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April 2017 Policy Study, Number 17-6


A Commentary on the Bill of Rights


Part 2



Amendment I:


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


We will discuss this amendment in three parts, the first concerning religion.  The first five words of the amendment are, “Congress shall make no law . . . ”  Bear in mind two things as we discuss this amendment:  First, that these five words apply to each of the succeeding clauses of this amendment, and second, that it is Congress, and Congress alone, which has been constrained from making laws that are applicable to the subjects listed herein.  It then follows that, with Congress thus limited, and the other two branches of the national government not having the authority to legislate period, it is the central government that is thus limited.


The following is taken from a letter of Thomas Jefferson, which was in response to a clergyman who had asked Mr. Jefferson’s opinion of Thanksgiving proclamations.


I consider the government of the United States as interdicted from intermeddling with religious institutions, their doctrines, discipline, or exercise.  This results from the provision that no law shall be made respecting the establishment of religion or the free exercise thereof, but also from that which reserves to the states the powers not delegated to the United States.  [Tenth Amendment] Certainly no power over religious discipline has been delegated to the general [central] government.  It must thus rest with the states as far as it can be in any human authority.  (Emphasis added).


As you can see, in the matter of the several states, this amendment is decidedly silent. The distinction will be of some interest shortly.  The first clause is “respecting an establishment of religion . . . ”  At the time of the separation of the colonies from Great Britain, the term “established religion” had a very specific meaning to both the people of the colonies and England.  Their concept was one of an official state church.  This church enjoyed a privileged relationship with the state.  It was supported from the state treasury, and thus every citizen was obliged to support it; it was also vested with powers that were denied to all other religions.


The Church of England was the official government-sanctioned religion in Great Britain.  People who practiced other religions were persecuted, and very literally prosecuted, by the government of England — as was William Penn, whom you will read about later.  England desired to enforce this government-sponsored religious monopoly on the colonies, but it was not very successful.  One of the main reasons, if not the prime reason, was that the early colonists risked life and limb on the voyage to this continent to escape the religious persecution they faced in their home country.  Here they established religious settlements, and eventually entire colonies, where they could practice the religion that best suited them.


Yes, many of the original colonies did have stated-sponsored religions, and they were quite reticent to ever again be subjugated to the Church of England.  Though little is made of these facts, it is my personal belief they were one of the leading reasons that caused our Founders to take up arms against the greatest military power then existing on earth.  Several of the colonies still had state religions, even at the time this amendment was being debated.  They had no intent of having their religious beliefs subjugated to the government of England.  And so it is no stretch to suggest that they also had no intent of having those beliefs subjugated to the central government of a new nation.  It is for this reason they placed a constitutional prohibition in this matter only on the central government.  If this was not the case, then how do we explain the history of the period?  Our forefathers did not fear religion per se.  They feared persecution and interference by a central government in their practice of religion and the illicit use that could be made of religion when it was controlled by a central government.


The second clause is “ . . . or prohibiting the free exercise thereof.”  When one considers the “spirit of the debates” and the contemporary history surrounding that debate, and applies a strict construction to this amendment, it is quite possible this clause applied to the state’s sanction of religion as well as the religious practice of the individual.  As the people of the day were unlikely to simply abandon their current custom, I find it exceedingly doubtful this amendment could have passed, given the Court’s current construction.  In fact, state-sponsored religion lived on for a period of time after the adoption of the Bill of Rights.  All this is not to argue for the reinstitution of state-sponsored religion . . . far from it.  It is merely to point out the considerable difference in the deference that was granted to the public practice of religion between then and now.


Then the public practice of religion was not only tolerated . . . it was expected and actively encouraged.  The Northwest Ordinance recognized the necessity and stressed the need for “religion and morality.”  Today, it seems the Courts are determined to expunge every vestige of the public practice of religion.  If we assume the people of the day were capable of comprehending the laws they adopted, as we properly ought, and that their public practice of religion at that time was acceptable to that law, as was evidenced by their unobstructed custom of doing so, then it should appear reasonably clear to us that the Court’s present construction of this amendment is somewhat off the mark.


What is religion?  Like innumerable other words, the word “religion” has more than one nuance.  We shall look at two of them and try to discern which of them concerned our Founders and which of them is apparently the concern of our current Court.  The first view is that of “a set of beliefs concerning the cause, nature, and purpose of the universe, when considered as the creation of a superhuman agency, and having a moral code for the conduct of human affairs.”  The second view of religion is as “a body of persons or institutions adhering to a set of religious beliefs and practices.”  The former is all about ideas.  The latter is all about blocs of persons who hold those ideas.


When we consider the actions of the people of that former time in regard to the subject of religion, it should be readily apparent our Founders were little, if any, concerned with our first definition.  And even in regard to the second, their concern seems to be limited to the situation of the central government (institution) compelling any of the several states or individuals to conform to a national religion.  James Madison was once asked about his understanding of this clause.  He responded it was that, “Congress shall not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”  James Madison and George Mason considered religion to be “the duty we owe our Creator and the manner of discharging it.”




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