The American Constitution and Religion

1

THE REGIME PRINCIPLES OF THE CONSTITUTION

Meeting in Philadelphia from May to September 1787, the Constitutional Convention drew up an instrument of government for submission to the thirteen states. Rhode Island sent no delegates, and two important leaders of the American Revolution and future presidents of the United States were absent: Thomas Jefferson was in Paris as ambassador to France, and John Adams was in London as ambassador to Great Britain. Two fiery patriots, Patrick Henry and Richard Henry Lee, refused to attend. Nevertheless, the Convention included illustrious participants, such as Alexander Hamilton of New York, James Wilson and Gouverneur Morris of Pennsylvania, and especially James Madison of Virginia. Benjamin Franklin was present, and George Washington, the victorious commander of the army in the Revolutionary War, presided. The delegates were commercially minded, lawyer-dominated, and intent on establishing a central government with independent powers to raise taxes, regulate commerce, and govern foreign affairs.

The views of the framers of the Constitution on society and government, like the views of the framers of the Declaration of Independence, reflected the philosophy of the British Enlightenment in general and John Locke in particular. Their religious views ran a wide gambit, from the skepticism of Franklin to the Catholicism of Daniel Carroll. Many were Deists, but most of them probably believed in the immortality of the soul and attended church services at least periodically. In fact, during the Convention's sessions in Philadelphia, the delegates occasionally attended church services, including once at a nearby Jesuit residence.

By the time of the Revolution, the colonists had laid the foundation of self-government and the framework of their legal systems. All the colonies had a bicameral legislature, the lower house of which was a popularly elected assembly that controlled the purse and participated in legislating. In New England, local officials were elected and local ordinances adopted at town meetings. Although the Crown appointed governors in the royal colonies and proprietors in the proprietary colonies, Rhode Island and Connecticut elected theirs. The governors in most colonies appointed the executive council, but Massachusetts, Rhode Island, and Connecticut voters elected theirs. The Crown—that is, the British government—appointed the judges in most colonies, but the legislatures of Rhode Island and Connecticut appointed theirs. The division of executive, legislative, and judicial powers was modeled on the British Constitution. But suffrage in the colonies was restricted. Women were excluded, and voting was in several states limited to freeholders. The colonists also adopted the principles of English law, including codes of criminal and civil law, trial by jury, and the writ of habeas corpus.

It is important to note that the framers, despite their philosophical convictions and British heritage, were engaged in practical statecraft. The pragmatic need to overcome the deficiencies of the Articles of Confederation was their driving motivation for governmental reform. The Confederation required unanimous consent of the states to regulate domestic commerce, to establish a stable currency, to collect taxes, to pay foreign debts, and to negotiate with foreign powers. The primary object of the framers was to remedy these deficiencies with a strong national government.

Four basic principles underlie the U.S. Constitution. First, the Constitution grants limited powers to the federal government, and the federal officials have only the powers the Constitution explicitly or implicitly grants. Second, the powers of the federal government derive from the consent of the people. Third, the Constitution provided for separate executive, legislative, and judicial powers, and those powers checked and balanced one another. Fourth, the Constitution provided for a federal system of government in which both the federal government and the state governments had legitimate powers.

CONSTITUTIONALISM

The expression government of laws, not of human beings signifies the essence of constitutionalism—that is, limited government. Law can mean customs and conventions, statutes, judicial decisions, or higher law. If we accept some or all of these as constituting a fundamental framework of government, then the word constitution denotes the body of rules, written and unwritten, that constitute the character of a particular government.

Unlike the kingdom of Persia, whose rulers were despots and subjects were slaves, the Greek city-states had largely unwritten constitutions that specified the roles of rulers and citizen-subjects. But the Greek city-states were internally unstable and ultimately subjugated by the Macedonians. Rome had a largely unwritten constitution embodying aristocratic and democratic elements, but it, unable by the first century B.C. to manage social and economic tensions, lapsed into rule by personal triumvirates and ultimately emperors, although subjects continued to be citizens with certain rights. Medieval Western kingdoms had custom-based constitutions, but there was no means to control the monarch's exercise of power short of rebellion, although parliaments were by the end of the thirteenth century A.D. evolving in England and elsewhere. The rise of absolute monarchies in the early modern period put an end to any institutional constitutionalism. The king claimed absolute power from God and admitted responsibility only to him.

Modern constitutionalism involved the attempts of subjects to limit the powers of kings. In England this involved the revolutions against Charles I and James II. The American colonists accepted the English settlement and developed its institutional framework and customary rights in their own evolution. But the eighteenth-century philosophy of natural rights offered by Locke was so neatly tailored to the Anglo-American tradition, the American conception of the British Constitution, and the rights of Englishmen that it deserves further consideration.

Locke's theory of knowledge was empirical and subjective. Human beings knew the sensibly perceptible phenomena of things, not the nature of things. Nevertheless, they had a self-evident idea of the law of nature. In the state of nature, all human beings were free, independent, and equal,¹ and Locke apparently thought that the indigenous inhabitants in the Americas lived in such a state. Unlike ancient and medieval philosophers, who considered human beings inclined by nature to live in an organized community, Locke postulated that human beings are by nature asocial, and they could become subject to the authority of rulers in a community only by the consent of their individual wills. The latter proposition was, for Locke, self-evident.

Nevertheless, the insecurity of the rights of individuals to their life, liberty, and property in the state of nature drives them to contract with one another to organize themselves into a society and subject themselves to rulers.² Although individual autonomy is the state of nature and accordingly preferable, government is necessary because the state of nature has no clear standard to define the rights of individuals or adequate power to preserve those rights. By consenting to form a society and establishing the form of government by majority decision, individuals morally oblige themselves to obey the rulers established.³ The rulers are not parties to the contract, but trustees to define and enforce it, and so, if rulers abuse their trust, the compact is dissolved, and revolution justified.⁴

The concept of natural rights was not new with Locke. Ancient and medieval philosophers had long distinguished natural justice and naturally right order from convention, and the order of nature included an organized association of individuals with one another. Unlike those philosophers, Locke excluded sociability from his theoretical state of nature. According to him, the asocial nature of human beings was self-evident, presumably meaning an analytic proposition—that is, a proposition in which the predicate (unsociability) is contained in the definition of the subject (human being). But quite the opposite is analytically true. Human beings are rational animals, and so they as such are by nature inclined to live in cooperative association with one another in pursuit of their material well-being and especially immaterial well-being—namely, the acquisition of intellectual and moral virtue.

Locke reduced the rationality of individuals joining in an organized society and government to a calculation of necessary means to preserve one's life and secure one's rights, in effect a mutual nonaggression pact with a peacekeeping force. By restricting the function of the state to safeguarding individual rights, he eliminates from government a positive role to promote the common material and immaterial good and reduces the very notion of a common good in which individuals share to the aggregation of individual goods.

The framers were not only legatees of John Locke. Their experiences as Englishmen and colonists also influenced them. They were conscious of the parliamentary struggles against the Stuarts to vindicate civil and parliamentary rights, their own struggles with royal governors, over whom they had a kind of veto power by their control of the purse, and their relatively recent struggle for independence. They accepted from these experiences the practical necessity of restraining government to limited objectives. Moreover, the framers knew that states rights were popular, and so that only a limited federal government was possible. In this context it is difficult to say how much the philosophy of Locke, albeit a theoretical framework, influenced the framers' thinking.

The preamble declares that the Constitution was being established in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. The aim of promoting the general welfare seems to indicate a broader concept of the sphere of government than Locke's, and the Supreme Court, in both U.S. v. Butler,⁵ invalidating taxes to pay farmers to curtail agricultural production, and Stewart Machine Co. v. Davis,⁶ validating taxes to pay unemployment compensation, affirmed the power of Congress to levy taxes for the general welfare without any specific grant of such power. The former decision held that Congress could not impose regulations on recipients invasive of the power of states to regulate agricultural production, but a later decision, U.S. v. Darby,⁷ rejected the distinction between production and commerce. This brought regulations of agricultural production in connection with the power to tax within the power of Congress to regulate commerce.

Article 1, sec. 8, cl. 1 granted to Congress the power to lay and collect taxes, but Article 1, secs. 2 and 9 required that all direct taxes be apportioned on a per capita basis. Madison's notes shed no light on the distinction between direct and indirect taxes, but Hylton v. U.S. held in 1796 that only head and land taxes were direct taxes.⁸ During the Civil War, Congress levied the first income tax, which the Supreme Court in Springer v. U.S. upheld as an indirect tax.⁹ In 1894, Congress passed a permanent income tax, which the Supreme Court in Pollock v. Farmers' Loan and Trust Co. declared a direct tax and so unconstitutional.¹⁰ Although the framers never considered the possibility of federal income taxes and would probably have denied Congress power to levy such taxes had they considered the matter, the traditional understanding of direct taxes and the unlimited constitutional power of Congress to levy indirect taxes should have sufficed to validate the income-tax law. The subsequent Sixteenth Amendment adopted in 1913, of course, settled the question.

Article 1, sec. 8, cl. 3 also granted to Congress the power to regulate commerce among the several states. The framers primarily designed the clause to enable Congress to remove barriers of interstate commerce. Through most of the nineteenth century, the constitutional issues concerning this clause involved whether state or local regulations violated it. In one case (Gibbons v. Ogden),¹¹ however, John Marshall gave broad definitions of the key words: commerce includes everything related to commercial intercourse; among the several states means all action affecting more than one state; regulate means complete control. Beginning in the late nineteenth century, Congress exercised its jurisdiction under clause to regulate railroads (the Interstate Commerce Act) and commercial combinations (the Sherman Antitrust Act). As a result of the Great Depression, the federal government assumed comprehensive management of the economy. In 1935, the Social Security Act inaugurated the welfare state. The framers, had they been legislators, might have supported the regulatory federal actions, but they would almost certainly have opposed the welfare state. Nonetheless, the general wording of the commerce clause supports its constitutionality.

Congress in 1791 passed legislation to charter the Bank of the United States for twenty years. President George Washington, over the strong objections of Thomas Jefferson, the secretary of state, signed the legislation. Congress did not recharter the bank in 1811, but a Second Bank was charted in 1816. When Maryland attempted to tax the Baltimore branch in 1818, its manager, McCulloch, refused to pay the tax, Maryland brought action against him, and the state courts ruled against the bank. McCulloch then appealed to the U.S. Supreme Court. Strict constructionists, following Jefferson, denied that Congress had power to charter national banks, since there was no express provision in the Constitution granting Congress that power. Broad constructionists, following Alexander Hamilton, the original proponent of the bank, argued for an implied congressional power.

In the landmark case of McCulloch v. Maryland,¹² Marshall ruled that Congress had the power to charter the bank. He admitted that Congress has only the powers enumerated in the Constitution, but argued that this includes powers implied in the enumerated powers. Unlike the Articles of Confederation, the Constitution does not exclude implied powers, and the Tenth Amendment declares only that powers not delegated to the United States, nor prohibited to the states, are reserved to the states and the people, not that powers not expressly delegated are reserved to them. Congress has the power to select the means to implement its express powers to lay and collect taxes, to borrow money, to regulate commerce, to declare and conduct war, and to raise and support armies and navies. Moreover, Art. 1, sec. 8, cl.18 grants Congress the power to make all laws necessary and proper to the execution of the foregoing powers (clauses 1–17). Because clause 18 of section 8 purports to enlarge the powers of Congress, in contrast to section 9, which limits them, the word necessary should be interpreted to mean convenient or useful, not absolutely necessary. (Given Marshall's argument for implied powers, reliance on the so-called elastic clause [Art. 1, sec. 8, cl. 18] seems superfluous.)

The broad construction of those powers of Congress may well exceed the intentions or expectations of at least some of the framers. No framer at the Convention, according to Madison's notes, even mentioned the possibility of a federal power to tax personal income or charter a national bank, and most framers surely did not envision a federal power to tax to support unemployment compensation. But, as Justice Frankfurter once observed, the words of the Constitution that the framers wrote, not their intentions, constitute the first guidepost for interpreting it.¹³

The foregoing description of the powers of Congress makes clear that the Constitution needs to be interpreted, especially because the Constitution provides a general framework for government rather than the detailed rules of a statute. But who is to decide authoritatively whether a federal law is constitutional? Hylton v. U.S. indirectly addressed the question in 1796 when the Court upheld a federal tax on carriages,¹⁴ but Marbury v. Madison directly addressed and answered the question in 1803 when the Court invalidated the provision of a federal law regulating the Supreme Court's jurisdiction.¹⁵

William Marbury had been appointed justice of the peace in the District of Columbia and confirmed by the Senate, and his commission had been signed by President Adams and sealed by the outgoing secretary of state, John Marshall. The incoming secretary of state under President Jefferson, James Madison, refused to deliver the commission to Marbury. Marbury then brought an original action in the Supreme Court to order its delivery. The Judiciary Act of 1789, sec. 13, authorized the Court to issue writs of mandamus to courts and officers of the United States, and Marshall, now chief justice, interpreted, very arguably misinterpreted, the act to authorize the exercise of original jurisdiction by the Court. Marshall held that Congress could not enlarge the Court's original jurisdiction beyond the items enumerated in Art. 3, sec.2, clause 2, and that the relevant part of section 13 of the act was unconstitutional.

Marshall claimed that it was the judicial function to say what the Constitution is. The only argument he made to substantiate that claim was an appeal to the judge's oath promising to discharge judicial duties in accord with the Constitution. The Constitution does not expressly say that the Court may declare a federal law unconstitutional, although Federalist 78 suggests that it may. One may reasonably suppose that the Constitution allows, and the judicial function requires, the Court not to apply a federal statute deemed unconstitutional to cases before it, but that does not necessarily imply that the Court's interpretation binds the president. Indeed, that was precisely the position of President Jefferson. Nonetheless, since allowing the executive to determine the constitutionality of federal statutes in one way and the Court in another way would invite political chaos, judicial supremacy regarding interpretation of the Constitution is now commonly accepted, and so the Constitution is effectively what the Supreme Court says it is. Moreover, the legislative supremacy obtaining in many parliamentary systems means that those who write the laws also determine their constitutionality, which invites Plato's famous question: Who will watch over the guardians?

In conclusion, however much the political philosophy of John Locke was the theoretical foundation of the Constitution as an instrument of limited government, the framers tailored theory to the practical aim of statecraft—namely, to frame a powerful and practical instrument of government. The text was susceptible to broad construction, and John Marshall used judicial power to so construe the text. In Gibbons he gave the commerce clause a broad construction. In McCulloch he ascribed implied powers to Congress and invoked the elastic clause to support that position. In Marbury he established the Court itself as the supreme arbiter of the Constitution. Thus the Constitution, designed to confer sufficient power to meet the needs of 1787, enabled future generations to address problems that required greater federal action.

POPULAR SOVEREIGNTY

Government in Western societies involves a concept that it derives from the consent of the governed. This may mean simply that government derives from the rational and free activity of citizens seeking a common good by their organization in a body politic. It may mean that the people designate their governing personnel. It may mean that political authority resides in governments directly from the people rather than directly from God. Last, when restricted to democratic governments, it may mean that the people determine government policy either directly or through representatives, and that the people never completely transmit their power to governments and so remain the supreme political authority.

We owe to the Greeks the idea that citizens are not slaves of their rulers, although Plato and Aristotle were focused on the good or best form of government rather the derivation of political authority. This idea implies that the authority of rulers derives from the consent of the citizen-subjects. Romans of the Republic also thought that citizens were free, but they were more conscious of statutory and customary law. Cicero, for example, defined the commonwealth as an association of human beings under laws.¹⁶

Medieval Christian philosopher-theologians derived political authority ultimately from God, the author of nature, but they derived the ruler's authority proximately from the people. In the sixteenth century Catholic philosopher-theologians, principally Spanish, conscious of the emerging centralized monarchies and reacting against the theory of the divine right of kings, maintained an explicit transmission theory. God conferred authority immediately on the political community that human beings formed by mutual consent, and the political community transmitted its authority to the ruler they instituted. Thus they reconciled the community's derivation of authority from God and the ruler's derivation of authority from the community.

An impetus for a contract theory between governments and peoples came from Massachusetts Bay Calvinists. They espoused a twofold covenant, one between God and the elect individually and the other a theocracy between God and the elect collectively. Even when, by 1787, the Enlightenment had eroded the theological and theocratic foundations of the social covenant, the language and governmental framework of the social covenant remained embedded in the thinking of New Englanders.

Thomas Hobbes and Jean-Jacques Rousseau authored other contract theories, but American colonists preferred Locke's, because his embodied individual rights and reflected their own experience in founding new communities and governments. Accordingly, the framers held that citizens contracted to form society and institute government for limited purposes.

But the government the framers established, like that of Locke, was not completely democratic—that is, not completely egalitarian nor completely subject to rule by the majority. The framers accepted, of course, that the body politic is the proximate source of political authority and provided for the election of the president and Congress for specified terms. The people had a voice in choosing the government, but not total control. Representatives in Congress were popularly elected, but voting was restricted by the qualifications requisite for voting for representatives of the most numerous branch of the state legislature. Slaves, of course, could not vote, nor could women, except as freeholders in some states, and most states had property qualifications on voting. Thus only adult white males could vote for representatives in Congress, and that number of eligible voters was usually further restricted by property qualifications. The state legislatures, not the people directly, elected U.S. senators. Electors chosen in the manner determined by the state legislature, not by the people directly, unless the state legislature so determined, elected the president. (The deference to state legislatures in the election of senators and the manner of choosing electors of the president represented an effort to appease those anxious to protect the interests of states.) And judges were appointed for life, not elected.

SEPARATION OF POWERS

Closely associated with the notion of government limited by nature was the notion of separate powers of government. Locke described three powers of government: legislative, executive, and federative. For him the judicial power was part of the executive power because the executive appointed the judges, and the federative power—that is, the power to declare war, conclude peace, and make treaties with foreign nations—was, subject to certain limitations, in the hands of the executive. Thus there were basically only the legislative and executive powers, since the executive power included the judicial power. Locke's principal contention was not that the two powers are completely separate, but rather that the whole legislative power should not be in the hands of the supreme executive power—namely, the king, since that would lead to tyranny and the destruction of individual liberty.

Montesquieu, in the middle of the eighteenth century, transformed Locke's position against lodging the totality of legislative power in the hands of the executive into an analysis of the natural separateness of the legislative, executive, and judicial functions of government, with a system of checks and balances to prevent any one power having undue dominance. In this respect Montesquieu admired the separate powers of the eighteenth-century British Constitution as the mirror of political liberty. So did the framers, and they modeled the separate powers in the U.S. Constitution on that of the British Constitution.

Exercise of the British legislative power required not only passage of a law by both houses of parliament (the Commons and the Lords), but also royal assent. Unlike the present British Constitution, royal assent was not a mere formality, and the king had an absolute veto power over legislation, which he often exercised. The king had supreme executive power, but his subordinate administrators, the prime minister and cabinet, held office only as long as they enjoyed the confidence of the Commons, and parliament controlled the government's purse. The judicial power was independent insofar as the judges interpreted laws and applied them to particular cases, but the executive appointed the judges, parliament could remove judges by the impeachment process, and the House of Lords was the highest appellate court. Indeed, parliament could enact legislation with the king's assent to overturn judicial decisions. Thus the British Constitution separated the legislative, executive, and judicial powers, but not completely, giving the executive an equal voice with the two houses of parliament in the legislative process, the legislature power of the purse over the executive and the power of impeachment over ministers and judges, and judges the power to interpret the laws.

The U.S. Constitution followed a similar pattern of separate powers with checks and balances, but not in every particular. It does not explicitly separate the legislative, executive, and judicial powers. Rather, the principle is implicit in the first three articles. Article I invests all the legislative power granted to the federal government in the Congress. Article II vests executive power in the president. Article III vests judicial power in the Supreme Court and the inferior courts established by Congress. The Constitution, while separating the organs of government, fuses their functions and powers. As Madison says in Federalist 47, the sharing in powers by which one branch of government checks and balances another was a way to restrict the exercise of governmental power and to enable each power to protect its independence.

The chief executive is a president, not a king. The president shares in legislative power by his qualified veto power, which Congress may override by two-thirds majorities in both houses of Congress. The president has the power to appoint all superior officers of the United States, ambassadors and public ministers, and judges, but only with the advice and consent of the Senate. The president has the power to