Everything is Prohibited: The 1st Amendment And the Federal Government

As I read Steven Waldman’s FOUNDING FAITH: Providence, Politics, and the Birth of Religious Freedom in America, I would summarize the arguments the founding fathers of the U.S. were making about the relationship of the national government (the state) to religion (the church) to be a debate between these two opposite ideas:

Everything was permitted except that which was prohibited


Everything was prohibited except that which was permitted.

The overriding issue was to form a coalition of these thirteen Independent states and that was achieved to some extent by limiting the power of the federal government and defending state rights.  When it came to the issue of religion, any separation of church and state was seen as keeping the national government out of the church and preventing any one religion from dominating the national government – this was all done to prevent the national government from interfering with what any one state permitted or prohibited when it came to religion.  Thus religion is not much mentioned in the constitution as the thought was the federal government doesn’t have any power over religion and any issues between church and state should be dealt with on the state level.

The Bill of Rights and its First Amendment concerning religion reads:  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; …”   The law specifically only forbids congress from making any law in this regard, it doesn’t in any way forbid presidential candidates from pushing a religious agenda.

The debate really was about whether being more explicit and wordy will help or hinder the notion that the Federal government should not involved itself in religion, and to leave religion as an issue for the states to decide.  Some of those who opposed the First Amendment argued that being more explicit is dangerous, because the more explicit you are the more narrow people will interpret the law, and will then propose all kinds of contingencies which are not explicitly covered by the law.   They felt not mentioning religion in the Constitution sets the pattern that the federal government has no role in religion – religion falls totally under the laws of each state and totally outside the competency of the congress.  So they felt whatever power was not explicitly given to the federal government in the constitution is therefore not a power of the federal government.   Thus everything was prohibited the federal government except those explicit powers stated in the constitution that permitted the fed to do specific things.   James Madison as a Republican very much favored keeping religion out of the constitution and originally opposed the bill of rights because he believed the government had only the powers stated in the constitution and no more.  He feared the more that was said would only open the door to interpretations expanding  federal powers.

On the other side of the debate were those who feared that unless the constitution was explicit regarding religion it would be interpreted to say that the government had all the powers in every field except those which were specifically  forbidden to it by the constitution.  These folk in particular pushed for the Bill of Rights as they feared government would quickly assume it had all the powers not specifically denied it.  Patrick Henry was a main defender of this view.    They felt the best way to limit the fed was to pass explicit laws denying the government certain powers.   Their opponents felt that their method was full of loop holes as they would never be able to imagine all of the contingencies that might come up and the government would be ever hungry for more powers and would grab these powers in every circumstance where no law limited the government.

They all basically agreed on the issue of a very limited role for the federal government in religion – it was how to attain and enforce the goal that was viewed so differently.   And to one degree or another they all basically agreed that there needed to be some separation of the federal government and the church so that no one religious view could be forced upon all the citizens of the country.  What will radically change the interpretation of the law regarding the church and state will really be the 14th Amendment ratified in 1868 which changed the tenor of the discussion away from state’s rights to the rights of every individual citizen of the nation.   This truly extended rights to all minority groups and minority opinions and made the relationship between state as well as federal government and any religious view more tenuous.    That has resulted in the very contentious debates in modern times over the separation of church and state and the role of Christianity in America.

See Also my Freedom of Religion

Freedom of Religion or a Religionless Campaign?

Each year just before or about the time of American Independence Day I try to read a book on American history.   This year I have been reading Steven Waldman’s FOUNDING FAITH: Providence, Politics, and the Birth of Religious Freedom in America which is a good read and offers insight into the debates surrounding freedom of religion in early America.   Waldman offers a thesis that the modern American debates about freedom of and freedom from religion can find plenty of fodder among our founding fathers but often the modern debates do not quote the framers of the constitution within the context of THEIR debates and concerns.  Consequently people find quotes to support all kinds of positions which the founding fathers would have found baffling.   He says the real issue of religion in the colonies was trying to weld together a coalition of 13 independent states each of which had a strong sectarian bent.   What the American founders worked out was the union could be formed as long as this national body politic had no power to interfere with the religious practices of each state.   What they realized was needed for the states to unite was a statement that granted religious tolerance to whatever each state did so that no one state and no one religion could take advantage of the union to force their religious views on the rest of the states.  It was the basis for the American idea of religious toleration, though individually all of the founding fathers had strong religious preferences and prejudices.  They were actually protecting each state from interference from the national government and later in history the religious freedom would be interpreted more in terms of rights granted to individuals. 

The modern American take on politics and religion has taken its own turn and some long for a mythical age in which politicians debated policies and not religion.   Take for example the 11 June 2008 New York Times Opinion piece by Timothy Egan, “Godless.”       Mr. Egan thinks religious themes have become way too predominate in American political campaigns and he hopes the candidates will “go Godless for the rest of the campaign.”   It is an opinion piece and so he is entitled to his opinion:  “Over the last 30 years, church and state have become far more entangled than any of our fair-minded founders and their better successors – including some chiseled on Mount Rushmore – envisioned.”

The trouble is his opinion doesn’t match well with history, or at least not the history offered by Mr. Waldman.  The founding fathers openly debated and discussed issues of religion, and beginning with the election of 1800 between President John Adams and Vice-President Thomas Jefferson, there was a tremendous amount of religious bantering, slandering and mudslinging between these two founding fathers.  The Federalist backing Christian Unitarian Adams portrayed Jefferson as a godless man, who didn’t attend church, and whose election would lead to rampant immorality.   The Republicans backing the Philosopher Christian Jefferson (as a man of the Enlightenment he did not believe in any of the New Testament miracles but saw Jesus as an Enlightened teacher) warned that re-electing Adams would bring an end to religious liberty and the rights of conscience. 

Historians claim that although the leading families in 1800 America did see church attendance as part of their civic duty (and vice versa – their civic duty included church attendance), only about 20% of all the peoples in the nascent United States were actually regular church attendees.  But in that year Jefferson won the election to some degree because independent minded evangelicals feared Adams might work to establish a state church and so they joined together with the irreligious to elect the free thinking philosopher.

Americans as the 18th Century came to a close really did vote for the candidate who most pushed the theme of the separation of church and state.   But that wasn’t achieved by the candidates avoiding the issue of religion, but rather by the candidates making known their own visions as to what role religion played in their personal lives and what role they thought religion should play in the life of the nation.   Both presidential candidates in 1800 were men of faith, but the faith of each was different, and the voters had to decide between how these men’s faith would play out in history were they to be elected president.  

What was needed then and now is not religionless campaigning, but a deeper understanding of how each candidate’s faith has impacted their approach to issues and crises, their decision making, and their perspective on the world.   Unfortunately what we will be given is sound bytes and polarized analyzes of the candidate all filtered through the mass media’s take on religion.

See Also my  The First Amendment:  Everything is Prohibited