On The Establishment Of Religion (What Supreme Court Justice Joseph Story wrote in 1840)

A Familiar Exposition of The Constitution Of The United States | 1840 | Joseph Story

[Gritty]

The following passages are excerpted from the book, A Familiar Exposition of The Constitution Of The United States by Joseph Story, Justice of the Supreme Court 1811-1845; reprinted in 1986, by Regnery Gateway, Inc., Lake Bluff, IL 60044.

The following is Justice Story's Forward to his own book:

To the people of the Commonwealth of Massachusetts, this work, designed to aid the cause of education, and to promote and encourage the study of the CONSTITUTION OF THE UNITED STATES, by Her ingenuous youth, is respectfully dedicated. By one who gratefully acknowledges, that Her territory is the land of his birth, and the home of his choice. The author. Cambridge, January 1840.

...
&440. The first amendment is, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;...

&441. The same policy, which introduced into the Constitution the prohibition of a religious test, led to the more extended prohibition of any religious test, led to the more extended prohibition of the interference of Congress in religious concerns. We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to dread by the people of the influence of ecclesiastical power in matters of government; a dread which their ancestors brought with them from the parent country, and which, unhappily for human infirmity, their own conduct, after their emigration, had not, in any just degree, tended to diminish. It was also obvious, from the numerous and powerful sects existing in the United States, that there would be perpetual temptations to struggles for ascendency in the National councils, if any one might thus be introduced, to an extent utterly subversive of the true interests and good order of the Republic. The most effective mode of suppressing evil, in the view of the people, was, to strike down the temptations of its introduction.

&442. ... Indeed, the right of a society or government to interfere in matters of religion, will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him of our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; - these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those who believe in the truth of Christianity; as a Divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgement in matters of religion, and of the freedom of public worship, according to the dictates of one's own conscience.

&443. The real difficulty lies in ascertaining the limits, to which government may rightfully go, in fostering and encouraging religion... (note: a discussion follows of various possibilities available to individual State governments, all of which deal specifically with the Christian religion and it's promulgation)....

&444. Probably, at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold in utter indifference, would have created universal disapprobation, if not universal indignation.

(end of discussion)

(p. 313-316)(all emphasis mine, not the author)

[VRWCmember]

Establishment clause ping

[MalcolmS]

Hey guys. Over here! More establishment stuff.


P.S. Interesting post, Gritty!

[CGVet58]

bump read despues

[GulliverSwift]

Good, historical stuff. Story was the authority on things for a very long time. It also proves my point that the First Amendment talks about religion only to prevent the federal government from attempting to regulate or subsidize a church. Whether or not federal officials may engage in religious advocacy (or nonadvocacy) is wholly beyond the scope of the Establishment Clause. It goes without saying that states were allowed to do whatever they saw fit wrt religion and religious entities. See: http://freerepublic.com/focus/f-news/970250/posts Sorry for the plug to those who've already read my post ;-)

[Gritty]

Story was the authority on things for a very long time.

Justice Story makes it pretty clear. And, he had a lot more of the Original Founders around in his day than we have in ours. He could walk right up to many of them and discuss the details!

[Vindiciae Contra TyrannoSCOTUS]

BUMP!

[LiteKeeper]

SPOTREP

[jla]

bttt

[Byron_the_Aussie]

Gee, Sinky. Somehow missed this one?

[Byron_the_Aussie]

Christianity ought to receive encouragement from the State BUMP

[Gritty]

Gee, Sinky. Somehow missed this one?

To be quite honest, he probably didn't feel he could refute Justice Storey, who might just have a better handle on this topic than he, Sinkspur!

[MuddyWaters2006]

On The Establishment Of Religion (More of What Supreme Court Justice Joseph Story wrote about the U. S. Constitution as it relates to the Separation of Church and State)

§ 454. XVIII...it is declared, that "congress shall make no law respecting an establishment of religion," which seems to prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support.

--COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES; WITH A PRELIMINARY REVIEW OF THE CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES,BEFORE THE ADOPTION OF THE CONSTITUTION. BY JOSEPH STORY, LL. D.,DANE PROFESSOR OF LAW IN HARVARD UNIVERSITY. IN THREE VOLUMES. BOSTON: HILLIARD, GRAY AND COMPANY. CAMBRIDGE: BROWN, SHATTUCK, AND CO. 1833.

http://www.constitution.org/js/js_000.htm

[TexasJackFlash]

Does any body have any thoughts on what Joe Story meant when he used the phrase "a national religious establishment" in the sentence which read, "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity?"

[Frapster]

my one and only question I have is - what does 'religion' mean in his mind?

[Stultis]

Does any body have any thoughts on what Joe Story meant when he used the phrase "a national religious establishment" in the sentence which read, "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity?"

Doesn't make any sense to me, especially considering the legislative history. The Senate actually considered rewording the First Amendment to read "national religion," but rejected that and instead kept the general term "religion". Moreover the generality of the term is underscored by the single word being being shared with the Free Exercise clause (obviously no one thinks that free exercise is supposed to extend only to the adherence to a "national" or state religion!) and by the term "respecting" [...the establishment of religion]. The later seems to mean that the establishment clause prohibits the state from doing anything like establishing a religion, or any action touching thereupon. In other words the state is prohibited not only from going all the way in establishing religion, but from going part of the way as well.

In short Story writes as if the "national religion" version of the First Amendment had passed, and sets aside the language of the version that did pass.

[TexasJackFlash]

TexasJackFlash inquired:

Does any body have any thoughts on what Joe Story meant when he used the phrase "a national religious establishment" in the sentence which read, "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity?"


Stultis commented:

Doesn't make any sense to me, especially considering the legislative history. The Senate actually considered rewording the First Amendment to read "national religion," but rejected that and instead kept the general term "religion". Moreover the generality of the term is underscored by the single word being being shared with the Free Exercise clause (obviously no one thinks that free exercise is supposed to extend only to the adherence to a "national" or state religion!) and by the term "respecting" [...the establishment of religion]. The later seems to mean that the establishment clause prohibits the state from doing anything like establishing a religion, or any action touching thereupon. In other words the state is prohibited not only from going all the way in establishing religion, but from going part of the way as well.

In short Story writes as if the "national religion" version of the First Amendment had passed, and sets aside the language of the version that did pass.


TexasJackFlash writes:

That was my first thought. However, just today, I found the following in his chapter titled "Rules of Interpretation of the Constitution" in his "Commentaries":

"Again, it is declared, that "congress shall make no law respecting an establishment of religion," which seems to prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future. In this clause, establishment seems equivalent in meaning to settlement, recognition, or support."

http://www.constitution.org/js/js_305.htm

I don't think J. Story advocated the "National Religion" interpretation of Laban Wheaton and the Federalists. It appears that he may have read the establishment clause more like the Jefferson and the Republicans did.

[TexasJackFlash]

Frapster wrote:

My one and only question I have is - what does 'religion' mean in his mind?

Tex writes:

I have not found an explicit definition of the word "religion" by Story. However, in the following excerpt from section § 1870 of his "Commentaries", Story cites with approval "the duty we owe to our Creator" definition of "religion" adopted in the Virginia Declaration of Rights (1776), The Memorial of the Hanover Virginia Presbytery (1776), The Memorial and Remonstrance of James Madison (1786), The ratification papers of Virginia, North Carolina and Rhode Island (1788-1790) on the Adoption of the Federal Constitution and Saint George Tucker in " Tucker's Blackstone" (1803).


"It has been truly said, that "religion or the duty we owe to our Creator, and the manner of discharging it, can be dictated only by reason and conviction, not by force or violence,..." 1

1 Virginia Bill of Rights, 1 Tuck. Back. Comm. App. 296; 2 Tuck. Black. Comm. App. note G. p. 10, 11."

http://www.constitution.org/js/js_344.htm

[TexasJackFlash]

Stultis wrote:

Doesn't make any sense to me, especially considering the legislative history. The Senate actually considered rewording the First Amendment to read "national religion," but rejected that and instead kept the general term "religion".

Tex writes:

"National religion" could mean "religion established by the national government" or "religion established for the entire nation."

If by "religion" Story meant, "the duty we owe to our Creator", "national religion" could mean, the duty we owe our Creator established by the national government or the duty we owe to God established for the entire nation.

Story's reading of the establishment clause to "prohibit any laws, which shall recognise, found, confirm, or patronize any particular religion, or form of religion, whether permanent or temporary, whether already existing, or to arise in future" suggests to me that by "national religion" Story meant, "an establishment (settlement, recognition, or support) the national government of the duty (or duties?)we owe our Creator."

Stultis wrote:

Moreover the generality of the term is underscored by the single word being being shared with the Free Exercise clause (obviously no one thinks that free exercise is supposed to extend only to the adherence to a "national" or state religion!) and by the term "respecting" [...the establishment of religion]. The later seems to mean that the establishment clause prohibits the state from doing anything like establishing a religion, or any action touching thereupon. In other words the state is prohibited not only from going all the way in establishing religion, but from going part of the way as well.

Tex writes:

I incline toward your view.

Stultis wrote:

In short Story writes as if the "national religion" version of the First Amendment had passed, and sets aside the language of the version that did pass.

Tex writes:

That was my sentiment, until I found his interpretation of the establishment clause in the chapter titled "Rules of Interpretation of the Constitution." Now, I am not so sure.