Reasons and Arguments in the Constitution
by Mark A. Noll
Dr. Noll is professor of history at Wheaton College, Wheaton, Illinois. This article appeared in the Christian Century, May 20-27, 1987, p. 499. Copyright by the Christian Century Foundation and used by permission. Current articles and subscription information can be found atwww.christiancentury.org. This material was prepared for Religion Online by Ted & Winnie Brock.
Book Review: The Founders’ Constitution edited by Philip B. Kurkland and Ralph Lerner (University of Chicago Press), $300. 3,250 pp.
The bicentennial celebration of the United States Constitution has naturally produced a flurry of books on the subject. Among the reissues of old standards and a largish crop of filio-pietistic potboilers are a number of works of enduring substance. The past two years have seen the appearance of an informative Encyclopedia of the American Constitution (4 vols., edited by Leonard W. Levy [Macmillan]) , several outstanding studies on its intellectual background (including Forrest McDonald’s Novus Ordo Seculorum: The Intellectual Origins of the Constitution [University Press of Kansas] and Morton White’s Philosophy, The Federalist, and the Constitution [Oxford University Press], at least one pathbreaking effort to trace the document’s role through the years (Michael Kammen’s A Machine That Would Go of Itself The Constitution in American Culture [Knopf]) and a gaggle of good books on its religious themes (see Martin Marty’s review in The Century ["James Madison Revisited," April 9. 1986])
In this season of good books, however, the most significant is surely The Founders’ Constitution a five-volume work edited by Philip B. Kurland and Ralph Lerner, widely recognized experts in constitutional law and constitutional politics respectively, who teach at the University of Chicago. The Founders’ Constitution (University of Chicago Press, $250 until June 30; $300 thereafter) is not the last word on that venerable document, but the comprehensiveness and compelling organization of its 3,250 pages and nearly 40 million words make it, beyond cavil, the place to begin discussions. Even at its hefty price, it is a bargain.
The Founders’ Constitution is, in the editors’ words, "an anthology of reasons and of the political arguments that thoughtful men and women drew from, and used to support those reasons" (I: xi) The "reasons" and "arguments" are those of the founding generation and of the works that the’ founders read. The editors have organized "reasons" and "arguments" according to the structure of the Constitution itself. Volume I first reproduces nine "Fundamental Documents" marking the stages of constitutional development from the beginnings of independence (i.e., the Continental Congress’s "Declaration and Resolves" of October 1774) through the struggle for nationhood (e.g., the Virginia Declaration of Rights of June 1776, the Dec1aration of Independence and the Articles of Confederation of 1781) to the Constitution itself. The remainder of Volume I gathers documents relating to general principles of constitutionalism, organized according to the phrases of the Preamble. Volumes II-V follow the same pattern, with historical documents arranged so as to illuminate each clause of the Constitution and its first 12 amendments.
Most of the documents originated during the years between Lexington and Concord (1775) and the passage of the Bill of Rights (1791) , a period during which patriots established not only two different national governments but also the governments of the 13 states. A healthy number of selections are drawn from earlier sources (John Calvin, Roger Williams and William Penn, for instance, along with more obviously political influences) The editors also include many documents from the period after the Constitution’s passage to the mid 1830s, when the last of the major founding fathers died (John Marshall in 1835, James Madison in 1836) By so doing they show how the new nation’s courts, its congresses and the veterans of the Convention interpreted the Constitution over its first half-century. A splendid series of indexes (included with each volume) makes it easier to get at the material.
A sense of the volume’s organization can be gleaned from Volume I, where the editors expound three themes under the heading "We the People of the United States": ‘Popular Basis of Political Authority," "Right of Revolution" and "Republican Government." The latter includes 34 documents; first, on the theme of republicanism, are excerpts from Locke’s Second Treatise on Government. Montesquieu’s The Spirit of Laws , David Hume’ s Of Commerce and Tom Paine’s Common Sense. Following in chronological sequence are selections from the published and private writings of John Adams, Jefferson, Hamilton, Madison, Gouverneur Morris and other founders, and selections from official proceedings of state and national governments.
This approach succeeds admirably in bringing to life the distant words of the Constitution. A reader who wishes to know, for instance, why Article 1, section 9, clause 1 prohibited Congress from making any alteration until 1808 in "the Migration or Importation of such Persons as any of the States now existing shall think proper to admit" can turn to Volume III and find 28 contemporary documents on slavery and the slave trade. These include minutes from the Constitutional Convention’s debates on the clause, records of discussions in the state ratifying conventions bearing on the continuation of slavery, excerpts from public tracts on the subject and several selections from the private correspondence of the Constitution’s authors. Among these, an exchange between two aging figures, John Jay of New York and Elias Boudinot of New Jersey, is especially poignant. Both men played prominent roles in securing the Constitution’s passage, and in addition they shared an active Christian faith that led them to promote a wide variety of mission and reform activities. In 1819 Boudinot sent Jay a brochure describing the work of a New Jersey antislave society. Jay responded by ruminating on this clause in the Constitution and confessing sadly that "the word slaves was avoided, probably on account of the existing toleration of slavery, and of its discordancy with the principles of the Revolution; and from a consciousness of its being repugnant to. . . the Declaration of Independence" (111:298) The number of such revealing glimpses into the thinking of the founders is almost without number. A similar treasure lies in store for those more interested in judicial cases or published arguments than in personal correspondence.
On this question we also hear Ben Franklin: ‘When a Religion is good, I conceive that it will support itself; and when it cannot support itself. . so that its Professors are oblig’d to call for the help of the Civil Power, it is a sign, I apprehend, of its being a bad one" (IV:634) But we also hear of Luther Martin, Maryland’s first lawyer and a leading antifederalist. who saw no problems with a general religious test. He reported sarcastically that "there’ were some members [at the Constitutional Convention] so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism" (IV:642) This chapter also includes excerpts from state constitutions that imposed religious tests on government officers (Delaware, for example. required belief in the Trinity and in the inspiration of the Christian Bible) and several statements from leaders who agreed. with Connecticut’s Oliver Ellsworth (by chance a member of Luther Martin’s 1766 graduating class from Princeton College) that
if we mean to have those appointed to public offices, who are sincere friends to religion, we, the people who appoint them, must take care to choose such characters; and not rely upon such cobweb barriers as test-laws are" (IV:640)
With such documentary riches, the extraordinary historical value of The Founders’ Constitution is beyond question. But we must also ask: Is it relevant? Setting forth so painstakingly the context of the Constitution’s words, does it guide us in using that venerable instrument of government today? Would it, for example. be useful for adjudicating the recent dispute between Attorney General Edwin Meese and Justice William Brennan over whether the court is following the founders’ "intention"?
The editors clearly hope so, but they express that hope with a sober realism: "To the extent that the Constitution still matters -- as a framework, as a statement of broad purposes, as a point of recurring reference, as a legitimation of further developments, as a restraint on the overbearing and the righteous -- to that extent it is worthwhile to try to enter into that world of discourse" (I:xii) As always, however, where the historical scholarship is very good, the contemporary application must be very cautious. No chapter in The Founders’ Constitution shows the need for such caution more clearly than its wonderful section on the religion phrases of the First Amendment ("Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof") Like several other chapters (including those on Art. I, sec. 2, clause 3 regarding apportionment, on Art. 3, Sec. 2, clause 1 concerning the powers of the judiciary, and on the Fifth and Sixth Amendments concerning criminal process) , the treatment of this clause amounts to a substantial monograph. The 69 documents and the references to 99 other pertinent sources put us as close to this ‘text" and its "original intent" as all but the most diligent scholars are ever going to get on their own.
On one level, the "meaning" of this clause is quite clear. One after another the state constitutions had declared that, as North Carolina’s put it, "all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences" (V :71) The state constitutions indicated that the right of "free exercise" was meant to be absolute, at least to the point of not "disturb[ing] the public peace or obstruct[ing] others in their religious worship" (Massachusetts, 1780, V:77) Equally straightforward was the opposition to "an establishment of religion."
During the debate in the first Congress of August 1789 that led to the First Amendment, the fear was expressed that this amendment might be used "to abolish religion altogether." Madison hastened to silence this objection, saying that he "apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience" (V:93) "No establishment" meant that there would never be a Church of America as there had been a Church of England, and that the United States government would never coerce any of its citizens to support any church in the land.
But exactly what did the prohibition of an established church and a guarantee of the free exercise of religion "mean" to the founders themselves? At this point, The Founders’ Constitution is no less helpful, though it shows that this is not a simple question. What Jefferson thought the First Amendment meant is well known. As he put it to the Danbury Baptist Association in 1802, there was to be "a wail of separation between Church and State" (V:96). He also felt that debate over the famous Virginia Statute for Religious Freedom in 1785 formed the essential background to the First Amendment, and that the Virginia Statute was consciously written to guarantee full participation in public life on equal terms by "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and Infidel of every denomination" (V:85)
Other founders interpreted the words differently. In 1812 Joseph Story became the youngest judge ever to be appointed to the Supreme Court, and over the course of his lengthy tenure (1812-1845) he was Chief Justice John Marshall’s right-hand man in defining the role of the court itself, and its jurisdiction over state an4 national laws.. While serving as a justice, Story transformed the Harvard Law School into the nation’s premier school for lawyers and also wrote the most influential commentaries on the nation’s laws to appear before the Civil War.
Story’s 1833 commentary on the First Amendment showed how he read the founders’ intent. Hebegan by asserting that "the promulgation of the great doctrines of religion . . . . [can] never be a matter of indifference to any well ordered community," "A republic" in particular required "the Christian religion, as the great basis, on which it must rest for, its support and permanence." The First Amendment therefore allowed "Christianity . . . to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship." Moreover, "the whole power over the subject of religion is left exclusively to the state governments," but to the end that "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" (V:108-l10)
James Madison, the individual closest to the document, offered an interpretation more like Jefferson’s. On the basis of the First Amendment, as well as the general principles of the Constitution, he opposed public payment for chaplains in Congress and the military, spoke out against national proclamations of days of prayer (though as president he did "recommend" them) and while president vetoed congressional efforts to incorporate churches in the District of Columbia (fullest statement, V: 103-105) At the same time, Madison frequently opined that it was appropriate for private citizens to support chaplains and various kinds of semiorganized public religion through voluntary contributions (V: 104,105)
Jefferson, Story and Madison were all "founders" -- Madison through direct participation at the Convention, Jefferson and Story through their influential application of the Constitution in its early years. Whose intention defines the real meaning of the First Amendment? The Founders’ Constitution does not leave us totally in the dark on such issues. None of the founders, for instance, interpreted the First Amendment as prohibiting religiously grounded arguments for general public policies. Nor did they seem to worry about incidental benefits accruing to religious institutions from government measures designed for the benefit of all citizens. On the other hand, none felt it was an easy matter for the government to support "religion" in general without edging toward the legal establishment of something like a "church." How such general interpretations apply to situations unknown to the founders (like mass public education or the contention that secular ideologies may function like religions) remains unclear. It is among the many great virtues of this work that The Founders’ Constitution both provides the historical resources for debating such issues and illustrates the pressing need for ongoing political negotiation to resolve them.
More than a few pundits have recently bemoaned the absence of breakthroughs or excitement in the observations of the Constitution’s bicentennial. The Founders’ Constitution is capable of shutting those mouths by itself. Those who take the time to peruse it carefully will find two things far more significant than transitory euphoria: they will understand why the constitutional period was the most compelling episode of political reasoning in our history; and they will realize how clearly a discussion of "first principles" is necessary for rescuing American politics from its parlous state today.