The First Amendment: Original Intention and Interpretation
One of the more heated political debates revolves around the issue of the
separation of church and state. Decisions by the Supreme Court since the 1940s
have been interpreted as promoting the idea of a “wall of separation”
between church and state. The controversy, mainly headed by the conservative and
religious right, revolves around the intentions of the original framers of the
American Constitution. When approaching the historical documents, many questions
are asked. Did the framers of the Constitution mean that the state should give
no support to religion? Does the First Amendment prohibit government support of
religious education? What effect did the religious views of the framers’ have
on the wording of the First Amendment?
In seeking to answer these questions, historians appear to approach this issue
from two divergent viewpoints. One viewpoint is that the framers of the
Constitution were merely interested in secular problems and had no interest in
religion ( Pfeffer, 1967 ). The other viewpoint attempts to develop the faith
and beliefs of the framers as fundamentally essential to understanding the
meaning of the First Amendment. Once this is uncovered, this viewpoint attempts
to show how the recent decisions of the Supreme Court are counter to the
intentions of the founding framers of the Constitution ( Cord, 1982; Reichley,
1985; Maddox, 1987 ). The weakness of the first of these viewpoints is that it
disregards the critical historical facts that indicate how religion was a vital
part of the quest for liberty. The weakness of the second of these viewpoints is
that while it seeks to uncover the true position of the framers, it also seeks
to apply their understanding of the First Amendment to a complex society. One
must ask if the framers of the Constitution could have ever envisioned the
complexity of politics as it has emerged since the Independence of America.
Putting aside these common perspectives, this paper seeks to understand the
meaning of the First Amendment as it was originally intended, i.e., what is the
relation between government and religion. In an effort to achieve this
perspective, I have tried to rely upon the thoughts of the framers as expressed
in their writings. As a result, this paper is an outcome of a cursory study of
opinions and events that are connected to the formation of the Constitution and
the Bill of Rights.
While the focus is on the First Amendment, why the religious clause was
expressed as it was is a major concern to be addressed. The fact that many
states insisted upon the inclusion of a Bill of Rights in the Constitution,
while having maintained the establishment of an official church religion in
their respective states after the Revolution, is of peculiar interest. Why would
the framers of the Constitution insist on a Bill of Rights, particularly on
freedom of religious expression, when their state constitutions had continued to
sanction an official state religion after the Revolution? Was the idea of the
separation of church and state, as stated in the First Amendment, a novel
political expediency that was developing as a result of the American experience?
To answer these questions, I will examine two aspects of the development of the
First Amendment. First, I will examine the social-historical context in which
the framers of the Constitution existed. Second, I will examine some of the
thoughts of the framers as expressed in the documents that have been attributed
to their authorship. The focus in both of these aspects will be on the religious
actions and views that existed during the formation of the Constitution.
Without a doubt, the primary concern of the framers of the Constitution was the
establishment of a secular government that would not succumb to the injustices
and inequities that were common to governments up to the time of the Revolution.
Realizing the need for a more permanent and workable government, due to the
limitations of the Confederation, the framers’ task was to strike a balance
between the rights of the individual and the good of society. The pressing needs
of the government included the threat of anarchy among the colonists, the threat
of Indian confederacies to the security of the nation, the need to establish
credible diplomatic ties with other nations, the need to regulate commerce, the
need to provide a sound economic basis for the exchange of goods, and the need
to provide a government that would be representative of the people and not
oppressive to any one minority.
The solution to addressing these problems, and many others, was to establish a
government based on three branches of power: the legislative, executive, and
judicial. It was believed that this type of system, with its “checks and
balances” would prevent power from becoming the possession of a few or even
the majority. This “check” to government authority would guarantee the
rights of the minority. More important for the issue at hand, this understanding
of government rested on philosophical ideas that were the result of the
Enlightenment. One of the more influential writers to the founders of the
Constitution was John Locke. Locke’s ideas of natural law and that every
person had inalienable rights to life, liberty, and property, became a central
theme in the Declaration of Independence. By the time of the writing of the
Constitution, the idea of natural law and the rights of individuals was
carefully weighed in determining the function of a central government. Many of
the states amended their ratification of the Constitution by stating a need for
a Bill of Rights to be added to further specify the rights of individuals.
At the same time, the religious beliefs of Americans also impacted upon the
writers of the Constitution. The belief in certain natural rights became rooted
in the Judeo-Christian heritage that preceded the Constitution. These rights can
be understood as being transcendental in nature. In the sermons and religious
tracts that appeared in the eighteenth century, these rights are attached to the
fundamental beliefs of the mainly Protestant organizations ( Sandoz, 1990, chap.
5; Reichley, 1985, p. 73 - 74 ). During the Great Awakening of this period,
individuals, especially those on the frontier, began to see a providential
destiny for America. Through the preaching of Jonathan Edwards and others, the
common person sensed that the Revolution was not only right, but divinely
sanctioned. Americans saw the opportunity to shine as the New Jerusalem of the
world. Not only was this influential, the morals and values of the Christian
faith had been previously codified in state constitutions. The success of
society was based not only in representative government, but also in the morals
and values that were deemed necessary to maintain order. Moral integrity and
virtue were the keys to keeping society from degenerating into anarchy and from
keeping the leadership from becoming corrupt. This viewpoint is collaborated by
the evidence of official state religions, as seen in Virginia. While this is not
to suggest that the Revolution was a “Holy War,” for historians to deny the
impact of religious influences on the founding fathers is unwise. When trying to
develop a government that does not oppress a minority, religious worship and
practice had to be taken into account.
For the most part, up to the time of the writing of the Constitution, religious
matters were left to the individual states to decide. The debate on whether to
include a Bill of Rights indicates that some of the framers of the Constitution
thought these rights had already been expressed in the state constitutions. The
fact that many states amended their acceptance of the Constitution with the
support of a Bill of Rights, indicates that many wanted to make sure that the
new government could not deny their right to freedom of religious expression, as
well as other important rights. When finally approved, the First Amendment
stated, “Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof;...”
What, however, is meant by the language of this Amendment? To understand this,
it is necessary to look at the writings of the framers to understand their
concerns. Two individuals, Thomas Jefferson and James Madison, are key to this
understanding. Putting aside the irrelevant question on the nature of
Jefferson’s faith, Jefferson held strong views on the matter of church and
state. It was his response to a Connecticut Baptist Association that sparked the
now infamous phrase, “a wall of separation between Church and state.” This
quote has been torn from a whole statement in which Jefferson states,
“Believing with you that religion is a matter which lies solely between man
and his God, that he owes account to none other for his faith or his worship,
that the legislative powers of government reach actions only, and not opinions,
I contemplate with sovereign reverence that the act of the whole American people
which declared that their legislature should ‘make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,’ thus
building a wall of separation between Church and state” ( Padover, 1943, p.
518 - 519 ). Jefferson made this statement as president on January 1,1802. The
significance of this statement reveals that Jefferson believed that government
could not sanction the “opinions” of one sect or another. By acceptance of
the Constitution and the amendments, the will of the people had been expressed.
The “wall” was that government could not meddle in the affairs of religious
groups or promote the opinions of one particular religious group. Governments’
function is to deal with the “actions” of the state. In other words,
government is to deal with those secular problems that impose a threat to the
security of and the maintenance of society’s well-being. Jefferson did not
believe this meant that the government could not support or encourage religious
activities, however. This is collaborated by his support of federal money to be
used to support a priest and build a church for the Kaskaskia Indians in 1803.
A more realistic picture of Jefferson’s views regarding this separation can be
found in the Statute of Virginia for Religious Freedom that was introduced into
the Virginia Assembly on June 13, 1779. In this Bill, Jefferson expresses his
views of religious freedom. He states that God created man’s mind to be free
and that any attempts to restrain it would result in “hypocrisy and
meanness.” He speaks of others who have set “up their own opinions and modes
of thinking as the only true and infallible.” He then talks about the
injustices of those who would deny the “natural right” of individuals to
partake in society based on dogmatism. He goes on to state,
...that the opinions of men are not the object of civil government, nor under
its jurisdiction; that to suffer the civil magistrate to intrude his powers into
the field of opinion and to restrain the profession or propagation of principles
on the supposition of their ill tendency is a dangerous fallacy which at once
destroys all religious liberty, because he, being of course judge of that
tendency, will make his opinions the rule of judgment and approve or condemn the
sentiments of others only as they shall square with or differ from this own (
Dumbauld, 1955, p. 35 ).
For Jefferson, government is not in a position to legislate whether a religious
“opinion” is the correct one. By appealing to reason, Jefferson believes
that truth can be known. How this truth becomes codified in the religious
expressions of society is not an issue for government. As a result, Jefferson
believed that every individual has a natural right to pursue godliness as his
conscious dictates. Jefferson’s notes on religion show that he believed that
reason would reveal religious truth and thus there was no need for government
involvement. For Jefferson, “The arms of a religious society or church are
exhortations, admonitions and advice, and ultimately expulsion or
excommunication. This last is the utmost limit of power” ( Padover, 1943, p.
942) . The problem for Jefferson and others in framing the Constitution is how
to insure that this natural right is not impinged upon by the government.
This fact is further brought out in a letter from James Madison to Jefferson.
Madison in his letter to Jefferson, dated October 24, 1787, informs his friend
on how the states are receiving the Constitution. In this letter, Madison
reveals his ideals of what government should accomplish. On the issue of a
central government having a “negative” over the rights of the States, he
supports such power for two reasons: “1. to prevent encroachments on the
General authority, 2. to prevent instability and injustice in the legislation of
the States.” The second of these two arguments contains thoughts relevant to
this discussion. In this section, Madison is discussing how the rights of the
minority can be protected against the will of the majority. He writes, “It
remains then to be enquired whether a majority having any common interest, or
feeling of common passion, will find sufficient motives to restrain them from
oppressing the minority.” He gives three motives why a government might
restrain itself in the interests of the minority: one is a prudent regard to
private and permanent good of the whole, a second is character, and a third is
religion. In referring to religion as a check on social injustice, Madison
states, “The conduct of every popular assembly, acting on oath, the strongest
of religious ties, shews that individuals join without remorse in acts against
which their consciences would revolt, if proposed to them separately in their
closets.” This indicates that Madison does not see religion as the answer to
ending social injustice in a society so far as government is concerned. So how
is a government supposed to protect the rights of the minority and against
injustice? Madison writes, “The great desideratum in Government is, so to
modify sovereignty as that it may be sufficiently neutral between different
parts of the Society to controul one part from invading the rights of another,
and at the same time sufficiently controuled itself, from setting up an interest
adverse to that of the entire Society” ( Boyd, 1955, p. 276 - 279 ). These
statements indicate that Madison saw government as being so designed as to
protect the rights of any individual. For government to legislate laws with
reference to a particular religious group, whether positively or negatively, was
a violation of the natural rights of individuals for religious expression. This
fact is further collaborated in speeches Madison makes before state and federal
legislatures.
In a speech before the Virginia Convention on June 12, 1788, Madison, talking
about the inclusion of a Bill of Rights, states:
Fortunately for this commonwealth, a majority of the people are decidedly
against any exclusive establishment-I believe it to be so in the other states.
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
(Hunt, 1904, p. 176) .
A year later in a speech to Congress, dated June 8, 1789, Madison makes the
following remarks during the introduction of the move to amend the Constitution
with a Bill of Rights:
But, whatever may be the form which the several States have adopted in making
declarations in favor of particular rights, the great object in view is to limit
and qualify the powers of Government, by excepting out of the grant of power
those cases in which the Government ought not to act, or to act only in a
particular mode. They point these exceptions sometimes against the abuse of the
Executive power, sometimes against the Legislative, and, in some cases, against
the community itself; or, in other words, against the majority in favor of the
minority...But I confess that I do conceive, that in a Government modified like
this of the United States, the great danger lies rather in the abuse of the
community than in the Legislative body. The prescriptions in favor of liberty
ought to be levelled against that quarter where the greatest danger lies,
namely, that which possesses the highest prerogative of power. But this is not
found in either the Executive or Legislative departments of Government, but in
the body of the people, operating by the majority against the minority ( Hunt,
1904, p. 381 -382).
What these quotations from Jefferson and Madison have in common is a realization
that there exists certain fundamental natural rights over which the government
has no authority. The issue is not a matter of whether religion is beneficial to
society and whether it should be encouraged. The primary issue is how to form a
Constitutional government in which the rights of the minority, even a religious
minority, are capable of being protected. That Jefferson strongly urged Madison
to incorporate a Bill of Rights in the Constitution betrays Jefferson’s belief
that government should not meddle in the natural rights of individuals. Madison
makes it clear in his speeches to Congress that government in the area of
religion should not exercise power so that minorities are not oppressed. So what
can be said about the language of the First Amendment?
It appears from the letters and speeches of Madison and Jefferson, the idea of
the separation between the state and church can be viewed as an absolute one.
Government had no power to promote or curtail the opinions or beliefs of a
religious group. To do so would allow the injustices of previous governments
over the history of mankind to continue. The First Amendment was the citizens
guarantee that government would not act to suppress or extol the opinions of any
religious group. In fact, one could argue that the founders’ intentions
conveyed the idea that government would make no ruling regarding religious
opinions. To do so would undermine the rights of a group of citizens.
This fact is further evidenced in the language of the amendment. The amendment
refers to “an establishment of religion,” not “the establishment of
religion.” The difference is major. In the words of the amendment, government
would not legislate or make opinions concerning an established religion among
the citizens. This implies a freedom of religious expression that will not be
interfered with by government in any of its decrees or laws. It also implies
that the ideas and opinions of the citizens cannot be held captive to any
ideology or opinion. Only the actions within the state are the concern of the
government. Religious actions only become subject to the jurisdiction of
Constitution when one group invades the rights of another. At the same time,
religious groups can freely exercise their faith so long as these actions do not
violate the rights of another individual.
That this was the intention of the framers of the First Amendment is further
collaborated by the concern for the minority. The framers of the Constitution
knew that rule by the majority did not insure liberty. Majority rule throughout
history had shown a disposition for oppressing the minority. To counter the
potential for the rights of the minority to be denied, the framers of the
Constitution included a Bill of Rights that specified and guaranteed the natural
rights of the individual. This guaranteed right was assured with relation to the
government and to the ideas that the majority in public opinion hold. Thus
individual opinions can be expressed and held so long as the actions of that
opinion do not violate the rights of another. If jurisdiction prevails, it is
the actions of an opinion and not the opinion itself that is under jurisdiction
of the Constitution.
Having set forth this viewpoint of the intention of the First Amendment, what
can be said on how this amendment is to be interpreted. Clearly, any
interpretation of this amendment that involves actions of the state toward
religious groups or religious opinions must confine itself to the issue of
whether a violation of the rights of others has occurred. For the government to
sanction a religious opinion or the actions of a religious group when there are
violations of the rights of an individual citizen, is unconstitutional.
Furthermore, any actions of the government that would appear to involve
constitutional guarantees, such as religious opinions and actions, must be
limited to the issue of whether a violation of the rights of a citizen has
occurred. Only the actions are under the jurisdiction of the government and not
the opinions that underlie such actions. The interpretations of the First
Amendment as revealed in subsequent governmental actions must be viewed with
regard to the original intentions of this amendment. In other words, the
original meaning of the First Amendment, not the interpretations, is the key
consideration.
This can be exemplified by returning to the issue of government support for
establishing of churches among the Indian tribes of the frontier during the
first part of the nineteenth century. When Jefferson and other presidents gave
support for such activities, such as the case with the Kaskaskia Indians in
1803, were the rights of an American citizen being violated? If anything, it
appears that this support was not seen as a violation of the First Amendment for
two reasons. One, religious groups were an organized social structure through
which settlements in the West could be encouraged and through which stability
could be brought to the frontier lands. One must remember that at this time, no
corporations existed to carry out the settlement of the West. Second, the fact
that Indians were not viewed as citizens but as “savages” indicates that no
constitutional violation was occurring. In order to secure the rights of the
settlers, the government needed to see that Indians became “civilized.”
Consequently, the government was maintaining the security and the good of the
United States. There was no violation of the First Amendment because no
establishment of religion was violating the rights of a citizen by its
settlement actions. The only natural rights that were being violated were that
of the Indians. The question of whether the guarantees of the Constitution
extended to non-citizens or other “savages” goes beyond the scope of this
paper.
References
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© CopyRight 2002 Scott R. Simpson