Blaine Amendment

2011-12-01 10:31:49

The Blaine Amendment was a proposed 1876 amendment to the U.S. Constitution.

Introduced by Congressman James G. Blaine in December 1875, the amendment sought to apply the First Amendment’s religion clauses directly to state actions, prohibit the disbursement of public funds for parochial education, and, as revised by the Senate, forbid the exclusion of the Bible from the nation’s public schools. Congress debated the measure during the heat of the 1876 summer presidential campaign, an election overshadowed by a resurgent Democratic Party and the inevitable demise of federally mandated southern reconstruction. Blaine’s proposal passed a Democrat-controlled House of Representatives by an overwhelming margin, but fell four votes short in the Senate of being submitted to the states as the Sixteenth Amendment to the U.S. Constitution.

The Blaine Amendment stands apart in significance from the majority of failed constitutional amendments for three reasons. First, based on the proposal’s express language applying the First Amendment’s religion clauses to state actions, some observers have argued that the proposal, coming eight years after the passage of the Fourteenth Amendment to the Constitution, indicates that members of Congress did not understand the due process or privileges and immunities clauses of that latter amendment to incorporate the rights contained in the Bill of Rights. Opponents of the Supreme Court’s incorporation cases of the mid-twentieth century have used the Blaine Amendment as one of their chief weapons. While there may be some merit to this argument, the Blaine Amendment was much more expressive in its prohibition than the language of the First Amendment (and possibly differed from contemporary understandings of the Establishment Clause). In addition, during the debate on the measure, at least one senator referred to the Supreme Court’s decision in the Slaughterhouse Cases (1873) rejecting the theory of incorporation under the Fourteenth Amendment as a providing a justification for the Blaine Amendment. Consequently, legislators could have believed that the Blaine Amendment was necessary to counteract the erroneous holding of Slaughterhouse.

The Blaine Amendment is additionally significant as the apex of a mid-nineteenth-century controversy over the public funding of private religious schools. The ‘‘School Question’’ or ‘‘School Controversy,’’ as it was popularly called, arose during the 1830s and 1840s following the creation of publicly funded ‘‘common’’ schools. A primary goal of the common schools was to teach republican values and integrate immigrant children into American culture. Increasingly, Catholic immigrants objected to the distinctly Protestant character of the nonsectarian curriculum of most common schools and, in turn, opted to establish Catholic parochial schools in the 1840s and 1850s. Catholic requests for pro rata shares of state school funds were regularly turned down by education officials who generally viewed parochial schools as a threat to the success of the common school movement.

After lying dormant during the Civil War and early Reconstruction years, the School Question rose to prominence as a campaign issue during the 1876 election. Some evidence suggests that Republican officials seized on the funding issue as a way of attracting anti- Catholic and anti-immigrant sentiment while seeking to align the Democratic Party with the Catholic Church. In September 1875, President Grant, hoping for a third term as president, proposed a constitutional amendment to prohibit the public funding of religious schools. James G. Blaine, also seeking the Republican presidential nomination, then introduced the amendment that bore his name:

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, not any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

The Democrat-controlled House of Representatives overwhelmingly passed Blaine’s proposal after attaching a nonenforcement provision. The Republican- controlled Senate removed the nonenforcement provision, expanded the language to prohibit the expenditure of funds derived from any source, and added a provision to preserve the reading of the Bible in the public schools, which favored Protestant interests. During the Senate debates, Democrats charged that the amendment was motivated by anti- Catholicism and would expand federal control over local educational decisions. In the end, the Senate voted along party lines to reject the Blaine Amendment. As a result of the episode, many observers have charged that the Blaine Amendment was motivated primarily by anti-Catholic animus. While anti- Catholicism unquestionably fueled the controversy, the Blaine Amendment episode also implicated larger issues about the federal role in public education and the future and religious character of public schooling.

The Blaine Amendment is also significant for its legacy. Even though Congress failed to pass the Blaine Amendment in 1876, several states subsequently adopted similar non-funding provisions in their state constitutions. In 1889, Congress expressly required the states of Montana, North and South Dakota, and Washington to adopt non-funding provisions in their respective constitutions as a condition for granting statehood. Approximately two-thirds of state constitutions now contain such provisions, usually found in sections governing expenditures for public education that prohibit appropriations for the support of sectarian or denominational schools. These state ‘‘Blaine Amendments’’ have become important because state courts have occasionally interpreted these provisions more strictly than the interpretation given to the Establishment Clause by the U.S. Supreme Court. For example, in 1961 the Alaska Supreme Court interpreted its non-funding provision to prohibit public reimbursement of transportation costs for children to attend religious schools, even though the U.S. Supreme Court in 1947 had upheld the constitutionality of a similar program under the federal Establishment Clause.

More recently, the issue of whether a stricter interpretation of a state non-funding provision might violate the free exercise and equal protection clauses came before the U.S. Supreme Court in Locke v. Davey (2004). Two years earlier, the Supreme Court had ruled in Zelman v. Simmons-Harris that a program that allows publicly financed vouchers to be used for religious school tuition does not violate the federal Establishment Clause. Relying on interpretations of its own constitution, however, Washington State refused to allow a student to use a publicly financed voucher to attend a religious college. The student charged that the Washington rule was unnecessarily restrictive, and that the denial infringed on his rights to free exercise and equal protection of the law. In Locke, however, the Supreme Court affirmed the state’s decision, holding that the First Amendment allowed for ‘‘play in the joints’’ between the establishment and free exercise clauses, and that Washington State was free to interpret its state constitutional provisions independently of interpretations of the federal Establishment Clause.

STEVEN K. GREEN

References and Further Reading

DeForrest, Mark Edward, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, Harvard Journal of Law and Public Policy 26 (2003): 552–626
Garnett, Richard W., The Theology of the Blaine Amendments, First Amendment Law Review 2 (2003): 23–44
Gedicks, Frederick Mark, Reconstructing the Blaine Amendments, First Amendment Law Review 2 (2003): 85–106
Feldman, Noah, Nonsectarianism Reconsidered, Journal of Law and Politics 18 (2002): 65–117
Green, Steven K., The Blaine Amendment Reconsidered, American Journal of Legal History 36 (1992): 38–69
———, ‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle, First Amendment Law Review 2 (2003): 107–52
Hamburger, Philip. Separation of Church and State. Cambridge, MA: Harvard University Press, 2002
McAfee, Ward M. Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s. Albany: State University of New York, 1998
Stern, Mark D., Blaine Amendments, Anti-Catholicism, and Catholic Dogma, First Amendment Law Review 2 (2003): 153–78
Viteritti, Joseph P., Blaine’s Wake: School Choice, the First Amendment, and State Constitutional Law, Harvard Journal of Law and Public Policy 26 (1998): 657–718

Cases and Statutes Cited

Locke v. Davey, 124 S.Ct. 1307 (2004)
Slaughterhouse Cases, 83 U.S. 36 (1873)
Zelman v. Simmons-Harris, 536 U.S. 639 (2002)