Divided By God
new book by
Noah Feldman
If the Establishment Clause protected against compulsory support of organized religion and the Free Exercise Clause protected worship, what did the Constitution say about religious symbols and their use in the public realm? Such symbolic questions are, after all, often the focus of our contemporary church-state debates. The framers are invoked on both sides of the debate about religious symbolism. What, for instance, would the framers' Constitution have had to say about the fifty-two-hundred-pound block of granite inscribed with the Ten Commandments, that Judge Roy Moore erected in the rotunda of the Alabama Supreme Court in the summer of 2003?
The answer is that the framers were not especially concerned with public religious symbolism one way or the other. They would certainly not have approved the use of federal public funds to erect churches or support religious teaching, because they would have understood the taxes involved to be obtained through coercion of conscience. But they were supremely untroubled by norms like the opening of legislative sessions with symbolic prayers. The framers would no doubt have thought it odd to erect a monument to the Ten Commandments in a government building, since government had no authority in religious affairs. But the framers would also probably have been perplexed by the legal secularists' vociferous opposition to the monument, so long as its presence did not expend government funds and therefore coerced no one to act in contravention of his own beliefs.
The main reason the framers did not react with horror to public symbols of religion is that they were not secularists in the modern sense. They did not think that the state needed to be protected from the dangers of religious influence, nor were they particularly concerned with keeping religious symbolism out of the public sphere. For that matter, American religion, too, was very different than it is today. Church attendance was low, at least by today's standards. There was no national movement devoted to promoting the role of religion in public life. A monument like Judge Moore's, if anyone had been able to imagine it, would have had an entirely different meaning than it did in 2003, when it was erected in large part as a symbolic rejection of legal secularism. At the same time, there was no great danger that government would give offense to religious minorities when public prayers were offered or God's name invoked as a symbol of the fledgling republic. In the framers' America, almost everybody was a Protestant of some kind, and atheism as a publicly acknowledged stance was essentially unknown. The remaining orthodox Calvinists still adhered to the doctrine of the predestined salvation of only a small elect, while the more liberal Protestants increasingly opened the doors of possible salvation much wider, and deists like Jefferson rejected the very idea of a personal God. But these different ideas swam in a sea of Protestant assumptions, and the framers' generation argued politics in the light of ideals connected to their common Protestant legacy. Rather than insisting anachronistically on "Judeo-Christian values," it would be more accurate to say that the framers assumed a whole set of principles that grew out of Protestant Christianity as interpreted by English liberals such as John Locke.
Where contemporary values evangelicals go wrong historically is in assuming that those Protestant-originated principles required that Christian values infuse all the activities of the state. Rather, the framers' Protestant-inflected worldview included a crucial distinction between the religious realm and the civil. As Lock bluntly put it, "there is absolutely no such thing, under the Gospel, as a Christian Commonwealth." Locke, in this formulation and elsewhere, offered a religiously grounded explanation for why government lacked authority in religious matters. According to Locke and the overwhelming majority of Americans who accepted some version of his views, there was no basis either in religion or in reason for allowing government to exercise coercive power in affairs of religion. The individual's conscience must be left free in order for religious faith to have any meaning at all.
In America, the establishment of religion by the government came to be seen as posing a fundamental danger to the liberty of conscience by threatening dissenters with the possibility of coercion. The constitutional guarantee of nonestablishment sought to protect conscience from coercion by guaranteeing a division between the institutional spheres of organized religion and government. It is therefore not anachronistic to say that the Constitution separated the church, in its institutional sense, from the state, even though the framers' views certainly grew in Protestant soil. The removal of government from the sphere of religion was itself a product of an important strand in Protestant political thought, and the framers were extending the idea of separate spheres of religion and government by rejecting an established church. "Establishment" stood for the institutional merger of church and state; nonestablishment was a distinctively American experiment in the separation of the two most important institutions in society.
This institutional experiment had little to say about religious symbolism. It was concerned with avoiding actual coercion and with disentangling church and state, which had been historically intertwined in the Christian West. So secularists do not really get the better of the argument about symbolism when they point out that the Constitution does not mention God or Jesus. The reason that the Constitution does not mention Christianity is that the framers were creating government institutions that had no authority to pronounce on matters of religion, not because the framers themselves were secularists.
Religious oppression and the rise of Toleration
The lustre of our country: America's role in freedom of religion
Desiderius Erasmus - if only both sides had hearkened to this man's gentle wisdom
