The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

John first quoted the following paragraph from my post:

>> And the reason for this sophistical sleight of hand is readily apparent: While the Declaration contains four “religious” references (“God”, “Creator”, “Supreme Judge” and “Divine Providence”), the document on which our government is actually founded — the Constitution — contains no reference to a “god” of any kind and mentions “religion” only for the purpose of denying to the government entirely the power to legislate with respect thereto. <<

John’s further comments, with my interpolated responses, continued:

That is not what the Constitution states. It states that the Fed gov will have no power with respect to ‘the establishment of religion’ – That article was inserted at the demand of those who were afraid that the Federal government would DISESTABLISH the then established religions in several colonies. It says nothing about denying the government of any other power with respect to religion.

To be precise, on the subject of religion, the First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ….”

The second of those two provisions (“no law … prohibiting the free exercise thereof”) does exactly what you suggest, John — it prevents the “disestablishment” of the then existing religions in the colonies. That being the case, however, your interpretation of the First Amendment would render the first restriction (“no law respecting the establishment of religion”) either meaningless or redundant.

It is a fundamental precept of legal and constitutional analysis that a court must not interpret a law so as to render any part of it meaningless, unless there is no other reasonable interpretation. Furthermore, there is neither a logical nor an historical reason for concluding that the authors of the constitution intended to say the same thing twice; or to include therein a meaningless provision.

That being the case, the proscription against laws “establishing” religion must be something other than, as you suggest, a proscription against “disestablishment” of religion. Read together, the two provisions prevent the government from either promoting or restricting religion. Thus, as I said, they deny government the power to legislate at all with respect to religion.

In fact Congress very soon legislated to provide religious support in the Northwest territories for Indians.

The so-called “Northwest Ordinance” to which you apparently refer, was passed on July 13, 1787, by the Confederation Congress, which governed the nation under the Articles of Confederation. This preceded the ratification of the U.S. Constitution by two years, though it was affirmed by Congress under the new Constitution on August 7, 1789.

It did not, however, provide “religious support in the Northwest Territories for Indians”. The provision of Article III of the Ordinance which addressed the subject reads as follows:

Religion, Morality and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall be forever encouraged.”

Read properly, this provision actually encourages support for “schools and the means of education”, and cites “religion” only as one of the reasons for doing so. What’s more, neither the Confederation Congress nor the Constitutional Congress provided, in furtherance of this provision, any financial assistance to churches in the Northwest Territory.

For a more detailed discussion of the Northwest Ordinance and its purported support for religion, see this webpage:

http://candst.tripod.com/nwo1b3.htm

Of course Congress set up its own chaplains and chaplains in the armed forces.

It was also the Continental Congress, not the Constitutional Congress, which established chaplains for both the congress itself and the armed services. A good argument can be made that both and particularly the congressional chaplains are themselves unconstitutional and should have been abolished upon adoption of the US Constitution.

In this opinion regarding the congressional chaplains, I am joined by no less an authority than James Madison, who wrote the First Amendment and regarding the appointment of Congressional chaplains said:

“Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In the strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?”

In the last 10 years or so especially there have been more and more books and articles by historians having a new look at the large role of religion not only in the colonies but in the United States prior to the Civil War.

It would be disingenuous to argue that religion played no role in the colonization of the Americas, the formation of the country and/or American history prior to the Civil War. On the other hand, I am unclear what this comment is intended to suggest regarding proper interpretation of the First Amendment. I am an adherent to the Hugo Black standard for interpreting the First Amendment (“no law” means … “no law“). While he expressed that opinion with respect to the freedom of speech provision of the amendment, there is no logical reason for reading the freedom of religion provisions any differently. Furthermore, nothing which happened after the First Amendment was adopted can have any bearing on what the framers meant when it was written.

Any number of revisionist historians, primarily those on the religious right, have made and promoted the false claim that the U.S. was founded as a Christian nation. It was not and no “new look” at the history of the country is going to change that fact. The U.S. Constitution is a secular document which by its terms neither promotes nor restricts the exercise of religion in general or any specific religion in particular.

For a good discussion of this issue, see:

http://www.nobeliefs.com/Tripoli.htm

The Constitution does prohibit a religious test with respect to election or appointment of government officials because of course at that time the population consisted of very strongly believing people adhering to a variety of religions and of course they were afraid of government conferring preference on any one as the British government of course did with its acts excluding Catholics and as several colonies had done during the 17th – 18th centuries.

So it does. Article VI, section 3, of the Constitution reads as follows: …no religious test shall ever be required as a qualification to any office or public trust under the United States.”

This provision, of course, is the only reference to religion in the Constitution as originally proposed and was written before the Bill of Rights was even conceived. It is therefore an important indicator that the framers of the Constitution intended to keep religion out of the new government.

As I note the Constitution does not state government should have NO ROLE in religion but even if it did the reverse is not a corollary. The colonists practiced and expected to practice very strong application of their religious beliefs to their political decisions and policies.

We obviously disagree, John, in our interpretation of what the First Amendment means with respect to religion. Mine is based, in part, on the opinions of two of the Founding Fathers as to what it meant to them: Madison, who is often called the Father of the Constitution and was the primary author of the Bill of Rights, and Thomas Jefferson, who was the primary author of the Declaration of Independence.

Jefferson, in an 1802 letter to the Danbury Baptists, said: “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their ‘legislature’ should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State.”

In addition to the comment quoted above regarding congressional chaplains, Madison often wrote of the separation of church and state. In an 1819 letter to Robert Walsh, Madison referred to the First Amendment as providing “total separation of the church from the state.”

In Annals of Congress, Sat Aug 15th, 1789 pages 730 – 731, Madison provided a summary of his understanding of the religion clauses of the First Amendment, stating: “Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience, or that one sect might obtain a pre-eminence, or two combined together, and establish a religion to which they would compel others to conform.”

And, in his exposition “Monopolies Perpetuities Corporations Ecclesiastical Endowments”, Madison reaffirmed his position: “Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.” (italic emphasis added)

They continued to do so for decades.

Note, John, the emphasized clause of the last Madison quote above, which makes reference to exactly the kinds of actions by congress and other political leaders on which you and others rely to support the argument that religion has a proper constitutional role in our government. James Madison would beg to differ.

For instance the abolitionist movement was championed largely on religious grounds by religiously motivated individuals and groups. History shows that religious belief has played a very strong role in American politics.

As for the abolition of slavery, one need not rely on religious belief to conclude that slavery was wrong and ought to have been abolished (never mind that many, if not most, slave owners — and later most members of the Ku Klux Klan — were “Christians”). Nor was the institution of slavery a “religion”. Hence, reliance on religious beliefs as a foundation for opposing slavery did not constitute enforcement of religion on the unwilling and the abolition of slavery provides no support for the idea that religion has a proper place in government.

Yes, the purpose of government is to legitimate the use of coercion in the hands of the rulers. In a government established under a rule of law that means in the hands of authorities whose legitimacy is governed by law. Yes, it has been the history of governments that they frequently use coercion to enforce religious conformity. That was the history of the British government and all European powers having a state religion. Yes, the authors of the Constitution sought to prevent coercion of religious belief by the new Federal government – they wanted to protect religion from state power – but by no means did they think the opposite, that they would ‘protect’ that is ‘exclude’ the government itself from the influence of religious belief of the people.

I think Madison would beg to differ on this point, as well, for the excellent reason that allowing the “religious beliefs” of “the people” to influence the government has the deleterious (and unconstitutional) effect, for all practical purposes, of “establishing” religion. This is particularly important in a country which has a decided religious majority which could use the government and the law to enforce on an unwilling minority the majority’s religious views.

Two current “hot button” issues illustrate the point: abortion and gay marriage. With respect to each of these issues, opponents are attempting to have the government use the law to enforce by coercion their religious views on people with whom they disagree.

With respect to gay marriage, it is a religious majority attempting to use the government and the law to coercively enforce its views on a minority of the population. As for abortion, roughly half of the people in this country support and half oppose a woman’s right to choose, with the latter seeking to use the government and the law to coercively enforce their views on the former, while the former just want the latter to leave them alone.

With respect to each of these issues, the individual decisions of those who want have abortions or want to live in a same sex marriage have no effect whatsoever on the religious views of those who oppose their rights to do so.

In other words, if you don’t believe in abortion, don’t have one (but don’t try to use the government to legislate your religious view into coercive national policy). And, if you don’t believe in gay marriage, don’t enter into one (but, again, don’t try to use the government to legislate your religious view into coercive national policy).

After all, many of the founders were Masons, who very much wanted their views on religion to have an important role.

I have no doubt that some, perhaps even many, of the founders wanted their religious views to play an important role in development of the country. Personally, I have no problem with religion being an important of the lives of individuals or groups of individuals of faith who voluntarily participate in their religions. To the extent that such participation has a beneficial effect on society in general, more power to them. To the extent, however, that they would use government to impose their religious views on me or others who do not join in their beliefs, the Constitution prohibits that use.

And the American history has borne them out since religious belief has in fact played a critical role in so much of American political thought and policy.

Once again, I can’t disagree that religious belief has in fact played a significant role in American political thought and policy. This has not, however, always been a good thing. Unfortunately, it has all too often been the case the religion has been used to oppress others, even in this good old US of A. And, to the extent that religion has had beneficial effect on governmental policy, I think it is fair to say that good policy is good policy, whether it is founded on “religious” principles or “natural law” or just doing what is right under the circumstances.

In other words, it is not the underlying beliefs, religious or otherwise, that are important, but rather the recognition, acknowledgment and implementation of what ought or ought not to be done in the name of government.

A final (finally, you might say!) thought: Bill Wright, Class of 1957, responded to John Sloan’s email as follows:

John – a well-reasoned commentary with the only added caveat being that religion will continue to play a vital role in our political thought and national policy.

To which I can only say, you’re probably right, Bill, but I am not at all convinced that that is a good thing.

_____________________________________________________________________________

For additional discussion of Constitutional interpretation and separation of church and state, see:

http://en.wikipedia.org/wiki/Separation_of_church_and_state_in_the_United_States

And:

http://en.wikipedia.org/wiki/Separation_of_church_and_state

For a detailed discussion of Madison’s views on the separation of church and state, including the above-referenced quotation regarding congressional chaplains, see:

http://candst.tripod.com/tnppage/qmadison.htm

For more information on the role of religion in the founding and formative years of the United States, see the Library of Congress website on the subject at:

http://www.loc.gov/exhibits/religion/

The religious aspects of government under the Continental Congress and the Articles of Confederation are specifically addressed on this page:

http://www.loc.gov/exhibits/religion/rel04.html

For a discussion of the “Northwest Ordinance” (the full name of which is actually “An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio”), see:

http://en.wikipedia.org/wiki/Northwest_Ordinance

For my earlier discussion of Justice Hugo Black and his “no law means no law” approach to the First Amendment, see:

https://freelegaladvice.wordpress.com/2008/05/19/us-supreme-court-child-porn-purveyors-beware/

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