Nature’s God And The Founding Fathers

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But it was to be almost by accident that the question of religious freedom first arose at the national level. The Constitutional Convention, gathering at Philadelphia in the spring of 1787, ignored it for many weeks—not because it was felt to be unimportant, but because it was considered the business of the states rather than of the central government. But as a hot August steamed into a hot September, it became obvious that the federal machinery designed by men like Madison, Alexander Hamilton, and Roger Sherman was far more powerful than the old Articles of Confederation. What about the rights of the people under such a government? They ought to be, asserted George Mason, “the pole star of political conduct.” The state governments were, in 1787, the guardians of those rights; but the new Constitution greatly reduced the power of the states. With Mason at the center, a small nucleus of delegates began to agitate for specific guarantees, to be built into the Constitution itself. Charles Pinckney, of South Carolina, urged a ban on religious tests for federal officeholders, and the Convention—thinking, no doubt, of their own wide spread of religious opinion—quickly adopted it (Article VI).

Still, the movement for a full bill of rights, similar to those prevailing in a majority of the states, found little support. Mason was deeply disturbed, and announced that he would “sooner chop off his right hand than put it to the Constitution as it now stands.” But Roger Sherman expressed the more general feeling when he said that “the State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” The tired delegates brought the Convention to a close on September 17, 1787, and the Constitution was submitted to the states without a bill of rights. Mason did not chop off his hand, but he did quit the Convention without signing.

As the contest over ratification swung back and forth in the various state legislatures during 1787–88, the federalists were forced to admit that a compromise was in order. From New England to Georgia there was intense pressure for a national bill of rights as a condition of ratification. Some federalists at first viewed this as nothing but camouflage for an attempt to frustrate ratification altogether. Alexander Hamilton was angry and contemptuous. It was the plan of the antifederalists, he declared, “to frighten the people with ideal bugbears, in order to mould them to their own purposes. The unceasing cry of these designing croakers is, My friends, your liberty is invaded!” Washington, choosing somewhat milder language, was inclined to agree.

There doubtless was some basis for this opinion; yet it became more and more difficult to hold it unequivocally. Pamphlets and newspaper articles sprouted on both sides of the question, but the antifederalist clamor for a bill of rights clearly had a grass-roots origin. The issue of religious freedom, while not at this time an agitated question, drew some attention. As a committee of Baptist leaders in Virginia saw it, the new Constitution did not make “sufficient provision for the secure enjoyment of religious liberty”; and an imaginative antifederalist writer in Massachusetts complained that although there was no guarantee of freedom of conscience for the people, the ban on religious tests might result in the election of a Mohammedan President.

Concern over individual liberty, of course, was by no means the exclusive property of antifederalists. Indeed, there were many on the other side (including Madison and Jefferson, both of whom must be counted as federalists at this early stage) who were as deeply devoted to liberty as anyone in the antifederalist ranks. Madison had been somewhat wary of a federal bill of rights for fear that specifying what the central government might not infringe would imply that it could suppress other rights, not enumerated. But reconsideration plus advice from Jefferson changed his mind; and numerous other important federalists finally conceded the expedience if not the need of such a bill. The upshot was that as the state conventions one by one ratified the Constitution, most of them did so with a strong recommendation for the addition of protective amendments. Madison found himself, in March of 1789, setting out from Virginia as a representative to the First Congress, pledged to introduce a large batch of amendments. Among them were, in substance, the ten that now make up the Bill of Rights.

With long congressional debates developing over such urgent matters as new revenue laws, and such intriguing ones as whether the Chief Executive should be called “His Highness” or just “the President,” it was June before Madison was able to get any action on the proposed amendments. Even then there was some reluctance to discuss a national bill of rights in preference to questions of greater sectional interest, and he was obliged to lecture his House colleagues on what their constituents expected of them—particularly “those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power.” He then presented his list of amendments and gave a long speech defending them. One prophetic point he made was in the form of a quotation from Jefferson saying that the federal courts would “consider themselves in a peculiar manner the guardians of those rights” stipulated in such amendments to the Constitution.