Saturday, May 19, 2012

What the First Amendment Really Says about Religion

Many people incorrectly maintain that the First Amendment was designed to remove any and all religious precepts and considerations from civil affairs. An example of this misinterpretation can be found in the Congressional Quarterly’s Guide to the U.S. Supreme Court:
The two men most responsible for its inclusion in the Bill of Rights constructed the clause absolutely.
 Thomas Jefferson and James Madison thought that the prohibition of establishment meant that a presidential proclamation of Thanksgiving Day was just as improper as a tax exemption for churches.[1]
The historical facts dispute this interpretation of the First Amendment. James Madison issued at least four Thanksgiving Day proclamations. Note the language used by Madison in his 1814 proclamation: “public humiliation and fasting and of prayer to Almighty God . . . their humble adoration to the Great Sovereign of the Universe, of confessing their sins and transgressions, and of strengthening their vows of repentance and amendment.”[2]

If the Congressional Quarterly’s Guide to the U.S. Supreme Court has accurately captured the meaning of the establishment clause of the First Amendment, then Madison “violated both his oath of office and the very instruments of government that he helped write and labored to have ratified.”[3] In the same way, if Jefferson “construed the establishment clause absolutely, he also violated his oath of office, his principles, and the Constitution when, in 1802, he signed into federal law tax exemption for the churches in Alexandria County Virginia.”[4]

Of course, neither Madison nor Jefferson violated the First Amendment by these official State acts. It is the modern day secularist interpreter of Madison and Jefferson who have misread, misinterpreted, and misapplied the First Amendment. This misreading of the First Amendment has come about through “the change in the intellectual climate of the universities, and consequently in the media and the courts. It is these opinion-making centers that have influenced common thinking about law, morality, and religion. These centers have thrown the credibility of religious witness into doubt.”[5]

Too many debates over the meaning and implementation of the First Amendment are confused by a failure to cite it accurately:
“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.”
An accurate interpretation of the amendment must refer to the following points:
  • There is no mention of the words Church, State, or separation in the First Amendment or in the body of the Constitution.
  • Included in the amendment are additional items which relate to the free exercise of religion. Usually these constitutional protections are narrowly applied so they are not a part of the freedom of religion provision: the right to talk about religion (freedom of speech), the right to publish religious works (freedom of the press), the right of people to worship publicly, either individually or in groups (freedom of assembly), and the right to petition the government when it goes beyond its delegated constitutional authority in these areas (the right of political involvement).
  • The prohibition is addressed to Congress. Individual states and governmental institutions (e.g., public schools, capitol building steps, national parks, etc.) are not included in the amendment’s prohibition. As clear as this is, some try to rewrite the First Amendment in order to fit their misconceptions about its meaning and implementation. For example, “The First Amendment to the U.S. Constitution is the direct descendant of Jefferson’s Virginia resolution, and its words are quite clear. Congress, and by extension the states, ‘shall make no law respecting an establishment of religion.’”[6] If the constitutional framers wanted to include the phrase “and by extension the states,” they would have done so. If they had, the states would never have ratified the Constitution.
  • There is no mention of a freedom from religion. The First Amendment offers no support of a position that would outlaw religion just because it exists or offends those of a different religion or those who have no religion at all (agnostics or atheists).
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1.       Congressional Quarterly’s Guide to the United States Supreme Court (Washington, DC: Congressional Quarterly, Inc., 1979), 461. Quoted in Robert L. Cord, “Church-State Separation and the Public Schools: A Re-evaluation,” Educational Leadership (May 1987), 28. []
2.       The four proclamations in their entirely are published in Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (Grand Rapids, MI: Baker Book House, [1982] 1988), 257–260. []
3.       Cord, “Church-State Separation and the Public Schools,” 26. []
4.       2 Statutes at Large 194, Seventh Congress, Sess. 1, Chap. 52. Quoted in Cord, “Church-State Separation and the Public Schools, 28. []
5.       Jude P. Dougherty, “Separating Church and State,” The World & I (December 1987), 683. []
6.       Editorial Page, Atlanta Constitution (November 15, 1994), A18. []

1 comment:

  1. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”