Tuesday, September 15, 2009

Philosophic Basis of the 1st Amendment

Franky Schaeffer states:
“It has been convenient and expedient for the secular humanist, the materialist, the so-called liberal, the feminist, the genetic engineer, the bureaucrat, the Supreme Court justice, to use this arbitrary division between church and state as a ready excuse. It is used, as an easily identifiable rallying point, to subdue the opinions of that vast body of citizens who represent those with religious convictions.”

The framers of our Constitution provided the First Amendment specifically to limit the federal government in several areas concerning the basic rights of American citizens: freedom of religion, speech, press, assembly, and petition of grievances. The freedom of religion was paramount to the founders of our Republic under God. Religious freedom is the base for exercise of the other freedoms. Martin Luther’s assertion of the ‘priesthood of all believers’ came to be known as the liberty of conscience.

In "The Travail of Religious Freedom", Roland Bainton proclaims:
“…all freedoms hand together…Civil liberties scarcely thrive when religious liberties are disregarded, and the reverse is equally true. Beneath them all is a philosophy of liberty, which assumes a measure of variety in human behavior, honors integrity, respects the dignity of man, and seeks to exemplify the compassion of God.”

Eminent jurist James Kent declared in his classic work "Commentaries on American Law",
“The free exercise and enjoyment of religious profession and worship may be considered as one of the absolute rights of individuals, recognized in our…law.”

This was the heritage of the Reformation and was developed from William Blackstone by James Kent. Kent published his Commentaries adapting the title and structure parallel to Blackstone. They shared the same faith in the divine order of the law.

Although the Constitution makes no direct reference to God; it is technical document, a contract, an agreement, a covenant between the federal government and the people collectively in the states.

They did not want the federal government to have any authority over the church and religion. It incorporates the theistic principles of colonial constitutions and the Declaration of Independence.

Notice the term in the preamble to the Constitution, “secure the blessings of liberty to ourselves and our posterity”. The Constitution was ordained to “secure the blessings of liberty” that already existed in 1789. The liberties already existed in the state constitutions which were Christian.
“We…the people of Massachusetts, acknowledging with grateful gratitude hearts, the goodness of the great Legislator of the Universe, according us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence, or surprise, of entering into an Original, explicit, and Solemn Compact with each other…” Massachusetts Constitution of 1780.

The purpose of the 1st Amendment to the Constitution was to prevent the Federal Government from establishing a national church. James Madison declared that the 1st Amendment was ratified because the “people feared one sect might obtain preeminence, or two combine together, and establish a religion to which they would compel the others to conform.”

The philosophic base of the First Amendment is denominational-pluralism. The First Amendment protected a healthy coexistence of all Christian sects. This is not to be confused with the contemporary pluralism of our era which commands complete acceptance of all views including non-theistic world view of secular humanism. At the ratification of the First Amendment in 1791, several of the states were supporting a church or religion. Supreme Court Justice Hugo Black acknowledged this fact in the 1962 Supreme Court decision banning prayer from public schools.

“Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.”

This continued into the early part of the nineteenth century. Massachusetts paid salaries to Congregational ministers until 1833. Although American states had Christianity as their foundation; it did not mean they were theocracies. (Theocracies are governments of state officials who are regarded as divinely guided.)

It meant that laws and civil government were based upon biblical principles. The state government did not tell how one should worship.

In 1785 session of the General Assembly of the State of Virginia, James Madison explained in "Religious Freedom, A Memorial and Remonstrance" why he was opposed to the establishment of religion by law.
“It is the duty of every man to render to the Creator such homage…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.”

“Because the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who ought to enjoy this precious gift, ought to be, that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it, with the number still remaining under the dominions of false religions, and how small is the former! Does the policy of the bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of Truth, from coming into the region of it…”

Wilst we assert ourselves a freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence to God, not against man: To God, therefore, not to man, must an account of it be rendered.”

Earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act which would affront His holy prerogative, or violate the trust committed to them; and, on the other, guide them into every measure which may be worthy of blessing.”

United States Supreme Court Justice Joseph Story declared in his work A Familiar Exposition of the Constitution of the United States, 1840:
“We are not to attribute this prohibition of a national religious establishment (in the First Amendment) to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence than the framers of the Constitution)…
Probably, at the time of the adoption of the Constitution, and of the Amendment to it now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship.
Any attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation...The real object of the amendment was not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.”

Constitutional attorney John W. Whitehead declared,
“The Constitution separated the institution of the church from the institution of the state but not the Christian religion from the federal state – far less Christian individuals from any meaningful activity within the state and society at large.”

Therefore, the idea of a Christian being excluded from practicing his Christian principles except at home and in the church was unthinkable.

In the First Amendment, the word “Congress” means the Federal Government. The word “Respecting” is literally defined as “having anything to do with.” Historically the term “establishment” means “government support of a single church or government preference of one creed or denomination over another.”

In contemporary language as Attorney Whitehead declares the First Amendment would read:
“The federal government shall make no law having anything to do with supporting a national denominational church, or prohibiting the free exercise of religion.”

The word “religion” as used in the First Amendment was defined by the founders in terms of Judeo-Christian theism. James Madison termed “religion” as:
“Religion, or the duty we owe to our Creator, and manner of discharging it, can be directed only by reason and conviction, not by force or violence…”

Religion was to be protected by the First Amendment and had its reference point in God. The entire Bill of Rights were restraints and restrictions upon the Federal Government and not the state governments.

Shortly after the ratification of the Fourteenth Amendment; the courts determined that the states should be restricted by the Bill of Rights. This is one of the greatest distortions of Constitutional doctrine.


Mikewind Dale said...

"The Constitution was ordained to 'secure the blessings of liberty' that already existed in 1789. The liberties already existed in the state constitutions which were Christian."

This point is made excellently at length in Christianity, Our Early State Constitutions, and American Federalism. The states and their constitutions already existed when the Federal Constitution was ratified.

Furthermore, we might note that while the Federal Constitution in fact prohibits almost all relationship with religion, by contrast, great latitude was given to the states. I believe the reason is that the smaller and more localized the society in question, the less libertarian it need be, and the more it can execute positive liberty and not merely negative liberty. At the most extreme level, for example, that of a town, an incredible amount of positive liberty and coercion is possible. I believe the reason is twofold:
(1) The more local the society, the more possible it is to relocate, and thus, the more one may assume tacit consent to any oppression. Since one may leave that society easily, it can be assumed that by staying, he has consented to whatever is laid upon him.
(2) The more local the society, the closer the relationship between citizens and civil authorities, and the greater ability of persuasion and redress of oppression by the citizens.
In other words, Locke-ian concepts of social-contract and tacit consent become more workable and feasible the smaller and more local the society in question is. Therefore, the society can become less libertarian and more majoritarian and/or authoritarian. (This is all very generalized and oversimplified, of course.)

The 14th Amendment complicates matters, of course. This makes it more difficult to determine how religion and state should relate today, but it's at least very clear that historically, until the 14th Amendment, religion and state were truly separated only at the Federal level. We can argue all day long about church and state today, but as long as we're discussing only history and not contemporary policy, matters are very clear.

Mikewind Dale said...

"Wilst we assert ourselves a freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence to God, not against man: To God, therefore, not to man, must an account of it be rendered." - James Madison

It sounds as if Madison wants to ensure that the world becomes Christian become of conviction and not because of coercion. As Locke said in his essay on religious tolerance, it is not the government's business whether you are damned, and besides, coercion is useless as a means of instilling belief. If the Christians wish the world to worship G-d, coercion is pragmatically ill-advised, irrespective of any moral arguments which may be adduced in its favor.

By contrast, however, coercion is a perfectly suitable and proper tool for affecting actions in society. As shown in Christianity in Nineteenth Century American Law, Christianity was cited plenty of times in civil law, when the goal was to affect society and the public peace. (For example, violation of the Sabbath in public might disrupt decorum and the atmosphere.)

Furthermore, because of sphere sovereignty, the civil law could bring religion only when it was relevant to the public peace, and not for its own inherent sake. That is, as the previously cited article shows, several judges held that while Christians are certainly obligated to do certain things, this does not in itself justify civil legislation. Many matters are between man and G-d; only those matters of religion which affect one's fellow are within the purview of the government. Just because something is good and ought to be done, does not itself legitimize governmental involvement. Sphere-sovereignty was also held by the Calvinists to distinguish between the preacher (whose power was persuasion) and the magistrate (whose power was coercion). Both were obligated to uphold the Bible, but in different ways, just as the body and soul have the same ultimate objective but different means. Therefore, the preacher and magistrate were forbidden to interfere with each other's work. See The Covenant Origins of the American Polity and Huldrych Zwingli’s (1484-1531) political theology and his legacy of resistance to tyranny.

In short, then, assuming the state's constitution allowed it (the Federal Constitution had nothing to say on the matter), religion could be brought in practical civil law as long as it was a matter affecting the public peace, and not a matter specifically between man and G-d. This is because (1) coercion is quite effective in deed, whereas it is useless for creed, and (2) the magistrate's sphere sovereignty is limited to upholding the public peace, and not ensuring that one goes to heaven.