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 <all> 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 <philosophe's> 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 <Commentaries on the Constitution> (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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