The Relationship of Church and State: The Views of the Founding Fathers

KENNETH W. STARR

Editor's Note: Judge Starr served as the Annual Speaker at the Society's Twelfth Annual Meeting held on May18, 1987 This paper is the text of that speech.

It is a great pleasure and high honor to be with you in this historic chamber as we come together in the Society for the first time during the Bicentennial celebration now underway under the leadership of our retired Chief Justice.

It seemed fitting and proper in this Bicentennial year to reflect on one of the recurring and most intriguing issues in our system of government – the relationship between religion and religious activities and the instruments of government. A relationship which we characterize by shorthand as the relationship between church and state.

To ruminate on so sweeping and yet so fundamental a topic is a hopelessly daunting task, even to the foolhardy soul who would dare to wade into these difficult waters. And thus I will try to limit my observations in the main to the historical foundations of that relationship at the founding of the American republic, both at the Constitutional Convention in Philadelphia in 1787 and in the framing of the First Amendment to the United States Constitution by the First Congress of the United States in 1789.

I now ask you to travel back mentally to the Constitutional Convention in Philadelphia, with the delegates arriving in the wake of conferences at Mt. Vernon and Annapolis in prior years focusing on the foibles and inadequacies of government under the Articles of Confederation.

The Convention was to have begun on the 14th of May exactly 200 years and four days ago. But things didn't go as planned. As the Journal of the Federal Convention recounts, "sundry deputies to the Federal Convention appeared; but a majority of the states not being represented, the members present adjourned, from day to day until Friday the 25th of the said month."

On that historic day the Bicentennial of which we shall mark only one week hence, 29 delegates were in place from nine States. In addition to the three missing States, one of which, Rhode Island, was destined never to attend, Massachusetts and Georgia each boasted a modest single delegate. The ranks, in short, were thin.

The first order of business was the election of the President of the Convention. Two delegates were obvious candidates for that high honor, but only one nomination was offered. The logical choices were Benjamin Franklin, who did not appear at the Convention until the following Monday, and George Washington, who along with six other colleagues from Virginia was dutifully in attendance on the inaugural day The dye was immediately cast when Franklin's colleague from Pennsylvania, the wealthy industrialist, Robert Morris, moved the nomination of General Washington. The Journal of the Convention states:

Franklin, then a mere 81 years of age, was at home suffering from the gout. Washington, to no one's surprise, was unanimously elected. He was then conducted to the presiding chair by his nominator, Mr. Morris (who was coincidentally the General's host at his home in Philadelphia, situated a convenient block away from the State House) and John Rutledge of South Carolina. After the election of a Secretary, the appointment of a messenger and a door-keeper, and the appointment of a three-member committee on rules (George Wythe of Virginia, Thomas Jefferson's law teacher at William & Mary; Alexander Hamilton of New York; and Charles Pinckney of South Carolina), the Convention adjourned until 10 a.m. the following Monday the 28th. The Convention at last was organized and under way

The level of activity picked up on the second day of the Convention. Franklin and three colleagues from Pennsylvania took their seats; the future Chief Justice of the United States, Oliver Ellsworth of Connecticut, arrived as the first delegate from that State, and a solitary delegate from Maryland took his seat. The eminent Virginia lawyer, Mr. Whythe, reported from the rules committee on that body's work over the preceding weekend. Debate ensued and the rules, with two exceptions, were adopted.

But no sooner had the standing rules been agreed upon than the first sour note occurred, in the form of a letter from what the Journal describes as "sundry persons of the state of Rhode Island, addressed to the honorable the chairman of the General convention, was presented to General Washington by Mr. G. Morris." The letter was actually a word of cheer from a group of merchants and tradesmen who were appalled at the decision of their home State, known not so affectionately as Rogue's Island, to stay home. Rhode Island, to be blunt, was in social turmoil. The beleagured merchants of Rhode Island urged the Convention to do its best – Rhode Island's business community was sending an S.O.S.

A final housekeeping matter had to be taken care of. Would the proceedings be public or not? A delegate from South Carolina, Pierce Butler, whose namesake would eventually sit on the Supreme Court, offered what might seem in the Bicentennial era to be a rather colorful motion, namely one against what the Journal refers to as "licentious publication of their proceedings." The motion was referred to the hardworking Rules Committee, and on the following day which is of considerable significance to the final result of the Convention and to our more narrow focus this afternoon, that committee, through the tireless Mr. Wyeth, reported the three rules aimed at protecting the confidentiality of the proceedings.

With the rules finally in place on that day Tuesday the 29th of May the time was right for the introduction of the first substantive set of proposals for the Convention's consideration. These were 15 resolutions advanced by Edmund Randolph, destined to be the Nation's first Attorney General in the Washington

Administration. At the time, Randolph was an ever so young Governor of Virginia, at the ripe old age of 32, and though he was destined to enjoy high office in the first Administration, Randolph was also destined to be one of three delegates – along with George Mason of Virginia and Elbridge Gerry of Massachusetts – present at the Convention on its historic concluding day September 17, 1787, who refused to sign the document. Ironically Washington's future Cabinet officer objected to a single Executive, which he viewed with alarm as the "foetus of monarchy"

But back to May 29 and Governor Randolph's proposal, which had been crafted in the main by James Madison. This was, of course, the Virginia Plan, or the Large State Plan, calling for a radical revision of the structure of government under the Articles of Confederation. The Plan called for a bicameral legislature and an executive to be chosen by the legislature, but eligible to serve only a single term. Intriguingly the executive and a "convenient number of the national judiciary were to compose a council of revision," with power to examine and invalidate every act of the legislature.

And here we must conclude our introduction to the Philadelphia Convention and turn our focus more specifically to that portion of the text of the Constitution that bears upon religion. The genesis of what is now Article Six, Clause Three, of the Constitution – our Oath of Office Clause – can be found in Randolph's fourteenth resolution. It was admirably brief "Resolved, that the legislative, executive and judiciary powers within the several states ought to be bound by oath to support the articles of union."

This portion of the Virginia Plan was thus aimed at securing the loyalty of the States and state officials to the new national charter of government. This tack prompted no little discussion, both within and ultimately outside the convention. Madison's notes indicate that this resolution came on for debate two weeks later, on June 11, and prompted sharp opposition. Roger Sherman of Connecticut, destined

to author the Great Compromise between the Large and Small States, opposed this resolution as unnecessarily intruding into the States' jurisdiction.

Governor Randolph, on the other hand, vigorously defended the oath as necessary to prevent the unbridled competition between state and national laws experienced under the Articles of Confederation. As officers of the several States were already under oath to their respective States, Randolph argued, to preserve a due impartiality they ought to be equally bound to the national government. Besides, Randolph continued, the national authority needs all the help we can give it.

Elbridge Gerry of Massachusetts was unmoved. He allowed his dislike for the oath clause. In his view, there was as much reason to require national officers to take an oath of fidelity to the States. The proposal proved deeply divisive. Six States voted in favor of it, 5 States voted no. The Solid South, led by Virginia, plus Pennsylvania and Massachusetts (notwithstanding Elbridge Gerry's opposition) carried the day.

Subsequently as the Convention was nearing its final two weeks of work, a simple change was added to the Oath Clause. It was moved and seconded to add the words "or affirmation" after the word "oath." Unlike the closely divided question over whether to have any oath at all, this act of toleration passed overwhelmingly with little debate, 8 to 1, with 2 States divided. The spirit of toleration, which is implicit in the command of the First Amendment, was plainly at work in the City of Brotherly Love. The Framers were quite willing to draft the basic charter of government so as to take religiously based scruples into account.

Then, Charles Pinckney of South Carolina moved to add to the Clause the following: "but no religious test shall ever be required as a qualification to any office or public trust under the authority of the United States." Roger Sherman, ever the doubter, thought the provision unnecessary. Others, including Gouverneur Morris and General Pinckney of South Carolina, expressed their approbation. Again, in contrast to the divisive question whether to have an oath at all, the motion carried overwhelmingly with only North Carolina voting no and Maryland divided. (This, incidentally is the only time the word "ever" appears in the text of the Constitution.)

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Now, I think it would be quite wrong to draw from this record the sense that the members of the Constitutional Convention were hostile to religion. Far from it. Indeed, to the contrary religious influences were widely viewed as important to the well-being of the body politic. The entire notion of a democratic society in the rather undemocratic age of the Enlightenment was grounded on the principle that the people were capable of public virtue. "We the people" were the opening words of the Constitution, not "we the mob." In the words of Edmund Burke, "[i]t is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters."

As ably chronicled in a forthcoming book by Richard Betterli and Gary Bryner, "the people" represented a value, an ideal, of a citizenry that displayed the great public virtues of self-restraint, obedience to law, and of honesty and morality in public dealings. Churches were seen as nurturing public virtue, much in the way the family taught and inculcated values of right and wrong, of decency and morality In the vernacular of the modern day churches represented vital intermediating institutions between the invidual and the state. For every iconoclast like Thomas Paine, railing against organized religion, there were numerous more thoughtful, balanced observers who were friends of liberty but were also friends of the church.

This can be seen in the debate over the oath clause in the Constitution. One reason advanced against a specific religious test was that the oath itself vindicated society's interest in having decent, God-fearing individuals holding national office. Luther Martin, the high-living Attorney General of Maryland and one of its delegates to the Convention, wrote in 1788 that the clause was adopted by a great majority of the convention and without much debate. But he indicated that various members of the Convention were of the view that belief in God would provide security for good conduct of our rulers. Religious belief was thus seen even on the Convention floor as having what the professoriat would today call instrumentalist value.

This view – that the oath itself provided a sufficient test of virtue – was evident in Oliver Ellsworth's pro-Constitution essay in December 1787, where during the ratification process he stoutly defended the absence of a religious test to serve in office. The oath itself would suffice; any additional test would be tyrannical, the future Chief Justice maintained, and what is more, in the already pluralist United States, such a test would be absurd. Here are Ellsworth's words: "If [the religious test] were in favour of either congregationalists, presbyterians, episcopalians, baptists, or quakers, it would incapacitate more than three-fourths of American citizens for any publick office. There need [be] no argument to prove that the majority of our citizens would never submit to this indignity"

Ellsworth's opponents – the Anti-Federalists, were deeply alarmed, of course, not simply by virtue of the libertarian bent as evidenced in the Oath of Office Clause. Ironically the Anti-Federalists, while championing religious qualification tests and the like, were fearful of the power of the central leviathan and the dim prospects – as they saw it – for liberty in a federal system. The story of the demand within the several states for a Bill of Rights is well known and need not be dwelt upon in these reflections. Suffice it to say that several States urged inclusion of a Bill of Rights, and proposed specific language for Congress to consider. Virginia and North Carolina proposed identical provisions with respect to religion, which sounded the theme of natural rights and articulated both free exercise and non-establishment values. Similar proposals were advanced by New York and New Hampshire. With a typically New England economy of words, the proposal offered by New Hampshire provided: "Congress shall make no laws touching religion or to infringe the rights of conscience.

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Religion, in short, did not figure prominently in the deliberations at Philadelphia two hundred years ago, but it was of considerable prominence in the debates on ratification leading up to the proposal by the First Congress in 1789 for a Bill of Rights. And if the First Amendment enjoys, as is oft times said, a preferred place in our constitutional constellation, it should not go unnoticed that the Religion Clauses are further set apart; as the first of the first. It is only after the Establishment Clause and the Free Exercise Clause that the reader of the words of the First Amendment arrives at the other fundamental freedoms– of speech, of press, of assembly and of petitioning the Government for redress of grievances. The operative language, an economical sixteen words, is undoubtedly emblazened in the memory of many here: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Curiously enough, while we know a good deal about the Constitutional Convention itself and the ratifying conventions that followed, the record is surprisingly sparce about the background of the Religion Clauses of the First Amendment. We know of course that Madison himself took the project in hand as a member of the First Congress which convened in 1789 and that he undertook the task armed with the proposals from several States.

As chronicled in Professor Michael Malbin's useful monograph, entitled Religion and Politics, Madison introduced two proposed amendments pertaining to religion on June 7, 1789. The words are brief and bear repeating, with the first proposal the more germane:

This proposal embodied the thrust of the Virginia and North Carolina formulations; and it bears noting that freedom of conscience was expressly protected in the Madisonian proposal, as it had been in the proposal advanced by New Hampshire, as well as by Virginia and North Carolina.

Madison's second proposal was more radical, in view of the Anti-Federalist stirrings about the position of the States vis-a-vis the new government. For Madison would have accomplished at the Founding, at least in part, what the Supreme Court was destined to hold 160 years later. Madison crafted his second proposal very simply: "No state shall violate the equal rights of conscience." The proposal, I hasten to add, went on to protect the freedom of the press and the right to trial by jury in criminal cases; it was not devoted 'exclusively to religious freedom.

Nor should it go unnoticed from these two measures that Madison entertained a bifurcated notion as to governmental power to establish religion: under his two proposals Congress clearly could not establish a national religion, but the States, in contrast, could establish their own state religions, at least if they did not infringe upon "the equal rights of conscience."

This too, upon reflection, is unexceptional. For at that time 5 of the 13 States maintained establishments of religion, the last of which, Massachusetts, was not dissolved until 1833. The trend since the Revolution had been toward disestablishment, which was itself an indication of the vigor of variety of various religious groups. For at the time of the Revolution, 9 of the 13 colonies had established churches. Disestablishment occurred during the Revolution itself in the States of New York, Maryland and North Carolina. In Virginia, the largest and most powerful State, disestablishment occurred only one year before the convention. That effort, led of course by Jefferson and Madison, resulted in Madison's famous Memorial and Remonstrance, directed against a tax measure to assist teachers of the Christian religion. Here are the words of the Supreme Court in Everson v. Board of Education, authored in 1947 by Justice Black, as to the thrust of Madison's historic essay:

The Memorial and Remonstrance was founded on natural rights theory which had provided, of course, the intellectual underpinning of the Declaration of Independence. It was emphatically not an anti-religion document, as the most cursory reading of it demonstrates. For, in Madisonian terms, that which is a right enjoyed by the individual against other members of civil society is a duty owed to God. The duty to God, Madison stated, was "precedent both in order of time and degree of obligation, to the claims of Civil Society" As Madison put it in the majestic language of natural rights theory "[b]efore any man can be considered as a member of Civil Society he must be considered as a subject of the Governor of the Universe." Man's duty to God was of a higher order than man's duty to the State. And if this freedom of conscience was abused, Madison concluded, it was an offense against God, not against man. "To God, therefore," Madison wrote loftily "not to men, must an account of it be rendered."

Lest this theory sound entirely wedded to Eighteenth Century thinking of less relevance to the current era, let me move forward for a fleeting moment to the 1980s, to an opinion authored by Justice Stevens, joined by Justices Brennan and Marshall. In Hewitt v. Helms, these contemporary Justices reembraced the Jeffersonian and Madisonian principle that liberty is a God-given right. "I had thought," Justice Stevens wrote, "it self-evident that all men were endowed by their Creator with liberty as one of the cardinal unalienable rights." 459 U.S. at 483. God, not the State, was the source of liberty; it was the high function of government to protect and preserve that liberty – principles that connected modern-day opinions of present Supreme Court Justices to the views that informed the Founding.

This, then, was the grand theme of the Memorial and Remonstrance. Madison was later to write that his Memorial had, in his words, "met with the approbation of the Baptists, the Presbyterians, the Quakers and the few Roman Catholics universally; of the Methodists in part; and even of not a few of the Sect formerly established by law" Quoted in Everson, 330 U.S. at 12 n.12. The Memorial, in short, was supported not so much by the local town athiest, if there were any in Virginia, but by much of the organized religious community.

Religious pluralism, in short, was firmly rooted in American culture. Not surprisingly as a result, much of the mood for disestablishment of churches came from the churches themselves, as suggested by Madison's letter. The Baptists, as they are to this day were ardently opposed to governmental intrusion, including by formal establishment, into matters ecclesiastical. It is thus no accident that Jefferson's famous letter in 1802, with its metaphor of a wall of separation, was written to the Danbury Baptists, in a State–Connecticut - which still maintained an established church at the time of Jefferson's writing.

But back to the First Congress. The two proposals advanced by Madison were referred to the Committee of the Whole on the same day. There, they sat idle for a month and a half. Finally on July 21, 1789, the proposals were referred to a specially formed 11-member Select Committee, which included Madison. 1 Annals of Congress 665. Even that procedural tack was not without controversy Congressman Thomas Tudor Tucker of South Carolina, a Bermuda-born physician trained at Edinburgh and who served as a surgeon during the Revolutionary War, rose in opposition. The subject was of too great importance to be spirited away to a Select Committee, Tucker complained; with Anti-Federalist tones of States' rights, Congressman Tucker–destined for appointment by Jefferson as treasurer of the United States– objected vehemently "The States will expect," Mr. Tucker complained, "that their propositions would be fully brought before the House, and regularly and fully considered; if indeed then they are rejected, it may be some satisfaction to them, to know that their applications have been treated with respect." Better to postpone the matter for a month or even for a whole session.

Elbridge Gerry of Massachusetts seconded the objection. He taunted the Madison faction. "Shall we give the whole of the legislative power to select committees?" Here are Gerry's words, as recorded in the Annals of Congress:

'Are gentlemen afraid to meet the public ear on this topic? Do they wish to shut the gallery doors." Let the House as a whole debate the issue. 1 Annals 663-64. But the objections by Tucker and Gerry were unavailing; the House was prepared to risk this symbolic affront to the States, sending the proposed Bill of Rights off to a Committee by a vote of 34-15.

As Professor Malbin has helpfully recounted, the Select Committee acted promptly – shades of George Wythe's Rules Committee at the Convention only two years before. The difference was that, unlike the Whythe Committee at the Convention, the Select Committee made only minor adjustments to the second proposal of Madison concerning the States. As to the first proposal, the Committee had taken a heavier editing pen. The longer Madisonian version (which we quoted earlier) was shortened to the following sentence:

Now notable among the changes is that the word "national" before the word "religion" had been dropped out. In addition, the Select Committee dropped the Madisonian clause, "the Civil Rights of none shall be abridged on account of religious belief or worship." There were, alas, no committee reports, so the reasons for the latter changes are enshrouded in mystery But of greater interest is that freedom of conscience very much remained alive in the proposed language, thus foreshadowing what Justice Jackson was to call in the Barnette flag salute case, overruling the Supreme Court's decision just three years previously a freedom of mind that all individuals enjoy And it was this basic freedom that the Supreme Court reaffirmed two decades later, in the New Hampshire Live Free or Die case, Wooley v. Maynard, overturning Mr. Maynard's 10-day jail sentence for covering over the State motto, "Live Free or Die," on his license plates.

The Select Committee's handiwork thus completed, the drama moved to the floor of the first Congress on August 15, 1789. While this may seem by modern standards lightning-like speed, the actual fact is that stalling tactics were underway. This was all part of an effort by Anti-Federalists to erode support for the new Constitution. One member of that First Congress wrote the following: "the Antis, viz, Gerry Tucker, etc. appear determined to obstruct and embarrass the business as much as possible." (Times, it would appear, haven't changed much.)

And thus it was that even at the Founding, the First Congress was laboring under severe time constraints. Adjournment was nearing, and Madison was working assiduously to expedite debate and move the measures to passage. Resistance was stiff. Congressman Sumter of South Carolina, whose name was to adorn the fort in Charleston Harbor where the Civil War was destined to begin 75 years later, rose to his feet and complained of the haste with which proponents of the Amendments were trying to act. Full debate was needed. Here was Congressman Sumter's opinion, uttered to Madison's undoubted chagrin:

Madison took the offensive. This rather intellectual man in politics – who of course as Jefferson's Secretary of State would become fourteen years later the defendant in Marbury v. Madison, the case that established as a cornerstone of our constitutional edifice the principle of judicial review – had had quite enough. Here are Madison's words:

The debate did not go on indefinitely The Religion Clauses were debated in the House for the most part on a single day Saturday August 15. That debate was memorialized in a modest two pages in the Annals, but it would be more than that devoted to any other single provision of the Bill of Rights. Indeed, considerably more attention was devoted to whether the people should be given the express right under the Constitution to give instructions to their representatives. This Burkean discussion over the nature of a representative democracy especially as engaged by Madison, on the one hand, and Elbridge Gerry on the other, is a triumph of debate, with the touch of immortality rarely found in public discourse save for such treasures as the Lincoln-Douglas debates just 69 years later. But this too had to conclude.

The debate on what we now call the Religion Clauses concentrated on the establishment issue, bypassing the "rights of conscience" clause. The debate opened with an expression of concern about the Establishment Clause, articulated by a member from New York. Congressman Sylvester from the Empire State complained that as drafted the clause was susceptible to a construction different from that intended by the committee. (Here, then, was the familiar sight of a lawyer expressing fears about how language in a legal instrument might later be construed.) In Mr. Sylvester's view, the language might be thought to have a tendency to abolish religion altogether, a concern shared by another Member, Congressman Huntington. This would not do.

The Sylvester attack ends there; the Journal moves crisply on to a modest change suggested by one Congressman, Mr. Vining of Delaware, to put the "equal rights of conscience" provision before the establishment provision. Liberty was to be protected first and foremost. Elbridge Gerry that astute politician who had served at Philadelphia but refused to sign the document, suggested a better version than that fashioned by the Select Committee. In Gerry's view, the amendment would read better if it were that no religious doctrine should be established by law. The tactics of delay were continuing.

At that juncture on that historic Saturday Roger Sherman of Connecticut weighed in with the classic Federalist view that no protection at all was necessary As Madison had argued previously the national government was one of the delegated powers. Since Congress had not been delegated power by the Constitution to make religious establishments, the entire provision, Sherman argued, should be struck. It was totally unnecessary.

This recurring theme – the lack of need for such protections–was sounded in the ensuing debate on the remainder of the First Amendment – on freedom of speech, of press and assembly This enumeration of rights ran a risk, some Congressmen warned. If there is freedom of speech, Congressman Sedgwick of Massachusetts argued, how could there not be freedom of assembly Here are his words from 198 years ago:

This task of inclusion of rights to be protected had no obvious stopping point, Congressman Sedgwick argued. They might as well have declared, he retorted, that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper.

But Sedgwick's warnings proved unpersuasive. The Members were obviously moved by two considerations: first, and most importantly the reality that several States had specifically enumerated such rights as meriting protection, and the Constitution had not been unanimously ratified; and second, that the rights articulated in the First Amendment were of especial importance. These were, in Elbridge Gerry's terms, "essential rights."

But I'm straying beyond the debate on the Religion Clauses themselves. The response to Roger Sherman's concerns – that the amendment was purporting to deny a power to Congress that Congress did not have in the first place–was set forth by two members, Mr. Carroll (of Maryland) and, not surprisingly by Madison himself Carroll emphasized the rights of conscience. These, Congressman Carroll emphasized, were by their nature of peculiar delicacy They would not bear what he called the gentlest touch of the governmental hand. It was thus, again, the nature of the rights– freedom of conscience–that required singling out for express protection.

He then resorted to the ever present political reality There was strong sentiment to the effect that these rights were not well secured under the present Constitution.

Madison came in on Carroll's heels. He began by setting forth his interpretation of what the Religion Clauses meant. The Madisonian view was majestic in its simplicity: "Congress should not establish a religion," Madison intoned, "and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." The notion of compulsion was at the heart of Madison's interpretation of the Religion Clauses. It is compelled religious exercises, not religious exercises, that flew in the teeth of the First Amendment. It was just like the Fifth Amendment in this respect –there is no protection against self-incrimination, as is so loosely thought to be the case. Every lawbreaker is entirely at liberty to incriminate himself. The crucial distinction for constitutional purposes is that the individual is to be free from compelled self-incrimination.

Madison then went on to respond to Roger Sherman's charge that the Amendment was simply not needed in a government of limited, delegated powers. Whether these words were necessary or not, Madison opined, he would not say but he repaired to the political reality of the times. These words were required, Madison observed, by some of the State Conventions, which were concerned about the breadth of the "necessary and proper clause" of the Constitution.

The First Amendment was, as it were, an act of accommodation to the concerns of the American people, just as the modifications to the Oath Clause had been in Philadelphia two years earlier Madison would not stand on legal doctrine, sound though it might be, that in the very nature of things Congress had no power over religious affairs; these were basic and delicate rights, and the sensibilities of the people, even if not well grounded in law, should be accommodated. And thus it was that the value of accommodation, dominant at times in Religion Clause jurisprudence in the Twentieth Century, was the animating force in the crafting of the First Amendment itself

Congressman Huntington stood as Madison took his seat. He agreed with the Madisonian reading of the clause, and felt strongly that the anti-establishment principle was sound. He observed that Rhode Island, a rather tumultuous place you will recall, had by charter provided that no religion could be established by law and that this was a blessed freedom. The Congressman's concern was thus not substantive, it was one of appearance. Let us protect ourselves against establishment, he said, but let us not while securing the rights of conscience patronize those who professed no religion at all.

Madison took the floor again. All these concerns, he felt, could be satisfied if the word "national" would be inserted in front of the word "religion." This was not an anti-religion provision, after all, but to the contrary was a pro-religion clause. Religion would flourish where there was liberty. The sole concern was that one religious sect might obtain preeminence, or two sects combine together and establish a religion at the seat of government.

But the Madisonian effort to revive his original, proposed language, which certainly would have aided clarity in modern day interpretation of the Constitution, met with vigorous opposition. Nonetheless, that opposition was not on the specific merits of the Clause and its proper meaning. It was, rather, on the very basic, overriding issue of the nature of this new government. Was it a national government or something else, namely a federal government?

The ever-present Elbridge Gerry took up the cudgels on this fundamental point. The Anti-Federalists had taken umbrage at the notion that they opposed a federal government, Gerry complained. That was dead wrong. They were not at all opposed in principle. It was, in the opponents' view, the supporters of the Constitution who were favoring a national government. The real issue had been over ratification of the Constitution as it emerged from Philadelphia, without a bill of rights. Gerry then concluded on a colorful note: In light of this true distinction, he said, the competing factions should not have been called federalists and anti-federalists, but rats and anti-rats.

Madison, not given over to humor, threw in the towel. The Annals record that he thereupon withdrew his motion, but protesting all the way that the term, "national religion," by no means implied that the government was a national one, rather than a federal one.

The vote was then taken on the Religion Clauses – the vote was 31 in favor, and 20 against. Not, one might conclude, an overwhelming vote of confidence but nonetheless a comfortable margin. And the opposition, it bears repeating, was not one based on singling out religion for protection. To the contrary the opposition was grounded, first, on the fear that the language might be construed so as to give comfort and quarter to those who were irreligious, and second, on the lawyerly objection, pressed by Sherman, that the entire exercise was unnecessary in a government of limited and expressly delegated powers.

Thus, alas, ends the entirety of the recorded debate in the First Congress on the Religion Clauses. This is a sharp disappointment for historians, both professional and buff, and leaving not a few judges a bit wistful. The intriguing point is that as the recorded debates end, the Clause as passed by the House refers to the rights of conscience but not to the free exercise of religion.

But there is no mystery thankfully in this respect because we know, albeit without the benefit of debates and discussions that surely occurred, that a Congressman from Massachusetts, Fisher Ames, came forward on Thursday August 20, with a revised proposal. It was, in the main, a proposed return to the version drafted by the Select Committee, but with a third provision added with respect to protecting the free exercise of religion. So as Ames proposed it, the rights of conscience and the free exercise of religion were protected.

What, then, was the relationship between the "free exercise" and the "rights of conscience" clauses in the proposal? I must leave that intriguing issue ultimately to historians and scholars, but I will by your leave venture to offer an amateur, perhaps horseback opinion, a quick ruling from the bench as it were. And that is that the two were so intimately related that they were, in effect, substitutes one for another. What was the protection of the right of conscience but the protection of religion, at least at that time. Indeed, it would be quite wrong to view the Framers in the First Congress as somehow downplaying conscience and elevating religion, as some might tend to bifurcate the two in the contemporary age. The two – conscience and free exercise – were intimately linked. An act of conscience free of state compulsion was, in effect, the free exercise of religion. This view is at least partially buttressed by the Virginia Declaration of Rights of 1776, the pertinent clause of which was co-authored by a then 25-year old lawyer, James Madison, and George Mason, 59 at the time and dubbed by Jefferson as "the wisest man of his generation." It was from the 1776 Virginia Declaration that Madison drew so effectively in his Memorial and Remonstrance. And Article 16 of that historic Declaration stated in clear terms that all men enjoyed "equal title to the free exercise of Religion according to the dictates of conscience.

The two concepts – conscience and free exercise – were plainly linked in this historic statement of liberty just as Madison implied in the great debate of August 15, 1789, when he referred to the Religion Clauses as protecting the rights of conscience. But in any event, it was Ames' version, with minor stylistic changes, that the House accepted on August 24 and sent to the Senate as the final proposed version.

Like the Constitutional Convention itself, the floor debates on the Senate were kept secret in the early days of the Republic. We have only records of the proposed amendments and motions. On September 9, the Senate passed a rather different Religion Clause proposal than that sent to it by the House. In contrast to the more general House version, the Senate measure stated:

The bill then went to conference, and a distinguished conference committee it was. From the House came Madison, Sherman of Connecticut and Vining of Delaware; from the Senate came Ellsworth, Carroll (of Maryland) and Paterson of New Jersey who was the principal architect at the Philadelphia Convention of the New Jersey (or Small State) Plan. In his character sketches of delegates to the Convention, William Pierce, a delegate from Georgia, described Paterson – at 34 only 3 years younger than Madison – as "one of those kind of Men whose powers break in upon you, and create wonder and astonishment." Paterson, as a Member of the First Congress, had now reached the ripe old age of 36.

It was from the hand of these six men, laboring outside the public eye, that the final language of the Religion Clause emerged, the sixteen words which we quoted earlier. That language was promptly accepted by the House on September 24, 1789 and by the Senate on the following day.

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What emerges from this return to the First Congress is the overriding concern at the Founding of securing the liberty of the people. This act – the crafting of the Bill of Rights in general and the Religion Clauses in particular – was ultimately an exercise in accommodation by virtue of the importance of the rights– an importance suggested by three tangible factors: first, that the Religion Clauses are first of the first, they are preeminent. Second, quite apart from the symbolic location of the Religion Clauses in the constitutional constellation, the First Congress quite obviously focused in its debates on religious liberty more than on the other freedoms enshrined in the Bill of Rights, no matter how dear those other freedoms might be; and third, that religion was universally seen as a positive good and that while securing religious liberty the amendment should not give governmental aid and comfort to religious unbelief. And it was to this latter concern that Madison specifically responded by seeking incorporation of the concept of a national religion. Under this concept, the area of verboten activity would be limited to the narrow ground of compulsion in matters of belief and of elevating a particular sect or combination of sects to governmentally mandated primacy in a society characterized by a healthy diversion of religious viewpoints and affiliations.

And thus the Amendments were proposed to the States, and were ultimately ratified effective December 15, 1791. The Religion Clauses were, of course, destined to be the source of considerable legal and constitutional debate as the Twentieth Century unfolded. But one clear message appears from the history of the First Congress. The First Congress – the body which debated and crafted the First Amendment as we still know it (in the precise language that stirs our hearts) – plainly indisputably did not hold the notion now gaining currency that all religious references and observations would be eliminated from the official life of the Federal Government.

For on the very next day after approval of the proposed Bill of Rights, on Friday September 25, the House turned to an appropriations bill and then considered a resolution to request President Washington to recommend a day of public thanksgiving and prayer, "to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God."

Now it did not go unnoticed that this recommendation had to do with religion. Our now-familiar friend from South Carolina, the Bermuda-born surgeon and future Treasurer, Congressman Tucker, complained that "this is a business with which Congress has nothing to do; it is a religious matter, and, as such, is proscribed to us." Annals at 915. But Mr. Tucker's opposition was, again, based entirely on his Anti-Federalist views of state power, versus the power of the new central government. Any such matter, this ardent Anti-Federalist maintained, lay within the province of the States.

But this States rights view garnered little support, and Roger Sherman, the architect of the Great Compromise in Philadelphia, mounted a spirited justification for the resolution based primarily on precedents in Holy Writ. Another Congressman, Mr. Boudinot, cited precedents from the practice of Congress under the Articles of Confederation. He expressed hope that the motion would meet with a ready acceptance. It did. Apparently with little debate, and with only two Congressmen having been recorded as harboring misgivings about the resolution, the matter passed and the committee was appointed.

In addition to this action, as recounted in the Supreme Court's opinion in March v. Chambers upholding the constitutionality of legislative chaplaincies, the House of Representatives and the Senate both elected chaplains in April and May 1789. Indeed, this past Law Day marked the Bicentennial of the day on which Madison's House of Representatives appointed its first chaplain, a practice that has continued for 200 years. Madison himself served on the Committee recommending the institution of a chaplaincy. And the two chaplains were, as of the early Fall of 1789, no longer volunteers but were paid by Congress. Madison himself, it bears noting, voted in favor of that measure.

Finally that First Congress also repassed the Northwest Ordinance of 1787, a measure originally passed by the Congress under the Articles of Confederation. The Ordinance, among other things, set forth Congress' reasons for setting aside for education purposes federal lands in the territory northwest of the Ohio River. The first reason advanced by Congress was religion. In the words of our First Congress, "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of learning shall forever be encouraged."

We will leave the remainder to historians and others. What has since transpired over the past two centuries since ratification of the Bill of Rights is in large measure a recurring theme in our decisional law in favor of the overarching value found in the Religion Clauses, that of religious liberty It was the philosophy of natural rights – of liberty – which animated Jefferson and Madison and which so clearly informed the discussions and debates at the Convention and the First Congress.

True it is that the earliest cases involving the Religion Clauses were not so clearly oriented toward the libertarian theme of the First Amendment. But with the first case applying the First Amendment through the Fourteenth Amendment to the States, the 1940 case of. Cantwell v. Connecticut, a dominant theme has been one of liberty–the protection of the free exercise right. And this theme has continued into the most recent weeks of the October 1986 Term of the United States Supreme Court, as evidenced by the decision so recently in Hobbie v. Unemployment Appeals Commission, reaffirming the Court's earlier decisions in Sherbert v. Verner and Thomas v. Review Board, concerning the rights of religious believers to unemployment compensation.

The note of tension (about which so much has been said and written in recent years) has been sounded where the values enshrined in the Free Exercise Clause come under attack by invocation of the Establishment Clause, such as attacks on historic practices as chaplaincies, prayers at public events and the like, all of which are events the legality of which, upon reflection, will be seen to implicate values enshrined in the Free Exercise Clause. Who shall, after all, command a President or Senator not to invoke the Deity in a public pronouncement, implicating as those do both free speech and free exercise values.

That is to say in closing, that the desire to erect an impenetrable wall of separation may ultimately come to be viewed, by virtue of such teachings as Justice Brennan's opinion for the Court in Hobbie, as constitutionally curious. In the modern day it is useful to remember that it is the evil of compulsion at which the Establishment Clause was aimed in a pluralist society The question for us as a Nation is whether in the name of tolerance and sensitivity we are in danger of inadvertently entering an age of intolerance, thinking – strangely oddly – that religion is like discrimination, something to be eliminated from public life, root and branch.

It is, in this Bicentennial year, an appropriate time to reflect upon our commitment as a Nation to the principles of tolerance and understanding, as reflected at the Founding. It is a time for reflecting upon respect for the conscience of all our citizens. We must remember those who through the Constitution's protection have the inalienable right not to be compelled to participate in any religious observation or activity; we also must remember those who are mindful, in the words of Justice Stevens, that the source of liberty in civil society is their Creator. We must remember those who believe in the words of that great friend of religious liberty James Madison, in his immortal Memorial and Remonstrance, that their ultimate allegiance is owed to the Governor of the Universe and the Universal Sovereign.