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Levitt Fellow Joseph Jansen '07 Interpreting Clauses in Bill of Rights

Examining Establishment and Free Exercise Clauses

By Lisbeth Redfield
Posted August 20, 2006

Almost a year ago, Joseph Jansen '07 took a State and Local Politics class with Professor of Government Ted Eismeier. For the class, Jansen wrote a paper about the effect of the Supreme Court on Federalism as regards religion. "It interested me," Jansen said, and as a result, he found himself applying for and receiving a Levitt Fellowship to research the progression of the understanding and interpretation of the Establishment and Free Exercise Clauses from the colonial period to the modern era. He is advised by Eismeier.

The Bill of Rights states that "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof." The first clause of the sentence is known as the Establishment Clause; the second as the Free Exercise Clause. Together the two of them make up one of the Constitution's most important amendments.

The main topic of Jansen's paper was to chart the history of the two clauses and comprehend the "original understanding" of it. For this investigation, he took an historical approach, examining views of the bill in the colonial period and tracing from there the modern conception of the separation of church and state.

Our Constitution is rooted in the theory of Federalism, or that the government unites and represents the states while they remain sovereign. The clauses themselves were originally a Federalist creation, phrased in such a way as to leave the choice of religion to the state (that the state would choose a religion was, in the late 1700s, assumed). "Congress shall make no law," says the amendment. The state legislature, however, may.

This interpretation remained in place until after the Civil War. The 14th amendment, ratified in 1868, requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions. Many historians feel that it was at this point that the Supreme Court began to interpret laws to apply the Bill of Rights to the states. "Any question regarding religion has to be given to the courts…[and] power is taken away from the states," Jansen explained. This drift became clearer as the 18th century progressed and Nativist anti-Catholic influence pushed to keep immigrant influences out of government. Jansen stopped his investigation at 1947, when the Supreme Court specifically applied the Establishment Clause to the individual states.

Jansen did his research from his home in Ilion, N.Y. – "I think I went to every library in the area," – which was probably a good thing, since he was also working two jobs and preparing for his LSATs. His work was based mainly on secondary sources: histories of the Establishment Clause, Supreme Court cases, and other academic works.

Finishing his first summer of research, Jansen said that it has been a "great experience." He plans to use this work as the basis for a senior honors thesis in government which will deal with the actions of the Supreme Court in the last 50 years and the way it interplays with Federalism. Jansen hopes to go to law school after graduating from Hamilton. On campus, he works at the Writing Center and is the tour guide coordinator. He is a former vice-president of the Republican Club and a member of the Christian Club.

The grant which funds his work is the Levitt Research Fellowship, awarded by the Arthur Levitt Public Affairs Center. This grant is intended to fund research in a public affairs issue and allows a student to spend 10 weeks working closely with a faculty advisor.

-- Lisbeth Redfield


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