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Forgotten Purposes of the First Amendment Religion Clauses

Published online by Cambridge University Press:  05 August 2009

Gary D. Glenn
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Extract

This study questions a prevalent view of the First Amendment religion clauses which maintains they were intended to establish neutrality of the federal government between religion and nonreligion and thereby to establish not merely governmental religious pluralism but governmental secularism. Since the Bill of Rights is said to have been adopted to satisfy anti-Federalist objections to the original Constitution, what they said about religion in the ratification debates is comprehensively examined. They turn out to have been primarily concerned that the unamended Constitution was particularly dangerous to and tilted against religion. Hence they wanted not simply to prevent the new government from infringing on “religious liberty” (of individuals or states) but to redress the unamended Constitution's actual or potential tilt against religion. The First Congress debates are then examined from this rather different perspective to see what effect this concern may have had on the First Amendment religion clauses. It is argued that this concern produced a more complex constitutional position on religion and religious liberty than is commonly maintained. This position is not simply Madison/Jefferson separationism but a compromise which to some extent redressed the original Constitution's tilt against religion.

Type
Research Article
Information
The Review of Politics , Volume 49 , Issue 3 , Summer 1987 , pp. 340 - 367
Copyright
Copyright © University of Notre Dame 1987

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References

Notes

1 A convenient summary of this reading is in Levy, Leonard W., The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), chaps. 6 and 7.Google Scholar

2 See Wisconsin v. Yoder 406 US 205 (1972).Google Scholar Yoder constitutionally exempted Amish children from compulsory state school attendance laws on free exercise grounds. The strictest separationists on the Court concurred in this decision. Sherbert v. Verner, 347 US 398 (1963)Google Scholar, which the Court's “strict separationists” supported though it clearly amounted to some sort of state aid for a particular religion, held that denial of unemployment compensation benefits for Seventh Day Adventists fired for religious objections to working on Saturday violated free exercise. Similar cases were People v. Woody, 394 P. 2nd 813 (1964)CrossRefGoogle Scholar, In Re Jenisen, 125 N. W. 2nd 58 (1963)CrossRefGoogle Scholar, Sheldon v. Fannin, 221 F. Supp. 766 (1963)Google Scholar, United States v. Seeger, 380 US 163 (1965)Google Scholar (upholding congressional exemption from military service for religiously based conscientious objection) and Welsh v. United States, 398 US 333 (1970)Google Scholar (upholding such exemption even for those whose conscientious objection was explicitly not religiously based).

3 The Court has explicitly acknowledged this paradox. See Brennan, J. (concurring) in Abington v. Schempp: Google Scholar “The logical interrelationship between the Establishment and Free Exercise Clauses may produce situations where an injunction against an apparent establishment must be withheld in order to avoid infringement of rights of free exercise” (374 US 247, 296ff [1963]). Stewart, J. (dissenting) in Schempp: Google Scholar “there are areas in which doctrinaire reading of the Establishment Clause leads to an irreconcilable conflict with the Free Exercise Clause” (ibid., 309). Burger, C. J. in Walz v. Tax Comm'n: Google Scholar “The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other” (397 US 664, 668–69 [1970]). See Smith, Michael, “The Special Place of Religion in the Constitution,” Supreme Court Review (1983): 83–124.CrossRefGoogle Scholar

4 Since 1878 the Court has relied on Madison, 's Memorial and Remonstrance on Religious Assessments (1785)Google Scholar, Jefferson, 's Act for Establishing Religious Freedom Google Scholar (proposed 1779 and passed 1785), and Jefferson's metaphor “a wall of separation between Church and State” (1802), as authoritative guides to the clause's meaning. In Reynolds v. United States, 98 US 145 (1878)Google Scholar, Chief Justice Waite said that, since Jefferson's “wall” metaphor came “from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured.” In Everson V. Bd. of Educ., 330 US 1 (1947)Google Scholar, the Court first comprehensively considered the establishment clause and the main support for both sides and all three opinions was Madison, 's Memorial.Google Scholar “Rutledge thought it so important that he appended it to his dissent” (Brant, Irving, The Bill of Rights: Its Origin and Meaning [New York: Bobbs Merrill, 1965], p. 410).Google Scholar In McGowan v. Maryland (1961)Google Scholar Chief Justice Warren said. “The Court has considered the happenings surrounding the Virginia General Assembly's enactment of ‘An act for establishing religious freedom’ … written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, and as particularly relevant in the search for First Amendment meaning” (366 US 420, 437). In Abington v. Schempp (1963)Google Scholar, Justice Brennan (concurring) calls Madison, and Jefferson, “the architects of the First Amendment,”Google Scholar referring specifically to the religion clauses. “What Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, …” (374 US at 234).

5 The following is a representative sample of previous studies which deal with the founding of the religion clauses. Levy, , Establishment Clause (1986).Google Scholar Curry, Thomas, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986).Google Scholar Malbin, Michael J., Religion and Politics: The Intentions of the Authors of the First Amendment (Washington: American Enterprise Institute, 1978).Google Scholar Berns, Walter, The First Amendment and the Future of American Democracy (New York: Basic Books, 1976).Google Scholar Brant, Irving, Bill of Rights Google Scholar; and “Madison: On the Separation of Church and State,” William and Mary Quarterly (1951).Google Scholar Corwin, Edward S., The Constitution and What It Means Today, rev. ed. Chase, Harold and Ducat, Craig (Princeton: Princeton University Press, 1978).Google Scholar Pfeffer, Leo, Church, State and Freedom, rev. ed. (Boston: Beacon, 1967).Google Scholar Stokes, Anson Phelps, Church and State in the United States, 3 vols. (New York: Harper, 1950).Google Scholar O'Niell, James, Religion and Education under the Constitution (New York: Harper, 1949).Google Scholar

6 The anti-Federalists represented a certain diversity of positions on the religion issue in the ratification debates. While all of them who addressed the issue feared that the new Constitution was dangerous to “religion,” there was not complete unanimity on what the endangered “religion” was (e.g., Protestantism, Christianity, or simply belief in a Creator). Nor was there one unified anti-Federalist position in the ratification debates on what should be done about the Constitution's nonreligious and alleged antireligious tilt.

7 The Virginia Baptists, egged on by Patrick Henry, became famous for opposing the Constitution on this ground. For Henry see speeches in the Virginia ratifying convention in Elliott, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols. (New York: Burt Franklin, 1888), 3, 5 06 1788, 44 Google Scholar; 12 June, 317–18; 14 June, 445, 448; 15 June, 462; 24 June, 587–93. On the Baptists see Madison, James Sr. to Madison, James Jr., 30 01 1788 Google Scholar, in Rutland, Robert and Hobson, Charles eds. The Papers of James Madison (Chicago: University of Chicago Press, 1977), 10:446 Google Scholar; Spencer, Joseph to Madison, , 28 02 1788 Google Scholar, ibid., 541 and fn. 2; Randolph, Edmund to Madison, , 29 02 1788 Google Scholar, ibid., 542–43. Other anti-Federalists who argued for a bill of rights generally, and protecting religion or religious rights in particular, were Thomas Tredwell in the New York ratifying convention 2 July 1788, Elliott, 2: 396ff esp. 399.CrossRefGoogle Scholar Martin, Luther, Reply to the Landholder, 21 03 1788 Google Scholar, in Farrand, Max, ed. The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1966), 3: 289ff esp. 290.Google Scholar Abbott, Henry in the North Carolina ratifying convention 30 07 1788 Google Scholar, Elliott, , 4:191–92.Google Scholar William Lancaster, ibid., 212ff esp. 215. “Denatus” in the Virginia Independent Chronicle, 11 06 1788 Google Scholar, reprinted in Storing, Herbert J., ed. The Complete Anti-Federalist 7 vols. (Chicago: University of Chicago Press, 1981), 5:263.CrossRefGoogle Scholar For other anti-Federalist demands for a bill of rights in general see Storing, 's citations in 7:12–13.Google Scholar

8 Jefferson, to Madison, , 20 12 1787 Google Scholar, in Madison Papers, 10:336–37.Google Scholar Jefferson was almost alone, among supporters of the Constitution, in arguing that a bill of rights was necessary to substantively improve the Constitution. On Madison, see below pp. 346–48.Google Scholar

9 “The Articles of Confederation” in Commager, Henry Steele, ed., Documents of American History 4th ed. (New York: Appleton, 1948), p. 115.Google Scholar

10 The Government of Nature Delineated by “Aristocrotis” (Carlisle, PA, 03–04 1788)Google Scholar in Storing, 3:205–07.Google Scholar See also Tredwell, Thomas, Elliott, , 2:396ff.Google Scholar

11 See Webster, Noah, An Examination into the leading principles of the Federal Constitution … (Philadelphia: Prichard and Hall, 10 10 1787)Google Scholar in Ford, Paul Leicester, ed., Pamphlets on the Constitution of the United States (New York: Da Capo, 1968), pp. 55–59 Google Scholar; and “Elihu” in the Hartford, , Connecticut American Mercury, 18 02 1788 Google Scholar, quoted in Storing, , 4:249.Google Scholar

12 “Letter from a Customer” in the Portland, Maine, Cumberland Gazette, 03 1788 Google Scholar, reprinted in Storing, , 4:202.Google Scholar Storing says this is “a very characteristic Anti-Federal persuasion.”

13 See note 20.

14 Printed in Meyers, Marvin, ed., The Mind of the Founder: Sources of the Political Thought of James Madison (Hanover, NH: University Press of New England, 1981), p. 7.Google Scholar

15 For an interesting example extending it to the Gentoo (Hindu) religion of the East Indies see James Iredell in the North Carolina ratifying convention, 30 July 1788, Elliott, , 4:197–98.Google Scholar Iredell, a Federalist, did not oppose the “no religious test” clause but thought “in administering an oath, it is only necessary to inquire if the person who is to take it, believes in a Supreme Being, and in a future state of rewards and punishments.”

16 “ David, ,” Massachusetts Gazette, 7 03 1788 Google Scholar, in Storing, , 4:248.Google Scholar See also “A Friend to the Rights of the People,” 8 02 1788 Google Scholar (New Hampshire), ibid., p. 242. Samuel, , (Boston) Independent Chronicle and Universal Advertiser, 10 01 1788 Google Scholar, ibid., pp. 195–96. Iredell (note 15) is the only Federalist I have found who shared this view.

17 “David,” p. 248.Google Scholar Cf. Wilson, Zachias in the North Carolina ratifying convention, 30 07 1788 Google Scholar, Elliott, 4:212.CrossRefGoogle Scholar This argument follows Locke. “We cannot find any Sect that teaches expressly, and openly, that men are not obliged to keep their Promise; … But nevertheless, we find those that say the same things, in other words. What else do they mean, who teach that Faith is not to be kept with Hereticks? … I say these have no right to be tolerated.” “That Church can have no right to be tolerated by the Magistrate, which is constituted upon such a bottom, that all those who enter into it, do thereby, ipso facto, deliver themselves up to the Protection and Service of another Prince” ( Locke, John, A Letter Concerning Toleration, ed. Tully, James H. [Indianapolis: Hackett, 1983], pp. 49–50).Google Scholar

18 Abbott, Henry, in the North Carolina ratifying convention, 30 07 1788 Google Scholar, Elliott, , 4:191–92.Google Scholar Cf. Lusk, Major in the Massachusetts ratifying convention, 30 01 1788 Google Scholar, Elliott, , 2:148.Google Scholar

19 “Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary” printed in Miller, Hunter, ed., Treaties and Other International Acts of the United States of America (Washington: Government Printing Office, 1931), 2:365.Google Scholar This language is quoted by “strict separationists” as supportive of their view of what the founding generation thought they had done in the First Amendment.

20 Martin, Luther, The Genuine Information … (Maryland, 12 1787–February 1788)Google Scholar in Storing, , 2:75.Google Scholar “A Friend to the Rights of the People.” Amos Singletary in the Massachusetts ratifying convention, 19 January 1788, Elliott, , 2:44.Google Scholar Calhoun, Patrick in the South Carolina ratifying convention, 18 01 1788 Google Scholar, Elliott, , 4:312.Google Scholar “Aristocrotis,” pp. 205–07.Google Scholar “David,” p. 247.Google Scholar See Henry Abbott. See also Major Lusk. Caldwell, David in the North Carolina ratifying convention, 30 07 1788 Google Scholar, Elliott, , 4:199.Google Scholar See also “A Proposal for Reviving Christian Conviction” in the Virginia Independent Chronicle, 31 10 1787 Google Scholar, Storing, , 5:126.Google Scholar In arguing that atheists cannot be trusted to keep an oath, these anti-Federalists were following Locke. “Those are not at all to be tolerated who deny the Being of a God. Promises, Covenants, and Oaths, which are the Bonds of Humane Society, can have no hold upon an Atheist. The taking away of God, tho but even in thought, dissolves all” Locke, , Toleration, p. 51.Google Scholar

21 “A Friend to the Rights of the People”; “ David, ,” pp. 246–48Google Scholar continued that without “publick provision for religion” people “have no restraint but laws of their own making” and that when a religious foundation for morality is removed “a government of mere force must arise.” “ Aristocrotis, ,” p. 207.Google Scholar Madison rejected the political utility of religion for fostering civic virtue in Federalist Papers, No. 10, ed. Cooke, Jacob. (New York: World, 1965), p. 61.Google Scholar In a letter to Jefferson, 24 10 1787 Google Scholar, a virtual draft of Federalist, No. 10, which was published one month later, he goes further. “Religion. The inefficacy of this restraint on individuals is well known. The conduct of every popular Assembly, acting on oath, the strongest of religious ties, shows that individuals join without remorse in acts against which their consciences would revolt, if proposed to them separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other passions is increased by the sympathy of a multitude…. Even in its coolest state, it [religion] has been much oftener a motive to oppression than a restraint from it” ( Madison Papers, 10:213–14).Google Scholar

22 “A Friend to the Rights of the People”; “ David, .” p. 247.Google Scholar “ Samuel, ,” pp. 195–96.Google Scholar “ Aristocrotis, ,” 206–207 Google Scholar (at least by implication). Martin, Luther, Storing, , 2:75.Google Scholar The only supporter of the Constitution known to me who made this argument was William Williams of Connecticut. See Storing, , 4:248.Google Scholar

23 “ Samuel, ,” pp. 195–96Google Scholar (quoting I Samuel, 15:23).Google Scholar

24 Jones, Colonel, in the Massachusetts ratifying convention, 31 01 1788 Google Scholar, Elliott, 2:119.CrossRefGoogle Scholar

25 Caldwell, David; “David,” p. 248 Google Scholar. Charles Turner, said to be “unquestionably the ablest and most dignified, as well as one of the most sincere, opponents of the new government” (Samuel Bannister Harding quoted in Storing, , 4:217)Google Scholar argued in the Massachusetts ratifying convention that “without the prevalence of Christian piety and morals, the best republican Constitution can never save us from slavery and ruin.” Turner voted for ratification while urging the new government to eariy recommend to the states “the institution of such means of education, as shall be adequate to training up the children and youth at large, in that solid learning, and in those pious and moral principles which are the support, the life and SOUL of the republican government and liberty …” (ibid., p. 221). See also “A Proposal for Reviving Christian Conviction.” “Denatus” (Virginia), 11 06 1788 Google Scholar Storing, , 5:263–64.Google Scholar

26 “ Aristocrotis, ,” p. 206.Google Scholar

27 “A Friend to the Rights of the People,” p. 242 Google Scholar. Lancaster, William in the North Carolina ratifying convention, 30 07 1788 Google Scholar, Elliott, , 4:215 Google Scholar. Zachias Wilson, ibid., p. 212. Cf. David Caldwell.

28 Martin, Luther, (Maryland) Storing, 2:75 Google Scholar. “ David, ” (Massachusetts) pp. 246–48Google Scholar. “ Samuel, ” (Massachusetts), pp. 195–96Google Scholar. “A Friend to the Rights of the People” (New Hampshire), p. 242 Google Scholar. Singletary, Amos, in the Massachusetts ratifying convention, 19 01 1788 Google Scholar in Elliott, , 2:44 Google Scholar. Jones, Colonal William, 31 01 1788 Google Scholar, ibid., pp. 119, 120. Lusk, Major T., 4 02 Google Scholar ibid., p. 148. Abbott, Henry in the North Carolina ratifying convention, 30 07 1788 Google Scholar, Elliott, , 4:192 Google Scholar. David Caldwell, ibid., p. 199. Zachias Wilson, ibid., p. 212. William Lancaster, ibid., p. 215. “ Aristocrotis, ” (Pennsylvania), pp. 206–207.Google Scholar

29 Levy, , Establishment Clause, p. 115; cf. p. 84.Google Scholar

30 Ibid., p. 89.

31 Randolph, Edmund to Madison, James 29 02 1788 Google Scholar, Madison Papers, 10:543.Google Scholar

32 “Aristocrotis,” pp. 207–208.Google Scholar

33 Storing, Herbert J.. “The Constitution and the Bill of Rights” in Taking the Constitution Seriously, ed. McDowell, Gary L. (Toronto: Kendall/Hunt, 1981), p. 269.Google Scholar

34 The speech is in Madison Papers, 12:197ffGoogle Scholar, see especially pp. 198 and 200. The amendment is on 202. “The most valuable …” is on p. 344.Google Scholar

35 Jefferson, to Madison, , 20 12 1787 Google Scholar, Madison Papers, 10:336–37.Google Scholar

36 Madison, to Jefferson, , 17 10 1788 Google Scholar, ibid., 11: 297. Jefferson, responded to this concern 15 03 1789.Google Scholar “A positive declaration of some essential rights could not be obtained in the requisite lafitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can” (ibid., 12: 14).

37 For example, “Aristocrotis.”

38 Madison Papers, 10:336.Google Scholar Wilson's speech was published in the Pennslyvania Gazette, , 17 10 1787.Google Scholar The clause of the Articles of Confederation to which Jefferson refers is: “Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled.”

39 Madison Papers, 11:297.Google Scholar

40 Madison Papers, 13:380.Google Scholar

41 12 June 1788, Madison Papers, 11:130–31.Google Scholar

42 Levy, , Establishment Clause, p. 89.Google Scholar

43 Madison Papers, 11:xviii, 301–04.Google Scholar

44 Notes on the State of Virginia, ed. Peden, William (Chapel Hill: University of North Carolina Press, 1955), Query XVII, 159.Google Scholar

45 No records of the Committee deliberations are extant. This lack of records complicates understanding the development of the Bill of Rights as a whole. Accordingly, one should acknowledge that all interpretations of the Bill of Rights are even more problematic than interpretations of the unamended Constitution. But we can seek the best interpretation of the available evidence. Levy, (Establishment Clause, pp. 187–89)Google Scholar summarizes available sources and their limitations but ignores the debates on ratification of the unamended Constitution. He evidently does so because “from the tens of thousands of words exchanged during the ratification controversy on the subject of a bill of rights no illumination can be gained as to the understanding and content attached at that time to particular rights” (p. 67). This study disagrees regarding religious liberty.

46 Annals of Congress, 15 08 1789, pp. 757–59.Google Scholar Reprinted in Stokes, , 1:541–43, quotation 542.Google Scholar

47 Madison Papers, 12:339 Google Scholar; Cong. Register 2:195 Google Scholar; Stokes, 1:543.Google Scholar

48 Constitution of 1783 (New Hampshire), Articles IV–V printed in Stokes, , 1:429.Google Scholar

49 United States Statutes (Boston: Little, Brown, 1845), 1:50–53 Google Scholar, quotation, 52.

50 I Annals of Congress, 766 Google Scholar and in other copies of the Annals 775.Google Scholar

51 Levy, , Establishment Clause, p. 81.Google Scholar

52 Elliott, , 1:335.Google Scholar

53 Brant, Irving, “Madison: On the Separation of Church and State,” William and Maty Quarterly (1951), 15.CrossRefGoogle Scholar Emphasis added.

54 Senate Legislative Journal, ed. De Pauw, Linda Grant (Baltimore: Johns Hopkins University Press, 1972), p. 136 (hereafter SLJ).Google Scholar

55 The Oxford English Dictionary gives the primary meaning of secularism as “The doctrine that morality should be based solely on regard to the well being of mankind in the present life, to the exclusion of all considerations drawn from belief in God or in a future state.” The word as “a definitely proposed system of belief,” promulgated by Holyoake, G. J. (1817–1906)Google Scholar, is first cited as appearing in 1851.

56 SLJ, p. 151.Google Scholar

57 As Malbin, suggests, Religion and Politics, p. 13.Google Scholar

58 Four state ratifying conventions had recommended amendments to protect religion or religious freedom. New Hampshire's language was “Congress shall make no laws touching religion, or to infringe the rights of conscience” ( Elliott, , 1:326).Google Scholar Virginia, North Carolina and Rhode Island proposed almost identical amendments containing the definition of religion from Virginia, 's Declaration of Rights Google Scholar and Madison, 's Memorial and Remonstrance: Google Scholar “Religion or the duty which we owe to our Creator, and the manner of discharging it …” ( Elliott, , 3:659 Google Scholar [Virginia]; 4:244 [North Carolina]; 1:334 [Rhode Island]. Insofar, then, as the First Amendment religion clauses are to be construed as intended to meet demands of the state ratifying conventions, this evidence suggests that “religion” is to be construed to exclude nonbelief in a Creator towards whom men have duties.

59 SLJ, p. 166.Google Scholar

60 See pp. 26ff.

61 Levy, , Establishment Clause, pp. 106–107.Google Scholar

62 House of Representatives Journal, ed. DePauw, Linda Grant (Baltimore: Johns Hopkins University Press, 1977), p. 228 (hereafter HRJ).Google Scholar SLJ, pp. 186, 189–90.Google Scholar

63 Brant, , “Madison: On Separation of Church and State,” p. 16.Google Scholar

64 Levy, , Establishment Clause, pp. 95–97.Google Scholar It only “seems” compatible because at least the “No State” amendment clearly manifested a Madison-Federalist intention for government to “support” or “protect” rights of conscience.

65 Proposed Amendments to the Constitution Relating to School Prayers, Bible Reading etc. House Doc. 30–5280, 88th congress, 2nd Session (Washington: Government Printing Office, 1964), p. 34.Google Scholar Levy, , Establishment Clause, pp. 82–84.Google Scholar

66 The only explanation advanced by “separationists” to explain the Senate acquiescence is that “the House would not be satisfied with merely a ban on preference of one sect or religion over others” ( Levy, , Establishment Clause, p. 83).Google Scholar This explanation does not explain the Senate's acquiescence.

67 Besides the four states mentioned in note 58, New York and South Carolina, had passed language concerning religion, Elliott, , 1:328, 325.Google Scholar

68 The most elaborate statement of what this establishment clause secularism means is Neuhaus, Richard John, The Naked Public Square: Religion and Democracy in America (Grand Rapids: Eerdmans, 1984).Google Scholar

69 Federalist Papers (1965), pp. 64–65.Google Scholar For his ratification speech see Madison Papers, 11:130–31 and above pp. 348–49.Google Scholar

70 Federalist Papers (1965), pp. 64–65.Google Scholar

71 HRJ, p. 232.Google Scholar SLJ, p. 197.Google Scholar

72 See Brant, , “Madison: On Separation of Church and State,” p. 23.Google Scholar

73 This same Congress not only had passed the Northwest Ordinance (supra p. 351) but later established chaplains in both Houses and in the armed services. See Douglas, Justice (concurring) in Engel v. Vitale 370 US 437 (1962).Google Scholar The interpretation proposed here makes sense of these actions and of the long list of similar actions which subsequent Congresses took in support of religion. Douglas notes these actions in a footnote in Engle at 437 Google Scholar and nevertheless declared them “an unconstitutional undertaking whatever form it takes.”