“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.”
Four distinct liberties appear in the first amendment, protected by the strongest language one could devise.
At first glance, it is simply several separate liberties. But they are, in fact, one singular liberty with four inter-dependent parts. Likely, a half-drunken clerk, pulling an all-nighter, penned the last draft of the First Amendment. The author scribbled them down hastily, probably at a tavern, and certainly as his whiskey and candlelight dwindled.
To suggest the clerk’s intoxication is by no means a slight on the clerk. It just demonstrates that a drunken Tea Partier understands the type of environment in which liberty flourishes better than the modern Liberal. The clerk must have understood the liberties carefully enshrined in the First Amendment are equally dependent on the others for their success. He also understood that first among the liberties of the First Amendment was the freedom of religion.
As we know, some of the founders believed amendments to the new Constitution were a necessity. Two Virginians, both known as the “Father of the Bill of Rights” were at the center of the debate. They thought that without further limiting instructions for the Federal government, Congress could easily trample on the rights reserved to the states and the people. Thus, they created the 10 amendments to the Constitution we now know as the Bill of Rights.[i] Understanding how Virginia had already dealt with the issue of religion gives us a clue to the Founder’s intent.
Virginia maintained its officially established Anglican Church throughout its existence as a colony.[ii] In 1689, the English Act of Toleration permitted Protestant dissenters to worship freely, so long as they were registered with the State. Still, non-members were required to pay taxes to the Church for the benefit of indigents in the community. They were also required to attend the Church once a month to receive government news. The Virginia House of Burgesses further limited the freedoms to prevent “night meetings, preaching among slaves, and other new dangers.”[iii]
In 1774, the Virginian legislature debated a resolution calling for the relief of Boston. The Boston port had been closed by the British because of the Tea Party. The British Governor of Virginia, Dunmore, abolished the House of Burgesses rather than allow such a resolution. Dunmore proceeded to steal the powder and shot from the Virginia militia,[iv] and, forced to return it to an angry mob, fled to a British ship off the Virginia shore.[v] Legislators then met in early 1776 at Williamsburg, to establish a new Constitution for the State. Politically, dissenters from the State church comprised “two-thirds of the white population.”[vi] George Mason insisted on “the fullest Toleration in the Exercise of Religion.” James Madison observed toleration would not prevent a State-established religion, and suggested alternate language. Finally, the men agreed on another paragraph which read in part,
“…all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forebearance, love, and charity toward the other.”
Madison and his fellow legislators thus “decreed religious freedom, while at the same time affirming the foundation of Virginia society on…the Christian faith.”[vii] These principles were echoing in the minds of Mason and Madison as they wrote, “Congress shall make no law respecting an establishment of religion…”
The clerk got his words from Madison and Mason. Where did they get their beliefs? “The Virginians avidly read Locke, who Jefferson said was one of the three greatest men in history.”[viii] Locke proposed that people enter into a contract to form a government. Government serves to protect their life, liberty, and property. Locke didn’t end there. He understood salvation is a personal experience, not a state mandate. The Church’s “primary concerns are spiritual and moral, and nothing ought nor can be transacted in this society relating to the possession of civil and worldly goods.”[ix] With this logic, Locke declared disestablishment.
Locke’s disestablishment became the bedrock for the First Amendment, and prevented the Federal government from foisting a national religion upon the states. Not only did Locke’s logic work, it also fit in with the founder’s understanding of their own history. English rule under Henry VIII became increasingly corrupt and tyrannical as he eliminated papal influence over the church. As he merged the Church with the State, Henry removed every human obstacle. Even Chancellor Sir Thomas More, the most able public servant in England, suffered execution after a show trial. Given the religious pluralism at the Founding, such a consolidation of power would have been politically impossible in America without a civil war. Bad politics and bad government could not coexist in the young Republic.
As the Founders understood it, disestablishment—the principle that Congress could not establish a State religion—prohibited only the national government from establishing a state religion. States kept their State-sanctioned religions for the public good. This keyed in perfectly with their understanding of the 10th Amendment. The Founders also understood the clause did nothing to prevent Church influence over State affairs.
The clerk, at the direction of Madison and Mason, must have understood it all.
This is the first of a series of articles from Daniel Hubert regarding the historical inspirations and legal implications of the amendments. Stay tuned for future musings, and please share these by email and social media.
[i] There were originally 12 amendments proposed, but only 10 were adopted.
[ii] A. James Reichley, Faith in Politics, 84.
[iii] It should come as no surprise that legislators would be concerned with “preaching among slaves.” The Gospel, where preached, inevitably leads humanity not just to spiritual freedom, but political and economic freedom as well. The most despotic and bloody regimes, where humans are little more than slaves, all deny the existence of God and prohibit Christianity.
[iv] The Colony of Virginia owned the powder and shot in case of attack from the natives. The Governor was the Crown’s representative, with no authority over the militia or its weapons.
[vi] A. James Reichley, Faith in Politics, 85.
[vii] A. James Reichley, Faith in Politics, 85.
[viii] A. James Reichley, Faith in Politics, 89. The other two, Jefferson said, were Francis Bacon and Isaac Newton.
[ix] Locke did not support complete tolerance. He rejected Islam (Mohammedanism) and Atheism. See Reichley, 91.