17 September — Constitution Day

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I normally do not "recycle" posts, but every year on or about 17 September, I re-publish this "Skeptic's Collection" column commemorating the completion and signing of the US Constitution by the 55 members of the Constitutional Convention, gathered in Philadelphia from 25 May through 17 September of 1787.  So I am making an exception to my "no-recycle" rule and republishing a chapter of my recent e-course on the history and  foundations of the US Constitution. The Constitution is an imperfect document, and the original, pre-Civil-War version especially so. In fact, that antebellum Constitution was pretty explicitly pro-slavery because of provisions like the "3/5 clause", the prohibition against interfering with slave trafficking for roughly 30 years, etc. But then, even in its antebellum form, the Constitution never claimed to be anything other than a work-in-progress, as the Article V amendment process implicitly attests. As a society, we are still in the process of articulating, however stammeringly, the principles latently "encoded" in the Document, as recent decisions like "Windsor" and "Obergefell" demonstrate. Whether that process succeeds or fails ultimately depends on us.  As Chief Justice John Marshall said in "Cohens v. Virginia" in 1821, "The people made the Constitution and the People can un-make it. It is a creature of their own Will and lives only by their Will."

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 Upon a cursory first reading, the US Constitution would appear to have even less to do with God than the Declaration of Independence. Recall from Part 4 that the Declaration contains three  explicit references to God -- "nature and nature's God", "endowed by their Creator", and "with a firm reliance on the protection of divine Providence" -- whereas the Constitution only contains one at the very end, and that one is very arguably a purely “ceremonial” or “formal” reference as a customary 18th-century way of specifying the date on legal documents (the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven) signifying no more, theologically, than the farewell expression “goodbye”, which originally meant “God be with (or by) ye”. In fact, if we define the term “religion” exclusively and narrowly in terms of references to any deity, the Constitution, with that one lone exception, is a radically “agnostic” and “un-theological” document – much more so, even, than the Declaration of Independence that preceded it. In fact, there is no explicit reference to God at all in the Constitution “proper”, i.e., the Constitution without the Amendments, and the only place the Constitution even makes a glancing reference to God is in the “religion clauses” of the First Amendment, which we discuss in the sixth and final post of this series.

But such a definition of “religion” would be grotesquely narrow. Religion has at least as much – arguably more – to do with human beings than with God, and in any case, religion also pertains to the relationship between them. Anthropology is at least as important to the definition of “religion” as theology. Irrespective of one’s personal theology, religion revolves around the axis of the relationship between God and human beings, and how each relates to the other. Even under this broader and more realistic definition of “religion”, the place of religion in the American Constitution is still deeply “recessed” and implicit. The Constitution is, in a very radical and fundamental sense, a “horizontal” Document, a Document for human beings, not gods, with basically no “vertical” component. But even this lack of “verticality” carries within it an implicit view of God, of religion, and of the place of both in the Nation whose government the Framers were in the process of designing when they wrote the Constitution. At least in the Constitution "proper," the absence of explicit references to God, religion, and faith tells us as much as any explicit reference ever could.

The Origin Of The Constitution

The origin of the Constitution is rooted in history as well as in 18th-century European Enlightenment ideology.

o Historical

A couple of years into the beginning of the Revolution, the 13 Colonies were pulled in two conflicting directions at once.  On the one hand, the Founders, having dealt with the Crown and the British colonial bureaucracy, were implacably suspicious of all forms of government authority that claimed to have the power to determine the actions and policies of the Colonies, both individually and separately.  They were square-jawed determined not to found a colonial government that would merely be the British Crown that happened to speak with an American accent, but that was otherwise indistinguishable from the oppressive bureaucracy from which they had just declared independence.  Though it is difficult for us to imagine, each Colony, at this point in time, thought of itself as a sovereign nation.  During this time, in the late 1770s, when Colonial leaders spoke and wrote of "independence," they meant by that word something much stronger than the meaning we attach to it today.  On the other hand, they realized the need to cooperate with each other and to coordinate their actions, even in time of peace but most especially during time of war.  (Hence Benjamin Franklin's famous warning ""We must hang together, gentlemen...else, we shall most assuredly hang separately.")  So the Colonies entered into and documented a compact known as the Articles of Confederation.  Under the Articles, each Colony pledged to cooperate and to coordinate with her sister Colonies ... but only as long as and to whatever extent such cooperation and coordination served the interests of the individual, cooperating colony.  Consequently, the Confederation Congress -- there was a President of the Congress, but no Chief Executive in the modern sense of "President" -- could take action on behalf of the Colonies only on the basis of a unanimous decision of all the Colonies.  For example, the Confederation Congress could levy taxes on the Colonies -- but only as long as each Colony agreed to pay such, and even then the payment schedule itself was defined by each State. The Confederation government was very much like the modern-day United Nations:  in trafficked in suggestions and recommendations, not laws. To be sure, if you read the Articles of Confederation, the language in places sounds superficially very strong and commanding, but a closer reading reveals that the requirements levied on the States are requirements in name only, requirements in double quotes -- rather like the requirement, in the Supreme Court's Brown v. Board of Education decision of 1954, that the States must implement racial integration of their school systems "with all deliberate speed".

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Even then, the Colonies required basically the entire period of the Revolution to ratify the Articles of Confederation.  The Articles were first proposed and submitted to the Colonies in 1777 -- the year after the Declaration of Independence was published -- but not ratified until 1781 -- the same year Lord Cornwallis surrendered at Yorktown, and two years before the Treaty of Paris officially ended the American Revolution. In between, the Colonies cooperated and coordinated in an unofficial manner consistent with, but not bound by, the Articles of Confederation. So even by the War's end, it was becoming abundantly evident that, suspicion of strong central government notwithstanding, even the Confederation government was not strong enough to afford the kind of cohesion necessary for the young American Nation to survive as a Nation.  Governments run on laws, not well-intended advice. What drove home this point was the severe economic recession that hit the Colonies in the wake of the Revolution.  The Continental currency issued by the Congress was next to worthless -- giving rise to the epithet "Not worth a Continental dollar" or "Not worth a Continental".  This recession placed farmers in the hinterlands of western Massachusetts in especially dire straits. Farms and real property were being foreclosed on, bankruptcies were being declared, and banks and bankers were being enriched at the expense of the "47-percent-ers" of the late 1770s. The result was a rebellion orchestrated by Daniel Shays, at first against Massachusetts state courts to prevent farm foreclosures and seizures, and eventually a plan on the part of the "Shaysites", as they were known at the time, to even seize the Confederation armory in Springfield in January of 1787 and to march on the national government.  The rebellion was quashed and some of its leaders executed.  In terms of sheer scale, Shays Rebellion is the merest blip in the Nation's history, but it served as a powerful catalyst to reform the powers and structure of the impotent Confederation government and the Articles thereof.

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Shays Rebellion

The result was the calling of a Constitutional Convention in Philadelphia in 1787 -- the same year Daniel Shays and his followers were defeated -- with the original purpose of refining, reforming, and revising the original Articles of Confederation. (In the interim, a plan to improve the navigability of the Chesapeake Bay waterways had been formulated by representatives of Maryland and Virginia, proving that inter-State cooperation was both possible and desirable, which provided a positive "pull" toward a stronger government to supplement the negative "push" provided by Daniel Shays & Co.)  As it actually turned out in practice, however, it soon became evident, even before the first session of the Convention had convened, that nothing less than scrapping the Articles and starting with a blank sheet of parchment would suffice to address the issues at hand. The first session of the Constitutional Convention convened in the Pennsylvania Statehouse -- better known today as "Independence Hall" -- in Philadelphia, PA, on May 25, 1787; the final session, on September 17, 1787.  (One of the more bitter ironies of history:  75 years later, to the day -- September 17, 1862 -- the bloody Battle of Antietam would be fought, which would go far toward determining whether the Nation founded on the Constitution would endure, a victory which Abraham Lincoln considered a prerequisite to releasing the Emancipation Proclamation in January of 1863.)  The drafting of the American Constitution required about a week shy of 4 months, and, in its initial, unamended form, comprises just 4543 words, including signatures. Then the Document would be submitted to the States for ratifiication, which was completed by the super-majority of the States prescribed in Article VII in 1788. (North Carolina and Rhode Island would not ratify the Document until 1789.)  The first presidential and congressional elections were held under its auspices, and George Washington assumed the Presidency.  President Washington assumed office in 1789; by 1791, a series of 10 Amendments -- today's Bill of Rights, though that term would not be used to describe those 10 Amendments until 1865 -- had been appended to the end of the Constitution "proper," and what we think of today as the modern Constitution was born.  The past, as they say, is prologue.

(A very deep and searching question is the reason the Colonies required such a long time to recognize and to make explicit the reasons why the original Articles of Confederation were an inadequate basis of government. One of the strongest reasons James Madison deserves the title "Father of the Constitution" is that he reflected long and deeply on just this question in preparation for the Constitutional Convention that convened in Philadelphia in May of 1787.  There is nowhere near enough space even to synopsize / summarize the reasons Madison adduced for the Articles' insufficiency. I can only refer you to Federalist #49 and to the seventh paragraph of Madison's Vices of the Political System of the United States.)

o Ideological

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The US Constitution

The “horizontal” nature of the US Constitution is glaringly evident from the first three words of the Preamble (boldface added, but in the original the first three words are written in a much larger script):

We the Peopleof the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

With those first three words, the entire world, the conceptual cosmos, the moral universe of pre-Enlightenment Western civilization is left far behind. In a recent non-credit course on constitutional law, Prof. Akhil Reed Amar of Yale Law School compared the Preamble of the Constitution to the Big Bang.  That comparison is no exaggeration. The government being formed does not originate from the Hand of God. It is not Divinely ordained. It is not specified in or by the Bible. This is evident, not only in the words, but in words that occur elsewhere in the Constitution and in the way those words were acted out, where “made flesh”, were “incarnate,” if you will. First of all, the Framers, in Article VII, were careful to specify in very explicit terms not open to ambiguity the means whereby the Constitution would be ratified by the Colonies – which would only become States when the Document was ratified.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

What is hidden here in plain sight by the language specifying a super-majority for ratification is the absence of any supervenient ordaining authority. There is no literal or metaphorical "By your leave, my Lord".  In practice, each State individually chose representatives to send to a State-level constitutional convention; each State specified the qualifications of such delegates and the place, date, and time of the meeting; etc. Remarkably for the late 18th century, many States radically reduced, or dropped altogether, property qualifications for being a delegate to that State’s constitutional convention. (Prof. Akhil Reed Amar emphasizes the radically populist – even by today’s standards – nature of the ratification process in his book America’s Constitution: A Biography. Also, if you want to read an exhaustive State-by-State account of the ratification process, you can do no better than to read the magisterial book Ratification by the late Pauline Maier, Professor of History at MIT.) The nearest precedent for the ratification of the Constitution was the English Declaration of Rights of 1689, by which instrument Parliament peacefully deposed King James II and invited William and Mary to the Throne of England in the Glorious Revolution. But even in that case, the decision to depose James II was taken by Parliament, and members of Parliament were chosen by the people of England only according to very stringent and demanding voter-eligibility criteria of property that, in practice, meant that only wealthy people could vote, let alone be actual members of Parliament. Certainly in terms of the time, and very arguably to this day, the ratification of the US Constitution was a popular process without precedent.

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An editorial cartoon depicting the ratification of the Constitution by the requisite 9 States

 The ratification of the Constitution was at the opposite extreme from the signing of the Magna Carta. In 1215, the nobility of England rebelled against the tyranny of King John I – so infamous that, in all of British history, there has never been a second King John – and, after defeating John’s forces at the Battle of Runnymede, forced the King to sign the Magna Carta. To be sure, this was a landmark of British history, a watershed moment. But it is worth noting that a few months after the King’s capitulation and the signing of that Document, the Pope intervened and declared the result null and void. The surrender of the King, true to the prevailing theory of Divine right, the Pope held to be illegitimate, because, in rebelling against a King duly appointed by God, the rebellious nobility was rebelling against God Godself. As God’s Vicar on earth, the Pope was bound, on penalty of damnation, to uphold the integrity of the Divinely ordained hierarchy of authority we discussed in the second part of this series about St. Augustine and the neo-Platonic view of the governing hierarchy. But in the ratification of the Constitution, the People themselves asserted their own sovereignty, an act that would have been all but unthinkable in the terms of the previous, Augustinian / neo-Platonic worldview.

In that sense, the Constitution is a purely “horizontal” Document – but then, it only ever needed to be “horizontal”. Note that this “horizontal-ness” of the Constitution completely “brackets off” any and all theological and explicitly religious and sectarian considerations. The US Constitution is a purely secular document. Very conservative religious people often – I am tempted to say “usually” – interpret the secularity, the “horizontal-ness”, of the Constitution as being anti-religious, even atheistic and go on to attempt to subvert the Constitution's secularity by insisting that "America is a Christian nation" -- which, as we will see in Part 6 on the First Amendment, is just true enough to be misleading. But, as we will also see more fully in the discussion of the First Amendment, the Constitution is not anti-religious. It is merely non-religious or “a-religious”. One should no more expect to find references to God in the Constitution than one should expect to find references to God in the owner’s manual of one’s car. But that does mean that one’s owner’s manual is a document written by the hand of “godless atheists”.  The Constitution is the "owner's manual" of the American Republic.

None of the above, of course, would have been possible except for the prior repudiation, spanning a period of roughly 200 years, of the ideology of the Divine right of kings, and, in a broader sense, the Divine ordination, not only of the Throne and its occupant, but of all social, political, and religious hierarchies. Ultimately – this is yet another aspect of the First Amendment – this entailed the separation of the religious and political / social spheres of human life, one of the keystones of the European Enlightenment. (We will explore and expand upon the sense in which Church and State are "separate" in the First Amendment post.) Consequently, by the late 1600s at the very latest, there was no longer any such thing as a Divine, or even sacred, government. (Of course, belief in the Divine ordination of government persisted -- especially among the "political class" of the day -- for roughly another century, the coup de grace coming only with the revolutionary movements of 1848 that swept Europe.) Nor was there any such thing as a Divine, or even sacred, governing Document. All governments and all documents associated therewith are, at the end of the day, pragmatic conveniences, legitimized and validated by how well they serve the interests of the People. To be sure, there is a kind of “civic religion”, a nimbus of reverence, that surrounds the Constitution --  and appropriately so. But once one penetrates this veil of “civic mystery”, what one finds is that the Constitution is an instance the “right of revolution” Mr. Jefferson insists on in the Declaration of Independence:

That whenever any Form of Government becomes destructive of these ends [of securing inter alia the rights of life, liberty, and the pursuit of happiness], it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

In fact, in a letter to a friend, Jefferson says that, ideally, the Constitution should undergo a top-to-bottom revision about every twenty years or so, even if doing so entails yet another American Revolution. (Mr. Jefferson being Mr. Jefferson, it is not at all evident that he spoke metaphorically!) This is about as far from the ideology of the Divine ordination of government as one can get. Like all governments, the Constitution is a human creation and, while systems of government should not be changed for “light and transient causes”, its persistence is always contingent upon its serving the welfare of the People.

With the repudiation of the ideology of Divine right – one of the consequences of the religious wars of the 17th century – what had been a supernaturally ordained pyramid of authority in the social and political realm was “flattened out” to become a matter of human well-being and convenience. In terms of its origins as a collective decision of the People, the Constitution is a “horizontal” – and therefore radically anti-hierarchical – Document.

o Social

The belief on the part of the Framers that human beings are capable of autonomous self-government was also rooted in a view of human nature that we today would find naive enough to make our toenails hurt:  the belief that people are basically good, basically kindly disposed toward one another -- and for those reasons fully capable of disinterested action, free of considerations of personal interest and aggrandizement. People like Jefferson, Madison, and Hamilton believed that people -- ordinary human beings -- would, when freed of artificial distinctions of socioeconomic class -- act with consideration for the good of the entire community and commonwealth as the prime consideration, not petty personal advantage, and that power would be wielded only when used and freely relinquished when the need had passed.  The ideal here, not only for the Founders and Framers, but for the men of the British Enlightenment generally, was embodied, in ancient times, in Cincinnatus, the Roman farmer who left his estate to take up the command of the Roman military and who freely laid it aside when the threat had passed, and, in colonial America, George Washington, who similarly left his Mount Vernon estate to command the Continental Army, and who, once the Revolution was won, literally walked into the State House (today's Independence Hall), laid his sword on the desk of the president of the Continental Congress, and returned to his personal affairs. Washington thus sealed his reputation as a latter-day American Cincinnatus.

The reason I say that this naivete would be enough to make our toes ache is because, within a very few years after the Treaty of Paris concluded the Revolutionary War in 1783, the resulting "herding cats" syndrome of State government made the Founders -- there were, as yet, no Framers -- entertain grave doubts as to whether the people at large, in particular, the State legislatures, possessed the requisite capacity for disinterested action to make this Enlightenment ideal of Cincinnatus / Washington governance an everyday reality. Gordon S. Wood devotes the first chapter of his book Empire of Liberty to this issue of the divorce between the Enlightenment ideal of government and the reality that began to assert itself within a couple of years of Independence.  Wood argues -- and I think he is dead-bang right -- that the reason the Founders could entertain this noble vision of disinterested government was because, without exception, the Founders were all gentlemen within the rather technical late 18th-century meaning of that term:  men who had (1) been liberally educated in the classics, in particular, in the history and literature of the classical world, and who (2) were wealthy enough that they did not need to scramble for personal, private advantage in order  to make a living.  (Washington had never been to college, but was extremely well read, as well read as any of the college-educated Founders.  John Adams did not come from old wealth, but was a Harvard-educated lawyer, and certainly a well-to-do, upper-middle-class farmer. So the exceptions of Washington and Adams are more apparent than real.) The most serious fallacy in the early Republican ideal of personal neutrality in government was that the Founders assumed that everyone was just like them -- or, anyway, could be.  But the reality was that they could afford to be neutral and personally disinterested.  Very few others could. Their attitude in this regard reminds me of Mitt Romney, in one of the early 2012 debates among Republican presidential hopefuls, just blithely assuming that Texas Gov. Rick Perry, whom no one would ever describe as poor himself, could afford a $10,000 bet.

The point of all this is that if everyone in the early Republic -- anyway, if all the men -- had been gentlemen in the sense of (1) and (2), then, indeed, the Articles of Confederation might well have been workable with perhaps minor modifications.  What the government lacked in power, the individual governors -- the politicians who actually ran the system day to day -- would have more than made up for in the form of personal integrity and indifference to personal advantage. But it soon became apparent that, for that to be true, everyone, even newly elected men serving in the lower house of State legislatures, would have to be as wealthy as Washington, Jefferson, and Madison. As Prof. Wood notes in his book, however, only a few years experience in the actual day-to-day world of State politics, in other words, only a few years experience in watching governments at the State level try to herd cats, disabused the Founders of this happy illusion.  They quickly concluded -- actually, they concluded before anyone even arrived in Philadelphia in 1787 -- that a stronger government than that provided by the Articles was needed in order to compensate for the individual weaknesses of the people. Only the ueber-rich of the late 18th century could afford the high moral and professional principles of a Cincinnatus, a Washington, a Jefferson, or a Madison.  And a stronger government demanded a stronger governing Document. That Document turned out to be the American Constitution.

But many originating Revolutionary principles did remain fully intact:

The Effectiveness of Reason in Human Social and Political Affairs

The “flattening out” of the moral, social, and political universe that occurred between the mid-17th and the mid-19th centuries meant that, whereas, prior to that time, moral, social, and political judgments were pretty much handed down from on high from the hand of God to the hand of the Pope to the hand of the Bishop to the parish priest, philosophers and political theorists in the early 18th century began to think autonomously about the criteria for assessing the merits of various political and social arrangements. In the beginning of this process, they naturally incurred the wrath of those in the European power structure who depended for their authority and their legitimacy on the then-still-alive-and-kicking theory of Divine right. To name just two of the more prominent examples – their name is “Legion”, for they are many – Thomas Hobbes fled to Paris in 1641 after the publication of his Elements of Law and Leviathan; John Locke, to Holland in 1683 for publishing The Bloody Tenent of Persecution for Cause of Conscience advocating absolute religious toleration along lines indistinguishable from the “establishment” clause, and his Treatises on Government, which was a purely “human-centric” and secular contractarian account of the origin of civil government.

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"Leviathan" by Thomas Hobbes

Hobbesian and Lockean contractarian theories of government – both of which, as the Declaration of Independence says, “derive[e] their just powers from the consent of the governed” – were at the opposite extreme from the pre-Enlightenment Augustinian / neo-Platonic paradigm. But they also had an additional effect in reviving interest in, and serious consideration of, a form of government virtually absent from the political landscape of Europe since sometime before Julius Caesar took power in Rome: the republic. (In fact, Article IV, Section 4, gives the Federal government the power to enforce “a republican form of government” on the States – another instance of restrictions being imposed on the States in the Constitution “proper”.) If I use the terms “democracy” and “republic” more or less interchangeably in what follows, it is because the most prominent social and political theorists of the era of the Framing used it so. They saw no essential difference between two forms of government in which ultimate and final authority rests with the people. (In fact, the English word “republic” is derived from the two-word Latin expression res publica: “the thing of the people”.) A belief in the purely secular, natural, “horizontal” origin of all social and political structures necessarily implies, first, that people are capable of governing themselves, and, secondly, that the reason people are capable of governing themselves is because autonomous human reason is effective – not infallible, of course, but effective – in making political decisions. People may consult God and the Church regarding decisions pertaining to other issues. But one does not need to consult the Church or God in the running of the State. This conclusion was revolutionary – both metaphorically and literally – at the time. That it seems mundane to us is only because we are so accustomed to thinking in those terms. One can only admire the sheer audacity of the delegates to the State ratification conventions of the late 1780s and of those who voted for them. They put flesh and bones on the arguments of Hobbes, Locke, & Co.

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"Two Treatises on Civil Government" by John Locke

The virtues of republican government – and its implicit religious underpinnings – permeate the US Constitution, so much so that it is impossible to conceive of such a text emerging from a Europe where religious authority was seen as the final, in fact the only, court of appeal. Republics require a belief in the competence of reason to arrive at political decisions apart from religious authority. Herewith two examples:

o Article V – Amendment process

Because autonomous human reason is not infallible – effective, but not infallible – changes may from time to time be required, even of the “supreme law of the land” (“Supremacy Clause” – Article VI). When such a need becomes evident, the Constitution may be amended by a proposed change being approved by two-thirds of both Houses of Congress and three-fourths of the State legislatures; or a Constitutional Convention may be called if two-thirds of the State legislatures vote in favor of such. (No Constitutional Convention has ever been convoked.  The convention at Philadelphia in 1787 does not count, because it did not occur under the auspices of the Constitution.) At no point in this process is any kind of Divine authority or any kind of religious principle invoked. Amending the Constitution, like the Constitution itself, is a purely “horizontal” undertaking.

o Article VI, paragraph 3 – No religious test for public office

This prohibition is the only place in the Constitution “proper” (the Constitution, minus the Amendments) where religion is explicitly mentioned. We will not encounter an explicit reference to religion again until we consider the “religion” clauses of the First Amendment.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Note that the prohibition of any “religious Test” is also binding on the States, one of the vanishingly few injunctions in the Constitution “proper” that are binding on the States as well as on the Federal Government. Note also that, while the Constitution specifies the exact text of the Oath of Office of the President, which must be followed explicitly, precisely, and verbatim, the presidential Oath contains no allusion to or mention of God or of any religious doctrine. The “So help me God” with which most elected officials conclude their oaths of office is purely optional, and including it in the recitation of the oath is a purely personal decision.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

The parenthetical “or affirm” as an alternative to “swear” is significant, because it is a telltale sign that, while the Constitution is religion-neutral, it is not religion-hostile. The Framers inserted the “or affirm” phrase to allow for the possibility that the President-elect who was taking the Oath might be a member of a religious sect whose members only affirm and do not swear, e.g., Quakers.

Both these examples, and others I did not cite, demonstrate that (1) the Framers, being men of the European Enlightenment, did not believe that the legitimacy of any political system, or the competence of people to run it, depended on any kind of Divine or ecclesial or religious validation or sanction; but also (2) that the religious convictions of those engaged in political activity and in the execution of political duties should be impartially accommodated and not subject to any kind of government coercion. Rational discourse and debate about political and governmental matters is over here; religious conviction and debate, over there. Both must be allowed, but the two must not be confused. One is free to believe, but no one is free to impose beliefs on another.

Human (In)Equality Before The Law

But the relationship between religion and the Constitution has a darker side that is still very much in the process of being rectified. As noted in Part 3 on the European Enlightenment, one of the bedrock principles of the Enlightenment was that, since there is no Divinely ordained hierarchy in terms of sheer human worth, all people enter into life strictly equal before God, and therefore should enter into life as equals before the law. The Declaration of Independence went even one step farther and declared as a “self-evident” truth that “All [persons] are created equal, and that they are endowed by their Creator with certain unalienable rights … “. One of the saddest aspects of the Framing of the US Constitution is that, in the process of translating this principle of radical equality into concrete, discrete institutional forms, the principle itself got lost. Furthermore, an unholy alliance between religion, biblical exegesis, later aided and abetted in the antebellum years by pseudo-science, and the politics of Constitution-construction enabled the Framers to gloss over this principle.

I am referring, of course, to the sin of slavery.

The first slaves were imported into (what would become) the United States from Africa during the first half of the 1600s. (In fact, there seems to be a fair consensus that the very first slave ship to the future United States from Africa arrived in 1619.) Between 1620 and 1700, some 21,000 slaves were imported into the (future) United States from Africa.

During the period immediately preceding the Revolution (1775) and just shortly after the ratification of the Bill of Rights (1791), roughly 60,000 slaves arrived on American shores, followed by well over 120,000 during the two Jefferson Administrations.

On the eve of the Civil War, immediately before South Carolina attacked Fort Sumter, the total free population of the United States was just over 27,200,000; the total slave population, just under 4,000,000. So out of a total population, free and slave, of 31,200,000, a little less than 13 percent were slaves, nationwide. However, in the States of the soon-to-be-declared Confederacy, the total free population was around 5,400,000; the total slave population, just over 3,500,000, for a total population in the future Confederacy of 8,900,000. In other words, during the run-up to the Civil War, just under 40 percent of the inhabitants of the future Confederacy were slaves. In fact, in two of the Southern states in 1860 (MS and SC), the slave population exceeded the free population, and in VA only slightly less than one-third of the population of the State were slaves.

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Slave ship

It is natural to ask what factors were of sufficient persuasive power to so completely eclipse the ringing manifesto of equality contained in the Declaration of Independence. The answer comprises three parts:

o Economics

American cotton and tobacco and other commodities that the South exported were of unexcelled quality – and were famous for being cheap. Especially did British and French markets prize these items, particularly the first two. The reason American exports were so inexpensive was because they were produced with essentially free labor, i.e., slave labor. The start-up cost of employing slave labor was quite capital intensive. Slaves were expensive, and a plantation owner who employed slaves numbering in the high-double or low-triple digits was considered a “one-percenter” in the first half of the 19th century. (My own maternal great-grandfather owned three slaves in pre-Civil-War Tennessee: not super-wealthy, but very comfortably upper-middle class. Shortly before they moved to Arkansas, however, he and his wife underwent some sort of religious conversion, the nature and cause of which are to this day not clear, whereupon they became ardent abolitionists, freed their slaves, and hired them back as paid employees. The three ex-slaves raised my maternal grandfather, who, in consequence, was a radical civil-rights advocate born out of due season.) George Washington, James Madison, and Thomas Jefferson owned a few hundred slaves each. But buying a slave, though initially expensive, was a one-time cost, and since slaves were kept at a subsistence level, the ongoing cost of maintaining them in a state healthy and fit enough to work was minimal.

o Religion

The subordination of black people to the white races of Europe is traceable, at least in the United States, to the slander of the so-called “Curse of Ham” – actually, “the curse of Canaan” – in the 9th chapter of Genesis. After the Flood had receded and the passengers on Noah’s Ark were able to leave and walk the earth again, Noah, it may well be as a result of a certain emotional let-down after the stress of building and sailing the Ark, gets intoxicated, and is discovered by his son, Ham, naked in his (Noah’s) tent. Shocked, Ham rushes out and tells his brothers, Shem and Japheth, what he has seen. The two brothers gather up some clothing and enter Noah’s tent walking backward so as not to see their father naked, and cover him decently. Once Noah recovers from his drunken stupor and realizes what has happened, he curses – not Ham himself – but Ham’s son Canaan (boldface added):

And Noah awoke from his wine, and knew what his younger son had done unto him. And he said, “Cursed be Canaan; a servant of servants shall he be unto his brethren. And he said, Blessed be the LORDGod of Shem; and Canaan shall be his servant. God shall enlarge Japheth, and he shall dwell in the tents of Shem; and Canaan shall be his servant”.

Noah_Cursing_Ham
Noah cursing his son Ham

Shem, Ham, and Japheth were widely believed at the time to be the progenitors of the Caucasian, black, and Asian races, respectively, though in some versions, the supposed blackness of Ham was part of the curse. (Black was also an iconic color of depravity and evil in European religious and narrative traditions, e.g., the Black Mass supposedly practiced by Satanists and witches.) In either case, the part of the curse of Noah on Canaan was interpreted as God placing the black race in perpetual subjection to the other two races – Caucasians, in particular. Therefore, white planters in the South rationalized that they were doing nothing more than obeying God’s original command to keep the black race subjugated to the white. It is also virtually certain that Africans were judged inferior in culture to white European civilization, and that early intimations of biological evolution contributed to the perception of blacks as inherently inferior, not only culturally, but racially / genetically. Between the Curse of Ham and these cultural / racial biases, there was a strong current of opinion, especially though not exclusively in the South, that blacks were probably just advanced apes, and therefore not … quite … human.

 

o Junk science

Proponents and practitioners of slavery also leveraged the junk science of what would come to be known in the first quarter of the 20th century as "racial hygiene" and the equally bogus field of phrenology -- predicting intelligence and personality from the shape of the head -- to demonstrate that Africans were inherently inferior in their intelligence and their capacity for culture to Caucasians. Both pseudo-sciences developed an enthusiastic following during the first half of the 19th century, and the publication of books on both would be a thriving cottage industry. (Phrenology was discredited by the early 1900s, but "racial hygiene", together with forced eugenics, would form a cornerstone of domestic policy in National Socialist Germany.) The publication between 1853 and 1855 -- just in time for the Civil War -- of French aristocrat Arthur de Gobineau's massive four-volune Essay on the Inequality of the Human Races, and its almost immediate translation into English and dissemination throughout  the United States, were especially timely in lending a veneer of scientific credibility -- important, given the rationalist principles of the Enlightenment -- to the practice of slavery. Belief in "racial hygiene" was the 19th century equivalent of disbelief in climate change in the 21st.

So, at least in retrospect, it is obvious that slavery in the United States is a classic case of religious ideology, aided and abetted by junk science, functioning as a post facto justification for pre-existing economic interests --  of conclusions in search of a supporting argument. (Again, this should ring a bell when one considers the contemporary debate about climate change.)  Furthermore, this justification, at least partially because of the ostensible religious validation, ended up being written into the Constitution.

Article I, Section 2 (boldface added):

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons

Slaves were not and could never be American citizens, a status confirmed by the infamous Dred Scott decision of 1857. (This ineligibility for citizenship would be lifted by the 14th Amendment, which was ratified in 1868, and which mandates that "[a]ll persons born ... in the United States and subject to the jurisdiction thereof are citizens of the United States", with no restriction as to race.)  And therefore, since slaves could not vote – remember: they were chattel property like horses and cows and chickens – this Section, commonly known as the “3/5 clause”, meant that, while slaves could be counted in the population of a given state for purposes of apportioning Representatives to the House, they had no voice in who those representatives would be. Moreover, since the electoral votes of a given State were determined by adding the number of Representatives, plus two Senators – Article II, Section 1 -- the “3/5 clause” additionally meant that Southern States had a disproportionate influence on who was elected President. (Prof. Amar and Prof. Bruce Ackerman, both of Yale Law, have calculated that, if the effects of the “3/5 clause” were discounted, that John Adams would have defeated both Thomas Jefferson and Aaron Burr for the Presidency, and that the "3/5 clause" also accounts for the predominance of Southern Presidents prior to the Civil War:  the "3/5 clause" weighted the Electoral College in favor of the South.) About the only mitigation of slavery written into the Constitution was the Article I, Section 9, Para. 1 limit placed on the length of time that Congress would be legally constrained from prohibiting or otherwise regulating the slave trade: until 1808, i.e., twenty years after a super-majority of the States (NC and RI excepted) had voted to ratify the Constitution (NC and RI ratified in 1789).

The point of all the foregoing, however, is that this artificial warping of the democratic process and the consequent de facto abandonment of the principle of radical equality enunciated in the Declaration of Independence were the results of economic self-interest aided and abetted by the prevailing religious ideology of the day that gave nothing less than God’s imprimatur to the subordination and subjugation of African people.

This condition would not even begin to be addressed and corrected until five years of the bloodiest war the United States has ever fought, a record that stands to this day -- counting non-combatants, around 700,000 deaths on both sides of the Civil War, the equivalent of around 7.5 million people today -- followed by the death of a President; the bruising political battles to pass and ratify the Reconstruction Amendments (13, 14, and 15); and the turbulent, initially hopeful, but ultimately shameful story of Reconstruction. (The effect of all three Reconstruction Amendments was largely vitiated by the Compromise of 1877. The Reconstruction Amendments would not be resurrected until the Civil Rights movement of the 1960s -- a "Second Reconstruction" -- a century later.  The Civil Rights Act of 1964 and the Voting Rights Act of 1965 are to the 1960s what the Reconstruction Amendments were to the 1860s.) One could even argue that, by implicitly enshrining a certain particular interpretation of a biblical text (the “Curse of Ham”, Genesis chapter 9) in the Constitution so as to lend a veneer of validation to the subjugation of an entire race of people, the US Constitution tacitly contradicted the First Amendment’s insistence in the strict neutrality of the civil government vis a vis religion.

James R. Cowles

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