Religion and our Founding—Buttressing the 1st Amendment with the 9th and 14th:

(Originally posted on Freespace)

In discussing Religion and the Constitution on this site, I have mainly focused on the Establishment Clause. Before my week blogging here is over, let me express some thoughts on the Free Exercise Clause as well. (Note—In order to interpret the Free Exercise Clause, I must also include the Establishment Clause as part of the analysis—so mind you, I am not confusing these two as some do. As I have thought through these issues, I conclude that the clauses’ meanings are inseparable—that the proper interpretation of one invariably affects the meaning of the other. This is because both ultimately are derived from the natural right of liberty of conscience. And both clauses needed to be included in our Constitution in order to secure this right.)

Some social conservatives have claimed that the Free Exercise Clause was intended to grant religious liberty to Christians only. And that the two religion clauses ought to be put together in the following manner: The Establishment Clause prohibited the federal government from establishing one dominant Christian sect, or passing laws that gave preference to one sect over another. And the Free Exercise Clause guaranteed that all Christian sects would be able to practice their religion on an equal footing. Further, if we were to look at how some states treated Catholics under their laws, we might rightly conclude that our Founders intended that only Protestants have these precious rights.

At least one very important present day public figure has more or less endorsed this historical view: Chief Justice Rehnquist. In his dissent in Wallace v. Jaffree, 472 U.S. 38 (1985), Rehnquist cites, among others, former Justice Story to support this proposition: "The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.” pp. 104-105.

As Story’s comments indicate, there certainly were some back then that desired the religion clauses to operate exactly in this manner. However, two very important Founders—Madison and Jefferson—clearly desired differently. We can see their views on the proper role of government and religion in Virginia’s Bill for Establishing Religious Freedom, which Jefferson penned and Madison fought to pass.

Although the language of the Bill does claim that our right to religious freedom ultimately was given by “Almighty God,” two words were purposefully left out of that bill: “Jesus Christ.” And here is Jefferson explaining why: “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word ‘Jesus Christ,’ so that it should read, ‘a departure from the plan of Jesus Christ, the holy author of our religion;’ the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination.”

The Everson case essentially (and properly in my opinion) imputes the meaning of that Virginia Statute into the First Amendment. Rehnquist argues in his aforementioned dissent that Madison’s and Jefferson’s vision expressed in that Statute was not dominant among the Framers. Further, Madison, as the architect of the Bill of Rights ought to be viewed differently than the one who zealously fought to secure Jefferson’s Bill because he “was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution.” Id. at 98.

Madison did indeed attempt to put broader, clearer language into the First Amendment— but that was voted down. Moreover, he wanted an Amendment that would essentially make Virginia’s view binding on state governments as well—but that too was voted down. Eventually the Framers came to settle on the very brief language of the First Amendment. Were these legislative compromises? Perhaps. But if they were, let us not forget what was being compromised: The Virginia Statute states that it secures the “natural rights of mankind,” and to grant less protection or to allow a greater intermingling of Church & State, “will be an infringement of natural right.” Therefore, if the First Amendment represented a “legislative compromise,” to Madison, it essentially represented a failure to fully secure rights that all governments are obligated to secure. Protestants had their rights secured by that Amendment, but Catholics, Jews, Gentiles, Muslims, Hindus, and others did not.


(Rehnquist’s view also perfectly illustrates what I have written about regarding social conservatives—Bork, Berns, et al.—who desire to use Constitutional formalism not to fully secure natural rights, but often to act as a check on them.)

But non-Christians are, by nature, entitled to the equal rights of conscience. Would it not be reasonable then, when possible, to construe the Constitution in a way that fully recognizes equal natural rights?

Perhaps the solution to this Constitutional dilemma can be found in the 9th and 14th Amendments. As Randy Barnett has argued, these two Amendments serve as textual grounds for incorporating natural rights and demanding that federal and state governments fully recognize them. Madison was initially against the Bill of Rights altogether because he feared an imperfect enumeration would give government a green light to only narrowly recognize what is written on the list, and free reign to violate all the rest. So Madison added the 9th as a failsafe. The First Amendment as construed by Story and Rehnquist certainly represents an imperfect enumeration of the equal rights of liberty of conscience. Perhaps the 9th Amendment—and, when dealing with the states, the Privileges and Immunities of the 14th—can pick up the slack that a too narrow reading of the First Amendment would leave. In other words, if the equal rights of conscience for non-Christians were not fully secured by the Framers’ intention regarding the First, they are nonetheless fully secured as “natural rights of mankind,” under the 9th and the 14th.