Retired Hamline School of Law Professor Mary Jane Morrison presented her paper, “Dictionaries, Newspapers, and ‘Blaine Amendments’ in State Constitutions in the 21st Century,” at the University of St. Thomas School of Law’s Journal of Public Law and Policy “50 States Under God Symposium” on April 19. The paper will be published later this year.
The symposium featured speakers who discussed the history of religious liberty rights included in various state constitutions and their application to modern day issues. Morrison's paper notes several of the evidentiary claims about the historical context of “Blaine Amendments” in state constitutions. The label “Blaine Amendments” applies to clauses that entered state constitutions in the last quarter of the nineteenth century to ban use of state money to support private sectarian schools. A prominent gloss on the history of the adoption of those clauses is that they stemmed from an anti-Catholic bias, and some twenty-first century constitutional litigation has claimed this historical legacy as a basis for invalidating the clauses. But what role should private bias play in constitutional law when large groups of Americans express that bias in public arenas about identifiable segments of the population? What evidence, if any, ever is sufficient proof of bias to be a factor in constitutional analysis of laws of that era? Even assuming an anti-Catholic bias should have resulted in the late nineteenth century in invalidating those clauses on constitutional grounds, should that old bias have a similar invalidating tail for those clauses on constitutional grounds more than a century later? In exploring answers to these questions, this paper employs existing federal constitutional doctrine and decisions only for the purpose of illustrating possible lines of analysis under state constitutions about clauses in those state constitutions.