Forgotten Purposes of the First Amendment Religion Clauses Author(s): Gary D. Glenn Reviewed work(s): Source: The Review of Politics, Vol. 49, No. 3 (Summer, 1987), pp. 340-367 Published by: Cambridge University Press for the University of Notre Dame du lac on behalf of Review of Politics Stable URL: http://www.jstor.org/stable/1407840 . Accessed: 05/07/2012 11:55 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. Cambridge University Press and University of Notre Dame du lac on behalf of Review of Politics are collaborating with JSTOR to digitize, preserve and extend access to The Review of Politics. http://www.jstor.org Forgotten Purposes of the First Amendment Religion Clauses Gary I Glenn This study questions a prevalent view of the First Amendment religion clauses which maintains they were intended to establish neutrality of the federal govern- ment between religion and nonreligion and thereby to establish not merely gov- ernmentalreligious pluralism but governmentalsecularism. Since the Bill of Rights is said to have been adopted to satisfy anti-Federalist objections to the original Constitution, what they said about religion in the ratification debates is compre- hensively examined. They turn out to have been primarily concerned that the un- amended Constitution was particularly dangerous to and tilted against religion. Hence they wanted not simply to prevent the new government from infringing on "religiousliberty" (of individuals or states) but to redress the unamended Con- stitution'sactual or potential tilt against religion. The First Congress debates are then examined from this rather different perspective to see what effect this con- cern may have had on the First Amendment religion clauses. It is argued that this concern produced a more complex constitutional position on religion and re- ligious liberty than is commonly maintained. This position is not simply Madison/Jeffersonseparationism but a compromisewhich to some extent redressed the original Constitution's tilt against religion. INTRODUCTION The present judicial understanding of the religion clauses con- stitutes a policy paradox. On the one hand, it reads the establish- ment clause as excluding from public support religious prayers, readings,education, traditions, practices, and symbols.1 On the other hand, it reads the free exercise clause as requiring exemption on religious grounds from otherwise valid laws.2 In other words, what the free exercise clause sometimes requires is sometimes indistin- guishable from what the establishmentclause sometimes prohibits.3 One goal of this study is to discoverwhether the foregoing policy paradox is inherent in the religion clauses as originally intended, but only recently discovered, or whether it is a relativelyrecent cre- ation of the Court. A second goal is to clarify another puzzle related to the broader conventional view which understands the Bill of Rights to derive from criticisms of those who opposed the unamended Constitution (the anti-Federalists). If that is correct, why does the conventional view interpret the original meaning of the religion clauses on the basis of the thought of Madison and Jefferson who supported the original Constitution?4 340 FIRST AMENDMENT RELIGION CLAUSES 341 One might suspect that these two puzzles were somehow related. The plausibility of that suspicion rests on the fact that both views claim to rest on the original meaning of the Bill of Rights. Of course, the purported application of the Bill of Rights to the states by the Fourteenth Amendment bears on the contemporary meaning of the religion clauses. But what that application is meant to apply presup- poses the original meaning, and both the Court and conventional church/state constitutional scholarship claim their understanding derives from the original meaning. I This study assumes that if the Bill of Rights were adopted pri- marily at the behest of anti-Federalists, then the meaning of the religion clauses must be sought, at least initially, in what they had to say about religion during the ratification debates. While this seems obvious, it has never been done at least in any systematic way. In particular, the Court has simply assumedthe religion clauses should be interpreted on the basis of Madison's and Jefferson's thought. This study proceeds by comprehensively examining what was said about religion in the ratification debates.5 Of course, the meaning of the religion clauses is not simply intelligible in terms of the anti- Federalist side or sides of the debates.6 One has to pay attention also to the First Congress debates themselves. But these debates look different when read in light of the essentially anti-Federalist demands which produced them. The ratification debates do not reveal exactly what one would have expected on the basis of the standard historiography. One does find the expected anti-Federalist demands for a bill of rights in general explicitly restricting the new government's power respecting certain individual and state liberties among which is religion.7 But with respect to religion, the argument in this form is both relatively infrequent and also shared by Jefferson who supported the Consti- tution.8 With respect to religion anti-Federalists more commonly complained that the unamended Constitution was manifestly nonre- ligious, allegedly dangerous to religion, and hence the new govern- ment would be at least dereligionized and perhaps antireligion. This anti-Federalist fear might seem strange. It becomes more plausible by considering the following. First, whereas the Articles of Confederation acknowledge the importance of "the Great Governor of the World" in the nation's political life,9 and most state Constitu- 342 THE REVIEW OF POLITICS tions contained explicit acknowledgments of God and man's depen- dence on him, and many contained provisions providing for public worship and support of religion, none of these existed in the new Constitution. Second, anti-Federalists knew that the Constitution had been produced by a convention in which enlightenment skepti- cism and indifference to traditional theistic or revealed religion predominated at least in many of its leading members. 10Third, they knew that advanced enlightenment hostility toward traditional, re- vealed, theistic religion was being articulated in the ratification de- bates by a few supportersof the new Constitution. In language reminis- cent of the philosophes, these supporters publicly praised the Constitution's dispensing with religion. " Fourth, they perceived the Constitution as aiming at encouraging citizens to turn away from "politics and religion, to the pursuit of wealth"12 These arguments became focused in anti-Federalist concern about the meaning of the fact that the only mention of religion in the pro- posed Constitution was the "no religious test" clause of Article VI. Anti-Federalists were not primarily concerned about omission of guarantees of "religious liberty" but rather the actual or potential consequences of this clause. There was not one neatly defined anti-Federalist position but rather a cluster of arguments. All related to a central fear that this clause was actually or potentially harmful to religion itself and to religion's beneficial and perhaps indispensable influence on public life and public order. The unity even of this central fear should not be overstated for "religion"was sometimes Protestantism, sometimes Christianity, and sometimes revealed religion as such. Much of the time it is not clear which of these meanings is intended. The most general anti-Federalist meaning is "belief of the existence of a Deity and of a state of future rewards and punishments."3 This meaning inclines toward revealed religion. It both resembles and differs from that contained in the Virginia Declarationof Rights and Madison's Memorial and RemonstranceAgainst ReligiousAssessments (1785): "Reli- gion or the duty which we owe to our Creator and the Manner of discharging it .. ."14This meaning seems more open to the deism of the leading Federalists. But neither meaning is limited to Chris- tianity or to Protestantism.15 Article VI, paragraph 3, of the Constitution requires that all officers of the new government and of the states take an oath or affirmation to support the Constitution. Some anti-Federalists ar- gued that there was no security for such an oath or affirmation un- FIRST AMENDMENT RELIGION CLAUSES 343 less the oath taker was known to have "principles of virtue," that "professed atheists" or "infidels" could not be known to have such principles, and hence their oath or affirmation could not be trusted.16 Since the "no religious test" clause permitted such people to govern, it subverted that security upon which free constitutional govern- ment was said to depend. Anti-Federalists also said that papists could not be trusted to keep the oath. Papists "acknowledge a foreign hand, who can relieve them from the obligation of an oath."17In one formulation, this fear was combined with the common anti-Federalist fear of the treaty power to suggest that the Roman Catholic religion could thereby be estab- lished in the United States "which would prevent people from wor- shiping God according to their own consciences."18 This seemingly fantastic fear was not entirely unfounded. The statement that "the government of the United States of America is not, in any sense, founded on the Christian religion" was put into a 1797 treaty be- tween the United States and Tripoli.19 If the "no religious test" clause was a red flag to those who feared for the fate of Christian religion under the proposed Constitution, the treaty language would seem to somewhat confirm those fears.