The First Amendment and Religious Belief

Author: Russell Kirk

The First Amendment and Religious Belief

by Russell Kirk

THE first clause of the First Amendment to the Constitution of the United States has been singularly little discussed in print in recent years -or, for that matter, since its adoption; but upon it have been based several far-reaching decisions of the federal courts. It is brief and simple: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Nothing, at first glance, could seem more lucid. Yet appreciable confusion persists concerning the precise meaning of these words, and the intention of the authors of the First Amendment of our Bill of Rights.

There are those, for instance, who maintain that this clause is intended to declare the United States indifferent as a nation, to religious institutions-if not positively suspicious of Churches. Some of these persons argue that the "wall of separation" (Jefferson's phrase) between Church and State which the First Amendment of the Bill of Rights implies must, and should, be a barrier to any influence of religious convictions and sanctions upon government, and to any friendly gesture by government toward churches. At best, the attitude of these persons is that of the Yankee farmer in Robert Frost's poem "Mending Wall": "Good fences make good neighbors." (Mr. Frost, incidentally, does not endorse this opinion.)

Now the only sound way to ascertain the meaning of a clause in the Constitution is to look into its history: to ascertain what was meant by its framers, and by the members of Congress who adopted it, and by the people of the states who ratified it, and by the judges who have ruled upon its interpretation. Very briefly, I propose to do that here. And from what knowledge I have of the subject, my general conclusion is that the first clause of the First Amendment was intended to be a protection to religious belief, not a declaration of hostility; that the Congress and the people of the several states so understood it; and that the spirit in which it was made part of the Constitution was not the spirit of the eighteenth-century European "Enlightenment," but rather the expression of American experience in religious toleration and the relationships between Church and State.

Tocqueville, writing in the eighteen-thirties, recognized the primacy of religious conviction in American politics: "Religion in America takes no direct part in the government of society, but it must be regarded as the first of their political institutions; for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all Americans have a sincere faith in their religion- for who can search the human heart?-but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every rank of society."

WHAT was true when Tocqueville traveled in the United States, had been true forty-five years earlier, when the Constitution and the Bill of Rights were framed. The great majority of the founders of the American Republic were professing Christians. (The majority of both the signers of the Declaration of Independence and of the delegates to the Constitutional Convention were Episcopalians, though the Congregationalist and Presbyterian sects both outnumbered the Episcopalians in the population at large.) Deists like Jefferson and Franklin had a small following, so far as their religious opinions were concerned; while the freethinking of Thomas Paine sufficed to make him detestable, in the post- Revolutionary years, to most Americans. The president of the Constitutional Convention, Washington, was a man pious in both the old Roman and the Christian senses of that word; and though that body was an assembly of lawyers, rather than of clergymen, Christianity was so much taken for granted by the framers of the Constitution that there is no mention whatsoever of the subject in the seven articles of the original Constitution; except that religious tests for taking federal office are prohibited.

That the founders of the Republic understood the religious basis of society may be illustrated copiously from their speeches and letters. The wise politician, according to Alexander Hamilton, "knows that morality overthrown (and morality must fall with religion), the terrors of despotism can alone curb the impetuous passions of man, and confine him within the bounds of social duty." John Adams, who detested Hamilton, was a Unitarian, and-for America in that time-a freethinker; but Adams wrote, "Is there a possibility that the government of nations may fall into the hands of men who teach the most disconsolate of all creeds, that men are but fireflies, and that this is without a Father?" If the only alternative is government of atheists, Adams continued, why, "Give us again the gods of the Greeks."

WHAT the statesmen of the young Republic professed, the people at large held quite as earnestly. Madison feared that the zeal of the people for Christianity might lead to intolerance. Aaron Burr's political success was the consequence, in no small part, of the popular knowledge that he was the grandson of a great Puritan theologian, Jonathan Edwards. Jefferson wrote to the Dey of Tunis that the United States "is not a Christian nation"; but he never ventured to say anything of the sort to the electorate The popular hostility toward the Church which was at work in eighteenth- century France; the indifference toward the Church which was common in England-these had no parallel in America. The religious zeal of the seventeenth century, it is true, had abated considerably; but the tolerance of the Colonies on the eve of the Revolution had not lapsed into latitudinarianism.

NOT only was there no hostility toward Christianity in colonial and Revolutionary America, but there was little opposition to Church establishments. In nine of the thirteen colonies, on the eve of the Revolution, some Church was by law established: the Anglican in Virginia, Maryland, the Carolinas, Georgia, and the southern counties of New York; the Congregational in Massachusetts and its dependencies, Connecticut, and New Hampshire. Because of the links between the Church of England and the English crown, the Anglican Church was everywhere disestablished by the end of the Revolution-although the Revolutionary leaders so acted only with reluctance. (At the Virginia Convention of 1776, James Madison was unable to obtain any support whatever for his proposal to disestablish the Church of England.) John Randolph of Roanoke, that passionate Old Republican, could say as late as the eighteen- thirties, "I am not a member of your American Episcopal Church, sir. I am a member of the Church of England, sir-the good old Church of England."

But Congregationalism remained established in Massachusetts, Connecticut, and New Hampshire until the eighteen-thirties-though this was a tolerant establishment, allowing Episcopalians to pay their rates to their own Church, and exempting from Church-rates altogether the Quakers and the Baptists. These established Churches were hard upon only one minority: the Catholics. Colonial governors were instructed to permit liberty of conscience "to all persons except Papists"; and at the time the Revolution commenced, only in Pennsylvania could Masses be celebrated publicly.

SUCH substantially, was the climate of religious opinion when the Jeffersonian faction, in 1788 and 1789, demanded a Bill of Rights to supplement the Constitution signed on September 17, 1788. To insure ratification of the Constitution, Madison and other moderate federalists found it expedient to give way to this demand and prepare a series of constitutional amendments, incorporating the principal rights listed by Jefferson's supporters (soon to take the name of Republicans). Several states drew up declarations of rights to be attached to the federal Constitution; and the declarations of Virginia, North Carolina, and Rhode Island contained identical passages which are the source of the first clause of the First Amendment. They read thus:

"That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others."

FOR the most part, these resolutions were copies of the article on religion (written by Madison) in the Virginia Declaration of Rights (1776). James Madison, indeed, was both indirectly and directly the principal author of the first clause of the First Amendment; he was second only to Jefferson in his opposition to established Churches. Baptized in the Church of England, he had been educated in the Presbyterian college of Princeton; he was much read in theology, but gradually drifted toward Deism, though never going so far as Jefferson and Franklin. Religious toleration was among his principal interests, and he was opposed not merely to any federal establishment of religion, but to the separate state establishments. Though the latter had many adherents, no one of importance desired a national religious establishment; and thus Madison was able to incorporate into the First Amendment the general principles of toleration and impartiality which he had espoused for fifteen years past.

At first, Madison proposed to Congress this draft: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, abridged." It was feared by some that this clause might provide excuse for national interference with the separate established Churches of the several states; and so, at length, the House adopted a substitute proposed by Fisher Ames of Massachusetts, more nearly approximating the present first clause of the First Amendment: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." This, too, appears to have been drafted by Madison. The Senate adopted a version more friendly toward Church establishments. From the conference committee of Senate and House there came, finally, the present first clause of the First Amendment: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Again, Madison appears to have been the author of this version.

AND SO this clause became part of the Constitution, meeting with no serious difficulty in obtaining ratification. (In 1789, it still seemed possible that some of the Southern states might re- establish the Episcopal Church; this was seriously considered by the Virginia legislature.) It satisfied two bodies of opinion: first, the defenders of the established state Churches in New England, and the friends of establishment elsewhere, because it prohibited Congress from disestablishing or otherwise interfering with these state establishments; second, the friends of complete toleration and the foes of any national religious establishment, because it prohibited Congress from entering upon this field at all. By both factions, this clause of the First Amendment was looked upon as a safeguard of religion, not as an act of disavowal.

Madison had long maintained that the union of State and Church could only harm the Church. This was no new doctrine, of course: the separation of Church and State was an ancient doctrine of the Church itself, enunciated by Gelasius at the end of the fifth century: "Two there are by whom this world is ruled." The insertion of this clause in the First Amendment was particularly satisfying to the forlorn minority of American Catholics: it insured that never would they labor under a national Protestant establishment.

I find it somewhat amusing that certain zealots of the Dissidence of Dissent, here in the year 1958, are hinting darkly that there is a Popish Plot to abolish the First Amendment.

HERE in the religious-freedom clause of the First Amendment, then, was no Deistical declaration, no Encyclopedist's rationalistic disavowal of Christianity and the religious basis of politics. What the few words of the clause were intended to convey was, substantially, the article on religion which George Mason wrote for the Virginia Declaration of Rights in 1776, as modified then by Madison: "That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the free exercise of religion, according to the dictates of conscience, unpunished, and unrestrained by the magistrate, unless the preservation of equal liberty and the existence of the State are manifestly endangered. And that it is the mutual duty of all, to practice Christian forbearance, love and charity toward each other."

This doctrine had the sanction of a century and a half of colonial experience in the New World; it embodied what, with very few exceptions, had already become practice in the several states of the new Republic. It owed almost nothing to the theories of the Enlightenment then popular in France. So far as this doctrine was derived from any modern philosopher, it came from Locke-not from Voltaire or Diderot.

THE First Amendment, of course, was binding only upon the federal government, until 1925-when, in the case of Gitlow v. New York, the Supreme Court ruled that the Fourteenth Amendment brought the free-speech and free-press guarantees of the First Amendment within the cognizance of federal courts. In 1940, in the case of Cantwell v. Connecticut, this doctrine was specifically extended, also, to the religious-freedom clause of the First Amendment. Until eighteen years ago, then, the several states, in theory, could have established state Churches and in other ways have regulated religious observance.

Thomas Jefferson, in 1802, wrote a letter in which he argued that the First Amendment was intended to construct "a wall of separation between Church and State." But though doubtless this is what Jefferson desired from the First Amendment, it is by no means precisely what Congress-particularly the Senate-had in mind when it passed the Amendment in 1789; nor was the phrase "wall of separation" employed by Madison or any other advocate of the Amendment.

Justice Story, in his (1833), offered a fuller and more adequate explanation of the purpose of the religious-freedom clause. It was adopted, Story said, because different sects predominated in different states; and "it was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. . . . Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."

A CAREFUL examination of the opinions of the members of the Congress in 1789, and of the public press of that day, confirms Justice Story's opinion: the American Republic approved religious toleration, and left the field of religious establishments solely to the several states; but the American Republic also endorsed the Christian faith. This stand was reaffirmed by Justice Douglas in the Zorach case (1951), when he wrote in the majority opinion:

"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.... To hold that [government may not encourage religious instruction] would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.... We find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."

In certain ways, twentieth-century America observes its religious duties better than eighteenth-century America did. In the eighteenth century, for instance, the number of churchgoers, in proportion to the total population, was lower in the American colonies than in any European state-this was in part, probably, because of the great distances, frequent isolation of communities, and the poverty of the frontier. In the twentieth century, the proportion of churchgoers in America is said to be higher than in any European state.

We have not ceased to be tolerant in religion; but neither have we created a gulf between religious conviction and political practice. The first clause of the First Amendment may have been, like most of the Constitution, a bundle of compromises; but it did succeed, and succeeds still, in expressing the general sense of the declaration of the American nation on the relationship between State and Church. And that sense has not been an arid secularism, hostile toward the religious consecration of the civil social order. "While the law permits the Americans to do what they please," Tocqueville wrote, "religion prevents them from conceiving, and forbids them to commit, what is rash or unjust." The religious freedom reaffirms Gelasius' declaration that "two there are"; but it does not set up those two in fortified camps, at feud.

Taken from the April 1958 issue of "The Catholic World."

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