The Constitution Created a Secular Government

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The Constitution Created a Secular Government

John M. Swomley

John M. Swomley is professor emeritus of social ethics at St. Paul School of Theology. He is a member of the national board of the American Civil Liberties Union and has authored many books, including Religion, the State, and the Schools and The Politics of Liberation.

In the selection that follows, Swomley argues that the U.S. Constitution was clearly intended to create a secular government. To support this claim, he contrasts the language of the Declaration of Independence with that of the Constitution. Unlike the declaration, which contains phrases such as "Nature's God" and "Divine Providence," the Constitution contains only one reference to religion: a clause that prohibits religious tests for office. For the first time a government was set up that established a doctrine of separation of church and state. Although the document did not forbid religion and politics from mixing, it guaranteed people the right to worship any way they felt and protected them from government interference in religious matters. The author concludes that people were not convinced the Constitution would protect their religious rights. As a result, fears of government power led many to call for a bill of rights to keep the federal government from meddling with people's religious beliefs and activities.

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The constitutional doctrine of separation of church and state is a uniquely American contribution to government. It means that government has no authority to invade the field of religion, that government agencies may neither advance nor inhibit religion, and that government may not take account of a person's religion or lack of it in determining qualification for holding public office or for government employment. The only function of government with respect to religion is that of protecting the right of conscience, worship, autonomous control over doctrine, governance and resources of religious groups, and the private and public expression of religious conviction.

Separation of church and state does not mean separation of religion and politics. The religious or nonreligious person or group may freely engage in political speech and action that criticizes or supports government policies. Congress, however, has been able to limit lobbying by churches through the granting of tax exemption and tax deductibility of contributions to nonprofit agencies that use only a fraction of their resources to influence legislation.

The Constitution of the United States provides for a wholly secular government. Any action by the Congress, the Executive, or Judiciary that confers any benefit upon religious organizations or places any impediment in the way of religious expression that does not infringe the rights of others is a violation of the letter and spirit of the Constitution.

The Constitution, wrote the historian Charles A. Beard, "does not confer upon the Federal government any power whatever to deal with religion in any form or manner." James Madison called it "a bill of powers." He said that "the powers are enumerated and it follows that all that are not granted by the Constitution are retained" by the people.

The Constitution as a Contract

The Constitution must be understood as a social contract between the people and the United States. The Tenth Amendment spells out the meaning of the social contract in these words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people."

The social contract idea came from the political philosophy of John Locke, who had been a strong influence on many leading Americans, including Thomas Jefferson and James Madison. Partly under John Locke's influence, Jefferson and Madison came to believe that a government that was formed as a social contract had no power given to it to act on religious matters. Locke, who had popularized the social contract theory of government, asserted in his first Letter Concerning Toleration that "the care of souls cannot belong to the civil magistrate because his power consists only in outward force; but true and saving religion consists in the inward persuasion of the mind. . . ."

Locke's statement in modern language is the idea that true religion is a matter of faith and that, if a church cannot persuade its members to accept its doctrine or contribute to its work, it is not the business of government to enforce the faith or pay its expenses. Governor Mario Cuomo of New York in 1984 defended his position of not seeking laws against abortion, following the assertion by Catholic bishops that Catholic politicians could not draw a line between their personal faith and public policy, when he said: "We seem to be in the position of asking government to make criminal what we believe to be sinful because we ourselves can't stop committing the sin."

The secular nature of the Constitution is clearly evident in the only reference to religion in it prior to the adoption of the First Amendment. That reference is in Article VI, Section 3, which forbids religious tests for public office.

Although the Declaration of Independence, produced only eleven years earlier, contains various religious terms such as "Nature's God," the "Supreme Judge of the world," and "Divine Providence," the Constitution has no such reference. It refers incidentally to religion in that Sundays are not to be counted in the number of days within which the president may veto legislation. This absence of religious references does not reflect any hostility to religion or even imply its unimportance. Rather, it is a recognition that religion would thrive better if left uninfluenced, unaided, and unimpeded by government.

Separation of Church and State in the Constitution

Article VI, Section 3, which is the first specific statement of separation of church and state other than the secular nature of the Constitution itself, says:

The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers both of the United States and of the several States, shall be bound by oath or affirmation to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

This section is significant not only because it permitted any person without regard to religion to hold public office, but also because it provided for the use of "affirmation" as an alternative to a religious oath. An affirmation was understood as a solemn declaration by a person conscientiously opposed to taking an oath but which is parallel to the religious oath in value and penalty if violated.

The impact of this section of the Constitution has been of major significance to religious liberty. In itself it was an important impediment to the establishment or government support of any church. One reason for this is that the unchurched as well as adherents of churches dissenting to establishment were numerically larger than the combined memberships of all the churches that were formerly established during the colonial era or of those that could have had aspirations of such support at the time the Constitution was adopted.

Anson Phelps Stokes, in his monumental work Church and State in the United States, wrote that "Congress as constituted with men and women from all the denominations could never unite in selecting any one body" as an established church. "This has been so evident from the time of the founding of the government that it is one reason why the First Amendment must be interpreted more broadly than merely as preventing the state establishment of religion which had already been made almost impossible."

Comments by the Framers of the Constitution

Stokes's statement is supported by comments made by contemporaries of the framing of the Constitution. Oliver Ellsworth, a member of the Continental Congress from Connecticut, a delegate to the Constitutional Convention, and the third Chief Justice of the United States Supreme Court, noted in one of his writings that in European nations with established churches there were always religious tests for holding office. Edmund Randolph, a delegate to the Constitutional Convention and the first Attorney General of the United States, referred to "no religious" tests for public office as meaning that those in office "are not bound to support one mode of worship or to adhere to one particular sect." Therefore, given the variety of religious organizations in the United States, "they will prevent the establishment of any one sect, in prejudice to the rest and forever oppose all attempts to infringe religious liberty."

James Iredell, a Supreme Court Justice from 1790 to 1799, who served in the North Carolina Convention that ratified the Constitution, referred to the exclusion of a religious test for public office as one way to establish religious liberty. He said that Congress had no power to create "the establishment of any religion whatsoever; and I am astonished that any gentleman should conceive that they have. . . . If any future Congress should pass an act concerning the religion of the country, it would be an act which they are not authorized to pass, by the Constitution. . . ."

Another North Carolinian, Richard Dobbs Spaight, who had been a delegate to the Constitutional Convention, said about religion, "No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation."

The Need for a Bill of Rights

Although the members of the Constitutional Convention and many other Americans believed that the new federal government had no power to legislate with respect to religion, there were many who feared the usurpation of power. They wanted to have a bill of rights that would effectively prevent the federal government from meddling with religion. Thomas Tredwell of New York opposed ratification of the Constitution, arguing that it needed a bill of rights. He said that he wished that "sufficient caution had been used to secure to us our religious liberties, and to have prevented the general government from tyrannizing over our consciences by a religious establishment—a tyranny of all others most dreadful and which will assuredly be exercised whenever it shall be thought necessary for the promotion and support of their political measures."

Even in Virginia, James Madison and others who favored a federal union could not persuade the state convention to ratify the federal Constitution until it accepted a recommendation for a bill of rights. The opposition to ratification was led by Patrick Henry and George Mason. Mason had been a delegate to the Constitutional Convention in Philadelphia, but had refused to sign the Constitution because it did not have a bill of rights. He had been the principal author in 1776 of Virginia's Declaration of Rights. One of Virginia's proposed amendments to a federal bill of rights stated that "no particular religious sect or society ought to be favored or established by law, in preference to others."

Although Virginia ratified the Constitution, Rhode Island and North Carolina did not do so until after Congress had adopted the Bill of Rights.

The first Congress produced the Bill of Rights, but without the unanimous enthusiasm of all its members. Some members of the Congress opposed the proposal for a bill of rights on the ground that it was unnecessary because the Constitution did not grant the government any power to deal with religion or other rights retained by the people. James Madison originally shared this view. He told the Virginia convention, June 12, 1788, prior to its ratification of the Constitution: "There is not a shadow of right in the general government to intermeddle with religion." Madison, however, felt duty-bound to respect the Virginia convention's recommendation of a bill of rights. He also had come to believe that a bill of rights was needed to make doubly sure that Congress would not exercise powers not granted to it under the Constitution.

The Bill of Rights 1