Page images

religion as well as morality. In fact, most schools at this time were church-run sectarian schools.

The conference committee's language indicates that, in addition to the problem of nondiscriminatory aid, committee members also were deeply concerned about the nation/state issue. This concern seems to have been reflected in the specific language they choose to insert, "no law respecting an establishment of religion."

Most commentators assume that the word "respecting" is synonymous with "tending toward." Thus, they read the clause as if it prohibits Congress from passing any law that tends to establish a religion. These commentators are only partly right. If this were all the conferees cared about, they could have handled the matter much more directly than they did. But what the conferees-or at least the House conferees-needed was language that would serve two purposes at once. To be sure, they wanted to prohibit laws that tended to establish a religion. But they also wanted language that would satisfy the nation/state concerns of such people as Elbridge Gerry and Samuel Livermore.

The language the conferees chose does serve both parts of this dual purpose. It not only prohibits laws which “tend to” establish a religion; it also prohibits Congress from passing laws "with respect to" an establishment of religion. In other words, it prohibits Congress from passing any law that would affect the religious establishments in the states.40 This was designed to satisfy people from states, such as Massachusetts, that did have established churches. The conference committee's version did not go as far on this point as the proposal offered in the House by Livermore and Gerry on August 15, and that may help to explain why both men finally voted against the amendment when it was accepted by the House on September 24 by a vote of 35-14.41 But the conference version was a compromise between the Ames version of August 20 and the more anti-Federalist Livermore version. Since the Ames version originally represented a compromise between the more nationalist Madison version and the Livermore proposal, the final version apparently went more than halfway in a vain effort to win the support of the anti-Federalists.

Most scholars who have written on the establishment clause fail to see this dual purpose because they underestimate the importance of the nation/state issue for the members of the First Congress. But, according to the only comprehensive study of that Congress written by a historian who used the First Congress Project's materials, federalism

''Lowenthal noted the dual purpose of this language in "The Place of Religion," p. 19. "1 Annals 913 (September 24, 1789).

was the overriding issue throughout the Congress. 42 There should be no surprise, therefore, about its importance here.

Thus, the records available to us demonstrate that the establishment clause was meant to have two major purposes:

(1) It prohibited the federal government from giving any aid to religion if the aid in question could tend to establish a religion. This prohibition was broader than either Gerry's “no religious doctrine" or the Senate's "no religious sect or society" formulas, but it was not so broad as to forbid such forms of nondiscriminatory assistance to religion as were found in the Northwest Ordinance.

(2) At the same time, the clause prohibited Congress from tampering with the state religious establishments. This prohibition was not so broad as it would have been under Livermore's proposal but it represented a more explicit guarantee to the states than anything in Madison's original package of amendments.

There remains one more difficult problem of interpretation. The legislative history of the establishment clause shows that the framers accepted nondiscriminatory aid to religion. Yet many writers, knowing Madison wanted to prohibit even this much, have used Madison's views stated elsewhere to support a strict separationist position. If these other writers are correct about Madison (and we know he did oppose Virginia tax benefits distributed to all churches), what can explain his willingness to go along with something different in the First Congress? The answer is twofold.

(1) He needed the votes to defeat Gerry's attempts during the summer of 1789 to delay the Bill of Rights, and he needed the Bill of Rights to achieve what was to him a more important goal than the exact wording of the establishment clause-public support for the new Constitution.

(2) Madison felt all along the First Amendment was unnecessary. He thought a modern extended republic would breed such a multiplicity of sects as to make establishment unlikely even without an amendment. Once amendment became politically desirable, he was willing to accept nondiscriminatory aid instead of strict separation. But the aid would be circumscribed very narrowly. It had to be given in pursuit of a legislative end specified in the Constitution, and it could not discriminate among sects. Together, these requirements would produce practical results only slightly different from the ones that would flow from his preferred notion of separation. All that would be needed was a strict enforcement of nondiscrimination. Even in Madison's day, nondiscrimination would have required one to consider Jefferson's margi

*2Kenneth R. Bowling, Politics in the First Congress, 1789-1791 (University of Wisconsin: Ph.D. diss., 1968).

nally Christian deism as a religion. Today, we also would have to include Muslims, Buddhists, and other sects outside the JudaeoChristian tradition. Thus, the compromise he agreed to would have permitted aid to private schools but not any of the practices he thought dangerous.

What should be emphasized here is the broad area of agreement between Madison and the others in the First Congress. They all wanted religion to flourish; but they all wanted a secular government. They all thought a multiplicity of sects would help prevent domination by any one sect. All of them also thought religion was useful, perhaps even necessary, for teaching morality. They all thought a free republic needed citizens who had a moral education. They all thought the primary responsibility for this education lay with the states. And they all agreed that Article I gave Congress no direct power to to deal with the subject. The disagreement was over what Congress should be allowed to do pursuant to some other delegated power. Sylvester and those who agreed with him feared that religion would be hurt if Congress were not allowed to prefer religion over irreligion in otherwise valid laws. Madison, in forums outside the First Congress, thought religion would flourish best if it were left alone, in a strict policy of separation. But he saw no harm in compromising with Sylvester, so he did.“3

43These strands have been overlooked in the current debate over establishment for reasons largely having to do with the federalism issue. Some current writers believe the Civil War and Fourteenth Amendment so transformed the nation/state issue as to make readings based on 1789 desires to accommodate the anti-Federalists irrelevant. There are two answers to this.

(1) Before one assumes that the Fourteenth Amendment prohibits any state aid to religious organizations, one should be aware that the generation that adopted it thought yet another amendment (the “Blaine Amendment") would have been needed to achieve this. The amendment was passed by the House on August 4, 1876, but fell short of the necessary two-thirds in the Senate. The version introduced in the Senate on August 14, 1876 said, in part: "No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no religious test shall ever be required as a qualification to any office or public trust under any State. . . . No ... appropriation or loan of credit shall be made to any religious or anti-religious sect. ... This article shall not be construed to prohibit the reading of the bible in any school or institution; and it shall not have the effect to impair the rights of property already vested." C. Moehlman, The American Constitutions and Religion, Religious References in the Charters of the Thirteen Colonies and the Constitutions of the Forty-Eighi States: A Sourcebook on Church and State in the United States (Berne, Ind., 1938), p. 17.

(2) More important, suppose one adopts the post-1937 notion (in Palko v. Connecticut 302 U.S. 319, 58 S. Ct. 149, 82 L.ed. 288) that the concept of "ordered liberty" in the due process clause now requires the states to adhere to the establishment clause? Even so, one should not ignore the federalism portion of the original establishment clause, as the Everson Court did in 1947. Ignoring it affects the way one looks on the controversy over nondiscriminatory aid. If one tries to read the language in the establishment clause without its federalism context, a “no-aid" reading comes almost naturally. Understanding the federalism background helps clarify why the framers used the strange wording they did in a clause meant to permit nondiscriminatory aid.


The Free Exercise Clause

The meaning of the free exercise clause is still unclear. After reading the congressional debates, we can guess that its purpose may have had something to do with the relationship between conscientious belief and its expression, but we are not given enough material to be more precise than that. For this, we shall have to look at the contemporary historical record.

The Virginia Example

In recent decades, the Supreme Court has looked to the example of
Virginia for an explanation of the meaning of religious freedom. Chief
Justice Earl Warren's 1961 Opinion of the Court in McGowan v. Mary-
land was typical in this respect:

This Court has considered the happenings surrounding the
Virginia General Assembly's enactment of "An act for estab-
lishing 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." It would be too simple, of course, to equate the proceedings leading to the Virginia Religious Freedom Act with those leading to the ratification of the First Amendment, but these proceedings can be helpful in

'McGowan v. Maryland, 366 U.S. 420, 437, 81 S. Ct. 1101, 6 L.ed.2d 393 (1961). 2Several authors are critical of the Court's heavy reliance on the Virginia example, particularly with respect to the establishment clause. See C. J. Antieau, A. T. Downey, and E. C. Roberts, Freedom from Federal Establishment: Formation and History of the First Amendment Religion Clauses (Milwaukee: Bruce, 1964); Paul Kauper, Religion and the Constitution (Baton Rouge: Louisiana State University Press, 1964), p. 49; Ernest Brown, our attempt to understand the First Amendment. In contrast with the lack of debate on the free exercise in the First Congress, the 1785 Virginia religious freedom debate led the noted authority Anson Phelps Stokes to describe it as probably the most significant debate on the subject ever to have been held in any legislative body. Furthermore, the Bill for Religious Freedom passed at the culmination of this debate was the most far-reaching piece of legislation ever passed on this subject up to the time of the First Congress. No other state-indeed, no other country—went as far toward protecting religious freedom in law as did Virginia in 1785.

What this means for our purposes, as we attempt to understand the meaning of free exercise in 1789, is that-unless someone discovers historical evidence to the contrary-we are justified in making one important assumption as we try to interpret 1789 intentions with 1785 evidence. Whatever Fisher Ames's precise intent may have been when he introduced the idea of free exercise, we may assume that the principles the representatives had in mind as they accepted Ames's language were not likely to have been more liberal than those of the most liberal of the Virginia religious freedom advocates. The phrase "free exercise" first appeared in the religion proposals made by the Virginia ratifying convention to the First Congress, and there is no evidence to suggest that the members of the Virginia legislature who made this proposal wanted the federal Constitution to give any more protection to religious activities than they gave under their own state laws.

The 1776 Virginia Declaration of Rights

The 1785 religious freedom bill did not arise in vacuo, of course. It was the end result of a decade-long struggle which began in 1776. The Virginia Constitutional Convention of May 1776 wrote a revolutionary constitution for the newly independent Commonwealth of Virginia containing a Declaration of Rights with a clause on religious liberty.S

"Quis Custodiet Ipsos Custodes? — The School Prayer Cases,“ 1963 The Supreme Court Review 1, 7-9. I am less concerned with the fact that the Court relied on Virginia history, however, than with its interpretation of that history's meaning. Stokes, Church and State, vol. 1, p. 366. *Ibid., vol. 1, p. 334. SHamilton J. Eckenrode wrote: “The religious struggle in Virginia, has been misunderstood because generally it has been considered by itself. ... The controversy had a wider relation than to religion alone; it was a side of the Revolution." Separation of Church and State in Virginia (Richmond, 1910), p. 91. In addition, as we shall see, the victory of the Jeffersonian principles of religious liberty was but one facet of the political victory of the thought of John Löcke in the United States.

« PreviousContinue »