You’re right. Combining the freedoms of speech and press with religious freedom doesn’t readily fit today’s social or emotional mindset. And even more unexpected is the place religion holds in the 1st Amendment: first place! And then on top of that, this priority of religion might not be a casual matter. The Magna Carta also addresses religion with its first clause. But like the Constitution, it’s also the last such clause. In both documents, such positioning was the accommodation of a potent extra-political or once-upon-a-time state power. In other words, the grace of priority was granted only to be followed by political disregard.
And you’re also right — at least verbally — that the founders were always logical, and that they always had a reason for what they did. Of course, those two phrases aren’t necessarily consistent or even compatible. Compromise or expediency might be an excellent reason for the adoption of a policy. Meanwhile that policy might contradict the existing social order or its boundary words and bonding phrases. But a power contradiction isn’t necessarily bad. True, in linear or Euclidean logic even one contradiction can terminate an entire system. But there’s more than one kind of logic. And contradiction in politics isn’t terminal — though reasonable citizens continually complain about that apparent logical lapse. For details, see my Reality 101.
Let’s notice here two kinds of contradiction that are non-Euclidean in their consistency.
One non-Euclidean logic is organic logic. It can be seen at work in evolutionary results. According to physiologists, humans have back aches because they stood up before their backs were complete. But if we’d waited for lumbar perfection, we’d still be walking on our knuckles. The same thing happened with the Constitution. If the Philadelphia Convention had waited for the problem of judicial review to be solved, Philadelphia would now be a provincial capital of Canada. Instead, we Americans have court aches because Marshall delegated judicial review to the Supreme Court. Marbury was Marshall’s mini-Convention convened in 1803 to finish the one loose end left over from the summer of ’87. And Chief Justice Stare Decisis has long confirmed Marshall’s tidy Marbury maneuver.
A second non-Euclidean logic is artistic logic. Paintings that are completely finished, completely coherent and completely consistent are completely — boring. In other words, they’re very pretty and never profound. Whether through instinct, experience, or training, great painters leave their finished canvasses somehow incomplete or inconsistent. An obvious exception to this are the lifeless geometrical paintings of the early Renaissance. Meanwhile, this normal Euclidean failure of incompleteness successfully provides the art work with work to do. That is, it provides the viewer with problems to solve and dramas to resolve. The result is a relationship with the work. Art love is an affair between the artist and the aficionado. The Founders likewise left us lots of work to do with their evocative Constitution. Indeed, we’re still writing the Constitution with case law just like we’re still painting Rembrandts with our gazes. Familiarity doesn’t exhaust these or any such works. Not only do different people complete them differently, but every individual finishes them differently as he or she changes through life. And notice that the great Rembrandts aren’t unfinished and imperfect because Rembrandt was lazy and spent, but because he was brilliant and impassioned. The same is true of the Constitution. The creators of great things don’t stop when their work is done. They stop before that. They stop when their work is independently alive. And then they leave it be to live.
Now let’s do some affectionate work on the rights of the 1st Amendment.
Every one of the first rights has both a positive and a negative aspect.
The positive aspect of each right is obvious because it’s explicit. Americans demand for themselves and constitutionally possess the power to worship as they please, to speak as they please, to write as they please, to peaceably assemble as they please, and to petition the government as they please.
In your 1st Amendment list of rights you include a right of protest. Old timers of 1968 — hey, guys, tempus fugit! — should conscientiously heed that word, “peaceably.” And so should their political replicants roaming around Berkeley and the rest of America. The 1st Amendment doesn’t include the freedom to smash windows and loot stores as non-verbal forms of speech. Thus the right to protest was prudently not included in the Bill of Rights. Guys like Shays never understand the polite restraint built into republican disagreement. They cannot imagine with passion the self-restraint provided by a citizen’s strong internal constitution. Meanwhile, a combination of speech, assembly, and redress is fully sufficient for any civil citizen’s political needs. Citizens literate in liberty don’t want a right to urban barbarity or celebratory incendiarism to express the obscenity of their inner unfitness for civilization.
In contrast to these visible positive traits, the negative traits of the 1st Amendment are invisible. But they’re conveniently the same for every right. Each right is meant to discourage the tyranny of central government. Central governments keep their dominion in place by means of fear: fear to speak against the government, fear to publish against the government, fear to assemble against the government, fear to petition against the government. And then there’s the first fear: fear to believe against the government.
Notice that the tyrannical operators of these central governments are typically pictured by Americans as nasty strongmen: Hitlers or Stalins. But recollect that Socrates was executed for deviations against the Athenian state religion. And the tyrant that executed Socrates was democracy.
With personal peril republicans forget that tyranny isn’t a special type of central government, but a power set of social relations. Tyranny appears everywhere — in homes, in clubs, in companies, in governments, and in the best souls. Plato could say something about that last point all too well autobiographically.
And now also notice in the 1st Amendment that there’s an explicit difference between religion and the other first rights. The other rights all stand by themselves. But the freedom of religion is preceded by the anti-establishment clause.
That is, the 1st Amendment doesn’t extra-legislate against anything — except religion. Thus America could have an official federal newspaper — “The National Truth.” Or it could have a federal network like “Nanny’s Prophylactic Radio.” But the 1st Amendment does mandate that there shall be no national religion. And the unequivocal rejection of any, each, and every national religion — the unequivocal illegality of all political religion —isn’t only the first right in the Bill of Rights. It’s the first right in the entire Constitution.
That is significant.
The medieval Magna Carta secured the political powers of England’s sovereign church from infringement by the crown. The modern Bill of Rights protects American national sovereignty from all religion whatsoever. And the sovereign states of the United States later copied that federal innovation with voluntary incorporation.
This Constitutional elimination of national religion is a typical American constraint on national government. It’s an anti-tyranny measure meant to prevent the national government from ever evolving into a central government. The reason is simple. A republic has no center. And if it ever acquires one — religious, political, or otherwise — then it’s no longer a republic. See my Republic, especially Ch. 12. Yet, at the same time, the Founders wanted a strong government — or at least a government significantly stronger than the one provided for by the weak Articles of Confederation.
Thus the Founders’ concern with religion wasn’t with the strength of religion, but the content of it.
The Founders didn’t want any religion to have a direct possession of political power. They didn’t want a supernatural sovereignty in America like the one that appeared in the Middle Ages. The result of that manifestation was an endless European civil war of Heaven versus the Empire. Recall that the winner of that star-wars struggle for the earth and beyond was neither Heaven nor Empire. Instead, the developing nation state displaced both medieval regimes, leaving behind in history the mutually exhausted hulks of the imperial Church and the German empire. Of course any religion in America can have great civil influence. And any religion can lobby Congress for legislated preferences just like any other interest. But no religion is legally allowed to be more power-privileged in Washington than any agricultural or mining interest, sports league or nature bund, or any other factional interest.
The reason is simple.
The dominant spiritual sensibility of the Founding times was the Enlightenment. As you note, the religious temperaments typical of the Founders were deism and atheism — and, I might add, justified skepticism and satisfied happiness as exemplified by Ben Franklin. Of course, there were the usual hypocritical show practitioners and real passion believers. But in general, before the broad-based “Great Awakening” of the early 19th century — with tent revivals and tearful conversions and all the Chautauqua camp to come — America in the late 18th and early 19th centuries was significantly and even predominantly unchurched.
The Founders’ churchless spirit of the Enlightenment had two main targets. The first was the Catholic theocracy of the papal empire originating in the Middle Ages, and still active in 18th century Latin Europe and its global possessions. The second target was the crown privileging of the English state church, equally operational in empire. For the Founders, neither the superstitious enthusiasms of the Dark Ages nor the stiff submissions required of any royal religion were welcome in America. Nor were their absence wistfully missed. That only happened later with the Romantics. And it’s worth noting that Lord Clark of Smallwood — known as Kenneth Clark to TV republicans — was wrong about nature worship. Wordsworth and Goethe didn’t worship waterfalls and forests. Great souls aren’t in the habit of believing in rocks or trees. Nor are the “bourgeoisie” — to quote his Lordship’s noble nomenclature. But Lord Clark’s obsolete contempt is only his best effort to bandage the labor-invaded soft underbelly of Ken’s soul. Meanwhile Wordsworth and Goethe’s spirits soul-rhapsodize the cosmic vitality behind — or within — or proliferating through the manifestations of nature, not the manifestations themselves. Nature is too imperfect to command, attract, or even suggest worship. The weather is rarely just right, and often it’s rather quite wrong. And then there’s almost always biting bugs out, and other nasty teethy beasts about.
And now let’s do a little affectionate work on history. History is the incompleteness of the past. Let’s consider one small role of the logic of God in American history.
The Civil War was an archetypal American crisis. After the successful lobbying of religious interests, Congress caused “In God We Trust” to be struck on all American coinage for the encouragement of the Union. The interesting and obsolete 2¢ piece was the first such coin. The Cold War was another such archetypical crisis. After similar religious lobbying, Congress caused the same words to be printed on all US currency to encourage the economy. And you’re right: “under God” was added to the Pledge of Allegiance back then, too. The Pledge was originally as “godless” as the Constitution still is today. And “In God We trust” was then also proclaimed by Congress to be the official motto of the United States of America. Previously America had no such thing — a national motto! — nor apparently a need for one. What about a national tree? Or a federal rock? How about a national sandwich? Or the central truth? Meanwhile “e pluribus unum” was never the motto of the United States — except as imagined by uninformed citizens pleased with their popular beliefs. In my past I’ve known many popular beliefs — that one included — along with the self-assertive cynicism so typical of American generic individuality. But I’ve made it a habit to know fewer beliefs every year, and to be evermore cheerful and myself without irony or wryness.
Is the obviously religious motto “In God We trust” consistent with the 1st Amendment? Obviously not. God is the personal name of a particular deity. Zeus and Wotan clearly aren’t covered by “God.” Nor would such potent deities tolerate the platonization of their names in limp submission to some holistic-totalitarian love inclusiveness. Wotan and Zeus are man gods firm with their identities in wars. Indeed, I have an armed forces relative who’s into Wotan. Or is it Thor? Meanwhile I know Christians who insist that Yahweh is obviously God. But Allah? Most certainly not! And that’s why we don’t want a mandated universal morality. Remember your previous post — your last Gun shot? The devotees of particular universalities always seem to be personally privy to the true eternity of their favorite persuasions. And that’s fine in civil society. I have a family friend who, raised in a mainline faith, now believes in fairies. Her cheerful devotions are a welcome whimsy. But there are believers whose intolerant monopoly of the love-truth of the world-way proves to be a grimmer syllogism in government: “I arrest you in the name of my Creed! You subsequently die. Therefore I possess the Truth!” And even that wouldn’t be so bad if realistically there really were one real true truth. But not even the tyrants of freedom can agree: Stalin falls out with Mao, Robespierre with Danton, Luther with Leo.
As a result of all this, does the Supreme Court therefore find the government motto “In God We Trust” unconstitutional? No. Every five or ten years, in a 1st Amendment case, the Court coyly pronounces the motto to be an everyday pleasantry, an American commonplace not in the least bit religious, but just a good-feeling mantra-platitude fit for all freedom-loving Americans everywhere.
In other words, old Stare Decisis writes for the majority, with Judicial Cowardice concurring in a separate opinion. Or, more likely, the Court just reaffirms its prudential indifference to immaterial things.
So what’s the solution to this American Constitutional contradiction?
Every year various devotees of atheism file 1st Amendment law suits against the United States on behalf of the Constitution to protect religion from abuse by the state.
And vigilant citizens everywhere practice good posture for their backs as a natural part of their vibrant lives.
And we the lovers of the human dispensation, confronted with the inadequate facts of reality as we find them, don’t deny them with golden lies, but thoughtfully persist in them, and ardently endeavor through them, and with spiritual enterprise flourish as humans in the republic and the universe superbly.