The First Amendment

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Needless to say, the only portion with which we concern ourselves in this discussion is the part that deals with religion. There are those who claim that the injunction prohibiting Congress from making any law respecting an establishment of religion is in fact a call for the complete removal of anything of religious significance from the public sector. As we shall see, the very Congress which considered and voted on this amendment proved by their actions that they certainly didn't believe that. So why should we?

In fact, the amendment, in its grammar, says exactly what it means. It states that the United States Congress cannot pass a law concerning an establishment of religion. The legislature may never adopt any particular religion as "the religion" of the country. The Catholic religion, as an example, became the official religion of Spain in 586 AD. That cannot happen in the United States, with the Catholic or any other particular faith. James Madison himself, who was among the members of the First Congress and considered the language of what was to become our First Amendment, understood that the language was intended for that purpose.[1]

How do we know what the framers meant by "religion"? Well, we are convinced by their very actions (which we shall see later), by their very words, and by the context in which the word was legally used at the time, that "religion" refers to a Christian denomination, and not a simple act of devotion to God. In a transaction betwen Henry Abbot and James Iredell, for example, the former states that "I am for my part against any exclusive establishment, but if there were any, I would prefer the Episcopal."[2] Thus Mr. James uses the term "religion" (and it is telling to note that the context of his statement deals with national establishment) to refer to a Christian denomination. That great commentator on English law, William Blackstone, who published his famous work about a decade before the Constitutional Convention and had a profound impact on the legal thinking of his era,[3] uses the terms "national church," "our present establishment," and "the national religion" interchangeably.[4] Thus, we see that in the context of the times, by the very words of people who had a part in making the Constitution the supreme law of our land, and by the very people who considered the language of the Amendment, that the word "religion" referred primarily to a Christian denomination, and therefore the establishment clause prevents the establishment of a national Christian sect by the United States Congress.

The First Amendment also prevents Bossuet's motto ("Un roi, une loi, une foi" - "One king, one law, one faith") from becoming a reality in the United States.[5] Legislation which supports the notion that a particular faith should reign supreme in the United States is forbidden. One of the many benefits of this country is that people of different faiths can practice their religion without fear of reprisals from the government.

A principle that runs throughout the history of Europe is Cuius regio eius religio, the idea that the religion of the ruler should be made obligatory upon his/her subjects. The negative consequences and the disastrous forms of strife and revolution that result from such a policy are made manifest by a study of Western history.[6] The First Amendment of the United States Constitution prevents such problems becoming a reality in this country because it prevents Congress from passing a law even "respecting" an establishment of religion. Should the majority in Congress, for example, be Catholic, they cannot pass legislation which would in any way treat Protestants or other non-Catholics negatively.

This amendment does not, however, remove every vestige of religion from government. Even Supreme Court Justice Douglas, delivering the opinion for the court in Zorach v. Clauson says, "The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths - these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court.'"

It is interesting to note that from the early Congressional debates about the language of the amendment, one lawmaker showed himself to be a prophet indeed, in that he predicted that the language of the amendment could be construed in such a way as to favor atheists or agnostics. "Mr. HUNTINGTON said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion... He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, BUT NOT TO PATRONIZE THOSE WHO PROFESSED NO RELIGION AT ALL"[7 - Emphasis added]. But isn't that exactly how many of the separation of church and state extremists interpret the amendment today? They view it in such a way as to make atheists/agnostics happy, completely eliminating anything religious from the realm of public activity. Indeed, an Internet search on this subject will reveal much more than a few atheist-oriented web sites which scream for a total elimination of religion from the public sector. This is hardly a coincidence. It's a fulfillment of the prophecy and fear of Mr. Huntington.[8]

In closing, this amendment has been grossly misinterpreted. It's function is not to completely eradicate religion from everything that has anything to do with the government. It's function is to prevent the establishment of a national Christian denomination.

One further note, we refer to this amendment as the First Amendment throughout this web page. At times, it was not always the First Amendment. During the genesis of our republic, it was actually the Third Amendment. However, for the sake of simplicity, it will always be referred to as the First Amendment.

[1] Gales & Seaton's History Of Debates in Congress, Sec. 758. The record shows that Madison "apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, AND ESTABLISH A NATIONAL RELIGION; TO PREVENT THESE EFFECTS HE PRESUMED THE AMENDMENT WAS INTENDED, and he thought it well expressed as the nature of the language would admit" [Emphasis added]. The language then considered was slightly different than our First Amendment's verbiage, but this history reveals the presumed intention of the nature of said Amendment. In fact, Madison later (Ibid., Sec. 758ff) requested that the word "national" be inserted into the amendment, but that idea was rejected for anti-federalist, and not separationist, purposes.

[2] The exchange comes from the North Carolina Convention (July 30, 1788). The context deals with the ban on religious tests in the unamended Constitution.

[3] For a fascinating study on the influence of Blackstone on American legal history, see "Rediscovering Blackstone" by Albert W. Alschuler in Univeristy of Pennsylvania Law Review; November 1, 1996. The author gives a thoroughly referenced work on the influence of Blackstone, quoting Mary Ann Glendon as stating that during America's formative period, "It would be hard to exaggerate the degree of esteem in which... the Commentaries were held." He also refers to Edmund Burke stating that in the year preceding the Declaration of Independence, nearly as many copies of the Commentaries had been sold in America as on the English side of the Atlantic.

[4] See pp. 49, 52, & 53 of vol. 4 of Blackstone's Commentaries (facsimile of original).

[5] Jacques Bénigne Bossuet was a 17th-century French bishop and probably one of the greatest orators in the history of France.

[6] For a glimpse at the perils of the other extreme (church/state unification), see the History section.

[7] Gales & Seaton's History Of Debates in Congress, Sec. 758. Again, the amendment then considered used different language than the First Amendment of today (which was the verbiage eventually adopted by the First Congress), although it was essentially the same in character and scope: "no religion shall be established by law, nor shall the equal rights of conscience be infringed."

[8] "[T]he gentleman first up on the subject," to which Mr. Huntington refers, had expressed a fear that the language of the amendment would "have a tendency to abolish religion altogether" (Ibid., Sec. 757).

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