September 17 marked the two-hundred-twenty-seventh anniversary of the signing of the US Constitution. No part of this document has occasioned more contemporary comment than the religious clause of the First Amendment. This week, Cornerstone contributors debate the following questions: To what extent were the free exercise and non-establishment clauses intended to protect faith-based associations or for-profit corporations as opposed to individuals?
By: Leah Farish
The religious roots of the Constitution and of the First Amendment should be recognized for two reasons—to appreciate their contribution, and to understand the new church-state paradigm they launched.
The perspective the Founders shared was overwhelmingly based on the Westminster Confession of Faith. Two-thirds of the framers came from Calvinist backgrounds; a majority were Presbyterians. The Westminster Catechism for children saturated public education (it has been estimated that there were four million colonists in 1776 and five million copies of the catechism) and signing onto Reformation-based statements of faith was required for college study. One-third of the signers of the Constitution were members of the Presbyterian Church and many Anglican Church members were thoroughly influenced by it, since it had been written in England by a variety of Christian leaders to unite the country over one hundred years before. Historian Von Ranke has said, “John Calvin was the virtual founder of America.” Horace Walpole complained in the royal Parliament that “Cousin America has run off with a Presbyterian parson, and there’s an end of it.”
Other historians have noted that the bottom-to-top representative form of government originated in the “presbyteries” elected by all members of Reformed churches—see my article, "From Confession to Constitution."
But the Westminster Confession had to be revised for the new nation, since its provisions about government referred to royalty. Well before the Revolutionary War, American Presbyterians saw themselves as breaking away from a corrupt and unresponsive mother church back in Europe, and called their new document a Constitution before the political founders did. Interestingly, the revisers met the weekend before the Constitutional Convention started, just down the street from Independence Hall. Influential “Presbyterian parson” and Princeton president John Witherspoon was active in both gatherings. The revisers sent around a draft for “ratification” in the same time frame as the ratification process for the Constitution.
The European Westminster Confession had said that the state must enforce church law—that though “the civil magistrate” did not “hold the keys to the Kingdom” of God, he could convene religious leaders, and his duty was to enforce the “unity and peace” of the church, suppressing “blasphemies and heresies” and preventing “abuses of worship and discipline.” The American Confession radically changed that section. (For a fuller discussion and extensive side-by-side comparison of the changes, see my "The First Amendment's Religion Clauses.")
The new version says civil magistrates may not “in the least, interfere in matters of faith. Yet, as nursing fathers, it is the duty of civil magistrates to protect the church of our common Lord, without giving preference [to a particular denomination of religion, and]…no law of any commonwealth should interfere with…or hinder the due exercise thereof.” The syntax and word choice echo in the First Amendment, drafted a few months later:“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (my emphasis). The revisers also added the duty “to protect the person and good name of all their people…either on pretense of religion or of infidelity, to offer any indignity, violence, abuse, or injury to any other person whatsoever….” This was the Golden Rule in statecraft. Clearly, the new Confession, drafted first, influenced the Constitution.
In fact, James Madison’s Enlightenment-resonant proposal for a religion clause went down in defeat--the wording we have today was suggested not by him but by his vigorous and popular opponents Fisher Ames and Samuel Livermore, both New England Christians. The House believed the wording so valuable that it proposed to the Senate that it would “recede” from its demands about changes 1, 3, 5, 7, 9, 10, 11, 14, 15, 17, 20, 21, 22, 23, and 24 if they would adopt it. After a summer of rebuffing Madisonian suggestions about “rights of conscience,” the Senate swiftly embraced the language we still use today.
The First Amendment’s wording appealed to the new Congress because it struck that sensible balance of the Confession: It was both a promise that the new national government would not interfere with the states’ varying decisions on support of religion, and a promise that individuals would be protected and could exercise their religion in any of those states. The Westminster Confession also had deep connotations of national unity to them, since it had unified the British factions over 100 years before.
What does this connection mean for us today? It points us toward developing state constitutions’ jurisprudence about religious liberty and establishment, more vigilance over Lemon v. Kurtzman's prohibition of hostility to religion, and a more robust protection of the First Amendment freedom to hear and receive information about religion. The Religion Clauses and our course in the future owe much to the Golden Rule and the Christian religion.
Leah Farish is a civil rights attorney who has practiced and published in the area of religious civil liberties for thirty years.
This piece was originally authored on September 23, 2014 for the Religious Freedom Project at Georgetown's Berkley Center for Religion, Peace, and World Affairs.