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the Constitution where religion is mentioned is in Article 6, which prohibits the use of religious-test oaths for officers of the United States.

Many people during the state ratifying debates over the Constitution were concerned that there was no specific protection of religious conscience in the document, and several states called for adoption of a Bill of Rights immediately after the Constitution was ratified. Madison argued that a Bill of Rights was not necessary because the government was not delegated the power to legislate in a way that would affect speech or religion or the other matters that concerned the Antifederalists. The greatest protection for religious liberty, Madison felt, was an extended republic. But this was not enough for the Antifederalists. They wanted a Bill of Rights, and enough of the Constitution's supporters agreed with them to make adoption of a Bill of Rights politically necessary in the First Congress. Convinced by this outpouring that a Bill of Rights would help secure support for the new Constitution, Madison became its principal drafter and shepherd in the House of Representatives.

Let us now turn to the Bill of Rights, specifically to the sixteeri words in the First Amendment reading: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exer cise thereof." So far we have seen that, in the Declaration of Independence, liberty depends upon governments based on consent. We have also seen that the Federalist describes the Constitution as creating an extended sphere in which the multiplicity of sects and factions would promote liberty.

What do the sixteen words of the First Amendment religion clauses add to this? Does the free exercise clause say anything abou: the relationship between law and conscience that is not in the Dec. laration of Independence? Does the establishment clause, with it; prohibition of an established church, say anything that is not in Madison's idea of an extended republic? I would maintain that the answer in both cases is no. That is precisely why Madison though: the Bill of Rights was redundant. But, while the Bill of Rights ma: have been redundant, given Madison's limited view of the power conferred on the government by the "necessary and proper" clause it does make the intended limits more clear-particularly in light o the broader Hamilton-Marshall view of “necessary and proper that has prevailed.

Let me start with the free exercise clause. There was virtually no discussion or debate of the free exercise clause during the Firs Congress that considered and passed the Bill of Rights, so we have

viry little by way of direct evidence about precisely what its authors ir ant by the phrase. We can see from the debates in the First C ingress that its juthors at least meant to prevent Congress from prohibiting or compelling any form of religious worship, by, for example, cither prohibiting or requiring privers. That is, the clause protected not only the exercise of religion but the freedom of its exercise.

Beyond this, the meaning of the free exercise clause is less cliar, but it did develop out of a well-known history that included, anong other things, the Virginia Bill for Establishing Religious Freedi m. There is absolutely nothing in this history to suggest that the at thors of the Bill of Rights thought that religious people should be granted a right to be free of any legal obligations solely because a la v might clash with their religious consciences.

There was no direct discussion of this matter in connection with the First Amendment during the First Congress. But a very similar is ue did come up during discussion of the Second Amendment. Trat amendment now reads as follows: "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." When that militia provision passed the House of Representatives, it contained an additional clause reading as follows: “No person religiously scrupulous of bearing arms shall be compelled to render military service in person." The Senate dropped this conscientious objector clause la gely because some members of the First Congress explicitly reje ted the idea that religious exemptions should be treated as rights. For example, Edward Benson of New York said in the House of Representatives that "no man can claim this indulgence of right. . .. (1) ought to be left to the discretion of the government."

The point here is not that the authors of the First and Second Amendments wanted to deny conscientious objector status to people who objected to bearing arms for religious reasons. It was just the opposite. They did grant exemprions to conscientious objectors. But th:y wanted those exemptions to be understood to be matters of grice extended by statute. They did not believe that they belonged to citizens as a matter of natural or constitutional right. The principle of law cannot permit the individual to decide whether or when to obey the law. In Locke's terms, that would make the individual th? judge of his own case. Exemptions granted as a matter of grace do not violate this principle, but making exemptions a constitutional right would give the individual the right to decide when and whether th, law applies to him.

As I hope this discussion of free cxcrcise makes clear, the people who wrote the first Amendment expected the nation to be friendly toward minority religions. Moreover, we saw that the whole design of Ferderalist No. 10 involved creating an extended republic in which a multiplicity of religious sects would flourish. That being the case, why was an establishment clause necessary? It seems to go without saying that a nation with a multiplicity of sects would not tolerate the establishment of a national church or the adoption of a national credo. The First Congress considered language that simply would have prohibited the establishment of a national church, but Congress rejected that language and adopted something broader.

The language finally adopted said that Congress shall make no law "respecting an establishment of religion." What does this mean? The clause fits somewhere in that broad ground between the minimalist definition that merely would have prohibited a national church and the position of the modern Supreme Court. Without going into all of the debates here, let me say that the establishment clause originally was meant to prohibit two different things, one relating to the present controversy over governmental aid to religion and the other relating to the relationship between he national government and the states.'

First, the establishment clause was meant to prohibit Congress from passing any law that would tend to prefer or favor one religion over others. It was meant, in other words, to require a strict neutrality between religions, not neutrality between religion and irreligion. This is absolutely clear from the debates in the First Congress. At one point, in a speech that reiterated a theme raised often during the debates, Benjamin Huntington expressed concern about one early version of the establishment clause because he thought "the words might be taken in such latitude as to be extremely hurtful to the cause of religion.” Huntington "hoped therefore, that the Amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who possess no religion at all." There we e ample protections for atheists elsewhere in the Constitution—notably in the free speech clause and the clause prohibiting religious-t2st oaths for office. But contrary to the modern Supreme Court, the establishment clause had nothing to do with atheists. It was meant to prohibit Congress from discriminating among religions. All though the First Congress (ebates, the wording of the establishment clause was very different fiom the wording we know now. During the debates, the clause was worded "no religion shall be established by law," or "no national religion shall be estabļished," or "no particular sect shall be estabI shed." Only at the last minute was the wording changed to "no law respecting an establishment of religion.” The strange wording was responsible for the Supreme Court's mistaken idea that the amendnent required strict neutrality between religion and irreligion. But tre real reason for the shift related to an entirely different issue, the i sue of federalism.

1 For a detailed analysis of the debates, see Michae' Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute, 1978).

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No single subject dominated the considerations of the First Congress as much as federalism. Thus it should be no surprise that concern over the power of the national government surfaced during consideration of the Bill of Rights. Antifederalists were concerned t'iat Congress might restrict the power of the states to help religion. Specifically, Elbridge Gerry of Massachusetts and other Antifederalists fiom states with established churches wanted to make sure that Congress could not do anything to harm their states' religious establishn.ents. That is the reason for that strange language in the First Amendnient-"no law respecting an establishment of religion." Congress vias prohibited not only from doing anything that tended to establish or favor a particular religion on the national level; it was also prohibited from doing anything respecting, or with respect to, the relizious establishments in the states. The Supreme Court missed this point entirely in 1947. The decision to apply the establishment clause to the states involved an obvious circularity-how, after all, can the s.ates be prohibited from passing laws that affect state religious e tablishments?

Let us assume, however, that the application of the establishnent clause to the states is an irreversible fact. What would happen if we were to apply the rest of the original meaning of the establishrent clause--no discrimination among religions—to today's relig ously diverse nation? I believe that the original rule probably would prohibit Congress from doing most of what worries modern se parationists. For example, it clearly would prohibit the governrent from prescribing school prayers for children, even supposedly vluntary prayers. A moment of silence would be all right, and p: obably a good idea. However, it would be impossible to write an olficial prayer today without offending some religious people. People from one religion would be offended by prayers chosen from another, de vout people from most faiths would be offended by lowest common denominator pablum, and followers of certain Oriental religions that do not believe in a God to whom one prays would be offended by the implications of praying itself.

On the other hand, the establishment clause was not meant to prohibit truly nondiscriminatory forms of aid to religion. One such form of aid was adopted by the First Congress itself when it reenacted the Northwest Ordinance, which contained a clause giving free land to anyone who wanted to build churches or schools, including church schools, in the Northwest Territory. The land was available on a first-come, first-served basis. I would maintain that today's tuition tax credits or tuition vouchers are nordiscriminatory forms of aid not far different from the Northwest Ordinance. Tax credits and vouchers obviously raise different issues of public policy. Tax credits are easier to administer, but vouchers can be structured to give the public school system positive incentives to improve itself. Constitutionally, however, they are the same. They provide aid to parents without discriminating between secular and religious schools, let alone among religious sects.

While the issues seem clear under the original meaning of the First Amendment, they have been made less clear by the Supreme Court's reinterpretation of the religion clauses since 1947. It can almost be said of the modern court, as Kar Marx once said of the relationship between his own thoughts and Hegel's, that the Court has stood the First Amendment on its head. On the one hand, the Court correctly perceives that the framers wanted to encourage religion. But the Court has used the free exercise clause to grant religion special favors the framers never thought were required, while at the same time prohibiting the nondiscriminatory assistance the framers would have permitted. On the other hand, the Court also correctly sees that the Constitution is at its core a secular document. But the Court implements this perception through its reading of the establishment clause, while not permitting a religiously neutral application of civil law under the free exercise clause. The Court thus has created religious rights where none had existed, perriitting religious opinion to stand as judge of the civil realm, while preventing the civil realm from helping religion on civil society's terms.

Lost somewhere in the theoretical murkiness of the Court's position is any indication of an awareness of the way the Founding Fathers meant the Declaration, Constitution and Bill of Rights to promote both religious health and civil peace. Unfortunately, some of the Court's modern conservative critics seem equally unaware of the deepest purposes of the nation's founding documents. By trying to

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