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

VERSUS

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 14^th 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