CHAPTER 1 Religion and the Ir is unfortunate, and a measure of our contemporary T difficulties, that too many Americans today would hesitate to agree with the Englishman Gladstone that the American Constitution was "the most wonderful work ever struck off at a given time by the brain and purpose of man." It is not fashionable, even in America, to praise American things these days. It is also true, I think, that most of those who would agree with Gladstone about the Constitution would do so because of the Bill of Rights, an addition to the original Constitution, and especially the First Amendment. The First Amendment has become the most famous and praiseworthy part of the Constitution. There is good reason for this, for, to speak here only of its religious provisions, the principle of the separation of church and state provides the foundation on which free government rests. That principle has been celebrated in countless books and scholarly articles and is embodied in our public life as a nation-so much so, perhaps, that we tend to forget (or, at least, to fail fully to appreciate) the role played by the religious question in the beginning of free government. We acknowledge that the United States is a liberal democracy, but we may forget that the term liberalism, in its modern sense, was coined to denote the liberation from the power of church and churchmen. In Religion and the Founding Principle the beginning of free and liberal government, no question was more important than the question of religion, and none played so prominent a role in the thought of the pertinent theorists-Hobbes, Locke, Spinoza, Bayle, and to a lesser but still significant extent, even Montesquieu. Even if it could be said that they solved the problem in principle, it was left to the American Founders to be the first to solve it, or to try to solve it, in practice. The Separation of Religion and State The Constitution, as it was sent by the Philadelphia convention to the people of the states for their ratification, contained a single provision dealing with religion: the proscription in Article VI of religious tests for office. This did not satisfy the six states (or five states plus the minority in Pennsylvania) that included a demand for a guarantee of the rights of conscience in their general call for a bill of rights. The typical demand made by these states was for an amendment protecting freedom of conscience, but no one, ratifier or nonratifier (or, as the nonratifier Elbridge Gerry inelegantly put it, "rats or antirats") expressed an opinion opposed to freedom of conscience. There was simply no debate on the subject, nor even a recorded difference of opinion, and this is not unrelated to the fact that freedom of conscience has not been an issue in the subsequent history of the country. More strikingly, especially to anyone with a memory of British and even American history during the seventeenth and eighteenth centuries, the fact that freedom of conscience was not an issue shows the great extent to which the religious question had already been settled in America at the time the Constitution was being written. There was a debate as to whether an amendment was necessary to protect it, but that posed no serious problem. There was considerable controversy over the question of whether the House Religion and the Founding Principle should take time from the consideration of the pressing necessity to establish the offices of government in order to honor a pledge (which some of them did not regard as a pledge) to add a bill of rights to the Constitution; but that too proved tractable. The real difference was not discussed at all, although it can be glimpsed in the variety of formulations given the amendment; this was a difference that divided the participants among themselves and divided the more profound of them within themselves. In one sense, they were opposed to religion, to the organized religions of the day; in another sense, they recognized the role religion could play-and perhaps would have to play-in free government. Unlike freedom of conscience, this difference, the ambiguity on this aspect of the religious question, gave rise to an issue that has played a role in the subsequent history of the country and underlies the disagreement concerning the meaning of the First Amendment. In 1947, for example, the Supreme Court said of the establishment clause that it means that neither a state nor the federal government may set up a church, pass laws aiding one religion or all religions, or prefer one religion over another.? This is a view widely held among constitutional scholars, but it is by no means the only view. It was not the view held by Edward S. Corwin or by Mark DeWolfe Howe,' or by others still living and writing. It was not the view of the Court when it upheld the statute granting tax exemptions to churches for properties used for worshiping purposes. Presumably, it was not the view of Mr. Justice Douglas when, in the second "released time" case, he wrote that Americans "are a religious people whose institutions presuppose a Supreme Being," although it was his view, a few years later, when he wrote that the purpose of the religious clauses was "to keep government neutral, not only between sects, but between believers and nonbelievers."" Of course, the federal government may not "set up a church"; there has never been any argument about that. But may it aid religion, provided it does so on a nondiscriminatory basis? May the states? These are the Religion and the Founding Principle questions agitated today, and a good deal depends on the answers given. Because they are so important, we are not surprised to learn that they were raised-and answered-during the debates on the religious clauses in the First Congress. In the Virginia ratifying convention, Patrick Henry had complained that under the proposed Constitution the states would lose their sovereignty which would thereby make insecure the rights of conscience protected under the state constitutions and, specifically, under the Virginia constitution. In response to Henry, and to others who in other states had expressed similar apprehensions, Madison opened the debates in the First Congress by proposing an amendment forbidding the establishment of "any national religion" or the infringement of "the full and equal rights of conscience." The issue here had to do with the relation of nation and states; but it was not much of an issue. The states had sought some reassurance, and the Founders had no objection to providing it. The House Select Committee formulated.Madison's proposal as follows: "no religion shall be established by law, nor shall the equal rights of conscience be infringed." This led Benjamin Huntington of Connecticut to express the fear that this language could be read-not by him but by others to forbid state laws requiring contributions in support of ministers of religion and places of worship. In addition, although he favored the free exercise of religion, he was anxious, he said, to avoid any language that might "patronize those who professed no religion at all." He too was concerned with the nation-state relationship, but the source of his concern was his desire to allow the states to provide aid to religion. Samuel Livermore of New Hampshire and Elbridge Gerry of Massachusetts were also intent on preserving their state laws in aid of religion and fostering the public worship of God. Gerry proposed to change the establishment clause to make it read "that no religious doctrine shall be established by law." Livermore, with Gerry's support, wanted to change it to read Religion and the Founding Principle "that Congress shall make no laws touching religion,"" which, if adopted (and the House at one point did adopt it by a vote of 31-20), would have prevented national laws "touching" or affecting or regulating or interfering with state laws on the subject of religion, including those laws that could be said to have established religion." Madison's answer to Huntington's fear was the suggestion that the word "national” be "inserted before religion," thus leaving room for these state establishments; but Gerry, for the same reason that had earlier led him to vote against ratification of the Constitution in the Massachusetts ratifying convention, objected to the very use of the word "national." Madison's amendments, as he had introduced them at the outset of the debates, would have forbidden the states, as well as the federal government, to "violate the equal rights of conscience." This suggests what we know from his other writings to be the case-that he was opposed to state as well as to federal establishment. In fact, he regarded this restriction on the states as "the most valuable amendment in the whole list,"10 a judgment in line with his well-known opinion that the states were much more likely than the federal government to be ruled by factions, which would deprive religious minorities of their rights. This restriction on the states was adopted by the House and was lost only in the Senate. Finally, on August 20, 1789, the House adopted the amendment in the style proposed by Fisher Ames of Massachusetts: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."'" With insignificant stylistic changes, this is the form in which it was sent to the Senate. The following conclusions may be drawn from the House action: both the state and the federal governments were forbidden to infringe the rights of conscience, and, assuming there was a distinction (the Senate was to see none), the federal government was also forbidden to prevent the free exercise of religion; and the federal government (but not the |