"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
The goal of this thread is to present what I take to be the most persuasive and originalist interpretation of the religion provisions of the 1st Amendment. In all of this I draw on my recollections of the work of Notre Dame professor Phillip Munoz; what is persuasive in this post can be credited to him, and I take the blame for whatever is sloppy or insufficiently cited. Munoz' own paper on this subject can be found here
Although Madison, Jefferson, et al. undoubtedly had effects on legislation and public discourse about religion's place in the American commonwealth, but their opinions were not universally accepted, and I think it reckless in any case to interpret the 1st Amendment as an ideological statement rather than as a policy statement. I intend to treat what the legislature understood to be the immediate policy implications of the law as the closest thing we can find to authoritative; what they said and did not say about their expectations about the implications of the constitutional amendments they were debating should be instructive. I'm not sure offhand where to find these records online (I have them in a book), so I'll just summarize:
With respect to establishment, it clearly does not create any privileges or immunities, and so resists 14th Amendment incorporation. There were several state establishments of religion in 18th century America, usually involving the funding of clerical salaries through taxes. Many states had abolished their establishments by the time they ratified the 1st Amendment, and these wanted assurance that the federal government would not recognize its own official religion, but those who had not (yet-- iirc, almost all would in the following decades) ended the relationship of their government to any structures of church governance wanted assurance that the government would likewise not interfere with the existing relationships. Congress shall make no law respecting an establishment of religion, meaning, plainly, that Congress is not allowed to make any laws about establishments of religion: it is an area of law over which Congress simply has no authority.
Free exercise: there's really not very much to tell us what the framers meant by this, but it seems as though it was not intended to create any notable exemptions. Our biggest clue comes not from the 1st Amendment debates, but the debates surrounding the 2nd Amendment, which happened soon after. Earlier versions of the 2nd Amendment included provisions related to the draft, and discussion in the House turned to whether the Quakers should be included or excluded from these provisions and how. No where in this discussion, though, does anyone raise the question of whether the 1st Amendment exempted the Quakers from the draft. The free exercise of religion, in their minds, did not go so far as to create religious exemptions from generally applicable laws.
Note that I don't necessarily think that these policies represent the best possible relationship between church and state, either in the American context or generally, but I do think it to be the most persuasive interpretation of the 1st Amendment in its original context.
I will not insist that discussion in this thread focus only on the original context and meaning. If you wish to discuss what you think a good church/state status quo looks like and even want to seek kindred spirits among the founders, feel free to do so, but please differentiate between your own political prescriptions from your interpretation of the text.
The goal of this thread is to present what I take to be the most persuasive and originalist interpretation of the religion provisions of the 1st Amendment. In all of this I draw on my recollections of the work of Notre Dame professor Phillip Munoz; what is persuasive in this post can be credited to him, and I take the blame for whatever is sloppy or insufficiently cited. Munoz' own paper on this subject can be found here
Although Madison, Jefferson, et al. undoubtedly had effects on legislation and public discourse about religion's place in the American commonwealth, but their opinions were not universally accepted, and I think it reckless in any case to interpret the 1st Amendment as an ideological statement rather than as a policy statement. I intend to treat what the legislature understood to be the immediate policy implications of the law as the closest thing we can find to authoritative; what they said and did not say about their expectations about the implications of the constitutional amendments they were debating should be instructive. I'm not sure offhand where to find these records online (I have them in a book), so I'll just summarize:
With respect to establishment, it clearly does not create any privileges or immunities, and so resists 14th Amendment incorporation. There were several state establishments of religion in 18th century America, usually involving the funding of clerical salaries through taxes. Many states had abolished their establishments by the time they ratified the 1st Amendment, and these wanted assurance that the federal government would not recognize its own official religion, but those who had not (yet-- iirc, almost all would in the following decades) ended the relationship of their government to any structures of church governance wanted assurance that the government would likewise not interfere with the existing relationships. Congress shall make no law respecting an establishment of religion, meaning, plainly, that Congress is not allowed to make any laws about establishments of religion: it is an area of law over which Congress simply has no authority.
Free exercise: there's really not very much to tell us what the framers meant by this, but it seems as though it was not intended to create any notable exemptions. Our biggest clue comes not from the 1st Amendment debates, but the debates surrounding the 2nd Amendment, which happened soon after. Earlier versions of the 2nd Amendment included provisions related to the draft, and discussion in the House turned to whether the Quakers should be included or excluded from these provisions and how. No where in this discussion, though, does anyone raise the question of whether the 1st Amendment exempted the Quakers from the draft. The free exercise of religion, in their minds, did not go so far as to create religious exemptions from generally applicable laws.
Note that I don't necessarily think that these policies represent the best possible relationship between church and state, either in the American context or generally, but I do think it to be the most persuasive interpretation of the 1st Amendment in its original context.
I will not insist that discussion in this thread focus only on the original context and meaning. If you wish to discuss what you think a good church/state status quo looks like and even want to seek kindred spirits among the founders, feel free to do so, but please differentiate between your own political prescriptions from your interpretation of the text.
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