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    Of Gods and Judges: The Strange Story of the First Amendment
    Of Gods and Judges: The Strange Story of the First Amendment
    Of Gods and Judges: The Strange Story of the First Amendment
    Ebook161 pages2 hours

    Of Gods and Judges: The Strange Story of the First Amendment

    By Scott Rutledge

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    About this ebook

    Reflections on the historical First Amendment. With just sixteen words, America's founders outlined the new nation's stance toward religious concerns. Here is a brief history of the Supreme Court's interpretation, occasional neglect, and eventual misinterpretation of those few words.

    LanguageEnglish
    PublisherScott Rutledge
    Release dateApr 1, 2016
    ISBN9781311538109
    Of Gods and Judges: The Strange Story of the First Amendment

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      Book preview

      Of Gods and Judges - Scott Rutledge

      Of Gods and Judges

      The Strange Story of the First Amendment

      Scott Rutledge

      Copyright 2016 Scott Rutledge. All rights reserved.

      Smashwords Edition

      Licensing Notes

      This e-book is licensed for your personal use and enjoyment only. This e-book may not be re-sold or given away to other people. If you would like to share this book with another person, please purchase an additional copy for each recipient. If you are reading this book and did not purchase it, or if it was not purchased for your use only, please visit Smashwords.com and purchase a copy for yourself. Thank you for respecting this author’s work.

      Cover Art: Chasing Images Photography

      E-Book by e-book-design.com.

      Table of Contents

      Introduction: An Evolving First Amendment

      One: Novus Ordo Saeclorum

      Two: The Court Defers

      Three: The Court Dissembles

      Four: The Court Commands

      Five: An Old Teaching

      Six: A Higher Reason

      Seven: A New Faith

      Eight: A Universal Conscience

      Nine: Vetus Ordo Saeclorum

      Ten: Homo Religiosus Inscienter

      Notes

      Introduction

      An Evolving First Amendment

      In 1876, at the Centennial Exhibition in Philadelphia, Pennsylvania, a small avant-garde, a group of Americans who thought of themselves as new characters in the world – as secularists – came together. Their common purpose was the attainment of a comprehensive separation between churches and political authorities, and more generally between religion and politics, at all levels of American governance: local, state, and national. To that end they created a new organization, the National Liberal League, the purpose of which was to promote a constitutional amendment; and they drafted the amendment they desired, intending that it replace the existing First Amendment to the nation’s Constitution.

      The National Liberal League’s proposed new First Amendment reads as follows:

      Section 1. Neither Congress nor any State shall make any law respecting an establishment of religion, or favoring any particular form of religion, or prohibiting the free exercise thereof; or permitting in any degree a union of church and State, or granting any special privilege, immunity, or advantage to any sect or religious body or to any number of sects or religious bodies; or taxing the people of any State, either directly or indirectly, for the support of any sect or religious body or of any number of sects or religious bodies; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

      Section 2. No religious test shall ever be required as a condition of suffrage, or as a qualification to any office or public trust, in any State. No person shall ever in any State be deprived of any of his or her rights, privileges, or capacities, or disqualified for the performance of any public or private duty, or rendered incompetent to give evidence in any court of law or equity, in consequence of any opinions he or she may hold on the subject of religion. No person shall ever in any State be required by law to contribute directly or indirectly to the support of any religious society or body of which he or she is not a voluntary member.

      Section 3. Neither the United States, nor any State, Territory, municipality, or any civil division of any State or Territory, shall levy any tax, or make any gift, grant or appropriation, for the support, or in aid of any church, religious sect, or denomination, or any school, seminary, or institution of learning, in which the faith or doctrines of any religious order or sect shall be taught or inculcated, or in which religious practices shall be observed; or for the support, or in aid, of any religious charity or purpose of any sect, order, or denomination whatsoever.

      Section 4. Congress shall have power to enforce the various provisions of this Article by appropriate legislation. [1]

      It was very wordy, compared with the First Amendment written by the nation’s founding statesmen eighty-five years earlier:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      But besides the contrast of verbosity and concision, there was another quite conspicuous difference.

      The word state appears in the revised amendment eight times; while it appears not at all in the original.

      The revised amendment, in other words, speaking most generally, is an early manifestation of what would become a broad and durable trend in American life: the shifting of governmental authority away from the states and toward the central government. As for the earnest secularists of 1876, of course, we can be more specific. Religious judgments, religious preferences, religious prejudices – religious policies and legislation of various kinds, quite commonly found at the state and local levels of American government – aroused their special ire and focused their reforming energies.

      A few of the most thoughtful members of the National Liberal League, perhaps, may have considered their new and improved First Amendment to be implicit already in the original version. Maybe. But it is very telling that they assumed the necessity of making what was arguably implicit, both formal and explicit. Apparently hardly any American in 1876, even those most hostile to the participation of religious associations in public affairs, thought that anything occurring since the founding era had altered the nation’s religious settlement, or given the nation’s government, the central government, any new authority over religious legislation enacted by the various states of the Union.

      It is quite interesting, then, and at first glance surprising, that eventually, in the twentieth century, a consensus arose, at least among lawyers and judges, that made the National Liberal League’s proposed First Amendment, second edition, superfluous! Today’s consensus, in other words, among almost all of those who make their livings thinking about such things, is that the religious prohibitions originally directed only to the Congress also bind each state government as well.

      How did this happen? Why? It is an interesting story, and its telling makes up a good part of this little book. But it raises larger questions, too, also to be considered here.

      Were Americans of the late nineteenth century just not thinking clearly, in failing to reach that new interpretation of the First Amendment?

      Or, is it possible that we are the ones who are not thinking clearly about these matters?

      And, perhaps most important: Are our new principles of church and state an improvement, or a degradation, of the religious dispensation put in place by Americans of the late 1700s?

      Within a few years after 1876 the National Liberal League lay in ruins, dashed to pieces upon the rocks of schism among its members. Many of them could not agree as to what a proper secularism entailed. Many of their fellow citizens, too, had other ideas about what the Constitution meant, or should mean. Amidst all the arguments the text of the First Amendment stood, and has continued to stand, as the American founders originally wrote it.

      Yes, the words of the First Amendment, as they were put to paper in 1791, have not changed, even to this day. But many of the judicial decisions rendered upon religious concerns in the twentieth century, and since, would truly have astonished Americans of the eighteenth and nineteenth centuries.

      One

      Novus Ordo Saeclorum

      A new order of the world: That was what the American founders thought they were bringing into being, and perhaps they were not entirely wrong. There was much that was old and much that was traditional in the early United States, of course. Still, if some of the ideas that went into the making of the nation came with a long history, they might have taken an altered form, or gained a novel purchase upon human affairs, in the new Republic.

      One such idea, that of religious freedom, definitely took a new turn.

      Religious concerns were not on the agenda, and went almost unmentioned, at the Philadelphia convention in 1787. [1] The topic was addressed in one provision only – that prohibiting religious oaths as a condition of office in the nation’s government – of the Constitution which came out of that convention. Only with the addition of the Bill of Rights, the first ten amendments to the Constitution, in 1791, did the religious intentions of the founding generation receive a terse summary at the beginning of the First Amendment:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...

      These sixteen words were clear enough at the time. There were, in 1791, in some of the states of the new union, established churches. In other states there were not. There was to be no national interference with the state churches. The national government itself, just recently created, had had neither time nor occasion to settle the status of orthodoxy upon any church or denomination. Americans were accustomed to addressing questions of church and state through their state governments. Had the nation’s legislators shown any intention to enact religious legislation, this would have added another controversy to the already ample list which had required such painstaking deliberations at Philadelphia in 1787. Religious differences and religious tensions were surely not hard to find among citizens of the new nation, but the short way to a strengthened Union was plain: a simple ratification of the religious status quo. Very little drafting and debate were needed on this point, compared to the labor that went into the main articles of the Constitution.

      Still, words going into a charter accepted by millions of persons as their guide going forward into the long reaches of time, cannot remain ordinary words. Such words will not long signify a mere political arrangement, an accommodation of different beliefs and competing interests, as transparent to later generations as to those who wrote them. In such words the powerful will, sooner or later, seek weapons to wield in the inevitable struggles of political life. And indeed, from those few words concerning religion, appearing in the first of the 1791 amendments to the Constitution of the United States of America, a number of weapons could be fashioned: weapons in a politician’s hands, principles in a statesman’s.

      Let us draw out three principles readily enough found in those seemingly simple sixteen words, and in the circumstances which brought them forth.

      Principle: A state church, an established religion, is – history notwithstanding – suspect.

      Although the intermingling of religious and political authority had long been the rule, not the exception – official churches were common throughout Christendom – such arrangements had become worrisome to many Americans, who already by the late 1700s lived among a surprisingly diverse collection of sects and even different religions. Such arrangements had become

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