15 August 2020

On This Day in 1789 [repost]

[Repost from Rational Rant, 15 August 2009, slightly updated. I am dedicating this repost to the memory of Ed Brayton, without whose influence this post might never have been written.]

It’s Saturday, 15 August, 1789. Congress is in session in New York—the first congress under the new constitution. Up for discussion: a proposed constitutional amendment, to be inserted between the sentence guaranteeing habeas corpus and the one prohibiting ex post facto laws. It was one part of a political compromise, a series of amendments to the new constitution meant to keep doubters in the fold and to entice the undecided off the fence. We know the result today as the Bill of Rights. This proposed amendment read:

No religion shall be established by law, nor shall the equal rights of conscience be infringed.

Peter Silvester (P, NY), an Albany lawyer who had held (and would continue to hold) a variety of governmental positions in the new republic, immediately spotted a problem with the wording. The opening words could be taken two ways. The intention was to keep the new government from passing a law that would establish religion, but could it not also be taken as a command to the congress to establish “no religion” as the law of the land? He “had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to have a tendency to abolish religion altogether.”

Where on earth did this fear come from? Well, you have to remember that the issue of disestablishment (we would call it “separation of church and state”) was hot at the time, and that Virginia had recently emerged from a bruising battle on the subject when Patrick Henry had proposed a bill levying a tax to support all teachers of religion, a bill famously opposed and defeated by the efforts of James Madison—the author of the present amendment. You have to remember that in European states of the time the established church was generally tax-supported, and that there was no guarantee that religion could survive without that support. (And as we will see from a later point made by Benjamin Huntington, there was some sentiment afloat that people ought to be required to support some religious institution, at any rate.) So, at any rate, the first order of business was to rewrite Madison’s proposal to rule out the possibility of the Federal government being called upon to establish “no religion” by law.

John Vining (P, DE) proposed fixing the problem by “transposing the two members of the sentence.” I suppose he had in mind a wording like “No law shall be [enacted] to establish religion,” or something in that vein. Elbridge Gerry (A, MA) suggested the reading “no religious doctrine shall be established by law”—a version considerably narrower than anything else proposed so far, in that it would have allowed Congress to set standards for religious practice, presumably, or at least left that door wide open, even if it kept the government from establishing doctrine.

Roger Sherman (P, CT), Framer and Declaration signer, now derailed the discussion altogether. Even though politics had already decreed this was a dead issue, he reiterated that he “thought the amendment altogether unnecessary, inasmuch as Congress had not authority whatever delegated to them by the constitution to make religious establishments; he would, therefore, move to have it struck out.” Daniel Carroll (P, MD) quickly reminded him of these political realities, “As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.”

James Madison, Jr. (A, VA) patiently explained again the intended meaning of the amendment: “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” He once again went over the political necessity of the amendment: “Whether the words are necessary or not, he did not mean to say, but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.”

Benjamin Huntington (P, CT) now took the bull by the horns. He said “that he feared, with the gentleman first up on this subject, that the words might be taken in such a latitude as to be extremely hurtful to the cause of religion.” The underlying fear, no doubt, was the possibility that if state support for religion was removed, religion itself might wither away altogether. Huntington made a rather lame argument that “The ministers of their congregations to the eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship, might be construed into a religious establishment.” He felt that the 1663 Rhode Island Charter (then over a century old) was radical enough; it guaranteed that dissenters from the Church of England would be tolerated (as long as they kept quiet about it) but didn’t actually encourage them. “He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.” And with this display of bigotry and intolerance Benjamin Huntington vanished from the debate.

If James Madison (or anybody else for that matter) thought Huntington’s remarks were worth responding to it doesn’t appear in the record. He went back to the main point of the wording, and suggested adding the word national before religion, which would have created the following result:

No national religion shall be established by law, nor shall the equal rights of conscience be infringed.

He thought (wrongly) that this “would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.”

Samuel Livermore (P, NH) was impatient with this nit-picking; “he did not wish them to dwell long on the subject.” He proposed a substitute amendment:

Congress shall make no laws touching religion, or infringing the rights of conscience.

This is an electrifying moment; suddenly we see the beginning of the actual language that will become the First Amendment. It's not there yet, of course; we still have “infringing the rights of conscience” rather than “prohibiting the free exercise thereof”, but it’s on its way. For the moment, however, the proposal just lies there; under consideration is Madison’s proposal to add the word national to his version of the amendment.

Elbridge Gerry (A, MA), Declaration signer and opponent of the new constitution, who had earlier in the debate suggested the language “no religious doctrine” to replace “no religion”, now objected strongly to the term national, in that a Federal, and not a National, government was under consideration. Madison defended his suggestion by observing “that the words ‘no national religion shall be established by law,’ did not imply that the Government was a national one,” but he withdrew his motion regardless in favor of Livermore’s version. The vote was then taken on that, and the amendment passed 31-20. Thus, had this been the end of the story, the First Amendment would have read:

Congress shall make no laws touching religion, or infringing the rights of conscience.

Of course as we know these were not the words that were going to become enshrined as part of the first article of the Bill of Rights; the Senate would have to pass its version, and a compromise would be hammered out between them, but for the moment their work was done, and it was on to consider such matters as freedom of speech, freedom of the press, and the freedom to peaceably assemble (one representative compared the last to the freedom to wear a hat). But the big effort of the day was over an amendment that would have given the right to the people to instruct their representatives. The argument over that one was heated, and ended with the defeat of the proposal. That debate in fact appears to have taken much longer than the debates about the various freedoms altogether.

And that's the way it was on this date in history two hundred thirty-one years ago.

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