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The question has sometimes been raised, "What if the Blaine Amendment Had Passed?" However, referring to "the" Blaine Amendment ignores that there were actually two different versions of the Amendment, one easily passed by the House (but with most Republicans abstaining) and the other narrowly rejected by the Senate (which Republicans supported and Democrats either opposed or abstained on).

Here is some background on the Blaine Amendment(s). Unless otherwise stated, all the facts and quotations are from Michael F. Holt's *By One Vote: The Disputed Presidential Election of 1876* (Lawrence, Kansas: University Press of Kansas, 2008).

***

In September, 1875, President Ulysses Grant, speaking to a reunion in Iowa of the Army of the Tennessee, gave a speech that was to define what Republicans hoped would be a major issue of the 1876 campaign:

"If we are to have another contest in the near future of our national existence, I predict that the dividing line will not be Mason and Dixon's, but between patriotism and intelligence on the one side, and superstition, ambition, and ignorance on the other. Now the centennial year of our national existence, I believe, is a good time to begin the work of strengthening the foundations of the structure commenced by our patriotic forefathers one hundred years ago at Lexington. Let us all labor to aid all needful guarantees for the security of free thought, free speech, a free press, pure morals, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion. Encourage free schools, and resolve that not one dollar appropriated for their support shall be appropriated to the support of any sectarian schools. Resolve that neither the State nor the nation, nor both combined, shall support institutions of learning other than those sufficient to afford to every child growing up in the land the opportunity of a good common-school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the church, and the private school supported entirely by private contributions. Keep the church and the state forever separate." http://books.google.com/books?id=pOYvAAAAMAAJ&pg=PA155

This speech shows how wrong Henry Adams was to label Grant a "baby politician." Grant had seized on a potentially strong issue. Republicans in California, Iowa, Wisconsin, Ohio, New Jersey, and New York had already vowed, in the words of the Californians "that any effort to divide the school fund for the purpose of supporting sectarian schools with a portion thereof shall be met with all the resistance in our power." Everyone knew, of course, that "sectarian schools" meant Roman Catholic parochial schools.

Why do I say that this was potentially a strong issue for the GOP?

First, they had virtually nothing to lose by raising it, since the Catholic vote was overwhelmingly Democratic. On other issues, like the money issue, a position that helped in one section could hurt in another--a demand for prompt specie resumption, and an attempt to label the Democrats inflationists, could help the GOP in the East and with Liberal Republicans--but hurt the Republicans with western farmers. The "school issue" was popular with Protestants of all sections.

Second, it is not as though Republicans were creating a straw man for political purposes. Catholics in many northern states had in fact petitioned for state funding of Catholic schools, and politicians who championed the Catholics' position were almost always Democrats. (Yes, William Seward, a Whig and later a Republican, had taken a pro-Catholic position on the school funds issue before the ACW, but that was in the distant past. Seward's "pro-Catholic" reputation in any event had been a major reason he did not win the Republican presidential nomination in 1860, and by the mid-1870's Seward was dead, and hardly any Republicans took a "Sewardite" position on aid to Catholic schools.) Republicans considered republicanism to rest upon an informed electorate, which could only be guaranteed by public schools, not "sectarian" ones. Thus, Republicans argued, the Catholic Church and the Democrats who pandered to it were undermining not only public schools but free government itself.

Third, the school issue could help Republicans regain the votes of anti-Grant Liberal Republicans (or "Independents" as they increasingly called themselves). For example, in 1875, the Oregon Independents' state platform declared that "we oppose any division of the public school funds for sectarian purposes." In September, 1875, the New York Liberal Republicans vowed that "appropriation of the people's money for sectarian purposes must cease."

Fourth, unlike nativism, anti-Catholicism could appeal to many immigrants, especially German Protestants and Freethinkers. Rutherford Hayes' narrow victory over the Democrat William Allen for the Ohio governor's race in 1875 owed much to German non-Catholic support on the schools issue. (Grant's speech may have been intended to help Hayes. So was his decision not to come to the rescue of the Mississippi Republican governor Ames, whose government was on the verge of being toppled by white-supremacy Democrats who were terrorizing blacks who dared to vote. As Grant later told Mississippi's African American Congressman John Lynch, he had been on the verge of sending federal troops to support Ames, when a delegation of Ohio Republicans came to tell him that if he did so, Hayes would certainly lose to Allen, and Ohio would be sure to vote Democratic for president in 1876. Grant could count: Mississippi had only eight electoral votes, Ohio, twenty-two. Without Ohio, the Republicans' chances of retaining the presidency were dim. So Grant reluctantly decided that the interests of Mississippi's African Americans had to be sacrificed. After all, the Republican government in Mississippi could never survive a Democratic presidential victory in 1876, anyway. Once again, we see how wrong it is to underestimate Grant's political sophistication.)

In any event, the school issue was vital in the Republicans' surprising political comeback in some crucial northern states in 1875--I say "surprising" because after all the depression that had started in 1873 and had hurt the Republicans so badly in 1874 was not going away, and neither was the issue of corruption in the Grant administration. Naturally, Republicans began thinking of ways to incorporate Grant's proposals into the Constitution. Congressman James Blaine, considered the front-runner for the 1876 presidential nomination, introduced an amendment into the US House of Representatives to this effect, and President Grant in his December 1875 annual message to Congress endorsed the idea of such an amendment. Blaine argued that the Democrats could keep the school issue out of the campaign by agreeing to his amendment, and at least one Democrat urged doing so: former Senator William M. Gwin wrote to the nation's leading Democratic newspaper, the New York *World*, that the Democrats should "take the wind out of the sails of the Grants & Blaines, who wish to make this school question an issue against the Democratic party in the approaching Presidential election." (Holt, p. 67)

The House Democrats, however, thought that there were more urgent priorities (like investigating the corruption in the Grant administration), and delayed action on the amendment until August 1876, by which time both parties had chosen their national tickets. On August 4, the Democrats reported Blaine's proposed amendment from the House Judiciary Committee which had unanimously agreed to it, with one minor and one major addition. The key sentence in Blaine's amendment, which the Democrats kept, was: "and no money raised by taxation in any State, for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect [the committee inserted the words "or denomination'], nor shall any money so raised, or lands so devoted be divided between religious sects or denominations."

But then the Committee's Democratic majority added the following language: "This article shall not vest, enlarge, or diminish legislative power in the Congress." It is quite easy to see the purpose here: it was a slap at the "centralization" that the Republicans had allegedly imposed on the country by providing in the Thirteenth, Fourteenth, and Fifteenth Amendments for Congress to have the power to enforce those amendments through "appropriate legislation." Republicans protested that the Democrats' language would make the amendment a nullity by denying Congress the power to enforce it, but the Democrats had the votes, and they passed their version of the amendment by a vote of 180-7, with 98 Congressmen--including almost all Republicans--abstaining.

Governor Hayes, viewing the situation from Columbus, urged the Republican-controlled) Senate not to accept the Blaine amendment in the form in which the House had passed it. Indeed, in a letter to Senator John Sherman, Hayes made a number of criticisms of the House version, some of them applicable to Blaine's original language, as well as to the Democrats' revision: "Schools are aided in New York and other places by appropriations from public funds, which are plainly sectarian in character. Those funds...may be from taxation for general purposes. The thing to be prohibited is not merely a *division of school funds* but the application of *any public* money to the sectarian schools." Hayes then urged that Republicans amend the House version in the Senate, adding the usual language about Congress's enforcement powers (note that Blaine's original version did not contain any such language--it was silent on the powers of Congress). "If the House refuses to concur, it will make an issue which will destroy all chances of Democratic success in the fall."

Sherman passed Hayes' letter on to New Jersey Senator Frederick Frelinghuysen, who had already noted these loopholes. Frelinghuysen complained about the House version's leaving the federal government powerless to enforce the ban on state aid to "sectarian" schools, but said that "a more serious objection" was that

"The amendment only applies to a school-fund, and prohibits its being appropriated to schools under denominational control. There is not a word in the amendment that prohibits public money from being appropriated to theological seminaries, to reformatories, to monasteries, to nunneries, to houses of the Good Shepherd, and many kindred purposes. We know that in one State within a decade $1,200,000 was voted Protestant institutions for which the Catholics of the country were taxed, and we know that in the same period several millions of dollars were voted to Catholic institutions for which Protestants were taxed. [It seems that in objecting to taxing Catholics for Protestant institutions as well as Protestants for Catholic ones, Frelinghuysen is trying to answer critics who portrayed the Blaine Amendment as mere anti-Catholic bigotry.--DT]

"Besides, sir, even in reference to schools this amendment only prohibits appropriating the school-fund to denominational schools. It does not by any means forbid appropriations from the Treasury generally even to denominational schools..."
http://books.google.com/books?id=J4wEAAAAYAAJ&pg=PA174

Senator Oliver Morton of Indiana summarized Republican objections when he said the House version of the amendment had so many holes "that you can drive an omnibus through it."

The Republican-dominated Senate Judiciary Committee proposed a substitute amendment on which the Senate voted on August 17, over strident Democratic protests. It read as follows:

"Article XVI.--No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property and no public revenue of, nor any loan of credit by or under the authority of, the United States, or any State, Territory, District, or municipal corporation, shall be appropriated to or made or used for the support of any school, educational or other institution under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creed or tenets of any religious or anti-religious sect, organization, or denomination shall be taught. And no such particular creed or tenets shall he read or taught in any school or institution supported in whole or in part by such revenue or loan of credit; and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization, or denomination, or to promote its interests or tenets. *This article shall not be construed to prohibit the reading of the Bible in any school or institution;* [my emphasis--DT] and it shall not have the effect to impair rights of property already vested.

Sec. 2. Congress shall have power, by appropriate legislation, to provide for the prevention and punishment of violations of this article."
http://books.google.com/books?id=J4wEAAAAYAAJ&pg=PA176

The sentence which I have emphasized was bound to infuriate Catholics; everyone knew that Bible-reading in the public schools meant reading the King James version of the Bible, which Catholics considered theologically unacceptable. Hence the pretensions of the amendment to religious neutrality were (in this version) thinner than ever.

Anyway, the Republicans lacked a two-thirds majority in the Senate, and the substitute amendment failed by a vote of 28 to 16. Every Republican vote was in the affirmative, and all Nays were cast by Democrats. It is interesting, though, that 27 senators did not vote because they were absent, paired, or abstained. Obviously some Democrats did not want to be on record casting an "anti-public schools" vote, even if they wanted the substitute amendment to fail. And since it did fail, the House Democrats did not have to vote No on the Senate amendment and hand the Republicans the election, as Hayes had hoped. Still, Hayes was philosophical, saying that it was not important to pass the amendment before the election: the important thing was that the public now saw the difference between the Senate version and the House version, and he thought they would prefer the Senate version. Well into the fall, Hayes considered "the School or Catholic question" a winner for Republicans. He was probably wrong. By passing something that was in substance pretty close to Blaine's original amendment (after all, Blaine had made no reference to congressional powers, and the Democrats' language said that the amendment would not "vest, enlarge, *or diminish*" the powers of Congress) the House Democrats probably got themselves off the hook with most voters.

So let's just say that the Senate Republicans had agreed to go along with something similar to the House version, except that (1) as in OTL it would be tightened up to ban *all* government aid to "sectarian" schools, not just divisions of the public school fund, and (2) it would revert to Blaine's original silence about congressional power. (It is probably unrealistic to expect the Senate Republicans to accept the House Democrats' language, which seemed an insult to the Civil War and Reconstruction Amendments--after three amendments giving Congress the power to enforce them by appropriate legislation, this new amendment specifically *denies* that it vests any such power!) Even leaving aside whether there may be implied congressional power, the amendment could be enforced by the courts (though Frelinghuysen argued that taxpayers' suits would take too long). If just a couple of Senate Democrats who opposed the OTL Senate version (or even a few who abstained) went along, it would pass the Senate, and would the House Democrats then dare to reject it? After all, Protestants still far outnumbered Catholics, even in most Democrats' constituencies.

If such a compromise amendment passes and it contains the Senate's specific protection of Bible-reading, we have the interesting consequence that *more* religion would be allowed in public schools than under current Supreme Court precedents applying the Establishment Clause to the states via the Fourteenth Amendment. Another point is that the Senate version's prohibition of aid to any *anti*-religious "sect, organization, or denomination" could lead to a great deal of litigation, with religious groups objecting to alleged secular humanist influences in the public schools. (Yes, they do so object in OTL, but rarely prevail in court; they might have more success in this ATL...) Indeed, Senator Randolph of New Jersey gave the prospect of endless litigation as a reason why he could not support the Senate Judiciary Committee's version: "The amendment proposed by the Judiciary Committee is an altogether different affair from that the people have asked for or the press discussed. It opens, if adopted, many grave questions, good enough for the welfare of the legal profession, but bad enough for the body-politic. It will leave in doubt much that is now deemed settled, and, as it seems to me from the hasty perusal I have been able to give to the paper to-day, instead of disposing of a vexed question, taking it out of politics and contention, its main result, if it is not its object, will be to arouse anew, and unnecessarily, an element of discord." http://books.google.com/books?id=J4wEAAAAYAAJ&pg=PA176

Whether such a compromise could pass is doubtful in any event: the Republicans seemed more interested in embarrassing the Democrats than in actually getting an amendment enacted.

Thoughts?
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