29 November 2009

1st Amendment: Good Law or False Dogma?

Christopher A. Ferrara is president and chief counsel
of the American Catholic Lawyers Association.

 According to the thinking of the co-founders of Classical Liberalism, Thomas Hobbes and John Locke, the history of what contemporary man calls Liberty revolves around the successful effort by American and European revolutionaries to subordinate spiritual authority to temporal authority.  This subordination of religion by the state was the great liberal cure for the liberal ailment of Protestant factionalism. As the constitutional scholar Walter Berns puts it: “The origin of free government in the modern sense coincides with, and can only coincide with, the solution of the religious problem, and the solution of the religious problem consists in the subordination of religion.”
As Pulitzer Prize winning historian Gordon Wood writes in his classic text The Radicalism of the American Revolution: “In destroying monarchy and establishing republics they [the revolutionaries] were changing their society as well as their governments, and they knew it.” They were motivated by “a utopian hope for a new moral and social order” and their revolution was “a momentous upheaval that not only fundamentally altered the character of American society but decisively affected the course of subsequent history . . .”

Compare the radically new regime created by the Constitution’s religion clauses with the fundamental laws of the states at the time of its ratification. Leonard Levy shows that as of 1791 (when the First Amendment was ratified) every state in the Union lent some form of official support to Christianity by way of formal establishments of one denomination, multiple establishments via earmarked tax support for the denomination of the taxpayer’s choice, religious tests for public office and civil benefits, Sabbath closing laws, and the punishment of blasphemy and profanity. In short, “Christianity was regarded by state jurists as part and parcel of the law of the land.” So it had been throughout the history of Christendom, whose polities, as Christopher Dawson observes, were founded on the principle that “Christianity is the law of the land.”

The Separation of Church and State

All states are confessional states of one sort or another, reflecting theological premises concerning the role of religion and its relation to state power. And America is no exception. As Martin E. Marty has noted, “the only way to get to a subground beyond the grounded religion is with another religion,” and the opinions of the Founders were thus “weighted with metaphysical and theological (or deological) assumptions.” Most of the leading Founders were nothing if not dogmatic opponents of what they perceived as the pretensions of institutional religion, including “Popery” in any form. This is especially true of James Madison and Thomas Jefferson, the twin progenitors of the Constitution’s religion clauses, which indubitably reflect their anti-sectarian theology.

James Madison’s Memorial and Remonstrance (1785) was written during his campaign with Jefferson to disestablish, not just the Anglican Church, but any form of state support for Christianity in Virginia. In particular, the Memorial opposed Patrick Henry’s bill to “make provision for teachers of the Christian religion” and to provide a general assessment for the support of the Christian denomination of each taxpayer’s choice. Madison and Jefferson opposed the bill even though, as Leonard Levy points out, it declared “that all Christian sects and deominations were equal before the law” and recited a purely secular motive of “the furtherance of public peace and morality. . .”

Woven into Madison’s appeal to freedom of conscience and his prudent Lockean nod to religion as “the duty which we owe to our Creator” is the Memorial’s real message: the establishment of Christianity in any way, shape or form as the religion of the state is tyranny per se, and Western man must finally end this age-old tyranny . . . With a magisterial wave of his pen, Madison dismisses all fifteen centuries of Christendom as “a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world. . . [and] it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them . . .” What is really at work here is not a logical argument but a theological judgment. Just as Locke does, Madison the theologican purports to teach the world what God requires of Church-State relations, even as he argues that government must take no position in matters religious.

For Madison and Jefferson, as for Locke, religion is entirely a matter of opinion – except, of course for their religious views, which are treated as infallible dogmas binding on the entire commonwealth. In the Virginia Statute Jefferson issues this dogmatic definition: “Almighty God hath created the mind free; . . . all attempts to influence it . . . are a departure from the plan of the Holy Author of our religion.” Jefferson too purported to tell the world about God’s plan for the new organization of political society. And, like Madison, Jefferson possessed a dogmatic certitude on what constitutes acceptable reigion. Hence the Virginia Statute hurls an anathema at “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspred men . . . hath established and maintained false religions over the greatest part of the world, and through all time.” By “false religions” Jefferson meant Roman Catholicism and other variants of Trinitarian Christianity, which he regarded as “a counter-religion made up of the deliria of crazy imaginations” that teaches there are “three gods” and has corrupted “the simple doctrines of Jesus” whose divinity Jefferson denied.

But what about the “silent” consequences of the spread of religious error in society: loss of faith, apostasy, the decline of morals, the destruction of families and ultimately eternal damnation? Like Locke, neither Madison nor Jefferson recognized any duty on the part of civil authority to support, protect and defend true religion for the common good – a function of the state as old as Christian civilization itself. As Jefferson famously declared: “But it does me no injury for my neighbor to say there are twenty gods or no God. It neither picks my pocket nor breaks my leg.” Locke, Madison and Jefferson all agree that sin and heresy are no threat to the “general welfare” – essentially the absence of theft and violence – and Locke substituted for the Christian conception of the common good.

Now, if religion is purely a matter of opinion, it follows that in exchange for their “liberty” all churches, especially the Catholic Church, must relinquish any claim to authority over the political process. For both Madison and Jefferson (as for Locke) the sinister flip side of “religious liberty” is the impotence of the Church before the State. For the first time in Western history the two are to be strictly separated, with government to exercise sole and unchallenged authority over society. As Madison puts it: “A perfect separation between ecclesiastical and civil matters” is the best course, for “religion and Government will both exist in greater purity, the less they are mixed together.” The idea that government will achieve greater “purity” if “perfectly separated” from religion is a manifest absurdity contrary to the entire theologico-political tradition of Western civilization. Following suit, Jefferson, in his famous Letter to the Danbury Baptists, applauds “that act of the whole American people which declared that their legislature should ‘made no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

In his posthumously published Detached Memoranda, Madison wrote of his satisfaction with the course of events, “now more than fifty years, since the legal support of Religion was withdrawn” at the federal level, but he aslo fretted that some states had retained “a strong bias towards the old error, that without some sort of alliance or coalition between Government and Religion neither can be duly supported . . . .” Forty-two years after Madison’s death, both his Memorial and Jefferson’s “wall of separation” found their way into the Supreme Court’s 1878 decision in Reynolds v. United States.

Now some 130 years after the Supreme Court first mentioned it, Jefferson’s “wall of separation” stands firm. The endless bickering between the conservative and liberal wings of the Supreme Court over the Establishment Clause involves only the extent to which government may engage in trivial, passive, non-sectarian and non-proselytizing “acknowledgments” of God and America’s “religious heritage.”

In sum, to read the writings of Madison and Jefferson on “religious liberty” in light of subsequent history is to understand that the intent behind the First Amendment was not the expansion of religious liberty, but the protection of the state from religious influence. What the political scientist Ralph C. Hancock calls “the zealous Lockeanism of the American Revolution” has resulted in the “relegation of religion from the public to the private realm” in keeping with “deep philosophical hostility in the first instance to revealed religion” and a veritable “anti-theology” of the state.


Catholic have always been obedient subjects of civil authority in all things except sin. Just as they lived obediently under emperors in the Roman Empire, so do they live obediently under the Constitution in what Jefferson liked to call “the Empire of Liberty.” They have no other choice in present circumstances.

In his landmark encyclical on the evils produced by modern liberties, Libertas Humana, Pope Leo XIII taught that “in the extraordinary condition of these times the Church usually acquiesces in certain modern liberties. . . because she judges it expedient to permit them,” even though “she would in happier times exercise her own liberty. . .” Moreover, as Leo counseled in Immortale Dei, “it is the duty of all Catholics worthy of the name. . . to make use of popular institutions, so far as can honestly be done, for the advancement of truth and righteousness” and thereby “endeavour to bring back all civil society to the pattern and form of Christianity which We have described.”

But while we are obliged to make use of these modern liberties for what they are worth, we must recognize that America is a thinly disguised confessional state created by liberal Protestants, and the dogmas it reflects can no more be ours than the cult of the Roman gods.

This article was edited and abridged by the blogger.

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