Thursday, February 26, 2009

Joseph Story on Religion and the First Amendment

Quite helpful to our exploration of religion and the Founding---some excerpts from Commentaries on the Constitution of the United States by Supreme Court justice Joseph Story, published in 1833.

Now, Story's work is admittedly from the post-Founding period, but it was James Madison himself who wanted the deliberations on the Bill of Rights kept secret, so that these laws would find their own feet: Just as we acknowledge that how the Ratifiers understood the language of the amendments is more important than the understanding of the Framers themselves, so too Madison contends that until laws are put into custom and practice and a common understanding is achieved, they aren't quite finalized. Custom and practice are the final establishment of the understanding of a law.

This is the principle behind the Supreme Court's reverence for stare decisis, a jurisprudence constante, if you will. A good principle, I think---what was legal yesterday should be legal today if we are not to sink into capriciousness, madness, and tyranny.

Therefore, although the post-Founding era is technically beyond the scope and focus of this blog, it's not until 1833 or so do we see the work of Madison, et al., on the Bill of Rights "settle in," by standards that Madison himself endorsed.

I've pulled together some relevant sections from Justice Story's work so that you, dear reader, don't have to; as a reward for my efforts, I boldfaced the final paragraph, which is particularly probative on federalism, religion and the Founding. Otherwise, Story's words are unedited except for omitting his copious footnotes. He is long but lucid, and makes for fairly effortless reading even after almost 200 years. There are guest appearances by William Blackstone and John Locke, as well as a few amusing de rigeur whacks at papism:

§ 621. In like manner there is a total absence of any qualification founded on religious opinions. However desirable it may be, that every government should be administered by those, who have a fixed religious belief, and feel a deep responsibility to an infinitely wise and eternal Being; and however strong may be our persuasion of the everlasting value of a belief in Christianity for our present, as well as our immortal welfare; the history of the world has shown the extreme dangers, as well as difficulties, of connecting the civil power with religious opinions.

In the actual situation of the United States a union of the states would have been impractible from the known diversity of religious sects, if any thing more, than a simple belief in Christianity in the most general form of expression, had been required. And even to this some of the states would have objected, as inconsistent with the fundamental policy of their own charters, constitutions, and laws.

§1863. Let us now enter upon the consideration of the amendments, which, it will be found, principally regard subjects properly belonging to a bill of rights.

§1864. The first is, “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 government for a redress of grievances.”

§1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.

How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character.1 Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;—these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.

§1866. The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honours, trusts, emoluments, privileges, and immunities of the state. For instance, a govern-ment may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities.

§1867. Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty. He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. “When,” says he, “the Christian religion, two centuries ago, became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people of the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one.” Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times. Massachusetts, while she has promulgated in her bill of rights the importance and necessity of the public support of religion, and the worship of God, has authorized the legislature to require it only for Protestantism. The language of that bill of rights is remarkable for its pointed affirmation of the duty of government to support Christianity, and the reasons for it. “As,” says the third article, “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through the community, but by the institution of the public worship of God, and of public instructions in piety, religion, and morality; therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this Common wealth have a right to invest their legislature with power to authorize, and require, and the legislature shall from time to time authorize and require, the several towns, parishes, &c. &c. 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, in all cases where such provision shall not be made voluntarily.” Afterwards there follow provisions, prohibiting any superiority of one sect over another, and securing to all citizens the free exercise of religion.

§1868. 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. An 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.

§1869. It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.

§1870. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that “religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence,” Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. “No man, or society of men,” says he, “have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself.” The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of the precepts of natural, as well as of revealed religion.

§1871. The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head; and even New-England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals. Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.

§1872. Mr. Justice Blackstone, after having spoken with a manly freedom of the abuses in the Romish church respecting heresy; and, that Christianity had been deformed by the demon of persecution upon the continent, and that the island of Great Britain had not been entirely free from the scourge, defends the final enactments against nonconformity in England, in the following set phrases, to which, without any material change, might be justly applied his own sarcastic remarks upon the conduct of the Roman ecclesiastics in punishing heresy. “For nonconformity to the worship of the church,” (says he,) “there is much more to be pleaded than for the former, (that is, reviling the ordinances of the church,) being a matter of private conscience, to the scruples of which our present laws have shown a very just, and Christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the national church. There is always a difference to be made between toleration and establishment.” Let it be remembered, that at the very moment, when the learned commentator was penning these cold remarks, the laws of England merely tolerated protestant dissenters in their public worship upon certain conditions, at once irritating and degrading; that the test and corporation acts excluded them from public and corporate offices, both of trust and profit; that the learned commentator avows, that the object of the test and corporation acts was to exclude them from office, in common with Turks, Jews, heretics, papists, and other sectaries; that to deny the Trinity, however conscientiously disbelieved, was a public offence, punishable by fine and imprisonment; and that, in the rear of all these disabilities and grievances, came the long list of acts against papists, by which they were reduced to a state of political and religious slavery, and cut off from some of the dearest privileges of mankind.

§1873. It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests.

Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.

Again, boldface mine there at the end. If you've made it this far, congratulations. If we're to "feel" the spirit of the times---and that's our objective---although we wish to avoid baptism, we still must wade in up to our eyebrows at least, and spending a little time with the elegant and erudite Joseph Story seems not a bad way to do it.

A common sense reason for banning religious tests for national office would be this, hinted at in § 1839:

But it may not appear to all persons quite so clear, why the officers of the state governments should be equally bound to take a like oath, or affirmation; and it has been even suggested, that there is no more reason to require that, than to require, that all of the United States officers should take an oath or affirmation to support the state constitutions. A moment's reflection will show sufficient reasons for the requisition of it in the one case, and the omission of it in the other. The members and officers of the national government have no agency in carrying into effect the state constitutions. The members and officers of the state governments have an essential agency in giving effect to the national constitution.

Since the states were constitutionally free to endorse one sect over another [§1866], but all the sects disagreed as to which was the true religion of Jesus Christ [§621], to take a religious oath for national office would make you a friend to some states, but the enemy of all the others!

"Impractible," as Justice Story would put it.

The full text, with footnotes, can be found here.



Jonathan Rowe said...

This is good stuff and I want to talk more about it as I have time. I'm busy with work stuff right now and I decided to take the "Face book" plunge.

Tom Van Dyke said...

A snippet from an interview with Robert Kraynak, which fortunately doesn't include his own prescriptions for our society, but whose historical analysis [coupled with Tocqueville's] is congenial to my own in the area of the distinction between laws and customs. It's when the law takes aim and uses its superior power against prevailing customs and mores that many of us object. We are not Jacobins, after all.

Like Joseph Story's, his view is of Western civilization/Christendom as a whole, and the American experiment's context in it.

I'm intrigued by his note that the pursuit of "orthodoxy" was protected by the American system. Of course, we could read the word "heresy" here instead. Also interesting to see the future Pope Ratzinger take a whack at "caesaro-papism"! Hehe.

Q: Recently, Cardinal Ratzinger described the American model of church-state relations as more hospitable to religious truth and institutions than European models. What features of the American model might be more hospitable to religion?

Kraynak: The American model of church-state relations was best described by Alexis de Tocqueville in "Democracy in America" more than 150 years ago. He expressed his admiration, much like Cardinal Ratzinger today, for the way Americans were able to combine the spirit of religion with the spirit of liberty.

The crucial point for Tocqueville was the distinction between laws and customs. By law, Americans separated church and state; but in their customs or mores, Americans insisted on a prominent role for religion in public and private life. This meant Americans rejected the model of Great Britain, which established a national Church of England, and the practice of regional princes in Germany, who gave legal support to their own denominations.

By rejecting state establishment, Americans never experienced the problems of clerical power and were able to develop a robust pluralism where the various Christian churches pursued religious orthodoxy as voluntary associations on roughly equal terms, although reformed Protestant churches had a historical advantage.

While favoring voluntary worship, Americans also believed that religion had a public role in promoting republican virtue. Hence, they developed a nondenominational civil religion that was expressed in the Declaration of Independence's doctrine of God-given natural rights — the belief that liberty derived from "the laws of Nature and Nature's God" and that inalienable rights were endowments of the Creator.

This republican religion was later expressed in Abraham Lincoln's Gettysburg Address, which said that "this nation under God" will enjoy a new birth of freedom — a sentiment also echoed in the Pledge of Allegiance and in countless public statements connecting the blessings of American freedom with God's providence and judgment.

For nearly 200 years, this civil religion prevented a totally secular democracy from arising in America, while allowing and even protecting a deeper piety based on the revealed truths of Christian faith in the many Protestant, Catholic and Eastern Orthodox churches of America.

American piety is thus a special blend of three elements: the disestablishment of religion, a republican civil religion of God-given natural rights, and pluralism in the pursuit of Christian orthodoxy.

Q: A recent article in the New York Times described the strong collaborations between Christian and non-Christian politicians in Italy. Some European states even subsidize the Church. Why might Cardinal Ratzinger think the United States is a better model?

Kraynak: In comparing attitudes to religion, Cardinal Ratzinger reportedly said that "from many points of view the American model is better. ... Europe has remained bogged down in "caesaro-papism." I think Cardinal Ratzinger meant that a lingering Christian establishment in Europe may be holding back a renewal of spiritual life that could be unleashed by voluntary religious participation and pluralism as in America.

Italy, for example, looks like it has state-sponsored Catholicism with the government's historic ties to the Christian Democratic Party, public schools that have crucifixes in classrooms, the Pope living next door and Christian art and churches publicly supported everywhere. But the people seem to lack religious zeal and have disregarded Catholic teaching in legalizing divorce, abortion and gay marriage, as well as in their alarmingly low birthrates.

The same is true of England and the Scandinavian countries: officially Anglican or Lutheran but practically indifferent or hostile to Christianity — and much more openly anti-Christian than Italy, which still has an affectionately pro-Catholic feel.

France is the extreme case in embracing a totally "laicized" state — enforcing a ban on all religious displays in public schools and all references to God by public officials. This is state-sponsored secularism that also suppresses religious vitality.

Cardinal Ratzinger looks at most European nations — he could have mentioned Canada as well — and he sees the worst possible combination of historical residues of Christian establishment and utter indifference to Christian faith; a post-Christian world that would not even allow a reference to the Christian heritage of Europe in the Constitution of the European Union.

By comparison, the American situation looks relatively healthy: higher rates of church attendance and professions of faith — although secular forces in the U.S. judiciary, universities and the media are trying to create a secular America just like Europe and Canada. And one cannot forget that the Catholic Church and Protestant denominations in America have been rocked by scandals and divisive battles that have damaged the faith.

Even if we grant the relative superiority of the American condition today — which I am prepared to do — the question Cardinal Ratzinger leaves unanswered is whether Europe could be saved by adopting some features of the American model, such as disestablishment and pluralism, without possessing other vital elements — namely, a civil religion of God-given natural rights and a belief in Christian orthodoxy.

I think that a nondenominational civil religion is feasible for Europeans to adopt as a basis for human rights. Even the French could come to see that their historic commitment to "the rights of man" is better grounded in the belief that humans are made in the image of God rather than in the skeptical reason of the French Enlightenment.