Earlier this month, on the Fourth of July, our nation celebrated the 225th anniversary of its independence, declared in a document that was grounded in an appeal to nature and nature’s God and founded upon the self-evident truths that we are all equally created by God and that we endowed by Him with certain inalienable rights. The Declaration of Independence was not the only public document of that era that recognized mankind’s relationship with its Creator. Most of the States, in the preambles to their constitutions, thanked God for securing liberty for the people of the State and requested his continued protection.

Our founders also recognized that only a virtuous people would deserve the continued blessings of liberty that had been bestowed upon them. Moreover, virtually all of our nation’s founders believed that a virtuous people was a necessary pre-condition for self-government, and that virtue could not be had or sustained without religion. President Washington, for example, noted in his Farewell Address that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." Benjamin Rush was even more blunt: "Where there is no religion, there will be no morals."

These opinions were codified in the constitutions and ordinances of the day. The Massachusetts Constitution of 1780 exemplified the common sentiment: "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality." The famous Northwest Ordinance, enacted by the Continental Congress in 1787 and re-enacted by the very first Congress, similarly declared: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

Of course, since about the middle of the past century, the connection between religion and the public schools has been severed, with the predictable result that our public schools today too often fail in their most important task of inculcating moral virtue in the next generation of citizens, even when they succeed in outfitting our children with useful job and other skills. As Martin Luther King, Jr. once noted, "education which stops with efficiency may prove the greatest menace to society. The most dangerous criminal may be the man gifted with reason but with no morals."

Several state legislatures have recognized the shortcomings of the current situation and have attempted to reassert their core state police power to regulate the health, safety, and morals of the people by offering to parents of children in failing public schools an opportunity, via a tuition tax credit or voucher, to choose for their children a different path. For many, that path includes expressly religious schools, which unabashedly provide the very kind of education that our founders thought so essential to the continued vitality of this self-governing republic. One such program in Cleveland, Ohio was struck down by the 6th Circuit Court of Appeals last December, and the petition for a writ of certiorari is currently pending before the Supreme Court. Because the high Court in 1999 took the rare step of issuing a stay of the district court’s order enjoining Cleveland from implementing the tuition assistance program, it is widely believed that the Court will take the case, Simmons-Harris v. Zelman, finally to address directly the constitutionality of school voucher programs that incidentally benefit religious schools.

Of course, even if the Court upholds the constitutionality of the Cleveland program, many students will be left behind in public schools that have been barred by a half century of prior Supreme Court decisions from instructing our children in the most basic foundational principles of our nation merely because those principles rest on a recognition that our equality and inalienable rights are derivative of the fact that we are equally created by God. It is for that reason that former Attorney General Edwin Meese and I have, in an amicus curiae brief, urged the Court to consider in addition whether a strict separationist view of the Establishment Clause amounts to an improper interference with the core state responsibility of regulating the health, safety and morals of the people.

It is an important federalism question addressed to a Court that has in recent years taken federalism more seriously than it has been taken in a long time. If, as is likely, the language of the First Amendment’s Establishment Clause — "Congress shall pass no law respecting the establishment of religion" — was intended not just to prohibit Congress from erecting a national church but to prevent the federal government from otherwise interfering with state support of religion, the full application of the Establishment Clause against the states is nonsensical; it has permitted the federal government, via the courts, to do the very thing the First Amendment was designed in part to prevent. Worse, this jot-for-jot incorporation of the Establishment Clause has deprived the states of their most effective tool for performing what is arguably their most important function — educating the next generation of our youth in the kind of moral virtue that our founders thought so essential for the perpetuation of our institutions. The intervening years have proved Benjamin Rush’s prediction all too true: "Where there is no religion, there will be no morals." The Supreme Court can aid the process of restoring morality to our public life by upholding the Cleveland program not only if it was enacted despite its incidental benefit of religion but even if the program’s purpose was to further religious instruction. Benjamin Rush and the rest of his founding colleagues would all rest a little easier, and so will we.

Dr. Eastman is a professor of constitutional law at Chapman University School of Law, the Director of the Claremont Institute Center for Constitutional Jurisprudence, and an adjunct fellow at the Ashbrook Center for Public Affairs at Ashland University. "First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2001 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.