Amar’s Bill of Rights: Our First Amendment – Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ....

The freedom of religion is one of the most cherished and most fundamental of American bedrock principles. One would have to look far and wide to find an American who would advocate support of a particular religion or sect by the government or, more still, would support the interference by the government in the right of a person to practice and observe -- or not -- his own system of belief. George Washington summed it up for all of us when he wrote to the United Baptist Chamber of Virginia in May of 1789:

 

Every man, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshiping the Deity according to the dictates of his own conscience.

But these vague boundaries of the First Amendment's two complementary religion clauses -- the Establishment Clause and the Free Exercise Clause -- are about the only things regarding the line of separation between State and religion that Americans do agree on. For while these are indeed complementary clauses (one cannot exist without the other), they are also clauses that live in constant tension, striving over against the other to gain dominance. Peace and balance can only be maintained in one <i>not</i> gaining dominance over the other.

This tension did not exist in the Framers' original conception of the First Amendment, however. Amar makes clear their expectation that federalism would inform the interaction of State and religion, not the federal Constitution:

 

The establishment clause did more than prohibit Congress from establishing a national church. Its mandate that Congress shall make no law "respecting an establishment of religion" also prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments. In 1789, at least six states had government-supported churches -- Congregationalism held sway in New Hampshire, Massachusetts, and Connecticut under local-rule establishment schemes, while Maryland, South Carolina, and Georgia each featured a more general form of establishment in their respective state constitutions. Even in the arguably "nonestablishment" states, church and state were hardly separate; at least four of these states, for example -- in their constitutions, no less -- barred non-Christians or non-Protestants from holding government office. According to one tally, eleven of the thirteen states had religious qualifications for officeholding. Interestingly, the federal establishment clause as finally worded most closely tracked the proposal from the ratifying convention of one of the staunchest establishment states, New Hampshire, that "Congress shall make no laws touching religion." (pp. 32-33)

The matter was simply excluded from Congress' Article 1, Section 8 list of delegated powers and left to the states. So, Amar argues, the establishment clause should not necessarily be incorporated against the states through the Fourteenth Amendment, as the rest of the First Amendment rights should be:

 

Incorporation of the free-speech clause against states does not negate state legislators' own First Amendment rights to freedom of speech in the legislative assembly. But incorporation of the establishment clause has precisely this paradoxical effect; to apply the clause against a state government is precisely to eliminate its right to choose whether to establish a religion -- a right clearly confirmed by the establishment clause itself. (pp. 33-34)

Our federal establishment clause is the American equivalent to the 1648 European Treaty of Westphalia that established religious policy as a local matter, so the question presents itself - how can a requirement for locality on the matter be incorporated against the very localities empowered to decide the matter? In this way, the establishment clause is more akin to the Tenth Amendment, preserving states' rights, than the rest of the Bill of Rights (whether they primarily protect majoritarian rights against repressive government or minority rights against overbearing majorities).

Seen as protecting states' rights, it becomes easier to understand why the First Congress lumped the religion clauses and the rights to speech, press, assembly, etc all together in the First Amendment.

 

Thus our First Amendment opened with words suggesting an utter lack of enumerated power to regulate religion in the states or restrict speech -- "Congress shall make no law" -- in sharp contrast to the language of later amendments dealing with areas where Congress clearly did enjoy enumerated Article I power to "make ... law." (The militia and war power clauses of Article I gave Congress broad power over military matters addressed by the Second and Third Amendments; federal searches and seizures -- the subject of the Fourth Amendment -- clearly fell within Congress' explicit power to regulate customs and captures, among other things; and Article I expressly authorized Congress to "constitute tribunals," whose procedures werethe main subject of Fifth, Sixth, Seventh, and Eighth Amendments.)

The "Congress shall make no law" amendment's precise location in the original Bill is also quite illuminating. The orginal First Amendment on congressional size modified Article I, section 2; and the original Second amended Article I, section 6, dealing with congressional salary. Then came our "no law" amendment, glossing the Article I, section 8 catalogue of enumerated congressional powers by suggesting that Congress lacked power to censor expression or regulate state religious policy -- a kind of reverse "necessary and proper" clause.... When we remember that Madison originally proposed to interweave his amendments into the original Constitution rather than tack them on at the end, it makes sense that the order of amendments would track the order of the Constitution itself. (pp. 36-37)