#125: The First Amendment and Government

April 1, 2015

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.

The above is the text of the U.S. Constitution’s First Amendment.

Considerable ink has been devoted to commenting on its intent, which is surprising to me, since it seems pretty clear on the face of it. I may be missing something of its subtlety, though.  Perhaps we can lay the blame for its seeming opacity on Jefferson who is credited with the phrase so commonly used today: “the separation of church and state.” I’m not sure that this phrase adds anything but confusion where originally things were clear. Paraphrasing Berkeley’s felicitous phrase, we can say of Jefferson, that he has “… first raised a dust, and then complain(s), we cannot see.”

I have browsed scholarly opinion on this subject and confess that I find it wanting. In the references I followed, I found no consideration of the historical awareness of the Founding Fathers or their constituencies. So I had a look at the context of 17th and 18th c sensibilities in the New World. The following two paragraphs come from the Library of Congress, which is scarcely a partisan source:

“Many of the British North American colonies that eventually formed the United States of America were settled in the seventeenth century by men and women, who, in the face of European persecution, refused to compromise passionately held religious convictions and fled Europe. The New England colonies, New Jersey, Pennsylvania, and Maryland were conceived and established “as plantations of religion.” Some settlers who arrived in these areas came for secular motives–“to catch fish” as one New Englander put it–but the great majority left Europe to worship God in the way they believed to be correct. They enthusiastically supported the efforts of their leaders to create “a city on a hill” or a “holy experiment,” whose success would prove that God’s plan for his churches could be successfully realized in the American wilderness. Even colonies like Virginia, which were planned as commercial ventures, were led by entrepreneurs who considered themselves “militant Protestants” and who worked diligently to promote the prosperity of the church.

European Persecution

The religious persecution that drove settlers from Europe to the British North American colonies sprang from the conviction, held by Protestants and Catholics alike, that uniformity of religion must exist in any given society. This conviction rested on the belief that there was one true religion and that it was the duty of the civil authorities to impose it, forcibly if necessary, in the interest of saving the souls of all citizens. Nonconformists could expect no mercy and might be executed as heretics. The dominance of the concept, denounced by Roger Williams as “inforced uniformity of religion,” meant majority religious groups who controlled political power punished dissenters in their midst. In some areas Catholics persecuted Protestants, in others Protestants persecuted Catholics, and in still others Catholics and Protestants persecuted wayward coreligionists. Although England renounced religious persecution in 1689, it persisted on the European continent. Religious persecution, as observers in every century have commented, is often bloody and implacable and is remembered and resented for generations.”

http://www.loc.gov/exhibits/religion/rel01.html

I think we can safely conclude that the people of U.S.A. were not concerned that others might worship differently than they or that their government might include evidence of Christianity in their buildings or writings; no, they were only and mightily concerned that a government might try to prevent them personally from worshiping as they wished. They were single-mindedly intent on preventing what Roger Williams called  “inforced uniformity of religion.” [my italics]

The thing to note here is this: there is no demonstrable link between the existence of a government infused with the Christian culture and symbolism of its founders and the imposition of such on others! Nor does the presence  of such on university campuses imply a lack of welcome to those of other faiths.

Let me address the actual text of the First Amendment.

The first thing to notice is the semi-colon. It separates two disjuncts of differing subject matter. The first disjunct concerns religion directly, the second only tangentially, if at all. Let’s focus, therefore, on only the first: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…”

Characteristically, this clause indicates what Congress may not do, it limits Congressional power. Specifically, it indicates that Congress may not exercise its power by either creating a religion or preventing a religion from being created. There is only one way in which Congress is capable of exercising power, and that is through the “making of laws.”

We can see the intent here clearly if we compare the text to this modified axample:

“Congress shall make no law respecting an establishment of a public company, or prohibiting the free exercise thereof;…”

This would admittedly be an idiotic amendment and would never pass, but we would immediately understand that it was attempting to prevent Congress from having any power over the creation or dissolution of companies. Similarly, the First Amendment is intended solely and exclusively on preventing Congress from having a say in the births or deaths of new religions or religious practices.  It does not, even by implication, have anything to say about a separation of Church and State.

Let me make this perfectly clear: there is no inconsistency in the existence of a Christian government and religious freedom. The First Amendment addresses only the latter, not the former. In no way whatsoever does it address the existence or non-existence of a Christian government (unless in the sense that it prohibits any Congressional legislation “making” the government Christian).

 So, you ask, why are some many people arguing as if it applied to the former? Why all this talk of the separation of Church and State?

I think the blame lies largely, as it so often does, with the French. So much of what we deal with today is sadly the detritus of the French Enlightenment and its dying spasm, the French Revolution.  The French Revolution, heir as it was to one hundred years of Rationalism, was intent on erasing the Ancien Regime, the Church and its clergy especially included, and reconstituting society on a “purely rational” basis. Read this as “a purely secular” basis. Jefferson in particular was fond of thinking of himself as a European style “intellectual” (not unlike our current Democrat politicians) and was an outspoken fan of the French Revolution. I suspect that he and others like him increasingly insinuated the “separation of Church and State” meme into common discourse.

One last time: The First Amendment does NOT require the cleansing of all Christian writings and symbols from government.