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CONSERVATISM, RELIGION9 AND THE FIRST AMENDMENT
by M. Stantm Evans My topic is the First Amendment and the readmp
of the First Amendment that has been n to us by the S upreme Court
and indeed by almost. all supposed authorities on 9z subject. That
reading is essentially that the First Amendment was intended to
create a wall of separation between the practices of civil
government and the affirniations of religion. There h ave been many
variations playeg on this theme and many assumptions brought to
bear in the debate that, in my view, are mistaken. I will try to
examine some of these as best I can in the time allotted to me. The
leading misconception involved in this kind o f discussion, which
is applied not only to First Amendment topics but to almost all
topics where religion is involved, is the idea that there is such a
thing as a civil order that is not based on reli0ous belief or
religious assumptions. The fact of the m a tter is that every
society, every culture, and every civil order is based Rpon
religious assumptions of one sort or another. Religious beliefs or
religious affirmations are answers to ultimate questions-such as,
where did the world come from, why are we i n the world, what does
it mean to be a human being, how should human beings treat each
other, how should human beings treat each other through the
instrumentality of the state? The answers to all such questions are
essentially re Lgious answers, and accord i ng to the religious
tradition that you affirni or accept anomatically, you .th J tend
to come up wi Merent answers. Asti&d of Modernity. If you
remove one set of religious assumptions received from a particular
religious tradition, you do not, therefore, h ave a social order
that is not based on religious assumptions. You simply substitute
some other assumptions for the ones taken away. So it seems to me
that that is the first misconception to be dealt with. Every civil
and social order rests upon assumptio n s that are religious in
nature because they are attempts to answer these ultimate
questions. The notion that it can be otherwise-that there is such a
thing as a purely rationally deduced set of rules about human
behavior or government-is an artifact of mo d ernity. It 'is a
notion that has arisen in the period since the Renaissance, and
more specifically since the Enlightenment-that the way to liberty,
justice, democracy, progress, and other good things is to get rid
of religious belief and to substitute a r a tionally constructed
social order for the superstitions of religious belief. That has
been.the essential enterprise of the 3nlightenment and indeed may
be defted as the essential enterprise of liberalism of all
descriptions since the Enlightenment, both c lassical liberalism
and the modern day 20th century liberalism--
M. Stanton Evans is Director of die National Journalism Center,
Washington, D.C.
He spoke at The Heritage Foundation on May 20, 1987.
ISSN 0272-1155. Copyright 1987 by The Heritage Foundation.
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man social order that will be rationally deduced rather th
religious belief. The lAxnal ERstory IA=m This mentality has been
applied retrospectively to all of our intellectual history, and to
our history as Americans in particular. There is a way of appro a
ching history -based upon these beliefs that for want of a better
term I call simply "the liberal history lesson." It says, in
essence, that there is an inverse ratio between religious
affirmation. and human progress; that the story of human progress
is c o mprised of throwing off the shackles of religious belief and
substituting these rational constructions in the place of religious
assumptions; and that as you do so, you progress toward greater
freedom and political democracy. The treatment of American pol i
tical history that is now conventional - wisdom';F embodied in the
rulings of the Supreme Court on the First Amendment, and in most
history books dealing with these topics,. is a subdivision of the
liberal history lesson. It is an effort to apply to the e x
perience of the United States the assumptions that became
conventional in the West at the time of the Enlightenment and to
rewrite that experience in the categories of liberal ideology. The
essential purpose is to treat the American Revolution as a cognat e
for the French Revolution. It is based upon the hope, wish, and
belief that the American Revolution really was the same as the
French Revolution. All the evidence is treated to make it look that
way and any evidence that does not fit is simply ignored. T h e
JudeG4Christian All of this is totally ahistorical. There is
virtually no evidence in the i torical record to support any of it.
The liberal treatment of Western intellectual histo in general is
virtually without historical foundation, and it is certain l y
without 7ound'ation in the case of America. In fact, the American
continent was settled primarily by people who were concerned about
religious matters, who came here for religious reasons, and who
brought with them religious assumptions and religiou@ id e as about
government that were products of centuries of Judeo-Christian
experience and of the Medieval experience crystallized in the early
17th century by England in particular. The period during which the
early settlers came to these shores was when ln-A these religious
issues were being fought out in J. .. 9 the people who came here
brought with them very specific notions of church government and
civil government derived from their religious experience. The
princi .pal notion thatIs relevant here was the i r idea of
covenantal theology--the idea 01 the covenantal character of church
government. Essentially, it was the notion that authority in the
church rose from the congregation and should not be imposed from
the top down by the episcopacy. They left Engla n d primarily over
that issue to come here and set up a church gi ind civil government
based on their notions of covenantal theology, which were derived
from Biblical teaching, mainly from the Old Testament. They wanted
to escape rule by bishops in church g overnment, which was their
lot as members of the Cburch of England.
3 Mk Sodal contma The principles that they professed in terms of
church gove ment were translated into their notions of civil
government. Ile notion of social contract is usually portray ed in
the liberal history lesson as something invented by John Locke in
his Treatise of Civil Govemment in the latter art of the 17th
century, and the notion of social contract in the civil order is
thou t to be a tally artificial construction based upon p urely
theoretical considerations. - But in oint of fact, social contract
had existed in the Western experience almost 70 years efore John
Locke wrote the Treatise of Civil Govemment-in the Mayflower
Compact written in 1620. When the ayflower Pilgrims arri v ed off
the shores of this continent, they sat down and drew up a contract
among themselves in which they stated that we do hereby "combine
and covenant ourselves together into a civil body politic." So
righ! there, based not upon any secular theoretical c o
nsiderations but on religious experience, was the notion of social
contract articulated in the Mayflower Compact of 1620. Ten
years.later, in October of 1630, the Massachusetts Bay Company,
which was a commercial corporation, held the first meeting of wha t
became its General Court. The Massachusetts Bay Company was similar
to corporations today in that it was governed by its directors, who
were eight in number, and according to the law Of corporations, the
people entitled to vote on the affairs of the Mass a chusetts Bay
Comp theless, when the first meeting of the General Court of No
etts Bay was held, 116 people were invited into the meeting to
vote, which is a source of great confusion to many liberal
historians. Why did these autocrats of Massachusetts Bay , these
terrible Puritans who did not have to let these 116 people
vote--why did they do this? The answer was their covenantal
theology. These were the members of the congregation, and as
members of the congregation, they were part of the covenant and
enti t led to vote in matters of church government, and in matters
of civil government as well. The Great Awakening. Many other
products of that early experience show the mprint of the religious
beliefs of the early settlers upon civil government. One of e earli
e st is the Massachusetts Body of Liberties in 1641, which is an
early version of the Bill of Rights, once again based upon relip*o
.ciples. Likewise, in 1647, us 4' the first public schools were
created on this continent le authorities of Massachusetts Bay .
This system was set up in that colony for the purpose of teaching
young people how to read the Bible. That is just a sample of the
historical record from that period. This early experience continued
in attenuated form up through the end of the 18th centu r y,
attenuated primarily because of the proliferation of religious
groups, not because of a loss of religious belief or religious
conviction in the society. Quite the con@rary. In the middle of the
18th century, there occurred the so-called Great Awake an
evangelistic phenomenon that brought into the fold of Christianity
many e e who had not been there before and re-energized many for
whom to
n ing, p opl Callilfistlan Defief had been primarily a formal
exercise. The result of this was that !nany new religiou s sects
and groups were formed and some that had been small increased in
size. There was the tremendous growth of the Baptists in this
country, and of the Methodist church. And as religious diversity
increased, there was pressure upon the "established" ch aracter of
religious practice in several of the states.
4- Suffused with Bibliad Belia The world of the Foun@fin&
Fathers in the latter of the 18th century was in fact a d totally
suffused with Biblical beliet rased upon Judaism and
Christianity--based u pon the centuries of practice that had gone
inio the experience of England, and the founding of the United
States, and this aTh-mation was expressed in innumerable ways in
the civil practice of the time. It was not just a compartmentalized
private thing. - It was expressed universally in the governmental
practices that prevailed in the latter part of the 18th century.
For example, in 1775, when the Revolutionary War was just starft
nine of the thirteen colonies had officiall established churches,
which wer e supported by tax revenues. As the proliferation ol
church groups continued through the latter part of the 18th
century, pressure was put on to disestablish a number of these
churches,... and disestablishment did occur in such states as
Virginia. Official Qwches. Nonetheless, at the time of the
Constitutional Convention and thereafter, there were three states
that still had established churches- Massachusetts, New Hampshire,
and Connecticut. This meant officially recognized communions
supported by tax reve n ue and acknowledged by everyone to be the
official church of the realm But even in the states that had
disestablished their churches--the Anglican Church in some parts of
the South or the Congregational Church in other areas--even in
those states, there r emained a system of official sanction and
support for religious belief of various kinds, principally the re .
t that one must profess a certain kind of religious belief in order
to hold pu lic office.
These practices persisted well after the adoption of th e First
Amendment. The established church in Massachusetts was not
abolished until 1833.' In New Hampshire, a requirement that to be a
member of the legislature one had to be not simply a Christian, but
a Protestant, persisted until 1877. In New Jersey, C a tholics were
not permitted to hold office until 1844. In Maryland, it was
stipulated that one had to be a Christian to hold public office,
and that stipulation lasted until 1826. In North Carolina, the
stipulation was that one had to be Protestant until 1 8 35, and
until 1868 to be a Christian, in order to hold office. The state of
Vermont, which broke away from New Hampshire in 1791 at the time
that the First Amendment was being ratified, required a very
interesting oath of office. Vermont was considered th eologically
one of the most liberal of the states, and by the early 19th
century it had abolished most vestiges of establishment.
Nonetheless@ this was the oath of office that you had to take in
Vermont in order to assume office in 1791:
1 do believe in on e God, the Creator and Governor of the
universe, the Rewarder of the good and the Punisher of the wicked.
And I do aclmowledge the Scriptures of the Old and New Testaments
to be given by divine inspiration and own and profess the
Protestant religion.
That was the oath of office that had to be taken in one of the
more liberal states at the time that the First Amendment was being
put on the books.
5 ,.I case aois the one !nos ntly t f time delvin t f reluee se to
s Of Vrr cited pend a o into matters, you would know that the
Supreme Court in its various rulings with respect to the First
Amendment relies mainly on the experience of Virginia and the views
of James Madison in particular. Virginia was, by the standards of
the day and in terms of advanced views on the e ent of religion, a
very liberal state theologically. This was very much a result of
the fact that the Anglican Church had been the established church
in. V ii Zri oi When the Presbyterians and then the Baptists, grew
in strength, it created e et e @ a way tug of war for olitical
influence in the state and pushed it toward disestablishment of the
can Church, which came about in the 1780s. Ile bill for the
digestablkhment of the Anglican Church that finall ised was-
presented by-, Madison (it alleged l y had been drafted by Thomas
JeffersZinf%s the Virginia legislature on October 31, 1785. This
bill and the associated commentary by Madison are frequently
mentioned in the literature on this subject as showing the
secularizing finpi e behind the First Ame n dment, because of
Madison's involvement in the disestablishment of Virginia and the
sentiments expressed with respect to the bill for religious freedom
presented on October 31, 1785. Panishin Sabbath Breakem Ile Supreme
Court and the others involved in th i s never mention, however,
that on the same day James Madison presented the bill for religious
freedom in Virginia, which was to disestablish a specific sect, he
also presented a bill to punish those who broke the Sabbath. This
bill spelled ' out at great l ength epenalties that would be
imposed upon those who broke the Sabbath by co ctmg other than
household duties. It was put forward on the very same day that e
bill for disestablishment of the church was presented. This is
never mentioned because it does n o t fit the secularizing model
that the Court is following. Many of the practices that existed at
the state level also existed at the federal level, first in the
Continental Congress and thereafter in the new Congress under the
Constitution. The Continental Congress, which existed from the
period of the Revolutionary War up through the adoption of the new
Constitution in 1789, had .-ha I i it had pr ers. In 1780, because
of the wartime conditions, it i p ams, and authorized the printin
ala Bible, after first ensuring that the text was orthodox It 9 0
provided money for the Christian education of Indians. It passed
the Northwest, Ordinance for governing the territory north and west
of the Ohio River, stating that it was doing this, among other
reasons, for.pur g re i1pon and poses of promotin " H morality." It
stipulated that in the sale of lands in the Northwest Territory,
Lot N29 in each parcel of land 'be given perpetually for the
purposes of religion." Such were the practices under the
Continental Congress. In the new Congress under the Constitution,
all of this was re-enacted. The chaplains were re-established.
Prayers were conducted. Days of thanksgiving were voted. The
Northwest Ordinance was re-enacted, and money was appropriated for
th ndu th
the Christian education of the Indians. All were practices
totally contrary to anything you would guess from reading Supreme
Court decisions or the conventional liberal history on this
subject.
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The Fffst mendm=Ws Rod lEstmy. How is all of this religious affirma
tion by the several states, established churches, religious
requirements for public office, prayers, cha lamis, and religious
education of the Indians to be reconciled with the reading of lKe
First Amendment given to us by tl@e Supreme Court in the Everso n
case and other rulings over the years, which says in essence that
no tax money may be used r any religious purpose? If there is a
total wall of separation between the pr ce of government and the
practice of religion that says in no way, shape, or officia l
support to be given to religious practice, how can you reconcile
the historvy jus recitect with the adoption of such an amendment?
The answer, of course, is that 0 cannot; that the real history of
the First Amendment is very different indee from what the
conventional liberal history lesson would'have you believe.
There were very specific reasons for the ad tion of the First
Amendment, 10 which are fully available in the records for anyboZ
who cares to look at them. This has a lot to do with the politics
and me concerns at the time -about the impact of the new Cons t
itution. There was a great deal of agitation at the time by Patrick
Henry and others to the effect that this new government would
swallow up the rights of the states. Henry, Richard Henry Lee, and
others said that to protect against that happening there n e eded
to be a Bill of Rights, which would guarantee the freedom of the
citizens and the states. In large measure, this was a stratagem
created by Henry to prevent the adoption of the Constitution, and
it became a very effective weapon for Henry and his all i es in the
ratification struggle. A Government of Limited Power& Madison,
who was promoting the adoption of the Constitution, had originally
said a Bill of Rights was not needed and he had some ood arguments.
He was saying in essence that this was a govern m ent of limitel
powers, carefully enumerated powers. It had authority only to do
those things granted to it and no authority to do the things not
granted to it, and therefore a Bill of Rights was not necessary.
However, Henry succeeded in generating so muc h opposition in the
Virginia ratification convention and elsewhere, and in the
subsequent election when Madison was trying to et elected to the
new Congress, that Madison changed his position and said, in elect,
"All right ru concede your point. Let's comp r omise on a formula
whereby we go ahead and ratify the Constitution, and then adopt a
Bill of Rights as soon as the new Congress convenes." That was his
campaign pledge when he ran for Congress in Virginia. Interestingly
enough, he had to run against James Monroe in what is now called a
gerrymandered district. It could have been called a Henrymandered
district because Patrick Henry created it in order to weaken
Madison. But when Madison switched in favor of a Bill of Rights, he
took away the principal issue against him and got elected to the
first Congress. There he presented hisproposals, for a Bill of
Rights in fulfillment of his campaign. pledge. It is very
interesting to go back and read the debates, the reasons given by
Madison for presenting the Bill o f Rights and his interpretation
of what in particular the part that became the First Amendment
meant. For example, he was challenged by Roger Sherman and others
about the very argument he himself had made--that this was a
government of enumerated powers, s o why was this Bill of Rights
necessary? Madison said at that time of this debate: 'Vhether fo
acti form is
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the words are necessary or not [referring to what became the
First Amendment] he did not mean to say, but they had been
re\u255\'d8ed by some of the state conventions who seemed to
entertain an o laws of such a ,pinion .. that ... [Congress might]
make li . " nature as might inffinge the rights of conscience and
establish a national re glon. And therefore, he was presenting them
for the consideration o f the Congress. Maffison!s Op@@ On. the
specific question of what th act of what was to become the First
Amendment would be, Madison said that the word national were
introduced it would point the amendment directly toward the object
it was intended to pre v ent" which was the federal goverment
interfering with the practices of the states. And of course the
main concern of Patrick Henry and the other opponents was that the
new government would come in and take over the authority of the
states. lberefore, they needed the guarantee of what,was to--
become the First Amendment. (I keep using that form because it was
not the First Amendment as it was presented. It was the fourth
amendment as presented by Madison. It was third amendment that was
actually proposed fo r ratification by the Congress to the states.
It was the first of the amendments to be ratified.) The actual
language of the First Amendment voted by the House was not proposed
by Madison, but by Fisher Ames of Massachusetts, who was a
Calvinist conservati v e from a state with an established church.
It is interesting to note that the language that finally emerged
from the Congress was passed by a conference committee, including
on the House side Roger Sherman, one of Madison!s colleagues in
that debate, and O liver Ellsworth from the Senate. The important
thing about Sherman and Ellsworth was that both were from
Connecticut, another state that still had an established church. In
fact, in Connecticut at the time that all this was occurring, a law
existed that y o u could be fined 50 shillings if you did not go to
church on Sunday. Sherman and Ellsworth, who not only represented
Connecticut but were believing Calvinists, obviously would not go
into a conference committee and vote for an amendment that would
contrad i ct Connecticut laws. In the light of all this, the
Patrick Henry oTposition, the Madison language, the Madison
statements in debate, the fact that herman and Ellsworth were both
on the conference committee, the language of the First Amendment as
it came o u t of that conference committee should be crystal clear:
"Congress shall make no law respecting an establishment of
religion." Now what does that mean? It means that the national
legislature shall make no law having anything to do with,
concerning the sub e ct ot respecting an, establishment of
religion. That is: j 1) Congress cannot pass a law creating a
national established religion. 2) Congress cannot pass a law
interfering with the established churches or other religious
practices in the states. That is w hat that language means both on
the face of it and on its history. A National Day of Prayer. That
compromise language, which had been debated in the House of
Representatives through the late summer of 1789, was passed by the
House of Representatives on Se ptember 24, 1789. On the very next
day (this must be considered in the context of what the Supreme
Court now says
8
this langu@ge means), the very same House of Representatives passed
by about a 2 to 1 margin a resolution calling for a national day of
p rayer and thanksgiving. The day after it passed the First
Amendment, here is the language the House adopted on September 25,
1789: "We acknowledg ith t hearts the many signal favors of
Almighty God, especially by afllorXg treamefaunl opportunity
peacefull y to establish a constitutional government for their
safety-and happiness." They ther fore called upon President Was to
issue a proclamation designating a national day of prayer and
thanks This is the origin of our present custom of Thanksgiving
celebrated in the latter part of November. This was WashiVon's
response: "It is the duty of all nations to acknowledge the
providence of Almight 7 God, to obey His will, to be grateful for
His benefits and humbly to implore His protection and favor ....
That great a n d glorious Being who -is -the-' - beneficent author
of all the good that was, that is, or that ever will be that we may
then unite in rendering unto Him our sincere and humble thanks for
His kind care and protection of the people ...... Such was language
adopted, first by the House and then in a proclamation by George
Washington, contemporaneously with the adoption of the First
Amendment.
Mw FIM Amendment7s Tntent It seems to be reasonably clear that two
things were intended by the First Amendment. The fir st was to tect
the existing religious practices of the states, including
established churches, re ious requirements for public office, and
so forth. The second was to permit even e federal government to
give general su pport to religion, which continued w ithout stint
in all the various ways I have described a century and more after
adoption of the First Amendment.
Ixt me just read to you by way of conclusion the sentiments on this
sub .ect of the person most cited next to Madison by the Court and
by the li beral historians on the subject, Thomas Jefferson. Now
Jefferson, I would remind you, was not a member of either the
Constitutional Convention or the first Congress, so his views are
only derivatively relevant through Madison but nonetheless they are
impo r tant in interpreting what Madison intended as well as what
Jefferson thought. Here is what Jefferson said in his second
inaugural address: In matters of religion, I have considered that
its free exercise is placed by the Constitution independent of
theyow e rs of the general government.. I have therefore undertaken
on no occasion to prescribe the religious- exercises- - suited to
it. But have left them as the Constitution found them under the
direction or discipline of state or church authorities acknowledge
d by the several religious societies.
No WaR of Separatkm Jefferson also wrote a few years later to a
Presbyterian cler who had questioned him about why he had not
issued F...... .......dons (of the early Presidents, Jefferson was
the only one who did not. Washington, Adams, and Madison did). Here
is what Jefferson said to that clergyman:
I consider the government of the United States as interdicted from
intermeddling with religious institutions, their doctrines,
discipline, or exercises. 91 ro ge'
9
T his results from the provision that no law shall be made
respecting the establishment or free exercise of religion, but from
that also which reserves to the states the power not delepted to
the United States. Certainly no power to prescribe any religious
exercise or to assume authority and religious discipline has been
delegated to the general gove ment. It must thus rest with the
states as far as it - can be in any humsm - authority. - -
T'he inexorable conclusion is that there was no wall of
separation between religious affirmation and civil government in
the United States at that date, nor was the First Amendment
intended to create one.
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