Justice Joseph Story

Section 1841. The remaining part of the clause declares, that "no religious test shall ever be required, as a "qualification to any office or public trust, under the "United States." This clause is not introduced merely for the purpose of satisfying the scruples of many respectable persons, who feel an invincible repugnance to any religious test, or affirmation. It had a higher object; to cut off for ever every pretense of any alliance between church and state in the national government. The framers of the constitution were fully sensible of the dangers from this source, marked out in the history of other ages and countries; and not wholly unknown to our own. They knew, that bigotry was unceasingly vigilant in its stratagems, to secure to itself an exclusive ascendancy over the human mind; and that intolerance was ever ready to arm itself with all the terrors of the civil power to exterminate those, who doubted its dogmas, or resisted its infallibility. The Catholic and the Protestant had alternately waged the most ferocious and unrelenting warfare on each other; and Protestantism itself, at the very moment, that it was proclaiming the right Of private judgment, prescribed boundaries to that right, beyond which if any one dared to pass, he must seal his rashness with the blood of martyrdom the history of the Parent country, too, could not fail to instruct them in the uses, and the abuses of religious tests. They there found the pains and penalties of non-conformity written in no equivocal language, and enforced with a stern and vindictive jealousy. One hardly knows, how to repress the sentiments of strong indignation, in reading the cool vindication of the laws of England on this Subject, (now, happily, for the most part abolished by recent enactments,) by Mr. Justice Blackstone, a man, in many respects distinguished for habitual moderation, and a deep sense of justice. "The second species," says he "of non-conformists, are those, who offend through a mistaken or perverse zeal. Such were esteemed by our laws, enacted since the time of the reformation, to be papists, and protestant dissenters; both of which were supposed to be equally schismatics in not communicating with the national church; with this difference, that the papists divided from it upon material, though erroneous, reasons; but many of the dissenters, upon matters of indifference, or, in other words, upon no reason at all. Yet certainly our ancestors were mistaken in their plans of compulsion and intolerance. The sin of schism, as such, is by no means the object of temporal coercion and punishment. If, through weakness of intellect, through misdirected piety, through perverseness and acerbity of temper, or, (which is often the case,) through a prospect of secular advantage is herding with a party, men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it; unless their tenets and practice are such, as threaten ruin or disturbance to the state. He is bound, indeed, to protect the established church; and, if this can be better effected, by admitting none but its genuine members to offices of trust and emolument, he is certainly at liberty so to do; the disposal of offices being matter of favour and discretion. But, this point being once secured, all persecution for diversity of opinions, however ridiculous or absurd they may be, is contrary to every principle of sound policy and civil freedom. The names and subordination of the clergy, the posture of devotion, the materials and colour of the minister's garment, the joining in a known, or an unknown form of prayer, and other matters of the same kind, must be left to the option of every man's private judgment."

Section 1842. And again: "As to papists, what has been said of the protestant dissenters would hold equally strong for a general toleration of them t provided their separation was founded only upon difference of opinion in religion, and their principles did not also extend to a subversion of the civil government. If once they could be brought to renounce the supremacy of the pope, they might quietly enjoy their seven sacraments, their purgatory, and auricular confession; their worship of reliques and images; nay even their transubstantiation. But while they acknowledge a foreign power, superior to the sovereignty of the kingdom, they cannot complain, if the laws of that kingdom will not treat them upon the footing of good subjects."

Section 1843. Of the English laws respecting papists, Montesquieu observes, that they are so rigorous, though not professedly of the sanguinary kind, that they do all the hurt, that can possibly be done in cold blood. To this just rebuke, (after citing it, and admitting its truth,) Mr. Justice Blackstone has no better reply to make, than that these laws are seldom exerted to their utmost rigour; and, indeed, if they were, it would be very difficult to excuse them. The meanest apologist of the worst enormities of a Roman emperor could not have shadowed out a defence more servile, or more unworthy of the dignity and spirit of a freeman. With one quotation more from the same authority, exemplifying the nature and objects of the English test laws, this subject may be dismissed. "In order the better to secure the established church against perils from non-conformists of all denominations, infidels, Turks, Jews, heretics, papists, and sectaries, there are, however, two bulwarks erected, called the corporation and test-acts. By the former of which, no person can be legally elected to any office relating to the government of any city or corporation, unless, within a twelve month before, he has received the sacrament of the Lord's supper according to the rights of the church of England; and he is also enjoined to take the oaths of allegiance and supremacy, at the same time, that he takes the oath of office; or, in default of either of these requisites, such election shall be void. The other, called the test-act, directs all officers, civil and military, to take the oaths, and make the declaration against transubstantiation, in any of the king's courts at Westminster, or at the quarter sessions, within six calendar months after their admission ; and also within tile Same time to receive the sacrament of the Lord's supper, according to the usage of the church of England, in some public church immediately after divine service and sermon; and to deliver into court a certificate thereof signed by the minister and church-warden,, and also to Prove the same by two credible witnesses, upon forfeiture of 500l, and disability to hold the said office. And of much the same nature With these is the statute 7 Jac. I. c. 2., which permits no persons to be naturalized, or restored in blood, but such as undergo a like test; which test, having been removed in 1753, in favour of the Jews, was the next session of Parliament restored again with some precipitation." It is easy to foresee, that without some prohibition of religious tests, a successful sect, in our country, might, by once possessing power, pass test-laws, which would secure to themselves a monopoly of all the offices of trust and profit, under the national government.

Section 1863. Let us now enter upon the consideration of the amendments, which, it will be found, principally regards subjects properly belonging to a bill of rights.

Section 1864. The first is, "Congress shall make no law, respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances."

Section 1865. And first, the prohibition of any establishment of religion, and the freedom of religious opinion and worship.

How far any government has a right to interfere in matters touching religion has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government, in matters of religion, have been maintained by many distinguished authors, as well those, who were the warmest advocates of free governments, as those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion will hardly; be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a future state of; rewards and punishments; the cultivation of all, the personal, social, and benevolent virtues;-- these never Can be a matter of indifference in any well ordered community it is, indeed difficult to conceive, how any civilized society can well exist without them. And at all events, it is impossible for; those, who believe in the truth of Christianity, as a divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience.

Section 1866. The real difficulty lies in ascertaining the limits, to which government may rightfully go in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all person not belonging to it, either wholly, or in part, from any participation in the public honors, trusts, emoluments, privilege, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honours, trusts, emoluments, privileges, and immunities.

Section 1867. Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, try the whole course of its laws and institutions, support and sustain, in some form, Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty. Indeed, in a republic, there would seem to be a peculiar propriety in viewing the Christian religion, as the great basis, on which it must rest for its support and permanence, if it be, what it has ever been deemed by its truest friends to be, the religion of liberty. Montesquieu has remarked, that the Christian religion is a stranger to mere despotic power. The mildness so frequently recommended. in the gospel is incompatible with the despotic rage, with which a prince punishes his subjects, and exercises himself in cruelty.

He has gone even further, and affirmed, that the Protestant religion is far more congenial with the spirit of political freedom, than the Catholic. "When," says he, "the Christian religion, two centuries ago, became unhappily divided into Catholic and Protestant, the people of the north embraced the Protestant, and those of the south still adhered to the Catholic. The reason is plain. The people or the north have, and will ever have, a spirit of liberty and independence, which the people of the south have not. And, therefore, a religion, which has no visible head, is more agreeable to the independency of climate, than that, which has one." Without stopping to inquire, whether this remark be well founded, it is certainly true, that the parent country has acted upon it with a severe and vigilant zeal ; and in most of the colonies the same rigid jealousy has been maintained almost down to our own times. Massachusetts, while she has promulgated in her BILL OF RIGHTS the importance and necessity of the public support of religion, and the worship of God, has authorized the legislature to require it only for Protestantism. The language of that bill of rights is remarkable for its pointed affirmation of the duty of government to support Christianity, and the reasons for it. "As," says the third article, "the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ; and as these cannot be generally diffused through the community, but by the institution of the public worship of God, and of public instructions in piety, religion, and morality; therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize, and require, and the legislature shall from time to time authorize and require, the several towns, parishes, &c. &c. to make suitable provision at their own expense for the institution of the public worship of God, and for the support and maintenance of public protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily." Afterwards there follow provisions, prohibiting any superiority of one sect over another, and securing to all citizens the free exercise of religion.

Section 1868. Probably at the time of the adoption of the constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

Section 1869. It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in any assignable shape. The future experience of Christendom, and chiefly of the American states, must settle this problem, as yet new in the history of the world, abundant, as it has been, in experiments in the theory of government.

Section 1870. But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner, which, they believe, their accountability to him requires. It has been truly said, that "religion, or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence," Mr. Locke himself, who did not doubt the right of government to interfere in matters of religion, and especially to encourage Christianity, at the same time has expressed his opinion of the right of private Judgment, and liberty of conscience, in a manner becoming his character, as a sincere friend of civil and religious liberty. "No man, or society of men," says he, "have any authority to impose their opinions or interpretations on any other, the meanest Christian; since, in matters of religion, every man must know, and believe, and give an account for himself." The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority, without a criminal disobedience of tile precepts of natural, as well as of revealed religion.

Section 1871. The real object of the amendment 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 an hierarchy the exclusive patronage of the national government It thus cut off the means of religious persecution, (the vice and pest of former ages,) and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age.' The history of the parent country had afforded the most solemn warnings and melancholy instructions on this head ; and even New England, the land of the persecuted puritans, as well as other colonies, where the Church of England had maintained its superiority, would furnish out a chapter, as full of the darkest bigotry and intolerance, as any, which could be found to disgrace the pages of foreign annals." Apostacy, heresy, and nonconformity had been standard crimes for public appeals, to kindle the flames of persecution, and apologize for the most atrocious triumphs over innocence and virtue.

Section 1872. Mr. Justice Blackstone, after having spoken with a manly freedom of the abuses in the Romish church respecting heresy; and, that Christianity had been deformed by the demon of persecution upon the continent, and that the island of Great Britain had not been entirely free from the scourge, defends the final enactments against nonconformity in England, in the following set phrases, to which, without any material change, might he justly applied his own sarcastic remarks upon the conduct or the Roman ecclesiastics n punishing heresy. "For nonconformity to the worship of the church," (says he,) "there is much more to be pleaded than for the former, (that is, reviling the ordinances of the church,) being a matter of private conscience, to the scruples of which our present laws have shown a very Just, and Christian indulgence. For undoubtedly all persecution and oppression of weak consciences, on the score of religious persuasions, are highly unjustifiable upon every principle of natural reason, civil liberty, or sound religion. But care must be taken not to carry this indulgence into such extremes, as may endanger the national church. There is always a difference to be made between toleration and establishment." Let it be remembered, that at the very moment, when the learned commentator was penning these cold remarks, the laws of England merely tolerated protestant dissenters in their public worship upon certain conditions, at once irritating and degrading; that the test and corporation acts excluded them from public and corporate offices, both of trust and profit; that the learned commentator avows, that the object of the test and corporation acts was to exclude them from office, in common with Turks, Jews, heretics, papists, and other sectaries; that to deny the Trinity, however conscientiously disbelieved, was a public offence, punishable by fine and imprisonment; and that, in the rear of all these disabilities and grievances, came the long list of acts against papists, by which they were reduced to a state of political and religious slavery, and cut off from some of the dearest privileges of mankind.

Section 1873. It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, thus exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the subject. The situation, too, of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, congregationalists; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.

Source of Material:

Commentaries on the Constitution of the United States by Joseph Story VOL III, pp. 705-709, pp. 722-731. De Capo Press Reprints in American Constitutional and Legal History Series, Da Capo Press NY 1970.