To the Editor:
In his review of Walter Berns’s The First Amendment and the Future of American Democracy [Books in Review, May], William J. Bennett criticizes Berns for “urging original understandings that push aside those of Jefferson and Madison” in respect to the religious clauses of the First Amendment. But though he cites Madison’s separationist views accurately enough, Mr. Bennett does not show that they were precisely what the First Amendment clauses originally meant. That understanding emerged from a compromise between separationists, both pietistic and rationalistic, and supporters of state aid to religion.
The Senate did not get House approval on the narrow meaning of “establishment” as fixing a national creed; but the House, on the other hand, finally dropped from Madison’s resolutions the prohibition against laws “infringing the rights of conscience”—perhaps a concession to those who would not go so far as to protect nonbelievers as well as believers, a guarantee that Jefferson and Madison had won in the Virginia battle. In any event, Madison lost what was to him “the most valuable Amendment in the whole list,” the one applying the religious clauses to actions by the states.
If I may be permitted to quote myself:
Madison’s colleagues at Philadelphia were not prepared to substitute his clear principles for the mixed pattern that prevailed in the states. They went along with him to guard against the danger that Congress, in exercising some granted power, such as taxation, might meddle in religious matters; but while they set a national barrier against the possibility of discriminatory taxation on behalf of any church, they also set one against congressional interference with local efforts to foster religious enterprises. Americans absorbed the First Amendment’s clauses on separation and free exercise so that they were compatible with a dominant belief that separation was also in some ways a linkage, that liberty and Christianity were close friends, and that a federal union entitled even nonbelievers to hold office at the national level, while permitting states to restrict full political rights to Protestants. Neither pietists nor Jeffersonians could have been fully satisfied with the results. A modern Supreme Court majority would tend to forget this point when it looked backwards at the original understanding through the eyes of the Fourteenth Amendment and with an individualistic, noninstitutional attitude toward religion that would have been quite congenial to Madison and his evangelical supporters [The New Heavens and New Earth: Political Religion in America].
To this extent, I would join Berns in criticizing the Court’s sense of past history, despite my own sympathies with Madison’s separationist views.
Cushing Strout
Cornell University
Ithaca, New York
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William J. Bennett writes:
I did not “show” that Madison’s separationist views were “precisely what the First Amendment clauses originally meant” mainly because I did not argue that they were. My two points on this issue are: (1) that if the Court were to adopt Madison’s position consistently it might relieve itself of burdens and difficult questions which the Constitution arguably does not require it to suffer, and (2) that pushing aside the view of Madison and Jefferson on the original understanding of this and other First Amendment matters strains Berns’s argument.
In regard to the second, Cushing Strout has not refuted my claim that the view of Madison and Jefferson does not deserve to be pushed aside. My position requires me to show their view was an important ingredient in the final formulation of the First Amendment, and this is supported by the facts. Mr. Strout admits that the final formulation of the First Amendment was a compromise. Would he deny that it was a compromise that seriously took into account Madison’s and Jefferson’s view? I doubt it. Madison, after all, was the author of the original formulation of the Amendment and probably of the final version as well. Moreover, there are many scholars—Irving Brant and Leo Pfeffer among them—who believe, and can offer substantial evidence for their view, that the First Amendment as adopted represented a decisive victory for Madison’s view.
Also beyond dispute is the early history of the Amendment. Jefferson used the important phrase, “building a wall of separation between church and state,” in his Danbury letter ten years after the adoption of the Amendment, and he submitted this speech beforehand to his Attorney General for confirmation that this indeed was the law of the land. In 1811 Madison vetoed a grant of land to the Salem (Mississippi) Baptist Church on the ground that such a grant would “comprise a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that Congress shall make no law respecting a religious establishment.” Did their persistence in these views represent a violent departure from the original understanding? In 1878 a unanimous Supreme Court, in Reynolds v. U.S., speaking through Chief Justice Waite, quoted Jefferson’s Danbury letter, and took it “as providing an authoritative declaration of the scope and effect of the Amendment.”
Finally, Mr. Strout’s argument that the First Amendment was formulated in such a way that “separation was also in some ways a linkage” and, therefore, that liberty and Christianity were seen to be close friends, is, I think, true, but it does not follow that because one is a friend of religion one is required to favor government support of religion. As Madison recognized, the questions are distinct. As he put it during the debates on the Virginia Assessment Bill, the issue is not “is religion necessary—but are religious establishments necessary for religion?”
