Have a Happy Consitution Day and Read the First Amendment
Today commemorates the signing of the United States Constitution (September 17, 1787). If you’ve never read the Constitution, it’s not long and well worth reading (and re-reading).
After the Preamble, the most famous part of the Constitution is the First Amendment which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
And what does this mean? John Baker, a Professor Emeritus of Law at LSU and a visiting Professor at Georgetown and Oxford, explains:
In recent years the Supreme Court has placed the Establishment and the Free Exercise of Religion Clauses in mutual tension, but it was not so for the Framers. None of the Framers believed that a governmental connection to religion was an evil in itself. Rather, many (though not all) opposed an established church because they believed that it was a threat to the free exercise of religion. Their primary goal was to protect free exercise. That was the main thrust of James Madison’s famous Memorial and Remonstrance (1785), in which he argued that the state of Virginia ought not to pay the salaries of the Anglican clergy because that practice was a impediment to a person’s free connection to whatever religion his conscience directed him.
Nor did most of the Founding generation believe that government ought to be “untainted” by religion, or ought not to take an interest in furthering the people’s connection to religion. The Northwest Ordinance (1787), which the First Congress reenacted, stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” As President, George Washington’s practice concretized the understanding of most of his contemporaries. In his first inaugural address, Washington declared as his “first official act” his “fervent supplications to that Almighty Being who rules over the universe” that He might bless the new government. Directing his words to his compatriots, Washington said:
“In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own; nor those of my fellow citizens at large less than either. No people can be bound to acknowledge and adore the invisible hand which conducts the affairs of men more than those of the United States.”
Washington bracketed his years as President with similar sentiments in his Farewell Address (1796):
“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. There mere Politician, equally with the pious man, ought to respect and to cherish them.”
And he added: “And let us with caution indulge the supposition, that morality can be maintained without religion.”
There is nothing in the drafting history of the First Amendment that contradicts Washington’s understanding of the appropriate relation between government and religion. In the First Congress, the committee proposal in the House read, “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” But some evinced concern that the phrase might put in doubt the legitimacy of some of the states’ own religious establishments. Six of the original thirteen states had established churches. James Madison believed modifying the phrasing to prohibit a “national religion” would be sufficient to allay that concern and would make clear that the new government was not to impinge on the rights of conscience by establishing a governmental connection to a church. Representative Samuel Livermore of New Hampshire suggested that “Congress shall make no laws touching religion or the rights of conscience.” The House finally settled on this language: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.” The Senate preferred the formula “Congress shall make no law establishing articles of faith, or mode of worship, or prohibiting the free exercise of religion,” which likely would have permitted direct financial support to a sect.
In the end, the conference between the House and the Senate agreed on the current version: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The addition of the word “respecting” is significant. It prohibits Congress from legislating either to establish a national religion or to disestablish a state religion. As Laurence Tribe has written, “[a] growing body of evidence suggests that the Framers principally intended the Establishment of Religion Clause to perform two functions: to protect state religious establishments from national displacement, and to prevent the national government from aiding some, but not all, religions.” ( The Heritage Guide to the Constitution, 302-303)
If you are looking for a one-stop, scholarly, yet accessible resource to understanding the Constitution, I recommend The Heritage Guide to the Constitution, edited by Edwin Meese III, Matthew Spalding, and David Forte. The volume provides a balanced, relatively brief commentary on the Constitution from an originalist perspective. I’m glad to have it on my shelf.
