Free Exercise, Original Intent & the Meaning of Interpretation
In his essay, "Original Intent and The Free Exercise of Religion,"
Joseph Zavaletta, Jr. offers what seems, at first glance, to be a reasonable
view of the methods by which the Constitution ought to be viewed by
the courts of the United States — most particularly the Supreme Court — with
reference to the intention of the Framers. While I find myself in agreement
with his basic argument regarding the tendency of the modern court to
substitute judicial action in areas better suited to the legislative
Zavaletta's approach to the problem of judicial interpretation simply
does not pass constitutional, or historical muster. Zavaletta argues
that "the primary tenets" of his "jurisprudence model are: first, that
natural law as referenced in the Declaration is the primary legal foundation
of American constitutional law,
rights and liberties; and second . . . that 'original intent' is a more
accurate basis for interpreting the Constitution and the Bill of Rights."
Unfortunately, his analysis of the doctrine of original intent, the
authority of the court and the history of free exercise jurisprudence
is fatally flawed.
Original Intent and the Power of the Courts
Perhaps the most problematic aspect of Zavaletta's discourse is in his conception of both the doctrine of original intent and the role of the Supreme Court in the constitutional government of the United States.
Zavaletta tells us that in order to understand the original intent of the Framers
it is necessary to look at the "records of the Constitutional Convention
and the writings of the Framers." Leaving aside the fact that despite
his admonition Zavaletta never cites a discussion held in Convention
in 1787, he attempts to make the case that the Supreme Court was not
intended to be, in fact, the ultimate arbiter of Constitutional questions.
make his case, Zavaletta refers to numerous citations that correctly
assert that of the three branches of government, the judiciary was seen
as the weakest. However, at no point does Zavaletta inform us as
to what the "judicial power" under the Constitution was intended to
be. Indeed, while he cites a portion of Alexander Hamilton's, Federalist,
Number 78, Zavaletta ignores the most trenchant portion thereof. According
interpretation of the laws is the proper and peculiar province of the
courts. A constitution is, in fact, and must be regarded by the judges,
as a fundamental law. It therefore belongs to them to ascertain its
meaning, as well as the meaning of any particular act proceeding from
the legislative body. If there should happen to be an irreconcilable
variance between the two, that which has the superior obligation and
validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of
the people to the intention of their agents.
other words, it is the task of the court to determine which legislative
acts, if any, are in violation of the fundamental law that governs all
others in the United States. As James Madison correctly asserts,
"an unconstitutional law is no law."
In response to those who would claim that such a power would elevate
the judiciary above the legislature, Hamilton points out,
is no position which depends on clearer principles, than that every
act of a delegated authority, contrary to the tenor of the commission
under which it is exercised, is void. No legislative act, therefore,
contrary to the Constitution, can be valid. To deny this, would be to
affirm, that the deputy is greater than his principal; that the servant
is above his master; that the representatives of the people are superior
to the people themselves; that men acting by virtue of powers, may do
not only what their powers do not authorize, but what they forbid.
Hamilton maintains that it is irrational to believe that the legislature
is a competent judge of its own powers and that the courts are necessary
as an "intermediate body" between the people and the danger of legislative
position first posited by Hamilton was incorporated into the corpus
of American jurisprudence by Chief Justice John Marshall in Marbury
v. Madison (1803).
Writing for the Court, Marshall maintains, "It is the province and
duty of the judicial department, to say what the law is." In cases
in which there is "opposition" to the Constitution in legislative acts,
it is necessary that such legislative acts be declared "entirely void."
Coupled with this assertion is the observation that the Supremacy Clause
(Article I, section VI) only declares such legislative acts made "in
pursuance of the Constitution" as valid parts of the law in the United
warns us that "virtually everyone" incorrectly believes "that
the Supreme Court is the ultimate authority on whether a law or policy
is "constitutional." However, this assertion is false. An appeal to
an authority warmly embraced by Zavaletta informs us that the ultimate
interpreter of what the Constitution and the laws mean is, indeed, the
Supreme Court. Justice Joseph Story, who is cited by Zavaletta as "the
father of American jurisprudence," maintains in his Commentaries
on the Constitution of the United States, that in cases that are
amenable to "judicial inquiry and decision," such as those arising
from constitutional questions, "there is a final and common arbiter
provided by the constitution itself, to whose decisions all others are
subordinate; and that arbiter is the supreme judicial authority of the
courts of the Union." Story goes on to tell the reader
that "reasoning from the terms of the constitution, and the known principles
of our jurisprudence, the appropriate conclusion is, that the judicial
department of the United States is, in the last resort, the final expositor
of the constitution, as to all questions of a judicial nature." Furthermore,
"That this view of the constitution was taken by its framers and friends,
and was submitted to the people before its adoption, is positively certain."
fact, it is one of the great ironies that at least one opponent of ratification
cited the fear that the courts would be incapable of determining acts
of the legislature to be invalid one of the weaknesses of the proposed
system. At the Virginia ratifying convention, Patrick Henry observed
that in Virginia:
sir, our judges opposed the acts of the legislature. We have this landmark
to guide us. They had fortitude to declare that they were the judiciary,
and would oppose unconstitutional acts. Are you sure that your federal
judiciary will act thus? Is that judiciary as well constructed, and
as independent of the other branches, as our state judiciary? Where
are your landmarks in this government? I will be bold to say you cannot
find any in it. I take it as the highest encomium on this country,
that the acts of the legislature, if unconstitutional, are liable to
be opposed by the judiciary.
other words, if the Constitution is going to work, Henry tells us, the
courts must have the authority to determine if legislative acts are
consistent with the Constitution.
By definition, the decisions of the Supreme Court become, for all practical
purposes, part of the Constitution — in keeping with the common law tradition
in American jurisprudence. With this in mind, it is shocking to find
Zavaletta making a fundamental error in his analysis with regard to
the manner in which Supreme Court decisions are confronted by the other
branches. The particular instance cited, the response to the Dred Scott
case is both in error and misleading. According to Zavaletta, Abraham
Lincoln, in issuing the Emancipation Proclamation, and Congress, in
authoring the 13th Amendment, confronted the power of the
Supreme Court which demonstrates, he argues, that "a century ago our
leaders believed that both the President and Congress had the Constitutional
authority to pass 'constitutional' laws or orders without waiting for
Supreme Court review." This argument is tied to the assertion that
"(l)egislation is not deemed 'constitutional' until the Supreme Court
Taking the last assertion first, it is really an example of putting the cart before the horse. When legislation is passed by Congress, it is, in fact, considered to be constitutional until the Supreme Court says otherwise. In other words, Zavalletta errs in assuming legislative acts are unconstitutional until the courts grant their approval. Consider the fact that most legislative acts are never considered by the courts in the United States at all — much less by the Supreme Court. It is unreasonable
to think that all legislation, at the national, state and local levels,
must be considered unconstitutional until they pass judicial muster — and
that was never the intent or the practice in the United States.
argument about Lincoln and Congress recommendation of passage of the
13th Amendment is also flawed. The Emancipation Proclamation
did not extend the protection of the laws of the United States to slaves
simply because it only applied to those states and territories beyond
the reach of the United States. In other words, while it was a brilliant
move of propaganda, it had little effect on the persons for whom it
was intended. As for the 13th Amendment, there are only
two ways a Supreme Court decision can be undone.
First, a subsequent Supreme Court can overturn and earlier decision.
The most obvious example is Brown v. Board of Education of Topeka
(1954), which vacated the decision taken by the Supreme Court in
Plessy v. Ferguson (1895). The second method by which
a Supreme Court decision can be overturned is by the process of amendment.
And in amending the Constitution, the approval of the Supreme Court
is not required. Neither is the amending of the Constitution a "confrontation"
with the Supreme Court, but is rather a recognition of the legitimacy
of the power of the court.
Free Exercise Clause Misconstrued
First Amendment jurisprudence dealing with religion, there are fundamentally
two questions that are raised in keeping with the dual phrases dealing
with religion. The first question is to what degree can the state be
involved in the religion and religious activities of the citizen? The
second, is to what degree can religion be involved in the activities
of the state? In the first instance we are dealing with questions of
religious exercise. In the second we are dealing with the establishment
clause. The distinction will become important, because in his discussion
of "free exercise," Zavaletta has an unfortunate tendency to conflate
the two clauses.
maintains that Thomas Jefferson's letter to the Danbury Baptists in
which Jefferson alluded to the First Amendment as "building a wall of
separation between church and state," has been misconstrued by succeeding
generations. Indeed, according to Zavaletta, Jefferson "clearly did
not intend the modern notion of an impenetrable wall preventing individuals
from religious expression." To which the question must be asked: where
and when have individuals been prevented from religious expression in
the United States?
Zavaletta seems more than a bit unclear about his position on the subject.
Once again he cites Jefferson to the effect that the "power . . . to
assume authority in religious discipline" has not been "delegated to
the general government. It must then rest with the States." The problem
with this citation, taken in conjunction with the previous one is that
the Danbury Baptists were writing specifically with regards to the power
of the state to regulate religious observances. In the portion of the
letter not cited by Zavaletta, the Baptists recognize "that the President
of the United States, is not the national legislator" and that "he cannot
destroy the Laws of each State; but our hopes are strong that the sentiments
of our beloved President, which have had such genial affect already,
like the radiant beams of the Sun, will shine and prevail through all
these States and all the world till Hierarchy and Tyranny be destroyed
from the Earth." In other words, they are asking
for Jefferson to use his influence to reduce restrictions imposed by
Zavaletta then moves into the conflation of free exercise and establishment
under the rubric of First Amendment jurisprudence. In particular, Zavaletta
construes the incorporation of the establishment clause in Everson
v. Board of Education of Ewing Township (1947), to be that of the
free exercise clause. Furthermore, Zavaletta seems shocked — rather like
Louis when he discovers gambling at Rick's in Casablanca — that
the Supreme Court would apply the Bill of Rights, in particular the
First Amendment to the states.
Everson, the Supreme Court upheld a tax that existed to provide
bus service to take children to and from parochial schools in New Jersey.
The Supreme Court held that the tax in question did not support the
establishment of religion since its sole purpose was to provide
transportation "safely and expeditiously to and from accredited schools." In his discussion of "free exercise,"
Zavaletta pointedly ignores the case by which the free exercise clause
was incorporated to the states, Cantwell v. Connecticut (1940),
in which the right of a Jehovah's Witness to distribute literature
on a city street was upheld. In other words, in the case that incorporated
"free exercise," the right to the exercise of religion was actually
expanded contrary to the wishes of the state.
his citations of Lee v. Weisman (1992) and Zorach v.
Clauson (1952), Zavaletta is once
again dealing, not with questions regarding the free exercise of religion,
but rather the degree to which the state and its functionaries can mandate
religion. In Lee, the issue was whether or not a school asking
for the delivery of a prayer at graduation linked the state with the
promotion of a particular religious view. In the opinion of the Supreme
Court, it did, Justice Scalia's interesting dissent notwithstanding.
In Zorach the court upheld release time for public school
students to attend religious instruction off public school because it
was not a violation of the establishment clause. It is difficult to
see how establishment cases in which religious activity is allowed are
somehow proof that the Supreme Court has upset the proverbial apple
cart when it comes to free exercise.
while it is a neat rhetorical trick to include Scalia's dissent in O'Hare
Truck Service, Inc. v. City of Northlake (1996) — after all
who could resist repeating the phrase "secret knowledge" — but the case
itself has no relationship to either the free exercise clause or the
establishment clause. The issue in O'Hare revolved around free speech
and association and government contracts — not religion! It is a false
analogy that violates the rules of logic and reasonable argument.
Zavaletta's recitation of cases to support his claim that the Supreme
Court has trampled on free exercise rights only works if one is not
familiar with the content of the cases themselves. For example, in
his endnotes, Zavaletta presents a series of cases by which that he
contends demonstrate the triumph of the court's reasoning in Everson. Unfortunately, with the exception of being related in so far as they are cases that deal with religion, they are tenuous with regard to their direct applicability under the terms Zavaletta would have us understand. Each case represented state mandated religious activities being imposed upon children in public schools. As such, each case deals, not with the free exercise clause, but once again with the establishment clause.
In an interesting twist on his own argument, Zavaletta condemns the Supreme Court's ruling in Boerne v. Flores (1997) in which the Religious Freedom and Restoration Act was declared unconstitutional. It is interesting in so far as Justice Scalia seems somehow to have availed himself of the "secret knowledge" regarding constitutionality since he was part of the majority along with Chief Justice William Rehnquist. The issue in Boerne v. Flores was whether or not a church could violate an otherwise legitimate law under the color of "free exercise." The city of Boerne had denied a building permit for the expansion of a church in its historic district, since such construction would violate its zoning ordinances. Ultimately, the problem with the RFRA was that it redefined the meaning of the First Amendment. The Court held that Congress had overreached in seeking to define almost any activity undertaken as "free exercise" as legitimate. Scalia, himself, in a concurring opinion, notes that "the most plausible reading of the 'free exercise'
enactments" is that "(r)eligious exercise shall be permitted so long
as it does not violate general laws governing conduct."
the outset of his essay, Zavaletta tells us that he is going to demonstrate
two things: First, there is a "natural law" that serves as the primary
foundation of American constitutional law. And second, original intent
must be followed if we are to understand what the Constitution means.
To demonstrate his point, Zavaletta then turns to what he terms "free
exercise" jurisprudence to show the error of our ways.
am of the opinion that there is, indeed, a "higher law" background to
American constitutional law. One can trace the development of the thread
of natural law back to the ancient Greeks. Antigone, when confronted
by Creon informs him that his proclamation that Oedipus would not be
buried was a violation of "God's ordinances, unwritten and secure." Aristotle reflects
upon it with his contention in The Politics that "he who asks
law to rule is asking God and intelligence an no others to rule; while
he who asks for the rule of a human being is importing a wild beast
too." Aristotle's assertion
would be passed on to through the Stoics, to Cicero, to John of Salisbury,
to Harrington, to Algernon Sydney and then to the Framers of the Constitution.
As Edward Corwin, historian of the Constitution and the Supreme Court
observes, " the legality of the Constitution, its supremacy, and its
claim to be worshipped, alike find common standing ground on the belief
in a law superior to the will of human governors." The problem is
that Zavaletta does not bother to make the argument that such a rule
exists, or that the Supreme Court is under any obligation to follow
the dictates of the "unwritten law."
even beyond the problem of the failure to establish the existence of
a higher law to which the Constitution itself owes fealty is the problem
of original intent and the role of the judiciary as envisioned by the
Framers of the Constitution. We have seen that the intention of the
Framers, as expressed in both The Federalist and in Justice Story's
explication of the structure of the Constitution was, in fact, for the
Supreme Court be the final arbiter regarding the constitutionality or
unconstitutionality of acts that proceeded from the legislative body.
However, the doctrine of "original intent" itself is fraught with difficulties.
Put simply, if the Constitution is as clear as those who advocate original
intent seem to think, then why did Hamilton and Jefferson have such
a profound disagreement as to its meaning?
there is the question of First Amendment jurisprudence in light of the
issues raised. We have seen that Zavaletta's argument rests upon somehow
making decisions regarding the establishment clause to be applicable
through some form of judicial legerdemain to the free exercise clause.
But even if we accept that Zavaletta's contention that establishment
equals free exercise and vice versa is true, it does not mitigate against
the fact that his contention that the government has some form of obligation
under the Constitution to promote religion is without merit on the basis
of arguments advanced by the Framers themselves.
support his contention that government has a positive obligation to
promote religion, Zavaletta cites a passage from George Washington's
"Farewell Address." Washington tells us that "(o)f all the dispositions
and habits which lead to political prosperity, Religion and morality
are indispensable supports."
However, this advice is that "of a parting friend." At no point in
the address does Washington assert either what kind of "religion" is
necessary for political prosperity, or that it is the government's obligation
to seek to inculcate religious principles into the people at large.
Indeed, the idea that government would somehow take the obligation for
religious instruction upon itself would be seen as anathema to Washington.
According to Washington, "every man, conducting himself as a good citizen,
and being accountable to God alone for his religious opinions, ought
to be protected in worshipping the Deity according to the dictates of
his own conscience." 
Note the hero of the War for American Independence does not say "according
to the dictates of the government" or that the government has any responsibility
other than to protect the rights of individuals.
ends on a pessimistic note: "While our forefathers left us a legacy
of faith, optimism and shared values, the Court has forced us to leave
our children a moral wasteland littered with the refuse of cynicism,
despair and anarchy." Personally, I prefer to consider James Madison's
relative optimism. Near the end of his life Madison noted that with
regard to religious liberty:
the general progress within the two last centuries in favour of this
branch of liberty, & the full establishment of it, in some parts
of our Country, there remains in others a strong bias towards the old
error, that without some sort of alliance or coalition between Government
& Religion neither can be duly supported. Such indeed is tendency
to such a coalition and such its corrupting influence on both parties,
that the danger cannot be too carefully guarded against. And in a Government
of opinion, like ours, the only effectual guard must be found in the
soundness and stability of the general opinion on the subject. Every
new & successful example therefore of a perfect separation
between ecclesiastical and civil matters, is of importance. And I have
no doubt that every new example, will succeed, as every past one has
done, in shewing that religion & Government will both exist in
greater purity, the less they are mixed together.
most surveys show that Americans tend to be among the most religious
people in the world — in part, perhaps, because the courts have kept the
government out of the business of religion.
 See Christopher Wolfe, The Rise
of Modern Judicial Review: From Constitutional Interpretation to
Judge-Made Law (New York: Basic Books, 1986).
 This is a dubious proposition as presented.
In order to make this true, one would have to ignore the clear language
of the Declaration itself. The Declaration tells us what it is and
its purpose: to announce the severing of political ties between the
states of North America and Great Britain and the reasons for that
severance (on this subject see Willmoore Kendall and George W. Carey,
The Basic Symbols of the American Political Tradition (Baton
Rouge: Louisiana State University Press, 1970)). It was not until
the Gettysburg Address that the Declaration began to take on the aura
which we attribute to it (see Garry Wills, Lincoln at Gettysburg:
The Words that Remade America (New York: Simon and Schuster,
 It is interesting to note that this
method runs contrary to that advocated by Justice Antonin Scalia.
Scalia is a proponent of "textualism" and "originalism" which eschews
consulting external sources, but rather relies upon the meaning of
the words themselves in context. The question is whether or not a
given intepretation is "reasonable" in light of the text itself.
See Antonin Scalia, A Matter of Interpretation (Princeton:
Princeton University Press, 1992). Furthermore, James Madison himself
argued that the ratification debates were more instructive than the
debates in Convention. See Max Farrand, ed. Records of the Federal
Convention of 1787, (New Haven: Yale University Press, 1937)
4 vols., III, 374.
 Alexander Hamilton, James Madison and
John Jay, The Federalist. Available on-line at http://www.mcs.net/~knautzr/fed/fedindex.htm.
 James Madison, The Mind of the
Founder: Sources of the Political Thought of James Madison, revised
ed., edited with introduction and commentary by Marvin Myers (Hanover:
University Press of New England, 1981), p. 436
 The Federalist, No. 78.
 Marbury v. Madison, 1 Cranch (5
U.S.) 137. Available on-line at http://www.bowdoin.edu/~sbodurt2/court/cases/marbury.html
 Jonathan Eliot, The Debates in
the Several State Conventions on the Adoption of the Federal Constitution
as Recommended by the General Convention at Philadelphia, in 1787,
2nd edition, 5 volumes (Philadelphia: J.B. Lippincott,
1896), III, 325
 Implicit in Zavaletta's argument
is that there can be an unconstitutional amendment — which, of
course, would be an oxymoron.
 Both the letter from the Danbury
Baptists and Jefferson's response are available at http://w3.trib.com/FACT/1st.jeffers.2.html.
 The "doctrine of incorporation" is
a process by which selected portions of the Bill of Rights are deemed
by the Supreme Court to applicable to the state and local governments
under the rubric of the 14th Amendment. The test is whether
or not such rights "are among the fundamental rights and 'liberties'
protected by the due process clause of the 14th Amendment
from impairment from the states" (Gitlow v. New York, 268
U.S. 652; available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=268&invol=652.
 Everson v. Board of Education
of Ewing Township, 330 U.S. 1 (1947), available on-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=330&invol=1.
 Cantwell v. Connecticut, 310
U.S. 96 (1940), available on-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/310/296.html.
the expansion of free exercise see Jones v. Opelika, 319 U.S.
103 (1943), Murdock v. Commonwealth of Pennsylvania, 319 U.S.
105 (1943), Martin v. Struthers, 319 U.S. 141 (1943), Douglas
v. City of Jeannette, 319 U.S. 157 (1943), West Virginia State
Board of Education v. Barnette, 319 U.S. 583 (1943) Follet
v. McCormick, 321 U.S. 573 (1944), March v. Alabama, 326
U.S. 401 (1946), Niemotko v. Maryland, 346 U.S. 268 (1951),
Fowler v. Rhode Island, 345 U.S. 67 (1953), Torcaso v.
Watkins, 367 U.S. 488 (1961), Sherbert v. Verner, 374
U.S. 398 (1963), Winter v. Miller, et. al., 404 U.S. 985 (1971),
Wisconsin v. Yoder, 406 U.S. 205 (1972), McDaniel v. Paty,
435 U.S. 618 (1978),
 Lee v. Weisman, 505 U.S. 577
(1992), on-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/505/577.html
 Zorach v. Clauson, 343 U.S.
306 (1952), on-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/343/306.html.
 Illinois ex. rel. McCollum v.
Board of Education, 333 U.S. 203 (1948). On-line at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=333&invol=203.
court struck down a "release time" program in Illinois schools since
the religious instruction was held during school hours, on school
property using, in the words of the majority opinion, "the State's
compulsory school machinery."
Engel v. Vitale, 370 U.S. 421 (1962). On-line at
first of the school prayer cases that is most often misrepresented
by those who think jurisprudence in church-state relations is too
intrusive. At issue was a prayer recommended by the New York
State Board of Regents. The problem was, from the perspective of
the 8:1 majority that "in this country it is no business of the government
to compose official prayers for any group of the American people to
recite as part of a religious program carried on by the government."
Abington School District v. Schemp, and Murray v. Curlett,
374 U.S. 203 (1963). On-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/374/203.html.
The state of Pennsylvania had a statutory requirement that
the school day begin with a reading from the King James version of
the Bible and the City of Baltimore School Board had required either
a reading of Bible chapter "and/or the Lord's Prayer" at the beginning
at each school day (contrary to Zevelatta's assertion, neither of
the two cases dealt with "voluntary school prayer"). In a 144 page
opinion, the Supreme Court held that both practices violated the
establishment clause. In the opinion of the court, "The place
of religion in our society is an exalted one, achieved thourhg a long
tradition of reliance on the home, the church and the inviolable citadel
fo the individual heart and ming. We have come to recognize through
bitter experience that it is not within the power of the government
to invade that citadel, whether its purpose or effect be to aid or
oppose, to advance or retard."
In Stone v. Graham, 449 U.S. 39 (1980), Zevaletta correctly
asserts that the posting of the Ten Commandments was disallowed by
the Supreme Court. The Court held that the posting of the Commandments
in public schools served no educational function, but was rather intended
to inculcate a sense of veneration. The really interesting thing
about Zevaletta's commentary, however, is the observation that the
Supreme Court chamber has the Ten Commandments on the wall. Also
in the Chamber is the Code of Hammarabi — do we have a problem if we
post that instead of the Ten Commandments?
 Boerne v. Flores, 95-2074
(1997), on-line at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/000/95%2D2074.html
 Sophocles, Antigone , 2nd
edition, translated with an Introduction by David Grene (Chicago:
University of Chicago Press, 1991), 495 (page 178).
 Aristotle, The Politics, translated
by T.A. Sinclair, revised and re-presented by Trevor J. Saunders (New
York: Penguin Books, 1992) 1287a30, page 126.
 Edward Corwin, The "Higher Law"
Background of American Constitutional Law (Ithaca: Cornell
University Press, 1961) page 5. Those interested in the "natural
law" background of the Constitution would be advised to see this volume
in addition to Ellis Sandoz's excellent book A Government of Laws:
Political Theory, Religion and the American Founding (Baton Rouge:
Louisiana State University Press, 1989).
 On this subject see "Natural Law,
the Constitution, and the Theory and Practice of Judicial Review,"
in Vital Remnants: America's Founding and the Western Tradition,
edited by Gary L. Gregg, II (Wilmington: ISI Books, 1999), pp. 151-174.
 On the subject of original intent
see Jack N. Rakove, Original Meanings: Politics and Ideas in the
Making of the Constitution (New York: Alfred A. Knopf, 1997);
Jack N. Rakove, ed., Interpreting the Constitution: The Debate
over Original Intent (Boston: , 1990); and Joseph M. Lynch,
Negotiating the Constitution: The Earliest Debates Over Original
Intent (Ithaca: Cornell University Press, 1999).
 George Washington, "Farewell Address,"
in George Washington: A Collection compiled and edited by
W.B. Allen (Indianapolis: Liberty Classics, 1988), p. 521
 Washington, "To the United Baptist
Churches in Virginia, May 10, 1789," in George Washington: A Collection,
 James Madison, Letter to Edward Livingston,
July 10, 1822, in The Mind of the Founder: Sources of the Political
Thought of James Madison, pp. 340-341 (emphasis added)