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Supreme Court of the United States

A "Christian Nation," Godless Constitution, and the Establishment
of Religion

Mark David Hall, Blackstone Phase 1, 2020

Mark David Hall

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I have been asked to address three different issues: Was America founded as a Christian nation? Do we have a godless Constitution? And does the Constitution require the strict separation of church and state?

I am not sure if they teach you this in law school or not, but in graduate school, if you don't like the question you are asked, they teach us to answer a different question. And so, I'm going to do that with the Christian nation question. I do not like that way of framing the question. This is because if you answer the question with a resounding "yes," it implies that the nation was founded by Christians, for Christians—and maybe we'll put up with non-Christians, but they are here at our sufferance. I simply do not think that that is the case. So, as you can see from the title of my recent book, the way I am going to shape the question is I am going to ask, “Did America have a Christian founding?” Now, this is still an interesting, hotly contested question. There are a host of popular Christian authors who say, “Of course it was. Obviously, it was. American's founders were good, godly men who created a Christian nation.”

Now, there is truth in this. But part of the problem with these works is that popular Christian authors tend not to be academics. They often overstate their case and misuse evidence. They sometimes make up things. I have in mind here someone like the Parson Weems, who famously described the popular image of George Washington kneeling in prayer at Valley Forge. This is about the last thing that George Washington would have done. This is not at all the way his faith manifested itself. I am not saying he was not a Christian, just that this is not the way he would pray or interact with God. It was a made-up story, and it does no use to someone like me who wants to argue that America actually did have a Christian founding.

Of far greater concern to me are the hosts of authors who say, "No. Obviously, America did not have a Christian founding. America was founded by enlightenment deists. They created a godless Constitution, and they desired the strict separation of church and state." And the reason this is more than an academic debate, and we will talk about this later, is jurists and politicians routinely go back to the founding era for guidance. Those who have accepted this false narrative of the founders and their views of religious liberty and church-state relations have made a lot of bad policy and judicial decisions.

So, I'll explore this question first and then move on to the other two. What do we possibly mean by a Christian founding? What would a Christian founding look like? I'll describe just a few of the possibilities that I discuss in my book.

One possibility, and this gives me an excuse to give an interesting statistic, is that America's founders identified themselves as Christians. If this is what we mean, then indisputably, America had a Christian founding. Of Americans of European descent, 98% were Protestant. Two percent were Roman Catholic, and there were about 2,000 Jews in four or five American cities. So, most Americans identified themselves as Christians, but this is not particularly an interesting finding.

A second possibility, which is a lot more interesting, is that the founders were orthodox Christians. By orthodox here, I mean that they adhered to the fundamental Christian doctrines as articulated in the Apostles' Creed or the Nicene Creed. This would be a much more interesting finding. Authors regularly assert that most of America's founders were deists, but there is absolutely and utterly no evidence to support this claim. But it is hard to make the positive case that they were all orthodox Christians because, in some cases, we have so little evidence. There is little doubt many were orthodox Christians, but we simply don't have the records to prove that all of them were.

I want to suggest these first two possibilities just aren't that interesting because these could have been Christian founders that were self-consciously drawing from secular ideas. Or, they might have been Christians who were purposely creating a secular political order. I consider a couple of other possibilities in my book, but let me jump to the way I think it makes the most sense to talk about Christian founding. I believe we can make a strong argument that America had a Christian founding because the founders were influenced by Christian ideas or ideas developed within the Christian tradition of political reflection.

In making this argument, I am in very good company. Book, after book, after book, after book has been written arguing that the founders were influenced by a Lockean liberalism, the classical Republican tradition, the Scottish enlightenment, and on and on we could go. What I want to do is put Christianity as a major source of influence here. Not the sole source of influence, but a major one. I think Christianity explains far more than any of these other traditions. In fact, some of these traditions—the political theory of John Locke, for instance—I think are best understood as a continuation of this tradition even if Locke himself was somewhat of a Unitarian.

Let's move on to the question of when was America founded?

In my book, I talk about three major possibilities. The first one is a no-brainer: the early colonial settlements. From North to South, you have colonists clearly pulling from the Bible, from the Christian convictions to create these new political orders, so I am not even going to go into that now.

The second possibility might be 1776, perhaps focusing on the Declaration of Independence as the key document. This is far more interesting, and it raises problems for Christians who take seriously Romans 13, which seems to prohibit rebellion. I think I give an adequate account of that as well in my book.

What I want to focus on, particularly since I am talking to a roomful of lawyers, is the United States Constitution. Here, you have a number of authors who have contended that we have a godless Constitution. See, for instance, Isaac Kramnick and R. Laurence Moore's book The Godless Constitution. This was written by two fairly prominent professors at Cornell. But many others make this sort of argument.

What do these professors and popular authors mean by this argument? On one level, they might mean that simply the deity is not referenced in the Constitution, and this is more or less true. You do not get a reference to God until the dateline, "In the year of our Lord 1787." And scholars actually deny that this is technically a part of the Constitution, as it was added by the scribe who penned the final document. So, if it is not, then you could say there are zero references to the deity in the Constitution.

The Constitution does contain hints that America is going to be a country populated by Christian people. For instance, the pocket veto takes place 10 days after an act is passed by Congress, Sundays exempted. There is an assumption that work won't be done on the Sabbath. But this is more than balanced, it seems to me, by Article 6's prohibition on religious tests for federal offices.

So, did America have a godless Constitution? I argue it did not. As I've already suggested, I believe that America's founders drew from their Christian convictions in deep and important ways. Before I get to four of those ways, let me suggest that if you look at the political discourse of the era, Protestants especially are people of the Book; and by the Book, I mean the Bible. You would expect that if they took this seriously, that they would be referencing the Bible all the time. And, in fact, they did. A political scientist named Donald Lutz did a wonderful content analysis of political literature in the founding era. He studied which sources were cited in a wide range of political documents from the era. He published his findings in the American Political Science Review, my discipline's top journal. He found that 34% of all references were to the Bible. If you take all enlightenment thinkers combined—your Locke, your Beccaria, your Montisqueiu, your [Adam] Smith, and on and on you go—those account for only 22% of the citations. And yet, Lutz profoundly undercounts appeals to the Bible, because he is looking just for citations; but the founders paraphrased the Bible all the time. They just quoted passages without citations. As well, Lutz tells us he specifically excluded political sermons that did not also make appeals to secular authorities. So, if the study was redone today and those stipulations were removed, I think you would see a far higher percentage of appeals to the Bible. But, again, I am more interested in substantive things.

Let me first address the reality that the U.S. Constitution is different from many state Constitutions, insofar as it doesn't mention or talk about the role of government in promoting religion or morality. But there is a very important reason for this, and I know you are all aware of it, but I will just put a finger on it because so many people have forgotten it. At least many people have since 1936. The federal government was meant to be a government that did very few things, and those things are enumerated in Article 1, Section 8. The federal government was to regulate interstate commerce, run a post office, provide for the national defense, etc. Everything else that governments would do would be done by the states or local governments. So, if we are going to have laws promoting morality or virtue or having an established church, these things would be done at the state level. This is an important background controlling belief that we need to understand.

But now let me talk about four (and we could do more than four) ways in which America's founders were influenced by Christian ideas. First and foremost, their understanding that humans are sinful. "All have sinned and fallen short of the glory of God," and even redeemed humans continue to struggle with the old man within. This conviction led Americans—America's founders—to a person, to say “Look, we are not going to have concentrated power. We are going to have a system of federalism, separation of powers, checks and balances, and so forth.“ This flies in the face of much popular enlightenment thought at the time. Enlightenment thinkers in France and elsewhere tended to have a very optimistic view of human nature: People are basically good; if we just fix this or that, we can arrive at a utopia. I think because Americans had such a skeptical view of human nature, we avoided the sort of bloodbath that became the French Revolution.

Let me really quickly acknowledge that one does not have to be a Christian to believe that men are sinful or, if you prefer, self-interested. You could be a peasant in China in the 8th century and come to this conclusion just by observing life around you. What I want to submit to you, and what I give a lot of evidence for in my book, is that America in the late 18th century was a very Protestant, and even Calvinist, country. Calvinists, of course, are famous for emphasizing the total depravity of man. Christianity best explains that most founders concluded, in the words of St. James Madison, that if men were angels, government would not be necessary. But they aren't, so we need separation of powers and so forth, and so on.

Let me talk about a couple of other ideas. One fun one, I think, is that there exist moral standards, which the founders referred to as natural law. God created standards that everyone must adhere to. James Wilson, an early Supreme Court justice who gave a famous series of law lectures at the College of Philadelphia (now the University of Pennsylvania). When you read these law lectures, you may be excused for thinking that you are reading St. Thomas Aquinas. He says there are two types of law: divine and human. There are four types of divine law: God's eternal law, celestial laws, moral laws, natural laws. Human laws must be based on moral laws if they are to be legitimate. Paraphrasing St. Augustine, he observed that "an unjust law is no law at all." Indeed, every other Supreme Court justice who served before John Marshall, with one exception, is clearly on record saying that a judge could legitimately strike down an act of Congress or state legislator if it violated the natural law.

Let me go on to another very important concept: liberty. How did the founders understand liberty? When I ask my students about this today, they usually say, “Liberty is a freedom to do whatever you want except for punch someone in the nose.“ This is a mid-19th century understanding of liberty. America's founders believed there was a distinction between liberty and licentiousness—more than one of them is on record saying something that "law without liberty is tyranny; liberty without law is license." For them, liberty was the freedom to do what is right.

Finally, and critically important, they understood that humans are created in the imago Dei, in the image of God. If I can return to James Wilson, but this time from a U.S. Supreme Court opinion, Chisholm v. Georgia, he paraphrases Psalm 139:4, observing that "man, fearfully and wonderfully made, is the workmanship of his all-perfect Creator." Let me just say as an aside and point out that Donald Lutz would not have caught that reference to Psalm 139:4, because Wilson simply paraphrases the verse and does not provide a citation.

If we can return again to Wilson's lectures, we see a practical application of this doctrine. Wilson writes that “life from the womb to its natural end must be protected by the state.” He addresses suicide, asking if the practice should be legal. He answers his own question by saying, “Of course not.“ Why not? Because it is not our life to take. Our lives belong to God.

I think we can make a very good argument that America had a Christian founding, and we do not have a godless Constitution. Let me turn, since I know attorneys tend to be practical, to religious liberty and church-state relations. As I suggested earlier, jurists have said we must interpret the religion clauses in light of the founders' views. In the words of Justice Wiley Rutledge, “No provision of the Constitution is more closely tied to or given its content by its generating history than the religion clause of the First Amendment. It is at once a refined product and the terse summation of that history.”

I'm an originalist, so I appreciate Rutledge's appeal to the founders' views. The problem with his dissenting opinion in Everson, and with Black's majority opinion, is that both justices adopted a syllogism that is highly problematic. In effect, they said that:

We must interpret the Establishment Clause in light of the founders' views.

Thomas Jefferson and James Madison equal America's founders.

Jefferson and Madison desired the strict separation of church and state.

Therefore, the Establishment Clause requires the strict separation of church and state or a high wall [of] separation between church and state.

Let me suggest that this is utter nonsense. Sometimes when originalism is being discussed, critics say, ”Well, yeah, you can cherry-pick quotes from here and there, and nothing is ever clear.“ This does indeed occur; it is exactly what Rutledge and Black did in their opinions! They focused on two of the most separationist of all founders to argue that all of the founders desired to strictly separate church and state. What I want to suggest, though, is actually you can point to three areas where there was widespread agreement. Professor Garnett mentioned one of these areas in his previous lecture, but it is so important that I want to reiterate it: the founders were committed to robustly protecting religious liberty.

This conviction is illustrated well by debates in Virginia. George Mason drafted a bill of rights for the state that protected, among other rights, "the sacred right of conscience," which is how many founders referred to religious liberty. Mason came up with a solid religious liberty provision grounded on the duties all people have to God: “That as religion or the duty which we owe to our divine and omnipotent Creator and the manner of discharging it, can be governed only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion.”

This draft of Article 16 was circulated throughout the states, and it was very influential, but it was not the draft that became law. Instead, a young James Madison stood up and objected to Mason's use of "toleration." He thought it suggests that we are just simply going to put up with people's religious convictions. Instead, he insisted this language be altered to make it clear that all persons have a natural right to religious liberty. The Convention agreed, and Article 16 was amended in this direction.

So, by the time we get to the late 18th century, there had become a widespread conviction that religious toleration is not enough. Religious toleration basically just means we are going to put up with dissenters, but we may privilege the majority faith and maybe we'll decide to remove stop tolerating dissenters in the future. Instead, they made it clear that there is a God-given right to religious liberty. It is a right directly connected to our duties to God, and it cannot be violated by the state without a very good reason. Of course, religious liberty is not an absolute trump card that can win every time. But clearly it protects the ability of citizens to worship as they see fit and to act on their religious convictions whenever possible. The founders were well aware of religious exemptions. They crafted them themselves. The U.S. Constitution contains one in its Article 2, presidential oath for office. Whether or not the First Amendment requires them is hotly contested, and I'll not address this question here, but we could return to it later if you would like.

I'll focus on the Establishment Clause for the remaining eight or so minutes of my talk.

Let me give a second major way in which I think there was a coming together of the minds. With respect to establishments at the state level, Americans had started to conclude that we should only have religious establishments if they benefit Christianity. But many founders were concluding that religious establishments hurt Christianity. As such, they should be abolished.

These arguments were made in the famous church-state debates in Virginia. Basically, the state had stopped funding the Episcopalian Church, and this really bothered Patrick Henry. So, he proposed a mild establishment. He said, why don't we tax people to support the church they choose to attend? So, if you are Presbyterian, you'll be taxed to support the Presbyterian Church. If you are an Anglican, you'll be taxed to support the Anglican Church, and so forth. Some petitions came in supporting his proposal. In effect, they argued that because religion was important, it deserved a government subsidy.

One of my favorite petitions, though, came from Westmoreland County, Virginia. It was from a group of evangelicals, and they asserted that “assessments are against the spirit of the Gospel. The holy author of our religion did not require State support and Christianity was far purer before Constantine first established it by human laws.“ And they went on to say that they wanted ”clergy to manifest to the world that they were inwardly moved by the Holy Ghost, that they seek the good of mankind and not of worldly interest, let their doctrines be Scriptural and their lives upright. Then shall religion of departed speedily returned and deism be put to open shame.”

Do you hear what these evangelicals are arguing? They are saying, “We do not want an establishment because it hurts true Christianity.“ True Christianity flourishes best when it is free from state control. This petition was written in the same context of James Madison's now far more famous Memorial and Remonstrance. But it was signed by five times as many people. I'm going to guess that all of you have read the Memorial and Remonstrance, but probably none of you have read this far more influential petition. But even Madison's Memorial and Remonstrance, he makes similar arguments. He refers back to the Declaration of Rights and says, “Look, we have a duty to worship God. So therefore, we should have this inalienable right to religious liberty.“ And he argues, "Ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary effect." And that Henry's "Bill is adverse to the diffusion of the light of Christianity." That's a pretty strong argument.

Now you might say, “Wait a minute; Madison may have been making these arguments simply for rhetorical purposes.“ Even if that was the case, and I'm not sure that it was, why did he make it? Because he thought it would be effective. Again, Americans were coming to question the virtues of establishments, but only because they wanted Christianity to flourish—not because they were against religion.

Let me turn lastly to religion in the public square. What most people think they know about this—not you all, but people from the Freedom From Religion Foundation and so forth. They believe there is a wall of separation between church and state, and this wall of separation should prevent all sorts of things, including civic officials making religious arguments in the public squares, states putting up monuments with the Ten Commandments on public land, and so forth and so on.

This metaphor, of course, comes from a letter from Thomas Jefferson to the Danbury Baptists that lay dormant with respect to Establishment Clause jurisprudence until the case of Everson v. Board of Education, (1947). You can see why it is appealing to separationists. But let me suggest to you that really no founder embraced this as a principle. No founder, including Thomas Jefferson. The Sage of Monticello wanted a greater degree of separation of church and state than virtually any other founder, but even he did not act as if there was a wall of separation between the two.

Jefferson issued calls for prayer and fasting as governor of Virginia. In his revisions of the state's laws, he revised laws stipulating when governors could appoint days for public fasting, humiliation, or thanksgiving. As a member of the Continental Congress, he proposed that the nation adopt a seal containing Moses extending his hand over the sea, causing it to overwhelm Pharaoh. And his motto for the United States of America would have been "rebellion to tyrants is obedience to God." He closed his second inaugural address by encouraging Americans to "seek the favor of that Being in whose hands we are, and to let our forefathers as integral of old." Two days after he finished this letter to the Danbury Baptists, he went to church services in the U.S. Capitol Building where he heard John Leland, the great Baptist itinerant minister and an opponent of established churches, speak. Jefferson routinely attended churches in Congress. He also opened the Treasury and War Department buildings for religious services.

These examples are not meant to suggest that Jefferson wanted to close cooperation between churches. He wanted a greater separation than almost any other founder, and yet even Jefferson certainly did not practice it.

If we had a little more time, I would tell you a great deal about the first Federal Congress, but I'll have to make do with just one short story.

Literally one day after the House finished its language for what became the First Amendment, Elias Boudinot, later president of the American Bible Society, said to his fellow members of Congress (I'm paraphrasing him): “Hey guys, things are going well. Let's ask George Washington to issue a Thanksgiving Day Proclamation.“ Aedenus Burke responded that "we can't do that. That's a European practice." Roger Sherman, that old Puritan from Connecticut, stood up and, quoting from a newspaper account, “’justified the practice of thanksgiving on any single event. Not only as a laudable one, in and of itself, but as warranted by a number of precedents in holy writ. For instance, a Psalm of thanksgiving and rejoicing which took place in the time of Solomon after the building of the temple was a case in point.’ We should imitate this,“ he said.

The House agreed with Sherman and Boudinot, and the Senate agreed with the House. George Washington agreed with Congress and issued this wonderful, theological, robust Thanksgiving Day Proclamation in 1789. You can simply Google “Washington's Thanksgiving Day Proclamation 1789” and read this wonderful document for yourself. It is clear that our nation's first president did not believe that the public square must be scrubbed free of religion.

Let me head toward conclusion by what this might mean in practice. If we accept an originalist understanding of the First Amendment, the Establishment Clause essentially does not limit the ability of governments to encourage religion generally or Christianity more specifically. What was the Establishment Clause meant to do? Pretty much what it says; Congress cannot create a national church. And there is a variety of things that go under that, but they certainly don't touch things like monuments of the Ten Commandments and so forth. You can't create a national church, and, through the doctrine of incorporation, states and localities are limited in the same way.

Although a lot of things are constitutionally permissible, let me suggest that America is a very different country today. Remember what I said, back in the late 18th century we were 98% Protestant, 2% Roman Catholic. A president could issue a robustly Christian Thanksgiving Day Proclamation, and virtually no one would object. Today, however, we are obviously far more diverse, and so I think it's incumbent upon our civic leaders—even civic leaders of deep Christian convictions—to respect this pluralism that now characterizes our country. Presidents and other civic leaders should use language that unites, rather than divides, us. This is a matter of political prudence and civic friendship, not a constitutional requirement.

However, I am very pleased to report that the establishment clearly does not prohibit things like providing tax credits to parents who send their children to faith-based schools. It doesn't, as Professor Garnett referenced, prevent a Lutheran preschool from benefitting from a state program that provides safe playground surfaces. And it does not, contrary to the arguments of far too many law professors, prohibit religious exemptions. This is complete and utter nonsense, as a matter of originalism.

With respect to religion on public land, I am sure you are aware of things such as American Humanist Association that wants to tear down a World War I era cross memorializing fallen soldiers. Just a few decades ago, Ohio created a state Holocaust Memorial. In this memorial there is clearly a Star of David, which is a religious symbol. Think about this. A majority Christian state creates a Holocaust Memorial, including a Jewish symbol. Well, this is not permissible according to the Freedom From Religion Foundation. They argued that the memorial violates the Establishment Clause. Fortunately, Ohio went ahead, and, as they often do, the Freedom From Religion Foundation people backed off.

And, believe it or not, secular organizations are still challenging the constitutionality of monuments of the Ten Commandments, even after the Supreme Court permitted one on the Texas State House grounds. As a matter of originalism, in no way, shape, and form does the Establishment Clause prohibit these sorts of things.

By way of conclusion, let’s answer the question the title of my book raises. America had a Christian founding. But America was not founded only for Christians. The founders explicitly prohibited religious tests for public office. This provision came up in the ratification debates. Anti-Federalists observed that the provision permits a Muslim or a Jew or an Atheist to hold office, and the founders said, ”Yes. Yes, it could.“ I think it was pretty clear that many of them thought this would not be desirable, but they understood what they were doing. They embraced a robust understanding of religious liberty, and we just had a very small taste of this. I could go into far greater detail. They made explicitly Christian arguments. And they did not have to wait for John Locke to come along. You had people like William Penn and Roger Williams making great Christian arguments for religious liberty before Locke. And they were clear that religious liberty belongs to all.

Let me end by quoting a bit from my favorite letter that really helps emphasize two things. This is George Washington's letter to the Hebrew congregation in Newport, Rhode Island. He writes to them this:

All (citizens) possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.

Let me call your attention to that distinction again. We are not talking about toleration anymore. We are talking about a natural right.

For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens. …

Now listen carefully to this last paragraph:

May the children of the Stock of Abraham, who dwell in this land, continue to merit and enjoy the good will of the other Inhabitants; while every one shall sit in safety under his own vine and figtree, and there shall be none to make him afraid. May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.

I read the first paragraph to emphasize that America's founders recognize that religious liberty is for all. Do you remember what I said? There are only about 2,000 Jews in America at this time. This was not a political constituency that needed to be cultivated, but Washington goes out of his way to say, ”You, like other denominations of Christians—from the Catholics, Baptists, Presbyterians, Episcopalians—we all get to enjoy religious liberty.”

It is noteworthy that the last paragraph contains eight separate allusions to Scripture, including Micah 4:4, which was George Washington's favorite verse. We have examples of him using it more than 40 times. And yet, you'll note—if you don't mind my pointing this out—there are no citations in this letter. So, Donald Lutz in his analysis of the political literature of the era, would have missed all of these references to Scripture.

I want to conclude by saying that the founders drew from their Christian convictions when they created our constitutional order, characterized by things like federalism, separation of powers, checks and balances, and religious liberty for all. America had a Christian founding, and this is very good news for all Americans today, including Americans of other faiths or no faith at all.

Thank you very much.

About Mark David Hall

Mark David Hall is Herbert Hoover Distinguished Professor of Politics and Faculty Fellow in the William Penn Honors Program at George Fox University. He is also associated faculty at the Center for the Study of Law and Religion at Emory University and a Senior Fellow at Baylor University’s Institute for Studies of Religion.

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