CHAPTER LI.

FIRST AMENDMENT.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The great purpose of the first clause of this amendment was to secure religious freedom from governmental recognition or interference. While Christianity has been adopted by the people of the United States as their religion, there is no acknowledgment of that religion by any national expression or authority.

The object of the government in this relation is to refrain from any recognition of union between State and Church.

Perhaps the sentiment of the American people has never been more comprehensively stated on this subject than it was by Mr. Justice Miller in Watson v. Jones, where he said:

"In this country the full and free right to entertain any religious belief, to protect any religious principle and to teach any religious doctrine which does not violate the laws, morality and property, and which does not infringe personal rights, is conceded to all."

As introduced by Madison in the House of Representatives this amendment differs materially from its present reading. In his form it consisted of three clauses and read:

"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or on any pretext, infringed.

1 13 Wallace, 679, 728.

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"The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

"The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances."'a

This language Mr. Madison desired to have inserted in the ninth section of the first article of the Constitution, between the third and fourth clauses. The amendment occasioned considerable debate in the House and was then referred to the Committee of Eleven.

The committee reported the article in two clauses, which read:

"1. No religion shall be established by law, nor shall the equal rights of conscience be infringed.

"2. The freedom of speech and of the press and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.""

This report was the cause of another important debate on the first clause of Madison's amendment.

Mr. Sherman regarded the amendment as wholly unnecessary, as Congress had no authority delegated to it by the Constitution to make religious establishments; and he therefore moved to strike the clause out.

la 1 Annals, 451.

2 Thorpe's Constitutional History of the United States, vol. 2, 225. The device on the silver dollar, "In God We Trust," can not be regarded as a governmental expression on the subject of religion.

But there seems to be an acknowledgment by the Government through the Department of State, "that the Government of the United States is not in any sense founded on the Christian religion." This somewhat strange provision is found in the 11th article of the treaty of peace between the United States of America and the Bey and Subjects of Tripoli, of Barbary: "As the government of the United States of America is not in any sense founded on the Christian religion—as it has in itself no character of enmity against the laws, religion or tranquillity of Mussulmans-and as the said States never have entered into any war or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries." 8 U. S. Statutes at Large, 155.

Mr. Carroll replied: "As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hands; and as many sects have concurred in opinion that they are not well secured under the present Constitution," he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed.

Mr. Madison apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words were necessary or not, he did not mean to say, but they have been required by some of the State conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit. Mr. Huntington feared that the words might be taken in such latitude as to be extremely hurtful to the cause of religion.

Mr. Madison thought, if the word "national" was inserted before religion, it would relieve the objections made to the report. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform, and believed if the word "national" was introduced, it would point the amendment directly to the object it was intended to prevent.

Mr. Livermore was not satisfied with the amendment, and suggested that it be made to read: "That Congress shall make no laws touching religion, or infringing the rights of conscience."

Mr. Gerry did not like the term "national" as proposed by Mr. Madison. It brought to his mind some observations that had taken place in the conventions at the

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time they were considering the present Constitution. Those who were called Anti-Federalists at that time complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a National one; the Federalists were for ratifying the Constitution as it stood, and the others not until amendments were made. Their names then ought not to be distinguished by Federalists and Anti-Federalists, but Rats and Antirats.3

The motion of Mr. Livermore was then passed by a vote of thirty-one in its favor, and twenty against it.*

The matter was referred to a committee of three, which on August 24, 1789, reported: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.""

Concerning freedom of speech, etc., the committee reported: "The freedom of speech and of the press and of the right of the people peaceably to assemble and to apply to the Government for redress of grievances, shall not be infringed. "

When reported to the House this created another debate. Mr. Sedgwick feared that such an amendment would tend to make its provisions trifling in the eyes of their constituents. "What," said he, "shall we secure the freedom of speech, and think it necesary, at the same time, to allow the right of assembling? If people freely converse together, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; it is certainly a thing that never would be called in question; it is derogatory to the dignity of the House to descend to such minutiae." He then moved to strike out "assemble and," on which another debate occurred." The whole subject as reported by Mr. Madison and by

This is probably the origin of that abbreviation which appeared in the early history of American politics, known as "Rats and Antirats." Judging from the language of Mr. Gerry, the Rats were in favor of ratifying the Constitution and the Antirats were opposed to ratifying it.

41 Annals, 757-759.

5 Thorpe's Constitutional History of U. S., vol. 2, 257.

• Thorpe's Constitutional History, vol. 2, 257.

71 Annals, 759.

the two committees to whom it was referred was gone over in the Senate and House, and then referred to a committee of conference, which reported the amendment as found in the Constitution. By the rejection of the first and second articles as reported by Congress, this became the first amendment to the Constitution.R

The amendment in question is susceptible of three subdivisions:

First, that Congress should make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

Second, Congress should make no law abridging the freedom of speech or of the press;

Third, Congress should make no law abridging the right of the people peaceably to assemble and to petition the Government for the redress of grievances.

Congress shall make no law respecting an establishment of Religion, or prohibiting the free exercise thereof.

Though at the time of the formation of the Constitution many of the State constitutions contained provisions on the subject of religion and the clergy, and though Mr. Pinckney's plan for a Constitution contained a clause that "The Legislature of the United States shall pass no law on the subject of religion," we find the origin of this clause in the history of the Episcopal Church in Virginia. In 1784 there was introduced in the General Assembly of that Commonwealth an act which was intended to establish the Episcopal Church permanently and which levied a

81 Annals, 948.

What is now the first amendment was rejected by the Senate but was afterwards inserted upon the earnest request of the House. Ames on Amendments, 184.

9 The word "establishment" means in this connection a national religion, which is recognized and supported by the government. Paschal on the Constitution, 254.

While adopting the Constitution the States of New Hampshire, New York, Virginia and North Carolina included declarations concerning religious freedom among the changes they wished to make in the Constitution. In North Carolina the convention declined to ratify the Constitution until such an amendment was acted upon. Reynolds v. United States, 98 U. S., 164.