The belief and Aim of the Founders of Our Government

So much for the law of the case, and for the point of law in the decision of the United States Circuit Court. We must now turn to the dictum of Judge Hammond upon the principles involved in the arguments of counsel for the petitioner. It will be necessary to enter quite largely into the examination of this, because the positions taken and the propositions set forth by the Judge are so sweeping, and so directly opposed to every principle of American law and government, that it becomes of the first importance to every American citizen to know the position occupied by a United States judge upon the religious rights and liberties of the citizen.DPL 14.1

The Judge first very properly observes that—DPL 14.2

“It was a belief of Mr. Madison and other founders of our Government that they had practically established absolute religious freedom and exemption from persecution for opinion’s sake in matters of religion; but while they made immense strides in that direction, and the subsequent progress in freedom of thought has advanced the liberalism of the conception these founders had, as a matter of fact, they left to the States the most absolute power on the subject, and any of them might, if they chose, establish a creed and a church, and maintain it. The most they did, as they confessed, was to set a good example by the Federal Constitution; and happily that example has been substantially followed in this matter, and by no State more thoroughly than Tennessee.”DPL 14.3

This is all true, and it is well stated. It was the aim of the founders of our national Government to establish absolute religious freedom, and exemption from all persecution on account of religion. It was their purpose to make the separation between religion and the Government complete and total, and so to take away from all, the power to persecute under the Government of the United States. This principle, so far as its practical working was concerned, they were obliged to confine to the national Government, because some of the States at that time had established religions, some even had established churches; and to have attempted at that time to embody in the national Constitution a provision prohibiting any State from applying a religious test as a qualification for office, or from making any law respecting an establishment of religion, would have been only to defeat all hope of establishing a national Government at all. There was already such an extreme jealously of a national power, that it was with the greatest difficulty that it was established as it was; and to have attempted, at the first step, to make it extend to the States in the curtailment of their long-established connection with religion, would have raised such a storm as would have engulfed the whole project of the formation of a national Government.DPL 14.4

For these reasons they were compelled to confine this principle, in its practical working, to the national power. But in so doing they designed to set an example worthy of being followed, and which they hoped would be followed, by all the States of the Union. Nor has their hope been disappointed. For so faithfully has the example been followed that, as is well remarked by Judge Cooley upon this specific question,—DPL 15.1

“A careful examination of the American Constitutions will disclose the fact that nothing is more fully set forth or more plainly expressed than the determination of their authors to preserve and perpetuate religious liberty, and to guard against the slightest approach toward the establishment of an inequality in the civil and political rights of citizens, which shall have for its basis only their differences of religious belief....DPL 15.2

“Those things which are not lawful under any of the American Constitutions may be stated thus:—DPL 15.3

“1. Any law respecting an establishment of religion. The legislators have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects. Whatever establishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle; it is enough that it creates an inequality of right or privilege.DPL 15.4

“2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.DPL 16.1

“3. Compulsory attendance upon religious worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion, is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizens or to society; but those which spring from the relations between him and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws....DPL 16.2

“4. Restraints upon the free exercise of religion according to the dictates of conscience. No external authority is to place itself between the finite being and the Infinite, when the former is seeking to render the homage that is due, and in a mode which commends itself to his conscience and judgment as being suitable for him to render, and acceptable to its object.DPL 16.3

“5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions and bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation.DPL 16.4

“These are the prohibitions which in some form of words are to be found in the American Constitutions, and which secure freedom of conscience and religious worship. No man in religious matters is to be subjected to the censorship of the State or of any public authority.”—Constitutional Limitations, Chap. XIII, par. 1-9. ^{4It is too bad that it is so, but it is so, that in his comments following this statement of principles, he justifies from precedents the violation of the principles. This, however, does not affect the principles. The principles are sound, and remain so, notwithstanding the unsound comments.}DPL 16.5

Thus, although it be true that the founders of the national Government “left to the States the most absolute power on the subject” ^{5From inattention to the Constitution, this fact is very widely misunderstood. It is generally supposed that the First Amendment to the national Constitution guarantees the free exercise of religion in the States. But this is a mistake. The powers of the national Constitution are delegated. And the powers not delegated are reserved. The Tenth Amendment declares that “the powers not delegated to the United States by this Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.” Now the First Amendment is an inhibition upon Congress, but not upon the States. It says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” but it does not say that no State shall do so. Therefore so far as this Amendment goes, this power was “reserved to the States respectively.” As the States have all, by their own Constitutions, repudiated the exercise of any such power, the guaranty has become universal throughout the Union; but it is not made so by any force that is in the First Amendment. The First Amendment to the national Constitution is of no force at all upon any State. Only the last five Amendments are inhibitions upon the States.} of religion and religious establishments, all the States have followed the grand example set by our governmental fathers, and, by the clearest constitutional provisions, have distinctly repudiated all claim of right to use such power in any case whatever.DPL 17.1

But while all this is true of the Constitutions of the States, it is not true of the governmental practice-and especially of the practice of the judicial branch of the State Governments-under those Constitutions. That is to say, the practice of the governmental authorities on this subject has not been according to the principles declared in the Constitutions. In fact, with a few grand exceptions, the practice has been in violation of the Constitutions rather than in conformity therewith. The course of the State of Tennessee in the case now under consideration, and in others, is a fair illustration of the usual procedure in all the States. And in the consideration of the dictum of Judge Hammond, it will be seen that this same baleful practice is followed, and is to be followed if this procedure shall secure such recognition as will establish it as a precedent.DPL 17.2