Over God
October 14, 2003 6:38 PM Subscribe
Founding fathers quotations about religion. Sick of hearing fundie pundies say "the US was founded on a vision of Christianity"? Let TJ and the crew speak for themselves.
I thought the "Founding Fathers" as a group would have produced more quotes...I am sure Ben Franklin had some choice words at SOME point.
Shouldn't there be more quotes at the page linked to?
I liked a few of the quotes I saw and truthfully am quite disgusted at the ol' time religion infusion our guvmint seems to be full of now.
posted by RubberHen at 6:49 PM on October 14, 2003
Shouldn't there be more quotes at the page linked to?
I liked a few of the quotes I saw and truthfully am quite disgusted at the ol' time religion infusion our guvmint seems to be full of now.
posted by RubberHen at 6:49 PM on October 14, 2003
You can go to "The Founders' Almanac" and enter "God" as the subject and get a completely different set of quotes illustrating the other side of the argument.
Not that it really matters either way. The US is a christian nation only demographically speaking and that (IMHO) is subject to change.
posted by revbrian at 6:53 PM on October 14, 2003
Not that it really matters either way. The US is a christian nation only demographically speaking and that (IMHO) is subject to change.
posted by revbrian at 6:53 PM on October 14, 2003
This really is a crappy list. There are quotes from a sum-total of three idividuals.
One of them, Thomas Paine, isn't really even a "founding father," is he? And Jefferson's feelings towards Christianity are very well known.
And like gd779 said, that one Washington quote is rather supportive of religion. He's saying that he's skeptical of the notion of objective morality without religion.
That last paragraph, though, really is a must-read. Is the author of this piece 15 years old?
posted by mragreeable at 6:53 PM on October 14, 2003
One of them, Thomas Paine, isn't really even a "founding father," is he? And Jefferson's feelings towards Christianity are very well known.
And like gd779 said, that one Washington quote is rather supportive of religion. He's saying that he's skeptical of the notion of objective morality without religion.
That last paragraph, though, really is a must-read. Is the author of this piece 15 years old?
posted by mragreeable at 6:53 PM on October 14, 2003
Well I guess you can't win 'em all. I really liked the three headed monster one though.
posted by condour75 at 7:01 PM on October 14, 2003
posted by condour75 at 7:01 PM on October 14, 2003
This is a pretty poor link, for what it's worth. I hardly consider Thomas Jefferson, Thomas Paine, and George Washington representative of the totality of the founding fathers. Further, Jefferson, while not a Christian, was most certainly a deist. The bulk of Washington's writings reveal a deeply religious man. If the point of this thread is to examine the religious beliefs of the founding fathers, then let's be about that task. Here's Patrick Henry, George Washington, Daniel Webster, and John Witherspoon. If we're just about poorly constructed attacks against "fundies", then carry on.
posted by marcusb at 7:07 PM on October 14, 2003
posted by marcusb at 7:07 PM on October 14, 2003
There is an EXCELLENT and fairly solid consideration of the religious beliefs of some of the Founding Fathers (the ones who went on to be POTUS) in The Religious Beliefs of Our Presidents: From Washington to F.D.R.. For example, he reads through Washington's daily diary to see how often he reported going to church, and the answer was: Hardly ever. He also does a great job of parsing the various myths about various Prezzies, how they came about and what purpose the myths served those who were spreading 'em.
posted by jengod at 7:21 PM on October 14, 2003
posted by jengod at 7:21 PM on October 14, 2003
I think Franklin was a pragmatist, if nothing else...
"If men are so wicked with religion, what would they be if without it?" --Benjamin Franklin to Thomas Paine
posted by revbrian at 7:22 PM on October 14, 2003
"If men are so wicked with religion, what would they be if without it?" --Benjamin Franklin to Thomas Paine
posted by revbrian at 7:22 PM on October 14, 2003
gd779 wrote:
Be aware, the author here makes no attempt to present history fairly or completely; rather, his goal is simply to pick and choose from among the historical record anything that might support his prejudices. Such blatant disregard for history (not to mention intellectual honesty) is just really annoying.
Indeed. This fella needs to dig a little deeper.
Whether he likes it or not, the vast majority of the founders of the US were either Deists generally, or Christians specifically. And, while they were very careful not to create a condition under which any one religion could take hold of political power in the US, they never intended for spirituality in general to never enter the nation's political discourse.
posted by spirit72 at 7:51 PM on October 14, 2003
Be aware, the author here makes no attempt to present history fairly or completely; rather, his goal is simply to pick and choose from among the historical record anything that might support his prejudices. Such blatant disregard for history (not to mention intellectual honesty) is just really annoying.
Indeed. This fella needs to dig a little deeper.
Whether he likes it or not, the vast majority of the founders of the US were either Deists generally, or Christians specifically. And, while they were very careful not to create a condition under which any one religion could take hold of political power in the US, they never intended for spirituality in general to never enter the nation's political discourse.
posted by spirit72 at 7:51 PM on October 14, 2003
And like gd779 said, that one Washington quote is rather supportive of religion. He's saying that he's skeptical of the notion of objective morality without religion.
I didn't really get that from it. I understood it to be a "diplomatic" admission that morality might in fact exist outside religion. He doesn't say anything against religion, but he supposes that religion does not have to be a precondition for morality.
posted by Jimbob at 7:58 PM on October 14, 2003
I didn't really get that from it. I understood it to be a "diplomatic" admission that morality might in fact exist outside religion. He doesn't say anything against religion, but he supposes that religion does not have to be a precondition for morality.
posted by Jimbob at 7:58 PM on October 14, 2003
actually skallas, I found the link in a fiesty slashdot thread on that very topic.
posted by condour75 at 8:09 PM on October 14, 2003
posted by condour75 at 8:09 PM on October 14, 2003
What? You mean people that lived 200 years ago didn't know more than us? The shame. I was always lead to belive that they always knew how to do things better in the olden days.
posted by CrazyJub at 8:35 PM on October 14, 2003
posted by CrazyJub at 8:35 PM on October 14, 2003
The Boston crowd, the Puritans, for the most part were deeply religious and felt quite sanctimonious in imposing their views, upon pain of death in some instances, upon others who did not believe in their particular brand of religion. Heaven help a Catholic in Boston in the early 1700's. Jefferson, Paine and Franklin (even though from Boston) are widely acknowledged by historians as having suspect faiths. As someone said, they were more pragmatic than passionate about religion. However, I am not sure that these men necessarily represented the common view of the people during their time, nor were they the only founding leaders.
I do not believe the quoted site does a good job of putting all of these beliefs in context. Certainly, this country was not founded upon religion, and some of the most important founding fathers probably did not believe, or at least had weak faith, in God. Nevertheless, this country has a long and deep religious tradition. I am heartened to see that when crafting the constitution our founding fathers saw the corrupting influence of powerful state sponsored religions and rejected that for us. I doubt that the fairly strict separation of church and state we have today would have been contemplated back then, but then neither would the incredible diversity of religious beliefs found in our country today. With this increased diversity comes an enhanced responsibility upon the state to not take positions that favor one religion over another.
posted by caddis at 8:41 PM on October 14, 2003
I do not believe the quoted site does a good job of putting all of these beliefs in context. Certainly, this country was not founded upon religion, and some of the most important founding fathers probably did not believe, or at least had weak faith, in God. Nevertheless, this country has a long and deep religious tradition. I am heartened to see that when crafting the constitution our founding fathers saw the corrupting influence of powerful state sponsored religions and rejected that for us. I doubt that the fairly strict separation of church and state we have today would have been contemplated back then, but then neither would the incredible diversity of religious beliefs found in our country today. With this increased diversity comes an enhanced responsibility upon the state to not take positions that favor one religion over another.
posted by caddis at 8:41 PM on October 14, 2003
[Sorry for the length of this comment. This is kind of my area, so I hope I can provide some insight.]
The issue is much more complicated than just whether or not the founders thought the United States was a “Christian nation.” In addition, our modern understanding of the religious liberties held by citizens against state governments arises initially from the Fourteenth Amendment, and not the First. Although that liberty might be historically and intellectually derived from the notion of religious liberty held by the original founders, there is no formal, structural connection between the two instantiations of rights arising from the First and Fourteenth Amendments. Notably, the First Amendment seems to protect states, and not necessarily individuals, from a federal Establishment of religion. The Fourteenth Amendment, on the other hand, was framed with the specific intention of protecting the rights of individuals against the states. Further, the view of the Fourteenth Amendment as incorporating the Bill of Rights wholesale is at best overly simplistic, and at worst, completely wrong.
1. Importance of history
In 1947 the Supreme Court for the first time addressed the issue of incorporation with respect to the Establishment Clause of the First Amendment In Everson v. Board of Education.[1] The Court, represented by Justice Black writing for the majority, applied the Establishment Clause to the States through fourteenth Amendment to the states summarily, with virtually no discussion of how the Fourteenth Amendment operated to make the Clause applicable to the states.[2] Since Everson, Supreme Court has traditionally relied heavily on the history of the First Amendment in interpreting the Establishment Clause. Justice Rutledge expressed this notion in his dissent in the first Establishment incorporation case, Everson, noting that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.”[3] Justice Black, writing for the majority, clearly agreed on the importance of history in giving content to the Establishment Clause despite reaching a different result in Everson than the one desired by Justice Rutledge.[4] The Court continued to rely on the First Amendment’s history in subsequent cases to flesh out Establishment doctrine.[5] This professed reliance on history is perhaps ironic, given the consensus among many scholars that the Court has largely failed in accurately describing the history of the First Amendment and, in particular, the Establishment Clause.[6]
Justice Black described his understanding of the Establishment Clause by stating that “[t]he “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer on religion over another. ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and state.”[7] Again, the dissents had little disagreement with Black on this point, with Justice Rutledge arguing that the purpose of the Establishment Clause “was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”[8]
To support his claim, Justice Black relied entirely on the struggles of James Madison and Thomas Jefferson for religious liberty in Virginia.[9] In particular, Justice Black examined Madison’s Memorial and Remonstrance and Jefferson’s Virginia Bill for Religious Liberty to support the claim that the Establishment Clause erected a wall of separation between church and state.[10] Black’s reliance on Jefferson and Madison, and particularly, his understanding of the two founder’s statements as indicative of a constitutional requirement of strict separation of church and state is flawed in two respects.
First, Madison and Jefferson were not the only framers involved in the creation of the First Amendment, and as such, a principled understanding of the Establishment Clause should not confine its historical context to their thought. Instead, the Court in giving the Establishment Clause meaning should be concerned with the consensus and understanding of all those who ratified the First Amendment.[11] It appears, however, that the diversity of though on the proper relationship between religion and government was so great that the only consensus was to leave the issue to the states.[12] Prof Conkle, among others, has argued that the Framers’ debate on the specific wording of the Establishment Clause reflected a deliberate effort to “effect[] a policy of federalism on questions of church and state.”[13]
Second, Justice Black’s argument that the Jeffersonian and Madisonian ideals of religious freedom should form the basis of the constitutional restrictions on the states proves too much. Much of the writing of Jefferson and Madison, including both Virginia’s Bill for Religious Liberty and the Memorial and Remonstrance, was written in response to state establishments and regulations of religious freedoms, and the proper role of the state in governing its own citizens. When considering the framing of the federal Constitution, many considerations other than the simple normative question of the proper relationship between the state and religion are important. Most significantly, at the time of the framing the delegates to the Constitutional Convention and the members of the First congress held great concern for state sovereignty; the Jeffersonian and Madisonian ideals of religious freedom did not necessarily require, or even support, a federally imposed separation of religion and state governments.[14]
The effect of Justice Black’s mistake of relying too heavily on the Jeffersonian and Madisonian ideals of religious freedom was to downplay the just how important federalism was to many, if not all, of the ratifiers of the First Amendment. The entire Bill of Rights, on one level, is affected by the pervasive concerns of the founders for federalism; the result was that the Bill of Rights was only to apply to the federal government and not to the states.[15] With most of the Bill of Rights, however, federalism appears to be a “side constraint.”[16] In other words, the primary substantive concern of the framers with respect to most of the Bill of Rights was for the protection of the particular rights being enshrined there.[17] This argument, perhaps, may be made even with respect to the Free Exercise Clause,[18] but likely not the Establishment Clause.[19] Instead of protecting substantive individual rights, the better view of the Establishment Clause is of a structural provision designed specifically to preserve the states’ sovereign authority over the regulation, and indeed, the establishment, in the literal sense, of religion.[20]
The view we are left with, then, is that the Establishment Clause was designed specifically to prevent Congress from interfering with the establish state churches and with state efforts to accommodate religion, as well as interfering with states that had already disestablished their churches. The reasoning of the framers was not based on a view of appropriate state-church relations, but rather on a view of appropriate federal-state relations, i.e., federalism. The federalist view of the Establishment Clause is not a novel one, at least in the legal academy. Criticism of Everson in this vein began soon after the case was decided, and continued into the fifties and sixties.[21] Several notable contemporary scholars have argued that incorporating the Establishment Clause against the states makes little sense.[22]
2. Support in the States
Leading up to the Constitutional Convention, each of the colonies had a unique experience with religious freedom. More specifically, the colonies were so diverse when it came to religious establishments that it was likely impossible that the delegates could have reached a consensus on a substantive principle of religious freedom that could be adopted in the Constitution or any of its Amendments.[23] The sort of diversity we are speaking of here is across the colonies; in other words, each colony had a unique approach to religious liberty. This kind of diversity should be distinguished from diversity within each colony, where multiple religious factions are all governed by the same colony. Increasing diversity within each colony has been cited as evidence that toleration of heterodox religious practices were also increasing in the colonies.[24] Even Madison, who recognized that the forces of faction and pluralism were present in religion, recognized the importance of federalism as a force in this area, in which the religious establishment in one state would not necessarily bleed into religious establishment either in another state or in the federal government.[25]
The prevailing view in the colonies was a traditional one; religion was essential to society, and government support was a necessary and integral part of religious practice.[26] Despite the prevailing view, however, a significant minority of colonies took the view that while religion was an essential good, governmental support was unnecessary and perhaps even harmful to religious practice.[27] A third view, although not nearly as widespread as the traditional government support view or even the more moderate no-government-interference view, was an anti-religious view.[28] These views were in many cases irreconcilable. This apparent conflict, Smith argues, points inevitably to the conclusion that the Constitution could not have embodied any of the substantive principles of religious liberty extant during the colonial period; the framers, however, could have adopted a “jurisdictional” Establishment Clause.[29]
Steven Smith notes that the pronounced difference in opinion regarding religious establishments among the states was not carried into the debates in the Constitutional Convention.[30] Rather than a contentious argument regarding substantive principles, the debates evidenced near indifference to the concerns of establishment among the framers of the original Constitution.[31] Although both Charles Pinckney and Isaac Backus advocated the inclusion of a guarantee of religious freedom in the Constitution, neither suggestion led to any such provision.[32] There have been several suggestions as to why the Convention failed to provide a guarantee of religious freedom. One came from Alexander Hamilton, who suggested that the delegates simply forgot to address the matter, caught up as they were in the business of creating the structure of the federal government.[33] Another, more influential view, was given by James Madison himself. Madison suggested the right of religious freedom was inalienable and beyond the reach of government.[34] A third view, prominent among the first generation framers, was that because the Constitution was silent about national power over religion, the power in government to regulate religious activities was reserved to the states.[35] Rodney K. Smith suggests that “[i]t is unlikely that the delegates would be apprehensive about state action in this area because they were familiar with current state efforts regarding religious exercise.[36]
3. Ratification Debates
The argument for a federalist view of the Establishment Clause finds further roots in the ratifications debates surrounding the First Amendment, particularly those in the First Congress. The first generation framers, led in many ways by James Madison, saw fit to leave the Constitution without a provision protecting religious liberties.[37] Although Madison and other understood the Constitution structure of enumerated powers to preclude the possibility of the federal government regulating religious practices, the ratifying conventions in the soon-to-be states were less sure.[38] Several states, including North Carolina, New Hampshire, and New York submitted amendment proposals to the First Congress which included provisions limiting the federal government’s ability to interfere with religion.[39] Even Madison, involved in a tight election campaign for a seat in the House of Representatives, gave in to the demands of the Virginia Conventions that he introduce a Bill of Rights in the First Congress.[40]
Madison’s proposed amendment protecting religions liberty provided that “the Civil Rights of none shall be abridged on account of religious belief or worship, no shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed.”[41] In 1789, the House created a Committee of Eleven to consider the amendments.[42] When the Committee returned the amendments to the House for consideration by the Committee of the Whole, the religious liberty amendment had been truncated to provide that “no religion shall be established by law, nor shall the equal rights of conscience be infringed.”[43]
The lack of debate over a principle of establishment was carried over into the drafting and ratification of the First Amendment. The debate over a substantive principle of religious freedom was sparse[44], and what debate there was largely went against Madison, rather than adopting Madison’s proposal.[45] The relative lack of debate, Smith suggests, should lead us to believe that the question of a substantive principle of religious liberty was largely left to the states.[46] Further, some commentators have suggested that Madison’s amendment was specifically rejected because it might permit the federal government to interfere with the state establishments.[47]
6. Treatment in the court
The arguments of the commentators can be contrasted with the traditional account of the Establishment Clause history, particularly as displayed in Everson, but prevalent throughout the Supreme Court’s body of cases on religious freedom. The Court has traditionally relied heavily, if not exclusively, on the Virginia experience, embodied particularly in Jefferson’s Bill for Religious Freedom, and Madison’s Memorial and Remonstrance, written in opposition to a bill which would assess a tax for the support of Christian ministers.[48] The reliance on the Virginia experience, and its failure to accurately represent the entire historical context within which the Establishment clause and its federalist purpose was drafted has lead to serious doctrinal confusion.[49] The Court’s virtual exclusion of other factors in understanding the substantive content of religious liberty, even as applied to the states, has created a kind of historical myopia which has limited the possibility of achieving a doctrine which scholars would consider historically legitimate.
7. Implications for incorporation
One response to the deep federalist concerns of the Establishment Clause is to suggest that it is not capable of being incorporated. If the original understanding of the Establishment Clause is that it protects state authority over religion from the federal government, incorporation against the states effectively accomplishes the reverse. Where the Establishment Clause originally enabled the states to maintain an established religion, incorporation of the Clause forbids them from doing so. In that respect, the incorporation does not simply fail to reflect the original federalist purpose of the Establishment clause, it in fact subverts the purpose, turning the Establishment Clause back on itself.[50]
More than simply a subversion of the federalism present in the Establishment Clause, some scholars have argued that incorporation of the Establishment Clause is inconsistent with the Constitution, because the Clause should be understood as a specific instantiation of the Tenth Amendment.[51] The Tenth Amendment effectively affirms the Madisonian view that the states retain all the powers not delegated to the federal government by the Constitution. The incorporation of the Tenth Amendment would be nonsensical, as it specifically reserves power to those states. Even if the Establishment Clause is not viewed as a specific instance of the Tenth Amendment, to the extent that the original federalist purpose of the Clause is similar to the Tenth Amendment, incorporation is similarly nonsensical.[52]
The theoretical incoherence of the incorporation of the Establishment Clause depends, however, on a view of the Fourteenth Amendment that treats the rights protected by the Fourteenth as applied directly, without modification, against the states. While that view is supported by some scholars,[53] the evidence with respect to the Establishment Clause may indicate otherwise. If the framers and ratifiers of the Fourteenth Amendment understood it to prevent at least some forms of religious establishment in the states, how are we to reconcile the conflict between that understanding and the federalist understanding of the original Establishment Clause?
B. Religious freedom and the Fourteenth Amendment
The second argument supporting the view that there is a disconnect between the rights of the First and fourteenth Amendments is that, despite the view of the scholars who argue against the incorporation of the Establishment clause, the post-Civil War historical evidence makes it clear that the framers of the Fourteenth Amendment specifically contemplated that the operation of the Amendment would reach regulation of the religious practices of slaves, prevalent in the South. These two observations, one based in the historical evidence of the framing of the First Amendment and one based in that of the Fourteenth, set the stage for a divergent understanding of the religious liberties provided for in the Constitution. The first Amendment was understood to protect the states against federal interference, while the Fourteenth Amendment was, on its face, exactly that kind of federal interference. Where, then, does the religious liberty of the fourteenth Amendment come from?
The focus here with respect to the relationship between the Fourteenth Amendment and religious freedom is on the debates in the Congress leading up to the Amendment’s ratification. There is a rich historical context in which those debates took place, particularly on two fronts: the development of a common law of religion in the states, and the reaction of the northern states to the regulation of slave practices of religion in the south. Both of those fronts are important for two reasons: they provide support for the view that the framers of the Fourteenth amendment provide for religious liberties applicable against the states, and they give shape to the content of those liberties. The goal of this paper, however, is only to demonstrate that the framers of the Fourteenth Amendment clearly understood religious liberty to be one of the rights for which the Amendment provided. To that end, much of the historical context is left for a later, more in depth discussion of the content of religious liberty based in a post-civil war historical understanding.
The debates over abolition, nearly two years prior to the passage in the House of the Fourteenth Amendment,[54] evinced on the part of at least a few Congressmen concern that slavery was destroying religious liberties in the South. Henry Wilson, for example, who was so influential in the development and passage of the Civil Right Bill, was quite concerned with the impact of slavery on religious practices.[55] During one particularly passionate speech in favor of the abolition of slavery through what would become the 13th Amendment, Sen. Wilson centered his argument on the First Amendment, showing, one by one, how slavery had denigrated each of the rights protected there.[56] His description of the effects of slavery on religious freedom is worth quoting in its entirety:
The great rights here enumerated [in the First Amendment] were regarded by the people as too sacred and too essential to the preservation of their liberties to be trusted with no firmer defense than the rule that “Congress can exercise no power which is not delegated to it.” Around this negate protection was erected the positive barrier of absolute prohibition. Freedom of religious opinion, freedom of speech and press, and the right of assemblage for the purpose of petition belong to every American citizen, high or low, rich or poor, wherever he may be within the jurisdiction of the United States. With these rights no State may interfere without breach of the bond which holds the Union together. How have these rights essential to liberty been respected those sections of the Union where slavery held the reins of local authority and directed the thoughts, prejudices, and passions of the people? The bitter, cruel, relentless persecutions of the Methodists in the South, almost as void of pity as those which were visited upon the Huguenots in France, tell how utterly slavery disregards the rights to a free exercise of religion. No religion which recognizes God’s eternal attribute of justice and breathes that spirit of love which applies to all men the sublime commandment, “Whatsoever ye would that men should do unto you, do ye even so to them,” can ever be allowed free exercise where slavery curses men and defies God. No religious denomination can flourish or even be tolerated where slavery rules without surrendering the choicest jewels of its faith into the keeping of that infidel power which withholds the Bible from the poor. Religion, “consisting in the performance of all known duties to God and our fellow-men,” never has been and never will be allowed free exercise in any community where slavery dwarfs the consciences of men. The Constitution may declare the right, but slavery ever will, as it ever has, trample upon the Constitution and prevent the enjoyment of the right.”[57]
Wilson clearly saw that the protection of liberty required a nation rid of slavery. “An equal and exact observance of the constitutional rights of each and every citizen, in each and every State, is the end to which we should cause the lessons of this war to carry us. ... What, then, shall we do? Abolish slavery. How? By amending our national Constitution.”[58] In the same Congress, Representative James Ashley voiced the same deep concerns, noting that slavery had “silenced every free pulpit within its control, and debauched thousands which ought to have been independent.”[59]
The consideration of the Civil Rights Bill provided further ground for members of Congress to address the effects of slavery on religion. Specifically, Senator Lyman Trumbull complained that the laws of several states outlawed for slaves the “exercising [of] the functions of a minister of the Gospel.”[60] Similarly, Senator James Nye argued that the states had no rights to invade those rights protected by the Bill of Rights, including “freedom in the exercise of religion.”[61] Further, Congressman Roswell Hart argued that the Southern states should not be readmitted to the Union until they set up a government where “citizens shall be entitled to all privileges and immunities of other citizens; where no law shall be made prohibiting the free exercise of religion.”[62]
These discussions continued into the debates over the ratification of the Fourteenth Amendment. Senator Jacob Howard introduced the joint resolution proposing the Amendment to the floor of the Senate, and began the debate with a forceful speech on its behalf.[63] Sen. Howard discussed each provision in turn, and most importantly for our purposes, gave a detailed account of his understanding of the privileges or immunities clause.[64] His account began by relying on Corfield v. Coryell, which included in the privileges and immunities of citizens of each of the states in the several states those rights “which are in their nature fundamental,” specifically, protection by the government, the right to acquire property, the right to pass through or reside in a state, the writ of habeas corpus, and the right to institute actions in court. [65] To those rights Sen. Howard added, without exception, the first eight amendments of the Constitution.[66]
Representative John Bingham, the author of much of the Fourteenth Amendment, firmly expressed his understanding of the Amendment he wrote in a speech in 1871 in support of a bill for the enforcement of the Amendment.[67] Bingham argued that the privileges and immunities of citizens of the United States “are chiefly defined in the first eight amendments to the Constitution of the United States.”[68] For emphasis, he then read for the record the first eight amendments, without exception, including the Establishment Clause of the First Amendment.[69]
The Republicans, including Bingham, Trumbull, and Howard, were the primary sponsors and supporters of both the Civil Rights Act of 1866 and the Fourteenth Amendment. They were not, however, the only men who had things to say about religious freedom. Democrat John Stockton, for example, argued that the Fourteenth Amendment “prohibits states from doing what the Congress was always prohibited from doing,” using the religion clauses of the First Amendment as an example.[70] Likewise, Democrat Thomas Norwood stated that before the adoption of the Fourteenth Amendment, “any State may have established a particular religion.”[71]
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[1] Everson v. Board of Education, 330 U.S. 1 (1947).
[2] Id. at 8.
[3] Id. at 33 (Rutledge, J., dissenting).
[4] Id. at 8-15 (recounting Black’s understanding of the history of religious liberty in the colonies and following the founding,)
[5] See Robert L. Cord, Interpreting the Establishment Clause of the First Amendment: A “Non-Absolute Separationist” Approach, 4 Notre Dame J.L. Ethics & Pub. Pol’y 731, 733 (1990) (noting “the Supreme Court has almost exclusively relied upon historical and ‘original intent’ arguments when fashioning its interpretation of the establishment clause.”); see also Robert L. Cord & Howard Ball, The Separation of Church and State: A Debate, 1987 Utah L. Rev. 895, 9007-09 & nn. 51-65 (1987) (listing cases in which the Supreme Court has relied explicitly on historical argumetns in deciding Establishment Clause issues).
[6] Mark Dewolfe Howe, The Gardena and the Wilderness 4 (1965) ( arguing that “the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision. By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.”)
[7] Everson, 330 U.S. at 15-16.
[8] Id. at 31-21 (Rutledge, J., dissenting).
[9] Id. at 13
[10] See id. at 12
[11] See Gerard V. Bradley, Church-State Relationships in America 30 (1987); Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 100 Yale L.J. 1131, 1131 (1988).
[12] See Conkle, supra note 11, at 1132-33; William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L.Rev. 1191, 1200 (1990); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 319-20 (1986); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1485, n 384 (1990).
[13] Conkle, supra note 11, at 1134.
[14] See Bradley, supra note 11, at 12; Howe, supra note 6, at 172; Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 20 n. 71.
[15] See Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247-48 (1833).
[16] See Smith at ___.
[17] Id at ___.
[18] But see Smith at ___.
[19] Smith at ___. But see Howe, supra note 6, at 19-23, 29-31 (acknowledging the importance of federalism to the Establishment clause, but arguing that federalism was not the sole purpose)
[20] See Smith at __; Conkle, supra note 11, at 1134.
[21] See Wilber G. Katz, Religion and American Constitutions 8-10 (1964); Edward S. Corwin, The Supreme Court as National School Board, 14 Law & Contemp. Probs. 3, 14 (1949); Clifton V. Kruse, Jr., The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L.J. 65, 66 (1962); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 Wash. U. L.Q. 371, 372-73, 406-07.
[22] See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991); Akhil Reed Amar, The Bill of Rights 32-42 (1998); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 49-50 (1995); Bradley, supra note 11, at 95; Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992); Conkle, supra note 11, at 1132-35; Mary Ann Gelndon & Raul F. Yanes, Structural Free Exercise, 90 Mich. L. Rev. 477, 481-82 (1991); Lietzau, supra note 11, at 1201-02; Paulsen, supra note 11, at 317; William C. Porth & Robert C. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. Va. L. Rev. 109, 136-39 (1987).
[23] See Smith, supra note 22, at 19–21.
[24] See Rodney K. Smith, Getting Off on the Wrong Foot and Back on Again: A Reexamination of the History of the Framing of the Religious Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575-77 (1984)
[25] See The Federalist No. 10, at 84 (J Madison) (R. Rossiter ed. 1961) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a genreal conflagration through the other states. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.”)
[26] See Smith, supra note 22, at 19–20. The traditional view was a “universal assumption” of western civilization for more than a millennium prior to the founding, Sidney E. Mead, The Lively Experiment: The Shaping of Christianity in America 60 (1963), and was relatively widespread in colonial America, see Patricia U. Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial America 14 (1986).
[27] See Smith, supra note 22, at 20. This view, commonly called the “voluntarist” position, accepted that a religious foundation was critical to society, but did not accept, and in cases indeed rejected the notion that government support was necessary for its preservation. Id. This position was shared by some dissenting religious groups, such as the Baptists, as well as Thomas Jefferson and James Madison. Id. See also Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 154–62 (1991); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 138 (1986).
[28] See Smith, supra note 22, at 20. This third, “heretical” view is most often attributed to Thomas Jefferson. See id. at 20. Robert Baird, for example, called Jefferson a “bitter enemy to Christianity” who wished to “overthrow … everything in the shape of a church.” Robert Baird. Religion in the United States of America 230 (Arno Press 1969) (1844). However, this view of Jefferson could be a straw-man; Jefferson acknowledged, at least publicly, the necessity of religion. See Smith, supra note 22, at 20.
[29]
[30]
[31] See Smith, supra note 22, at ___, see also Rodney K. Smith, supra note 24, at 601-04.
[32] Rodney K. Smith at 602-03.
[33] See Rodney K. Smith, supra note 24 at 604; M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 34 (1978).
[34] Madison would later argue in the Virginia ratifying convention that religious rights were inalienable and that the Constitution vested “not a shadow of right in the general government to inter-meddle with religion.” 5 J. Madison, Writings 174, 176 (1904); see also Rodney K. Smith, supra note 24, at 604. Similarly, Alexander Hamilton argued that a Bill of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Federalist No. 84 (A. Hamilton) at 513.
[35] Rodney K. Smith, supra note 24, at 604.
[36] Id.
[37] "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 330 (Jonathan Elliot ed., 2d ed. 1836). James Iredell took a similar attitude in responding to concerns about the lack of a Bill of Rights when in the North Carolina convention he stated: " [Congress] certainly ha[s] no authority to interfere in the establishment of religion whatsoever. ..." 4 ELLIOT'S DEBATES, supra note 35, at 194.
[38] Rodney K. Smith, supra note 24, at 604.
[39] Id. at 604-05.
[40] Id. at 605.
[41] 1 Annals of Cong. 451 (J. Gales ed. 1789)
[42] Rodney K Smith, supra note 24 at 606.
[43] Id.
[44]
[45]
[46]
[47] See Chester J. Antineau, Arthur T. Downey, & Edward C. Roberts, Freedom from Federal Establishment 141 (1964).
[48] The Court has not been alone in focusing so heavily on so few from the first generation of founders, particularly James Madison. Scholars too have often explicitly relied on the thought of Madison in trying to understand religious liberties. See, e.g., Rodney K. Smith, Getting off on the Wrong Foot and Back on Again: A Reexamination of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575 n. 19 (1984) (“The role of individuals (e.g., Madison with regard to the first amendment) is helpful in understanding what was accomplished, not only because the individual was influential, but also because the individual undoubtedly reflected interests of a part of society in general.”)
[49] The Justices themselves have noted the confusion in Establishment Clause doctrine. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) 674- 79 (Kennedy, J., concurring in the judgment in part and dissenting in part); Edwards v. Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 106-07 (1985) (Rehnquist, J., dissenting). See also Phillip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3, 14 (1978) ("Today's problems regarding ... [the Establishment Clause derive] from the attempted application of the first amendment's language to state action, even though the amendment was clearly framed not to be applicable to the states at all.").
[50] See Amar, supra note 22, at 1157-58; Conkle, supra note 11, at 1141; Paulsen, supra note 11, at 317; Porth & George, supra note 22, at 138-39.
[51] See Snee, supra note 22, at 388.
[52] See Bradley, supra note 11, at 95; Conkle, supra note 11, at 1141; Lietzau, supra note 11, at 1201.
[53] See Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L.J. 74, 76 (1963) ("If a particular provision is incorporated within the due process clause, that provision applies to the states to the same extent and in the same ways as it does to the federal government.").
[54] See Cong. Globe, 39th Cong., 1st Sess. 3042 (June 13, 1866) (Senate vote on joint resolution recommending Fourteenth Amendment); Cong. Globe, 39th Cong., 1st Sess., 3149 (June 13, 1866) (House vote).
[55] [background on Henry Wilson]
[56] Cong. Globe, 38th Cong., 1st Sess. 1202-03 (March 19, 1864).
[57] Cong. Globe, 38th Cong., 1st Sess. 1202 (March 19, 1864).
[58] Cong. Globe, 38th Cong., 1st Sess. 1203 (March 19, 1864).
[59] Cong. Globe, 38th Cong., 2nd Sess. 138 (January 6, 1865).
[60] Cong. Globe, 39th Cong., 1st Sess. 474 (January 9, 1865).
[61] Cong. Globe, 39th Cong., 1st Sess. 1073 (February 27,1866).
[62] Cong. Globe, 39th Cong., 1st Sess. 1629 (1866).
[63] Cong. Globe, 39th Cong., 2d Sess. 2764-67 (May 23, 1866).
[64] Id. at 2765-66.
[65] Id. at 2765 (quoting Corfield v. Coryell, 6 Fed. Cases 546 (No. 3230) (C.C. E.D. Pa. 1823).
[66] Id.
[67] See Cong. Globe, 42d Cong., 1st Sess. 81-86 app. (1871).
[68] Id. at 84 app.
[69] Id.
[70] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 548.
[71] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 676.
posted by monju_bosatsu at 8:41 PM on October 14, 2003 [6 favorites]
The issue is much more complicated than just whether or not the founders thought the United States was a “Christian nation.” In addition, our modern understanding of the religious liberties held by citizens against state governments arises initially from the Fourteenth Amendment, and not the First. Although that liberty might be historically and intellectually derived from the notion of religious liberty held by the original founders, there is no formal, structural connection between the two instantiations of rights arising from the First and Fourteenth Amendments. Notably, the First Amendment seems to protect states, and not necessarily individuals, from a federal Establishment of religion. The Fourteenth Amendment, on the other hand, was framed with the specific intention of protecting the rights of individuals against the states. Further, the view of the Fourteenth Amendment as incorporating the Bill of Rights wholesale is at best overly simplistic, and at worst, completely wrong.
1. Importance of history
In 1947 the Supreme Court for the first time addressed the issue of incorporation with respect to the Establishment Clause of the First Amendment In Everson v. Board of Education.[1] The Court, represented by Justice Black writing for the majority, applied the Establishment Clause to the States through fourteenth Amendment to the states summarily, with virtually no discussion of how the Fourteenth Amendment operated to make the Clause applicable to the states.[2] Since Everson, Supreme Court has traditionally relied heavily on the history of the First Amendment in interpreting the Establishment Clause. Justice Rutledge expressed this notion in his dissent in the first Establishment incorporation case, Everson, noting that “[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment.”[3] Justice Black, writing for the majority, clearly agreed on the importance of history in giving content to the Establishment Clause despite reaching a different result in Everson than the one desired by Justice Rutledge.[4] The Court continued to rely on the First Amendment’s history in subsequent cases to flesh out Establishment doctrine.[5] This professed reliance on history is perhaps ironic, given the consensus among many scholars that the Court has largely failed in accurately describing the history of the First Amendment and, in particular, the Establishment Clause.[6]
Justice Black described his understanding of the Establishment Clause by stating that “[t]he “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer on religion over another. ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and state.”[7] Again, the dissents had little disagreement with Black on this point, with Justice Rutledge arguing that the purpose of the Establishment Clause “was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.”[8]
To support his claim, Justice Black relied entirely on the struggles of James Madison and Thomas Jefferson for religious liberty in Virginia.[9] In particular, Justice Black examined Madison’s Memorial and Remonstrance and Jefferson’s Virginia Bill for Religious Liberty to support the claim that the Establishment Clause erected a wall of separation between church and state.[10] Black’s reliance on Jefferson and Madison, and particularly, his understanding of the two founder’s statements as indicative of a constitutional requirement of strict separation of church and state is flawed in two respects.
First, Madison and Jefferson were not the only framers involved in the creation of the First Amendment, and as such, a principled understanding of the Establishment Clause should not confine its historical context to their thought. Instead, the Court in giving the Establishment Clause meaning should be concerned with the consensus and understanding of all those who ratified the First Amendment.[11] It appears, however, that the diversity of though on the proper relationship between religion and government was so great that the only consensus was to leave the issue to the states.[12] Prof Conkle, among others, has argued that the Framers’ debate on the specific wording of the Establishment Clause reflected a deliberate effort to “effect[] a policy of federalism on questions of church and state.”[13]
Second, Justice Black’s argument that the Jeffersonian and Madisonian ideals of religious freedom should form the basis of the constitutional restrictions on the states proves too much. Much of the writing of Jefferson and Madison, including both Virginia’s Bill for Religious Liberty and the Memorial and Remonstrance, was written in response to state establishments and regulations of religious freedoms, and the proper role of the state in governing its own citizens. When considering the framing of the federal Constitution, many considerations other than the simple normative question of the proper relationship between the state and religion are important. Most significantly, at the time of the framing the delegates to the Constitutional Convention and the members of the First congress held great concern for state sovereignty; the Jeffersonian and Madisonian ideals of religious freedom did not necessarily require, or even support, a federally imposed separation of religion and state governments.[14]
The effect of Justice Black’s mistake of relying too heavily on the Jeffersonian and Madisonian ideals of religious freedom was to downplay the just how important federalism was to many, if not all, of the ratifiers of the First Amendment. The entire Bill of Rights, on one level, is affected by the pervasive concerns of the founders for federalism; the result was that the Bill of Rights was only to apply to the federal government and not to the states.[15] With most of the Bill of Rights, however, federalism appears to be a “side constraint.”[16] In other words, the primary substantive concern of the framers with respect to most of the Bill of Rights was for the protection of the particular rights being enshrined there.[17] This argument, perhaps, may be made even with respect to the Free Exercise Clause,[18] but likely not the Establishment Clause.[19] Instead of protecting substantive individual rights, the better view of the Establishment Clause is of a structural provision designed specifically to preserve the states’ sovereign authority over the regulation, and indeed, the establishment, in the literal sense, of religion.[20]
The view we are left with, then, is that the Establishment Clause was designed specifically to prevent Congress from interfering with the establish state churches and with state efforts to accommodate religion, as well as interfering with states that had already disestablished their churches. The reasoning of the framers was not based on a view of appropriate state-church relations, but rather on a view of appropriate federal-state relations, i.e., federalism. The federalist view of the Establishment Clause is not a novel one, at least in the legal academy. Criticism of Everson in this vein began soon after the case was decided, and continued into the fifties and sixties.[21] Several notable contemporary scholars have argued that incorporating the Establishment Clause against the states makes little sense.[22]
2. Support in the States
Leading up to the Constitutional Convention, each of the colonies had a unique experience with religious freedom. More specifically, the colonies were so diverse when it came to religious establishments that it was likely impossible that the delegates could have reached a consensus on a substantive principle of religious freedom that could be adopted in the Constitution or any of its Amendments.[23] The sort of diversity we are speaking of here is across the colonies; in other words, each colony had a unique approach to religious liberty. This kind of diversity should be distinguished from diversity within each colony, where multiple religious factions are all governed by the same colony. Increasing diversity within each colony has been cited as evidence that toleration of heterodox religious practices were also increasing in the colonies.[24] Even Madison, who recognized that the forces of faction and pluralism were present in religion, recognized the importance of federalism as a force in this area, in which the religious establishment in one state would not necessarily bleed into religious establishment either in another state or in the federal government.[25]
The prevailing view in the colonies was a traditional one; religion was essential to society, and government support was a necessary and integral part of religious practice.[26] Despite the prevailing view, however, a significant minority of colonies took the view that while religion was an essential good, governmental support was unnecessary and perhaps even harmful to religious practice.[27] A third view, although not nearly as widespread as the traditional government support view or even the more moderate no-government-interference view, was an anti-religious view.[28] These views were in many cases irreconcilable. This apparent conflict, Smith argues, points inevitably to the conclusion that the Constitution could not have embodied any of the substantive principles of religious liberty extant during the colonial period; the framers, however, could have adopted a “jurisdictional” Establishment Clause.[29]
Steven Smith notes that the pronounced difference in opinion regarding religious establishments among the states was not carried into the debates in the Constitutional Convention.[30] Rather than a contentious argument regarding substantive principles, the debates evidenced near indifference to the concerns of establishment among the framers of the original Constitution.[31] Although both Charles Pinckney and Isaac Backus advocated the inclusion of a guarantee of religious freedom in the Constitution, neither suggestion led to any such provision.[32] There have been several suggestions as to why the Convention failed to provide a guarantee of religious freedom. One came from Alexander Hamilton, who suggested that the delegates simply forgot to address the matter, caught up as they were in the business of creating the structure of the federal government.[33] Another, more influential view, was given by James Madison himself. Madison suggested the right of religious freedom was inalienable and beyond the reach of government.[34] A third view, prominent among the first generation framers, was that because the Constitution was silent about national power over religion, the power in government to regulate religious activities was reserved to the states.[35] Rodney K. Smith suggests that “[i]t is unlikely that the delegates would be apprehensive about state action in this area because they were familiar with current state efforts regarding religious exercise.[36]
3. Ratification Debates
The argument for a federalist view of the Establishment Clause finds further roots in the ratifications debates surrounding the First Amendment, particularly those in the First Congress. The first generation framers, led in many ways by James Madison, saw fit to leave the Constitution without a provision protecting religious liberties.[37] Although Madison and other understood the Constitution structure of enumerated powers to preclude the possibility of the federal government regulating religious practices, the ratifying conventions in the soon-to-be states were less sure.[38] Several states, including North Carolina, New Hampshire, and New York submitted amendment proposals to the First Congress which included provisions limiting the federal government’s ability to interfere with religion.[39] Even Madison, involved in a tight election campaign for a seat in the House of Representatives, gave in to the demands of the Virginia Conventions that he introduce a Bill of Rights in the First Congress.[40]
Madison’s proposed amendment protecting religions liberty provided that “the Civil Rights of none shall be abridged on account of religious belief or worship, no shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext, infringed.”[41] In 1789, the House created a Committee of Eleven to consider the amendments.[42] When the Committee returned the amendments to the House for consideration by the Committee of the Whole, the religious liberty amendment had been truncated to provide that “no religion shall be established by law, nor shall the equal rights of conscience be infringed.”[43]
The lack of debate over a principle of establishment was carried over into the drafting and ratification of the First Amendment. The debate over a substantive principle of religious freedom was sparse[44], and what debate there was largely went against Madison, rather than adopting Madison’s proposal.[45] The relative lack of debate, Smith suggests, should lead us to believe that the question of a substantive principle of religious liberty was largely left to the states.[46] Further, some commentators have suggested that Madison’s amendment was specifically rejected because it might permit the federal government to interfere with the state establishments.[47]
6. Treatment in the court
The arguments of the commentators can be contrasted with the traditional account of the Establishment Clause history, particularly as displayed in Everson, but prevalent throughout the Supreme Court’s body of cases on religious freedom. The Court has traditionally relied heavily, if not exclusively, on the Virginia experience, embodied particularly in Jefferson’s Bill for Religious Freedom, and Madison’s Memorial and Remonstrance, written in opposition to a bill which would assess a tax for the support of Christian ministers.[48] The reliance on the Virginia experience, and its failure to accurately represent the entire historical context within which the Establishment clause and its federalist purpose was drafted has lead to serious doctrinal confusion.[49] The Court’s virtual exclusion of other factors in understanding the substantive content of religious liberty, even as applied to the states, has created a kind of historical myopia which has limited the possibility of achieving a doctrine which scholars would consider historically legitimate.
7. Implications for incorporation
One response to the deep federalist concerns of the Establishment Clause is to suggest that it is not capable of being incorporated. If the original understanding of the Establishment Clause is that it protects state authority over religion from the federal government, incorporation against the states effectively accomplishes the reverse. Where the Establishment Clause originally enabled the states to maintain an established religion, incorporation of the Clause forbids them from doing so. In that respect, the incorporation does not simply fail to reflect the original federalist purpose of the Establishment clause, it in fact subverts the purpose, turning the Establishment Clause back on itself.[50]
More than simply a subversion of the federalism present in the Establishment Clause, some scholars have argued that incorporation of the Establishment Clause is inconsistent with the Constitution, because the Clause should be understood as a specific instantiation of the Tenth Amendment.[51] The Tenth Amendment effectively affirms the Madisonian view that the states retain all the powers not delegated to the federal government by the Constitution. The incorporation of the Tenth Amendment would be nonsensical, as it specifically reserves power to those states. Even if the Establishment Clause is not viewed as a specific instance of the Tenth Amendment, to the extent that the original federalist purpose of the Clause is similar to the Tenth Amendment, incorporation is similarly nonsensical.[52]
The theoretical incoherence of the incorporation of the Establishment Clause depends, however, on a view of the Fourteenth Amendment that treats the rights protected by the Fourteenth as applied directly, without modification, against the states. While that view is supported by some scholars,[53] the evidence with respect to the Establishment Clause may indicate otherwise. If the framers and ratifiers of the Fourteenth Amendment understood it to prevent at least some forms of religious establishment in the states, how are we to reconcile the conflict between that understanding and the federalist understanding of the original Establishment Clause?
B. Religious freedom and the Fourteenth Amendment
The second argument supporting the view that there is a disconnect between the rights of the First and fourteenth Amendments is that, despite the view of the scholars who argue against the incorporation of the Establishment clause, the post-Civil War historical evidence makes it clear that the framers of the Fourteenth Amendment specifically contemplated that the operation of the Amendment would reach regulation of the religious practices of slaves, prevalent in the South. These two observations, one based in the historical evidence of the framing of the First Amendment and one based in that of the Fourteenth, set the stage for a divergent understanding of the religious liberties provided for in the Constitution. The first Amendment was understood to protect the states against federal interference, while the Fourteenth Amendment was, on its face, exactly that kind of federal interference. Where, then, does the religious liberty of the fourteenth Amendment come from?
The focus here with respect to the relationship between the Fourteenth Amendment and religious freedom is on the debates in the Congress leading up to the Amendment’s ratification. There is a rich historical context in which those debates took place, particularly on two fronts: the development of a common law of religion in the states, and the reaction of the northern states to the regulation of slave practices of religion in the south. Both of those fronts are important for two reasons: they provide support for the view that the framers of the Fourteenth amendment provide for religious liberties applicable against the states, and they give shape to the content of those liberties. The goal of this paper, however, is only to demonstrate that the framers of the Fourteenth Amendment clearly understood religious liberty to be one of the rights for which the Amendment provided. To that end, much of the historical context is left for a later, more in depth discussion of the content of religious liberty based in a post-civil war historical understanding.
The debates over abolition, nearly two years prior to the passage in the House of the Fourteenth Amendment,[54] evinced on the part of at least a few Congressmen concern that slavery was destroying religious liberties in the South. Henry Wilson, for example, who was so influential in the development and passage of the Civil Right Bill, was quite concerned with the impact of slavery on religious practices.[55] During one particularly passionate speech in favor of the abolition of slavery through what would become the 13th Amendment, Sen. Wilson centered his argument on the First Amendment, showing, one by one, how slavery had denigrated each of the rights protected there.[56] His description of the effects of slavery on religious freedom is worth quoting in its entirety:
The great rights here enumerated [in the First Amendment] were regarded by the people as too sacred and too essential to the preservation of their liberties to be trusted with no firmer defense than the rule that “Congress can exercise no power which is not delegated to it.” Around this negate protection was erected the positive barrier of absolute prohibition. Freedom of religious opinion, freedom of speech and press, and the right of assemblage for the purpose of petition belong to every American citizen, high or low, rich or poor, wherever he may be within the jurisdiction of the United States. With these rights no State may interfere without breach of the bond which holds the Union together. How have these rights essential to liberty been respected those sections of the Union where slavery held the reins of local authority and directed the thoughts, prejudices, and passions of the people? The bitter, cruel, relentless persecutions of the Methodists in the South, almost as void of pity as those which were visited upon the Huguenots in France, tell how utterly slavery disregards the rights to a free exercise of religion. No religion which recognizes God’s eternal attribute of justice and breathes that spirit of love which applies to all men the sublime commandment, “Whatsoever ye would that men should do unto you, do ye even so to them,” can ever be allowed free exercise where slavery curses men and defies God. No religious denomination can flourish or even be tolerated where slavery rules without surrendering the choicest jewels of its faith into the keeping of that infidel power which withholds the Bible from the poor. Religion, “consisting in the performance of all known duties to God and our fellow-men,” never has been and never will be allowed free exercise in any community where slavery dwarfs the consciences of men. The Constitution may declare the right, but slavery ever will, as it ever has, trample upon the Constitution and prevent the enjoyment of the right.”[57]
Wilson clearly saw that the protection of liberty required a nation rid of slavery. “An equal and exact observance of the constitutional rights of each and every citizen, in each and every State, is the end to which we should cause the lessons of this war to carry us. ... What, then, shall we do? Abolish slavery. How? By amending our national Constitution.”[58] In the same Congress, Representative James Ashley voiced the same deep concerns, noting that slavery had “silenced every free pulpit within its control, and debauched thousands which ought to have been independent.”[59]
The consideration of the Civil Rights Bill provided further ground for members of Congress to address the effects of slavery on religion. Specifically, Senator Lyman Trumbull complained that the laws of several states outlawed for slaves the “exercising [of] the functions of a minister of the Gospel.”[60] Similarly, Senator James Nye argued that the states had no rights to invade those rights protected by the Bill of Rights, including “freedom in the exercise of religion.”[61] Further, Congressman Roswell Hart argued that the Southern states should not be readmitted to the Union until they set up a government where “citizens shall be entitled to all privileges and immunities of other citizens; where no law shall be made prohibiting the free exercise of religion.”[62]
These discussions continued into the debates over the ratification of the Fourteenth Amendment. Senator Jacob Howard introduced the joint resolution proposing the Amendment to the floor of the Senate, and began the debate with a forceful speech on its behalf.[63] Sen. Howard discussed each provision in turn, and most importantly for our purposes, gave a detailed account of his understanding of the privileges or immunities clause.[64] His account began by relying on Corfield v. Coryell, which included in the privileges and immunities of citizens of each of the states in the several states those rights “which are in their nature fundamental,” specifically, protection by the government, the right to acquire property, the right to pass through or reside in a state, the writ of habeas corpus, and the right to institute actions in court. [65] To those rights Sen. Howard added, without exception, the first eight amendments of the Constitution.[66]
Representative John Bingham, the author of much of the Fourteenth Amendment, firmly expressed his understanding of the Amendment he wrote in a speech in 1871 in support of a bill for the enforcement of the Amendment.[67] Bingham argued that the privileges and immunities of citizens of the United States “are chiefly defined in the first eight amendments to the Constitution of the United States.”[68] For emphasis, he then read for the record the first eight amendments, without exception, including the Establishment Clause of the First Amendment.[69]
The Republicans, including Bingham, Trumbull, and Howard, were the primary sponsors and supporters of both the Civil Rights Act of 1866 and the Fourteenth Amendment. They were not, however, the only men who had things to say about religious freedom. Democrat John Stockton, for example, argued that the Fourteenth Amendment “prohibits states from doing what the Congress was always prohibited from doing,” using the religion clauses of the First Amendment as an example.[70] Likewise, Democrat Thomas Norwood stated that before the adoption of the Fourteenth Amendment, “any State may have established a particular religion.”[71]
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[1] Everson v. Board of Education, 330 U.S. 1 (1947).
[2] Id. at 8.
[3] Id. at 33 (Rutledge, J., dissenting).
[4] Id. at 8-15 (recounting Black’s understanding of the history of religious liberty in the colonies and following the founding,)
[5] See Robert L. Cord, Interpreting the Establishment Clause of the First Amendment: A “Non-Absolute Separationist” Approach, 4 Notre Dame J.L. Ethics & Pub. Pol’y 731, 733 (1990) (noting “the Supreme Court has almost exclusively relied upon historical and ‘original intent’ arguments when fashioning its interpretation of the establishment clause.”); see also Robert L. Cord & Howard Ball, The Separation of Church and State: A Debate, 1987 Utah L. Rev. 895, 9007-09 & nn. 51-65 (1987) (listing cases in which the Supreme Court has relied explicitly on historical argumetns in deciding Establishment Clause issues).
[6] Mark Dewolfe Howe, The Gardena and the Wilderness 4 (1965) ( arguing that “the Court has too often pretended that the dictates of the nation’s history, rather than the mandates of its own will, compelled a particular decision. By superficial and purposive interpretations of the past, the Court has dishonored the arts of the historian and degraded the talents of the lawyer.”)
[7] Everson, 330 U.S. at 15-16.
[8] Id. at 31-21 (Rutledge, J., dissenting).
[9] Id. at 13
[10] See id. at 12
[11] See Gerard V. Bradley, Church-State Relationships in America 30 (1987); Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 100 Yale L.J. 1131, 1131 (1988).
[12] See Conkle, supra note 11, at 1132-33; William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L.Rev. 1191, 1200 (1990); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 Notre Dame L. Rev. 311, 319-20 (1986); Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1485, n 384 (1990).
[13] Conkle, supra note 11, at 1134.
[14] See Bradley, supra note 11, at 12; Howe, supra note 6, at 172; Michael W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 20 n. 71.
[15] See Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247-48 (1833).
[16] See Smith at ___.
[17] Id at ___.
[18] But see Smith at ___.
[19] Smith at ___. But see Howe, supra note 6, at 19-23, 29-31 (acknowledging the importance of federalism to the Establishment clause, but arguing that federalism was not the sole purpose)
[20] See Smith at __; Conkle, supra note 11, at 1134.
[21] See Wilber G. Katz, Religion and American Constitutions 8-10 (1964); Edward S. Corwin, The Supreme Court as National School Board, 14 Law & Contemp. Probs. 3, 14 (1949); Clifton V. Kruse, Jr., The Historical Meaning and Judicial Construction of the Establishment of Religion Clause of the First Amendment, 2 Washburn L.J. 65, 66 (1962); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 Wash. U. L.Q. 371, 372-73, 406-07.
[22] See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991); Akhil Reed Amar, The Bill of Rights 32-42 (1998); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 49-50 (1995); Bradley, supra note 11, at 95; Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992); Conkle, supra note 11, at 1132-35; Mary Ann Gelndon & Raul F. Yanes, Structural Free Exercise, 90 Mich. L. Rev. 477, 481-82 (1991); Lietzau, supra note 11, at 1201-02; Paulsen, supra note 11, at 317; William C. Porth & Robert C. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. Va. L. Rev. 109, 136-39 (1987).
[23] See Smith, supra note 22, at 19–21.
[24] See Rodney K. Smith, Getting Off on the Wrong Foot and Back on Again: A Reexamination of the History of the Framing of the Religious Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575-77 (1984)
[25] See The Federalist No. 10, at 84 (J Madison) (R. Rossiter ed. 1961) (“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a genreal conflagration through the other states. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source.”)
[26] See Smith, supra note 22, at 19–20. The traditional view was a “universal assumption” of western civilization for more than a millennium prior to the founding, Sidney E. Mead, The Lively Experiment: The Shaping of Christianity in America 60 (1963), and was relatively widespread in colonial America, see Patricia U. Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial America 14 (1986).
[27] See Smith, supra note 22, at 20. This view, commonly called the “voluntarist” position, accepted that a religious foundation was critical to society, but did not accept, and in cases indeed rejected the notion that government support was necessary for its preservation. Id. This position was shared by some dissenting religious groups, such as the Baptists, as well as Thomas Jefferson and James Madison. Id. See also Steven D. Smith, The Rise and Fall of Religious Freedom in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 154–62 (1991); Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 138 (1986).
[28] See Smith, supra note 22, at 20. This third, “heretical” view is most often attributed to Thomas Jefferson. See id. at 20. Robert Baird, for example, called Jefferson a “bitter enemy to Christianity” who wished to “overthrow … everything in the shape of a church.” Robert Baird. Religion in the United States of America 230 (Arno Press 1969) (1844). However, this view of Jefferson could be a straw-man; Jefferson acknowledged, at least publicly, the necessity of religion. See Smith, supra note 22, at 20.
[29]
[30]
[31] See Smith, supra note 22, at ___, see also Rodney K. Smith, supra note 24, at 601-04.
[32] Rodney K. Smith at 602-03.
[33] See Rodney K. Smith, supra note 24 at 604; M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 34 (1978).
[34] Madison would later argue in the Virginia ratifying convention that religious rights were inalienable and that the Constitution vested “not a shadow of right in the general government to inter-meddle with religion.” 5 J. Madison, Writings 174, 176 (1904); see also Rodney K. Smith, supra note 24, at 604. Similarly, Alexander Hamilton argued that a Bill of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Federalist No. 84 (A. Hamilton) at 513.
[35] Rodney K. Smith, supra note 24, at 604.
[36] Id.
[37] "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 330 (Jonathan Elliot ed., 2d ed. 1836). James Iredell took a similar attitude in responding to concerns about the lack of a Bill of Rights when in the North Carolina convention he stated: " [Congress] certainly ha[s] no authority to interfere in the establishment of religion whatsoever. ..." 4 ELLIOT'S DEBATES, supra note 35, at 194.
[38] Rodney K. Smith, supra note 24, at 604.
[39] Id. at 604-05.
[40] Id. at 605.
[41] 1 Annals of Cong. 451 (J. Gales ed. 1789)
[42] Rodney K Smith, supra note 24 at 606.
[43] Id.
[44]
[45]
[46]
[47] See Chester J. Antineau, Arthur T. Downey, & Edward C. Roberts, Freedom from Federal Establishment 141 (1964).
[48] The Court has not been alone in focusing so heavily on so few from the first generation of founders, particularly James Madison. Scholars too have often explicitly relied on the thought of Madison in trying to understand religious liberties. See, e.g., Rodney K. Smith, Getting off on the Wrong Foot and Back on Again: A Reexamination of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575 n. 19 (1984) (“The role of individuals (e.g., Madison with regard to the first amendment) is helpful in understanding what was accomplished, not only because the individual was influential, but also because the individual undoubtedly reflected interests of a part of society in general.”)
[49] The Justices themselves have noted the confusion in Establishment Clause doctrine. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) 674- 79 (Kennedy, J., concurring in the judgment in part and dissenting in part); Edwards v. Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 106-07 (1985) (Rehnquist, J., dissenting). See also Phillip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3, 14 (1978) ("Today's problems regarding ... [the Establishment Clause derive] from the attempted application of the first amendment's language to state action, even though the amendment was clearly framed not to be applicable to the states at all.").
[50] See Amar, supra note 22, at 1157-58; Conkle, supra note 11, at 1141; Paulsen, supra note 11, at 317; Porth & George, supra note 22, at 138-39.
[51] See Snee, supra note 22, at 388.
[52] See Bradley, supra note 11, at 95; Conkle, supra note 11, at 1141; Lietzau, supra note 11, at 1201.
[53] See Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L.J. 74, 76 (1963) ("If a particular provision is incorporated within the due process clause, that provision applies to the states to the same extent and in the same ways as it does to the federal government.").
[54] See Cong. Globe, 39th Cong., 1st Sess. 3042 (June 13, 1866) (Senate vote on joint resolution recommending Fourteenth Amendment); Cong. Globe, 39th Cong., 1st Sess., 3149 (June 13, 1866) (House vote).
[55] [background on Henry Wilson]
[56] Cong. Globe, 38th Cong., 1st Sess. 1202-03 (March 19, 1864).
[57] Cong. Globe, 38th Cong., 1st Sess. 1202 (March 19, 1864).
[58] Cong. Globe, 38th Cong., 1st Sess. 1203 (March 19, 1864).
[59] Cong. Globe, 38th Cong., 2nd Sess. 138 (January 6, 1865).
[60] Cong. Globe, 39th Cong., 1st Sess. 474 (January 9, 1865).
[61] Cong. Globe, 39th Cong., 1st Sess. 1073 (February 27,1866).
[62] Cong. Globe, 39th Cong., 1st Sess. 1629 (1866).
[63] Cong. Globe, 39th Cong., 2d Sess. 2764-67 (May 23, 1866).
[64] Id. at 2765-66.
[65] Id. at 2765 (quoting Corfield v. Coryell, 6 Fed. Cases 546 (No. 3230) (C.C. E.D. Pa. 1823).
[66] Id.
[67] See Cong. Globe, 42d Cong., 1st Sess. 81-86 app. (1871).
[68] Id. at 84 app.
[69] Id.
[70] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 548.
[71] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 676.
posted by monju_bosatsu at 8:41 PM on October 14, 2003 [6 favorites]
[Here's the rest of the notes.]
[28] See Smith, supra note 22, at 20. This third, “heretical” view is most often attributed to Thomas Jefferson. See id. at 20. Robert Baird, for example, called Jefferson a “bitter enemy to Christianity” who wished to “overthrow … everything in the shape of a church.” Robert Baird. Religion in the United States of America 230 (Arno Press 1969) (1844). However, this view of Jefferson could be a straw-man; Jefferson acknowledged, at least publicly, the necessity of religion. See Smith, supra note 22, at 20.
[29]
[30]
[31] See Smith, supra note 22, at ___, see also Rodney K. Smith, supra note 24, at 601-04.
[32] Rodney K. Smith at 602-03.
[33] See Rodney K. Smith, supra note 24 at 604; M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 34 (1978).
[34] Madison would later argue in the Virginia ratifying convention that religious rights were inalienable and that the Constitution vested “not a shadow of right in the general government to inter-meddle with religion.” 5 J. Madison, Writings 174, 176 (1904); see also Rodney K. Smith, supra note 24, at 604. Similarly, Alexander Hamilton argued that a Bill of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Federalist No. 84 (A. Hamilton) at 513.
[35] Rodney K. Smith, supra note 24, at 604.
[36] Id.
[37] "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 330 (Jonathan Elliot ed., 2d ed. 1836). James Iredell took a similar attitude in responding to concerns about the lack of a Bill of Rights when in the North Carolina convention he stated: " [Congress] certainly ha[s] no authority to interfere in the establishment of religion whatsoever. ..." 4 ELLIOT'S DEBATES, supra note 35, at 194.
[38] Rodney K. Smith, supra note 24, at 604.
[39] Id. at 604-05.
[40] Id. at 605.
[41] 1 Annals of Cong. 451 (J. Gales ed. 1789)
[42] Rodney K Smith, supra note 24 at 606.
[43] Id.
[44]
[45]
[46]
[47] See Chester J. Antineau, Arthur T. Downey, & Edward C. Roberts, Freedom from Federal Establishment 141 (1964).
[48] The Court has not been alone in focusing so heavily on so few from the first generation of founders, particularly James Madison. Scholars too have often explicitly relied on the thought of Madison in trying to understand religious liberties. See, e.g., Rodney K. Smith, Getting off on the Wrong Foot and Back on Again: A Reexamination of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575 n. 19 (1984) (“The role of individuals (e.g., Madison with regard to the first amendment) is helpful in understanding what was accomplished, not only because the individual was influential, but also because the individual undoubtedly reflected interests of a part of society in general.”)
[49] The Justices themselves have noted the confusion in Establishment Clause doctrine. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) 674- 79 (Kennedy, J., concurring in the judgment in part and dissenting in part); Edwards v. Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 106-07 (1985) (Rehnquist, J., dissenting). See also Phillip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3, 14 (1978) ("Today's problems regarding ... [the Establishment Clause derive] from the attempted application of the first amendment's language to state action, even though the amendment was clearly framed not to be applicable to the states at all.").
[50] See Amar, supra note 22, at 1157-58; Conkle, supra note 11, at 1141; Paulsen, supra note 11, at 317; Porth & George, supra note 22, at 138-39.
[51] See Snee, supra note 22, at 388.
[52] See Bradley, supra note 11, at 95; Conkle, supra note 11, at 1141; Lietzau, supra note 11, at 1201.
[53] See Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L.J. 74, 76 (1963) ("If a particular provision is incorporated within the due process clause, that provision applies to the states to the same extent and in the same ways as it does to the federal government.").
[54] See Cong. Globe, 39th Cong., 1st Sess. 3042 (June 13, 1866) (Senate vote on joint resolution recommending Fourteenth Amendment); Cong. Globe, 39th Cong., 1st Sess., 3149 (June 13, 1866) (House vote).
[55] [background on Henry Wilson]
[56] Cong. Globe, 38th Cong., 1st Sess. 1202-03 (March 19, 1864).
[57] Cong. Globe, 38th Cong., 1st Sess. 1202 (March 19, 1864).
[58] Cong. Globe, 38th Cong., 1st Sess. 1203 (March 19, 1864).
[59] Cong. Globe, 38th Cong., 2nd Sess. 138 (January 6, 1865).
[60] Cong. Globe, 39th Cong., 1st Sess. 474 (January 9, 1865).
[61] Cong. Globe, 39th Cong., 1st Sess. 1073 (February 27,1866).
[62] Cong. Globe, 39th Cong., 1st Sess. 1629 (1866).
[63] Cong. Globe, 39th Cong., 2d Sess. 2764-67 (May 23, 1866).
[64] Id. at 2765-66.
[65] Id. at 2765 (quoting Corfield v. Coryell, 6 Fed. Cases 546 (No. 3230) (C.C. E.D. Pa. 1823).
[66] Id.
[67] See Cong. Globe, 42d Cong., 1st Sess. 81-86 app. (1871).
[68] Id. at 84 app.
[69] Id.
[70] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 548.
[71] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 676.
posted by monju_bosatsu at 8:43 PM on October 14, 2003 [3 favorites]
[28] See Smith, supra note 22, at 20. This third, “heretical” view is most often attributed to Thomas Jefferson. See id. at 20. Robert Baird, for example, called Jefferson a “bitter enemy to Christianity” who wished to “overthrow … everything in the shape of a church.” Robert Baird. Religion in the United States of America 230 (Arno Press 1969) (1844). However, this view of Jefferson could be a straw-man; Jefferson acknowledged, at least publicly, the necessity of religion. See Smith, supra note 22, at 20.
[29]
[30]
[31] See Smith, supra note 22, at ___, see also Rodney K. Smith, supra note 24, at 601-04.
[32] Rodney K. Smith at 602-03.
[33] See Rodney K. Smith, supra note 24 at 604; M. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment 34 (1978).
[34] Madison would later argue in the Virginia ratifying convention that religious rights were inalienable and that the Constitution vested “not a shadow of right in the general government to inter-meddle with religion.” 5 J. Madison, Writings 174, 176 (1904); see also Rodney K. Smith, supra note 24, at 604. Similarly, Alexander Hamilton argued that a Bill of rights “would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.” Federalist No. 84 (A. Hamilton) at 513.
[35] Rodney K. Smith, supra note 24, at 604.
[36] Id.
[37] "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 330 (Jonathan Elliot ed., 2d ed. 1836). James Iredell took a similar attitude in responding to concerns about the lack of a Bill of Rights when in the North Carolina convention he stated: " [Congress] certainly ha[s] no authority to interfere in the establishment of religion whatsoever. ..." 4 ELLIOT'S DEBATES, supra note 35, at 194.
[38] Rodney K. Smith, supra note 24, at 604.
[39] Id. at 604-05.
[40] Id. at 605.
[41] 1 Annals of Cong. 451 (J. Gales ed. 1789)
[42] Rodney K Smith, supra note 24 at 606.
[43] Id.
[44]
[45]
[46]
[47] See Chester J. Antineau, Arthur T. Downey, & Edward C. Roberts, Freedom from Federal Establishment 141 (1964).
[48] The Court has not been alone in focusing so heavily on so few from the first generation of founders, particularly James Madison. Scholars too have often explicitly relied on the thought of Madison in trying to understand religious liberties. See, e.g., Rodney K. Smith, Getting off on the Wrong Foot and Back on Again: A Reexamination of the Framing of the Religion Clauses of the First Amendment and a Critique of the Reynolds and Everson Decisions, 20 Wake Forest L. Rev. 569, 575 n. 19 (1984) (“The role of individuals (e.g., Madison with regard to the first amendment) is helpful in understanding what was accomplished, not only because the individual was influential, but also because the individual undoubtedly reflected interests of a part of society in general.”)
[49] The Justices themselves have noted the confusion in Establishment Clause doctrine. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989) 674- 79 (Kennedy, J., concurring in the judgment in part and dissenting in part); Edwards v. Aguillard, 482 U.S. 578, 639-40 (1987) (Scalia, J., dissenting); Wallace v. Jaffree, 472 U.S. 38, 106-07 (1985) (Rehnquist, J., dissenting). See also Phillip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 VILL. L. REV. 3, 14 (1978) ("Today's problems regarding ... [the Establishment Clause derive] from the attempted application of the first amendment's language to state action, even though the amendment was clearly framed not to be applicable to the states at all.").
[50] See Amar, supra note 22, at 1157-58; Conkle, supra note 11, at 1141; Paulsen, supra note 11, at 317; Porth & George, supra note 22, at 138-39.
[51] See Snee, supra note 22, at 388.
[52] See Bradley, supra note 11, at 95; Conkle, supra note 11, at 1141; Lietzau, supra note 11, at 1201.
[53] See Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L.J. 74, 76 (1963) ("If a particular provision is incorporated within the due process clause, that provision applies to the states to the same extent and in the same ways as it does to the federal government.").
[54] See Cong. Globe, 39th Cong., 1st Sess. 3042 (June 13, 1866) (Senate vote on joint resolution recommending Fourteenth Amendment); Cong. Globe, 39th Cong., 1st Sess., 3149 (June 13, 1866) (House vote).
[55] [background on Henry Wilson]
[56] Cong. Globe, 38th Cong., 1st Sess. 1202-03 (March 19, 1864).
[57] Cong. Globe, 38th Cong., 1st Sess. 1202 (March 19, 1864).
[58] Cong. Globe, 38th Cong., 1st Sess. 1203 (March 19, 1864).
[59] Cong. Globe, 38th Cong., 2nd Sess. 138 (January 6, 1865).
[60] Cong. Globe, 39th Cong., 1st Sess. 474 (January 9, 1865).
[61] Cong. Globe, 39th Cong., 1st Sess. 1073 (February 27,1866).
[62] Cong. Globe, 39th Cong., 1st Sess. 1629 (1866).
[63] Cong. Globe, 39th Cong., 2d Sess. 2764-67 (May 23, 1866).
[64] Id. at 2765-66.
[65] Id. at 2765 (quoting Corfield v. Coryell, 6 Fed. Cases 546 (No. 3230) (C.C. E.D. Pa. 1823).
[66] Id.
[67] See Cong. Globe, 42d Cong., 1st Sess. 81-86 app. (1871).
[68] Id. at 84 app.
[69] Id.
[70] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 548.
[71] Cong. Globe, 42d Cong. 1st Sess (1871), excerpted in Reconstruction debates at 676.
posted by monju_bosatsu at 8:43 PM on October 14, 2003 [3 favorites]
[applauds and bows to monju_bosatsu in awe]
posted by anastasiav at 8:46 PM on October 14, 2003
posted by anastasiav at 8:46 PM on October 14, 2003
caddis gets points for being right, monju_bosatsu gets points for being both scholarly and right.
And Jimbob, here was Washington's next sentence:
"Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."
posted by gd779 at 8:59 PM on October 14, 2003
And Jimbob, here was Washington's next sentence:
"Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle."
posted by gd779 at 8:59 PM on October 14, 2003
[remembers to copy and paste graduate thesis the next time a thread about trace metals transport in lake ecosystems comes up]
posted by mathowie at 9:16 PM on October 14, 2003 [2 favorites]
posted by mathowie at 9:16 PM on October 14, 2003 [2 favorites]
28951 MetaFilter L. Rev. 568814
posted by PrinceValium at 9:17 PM on October 14, 2003
posted by PrinceValium at 9:17 PM on October 14, 2003
With this increased diversity comes an enhanced responsibility upon the state to not take positions that favor one religion over another.
I hope this measured and reasonable view prevails. I'll die before I am forced to worship the nailed god.
posted by moonbiter at 9:26 PM on October 14, 2003
I hope this measured and reasonable view prevails. I'll die before I am forced to worship the nailed god.
posted by moonbiter at 9:26 PM on October 14, 2003
Eh, apologies. I was witnessed at today. The evangelical was very persistant, and it was quite annoying.
Nice essay, monju.
posted by moonbiter at 9:31 PM on October 14, 2003
Nice essay, monju.
posted by moonbiter at 9:31 PM on October 14, 2003
maybe if he got nailed more often he wouldn't have been as cranky as he was in the old testament.
posted by substrate at 5:05 AM on October 15, 2003
posted by substrate at 5:05 AM on October 15, 2003
Further, the view of the Fourteenth Amendment as incorporating the Bill of Rights wholesale is at best overly simplistic, and at worst, completely wrong.
Disagreement. The plain words of the amendment state clearly "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Obviously that's not the path that incorporation actually took, but does anyone really think that the Slaughterhouse cases were good law?
posted by ROU_Xenophobe at 6:09 AM on October 15, 2003
Disagreement. The plain words of the amendment state clearly "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."
Obviously that's not the path that incorporation actually took, but does anyone really think that the Slaughterhouse cases were good law?
posted by ROU_Xenophobe at 6:09 AM on October 15, 2003
The view we are left with, then, is that the Establishment Clause was designed specifically to prevent Congress from interfering with the establish state churches and with state efforts to accommodate religion, as well as interfering with states that had already disestablished their churches.
That seems like tortured, fallacious logic designed to achieve the outcome of putting back into place low-scale religious oppression. That or torturing logic for amusement.
For that view to be right, it must be the case that the first amendment only protects states, and not individual citizens, from the establishment of religion by Congress. If the first amendment protects individuals against the establishment of a church by Congress, then that protection gets carried through against the states through incorporation (or, in a timeline without an evil and corrupt court, through the privileges and immunities clause).
But the first amendment clearly *does* protect individuals, and not merely states, from the establishment of religion by the national government. Would it have been constitutional for Congress to establish a church for the District of Columbia, which is not in any state? The clear words of the amendment forbid it. Would it have been constitutional for Congress to establish a church in the non-state territories of the US? Again, the language of the amendment clearly forbids it.
Ergo, the amendment protects individuals against the federal government. Ergo, it applies now to the states.
posted by ROU_Xenophobe at 6:17 AM on October 15, 2003
That seems like tortured, fallacious logic designed to achieve the outcome of putting back into place low-scale religious oppression. That or torturing logic for amusement.
For that view to be right, it must be the case that the first amendment only protects states, and not individual citizens, from the establishment of religion by Congress. If the first amendment protects individuals against the establishment of a church by Congress, then that protection gets carried through against the states through incorporation (or, in a timeline without an evil and corrupt court, through the privileges and immunities clause).
But the first amendment clearly *does* protect individuals, and not merely states, from the establishment of religion by the national government. Would it have been constitutional for Congress to establish a church for the District of Columbia, which is not in any state? The clear words of the amendment forbid it. Would it have been constitutional for Congress to establish a church in the non-state territories of the US? Again, the language of the amendment clearly forbids it.
Ergo, the amendment protects individuals against the federal government. Ergo, it applies now to the states.
posted by ROU_Xenophobe at 6:17 AM on October 15, 2003
For that view to be right, it must be the case that the first amendment only protects states, and not individual citizens, from the establishment of religion by Congress.
The Establishment Clause, at least, was most likely intended to shield states from interference from the federal government. Whether or not it protected individuals at all is a tough question to answer if we consider only what occured prior to the enactment of the Fourteenth Amendment.
If the first amendment protects individuals against the establishment of a church by Congress, then that protection gets carried through against the states through incorporation (or, in a timeline without an evil and corrupt court, through the privileges and immunities clause).
But consider my argument. If the First Amendment was originally understood to protect the states, then applying that Amendment to the states, restricting their ability to operate within the religious sphere, is an inversion of what the Amendment was designed to do. I understand that is not a desirable result, but most commentators who have really studied the history agree.
But the first amendment clearly *does* protect individuals, and not merely states, from the establishment of religion by the national government. Would it have been constitutional for Congress to establish a church for the District of Columbia, which is not in any state? The clear words of the amendment forbid it. Would it have been constitutional for Congress to establish a church in the non-state territories of the US? Again, the language of the amendment clearly forbids it.
Except that it doesn't. Congress did sanction churches in DC in the early 1800s, and did establish churches and religious schools in the Northwest territories. In fact, it was a specific goal of Congress to send Christian missionaries to the Native Americans during that time period. The history on this subject is pretty clear, even if it's not acknowledged in law schools.
Perhaps the point of my argument, however, was lost in the length of my comment. While the original First Amendment--at least the Establishment Clause--was designed to protect states and arguably not protect individuals, the Fourteenth Amendment radically changed the relationship between the federal government, the states, and the people. It is clear in the words of Sen. John Bingham, who drafted the Fourteenth, and Lyman Trumbull, who was the primary sponsor of the first Civil Rights Act, that the Fourteenth Amendment clearly protects the people's religious liberties against interference from the states. My point is that principle is more properly found in the abolition movement of the 1850s rather than the fight for independance in the 1770s and 1780s.
Ironically, this supports the view that Jefferson and Madison are central figures is that jurisprudence. Much of the study of the history of the First Amendment has resulted in the argument that Jefferson and Madison weren't that important in the drafting of the Establishment Clause, and that other figures were more central in creating a federalist First Amendment. Jefferson was in France when the First Amendment was drafted, and did not see it until after the fact. Madison proposed an entirely different amendment, which was gutted and replaced with what we have today.
However, if you accept my argument, by the time of the Civil War, the thought of Jefferson and Madison on religious liberties had become much more persuasive, at least in the North. Ultimately, therefore, relying on Jefferson and Madison to support a strong separation of church and state is justified, not by their role in the drafting of the First Amendment, but because of the importance of their understanding of religious liberties to the drafters of the Fourteenth Amendment.
posted by monju_bosatsu at 6:43 AM on October 15, 2003
The Establishment Clause, at least, was most likely intended to shield states from interference from the federal government. Whether or not it protected individuals at all is a tough question to answer if we consider only what occured prior to the enactment of the Fourteenth Amendment.
If the first amendment protects individuals against the establishment of a church by Congress, then that protection gets carried through against the states through incorporation (or, in a timeline without an evil and corrupt court, through the privileges and immunities clause).
But consider my argument. If the First Amendment was originally understood to protect the states, then applying that Amendment to the states, restricting their ability to operate within the religious sphere, is an inversion of what the Amendment was designed to do. I understand that is not a desirable result, but most commentators who have really studied the history agree.
But the first amendment clearly *does* protect individuals, and not merely states, from the establishment of religion by the national government. Would it have been constitutional for Congress to establish a church for the District of Columbia, which is not in any state? The clear words of the amendment forbid it. Would it have been constitutional for Congress to establish a church in the non-state territories of the US? Again, the language of the amendment clearly forbids it.
Except that it doesn't. Congress did sanction churches in DC in the early 1800s, and did establish churches and religious schools in the Northwest territories. In fact, it was a specific goal of Congress to send Christian missionaries to the Native Americans during that time period. The history on this subject is pretty clear, even if it's not acknowledged in law schools.
Perhaps the point of my argument, however, was lost in the length of my comment. While the original First Amendment--at least the Establishment Clause--was designed to protect states and arguably not protect individuals, the Fourteenth Amendment radically changed the relationship between the federal government, the states, and the people. It is clear in the words of Sen. John Bingham, who drafted the Fourteenth, and Lyman Trumbull, who was the primary sponsor of the first Civil Rights Act, that the Fourteenth Amendment clearly protects the people's religious liberties against interference from the states. My point is that principle is more properly found in the abolition movement of the 1850s rather than the fight for independance in the 1770s and 1780s.
Ironically, this supports the view that Jefferson and Madison are central figures is that jurisprudence. Much of the study of the history of the First Amendment has resulted in the argument that Jefferson and Madison weren't that important in the drafting of the Establishment Clause, and that other figures were more central in creating a federalist First Amendment. Jefferson was in France when the First Amendment was drafted, and did not see it until after the fact. Madison proposed an entirely different amendment, which was gutted and replaced with what we have today.
However, if you accept my argument, by the time of the Civil War, the thought of Jefferson and Madison on religious liberties had become much more persuasive, at least in the North. Ultimately, therefore, relying on Jefferson and Madison to support a strong separation of church and state is justified, not by their role in the drafting of the First Amendment, but because of the importance of their understanding of religious liberties to the drafters of the Fourteenth Amendment.
posted by monju_bosatsu at 6:43 AM on October 15, 2003
Except that it doesn't. Congress did sanction churches in DC in the early 1800s, and did establish churches and religious schools in the Northwest territories.
Strictly, that doesn't mean that this wasn't forbidden by the Constitution. That merely means that either nobody bothered to sue, which seems likely, or that the courts did not take the freedoms and immunities of the Bill of Rights very seriously (as was generally the case before the Warren court, IMHO).
While the original First Amendment--at least the Establishment Clause--was designed to protect states and arguably not protect individuals, the Fourteenth Amendment radically changed the relationship between the federal government, the states, and the people.
No argument there. It's explicitly trying to impose federal standards on what had been state prerogatives.
posted by ROU_Xenophobe at 7:02 AM on October 15, 2003
Strictly, that doesn't mean that this wasn't forbidden by the Constitution. That merely means that either nobody bothered to sue, which seems likely, or that the courts did not take the freedoms and immunities of the Bill of Rights very seriously (as was generally the case before the Warren court, IMHO).
While the original First Amendment--at least the Establishment Clause--was designed to protect states and arguably not protect individuals, the Fourteenth Amendment radically changed the relationship between the federal government, the states, and the people.
No argument there. It's explicitly trying to impose federal standards on what had been state prerogatives.
posted by ROU_Xenophobe at 7:02 AM on October 15, 2003
Not having the time to craft a more coherent response, I was just going to post, "Bite me!" and slink on off but, on preview, what gd779 said. Thank you caddis & monju_bosatsu
posted by Pressed Rat at 8:08 AM on October 15, 2003
posted by Pressed Rat at 8:08 AM on October 15, 2003
Ben Franklin on Taxes:
Private property ... is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing, its contributors therefore to the public Exigencies are not to be considered a Benefit on the Public, entitling the Contributors to the Distinctions of Honor and Power, but as the Return of an Obligation previously received, or as payment for a just Debt.
via Maxspeak
posted by goethean at 8:55 AM on October 15, 2003
Private property ... is a Creature of Society, and is subject to the Calls of that Society, whenever its Necessities shall require it, even to its last Farthing, its contributors therefore to the public Exigencies are not to be considered a Benefit on the Public, entitling the Contributors to the Distinctions of Honor and Power, but as the Return of an Obligation previously received, or as payment for a just Debt.
via Maxspeak
posted by goethean at 8:55 AM on October 15, 2003
Probably one of the most fascinating and intellectualy satisfying threads I have ever read. Thank you all.
posted by donfactor at 8:56 AM on October 15, 2003
posted by donfactor at 8:56 AM on October 15, 2003
Thanks to monju for a wonderfully informative post.
(I love you, mefi.)
posted by jokeefe at 9:42 AM on October 15, 2003
(I love you, mefi.)
posted by jokeefe at 9:42 AM on October 15, 2003
Wow! Err, is there like an executive summary of that?
posted by inpHilltr8r at 11:52 AM on October 15, 2003
posted by inpHilltr8r at 11:52 AM on October 15, 2003
Well, I'm still waiting to hear what TJ has to say. Edu-tain us, mighty one!
posted by britain at 6:17 PM on October 15, 2003
posted by britain at 6:17 PM on October 15, 2003
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And even for that, he's done a pretty poor job. Just scanning the list, I found at least one statement (from Washington) in support of religion.
posted by gd779 at 6:43 PM on October 14, 2003