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the pulpit, 38 and that he applied the same method of analysis to sermons about politics as to speeches of any other kind. In other words, to summarize Jefferson's views on this matter, Jefferson did distinguish between belief and action in many of his writings, but the expression of belief was considered to be an overt action, to be judged by its effect on civil society.

Free Exercise in the Bill of Rights

How can we translate all this material about Virginia practice into an understanding of the First Amendment's free exercise clause? We may accept as facts that Virginia gave more protection to religious freedom than was afforded anywhere else in the United States at the time, and that Jefferson's thoughts were the deepest and best expression of-if not the source of—the consensus of opinion reached in Virginia in the 1780s. Therefore, we may conclude that whatever protection the free exercise clause might have meant to give to religion, it was not likely to have been greater than the protection Jefferson thought religion should be given. We already have seen, however, that Jefferson would have given no more protection to religion than to atheism: harmless opinions were tolerated, while harmful opinions and actions were not.

If this is a correct interpretation of the history surrounding the free exercise clause, it seems to lead to a paradoxical conclusion. The religious freedom guaranty might have been important in Virginia as a protection for people branded as heretics, but, given the Jeffersonian interpretation of its meaning, the free exercise clause seems to add little not already present elsewhere in the Constitution: the speech clause of the First Amendment seems to protect opinions fully, while part of the idea of limited government, summarized in the Ninth and Tenth Amendments, is that even overt actions should not be regulated without cause.

This paradox forces us to conclude either that the free exercise clause simply was redundant, given the speech clause, or that it was not. If it was redundant, the major purpose of the clause would have to be understood to be rhetorical—an emphasizing of the special importance and delicacy of religious opinion within the whole spectrum of opinion protected by the speech clause. If the clause added something, however, it becomes necessary to consider what it might have added.

Two possibilities come to mind. One is that the speech clause may

307. Jefferson, “No Politics In the Pulpit," (a letter written on March 3, 1815 to comment on the Rex. Alexander McCleod's book on the War of 1812), Complete Jefferson, pp. 953-54. not have been understood as a protection for the expression of religious opinion. Alexander Meiklejohn argued forcefully that the primary function of the speech clause was to act as a protection for political speech.39 If the authors of the First Amendment were concerned primarily with political speech, and if they therefore thought religious speech needed additional protection, then the main purpose of the free exercise clause might well have been to protect people who wanted to make religious speeches.

But that is a very modest definition of free exercise, and most people think it must mean something more; “exercise" they say, must have something to do with action. Now, it is quite clear that the clause was not intended to give the kind of broad, sweeping protection to religious activity that Madison envisioned in his "manifest danger" test of 1776. But could the clause at least have been intended to go part way toward protecting that special method of expressing opinion that is peculiar to religion, the worship service? The concern must have been for something more than religious assembly, since the First Amendment protects the right of assembly against federal interference just as it protects the right of speech. Madison had indicated in his 1784 Memorial and Remonstrance a desire to go beyond this to protect religious actions, but it is impossible from the historical record to know whether he persuaded any other members of Congress to enter this minefield of ambiguity with him.

One thing does emerge clearly from the record, however. At no time did anyone in Virginia other than Madison suggest that the overt activities of religious people should be judged by standards different from those used to judge the overt actions of irreligious people. Whatever a believer might think of the religious significance of a particular activity, it was the policy of Virginians to judge all actions, including those labeled by the believer as worship, by secular standards of harmfulness or harmlessness. There is no evidence to suggest that the First Congress adopted a different point of view.

"A. Meiklejohn, Political Freedom, "Part 1: Free Speech and its Relation to SelfGovernment" (New York: Harper, 1960), pp. 3-87.

The

First Amendment and the Future of American

Democracy

WALTER BERNS

Basic Books, Inc., Publishers

New York

39-015 0-84--12

courage religion also led them to accept nondiscriminatory aid to religion. This encouragement was given for secular reasons and not for religious ones

because it was thought that religion did some good for civil society. But encouragement could go too far. In other nations, when encouragement became establishment, civil war too often was the result.

The modern Supreme Court correctly perceives that the framers wanted to encourage religion. But the Court uses the free exercise clause to grant religion special favors that the framers never thought were required, while prohibiting the nondiscriminatory assistance the framers would have permitted. Similarly, members of the Court correctly perceive that our democracy is at its core a secular democracy. But the Court implements this perception through its reading of the establishment clause, while not permitting a religiously neutral application of civil laws under its reading of the free exercise clause.

It is doubtful that the Court can maintain a consistent free exercise standard if it continues on this path of trying to sort out claims worthy of special protection from claims not deserving it. But the alternative—no special protection for any religious claims may not be satisfactory either, given the Court's present reading of the establishment clause. If laws are to be applied equally to all, legislatures should have some other means at their disposal for countering the basically hostile impact of modern secular life on religion. Unfortunately, the modern establishment clause and the Court's decisions on the definition of religions make this difficult.

My objections, however, go beyond matters of internal consistency. I believe the Court's position is flawed in a more basic way. The Court has created religious rights where none existed, reopening the controversy that had been settled in the eighteenth century. The Court has permitted reiigious opinion to stand as judge of the civil realm, while preventing the civil realm from helping religion on civil society's terms. I believe that when the political implications of this for a modern secular democracy are understood, the original understanding will seem attractive as a rule for today, and not simply as a curio for antiquarians. wedge for a potentially tyrannical national government that wanted to undermine the states' ability to maintain a viable militia. Gerry thought healthy militias lessened the need for and therefore the threat from a federal standing army. See M. Malbin, "Conscription, the Constitution and the Framers: An Historical Analysis," 40 Fordham L. Rev. 805 (1972). The clause was adopted by the House, rejected by the Senate, and omitted from the Second Amendment by the conference committee. sSee, in addition to Yoder: U.S. v. Seeger, 380 U.S. 163, 85 S. Ct. 850, 13 L.ed.2d 733(1965); Welsh v. U.S., 398 U.S. 333, 90 S. Ct. 1792, 26 L.ed.2d 308 (1970).

The First Amendment and the Future of American Democracy

WALTER BERNS

Basic Books, Inc., Publishers

New York

39-015 0-84--12

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