10 March 2012

Samuel Chase and the First Amendment

In the course of my wanderings today through various thickets of the underweb I stumbled on this quotation on a long-forgotten comment thread:
By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty.
It is there attributed to Samuel Chase, described as a member of the Continental Congress and an Associate Supreme Court Justice. I’ve seen this thing before, but I can’t find my notes on the subject, so I’m going to wing it here, relying on my aging memory. Bear with me.

A 2003 article entitled “Not Separation of God from State” attributed to Fr. Bill McCarthy sheds a little more light, after a fashion. McCarthy writes:
The process of drafting the First Amendment made the intent of the Founders abundantly clear; for before they approved the final wording, the First Amendment went through nearly a dozen different iterations and extensive discussions.

Those discussions—recorded in the Congressional Records from June 7 through September 25 of 1789—make clear their intent for the First Amendment. By it, the Founders were saying: “We do not want in America what we had in Great Britain: we don’t want one denomination running the nation. We will not all be Catholics, or Anglicans, or any other single denomination. We do want God’s principles, but we don’t want one denomination running the nation.”

This intent was well understood, as evidenced by court rulings after the First Amendment. For example, a 1799 court declared:

“By our form of government, the Christian religion is the established religion; and all sects and denominations of Christians are placed on the same equal footing.”

Again, note the emphasis: “We do want Christian principles—we do want God’s principles—but we don’t want one denomination to run the nation.”
Now, just to be clear, the business about “God’s principles” that McCarthy placed between quotation marks is not a quotation—it is something McCarthy apparently invented out of his own head. It is neither a quotation, nor a paraphrase, of anything that was recorded during the discussions on what would become the first amendment. But he does note that the quotation we’re interested in—“The Christian religion is the established religion” one—comes from a 1799 case.

Another source is even more helpful:
One of the first cases that came before the Supreme Court in which religious principals were invoked:

1796 – Runkel vs. Winemiller

The Supreme Court stated:

“By our form of government, the Christian religion is the established religion, and the sects and denominations of Christians are placed upon the same equal footing.”
Now in 1799 Samuel Chase was an associate justice of the Supreme Court, as advertised—but these words are not from a Supreme Court decision. They were in fact written in 1796, when Chase was Chief Justice of the Maryland General Court. The case was indeed Runkel v. Winemiller, in which William Runkel, a former minister in the Dutch Reformed Church, sued to get his position back, alleging that his replacement was not qualified according to the laws of his institution. (He won the case, incidentally.) In the course of the decision Chase wrote:
Religion is of general and public concern, and on its support depend, in great measure, the peace and good order of government, the safety and happiness of the people. By our form of government, the christian religion is the established religion; and all sects and denominations of christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty. The principles of the christian religion cannot be diffused, and its doctrines generally propagated without places of public worship, and teachers and ministers, to explain the scriptures to the people, and to enforce an observance of the precepts of religion by their preaching and living.
Now a naïve reader might imagine from this that Chase was saying that the United States had an established religion, namely Christianity, notwithstanding the first amendment prohibition on any law respecting such an establishment. It’s pretty clear that that’s what people mean us to gather when they produce this with a flourish from their bag of tricks. Nothing could be further from the truth, of course.

The case took place in Maryland, under Maryland laws, and the federal constitution didn’t come into it at all. At that time Maryland was under its constitution of 1776—written, I might add, before either the federal constitution or its first amendment had come into being—and the Maryland constitution did in fact make Christianity (in effect) the established religion. Of Maryland.
XXXIII. That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain, or contribute, unless on contract, to maintain any particular place of worship, or any particular ministry; yet the Legislature may, in their discretion, lay a general and equal tax for the support of the Christian religion; leaving to each individual the power of appointing the payment over of the money, collected from him, to the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or the poor in general of any particular county…

XXXV. That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion.
Thus in 1796 this statement was true, for Maryland, and it would remain true until this constitution was replaced in 1851, at which time the Christian requirement was dropped from the guarantee of religious liberty, and Jews as well as Christians were allowed to hold office in the state. Further, it was not until the passage of the fourteenth amendment to the Federal Constitution that the provisions of the First Amendment became binding on the states as well as the Federal government—so, regardless of what McCarthy and his allies would like us to understand, this decision was absolutely irrelevant to any possible interpretation of the First Amendment.

So how did these various commentators come to make such a bonehead mistake? My guess, and it is only a guess, is that none of them did any actual research. I suspect they were all copying from a common source, and my guess is that whoever it was probably hadn't bother to look into the background of the case, but just seized words that looked shiny to him, like the magpie is supposed to do when building a nest. The thing is, as one writer accurately observed, “There is really nothing extraordinary about this case.” The only thing extraordinary here is how gullible some people can be when they are determined to swallow a lie.

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