By Thomas G. West
Posted January 1, 1997
Appeared as a chapter in On Faith and Free Government, edited by Daniel C. Palm, with a Foreword by Dan Quayle, (Lanham: Rowman and Littlefield), 1997, pp. 3-27
In December 1944, American soldiers were fighting desperately against the last great German offensive of World War II, the Battle of the Bulge. Men were dying in large numbers. The counterattack had bogged down in mud and rain. Planes could not fly because of low clouds. General George Patton, commander of the Third Army, called his chaplain into his headquarters and said:
Chaplain, I want you to publish a prayer for good weather. I'm tired of these soldiers having to fight mud and floods as well as Germans. See if we can't get God to work on our side. . . .
Chaplain James O'Neill: May I say, General, that it usually isn't a customary thing among men of my profession to pray for clear weather to kill fellow men.
Patton: Chaplain, are you teaching me theology or are you the Chaplain of the Third Army? I want a prayer.
O'Neill: Yes, sir.
The prayer was printed on a card and distributed to every soldier of the Third Army. It read:
Almighty and most merciful God, we humbly beseech thee, of thy great goodness, to restrain these immoderate rains with which we have had to contend. Grant us fair weather for battle. Graciously hearken to us as soldiers who call upon thee that, armed with thy power, we may advance from victory to victory, and crush the oppression and wickedness of our enemies, and establish thy justice among men and nations. Amen.
An editor's footnote in Patton's memoirs tells what happened next: "The day after the prayer was issued, the weather cleared and remained perfect for about six days. Enough to allow the Allies to break the backbone of the German offensive and turn a temporary setback for the Allies into a crushing defeat for the enemy."(1)
Patton's request for a weather prayer perhaps sounds flippant or even impious. But at bottom Patton was completely serious. He was convinced that God was on the side of America, justice, and liberty against Hitler's regime of tyranny, slavery, and mass murder. The cause of America was the cause of liberty and God. Therefore it was perfectly reasonable to order the chaplain, a paid official of the government, to ask for God's aid in the great war against Hitler.
Or was it?
Many Americans would agree with Chaplain O'Neill that religion has no business supporting a political cause, especially not a war. Christianity in particular seems to call for peace, not war; love of enemies, not their death; and care for all mankind, not just one's own people. God does not take sides, it seems, in quarrels among nations.
In today's view, not only should religion keep its distance from government; above all, government should keep its distance from religion. In 1947, the Supreme Court ruled, for the first time, that it is unconstitutional for government "to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."(2) Although the Court has not always applied that dictum consistently — military chaplains are still permitted — it has largely guided government policy ever since.
Today's view is the opposite of that of America's Founders. Like General Patton, they believed that God was pro-liberty. They also believed that there are many occasions when government should "teach or practice religion."
Until the Vietnam War in the 1960s, Americans have never hesitated to issue official prayers for victory. During the Revolutionary War, Congress prayed for God "to smile upon us in the prosecution of a just and necessary war for the defense and establishment of our inalienable rights and liberties" — including the right to religious liberty. As we will see, the Founders' understanding of liberty was consistent with, and in fact called for, weather prayers and their equivalents. (3)
Liberty, License, and Reason
The victory of relativism has made the Founders' understanding of religious liberty alien to us. Liberty today is taken to mean "the right to choose," the right to do whatever one pleases.
Surprisingly, both liberals and conservatives agree on this definition. Their disagreement is over the extent to which government should impose limits on abuses of liberty. A sign of our shared view of liberty is that we often speak of balancing liberty with order, with responsibility, or with community. If we define liberty as the unlimited right of the irresponsible will, we do have to look to a source outside of liberty for some restraint on it. But if liberty is inherently responsible liberty, as the Founders thought, it does not need to be balanced by anything. It contains within itself its own balance.
For the Founders, the irresponsible, irrational will is not free. It is enslaved. James Madison said that "the tyranny of their own passions" led the Athenians to condemn Socrates to death. What Madison meant by this phrase was spelled out by the Reverend Samuel West of Massachusetts in a 1776 sermon: "The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts. . . . Hence we conclude that where licentiousness begins, liberty ends."."(4)
Intellectuals today no longer believe in "right reason" and "natural law." For them, freedom is not obeying the law of reason and nature, but having the right to break that law, or any law. That is one reason that serious religious conviction is so much feared and disliked by elites in our time: if God exists, his law limits our freedom. He, not we, defines the meaning of existence. In contrast to the Founders' view, three Justices of the Supreme Court wrote in 1992, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."(5)
Since we no longer distinguish between liberty and license, we no longer understand the Founders' conception of liberty, including religious liberty. For them, the freedom to follow one's religion should be protected, in Washington's words, as an "inherent natural right." No one may be harmed or punished for his mode of worship. But religious liberty is not religious license. Government may therefore prohibit religious practices that are criminal or immoral. And government may and should promote religious practices and convictions that accord with reason, which favors individual responsibility and political liberty.
Jefferson's "Wall of Separation" Letter and the Declaration of Independence as Violations of Religious Liberty?
In his famous letter to the Baptists of Danbury, Connecticut, Thomas Jefferson, quoting the First Amendment to the U.S. Constitution, wrote: "I contemplate with solemn reverence that 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."
Liberals and libertarians are fond of this passage. They take it to mean that government should avoid practicing, teaching, or supporting religious views of any kind. The Supreme Court has declared that the "wall of separation" forbids government officials, such as school teachers, from engaging in or sponsoring public prayer. Yet Jefferson closes this very same letter, written in his official capacity as president, with a prayer: "I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man." If today's liberals were right, Jefferson would be breaking down the wall of separation at the very moment he proclaims it."(6)
I propose to show that although most of the Founders wanted a "separation between church and state" — call it a "wall of separation" if you like — they emphatically rejected a wall of separation between religion and public life, between God and politics. The Founders opposed an official state-sponsored church, but they favored government support of religion through public laws, in official speeches and proclamations, on ceremonial occasions, and especially in public schools.
The strangeness of today's approach, from the point of view of the Founders, can be seen most vividly in this fact: by the logic of today's view of religious liberty, it is unconstitutional to teach the Declaration of Independence in public school. The Declaration contains four distinct references to God: he is the author of the "laws of . . . God"; the "Creator" who "endowed" us with our inalienable rights; "the Supreme Judge of the world"; and "Divine Providence." The Supreme Court has ruled that government may not "teach or practice religion." It may not exert "subtle coercive pressure" on students by prayers or religious instruction. If the Declaration were taught in a public school as the truth, the teacher would "teach religion." She would be exercising the kind of "subtle coercive pressure" on students forbidden by the Court. She would be teaching them that God is our lawgiver, creator, judge, and providential protector. She would be promoting an establishment of religion in violation of the First Amendment."(7)
But this is absurd. A nation whose principles are the God-given equal rights of mankind cannot be obliged by its very principles to forbid public officials to "teach religion" to teach children the theology of the Declaration, that their rights are given to them by God.
Of course, teaching the Declaration has not been declared unconstitutional, but that is only because the Court has been unwilling to admit the full consequences of its view of "establishment." To avoid the public outrage that would follow if the Declaration were banned from the classroom, the Court falsely asserts that that document is not really religious. The Court pretends that reciting "official documents such as the Declaration of Independence which contain references to the Deity" bears "no true resemblance" to school prayer. Such exercises, Justice Brennan asserts, "no longer have a religious purpose or meaning. The reference to divinity in the revised pledge of allegiance, for example, may merely recognize the historical fact that our nation was believed to have been founded 'under God.'"
In other words, the Supreme Court will allow the theology of the Declaration to be taught in the classroom as long as it is understood that it belongs to "a world that is dead and gone," that it has nothing to do with the world that we live in here and now, that it is not a living faith that holds God to be the source of our rights, the author of the laws of nature, and the protector and Supreme Judge of America. Brennan's claim that the words "under God" in the revised Pledge have no "religious purpose or meaning" is flatly contradicted by the House Committee on the Judiciary, which explained in its 1954 report that the words were added to affirm "the dependence of our people and our Government upon the moral directions of the Creator."(8)
Conservative Confusion on Religious Liberty
Conservatives today are unable to provide any coherent defense of government support of religion. They argue that liberals have distorted the views of the Founders and of the earlier tradition. But their argument has been weakened by its inability to square the historical record with the idea of religious liberty.
The American tradition is full of examples of government-sponsored prayers (daily in public schools and on all kinds of ceremonial occasions), religious music (in school Christmas programs), religious devotion (in Thanksgiving and Prayer Day proclamations of presidents), and much more. Liberals explain these traditions as relics of an earlier era of religious bigotry, when the separation of religion from politics was neither understood nor practiced. Conservatives are not quite sure how to explain them.
Many say that government may promote religion as long as it does so nonpreferentially. In this argument, government sees religious diversity or pluralism as a good thing, and it is free to promote religion as long as it promotes all religions, and not any particular belief. Law professor Michael McConnell gives the ablest scholarly defense of the view that government may promote "religion in general," but "must not favor one form of religious belief over another."(9)
Sometimes conservatives are even tempted to make use of the liberal view that government must be completely neutral between religion and "irreligion." In the Rosenberger case, the University of Virginia funded a variety of student publications, but it refused to fund a Christian journal. Michael McConnell argued to the Supreme Court on behalf of the Christian students that "the state should be completely indifferent to whether students use those benefits to participate in religious activity." The Constitution requires "neutrality between religion and its various competitors in the marketplace of ideas." The Court agreed. Unfortunately, McConnell's victory for the Christians was also a victory for Satanic, sado-masochistic, pedophile, and Nazi publications. They too are "competitors in the marketplace of ideas." They too have a right to government funding on an evenhanded basis.(10)
Supreme Court liberals have easily shown that the American tradition of government involvement with religion cannot be justified in neutralist, nonpreferential, or pluralist terms. Take the example of legislative chaplains. Historically, taxes have supported chaplains to offer daily prayers at legislative sessions. Conservatives on the Supreme Court won a small victory when that practice was upheld in a 1983 case. But the Court could offer no principled argument in its favor. The majority admitted that the prayers in question were not neutral with respect to all religions, but were "in the Judeo-Christian tradition." Clearly the government was not just promoting but funding a non-inclusive religious exercise.
Chaplains' prayers are usually offered to God, that is, God the Father, thereby excluding such deities as the "three goddesses (Cali, Quani, and Enna) from Hindu, Buddhist, and Philippine religions." These three were prayed to at the 1993 Re-Imaging Conference co-sponsored by the Episcopal Church of the United States, along with "Our Sweet Sophia," to whom these words were addressed: "we are women in your image. With the nectar of our thighs, we invited a lover. . . . With our warm body fluids we remind the world of its pleasures and sensations." If chaplaincies were truly nonpreferential, these goddesses, and even the bloodthirsty gods of the Aztecs, would have to be invoked at least occasionally. All the Court could say in the 1983 case was that legislative chaplaincies are "deeply embedded in the history and tradition of this country." That is true. But the dissenters responded, quite rightly, that long practice does not make something constitutional.(11)
Some conservatives have tried to resolve the seeming contradiction between individual liberty and the tradition of government support of monotheistic and Biblical religion either by embracing liberty and rejecting the tradition of support (libertarians like the Cato Institute), or by embracing the tradition and rejecting the Declaration of Independence (traditionalists like Russell Kirk).
American public life was far more religious before the 1960s, when Americans thought their pro-religious policies were consistent with their principles. As we will see, they believed that what they did was not only compatible with religious liberty, but a necessary foundation of that liberty.
Free Exercise of Religion as Part of the Right to Liberty
The Declaration of Independence calls liberty an "unalienable" right, meaning that we are born with it ("endowed by our Creator") and can never rightly surrender it to any person or government. As we are born free in all respects, we are also born free to worship God. That freedom is absolute.
The New Hampshire Constitution of 1784 explains: "When men enter into a state of society, they surrender up some of their natural rights to that society, in order to insure the protection of others." For example, in a state of nature, we have the right to punish those who injure us. In a state of society, we give up that right to the government. We do so on condition that they protect us better than we can on our own in a state without government. However, continues New Hampshire, "Among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the rights of conscience. Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason."(12)
Every early state constitution except Connecticut's contained a guarantee of free exercise of religion.(13)
In addition to its foundation in the natural right to liberty, the Founders advanced four further reasons in defense of religious liberty.
First, politically empowered religion is dangerous.
Second, religious freedom is good because under it religion will thrive. That is good because it enables men to perform their duty to God, the highest obligation in life.
Third, religion is a foundation of morality.
Fourth, religion is a foundation of liberty.
Let us briefly consider these claims.
Freedom of Religion as a Means to Prevent Majority Tyranny
James Madison wrote in his Memorial and Remonstrance against Religious Assessments (1785), "Torrents of blood have been spilt in the old world by vain attempts of the secular arm to extinguish religious discord by proscribing all difference in religious opinion." Madison deplored the imprisonment of Baptists in Virginia as late as 1774: "There are at this time in the adjacent county not less than 5 or 6 well-meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox."(14)
Madison also made the anti-tyranny argument for religious freedom in The Federalist. "A zeal for different opinions concerning religion," he wrote, ". . . have in turn divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other, than to cooperate for their common good." The solution: "In a free government, the security for civil government must be the same as for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects."(15)
New York's constitution of 1777 explained its guarantee of free exercise in similar terms:
And whereas we are required, by the benevolent principles of rational liberty, not only to expel civil tyranny, but also to guard against that spiritual oppression and intolerance wherewith the bigotry and ambition of weak and wicked priests and princes have scourged mankind, . . . the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed.
Many of the most ardent supporters of religious liberty in early America were Baptists, Methodists, Catholics, Jews, and other minority denominations. They feared with some justice the persecution by the majority Congregationalists (in New England) or by Episcopalians (in the South).
The Transcendent Purpose of Religious Liberty
The language of the Virginia Declaration of Rights shows that religious liberty had not only a secular but a religious purpose:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience.(16)
Virginia is saying that it protects free exercise of religion not because it is indifferent to religion, not because religion is a threat, but because religion, uncoerced "by force or violence," is "the duty which we owe to our Creator." We need liberty to discharge our duty to God.
Madison's Memorial and Remonstrance, commenting on the Virginia provision just quoted, explains that the free exercise of religion is
an unalienable right . . . because what is here a right towards men, is a duty towards the Creator. . . . Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the universe. And . . . every man who becomes a member of any particular civil society [must] do it with a saving of his allegiance to the Universal Sovereign.(17)
In the name of James Madison, Philip Denenfield of the American Civil Liberties Union objected to the Catholic view (in the Second Vatican Council, 1966) that religious freedom enables men to "fulfill their duty to worship God" and acknowledges that men's obligations to God "transcend by their very nature the order of terrestrial and temporal affairs." Denenfield said this understanding violated the spirit of the Founders' understanding of religious liberty.(18)
But as we just saw, what Denenfield calls the "Catholic view" is identical to Madison's, who would have been astounded to see his authority used to contradict the very arguments he made on behalf of religious liberty in his most famous writing on the subject. Denenfield, and others like him, simply do not understand that the religious freedom fought for in the American Revolution is not freedom from religion, as he would like, but freedom to be religious, to fulfill one's highest purpose.
If "allegiance to the Universal Sovereign" is as important as Madison says, then why, a believer might ask, should government not prescribe man's religious obligations to God? Is not government turning its back on God if it fails to bring men to the salvation of their immortal souls? Some conservatives are asking that very question today, implying that America would be better off if it returned to the coercive approach of pre-eighteenth century Europe. For example, Kenneth Craycraft writes, "From a Christian point of view, it simply makes no sense to say that we have a fundamental human right to religious freedom, which necessarily entails a right to reject God's love and grace." (19)
The Founders gave two answers to Craycraft's challenge. First, human beings are fallible. Their selfish passions, and their all-too-human prejudices and ignorance, make governments bad judges of religious orthodoxy. Governments too often gravitate to theological doctrines that justify, says Madison's Memorial, "superstition, bigotry, and persecution." In Madison's argument, the right to religious freedom is not "a right to reject God's love and grace," as Craycraft thinks; it is a right to reject the forcible imposition, by fallible men, of their views of "God's love and grace" on other men. Madison never asserts, as do today's Supreme Court liberals, that there is a human right "to define one's own concept of existence." Religious freedom is the right to follow God's concept of our existence, rather than to be compelled to submit to some man's concept of it. This is so far from a rejection of God that most Christians during the founding era, and throughout American history, believed, as Founder Tench Coxe maintained, that the denial of religious liberty is "impious" and "a trespass on the Majesty of Heaven."(20)
Second, from a Christian standpoint we have a right to religious freedom because the nature of faith itself is contradicted by compulsion. This is Locke's argument in his Letter Concerning Toleration. The Virginia Declaration of Rights says worship "can be directed only by reason and conviction, not by force or violence." Faith, to be genuine, must be freely given; if it is compelled, it is no longer faith. As Jefferson wrote in his draft of the Virginia Bill for Religious Freedom, "the opinions and belief of men depend not on their own will, but follow involuntarily the evidence proposed to their minds" because "Almighty God hath created the mind free."
Harry V. Jaffa has written that "The tragedy of Western civilization has been the unfettered attempt, by political means, to vindicate claims whose very nature excludes the possibility that they can be vindicated by political means." Medieval governments sometimes used force to compel people to be Christians or Moslems. Marxist governments use force to compel people to give up their religious faith and accept the authority of science and reason alone. But force vindicates neither revelation nor reason. "The unprecedented character of the American Founding," writes Harry V. Jaffa, "is that it provided for the coexistence of the claims of reason and of revelation in all their forms, without requiring or permitting any political decisions concerning them." Religious liberty is the bow of the political to the dignity of the Transcendent.(22)
The Worldly Purpose of Religion: God and Morality
The noblest purpose of liberty is to enable man to do his highest duty to God. But religion also has a crucial secular purpose in America: securing the moral conditions of freedom. In the Founders' view, without morality, there can be no freedom; and, as Founder Benjamin Rush put it, "where there is no religion, there will be no morals."(22)
This argument is not well understood today. As I said earlier, we tend to equate freedom with individuality, the right to choose, the right to do anything one pleases. The Founders rejected this view, for two reasons.
First, they thought a person is not really free if he is a slave to his irrational passions. We quoted earlier Madison's statement that the Athenian people were in the grip of "the tyranny of their passions" when they condemned Socrates to death.
Second, the Founders believed that a people enslaved to their passions would be unable to restrain themselves from injuring each other. That would mean that government would have to enslave the slavish people politically as well — for their own survival. Madison explains: without sufficient self-control, "nothing less than the chains of despotism can restrain them from destroying and devouring one another" (Federalist no. 55).
I do not want to misstate the Founders' position. They were hard-headed enough not to rely on citizen virtue alone. As The Federalist explains, the Constitution therefore makes prudent use of governing structures and self-interested motives to prevent the people's passions from breaking out into injustice. "Ambition must be made to counteract ambition," wrote Madison. The Constitution's framers placed much of their trust in checks, balances, and separated powers. But they also knew that although constitutional devices can supply to some extent the absence of better motives, there is still some need for virtue. When Madison wrote, in the tenth Federalist, that "neither moral nor religious motives can be relied on as an adequate control," he implied that these motives do have some beneficial effect on conduct. In fact, he believed that "religious motives" were indispensable. In a private letter, he wrote, "the belief in a God all powerful, wise, and good, is . . . essential to the moral order of the world." Religious faith, then, proves to be an important ingredient in the moral formation of the people. (23)
To sum up the Founders' consensus, I quote George Washington's Farewell Address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . . And let us with caution indulge the supposition that morality can be maintained without religion."(24)
The Worldly Purpose of Religion: God and Liberty
Jefferson — the Founder most often singled out for his supposed indifference to religion — thought that the American belief that God is the author of liberty was not just beneficial but essential to the survival of freedom. In his Notes on Virginia, he asked, "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath?"(25)
That God gives all men the right to life and liberty, and that he therefore favors the American cause, was widely believed during the founding era. In Federalist no. 37, Madison wrote that "the man of pious reflection" could not fail to perceive in the work of the Constitutional Convention "a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution." In his First Inaugural Address, Washington said, "Every step by which they [the American people] have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency."(26)
Most American Christians in 1776 endorsed the doctrines of the Declaration of Independence. On the occasion of the commencement of the Massachusetts Constitution of 1780, before an audience including the governor, Senate, and House of Representatives, The Reverend Samuel Cooper said:
We want not, indeed, a special revelation from heaven to teach us that men are born equal and free. . . . These are the plain dictates of that reason and common sense with which the common parent of men has informed the human bosom. It is, however, a satisfaction to observe such everlasting maxims of equity confirmed . . . by the instructions, precepts, and examples given us in the sacred oracles [i.e., the Bible]; . . . that they come from him "who hath made of one blood all nations to dwell upon the face of the earth. (27)
Reason and faith both teach the same lesson: all men are created equal.
Would the Founders have supported Christianity if Americans had adhered to the doctrines of the era called by Washington the "gloomy age of ignorance and superstition"? Jefferson believed that "monkish ignorance and superstition" had once taught that the mass of mankind are "born with saddles on their backs," while "a favored few" are born "booted and spurred, ready to ride them legitimately, by the grace of God." In that era, said Jefferson, "the human mind ha[d] been held in vassalage by kings, priests, and nobles."(28)
Obviously, the American picture of earlier Catholicism was exaggerated. Still, it is doubtful that religion and liberty would have been allies if, for example, the orthodoxy of seventeenth-century French Canada have prevailed in the United States in 1776. The goal of the French religious education, reports historian Francis Parkman, was "to make obedient servants of the church and king." In practice, that meant unquestioning submission to "a body of men clothed with arbitrary and ill-defined powers, ruling with absolute sway an unfortunate people who had no voice in their own destinies, and unaswerable only to an apathetic master three thousand miles away."(29)
Before the Revolution, Christianity as Americans understood it had broken with "monkish ignorance and superstition" in three stages that made it compatible with the principles of liberty.
First was the Protestant rebellion from the authority of Rome. David Ramsay, a Founder and early historian of the American Revolution, explains:
all protestantism is founded on a strong claim to natural liberty, and the right of private judgment. . . . Their tenets . . . are hostile to all interference of authority, in matters of opinion, and predispose to a jealousy for civil liberty.(30)
Second was the American revival of the teaching that Christians have a duty to cultivate the virtues of responsible citizenship, especially those that enable them to fight and kill the enemies of their country. (This had been an important element in the Catholic theology of Thomas Aquinas.) When the cause of liberty is threatened, said the Reverend Samuel Davies of Virginia, "Then the sword is, as it were, consecrated to God; and the art of war becomes a part of our religion. . . . Blessed is the brave soldier; blessed is the defender of his country and the destroyer of his enemies."(31) The religion of French Canada was at odds with the teaching of "the laws of nature and of nature's God."
How, one might ask, can this be compatible with Christ's "turn the other cheek"? The Reverend Simeon Howard of Massachusetts answers, in a 1773 sermon:
When our Saviour forbids us to resist evil, he seems to have had in view only small injuries, for such are those he mentions in the following words, as an illustration of the precept; smiting on the cheek, taking away one's coat, or compelling him to go a mile. . . . But it does not follow, that because we are forbidden to resist such slight attacks, we may not defend ourselves when the assault is of a capital kind. . . . Should a person, for instance, whose ability and circumstances enable him to do good in the world, . . . tamely yield up all his interest and become an absolute slave to some unjust and wicked oppressor, when he might by a manly resistance have secured his liberty? [W]ould he not be guilty of great unfaithfulness to God, and justly liable to his condemnation?(32)
The third feature of American-style Christianity was the conviction that the Bible condemns despotism and favors political liberty. This argument was stated in sermon after sermon during the founding era and throughout our tradition. We gave a brief example earlier in this section.
The belief that liberty is a sacred cause was by no means limited to Protestants. John Carroll, the first Catholic bishop of the United States, appealed to the natural rights of all men — "the luminous principles on which the rights of conscience and liberty of religion depend" — in his pleas for full citizen rights for Catholics. The Jewish congregation in Newport, Rhode Island, addressing President Washington during his visit in 1790, said that the government of America, protecting "liberty of conscience" and securing "the blessings of civil and religious liberty," is "the work of the great God."(33)
When Tocqueville visited America in the 1820s, he heard the following Catholic prayer on behalf of the Polish struggle for liberty. It shows how far American Catholicism was from the earlier French Canadian teaching of passive obedience to aristocracy and kingship:
Lord, who hast created all men in the same image, do not allow despotism to deform thy work and maintain inequality upon the earth. Almighty God! Watch over the destiny of the Poles and make them worthy to be free; may thy wisdom prevail in their councils and Thy strength in their arms; spread terror among their enemies. . . . We beseech Thee in the name of thy beloved son, our Lord Jesus Christ. (34)
The Limits of Free Exercise: Injury to Individuals or Society
In his justly celebrated 1790 letter to the Hebrew Congregation at Newport, President Washington summed up the American understanding of the right to free exercise of religion. Washington's generous letter marked the first occasion that any nation had welcomed Jews as equal citizens since Biblical days. It also makes clear that there are definite limits to the right.
The citizens of the United State of America have the right to applaud themselves for having given to mankind examples of an enlarged and liberal policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of as if it were by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that those who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.(35)
The guarantee of free exercise of religion is absolute. But that does not mean that everything that anyone calls an "exercise of religion" is permitted. Those who refuse to "demean themselves as good citizens" are not exercising but abusing their "inherent natural rights." Consider the extreme case of the Aztec religion, in which human beings were sacrificed in supposed obedience to a divine command. If such a religion had existed in America, the Founders would have treated it as a criminal organization to promote the crime of murder. They would not have hesitated to forbid its free exercise. Religion could not be used as an excuse to violate the rights of others or to engage in conduct that would undermine the moral foundations of society. Jefferson once wrote to Madison, "The declaration, that religious faith shall be unpunished, does not give impunity to criminal acts dictated by religious error."(36)
This reservation against religious practices that threaten life, liberty, property, or public morality was made explicit in several of the early state constitutions. New York's of 1777, for example, provided "That the liberty of conscience, hereby granted, shall not be construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the state."
The decision on whether to allow a free-exercise exemption from obeying an otherwise valid public law turned on the nature of the religious practice in question. Was it on balance harmful or not? We can see two opposite reactions to free exercise claims in the cases of nineteenth-century Catholicism and Mormonism.
An 1813 New York case confronted a Catholic practice that directly violated a state law. Does a Catholic priest have to divulge secrets learned in sacramental confession? Father Anthony Kohlmann, a Jesuit priest, was called before the court and asked to reveal the name of a thief who had confessed his crime to him. He replied: "it would be my duty to prefer instantaneous death or any temporal misfortune, rather than disclose the name of the penitent in question. For, were I to act otherwise, I should become a traitor to my church, to my sacred ministry, and to God. In fine, I should render myself guilty of eternal damnation." The court ruled in favor of Father Kohlmann, saying:
If a religious sect would rise up and violate the decencies of life, by practicing their religious rites, in a state of nakedness, by following incest, and a community of wives; if the Hindoo should attempt to introduce the burning of widows on the funeral piles of their deceased husbands, or the Mahometan his plurality of wives, or the pagan his bacchanalian orgies or human sacrifices; . . . then the licentious acts and dangerous practices contemplated by the [New York] constitution would exist, and the hand of the magistrate would be rightfully raised to chastise the guilty agents. But until men under pretense of religion act counter to the fundamental principles of morality, and endanger the well being of the state, they are to be protected in the free exercise of their religion.
The case turned in large part, as James Stoner writes, on the fact that Catholics had a "reputation for law-abidingness," and that "on the whole confession does much more good than harm," in spite of the fact that the seal of confidentiality impedes the normal course of criminal investigations.(37)
Quite opposite was the federal government's treatment of the Mormons in Utah Territory in the late 1800s, at a time when their church believed that
the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God . . . ; that the failing or refusing to practice polygamy by such male members of said Church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come.
In spite of this sincere religious belief, the Supreme Court ruled that Mormons were not exempt from the law forbidding multiple wives. Polygamy was made a crime in Utah "because of the evil consequences that were supposed to flow from plural marriages." The Court wrote that a "free, self-governing commonwealth" presupposes monogamy, upon which
society may be said to be built. . . . In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or lesser extent, rests. . . . [P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.
The Republican Party platform of 1856 had condemned "those twin relics of barbarism — Polygamy, and Slavery." Both were viewed as enemies of liberty. Polygamy was thought to be the antithesis of the proper equality between man and wife. The moral message of polygamy is that one woman is not good enough for a real man. The Supreme Court pointed out, correctly, that polygamy was practiced elsewhere in the world only under despotic governments in Asia and Africa.(38)
Mormons were permitted to become full members of the American community only after they repudiated the practice. The U.S. government viewed the Mormon church in effect as an organization that promoted the crime of polygamy. In 1890 the Supreme Court upheld the government's right to seize church property. Threatened with the loss of all that it owned, the church accepted the authority of the laws forbidding plural marriages. It had become clear that under the U.S. Constitution, which Mormons believed to be divinely inspired, "circumstances would [not] admit" polygamy. In 1896 Congress admitted Utah as a state. We should note that even before that date most Mormons led otherwise exemplary lives; afterwards, they became a mainstay of moral decency and civilized conduct in America.(39)
Political scientist Richard Sherlock believes that this nineteenth-century American intolerance of Mormonism was based on "hostility to serious communal religion," which he traces to James Madison and the American founding. Sherlock sees no significant difference between the early American treatment of Mormons and of Catholics. Yet Catholics quickly overcame the legal disabilities inherited from colonial days, while Mormons were accepted only after they embraced the moral law approved by the rest of American society. Sherlock fails to see that the treatment of Mormons did not arise from hostility to "serious communal religion," but from hostility to immorality. The U.S. Constitution guarantees free exercise of religion, but not for religious practices that, in the words of the Supreme Court in 1890, are "repugnant to our laws and the principles of our civilization."(40)
The Early American Consensus in Favor of Government Support of Religion
We have mentioned three of the Founders' reasons for regarding religion as a good thing: because through it men do their duty to God; because it is a foundation of morality; and because it supports liberty. The question naturally arises whether government should limit itself merely to allowing religious liberty, or whether it should actively foster religion by its encouragement and support.
Today's prevailing opinion, expressed frequently by the Supreme Court, is clear: The purpose of the First Amendment "was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."(41)
No one in the Founders' generation would have agreed. There was, however, considerable disagreement among the Founders about how far government should go to support religion.
At one end of American opinion was the Massachusetts constitution of 1780. The people of each town were required "to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality."
Pennsylvania's 1776 constitution was closer to the mainstream. It forbid a religious establishment, but contained this provision:
Laws for the encouragement of virtue, and prevention of vice and immorality, shall be made and constantly kept in force, and provision shall be made for their due execution: And all religious societies or bodies of men heretofore united or incorporated for the advancement of religion and learning, or for other pious and charitable purposes, shall be encouraged and protected.
Probably the most obnoxious means by which religion was supported, from the point of view of many of the Founders (and of Americans today), was a requirement that some or all state office holders be Protestant (New Hampshire, New Jersey, North Carolina, South Carolina, Georgia) or Christian (Massachusetts, Pennsylvania, Delaware, Maryland). This was done by means of a required oath. For example, Pennsylvania required members of the state legislature to swear, "I do believe in one God, the creator and governor of the universe, the rewarder of the good and punisher of the wicked, and I do acknowledge the scriptures of the Old and New Testament to be given by Divine Inspiration."
However, these tests were soon abandoned. By 1798, only seven of the then fifteen states still required religious tests for holding public office. The remaining state tests were dropped or fell into disuse early in the nineteenth century. The U.S. Constitution outlaws all religious tests for federal office.
Congress was forbidden by the First Amendment "to make any law regarding an establishment of religion." This amendment was supported both by those like Madison who totally opposed government establishments of religion, and by those who favored them. It had no effect whatever on existing state policies. It kept the federal government out of the business of either establishing a national religion, or disestablishing a state. (42)
To see how far we have departed from the Founders' understanding, consider some of the many ways in which the federal government promoted religion before the 1960s. For example:
From these examples of federal "sponsorship, financial support, and active involvement . . . in religious activity," we conclude that the Founders understood the words "establishment of religion" (forbidden by the First Amendment) quite narrowly. An establishment was a designation of a particular sect or sects as the official religion of the state or nation, or government funding of the regular worship activities or buildings of a particular sect.
State governments long engaged in many similar religious activities, most importantly in the public schools. States have outlawed blasphemy against Christianity and required store closings on Sundays. They have given churches exemptions from property tax and other privileges. Yet almost every state has a provision in its constitution prohibiting an establishment of religion.
Is Government Support of Religion Compatible with Religious Liberty?
We assume today that there is a conflict — or at least a tension — between free exercise and government support of religion. But millions of American statesmen and voters supported the policies just listed. Is it not presumptuous on our part to assume so easily that for almost two centuries all these Americans were totally ignorant of the meaning of religious liberty, and that suddenly, around 1960, our eyes were opened and we saw the matter in its true light? Is it not more likely that earlier Americans had good reasons to believe that there is no necessary conflict between religious liberty and government support?
We will leave aside the case of state establishments of particular religious sects, which were controversial even in the founding era. No state has funded religious worship or named an official state church since Massachusetts abandoned her requirement that towns fund "public Protestant teachers of piety, religion and morality" in the 1830s.
The Northwest Ordinance of 1787 is one of the organic laws of the United States, printed at the beginning of the U.S. Code along with the Declaration of Independence and Constitution. The same Congress of 1789 that passed the First Amendment voted to reconfirm the Ordinance, which laid out standards for the government of the territories north of the Ohio River — the future states of Ohio, Indiana, Michigan, Illinois, and Wisconsin. The Ordinance required "the fundamental principles of civil and religious liberty [to be] the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory." Article I of the Ordinance therefore reads: "No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territory."
However, Article VI says: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." To execute this article, Congress specified that plots of land be reserved throughout the territory for public schools, within which, of course, religion and morality would be taught.
Why did Congress see no conflict between its call for public schools to teach religion and its guarantee of religious liberty in the Ordinance, not to mention its First Amendment guarantee of free exercise and prohibition of a federal "establishment of religion"? The answer lies in the meaning of free exercise of religion, which is much misunderstood today. Consider the language of the Northwest Ordinance: "No person . . . shall ever be molested on account of his mode of worship, or religious sentiments." (The Massachusetts constitution said, "no subject shall be hurt, molested, or restrained, in his person, liberty, or estate" for his mode of worship.) Religious freedom is freedom from injury because of one's religion. No one is "molested" or injured when taxed to support a religious teaching he does not agree with, any more than he is injured when taxed to support any other government activity he does not like. Of course, the Founders considered taxation legitimate only when it serves the common good, in this as in any other activity of government. That is why the Ordinance justifies its policy of support by saying that "religion [is] necessary to good government and the happiness of mankind" (just as Massachusetts said that towns were required to support religion in order to "promote their happiness and to secure the good order and preservation of civil government"). Government support of religious content in public education is not molestation. There is no conflict between "free exercise" and "government support," as long as the support in question does not penalize individuals for adopting, or failing to adopt, a particular mode of worship.
Or course, when government support benefits a particular religious sect, it unavoidably disappoints or angers those not funded. It also treats them unequally, as Madison argued in the Memorial. When public officials offer prayers, the more sectarian the prayer, the more those who are not of the same sect are offended.
These considerations have led most presidents and other leading public officials to speak in as nonsectarian a manner as possible in their prayers and proclamations, while avoiding the opposite defect of indifference or absence of content. Washington set the tone in his First Inaugural Address, where God was addressed as "that Almighty Being who rules over the universe," the "Great Author of every public and private good," and the "benign Parent of the human race." Washington concluded his letter to the Hebrew Congregation at Newport with this ecumenical prayer: "May the Father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here and, in His own due time and way, everlastingly happy."
Government Should Teach Religious Doctrines that Promote Morality and Freedom
We have already shown that the right to free exercise of religion did not excuse, in Jefferson's words, "criminal acts dictated by religious error." How did Jefferson know that criminal acts are dictated by "religious error"? Could they not be dictated by religious truth? Behind Jefferson's remark lies this argument: Our reason teaches us the difference between morality and immorality. For example, we know that murder, stealing, and slavery are wrong because they violate the self-evident truth that all men possess the natural rights to life, liberty, and property. We know that adultery is wrong because it undermines the core institution of civilized society, the monogamous family. A religion whose teaching violates these moral truths must therefore be wrong.
Samuel West, the Boston preacher quoted earlier, agreed: "A revelation, pretending to be from God, that contradicts any part of the natural law, ought immediately to be rejected as an imposture."(49)
This was an understanding that both believers and unbelievers shared. Believers held that God gives men access to the truth in two ways: through reason and through revelation. Unbelievers placed no particular trust in Scripture, but they too respected the discoveries of reason. The ground common to both reason and revelation was called the natural law.
This common ground made it possible for government not only to reject false religious doctrine (such as polygamy), but to endorse, without fear of giving offense, theological doctrines that conform to the "law of nature and of nature's God." In his official capacity as president, Jefferson praised America's
benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter.
In today's America, this consensus has broken down. Many believers now view capitalism as a violation of the "preferential option for the poor" supposedly commanded by the Bible, while others hold that socialism violates the commandment "Thou shalt not steal." Some even believe that the traditional moral law, because it forbids illicit sex and supports the integrity of the family, is evil. Episcopal Bishop Joseph Spong calls the Ten Commandments "immoral" because, he says, they "define women as property."(50) More traditional Christians and Jews see the Ten Commandments as the solution, not the problem. We can no longer speak as Jefferson did of a single "benign religion" that teaches a common moral code. If we look at religion from the Founders' point of view, we cannot speak of the goodness of "religion in general" when in the name of religion property rights and marriage are condemned as evil. Therefore we must state without hesitation that government support of religion is and ought to be preferential.
For the Founders, government had no right to compel people to believe, or say they believe, in the religious truth as it sees it. But government also had no obligation to be neutral between religious doctrines favoring despotism or immorality, and those favoring freedom or morality. Moreover, government should teach and support the theology of freedom, the theology of the Declaration. That is exactly what was done by leaders like Washington, Jefferson, and Adams during the founding era, and by Lincoln in his great Civil War speeches.
The Theology of the Great Seal of the United States
The Founders' conception of God's relation to America was pictured in the Great Seal of the United States, devised in 1782, and printed today on the dollar bill. The reverse side of the Seal — the pyramid — represents the theological teaching of the Declaration of Independence.
Much nonsense has been written on the Seal's supposed Masonic symbolism. The definitive 1976 history of the Seal finds no evidence to support the claim of Masonic inspiration or meaning. The reading of the Seal offered here is based on what was approved by Congress in 1782, and on what is obvious to the eye and clearly implied in the words.(51)
The reverse of the Seal consists of two parts: a heavenly eye and an earthly pyramid. Each part is labeled with a Latin motto.
In the earthly part, a pyramid rises toward the heaven. Congress adopted co-designer Charles Thomson's 1782 report as part of its law approving the Seal. It explains that "The pyramid signifies strength and duration." On the base of the pyramid is the Roman number MDCCLXXVI (1776), the date, as Thomson remarks, of the Declaration of Independence. The pyramid has thirteen rows of bricks, signifying the thirteen original states. (The number of rows is not specified in the law, but there are thirteen in co-designer William Barton's original drawing, and on the 1778 fifty-dollar bill from which the pyramid idea was originally taken.)(52)
The pyramid is the United States, a solid structure of freedom, built on the foundation of the Declaration, in a world hostile to civil and religious liberty. It is unfinished because America is a work in progress. More states will be added later.
"In the zenith" above the unfinished pyramid, the 1782 law calls for "an eye in a triangle, surrounded with a glory." This design and placement of God's eye suggests that America is connected to the divine in three ways.
First, the eye keeps watch over America, protecting her from her enemies. Thomson's report explains: "The eye over it and the motto allude to the many signal interventions of providence in favor of the American cause." The Declaration of Independence had expressed "a firm reliance on the protection of divine providence."
Second, the complete triangle enclosing God's eye is a model for the incomplete or imperfect triangular shape of the pyramid below. The perfect divine shape symbolizes God's perfection, which we know through his laws, which in turn guide and govern the construction of the earthly pyramid. The Declaration says that America, grounded on "the laws of nature and of nature's God," seeks to secure the rights with which the Creator endowed all men. America is a work in progress in a deeper sense than its number of states. No matter how many rows of bricks (new states) are added to the pyramid, America must always look to the Supreme Being as, and at, her "zenith," to be true to what she is and aspires to be. In the spirit of the Seal, Lincoln once said:
It is said in one of the admonitions of the Lord, "As your Father in Heaven is perfect, be ye also perfect." The Savior, I suppose, did not expect that any human creature could be perfect as the Father in Heaven. . . . He set that up as a standard, and he who did most towards reaching that standard, attained the highest degree of moral perfection. So I say that in relation to the principle that all men are created equal, let it be as nearly reached as we can.(53)
Third, the all-seeing eye is not only America's protector and ruling guide. God is also her judge. This theme is not as obvious as the first two, but it is implied by the motto annuit coeptis, "He approves of what has been started." These words imply that God will no longer approve if America strays too far from the right path — if the shape of the pyramid departs too far from the divine model. In the Declaration, America "appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions." Facing the injustice of slavery, Jefferson therefore trembled for his country when he reflected "that God is just, that his justice cannot sleep forever."
In sum, America is a nation "under God" in three ways. God protects America; God perfects and rules America; and God judges America.
The Seal has two Latin mottoes, one for the heavenly and one for the earthly part. The mottoes are taken from the great Roman poet Vergil.
The pyramid is labeled novus ordo seclorum, "a new order of the ages" (or "New World Order"). Thomson's report explains, "the words under it signify the beginning of the New American Era, which commences from that date ." The phrase is a variant of a line in Vergil's fourth Eclogue: "a great order of the ages is born anew". This Eclogue describes the return of the golden age, an age of peace and plenty. The change of words is significant. America is a "new order," not just a "great order." Vergil's golden age has come before and will come again, but nothing like the American founding has ever happened. No nation has ever grounded itself on a universal principle, discovered by reason, confirmed by revelation, and shared by all human beings everywhere: "all men are created equal."
"Over the eye," says the 1782 law, "these words, annuit coeptis." Literally translated, they mean: "he has nodded [or nods] in assent to the things that have been started" — namely, to the pyramid under construction, the "new order of the ages." In Vergil's Aeneid, Aeneas leads a remnant of men from conquered Troy over the sea to a land far to the west. After they arrive in Italy, the natives mount a ferocious attack against them. In the midst of the battle, Aeneas's son Ascanius prays to "all-powerful Jupiter" to "nod in assent to the daring things that have been started." Jupiter hears the prayer; Ascanius shoots, and his arrow pierces the enemy's head. That small band of Trojan warriors will eventually become Rome, the greatest empire in world history.(54)
The two mottoes point to the founding of Rome (the Aeneid) and the golden age (Eclogue 4). Taken together they suggest that America, with divine approval and support, will become a New Rome, combining the glory of the old Rome with the freedom, prosperity, and peace of the golden age. America's foundation, like Rome's, had to be laid in violence. The enemies of liberty had to be killed, and they will always have to be killed. But unlike Rome, the new order will not grow to greatness through warfare and conquest, but through the arts of peace. (On the front of the Seal, the eagle's head is pointed toward the olive branch in his right talon, not the arrows of war in his left.) As Washington wrote to the Newport Jews, in America "everyone shall sit in safety under his own vine and fig tree and there shall be none to make him afraid."
We can now see that General Patton's demand for a weather prayer was well grounded in what we may call America's non-established civil religion, as taught in the Declaration of Independence, the Great Seal, and in the last stanza of the national anthem, the Star-Spangled Banner:
Oh! thus be it ever, when freemen shall stand
Between their loved home and the war's desolation,
Blest with vict'ry and peace, may the Heav'n-rescued land
Praise the Pow'r that hath made and preserved us a nation.
Then conquer we must, when our cause it is just,
And this be our motto — "In God is our trust."
And the Star-Spangled Banner in triumph shall wave,
O'er the land of the free, and the home of the brave.
Why the Founders' Understanding of Religious Liberty Matters
Today, large numbers of conservatives and liberals alike believe that the principle of religious liberty requires the state to be neutral or even hostile toward religion.
The view of liberty, which is grounded in moral relativism, leads people on the left to demand the expulsion from American public life of the few remaining remnants of traditional morality and religious expression. The limitation of marriage to a man and a woman, the lingering presence of Christmas holidays and songs in public schools, taxpayer support of legislative and military chaplains — all these holdovers of the repressive traditions of the past must go.
People on the right, holding the same view of religious liberty, too often conclude that they should despise or deny their country's principles. What other course remains for Christians or Jews who believe that America's principles are indifferent to, or at war with, their deepest religious convictions? What other course remains for one who aspires to the classical ideal of virtue and nobility?
But this is a false dilemma. The prevailing interpretation of religious liberty is wrong.
Liberals need to learn that although the right to free exercise of religion is indeed sacred, it is both appropriate and necessary for government to limit abuses of religious liberty, and to support sound religious convictions, in a nation that means to remain free.
Conservatives need to recover the Founders' understanding that a "naked public square" — a public life that allows no place for the expression of the deepest foundation and purpose of liberty — is not fit for human habitation. They need not be shy about their desire for public acknowledgment of the importance of God in our lives — as long as every individual is protected in his "natural and unalienable right to worship God according to the dictates of his own conscience, and reason."
(1) George S. Patton, Jr., War As I Knew It (orig. pub. 1947; New York: Bantam, 1980), pp. 175-6. (Return)
(2) Everson v. Board of Education, 330 U.S. 1 (1947). (Return)
(3) Thanksgiving proclamation, Nov. 1, 1777, authored by Samuel Adams, in Adams, Writings, ed. Harry A. Cushing (New York: Putnam's, 1904), vol. 3, pp. 414-6. (Return)
(4) Madison, Federalist no. 63. Samuel West, "On the Right to Rebel against Governors" (1776), in Charles S. Hyneman and Donald S. Lutz, ed., American Political Writing during the Founding Era (Indianapolis: Liberty Press, 1983), p. 415 (my emphasis). (Return)
(5) Planned Parenthood v. Casey, 112 S.Ct. 2791. These relativistic words were written by Justices O'Connor, Kennedy, and Souter — all Republicans. (Return)
(6) Letter of January 1, 1802, in Writings, (New York: Library of America, 1984), p. 510. (Return)
(7) Everson v. Board of Education, 330 U.S. 1 (1947). Lee v. Weisman, 112 S.Ct. 2649 (1992). (Return)
(8) Engel v. Vitale, 370 U.S. 421 (1962). Brennan, concurring opinion, Abington School District v. Schempp, 374 U.S. 203 (1963), emphasis added. Charles E. Rice, The Supreme Court and Public Prayer (New York: Fordham University Press, 1964), pp. 19, 112-3. "A world that is dead and gone" is from Brennan's Georgetown speech, October 12, 1985, in Edwin Meese et al., The Great Debate (Washington: Federalist Society, 1986), pp. 17, 23-25. (Return)
(9) Michael W. McConnell, "Accommodation of Religion," in Philip B. Kurland et al., ed., The Supreme Court Review: 1985 (Chicago: University of Chicago Press, 1986), pp. 21, 39. McConnell, "The Origins and Historical Understanding of Free Exercise of Religion," Harvard Law Review, vol. 103 (May 1990), pp. 1409-1517. (Return)
(10) Linda Greenhouse, "Justices Hear Campus Religion Case: University Challenged for Refusal to Subsidize Christian Magazine," New York Times, March 2, 1995, p. A11. James R. Stoner, "Religious Liberty and Common Law: Free Exercise Exemptions and American Courts," Polity, vol. 26 (Fall 1993), criticizes McConnell on pp. 9-14. (Return)
(11) Lee v. Weisman, 112 S. Ct. 2649 (1992) (Souter's concurring opinion shows that public prayer is necessarily "preferentialist"). Marsh v. Chambers, 463 U.S. 783 (1983) (permitting chaplains). The Re-Imaging conference: A Catalog of Concerns: The Episcopal Church in the U.S. under Edmond Lee Browning (Mobile, AL: AWAKE, 1995), p. 14. (Return)
(12) Francis N. Thorpe, ed., The Federal and State Constitutions (Washington: Government Printing Office, 1909), pp. 2453-4. (Return)
(13) South Carolina's free exercise guarantee did not come until 1790. (Return)
(14) "Madison, Memorial and Remonstrance", in Hyneman and Lutz, American Political Writing during the Founding Era, p. 636. Madison, letter to Bradford, January 24, 1774, in Robert S. Alley, ed., James Madison on Religious Liberty (Buffalo: Prometheus Books, 1985), p. 48. (Return)
(15) The Federalist, no. 10 and 51. (Return)
(16) Virginia Declaration of Rights (1776), in Philip B. Kurland and Ralph Lerner, ed., The Founders' Constitution: Major Themes (Chicago: University of Chicago Press, 1987), p. 7. (Return)
(17) Hyneman and Lutz, American Political Writing, p. 632. Cf. Eva Brann, "Madison's 'Memorial and Remonstrance,'" in Glen Thurow and Jeffrey D. Wallin, ed., Rhetoric and American Statesmanship (Durham: Carolina Academic Press and The Claremont Institute, 1984), pp. 9-46, and Peter A. Lawler, "James Madison and the Metaphysics of Modern Politics," Review of Politics, vol. 48 (1986), pp. 92-115. (Return)
(18) Philip S. Denenfield, "The Conciliar Declaration and the American Declaration," in John Courtnay Murray, ed., Religious Liberty (New York: Macmillan, 1966), p. 120, quoted by Tim Burns, "The Declaration on Religious Liberty: Synthesizing Traditions" (xerox). (Return)
(19) Craycraft, "Virtue among the Ruins," The Intercollegiate Review, Fall 1991, p. 34. (Return)
(20) Memorial, in Hyneman and Lutz, American Political Writing, pp. 634-5. Tench Coxe, "An American Citizen IV," October 21, 1787, in John P. Kaminski et al., ed., Commentaries on the Constitution (Madison: State Historical Society of Wisconsin, 1981-), vol. 1, p. 432. (Return)
(21) Madison, Memorial and Remonstrance, in Hyneman and Lutz, American Political Writing, pp. 634-5. Jaffa, The American Founding as the Best Regime: The Bonding of Civil and Religious Liberty. (Return)
(22) Rush, speech in Pennsylvania ratifying convention, December 12, 1787, Merrill Jensen, ed., Documentary History of the Ratification of the Constitution, vol. 2: Ratification of the Constitution by States: Pennsylvania (Madison: State Historical Society of Wisconsin, 1976), p. 595. (Return)
(23) Federalist no. 51. Letter to Beasley, November 20, 1825, in Alley, James Madison, p. 85. (Return)
(24) Washington, A Collection, pp. 469, 521. (Return)
(25) Jefferson, Notes on the State of Virginia, Query 18, in Writings, p. 289 (my emphasis). (Return)
(26) Madison, Federalist no. 37. Washington, A Collection, p. 461. (Return)
(27) Cooper, A Sermon (1780), in Ellis Sandoz, ed., Political Sermons of the Founding Era, 1730-1805 (Indianapolis: Liberty Press, 1991), p. 637, quoting Acts 17:26. (Return)
(28) Washington, "Circular to the States" (1783), in A Collection, p. 240. Jefferson to Weightman, June 24, 1826, in Writings, p. 1517. Jefferson to Madison, December 16, 1787, in James M. Smith, ed., The Republic of Letters (New York: Norton, 1995), vol. 1, p. 458. (Return)
(29) Parkman, France and England in North America (New York: Library of America, 1983), vol. 1, p. 1354; vol.2, p. 1216. (Return)
(30) Ramsay, The History of the American Revolution, 2 vols. (orig. pub. 1789; Indianapolis: Liberty Classics, 1990), vol. 1, p. 28. Ramsay is paraphrasing Edmund Burke, "Speech on Conciliation with the Colonies" (1775). (Return)
(31) Samuel Davies, The Curse of Cowardice (1758), in The Annals of America (Chicago: Encyclopedia Britannica, 1968), vol. 2, pp. 23-24. (Return)
(32) Howard, A Sermon Preached to the Ancient and Honorable Artillery Company in Boston (1773), in Hyneman and Lutz, American Political Writing, pp. 193-4, 201. (Return)
(33) Carroll, "To John Fenno of the Gazette of the U.S.," June 10, 1789, in Thomas O. Hanley, ed., The John Carroll Papers (Notre Dame: University of Notre Dame, 1976), vol. 1, p. 365. Anson P. Stokes, Church and State in the United States (New York: Harper, 1950), p. 862. (Return)
(34) Democracy in America, trans. George Lawrence (Garden City: Doubleday Anchor, 1969), pp. 289-90. (Return)
(35) Washington, letter to the Hebrew Congregation of Newport, in Stokes, Church and State in the United States, p. 862.(Return)
(36) Letter of July 31, 1788, in Adrienne Koch et al., The Life and Selected Writings of Thomas Jefferson (New York: Modern Library, 1944), p. 451. (Return)
(37) Stokes, Church and State in the United States, vol. 1, pp. 848-9 (emphasis added). Stoner, "Religious Liberty and Common Law," p. 23. Gerard V. Bradley, "Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism," Hofstra Law Review, vol. 20 (Winter 1991), pp. 245-319, shows that this municipal court case had no force as precedent; as in other states, the confidentiality of the confessional was secured by a law passed by the state legislature. (Return)
(38) Reynolds v. U.S., 998 U.S. 244 (1879) (emphasis added). Arthur S. Schlesinger, Jr., ed., History of U.S. Political Parties (New York: Chelsea House, 1973), vol. 2, p. 1204. (Return)
(39) The relevant documents are in John T. Noonan, ed., The Believer and the Powers that Are: Cases, History, and Other Data Bearing on the Relation of Religion and Government (New York: Macmillan, 1987), pp. 194-207. The quotation is from Late Corporation of the Church of Jesus Christ of Latter Day Saints v. U.S., 136 U.S. 1 (1890). (Return)
(40) Richard Sherlock, "Liberalism at a Dead End," Crisis, April 1995, p. 19. Davis v. Beason, 133 U.S. 333 (1890). (Return)
(41) Dissent of Rutledge in Everson v. Board, 330 U.S. 1 (1947), cited with approval in Abington School District v. Schempp, 374 U.S. 203 (1963). (Return)
(42) Gary D. Glenn, "Forgotten Purposes of the First Amendment Religion Clause," Review of Politics, vol. 49 (Summer 1987), pp. 340-367. (Return)
(43) Noonan, Believer and the Powers That Are, pp. 127-8. (Return)
(44) Rice, The Supreme Court, pp. 177-93, quotes the relevant passages from the addresses from 1789-1961.(Return) (45) Noonan, Believer, p. 138. Rice, Supreme Court, p. 65. (Return)
(46) Rice, Supreme Court, p. 64. Noonan, Believer, p. 138. (Return)
(47) Noonan, Believer, p. 138. (Return)
(48) Rice, Supreme Court, p. 4. Justice Douglas cites other examples in his concurring opinion in Engel v. Vitale, 370 U.S. 421 (1962), all of which he says should be ruled unconstitutional. Stone v. Graham, 449 U.S. 39 (1980) (Ten Commandments case). (Return)
(49) On the Right to Rebel against Governors (1776), in Hyneman and Lutz, American Political Writings, p. 414. (Return)
(50) Spong made this statement at a homosexuality symposium at President Clinton's Foundry United Methodist Church in Washington, according to Mark Tooley, "St. Jack's Gospel," Foundations (Newsletter of the Episcopal Synod of America), January 1996, p. 8. (Return)
(51) Richard S. Patterson and Richardson Dougall, The Eagle and the Shield: A History of the Great Seal of the United States (Washington: Government Printing Office, 1976), pp. 83-91, 529-32. (Return)
(52) Patterson, Eagle and Shield, pp. 66-8. (Return)
(53) Lincoln, speech at Chicago, July 10, 1858, in Roy T. Basler, ed., Collected Works of Abraham Lincoln (New Brunswick: Rutgers University Press, 1953), vol. 2, p. 501. (Return)
(54) Eclogues 4.5; Aeneid 9.625. The line reads Juppiter omnipotens, audacibus adnue coeptis (literally, "All-powerful Jupiter, nod to the daring things that have been started"). The same phrase also occurs in Vergil's Georgics, 1.40, in a prayer to Caesar; I can think of no plausible connection to the teaching of the American Seal. (Return)