Original Intent

News: Revisionist rhetoric notwithstanding, the founders left God out of the Constitution–and it wasn't an oversight.

By Susan Jacoby

December 2005 Issue

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When the Supreme Court, in one of its most important decisions of 2005, ordered two Kentucky counties to dismantle courthouse displays of the Ten Commandments, Justice Antonin Scalia declared that the Court majority was wrong because the nation's historical practices clearly indicate that the Constitution permits "disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."

The Constitution permits no such thing: It has nothing to say about God, gods, or any form of belief or nonbelief—apart from its absolute prohibition, in Article 6, against any religious test for public office and the First Amendment's familiar declaration that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." From reading Scalia, a Martian (or polytheist) might infer that the establishment clause actually concludes with the phrase "free exercise thereof—as long as the faithful worship one God whose eye is on the sparrow." The justice's impassioned dissent in McCreary County v. the American Civil Liberties Union of Kentucky is a revealing portrait of the historical revisionism at the heart of the Christian conservative campaign to convince Americans that the separation of church and state is nothing more than a lie of the secularist left.

For the 21st-century apostles of religious correctness, the godless Constitution—how could those framers have forgotten the most important three-letter word in the dictionary?—poses a formidable problem requiring the creation of tortuous historical fictions that include both subtle prevarication and bald-faced lies.

Religious reactionaries of the 18th century, by contrast, were honest in their attacks on the secularism of the new Constitution. One North Carolina minister observed with forthright disgust, during his state's ratification debate, that the abolition of religious tests for officeholders amounted to nothing less than "an invitation for Jews and pagans of every kind to come among us." The Reverend John M. Mason, a fire-breathing New York minister, declared the absence of God in the Constitution "an omission which no pretext whatever can palliate" and warned that Americans would "have every reason to tremble, lest the Governor of the universe, who will not be treated with indignity by a people more than by individuals, overturn from its foundation the fabric we have been rearing, and crush us to atoms in the wreck."

The marvel of America's founders, even though nearly all of the new nation's citizens were not only Christian but Protestant, was that they possessed the foresight to avoid establishing a Christian or religious government and instead chose to create the first secular government in the world. That the new Constitution failed to acknowledge God's power and instead ceded governmental authority to "We the People…in order to form a more perfect Union" was a break not only with historically distant European precedents but with recent American precedents, most notably the 1781 Articles of Confederation, which did pay homage to "the Great Governor of the World," and the Declaration of Independence, with its majestic statement that "all men…are endowed by their Creator with certain unalienable rights." It is worth noting here that the Declaration was a bold and impassioned proclamation of liberty, while the Constitution was a blueprint for a real government, with all the caution about practical consequences (such as divisive squabbles about the precise nature of divine authority over earthly affairs) required of any blueprint.

Eighteenth-century theological conservatives lost the battle over the Constitution, and the pill remains equally bitter to their spiritual descendants. Every time I write an article mentioning the constitutional omission of God, I receive hundreds of identical emails calling me a liar (sometimes a godless liar), because the document is unmistakably dated "in the Year of our Lord one thousand seven hundred and Eighty seven." That the religious right should fall back on a once-common manner of dating important papers—as unrevealing of religious intent as the use of B.C. and A.D.—demonstrates just how seriously it takes the enterprise of controlling the past in order to control the future.

The revisionist script goes something like this: The founders were devout men who based their new government on Christian teaching (the religiously correct invariably use the term "Judeo-Christian"); they were unconcerned about religious interference with government and cared only about government interference with religion; and, last but not least, there was no tension between secularism and religion in the nation's halcyon early decades, because everyone accepted God as the source of civic authority.

The first part of the script—the so-called devoutness of the founders— is least relevant to the current debate over religion in government. John Adams, Benjamin Franklin, Thomas Jefferson, and James Madison, to name only a few, were prolific writers who contradicted themselves (and one another) almost as frequently as did the authors of the Bible. They certainly believed in some form of God or Providence, as Enlightenment rationalists preferred to call the deity, but that is all we can conclude with reasonable certainty. Jefferson's political opponents in the early 1800s were as mistaken to call him an atheist as his conservative modern rebaptizers are to claim him as a committed Christian. (For one thing, Jefferson emphatically rejected the idea that Jesus was divine and instead regarded him as a great but wholly human teacher of morality.) Adams' critics and admirers, then and now, have been equally misguided in their attempts to portray him as a man of orthodox faith.

What did distinguish the most important revolutionary leaders was a particularly adaptable combination of political and religious beliefs that included strong hostility toward all ecclesiastical hierarchies (the original 17th-century meaning of the lovely word "freethought"); the Enlightenment conviction that if God existed, he expected humans to rely on their own reason to conduct earthly affairs; and the assignment of faith to the sphere of private conscience rather than public duty. These convictions carried the day when the former revolutionaries gathered in Philadelphia to write the Constitution.

Regardless of the framers' private beliefs about God, it is more important to look at their public actions in crafting the legal foundation for the new republic. (One might, with less pride, make the same observation about the founders' attitudes toward slavery; whatever they "truly" believed, what matters is that they signed off on a formula counting a slave as three-fifths of a man.) And here the right-wing script goes awry, for it cannot explain why, if the founders intended to base the government on Christianity or monotheism, they failed to spell out their intentions in the Constitution itself. There was certainly ample precedent for doing so, not only in the Articles of Confederation but in nearly every state constitution.

When the Constitutional Convention opened in 1787, with George Washington as its president, legally entrenched privileges for Protestant Christianity were the rule. The Massachusetts Constitution extended equal protection of the law, and the right to hold office, only to Protestant Christians (restrictions that infuriated Adams, the state's favorite son). New York granted political equality to Jews but not to Roman Catholics. Maryland, the home state of the only Catholic signer of the Declaration of Independence, gave full civic rights to Protestants and Catholics but not to Jews, freethinkers, and deists. In Delaware, officeholders had to attest to their belief in the Holy Trinity. Those were the good old days.

Thanks to the strong influence of Jefferson and Madison, Virginia stood alone among the states in guaranteeing complete civic equality and religious freedom to all citizens. In 1786, Virginians rejected a proposal by Patrick Henry to provide public financing for the teaching of Christianity in schools and instead passed an Act for Establishing Religious Freedom, which ruled out tax support for religious instruction and religious tests for public office. Significantly, the new law was supported by a coalition of evangelicals, who—as a minority in a state dominated by Episcopalians—feared government interference with religion, and freethinking Enlightenment rationalists, who feared religious interference with government.

The influence of Virginia's law, enacted less than a year before the writing of the federal Constitution, cannot be overstated. The delegates in Philadelphia could have looked for guidance to a crazy quilt of conflicting state laws, rooted in religious prejudice and incestuous Old World church-state entanglements. Instead they chose the Virginia model, which, as Jefferson proudly stated in his autobiography, "meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and the Mahometan, the Hindoo, and Infidel of every denomination."

In the McCreary case, Scalia objects to Justice John Paul Stevens' citation of Madison's Memorial and Remonstrance, an impassioned polemic—condemning both religious meddling with government and government meddling with religion—that turned the tide in favor of Virginia's separation of church and state. Scalia disingenuously dismisses the reference because Memorial was written before the federal Constitution—as if Virginia's recent experience had nothing whatever to do with the deliberations of the framers in Philadelphia.

Confronted with the Constitution's silence on divine authority, revisionists repeatedly fall back on the specious argument that since everyone took God's omnipotence for granted in the 18th century, there was no need for the framers to make a special point of mentioning the deity. If that were true, there would have been no bitter debates in the states about the nonreligious language of the Constitution. Moreover, this line of reasoning is self-contradictory, coming as it does from a political/religious lobby that backs the appointment of "originalist" judges—those who insist that the Constitution can only mean exactly what it said at the time it was written. It is ludicrous to suggest that men as precise in their use of words as Adams and Madison would, perhaps in their haste to get home to their wives, have simply forgotten to mention God.

Equally ludicrous is the notion that there was no tension between religion and secularism before federal courts, in the 20th century, began to apply the guarantees of the Bill of Rights to states. The balancing act between secularism and religion, as old as the republic, originated as a creative tension—in contrast to the destructive power struggle that has developed in recent years. For several decades after the Revolution, many Americans saw no conflict between devout personal religious views and secular views of governmental responsibilities.

The degree to which a secular approach to government was accepted in early 19th-century America was demonstrated by Congress' refusal to abandon Sunday mail service, which it had mandated in 1810. The 1844 invention of the telegraph would eventually put an end to the commercial need for daily mail, but in the 1820s and '30s, business still depended on the government to keep the mails moving seven days a week. Nevertheless, powerful right-wing religious leaders waged an unceasing campaign against the sacrilege of Sunday mail, which some considered a more important moral issue than slavery. But evangelical Christians and freethinkers, who had joined together to write and ratify the godless Constitution, wanted no part of government sanction for a religious Sabbath.

In 1828, Congress referred the godly mess to the powerful Senate Committee on the Post Office and Post Roads. Its chairman was Kentucky Senator Richard M. Johnson—a general, a hero of the War of 1812, and a devout Baptist. Johnson's report to Congress uncompromisingly declared that any federal attempt to give preference to the Christian Sabbath would be unconstitutional. He reminded his fellow legislators of the religious persecutions and intolerance that had impelled their revolutionary predecessors to draw a firm line—"the line cannot be too strongly drawn"—between church and state. (So much for separation of church and state being a recently invented lie of the left.)

The report also noted that many Americans, Christian and non-Christian, observed the Sabbath not on Sunday but on Saturday, and that the Constitution and its Bill of Rights were designed to prevent the majority from dictating to minorities. Johnson emphasized that the Constitution "gives no more authority to adopt a measure affecting the conscience of a solitary individual than that of the whole community."

The founders themselves had varying ideas about how much distance to place between their own beliefs and their public roles. Washington saw nothing wrong with issuing presidential proclamations of thanks- giving to God; Jefferson considered such proclamations unconstitutional. Scalia predictably cites Washington's thanksgiving proclamations in support of Ten Commandments displays and dismisses Jefferson's position. In an amusing 1814 letter to his friend Thomas Cooper, Jefferson noted that even Connecticut—which had still not dropped religious restrictions in its state constitution—declared that "the laws of God shall be the laws of their land, except where their own contradict them."

We cannot know what the founders would have thought about the "values issues" that are touchstones for cultural conservatives today—abortion, gay rights, stem-cell research, the right to die—but we certainly can infer what Jefferson would have thought about claims that the Ten Commandments and the Bible are the foundation of American law. The religious right's attempt to rewrite the history of the nation's founding is not some abstract debate of concern only to constitutional scholars but an integral part of a larger assault on all secular public institutions. If the Constitution really were based on the Bible, for instance, how could there be a valid legal argument against teaching creationism in public school biology classes or adding Bible courses to public school curricula?

Custom, rather than law, is the basis of the most common arguments for breaching the wall between church and state. On the same day that the Supreme Court, by a 5-4 majority, ordered the removal of Ten Commandments plaques from Kentucky courthouses, it allowed a Ten Commandments monument to remain on the grounds of the Texas State Capitol (also by a 5-4 margin). Justice Stephen G. Breyer was the swing vote. The chief rationale for the change in Breyer's vote—against the Commandments displays in Kentucky, for the monument in Texas—seems to have been that the Kentucky displays were only six years old, while the Texas monument had been in place for more than four decades without causing controversy. The suggestion that something must be constitutional if it has been around long enough plays neatly into the Christian right's version of history.

With John Roberts as chief justice and Sandra Day O'Connor—who generally sided with church-state separationists—in retirement, there is good reason to fear that the reconfigured Supreme Court will adhere closely to the religious right's history script. In 1991, as principal deputy solicitor general during the administration of George H.W. Bush, Roberts argued in favor of recognizing the nation's "religious heritage" in church-state cases—an opinion echoing Scalia's frequently expressed conviction that all just governments derive their authority from God. This is indeed "originalist" logic—the original document being not the Constitution but the Bible or, to be more precise, certain biblical passages upholding the divine right of kings.

Arguments relying on custom, bolstered by personal religious belief, have great potency when presented to a public with a shaky grasp of even the most fundamental facts of American history. In a 1998 survey by the National Constitution Center, only about one-third of teenagers knew that the Constitution begins with the words "We the People," so it is hardly surprising that college students at my lectures are often astonished to hear that the Constitution never mentions God.

Handed a tabula rasa by a public uneducated in civics, right-wing revisionists are free to ignore not only the strong anticlerical views of so many of the nation's first leaders but also their loathing of all entanglements between religion and government. "Oh! Lord!" Adams complained in 1817 to his old friend and rival Jefferson. "Do you think that a Protestant Popedom is annihilated in America? Do you recollect, or have you ever attended to the ecclesiastical Strifes in Maryland, Pensilvania, New York, and every part of New England? What a mercy it is that these People cannot whip and crop, and pillory and roast, as yet in the U.S.! If they could they would."

If they could they would. Wherever and whenever they could, they did—and that is why the revolutionary generation bequeathed the unique gift of a secular Constitution to future Americans. Here is the real history lesson, straight from the pens of the founders, that ought to be taught—and is too often ignored—in every American public school.

Susan Jacoby is the author of Freethinkers: A History of American Secularism, which was named a notable nonfiction book of the year by the Washington Post and the Los Angeles Times. She is the author of six previous books, including Wild Justice: The Evolution of Revenge, a Pulitzer Prize finalist in 1984, and Half-Jew: A Daughter's Search for her Family's Buried Past. Jacoby is working on a new book exploring the relationship between anti-intellectualism and American politics.

Illustration: John Hersey

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