The Meaning of the First Amendment

Guelzo v. Story

In case you were wondering, the Guelzo article from Desiring God is still living rent free in my head. That’s what scandal does to a man.

At the end of his piece, Guelzo refers to Justice Joseph Story’s opinion in Vidal v. Girard’s Executors, 43 U.S. 127 (1844). Famously, contra Thomas Jefferson, Story insisted that Christianity was intricate to the common law, a conventional persuasion regurgitated long after Story said it (and asserted well before his time). In Guelzo’s words, “By defining virtue as Christianity, Christianity could be treated as a necessary part of the republic’s life, and allowed the public role that Jefferson and Madison had struggled to prevent.” This was an alleged “co-optation of virtue,” and republicanism was intermingled with republicanism, or something like that. It was the momentary defeat of the Jeffersonian-Madisonian project marked by the first amendment which, per Guelzo, “makes it clear that he intended it as a significant disenfranchisement of Christianity,” and that Jefferson “act[ed] on the same principles.”

Now, I struggle to track Guelzo’s choppy narrative, but his conclusion is that America was never politically but only culturally Christian. This rather typical claim (even from conservatives these days) depends on the bifurcation of the cultural and political—the whole downstream thesis—and those who employ it rarely define either term, much less as eighteenth-century people might have.

More importantly, I am not sure how Guelzo could examine the state constitutions, their subsequent legislation, and common law precedent generally and conclude that, that apparatus represented mere culture (i.e., without formal codification beyond social custom). (Perhaps, he can conclude otherwise because insofar as his article demonstrates his source material, none of those data points were consulted.)

Guelzo does, however, cite Story’s writings a bit beyond Vidal, but only Story’s thoughts on legal study. Again, we can do a bit better, or rather, acquire a fuller picture of Story’s thoughts on political Christianity vis a vis the Constitution—and surely second-generation comments on first generation documents are better than twenty-first-century thoughts on the same, albeit not definitive, to be sure. Now, maybe Story was running a counter operation against the Virginian persuasion, but his Commentaries on the Constitution get us beyond his general, common law assertions in Vidal and into his understanding of the American regime’s structure and posture. And let’s be clear, the point of Guelzo’s article is to combat “Christian Nationalism” which is equated in this context with religious establishment or at least a sort of “un-American” coziness between church and state. These are actually two separate inquiries being conflated, but we will focus here on what Guelzo and others actually fear. This comes down, in some ways, to the meaning and reach of the first amendment, not only its legal function but the extent to which it codified the sentiments of the new republic.

If you want an engaging introduction to Story’s life, look no further than Gerald Dunne’s article, “The American Blackstone.” I have a strangely fond memory of reading this article some years ago in line at a rental car establishment at the Philadelphia airport in the midst of some kind administrative gridlock that extended my stay well beyond the time needed to read Story’s brief biography—his story was the only enjoyable part of that story.

In any case, Story’s Commentaries on the Constitution—published the same year (1833) his beloved Massachusetts official disestablished—is essential reading. What I want to draw your attention to is his discussion of the First Amendment.

Let’s take it from the top. Story, from his Commentaries:

“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 all, in principle, incontrovertible to Story. The real question, the “real difficulty,” “lies in ascertaining the limits” of the “fostering and encouraging” of religion. Three possible models are provided. (Pay attention to the limited range of options entertained by Story.)

First, a society could adopt a model where the government “affords aid to a particular religion” whilst still allowing people to adhere to another unaided religion. To illustrate, “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.” In other words, the state could 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.”

The second model is “ecclesiastical establishment” wherein the “doctrines of a particular sect” is propagated even as, again, dissenters are permitted. This scenario would be like if the state established “the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with a like freedom [to dissenters].”

Third, is an exclusive establishment. Under this model, dissenters are precluded from “public honours, trusts, emoluments, privileges, and immunities of the state.” The dissenters are not only at a disadvantage but actively disfavored. That is, the state may “establish the doctrines of a particular sect [either Catholic or Protestant sect, as per the second option], as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it.” The second and third models differ only as to extent and fervor, we might say.

That’s it. That’s the spectrum. Three options define the worldview of Story, a generation removed from the “founders.”

Parsing these three models, Story begins thus,

“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, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines.”

Is this contrary to the conception of republican virtue, as Guelzo says? Decidedly not. This because they were not synonymous with “secular optimism” or Free Masonry, or whatever else Guelzo suggests. The good Justice:

“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.”

Indeed, the history of “human affairs” within Christendom did not offer a model for good government “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.” (Our present regime is certainly making a run at proving Story wrong, but I doubt their chances of success.)

More forcefully:

“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.”

And so,

“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.”

This because

“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.”

(Notice that Story is only listing Protestant denominations—here we must, to my regret, give Francis Bremer his due for his thesis that the Quakers are really just a radical offshoot of Puritanism.) It can very easily be proffered, then, that the first amendment was intended to foster a pan-Protestant ecumenism whilst not disrupting the free exercise of the established denominations at the state level. Indeed, this is what Story is saying (and what a fair reading of the two clauses of the amendment itself confirm).

Surprisingly, for all his talk about the republican virtue of Madison’s first amendment, Guelzo no mention of the federalist structure of said republic in his article. This because the moral and legal centrality of the states at the time must be enveloped by the national for the sake of contemporary narratives (and goals) today. That’s why the state constitutions and related precedents get no attention in articles like Guelzo’s.

Anyway, here’s a recognition of that structure from Story (the bane of the secular “republican virtue,” apparently):

“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.”

The elimination of sectarian conflict at the national level was the central goal and intended effect of the first amendment. Full stop. No one would’ve signed on had it attempted to do more. Accordingly, if you want to really understand the religious scene vis a vis the political and cultural life of the early Americans, then you have to look deeply at state-level activity. Otherwise, the same tired stuff keeps getting (hysterically) regurgitated like it’s both sensible and profound.