Religion and the Founding Principle states for private rights and the steady dispensation of justice. "Interferences with these were evils which had more perhaps than anything else, produced this convention.” In a republic the majority rules; when the majority is united by a common interest or passion, the rights of the minority are in danger. What, he asked, will restrain it? Not a "prudent regard to the maxim that honesty is the best policy"; not a "respect for character"; not "conscience"; not religion. Indeed, "religion itself may become a motive to persecution and oppression." The states called for morality, but they had not succeeded in providing it. The states praised sumptuary laws, John Adams noted, but such laws were more often praised than enacted." That was why an entirely different approach, an approach embodying a substitute for or a supplement to morality, had to be found.* Fortunately, a substitute or supplement was available. The "mischief" could be cured by controlling the effects of faction: instead of attempting to make men moral by preaching to them to love their neighbors as themselves, which cannot be relied on to work in the United States ("we well know that neither moral nor religious motives can be relied on as an adequate control”), instead of trying to control the passions, especially acquisitiveness or greed, the state could direct the passions of men to the pursuit of material goods. It is in this context that Madison says that the "protection of different and unequal faculties of acquiring property... is the first object of government." There would be no unrestrained majority operating within each state and riding roughshod over the rights of others, since a large commercial republic like that delineated in the tenth Federalist would make the formation of such a majority extremely difficult. And instead of civil strife and wars caused by disputes between Catholics and Protestants, Christians and Jews, or high *This issue of the republic founded on public spirit and virtuous citizens or the republic founded on self-interest and the commercial spirit was the issue debated in the ratification struggle, with the Antifederalists contending for the former and the Federalists for the latter. The Antifederalists, of course, lost the debate, which proved to be decisive for the subsequent history of the country. Religion and the Founding Principle church or low church, men could live in peace and liberty if permitted to pursue successfully their passion for material wellbeing (and they would succeed, and have succeeded) in the large commercial republic dedicated to promoting "different degrees and kinds of property." In short, instead of pursuing eternal salvation and fighting over how to achieve it, if men seek material gratification and win it, republican government will be possible. We know the result under the name of capitalism. Capitalism, understood as the right of unlimited acquisition, will promote the "Wealth of Nations" and, by so doing, secure the rights of man. This is what it means to say that acquisition is the substitute for morality—or, to speak more soberly, was intended to be a substitute for morality. Conclusion Liberalism knows nothing about happiness; indeed, according to the "laws of nature and Nature's God," the only knowledge of this available to man is knowledge of the conditions appropriate to the pursuit of what each man may call happiness. It follows from this that there can be no official answer to the most important question: How shall I live? The role of the properly constituted government is therefore confined to guaranteeing the conditions that allow each man to pursue his privately defined happiness. Liberalism preserves the private sphere and fosters the self-defined private life. Stated within the terms of the First Amendment, the United States may not establish any church or recognize any creed or any articles of faith, but it must protect the rights of conscience, or the right of every man to believe what he will. These "operations of the mind," as Jefferson put it, unlike "the acts of the body," are not "subject to coercion of the laws." Thus was religion subordinated through relegation to the private realm, where everyone is free to believe there is one god or twenty gods or no god at all. Religion and the Founding Principle But the acts performed by the body are not independent of the operations of the mind, so that even the truest of liberal governments may not be able to remain indifferent to this private realm where opinions are formed. As early as 1781, Jefferson was wondering whether American liberty did not depend on the "conviction in the minds of the people" that it was the gift of God; and after only eight years of government under the Constitution, Washington warned the nation that religion provided the "indispensable" support of those "dispositions and habits which lead to political prosperity." Then, on the eve of his death, Jefferson again said that he rejoiced "that in this blessed country of free inquiry and belief, which has surrendered its creed and conscience to neither kings nor priests, the genuine doctrine of one god only is reviving, and [he hoped] that there [was] not a young man [then] living in the United States who [would] not die an Unitarian." It was still a private matter whether a man said there is one god or twenty gods or no god, but Jefferson was himself of the opinion that it would be politically beneficial if Americans privately were to decide that there is "only one God, and he all perfect," that "there is a future state of rewards and punishments," and that everyone should "love God with all [his] heart and [his] neighbor as [himself]."" Liberal government protected the private realm, but there seems to have been an awareness that the health of liberal government required certain virtuous habits to be preserved in that realm. Stated otherwise, liberalism required both the subordination of religion and the maintenance of certain habits that religion alone could inculcate. This is why the First Congress, in drawing up the First Amendment, protected the right to be religious and, in forbidding laws respecting an establishment of religion, was careful to avoid language that would also forbid aid, including financial aid, to religion on a nondiscriminatory basis. Thus, Justice Douglas was right when he complainedeven if from the point of view of the authors of the First Amend Religion and the Founding Principle ment he was wrong to complain-that our "system at the federal and state levels is honeycombed with such financing."" In God (reasonably defined) we do indeed collectively trust, and there is even room for those who trust in Him first and foremost, provided their piety stays within the bounds required for "peace and good order." Until those bounds are violated, Jefferson said, it is unnecessary for "the State to be troubled with [them]."'" Americans had, as Tocqueville observed, succeeded in combining the spirit of religion and the spirit of liberty, but they did so by subordinating the former to the latter. Not only were they wise to do so, he suggested, but the two could not be combined in any other fashion." Still, if he was right, "the whole nation" held religion "to be indispensable to the maintenance of republican institutions,"" and it was his opinion that only so long as this combination was maintained would the crisis of liberalism be avoided. The First Amendment question of our own day is whether the Supreme Court will permit the means of maintaining both religion and liberty. 39-015 0-84--14 Senator HATCH. Our next witness is Prof. Burke Marshall of the Yale Law School. He is the former Assistant Attorney General for Civil Rights and one of the most distinguished constitutional scholars in the country. STATEMENT OF BURKE MARSHALL, PROFESSOR, SCHOOL OF LAW, YALE UNIVERSITY Mr. MARSHALL. Thank you, Mr. Chairman. I have a very brief statement, and I will read most of it into the record. Senator HATCH. That will be fine. Mr. MARSHALL. My name is Burke Marshall. I am the John Thomas Smith Professor of Law at the Yale Law School in New Haven, CT. I teach courses on the Constitution and constitutional litigation and have for several years taught a course at the law school concerned specifically with the first amendment, including the establishment and free-exercise clauses. My testimony is for myself. I do not speak for the Yale Law School or for any group. Let me state at the outset that I construe the language of Senate Joint Resolution 73 to contemplate the use in schools of prayers written or at least chosen by school boards or other instrumentalities of the State, in the context of the regular program of the school involved, with the proviso that no person shall be required to participate in prayer. In other words, I take the thrust of the amendment to be to overrule Engel v. Vitale and Abington Township School v. Schempp, as well as the many subsequent decisions implementing the constitutional policy applied in those cases. If I am wrong about the meaning of the proposed amendment, then the force of my objections to it would be diminished. The core objection to the resolution is that it inescapably leaves the matter of the choice of the prayer or prayers to be offered as part of a school program up to the agents of the State. Who else but members of the school board or other officials of the State will write the prayer, as in Engel? Who else but those officials of government can mediate among religious groups competing on political turf to have their religious faith represented by their prayer and not someone else's? Yet, what school board or school superintendant or parent-teachers association or legislature has the wisdom and knowledge to penetrate through religious beliefs and discover the eternal verities? It was to keep government and government officials out of the business of making such choices that the people asked to ratify the Constitution insisted on the inclusion of the establishment and free-exercise clauses in the first amendment as a condition of their approval. They realized that the making of any such choices by government is a step of extraordinarily important symbolism, even if an apparently minor one, in the direction of putting an official stamp of approval on some particular form of religious belief, as against all other conceivable alternatives. There should be no doubt that it would be perceived as such by those who · proposed amendment is intended to benefit most, |