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.

A(n Icy) Blast from the Past

[from Charles William Janson, The Stranger in America (London, 1807):

I was present at a baptism according, as they say, to the doctrine of Saint John, in Rhode Island. The day was one of the severest in the month of January, and in that part of the world it is many degrees colder than in England. The thermometer was, at the time, 10 below 0.

A concourse of people near the water-side attracted my attention. I joined the crowd, and found that it was assembled to witness a baptism by immersion. The ice, which was about a foot thick, had been cut through to the distance of twenty or thirty yards, but so intense was the frost, that some of the elect were obliged, with poles and staves, to keep the hallowed water from freezing. A few minutes would have cemented the whole again. In order to turn the hearts of unbelievers, and to reclaim such as have gone astray, the baptists on these occasions are particularly prolix. They assert that the spirit enures them to this rigid penance, making to them the day mild, and the water of the summer’s temperature. I had waited for the end of the minister’s exhortation, after which he was to lead his flock to the water, until my limbs ached with cold. At length the penitents appeared. They consisted of the members of the meeting, two and two; then followed the devotees, about twelve in number, of both sexes, in long gowns, resembling a robe de chambre. At the head of the noviciates was the priest, alternately praying and singing, in honor of Saint John the baptist: and thus without slackening his pace, or altering his dress, he plunged into the freezing stream, till he was nearly breast-high in the water. His disciples, with wonderful resolution, hand in hand, followed; while the members who had already been purified by immersion, ranged themselves along the margin of the deep. The pastor then turned round, and began a solemn exhortation on baptism, which continued a few minutes; a dreadful interval in his situation! He then seized the nearest devotee, and with great dexterity immersed him entirely in the water. Another short prayer succeeded, then another immersion; and this was repeated till the whole had thus received the holy sacrament. They returned, giving thanks to God, after suffering the severity of the freezing water, at such a season, about ten minutes.

During this unnatural ceremony, I was no less entertained with the remarks of the spectators. On[e] of them observed that, severe as the discipline was, they seldom took cold, or suffered subsequent bodily pains; adding, that their enthusiasm was so great, and their minds were wrought up to such a degree of religious phrenzy, that no room was left for reflection, or sense of danger. Another related a story of a public baptism of this nature in Connecticut, which was attended with a fatal circumstance. “It was about the same time of year,” continued the narrator, (for the severer the weather the greater their faith) “when I was present at one of these duckings, (as he termed it.) It was performed in a small but rapid river, then covered with ice, except a place cut for the purpose. The minister, with his followers, advanced to the proper distance into the water: after the usual introductory prayer, being in the act of immersing the first, he accidentally lost his hold of the unfortunate person, who was in an instant carried down the stream, still running under the ice, and irrecoverably lost. The good man finding his subject gone, with a happy serenity of mind exclaimed, “The Lord hath given, the Lord hath taken away, blessed be the name of the Lord:—come another of you, my children.” The remainder, astonished and confounded, lost their faith, and fled.

Voice Fiddle and Flute No Longer Be Mute

I see in the world at large that some pop singer is in trouble for mangling the US national anthem at a major sporting event. To be honest I’m not quite clear on who exactly Christina Aguilera is—an ex-Mouseketeer or something?—or what is the significance of the Superbowl in American culture. Early twenty-first century US history is way outside my field of study. Still, however, no matter my level of incompetency, I feel a few observations are in order.

We don’t really require much of a national anthem. It should be singable by the average untrained citizen, for one thing—no difficult intervals, range not much more than an octave, no tricky chord changes—and the words should be relatively simple. It should sound reasonably decent whether sung a cappella or played by a military brass band. It should invite people to sing along with it. “Paint it Black” would make a good national anthem.

“The Star-Spangled Banner,” however, fails on all counts. The music, with its octave-and-a-half range, seems made for the unearthly banshee howls of a theremin rather than a normal human voice, and the words are impenetrable in their obscurity. “Oh, say, can you see by the dawn’s early light what so proudly we hailed at the twilight’s last gleaming, whose broad stripes and bright stars through the perilous fight, o’er the ramparts we watched, were so gallantly streaming?” Try diagramming that sentence sometime. Hey, now that the sun’s come up, can you still see the stars and stripes flying? You know, that thing we saluted so proudly last night and saw glimpses of it streaming over the ramparts while we watched the battle last night? That thing? Is it still there?

I mean, it must have been one hell of a moving moment for Mr. F. S. Key, held prisoner on a British ship till the battle ended, to “see by the dawn’s early light” that the American flag was still flying over Ft. McHenry, showing that the British attack had failed and at least for the moment the city of Baltimore had not fallen. But you had to be there. What does the defense of Ft. McHenry mean to a twenty-first century American citizen? Not much, apparently—as the first draft of a film presentation that escaped into the interwebs showed. Its author apparently thought that Ft. Henry (as he called it) was under attack during the Revolutionary War, not the misnamed War of 1812. The ace researcher whose account he used failed on even the simplest of facts.

And not to put too fine a point on it, Key himself doesn’t seem to have taken the thing too seriously. His piece was a double-retread—not only was the melody an old English drinking song (“To Anacreon in Heav’n”) but the words were recycled from an earlier song he’d written about the return of Stephen Decatur from the war with the Barbary pirates:

In the conflict resistless, each toil they endured,
’Till their foes fled dismayed from the war’s desolation;
And pale beamed the Crescent, its splendor obscured
By the light of the Star Spangled flag of our nation.
Where each radiant star gleamed a meteor of war,
And the turbaned heads bowed to its terrible glare,
Now, mixed with the olive, the laurel shall wave,
And form a bright wreath for the brows of the brave.

Same tune, same star-spangled flag, same rhyming of wave with brave. Originality clearly was not Key’s strong suit.

And, you know, revisiting Key’s published output, I’m struck by one thing. To describe Key as a mediocre poet would be wrong. No, not just wrong—it would be a flat-out lie. It would be such over-the-top flattery that even Donald Rumsfeld would choke on the bald-faced mendacity of it. Key was a wretched poet. Not as bad as Edward de Vere, the seventeenth earl of Oxford, perhaps the brass-standard of wretched poets, but a vile wordsmith from the same misbegotten tribe. Sham religiosity, pedantry, forced rhymes, pedestrian observations—gack. Consider the eighth and final quatrain of his exquisite “To a Rose-Bud”:

Then haste, and when, with anxious step,
Thy growth to mark, I next shall walk,
Then let me see thy blushing head
Bend with its dewy weight thy stalk.

Or here’s Key apparently channeling the spirit of a backwoods pre-Victorian schoolgirl:

Farewell, ye once delightful scenes! farewell!
No more your charms can soothe my aching heart;
These long-drawn sighs, these flowing tears, can tell
How much I grieve, sweet scenes! from you to part.
[—opening verse of “Stanzas”]

And here’s Key picturing some joyous future scene when the deaf will finally hear:

They shall hear the trumpet’s fearful blast,
And the crash of the rending tomb,
And the sinner’s cry of agony,
As he wakes to his dreaded doom.
[—from “Lines Given to William Darlington, a Deaf and Dumb Boy”]

I bet the deaf kid could hardly wait for that moment. Seriously, this is our best? In a country that boasts the likes of Carl Sandburg and Wallace Stevens, this incompetent hack is our National Lyricist? And as for the music—again, in the land of Charles Ives, Duke Ellington, and Kurt Cobain we have to fall back on a tune written by John Stafford Smith, a composer who is not only obscure, but British to boot?

Who picked this thing, anyway? Wasn’t that John Philip Sousa, composer of “The Stars and Stripes Forever” and other patriotic marches? Why the hell didn’t he write something himself? At the very least it would pass the brass band test.

It’s not like we don’t have a wealth of patriotic songs to choose from. What about “My Country ’Tis of Thee?” It’s singable, anyway. Okay, the lyrics suck and the tune is the British anthem “God Save the King”, but even so it’s better than what we got stuck with. And there’s “America the Beautiful”, right? Samuel Ward’s music is reasonably melodic, and not too hard for the average voice to wrap itself around. But the words…

O beautiful for patriot dream
That sees beyond the years
Thine alabaster cities gleam
Undimmed by human tears.

Yeah, there’s an image to conjure with. If human beings aren’t weeping, who, or what is, in these alabaster cities? Crocodiles? Okay, how about Julia Ward Howe’s “Battle Hymn of the Republic”?

I have read a fiery gospel writ in burnished rows of steel:
“As ye deal with my contemners, so with you my grace shall deal;
Let the Hero, born of woman, crush the serpent with his heel,
Since God is marching on.”

Say, what? That’s pretty strange stuff coming from a Unitarian, not hardly PC at all. And way too much God for our modern secular state. But it's stirring, you gotta admit.

Or we could consider Woody Guthrie’s paean to mindless greed, “This Land Was Made for You and Me”. Or Israel Baline’s trite but reliable “God Bless America.” They're both noted for their sing-along qualities at any rate. I mean, there are other possibilities.

I’ll give you one example. It’s singable, it passes the brass band test, it’s got eagles flying and freedom ringing and all that good stuff.

To hear the sound of freedom many gave their lives;
They fought for you and me.
Those memories will always live inside us,
And now it’s our time to be free.

Where the eagles fly I will soon be there.
If you want to come along with me my friend,
Say the words and you’ll be free
From the mountains to the sea
We’ll fight for freedom again.

Okay, maybe it sounds a bit more like an air force recruiting song than a patriotic hymn, but what about it? Anyone for Manowar?

Quotation of the Day

…[D]oughnuts, even Spudnuts, don’t come close to the movement to improve American education inspired by the Soviet launch of Sputnik. From just getting history horribly in error, Palin came close to ridiculing American business with her idea of meeting the challenges like space exploration, with doughnuts and coffee. Doughnuts and coffee will not lift student test scores, nor are they the answer to lifting our economy today and keeping the U.S. competitive and on top, in the future.

Ed Darrell

Manifest Destiny

I’ve been amusing myself by leafing through some of John L. O’Sullivan’s editorials on things like westward expansion, our Indian policy, and the future of America. This is supposed to be for a section on my (still very hypothetical) Modoc War book, and has been brought to me through the courtesy of the good folk at Cornell University.

I’ve been looking for a gateway to enter into the world view of nineteenth century America as it were, and I’m thinking of using O’Sullivan for that purpose. This guy was the editor and publisher of a literary magazine called The United States Magazine and Democratic Review, which was sort of a Democratic counterpart to the Whiggish North American Review. (The latter is also available at the Cornell University site.)

The book section hasn’t exactly jelled yet, but I’m getting a better picture of my quarry, at any rate. I transcribed “Annexation” and stuck it up at Wikisource, and I’ve transcribed “Territorial Aggrandizement” and “Our Indian Policy” as well, though so far they’re just sitting on my computer.

O'Sullivan, by the way, was born on a ship off the coast of Gibraltar during the war of 1812; his mother had taken refuge there from fear of a plague on shore. (What she was doing in Gibraltar my internet sources don't say.) He was elected to the New York legislature in his twenties, where he made himself unpopular by campaigning against the death penalty. He was a Van Buren supporter during the election of 1844—this was the free-for-all where the sitting president had been drummed out of his party and the white house really was up for grabs—and the Whigs were running Henry Clay. (One of the ironies of history is that neither Daniel Webster nor Henry Clay were ever president, though their names are remembered now much better than many of those who actually succeeded in getting the prize.) O’Sullivan ended up disappointed, of course, when James K. Polk, the first “dark horse” candidate (supposedly), somehow emerged from the melee the victor, in spite of his often-expressed lack of interest in the position. He stood behind Polk even so, but without the enthusiasm he’d shown for Van Buren.

O’Sullivan was a visionary. While his United States was bounded by the Rocky Mountains, he looked forward to a nation united by ties of wire and rail that spanned the continent from Atlantic to Pacific. “[T]he day cannot be distant,” he wrote, “which shall witness the conveyance of the representatives from Oregon and California to Washington within less time than a few years ago was devoted to a similar journey by those from Ohio; while the magnetic telegraph will enable the editors of the “San Francisco Union,” the “Astoria Evening Post,” or the “Nootka Morning News” to set up in type the first half of the President’s Inaugural, before the echoes of the latter half shall have died away beneath the lofty porch of the Capitol, as spoken from his lips.” Yes, not only Texas, but California, Oregon, New Mexico, Chihuahua, Yucatan, Cuba, and the British provinces to the north were all to dissolve their allegiances and clamor for annexation by the United States. There would be no need for a war—indeed, nothing was less likely—rather, the natural strength of the Saxon peoples would draw settlers like magnets to these uninhabited lands. What was more natural than that, once there, they would want to join with the United States? It was practically inevitable.

Slavery was an awkward problem, true, but so was the alternative. O’Sullivan was appalled by the conditions workers in the free north faced, and felt that there might be some features of the slave system that were superior to the wage system that produced such grinding poverty. Might not slavery, if purged of such objectionable features as “the separation of families, excessive severities, subjection to the licentiousness of mastership … contain some dim undeveloped germ of that very principle of reform thus aimed at [by reformers like Charles Fourier], out of which proceeds some compensation at least for its other evils, making it the duty of true reform to cultivate and develope [sic] the good, and remove the evils?”

If slavery goes, O’Sullivan looks forward to

the ultimate disappearance of the negro race from our borders. The Spanish Indian-American populations of Mexico, Central America and South America, afford the only receptacle capable of absorbing that race whenever we shall be prepared to slough it off—to emancipate it from slavery, and (simultaneously necessary) to remove it from the midst of our own. Themselves already of mixed and confused blood, and free from the “the prejudices” which among us so insuperably forbid the social amalgamation which can alone elevate the Negro race out of a virtually servile degradation even though legally free, the regions occupied by those populations must strongly attract the black race in that direction; and as soon as the destined hour of emancipation shall arrive, will relieve the question of one of its worst difficulties, if not absolutely the greatest.

The native Americans too pose a problem.

It [i]s impossible that two systems of governments, so diverse as the Indian and American, should coexist on the same territory. All history proved this. The most rational hope of success for this race, the only one which indeed appear[s] practical on a scale commensurate with the object, [i]s to remove them, with their own consent, to a position entirely without the boundaries of the state jurisdictions, where they might assert their political sovereignty, and live and develope their true national character, under their own laws.

And their ultimate fate? O’Sullivan is optimistic, given the abilities shown by the more progressive members to survive and thrive under the new circumstances. But

Our greatest apprehensions, we must confess, before closing this paper, arise from the peculiar geographical position of the Indian territory with relation to our own. … Our population is on the broad move West. Nothing, it is evident, will now repress them this side of the Pacific. The snowy heights of the Rocky Mountains are already scaled; and we but apply the results of the past to the future, in saying that the path which has been trod by a few, will be trod by many. Now, the removed tribes are precisely in the centre of this path. From the mouth of the Platte, or the Konza, the great highway to the Oregon must run west. Whether this new tide of emigration be successful or unsuccessful, will those who compose it spare to trample on the red man? Will they suddenly become kind to him, to whom they have been unkind? Will they cease to desire the lands which their children want? Will they consent to see the nation separated by an Indian state? Will they award honors, nay, justice, to that state? Twenty years will answer these questions.

In spite of O’Sullivan’s comments on race, he doesn’t seem to have believed in it. In a very interesting piece entitled “Do the Various Races of Man Constitute a Single Species?” he suggests that race is an imaginary construct, and that racial types are simply the extremes in the continuum of human variability. He considers it quite possible that some groups are superior to others in particular abilities, but argues that the variability within a group is greater than the difference between groups.

He’s an odd character, and one I’m glad to have encountered, in spite of his curious limitations. There’s a biography out on him that I want to read, if I can get a copy. Unfortunately my local library doesn’t have it; I’ll have to resort to buying it or getting it through interlibrary loan. It does seem to me a trifle unfair that he is remembered now only for two things—his invention of the phrase “manifest destiny,” and his magazine’s motto: “The best government is that which governs least.”

On this Day in 1789

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 twenty years ago.