaine Amendment had as much to do with the partisan climate of the post-Reconstruction era and related concerns about federal power over education as it did with Catholic animus. Included in the mix was a sincere effort to make public education available for children of all faiths and races, while respecting Jeffersonian notions of church-state separation. Those who characterize the Blaine Amendment as a singular exercise in Catholic bigotry thus give short shrift to the historical record and the dynamics of the times.9 This Article will consider the Blaine Amendment from a different, though related, perspective: whether it established or advanced a principle of constitutional significance. The legal controversy over the Blaine Amendment that has taken place over the past two decades has been misplaced. Particularly following the 2002 Cleveland voucher decision (Zelman v. Simmons-Harris),10 attention has turned to state constitutions as setting the rules for state aid to religion.11 The interpretation and even constitutionality of these state provisions have been inextricably tied to the Blaine Amendment.12 But the Blaine Amendment is insignificant as a constitutional event. While the Blaine Amendment is historically and politically significant, it matters little for constitutional purposes. The legal principles the Amendment embraced-nonsectarian public education and a prohibition on state funding of religious education-both predated the Amendment and were not significantly altered by it.13 Contemporary understandings of nonsectarian education and the no-funding principle emerged from the debates over the Blaine Amendment relatively unaffected. In addition, the legal connection between the Blaine Amendment and a majority of the state no-funding provisions-I will resist referring to them as "Baby Blaines"-is uncertain at best. To be sure, twenty-two states adopted no-funding provisions in their constitutions during the fifty years following the defeat of the Blaine Amendment. …