Monday, March 10, 2008

Opinion of Congress, 1853

There is a lot of debate today about the meaning of the First Amendment's religion clauses. Much of this particular blog is focused on the debate about the first clause, the "establishment clause," because that is the one tied in to the "separation of church and state" metaphor. It seems logical to try to understand what the Founders meant by their words. We have many historical records to help us. Below is one from 66 years after the Constitution was ratified.

Benjamin Franklin Morris was a notable American historian. In 1864 he wrote "Christian life and character of the civil institutions of the United States," where you find the following account:

As part of a Congressional investigation on January 19, 1853, Congress of the United States recorded the report of Mr. Badger of the Senate Judiciary Committee:

"The [First Amendment] clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country... endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communities,-- such law would be a 'law respecting an establishment of religion...'

"They intended, by this amendment, to prohibit 'an establishment of religion' such as the English Church presented, or any thing like it. But they had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people...

"They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistic apathy. Not so had the battles of the Revolution been fought and the deliberations of the Revolutionary Congress been conducted.

"In the law, Sunday is a 'dies non,'... The executive departments, the public establishments, are all closed on Sundays; on that day neither House of Congress sits...

"Sunday, the Christian Sabbath, recognized and respected by all the departments of the Government...

"Here is a recognition by law, and by universal usage, not only of a Sabbath, but of the Christian Sabbath, in exclusion of the Jewish or Mohammedan Sabbath... the recognition of the Christian Sabbath [by the Constitution] is complete and perfect.

"We are a Christian people... not because the law demands it, not to gain exclusive benefits or to avoid legal disabilities, but from choice and education; and in a land thus universally Christian, what is to be expected, what desired, but that we shall pay due regard to Christianity."

Read more of the accounting in this Google Books excerpt



CrypticLife said...

Congress does not have authority to interpret the Constitution. Congress is moved by politics, the idea behind giving the authority to the SC was to limit the effect of politics.

If Congress could, it would trample over every single right of the minority.

I'd also note that your assertion that the debate is only about the establishment clause is false -- given the number of prisoner "free exercise" cases that crop up there's plenty of debate regarding the free exercise clause as well.

History Matters said...
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History Matters said...


Your first paragraph is correct as far a legal authority. However, I still think it is instructive to look at the opinions of those closer to the signing than we are today. For example, when I quote the following words of James Madison, considered the father of the Constitution:

"The First Amendment was prompted because the people feared one sect might obtain preeminence, or two combine together and establish a religion to which they would compel others to conform."

it is just to give background. That particular statement by Madison has no legal power, but it is useful (to me at least) to know what he thought.

And your last paragraph is an excellent point. I have modified the introduction to this post accordingly. I'm not trying to slight the importance of the debate over the "free exercise" clause; it is just not usually the focus of this blog because it is so often ignored in favor of the establishment clause when people invoke the "separation of church and state" metaphor.

As always, thanks for your insight