THE FOUNDERS WEREN’T NEUTRAL
Nobody in 1791 expected any American government—state or federal—to be neutral as between religion and irreligion. The Founders did not have a take-it-or-leave-it attitude about religion; to the contrary, they generally agreed with John Adams’s admonition, “Our Constitution was made only for a moral and religious people.” The federal government was expected to promote and encourage religion in general because, as Madison had argued in Federalist No. 51, the security of “religious rights” depends upon a “multiplicity of sects.” A robust diversity of religions would be the best safeguard against the sort of religious oppression that Europe had witnessed. In short, the Founders hoped to encourage sects, but not violence. To say this is not an attempt to guess at the secret intentions of the framers. Their support of religion is reflected in the text itself.
For one thing, the Constitution bars atheists from holding public office. Article VI requires that all legislators, and all executive and judicial officers—on both the federal and state level—take an oath to support the Constitution. But under the law at the time, only those who believed in God and in an afterlife could swear an oath. Atheists could not, for example, serve as witnesses in court—to whom would they swear to tell the truth? As late as 1820, New York’s highest court observed, “It is fully and clearly settled, that infidels who do not believe in God, or if they do, do not think that he will either reward or punish them in the world to come, cannot be witnesses in any case… because an oath cannot possibly be any tie or obligation upon them.
At the North Carolina ratifying convention, lawyer and future Supreme Court justice James Iredell explained that the oath requirement would ensure a basic level of religious belief among officeholders because an oath is a “solemn appeal to the Supreme Being, for the truth of what is said, by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments.” Madison acknowledged the religious nature of the oath in a letter of October 1787—just one month after the constitutional convention adjourned.
Although the Constitution requires a minimum level of religiosity for all officeholders, it does not favor any particular denomination—Article VI also prohibits any “religious Test” for holding federal office. As a whole, Article IV perfectly illustrates the framers’ vision of the federal government’s role in religion. The government could not, for example, require that all congressmen be Anglicans, or even Christians, but it does require that they be theists. Indeed, the framers were so scrupulous about the ecumenical nature of the oath that they specified that officeholders could “swear or affirm” to uphold the Constitution—affirmation being the method for Quakers and other individuals who objected to “swearing.”
NEVER ON A SUNDAY
The early actions of the federal government also tend to debunk the neutrality canard. The very same Congress that approved the First Amendment also provided for paid chaplains in the House and Senate, and called upon President Washington to proclaim “a day of Public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many and signal favors of Almighty God.” That same Congress also reenacted the Northwest Ordinance, which declares the government’s policy that the teaching of “religion, morality and knowledge” shall “forever be encouraged.”
The Court’s liberals respond to all this with a phony brand of originalism that recasts the framers as secular humanists.
Happy to ignore the text of the establishment clause, the neutrality crowd prefers to focus on things that the framers didn’t say. In Marsh v. Chambers, for example, Justice William Brennan found it highly significant that the framers “did not invoke the name of God” in the Constitution. Well, except that they did—in Article VII, which records the date of the document as “the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven” (emphasis added). Who, one wonders, did Justice Brennan imagine “our Lord” to be?
Another provision that would be inexplicable to any proponent of strict neutrality can be found in Article I, Section 7. When Congress passes a bill, that clause gives the president ten days to decide whether to veto it; that is, ten days, “Sundays excepted.” Why exclude Sundays? Wait—don’t tell me—I know this one.
Adam Freedman, The Naked Constitution: What the Founders Said and Why It Still Matters (New York, NY: Broadside Books, 2012), 166-169.