Principles or Procedure?

March/April 1999 Do the religion clauses of the First Amendment say anything meaningful about the respective roles of the church and the state? In "Wrong Jurisdiction" (Liberty, March/April 1998) law professor Steven Smith argues that the Founders "carefully avoided" adopting any principle of religious freedom, but instead deferred the entire question to the state governments. Thus the First Amendment does not guarantee religious freedom of any sort; its sole purpose rather was merely to guarantee to the states the right to do with religion as they pleased. In essence, Smith argues that the religion clauses contain no answer to the question of how church and state should relate.

If Smith is correct, than any examination of the thought and writings of the framers to discern a principle of religious freedom to guide modern religious liberty jurisprudence is misguided and ultimately fruitless. To base any modern arguments for religious liberty on our country's constitutional heritage and history of religious freedom is, by Smith's reasoning, to appeal to myth and fantasy rather than to constitutional text and history. This is a troubling and ultimately wrong conclusion.

Bill of Rights, Bill of Tyrannies

Smith's argument that the religion clauses merely dictate jurisdiction for religious matters and don't actually protect the religious rights of people turns the Bill of Rights on its head. If one is to argue for a purely jurisdictional role for the free exercise clause, to be consistent, the same must apply to the other First Amendment protections. These would include freedom of speech, freedom of the press and the right of assembly. If the First Amendment does not protect these rights, at least as to the federal government, but merely hands them over to be protected or abused as the states see fit, then it is not really a Bill of Rights. In fact, its only role would be to prevent the federal government from protecting these rights. Sounds more like a Bill of Tyrannies than of Rights.

Smith would claim that "the Bill of Rights, rather than enunciating some grand principle of religious freedom, left the states total autonomy in religious matters." He suggests that the Founders envisioned, and even desired, the states to create religious establishments. No support is cited for this position other than a speculation that "representatives from the New England states probably" held such views.

The frailty of this argument is shown when one applies it to other items in the Bill of Rights. Congress also left the regulation of free speech and free press rights to the states. Did this mean that Congress desired the states to infringe on these rights as well? Hardly. The limitation on the Constitution's protection of these rights from state government action came from the founders' understanding of federalism and the limits on congressional power, and not from a limited or cramped views of the contours or importance of freedom of speech or the press.

Neither did the Founders have a limited view of the importance of the freedom of religion. A fair way of putting it would be that in the Bill of Rights, Congress did enunciate grand principles of religious freedom, freedom of speech, and freedom of the press, but because of the limitations of federalism, Congress did not force the state governments to abide by these standards, even if they hoped that the states would follow the federal example in these matters. A few years later James Madison expressly articulated this desire regarding the religion clauses: "Ye states of America,which retain in your constitutions or codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise and purify your systems, and make the example of your country as pure and complete, in what relates to the freedom of the mind and its allegiance to the Maker."1 Madison's desire became a reality when Massachusetts was the last state to disestablish its state church in 1833.

Jurisdiction or Religious Freedom or Both?

Scholars generally agree that the First Amendment as originally drafted was not meant to bind state governments in regard to matters of religion. However, it does not follow from this, as Smith suggests, that it contains no principle of church and state. There was still the matter of the federal government and its relationship to religion. The Framers had to decide the general question of how government (in this case, the federal government) should relate to religion. It is no large leap, as Smith would imply, to then apply this principle of religion and government to other kinds of governments, as the Supreme Court has chosen to do in applying the free exercise clause to the states.

Why can't the religion clauses deal with both jurisdiction and the protection of religious freedom? In not allowing for this possibility, Smith runs afoul of the logical fallacy of the excluded middle when he insists that because the clause contains jurisdictional instructions, it cannot contain substantive protection for religious liberty. Smith seems to believe that once the argument is established that the Constitution prevents the jurisdiction of the federal government over religious matters at the state level, that he has defeated the notion that the Constitution can contain a substantive provision of religious freedom.

But both can be true. The Constitution could, and did until the passage of the Fourteenth Amendment, prevent the government from regulating the establishment of religion at the state level, which was a jurisdictional limit. But it also can, and textually does, give the federal government an affirmative role in protecting the "free exercise" of religion at the federal level, which on its face is a substantive provision.

Six Overlooked Words

When the face, or text, of the religion clauses are examined, the most serious flaw in Smith's argument emerges. His arguments essentially ignore fully one half of the religion clauses. The religion clauses read, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Smith's argument focuses exclusively on the first 10 words and ignores the remaining six, perhaps the six most crucial words in the Constitution.

If the Framers only goal in the religion clauses was to leave religion to the states, the first nine words would have done it. This clause, on its own, would suffice to hand jurisdiction over issues of religious establishment to the states. This clause alone would leave no role for the federal government in issues of religious establishment. But the Framers did not stop there. The six words "or prohibiting the free exercise thereof" gives the Congress an affirmative duty to respect religious freedom.

While the injunction is worded in the negative, for it to have any meaning it must have an affirmative component mandating that Congress protect religion from intrusion by the federal government. To accomplish what Smith argues it does, the free exercise clause would have to be worded "Congress shall make no law . . . respecting the free exercise thereof." But the founders did not word it that way. And they used the words they did because those words carried widely understood meanings and implications for the protection of religious freedom in Colonial America.

Freedom at the Founding

The Founders would certainly have been surprised to learn that the Constitution they created contained no principle or "right of religious freedom." The only direct, contemporary explanation offered on the floor of the Congress for the free exercise clause was made by Daniel Carroll. He said that the clause was needed because "the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present Constitution."2 This language is not that of one hoping to only protect states' rights, to ensure the states' rights to tyranny. Rather it is the language of one who believes he is affirm-atively creating protection for personal and corporate religious rights.

In promising to seek a bill of rights, Madison promised to support "the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude."3 Later in his life Madison wrote favorably of the constitutional principle of the "the immunity of religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace."4

As Smith astutely notes, it is not generally fair to attribute the statements of a few Founders as representing the beliefs of all of them. However, when clear and public statements are made, like those of Carroll and Madison, and these statements are not publicly and openly opposed or contradicted, then one can safely infer that there was not general or widespread opposition to these views.

Further, while impossible to get inside the head of every founder, we do have information from each of the Founders' states as to what similar clauses and language meant there. The framers did not use the phrase "free exercise of religion" in a vacuum, and the background context of those words is much broader than the efforts of Jefferson and Madison in framing the Virginia Statute of religious freedoms. After the Revolution and prior to the Constitution, 11 of the 13 states adopted new constitutions, many with a complete bill of rights. By the time of the framing in 1789, every state but Connecticut had a constitutional provision protecting religious freedom. As one constitutional scholar has noted, "it is reasonable to infer that those who drafted and adopted the first amendment assumed the term 'free exercise of religion' meant what it had meant in their states."5

A review of these state provisions indicates that "free exercise of religion" was associated with affirmative government protection of both religious belief and action. New York's 1777 constitution was typical: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed. . . . Provided that the liberty of conscience . . . shall not be construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state."6 The Georgia consti-tution phrased it thus: "All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the state."7

The limit of "peace and safety" in these clauses is one key for understanding the intended scope of religious free exercise. Such a limit demonstrates that the drafters viewed religious exercise as extending beyond mere belief or opinion to action and conduct within the doors of the church and beyond. Religious exercise was to have free reign throughout society, up to the limit of the "peace and safety" of that society. It was a robust and broad vision of religious protection envisioned by the words "free exercise of religion."

Given the state constitutional context, the phrase "free exercise of religion" was pregnant with weighty and broadly understood content. If the Founders were merely attempting to insert ajurisdictional limit in the Constitution, they could not have chosen a worse phrase to do it with. The states were the seedbeds of political thought and experimentation. The principle of Protestantism---which is that in matters of religious conscience the majority has no power---had in both its original and enlightenment forms found a home in the constitution of virtually every state.

Further, the early Congress did indeed pass laws that protected religion. The Continental Congress granted religious exemptions from conscription in the revolutionary army. After the passage of the Constitution, the Congress provided for the religious freedom of soldiers by authorizing the hiring of military chaplains. The Congress also provided for certain excise tax exemptions for religious organizations. If Smith is correct, then each of these actions were forbidden to Congress, yet they were taken, with no recorded opposition to them based on lack of constitutional authority. It would seem that the early Congress would have been surprised to learn that the Constitution had "no principle" or religious freedom and that thus they had "no power" to protect religion.

Principle of Protestantism and the Founders

What Smith doesn't seem to understand is that the Framers laid the foundation of religious freedom on a key principle of Protestantism: the sacredness of the individual conscience in matters of faith. In the eighteenth century the "representative thinkers" of the Western political thought influenced by that principle--John Locke, Thomas Jefferson, and James Madison--expressed it in their writings on government. John Locke wrote in his "Letter Concerning Toleration": "All the power of the civil government relates only to men's civil interests, is confined to the care of the things of this world, and hath nothing to do with the world to come." Those most quoted words of Jefferson's magnum opus, the Declaration of Independence, "all men are created equal, that they are endowed by their Creator with certain unalienable rights," represent an "enlightenment" gloss or articulation of this reformation principle.

It was James Madison, though, who expressed it in a manner most true to its original reformation articulation. In his Memorial and Remonstrance of 1785 he wrote: "It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to Him. This duty is precedent, both in order of time and in degree of obligation to the claims of civil society. . . . We maintain therefore that in matters of religion, no man's right is abridged by the institution of civil society, and that religion is wholly exempt from its cognizance."

In 1829, a few years removed from the founding but during the lifetime of many of those present at it, a debate arose in Congress over the propriety of the running of the mails on Sunday. Congressman General Richard Johnson wrote in a Senate report on the issue, that "the Framers of the Constitution recognized the eternal principle that man's relation with God is above human legislation and his rights of conscience unalien-able."8 In this passage Johnson invokes the Framers of the Constitution, who were near contemporaries of his, as supporters of a lofty and protective view of religious freedom in language that directly echoes the Protestant cry that "in matters of conscience the majority has no power." Congressman Johnson would certainly have been surprised by the claim that the Founders had envisioned or enshrined no principle of religious freedom.

Conclusion

Thus it's the ubiquity of the principle of Protestantism that must ultimately defeat the argument of Smith that "free exercise of religion" has no real meaning. In choosing words used with clear meaning in multiple state constitutions, the framers showed that they were concerned with jurisdiction and with substance. Then they backed up their words by actions in protecting religionin the arena of the federal government. Far from avoiding church/state controversy, the Framers met the issue of religious freedom squarely within the limits of the arena in which they were operating, that of creating a federal government that protected the religious freedom of all those within its realm

FOOTNOTES

1 James Madison, "The Detached Memoranda," in Robert Alley, James Madison on Religious Liberty, (1985) p. 90.
2 J. Gales, ed. (1834), 1 Annals of Congress, (Aug. 15, 1789): 757, 758.
3 Letter to Rev. George Eve, Jan. 2, 1789, in R. Rutland and C. Hobson, eds., The Papers of James Madison (1977), vol. 2, pp. 404, 405.
4 Rutland, Vol. 3, p. 274.
5 Michael W. McConnell, "The Origins and Historical Understanding of the Free Exercise of Religion," Harvard Law Review 103 (1990): 1409, 1456.
6 Ibid.
7 Ibid, p. 1457.
8 Report of the Subject of Mails on the Sabbath, (congressional documents, U.S.A.), Serial No. 200, Document no. 271.

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