If centuries of attempting to interpret the Constitution and the Founders’ Intent have taught us anything, it is that there is a great deal of disagreement about what the Founders actually meant at any given time. No one seems quite sure, except for Antonin Scalia, on whose shoulder the ghost of Thomas Jefferson perches and into whose ear John Adams’s restive spirit frequently whispers sweet nothings.
This is especially true when it comes to the establishment clause, which the Supreme Court cited Monday in the case of Town of Greece v. Galloway, about whether it is acceptable to begin the meeting of legislative bodies with prayer. Their answer, by a 5 to 4 margin: Sure, probably?
The majority opinion pointed out that the town made a good-faith effort to bring in prayer leaders from a variety of religious backgrounds and that there is a long tradition of legislative prayer — even sectarian legislative prayer — not being deemed coercive or unconstitutional.
But Clarence Thomas, in his concurring opinion, went even further on the subject of the establishment of religion. That whole clause is just a federalism thing, he argued. States might well be able to establish religion, if they really wanted to.
“The Establishment Clause provides that ‘Congress shall make no law respecting an establishment of religion.’ ” Justice Thomas quoted in his concurring-but-wishing-they’d-gone-further opinion. “As I have explained before, the text and history of the Clause ‘resis[t] incorporation’ against the States. … If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue. As an initial matter, the Clause probably prohibits Congress from establishing a national religion.”
Sure, James Madison’s original draft of the First Amendment was a good deal stronger: “The civil rights of none shall be abridged on account of religious belief or worship … nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
But, well, that’s not what it says, so there we are.
Thomas went on to note that, when the Founders were Founding, plenty of states had established religions. It was the done thing.
But that wasn’t for want of opposition — some of that from the Founders themselves. In fact, James Madison and Thomas Jefferson were both heavily involved in the battle for religious freedom in Virginia. Discounting Jefferson as someone who liked to go through his Bible excising passages he considered impractical, it still seems fair to consider what Madison had to say on the issue. And he felt quite strongly.
He offered up some fiery words on the subject during a debate over a “a Bill establishing a provision for teachers of the Episcopal religion” in Virginia, noting: “If ‘all men are by nature equally free and independent,’ all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an equal title to the free exercise of Religion according to the dictates of Conscience. Whilst we assert for 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 against God, not against man…”
He also noted, “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?”
It wasn’t that Madison was a non-believer. During the fight for the Virginia Bill for Religious Liberty, he told those who were trying to include “Jesus Christ” in the preamble to the text that “The better proof of reverence for that holy name would be not to profane it by making it a topic of legislative discussion.”
He simply thought Church and State were better off apart. And not just Church and State; Church and each individual state, as well.
Freedom of religion, as the Founders experienced it, was definitely “of” and not “from.” To live out one’s religious beliefs undisturbed was the reason many had come to America in the first place. Madison wished for the vigorous establishment of freedom of religion because he thought this would benefit both Church and State. He wrote to Edward Livingston on July 10, 1822, that “Religion Flourishes in greater purity, without than with the aid of Government.”
(It is also worth noting that the majority opinion of Anthony Kennedy cited the fact that “the First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then” and viewed this as a “tolerable acknowledgement of beliefs widely held.” But Madison opposed the chaplains, too, asking doubtfully whether Congress could ever manage to appoint a Catholic chaplain: “To say that his principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its native deformity the doctrine that religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.” But never mind him.)