Experimenting with Our Liberties

by Robert S. Alley

In his second week as President, George W. Bush wasted no time fulfilling his campaign promise to direct federal dollars toward the charitable work of what he described as “faith-based” organizations, otherwise known as religious groups. “We will not fund the religious activities of any one group,” President Bush promised, “but when people of faith provide services, we will not discriminate against them.” But is Bush’s plan allowable under the first amendment to the U.S. Constitution? Robert S. Alley, Professor of Religion and Humanities, Emeritus, at the University of Richmond, argues that it is not. Alley uses the writings of the constitution’s two most prominent framers, James Madison and Thomas Jefferson, as well as more contemporary views on the separation of church and state, to make the historical and constitutional case against Bush’s plan. (Posted March 2001)

"IT IS PROPER TO TAKE ALARM AT THE FIRST EXPERIMENT ON OUR LIBERTIES"
James Madison, 1785

The current emerging national debate over “faith-based charities” is a direct attack upon the religion clauses of the First Amendment as interpreted by James Madison. Proponents of President Bush’s plan appear to consider “church-state” issues as essentially mechanical. In a word, the advocacy of massive government aid to religious charities appears to be based on the idea that those religion clauses create only technical difficulties that are easily fixed by protestations of good intentions. In contrast, those of us conversant with the legislative and judicial history of the Amendment consider President Bush’s initiative as flawed and as a dangerous flirtation with a national, state-funded, multiple religious establishment. In a peculiar way, recent remarks by Pat Robertson confirm that fear. In a February 20 interview, he worried “about government funding religious groups that are outside the mainstream.” (Richmond Times Dispatch, p. B-2) In his mind, the Bush plan would result in the government establishing religious dogma, with which he finds no fault. His only fear is that some “incorrect” dogma might crash the “mainstream” party.

President Bush gave the electorate fair warning concerning his ignorance of the history of the First Amendment when, in a campaign speech in Indianapolis last year, he stated: “In every instance when my administration sees a responsibility to help people, we will look first to faith-based institutions, to charities and to community groups that have shown their ability to save and change lives.” Critics quickly noted that this line of action would lead to a merger of religious institutions and the state in a giant bureaucracy to dispense religion. Beyond that, the presumption by the President that he can identify the religious institutions “that have shown their ability to save and change lives” is, itself, an arrogant religious test to qualify for federal funding. In all this the Bush position reduces the first sixteen words of the First Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” to a technical nuisance that can, and will, be circumvented. In this view the President has ample company in his Attorney General, John Ashcroft.

Before plunging headlong into this thicket, Congress should reexamine the First Amendment, which it first approved in the year 1789. Two names, probably the usual suspects for the President and his advisors, come to mind: Thomas Jefferson and James Madison. A few months before his death, in his final letter to Madison, Jefferson closed with these words: “To myself you have been a pillar of support through life. Take care of me when dead, and be assured that I shall leave with you my last affections.” (February 17, 1826) Interpreting these words, Henry Steele Commager commented that the founders “relied on reason as well as on faith,” and they embraced mankind rather than the individual. He understood that Jefferson and Madison were mindful of the claims of posterity, and reminds his readers that Jefferson did not reject religion, but took from it what was “universally valid. Its testaments, moral, philosophical, or political, celebrated virtue, happiness, equality in the sight of God and the law, justice, and life here rather than hereafter.” Commager closed with this observation about the founders‘ generation: “It believed in one form of immortality-the immortality of fame-which was the spur. . . ’the cri de coeur of their generation.'” (Commager, Take Care of Me when I am Dead, James Madison on Religious Liberty Robert Alley, ed. 1985.)

Unfortunately, the President is not alone in ignoring history. The Library of Congress, in its beautifully mounted exhibition "Religion and the Founding of the American Republic“ (1998) made editorial changes in the documents they hold in trust which totally distorted Jeffersons serious treatment of religion. In an April 21, 1803, letter to friend Benjamin Rush, Jefferson wrote: ”I am a Christian, in the only sense [Jesus] wished any one to be; sincerely attached to his doctrines, in preference to all others, ascribing to himself every human excellence; & believing he never claimed any other.“ In its exhibition the Library displayed a portion of this letter alongside commentary which butchered the above sentence to read that Jefferson was a ”Christian, in the only sense in which (Jesus) wished anyone to be."

The effort by public officials to distort the First Amendment’s religion clause reached a distressing low point when Chief Justice Rehnquist, in his 1985 dissent in the Wallace v. Jaffree decision, wrote that “The ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” Rehnquist argued that Jefferson was not a reliable commentator on the First Amendment’s intent because he was in Paris in 1789, but affirmed that “James Madison was undoubtedly the most important architect” of the Bill of Rights. Madison, however, wrote two letters, in 1819 and 1822, in which he employed the same separation metaphor to support a conclusion exactly opposite to Rehnquist’s. In the first letter Madison wrote to Robert Walsh “the number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” In the second letter, addressed to Edward Livingston, Madison argued, “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt will both exist in greater purity, the less they are mixed together.”

The First Amendment was fashioned with serious intent. It was not, in Madison’s mind, a simple rejection of an established national church, as he demonstrated in his remarks regarding the application of the religion clauses to the states. From Congressional minutes we learn that Congressman Tucker moved to strike from the language of the Amendment before the body, “No state shall infringe the equal rights of conscience . . .” Responding in support of those words was Madison who, as summarized in the Congressional Record, “Conceived this to be the most valuable amendment on the whole list; if there was any reason to restrain the government of the United States from infringing upon those essential rights, it was equally necessary that they should be secured against the state governments; he thought that if they provided against the one, it was as necessary to provide against the other, and was satisfied that it would be equally grateful to the people.” (Congressional Record, August 17, 1789)

In order to understand why Madison was so completely committed to “separation” it is necessary to examine the historical record. In January 1774, he aimed a barrage of criticism on the persecution of Baptists in a county adjoining his own, noting in a letter to a friend, “That diabolical Hell conceived principle of persecution rages among some and to their eternal Infamy the Clergy can furnish their quota of Imps for such business. . . So I [leave you] to pity me and pray for Liberty of Conscience [to revive among us.]” Two years later Madison was elected to the Virginia Convention and placed on a committee to devise a declaration of rights for the new State. As it was composed by George Mason, the 16th article read in part “. . . all men should enjoy the fullest toleration in the exercise of religion . . . .” Madison objected, arguing, as Thomas Paine did, that toleration negates genuine freedom of conscience. Madison successfully amended the language to read “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

Madison’s principled position rested upon both prongs of the First Amendment. And therein lies the dilemma in the year 2001. The Bush plan for charitable institutions would make them a heavily financed partner in government. However, Bush tells us that the Nation of Islam would not qualify because they preach hate. Which “theologies” would qualify in the Bush mind? He believes religion changes people’s lives. Here is a field fallow for multiple faith groups seeking to qualify under the Bush theology. It is an establishment of religion similar to the proposal by Patrick Henry in the 1784 Virginia legislature that would have subsidized Protestant churches to teach their faith. To that proposal Mr. Madison had this response:

“We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance' (Madison, Memorial and Remonstrance, Section 1). He continued, ”Who does not see that the same authority which can establish Christianity in exclusion of all other Religions, may establish with the same ease any particular sect of Christians in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever."

The Bush plan, with its pious pronouncement about “faith based” institutions, is a semantic obfuscation, ignoring the simple fact that as President he can neither finance religious organizations, nor can he, constitutionally, discriminate in favor of those institutions that meet his criteria. Further, he has no authority to dispense billions of tax dollars to groups that discriminate on the basis of religious dogma, race, or gender. The Bush list of faith-based groups would have to include every philosophical position from extreme Fundamentalism to Secular Humanism to Nihilism to the Church of Babalu.

This is not the first experiment upon our liberties manifest by pious politicians, but it surely qualifies as the most expansive. The evidence at hand is ample to cause citizens to respond to the Madison imperative and take alarm and, having done so, take action.

Source: Robert S. Alley, Professor of Religion and Humanities, Emeritus, at the University of Richmond, has written extensively on the relationship between religion and government, including his recent books Without a Prayer: Religious Expression in Public Schools (1996) and The Constitution and Religion : Leading Supreme Court Cases on Church and State (1999).