This is the theoretical basis for and backdrop to the Declaratio i of Independence. The presentation so far has been entirel z grounded on nature and natural rights. That is, it has been entirel/ secular. It leaves no room for selective disobedience to law, eve if the motive for disobedience rests on religious conscience.

However, while Locke's basis for civil society did not rest on religion, he did not ignore the subject. Hobbes and Locke were both familiar with religious warfare, and both saw religious zealotry as a major threat to peace. Since preserving the peace was the first goa. of civil society, one major aim of their writing was to weaken th attractiveness of religion by transferring people's fears and concern. away from salvation and to this life. The Declaration retains thi focus on the goods of this world.

Yet, this somehow does not seem an adequate description of the role of religion in this country. It all seems so negative. We al know that religion was an important part of the Founding Fathers scheme of government. Far from wanting a purely secular nation their aim was to channel religion, to transform it, to preserve the useful parts while putting the dangerous parts under the control o civil law. The idea was to retain a vital religious life, because religior was thought to be important to teaching virtue, and virtue was con sidered essential to good citizenship. Somehow, this had to be re tained without promoting the conditions that would cause religiou civil war. To see how this was to be done, let us take our next step in this theoretical journey-to Federalist No. 10.

Many of you are familiar, I am sure, with the argument of Federalist No. 10. It is essentially the same as an argument Madisor presented at the 1787 Convention in Philadelphia. But for those who are not familiar with it, or who need to be reminded, let me gc over the ground quickly. Federalist No. 10 is the paper in which Madison talked about the dangers of faction. He defined the term "faction" to refer to any number of citizens united by common impulse, passion, or interest, who act in a way that is adverse to the rights of other citizens or adverse to the permanent interests of the community. Factions, Madison said, are natural. As a result, it is futile to try to eliminate them or to remove their causes. So, if you want to control the dangers of factions, it becomes necessary to pay attention to their effects. Madison discussed the effects of minority factions, factions making up only a small portion of the nation ir which they exist, and majority factions. Minorities sometimes are able to get their way over majorities, but the cure is easy to prescribe, Madison says. The cure of minority factions is democracy. No group can get its way against the will of a majority provided the

majority gets a chance to express its will. The particular danger of democracy is not what a minority might do to a majority but the opposite, what a majorit; might do to a minority. How can the dangers of majority factions be minimized? According to Madison, there is no way in a demccracy to prevent a determined, long-lasting majority from working its will. However, there are ways to make it more difficult for such a maiority to form. The most effective way, he argued, is to extend the sphere of the republic. Make the nation larger, make it more complex through the development of commerce, and what will result will be a multiplicity of factions so complex that it will be unlikely for a majority to coalesce around a single factional issue. If no one faction makes up a majority on its own, it means that the majority necessary for democratic rule will have to be formed by coalitions of minorities who necessarily will have to compromise with each other before they can have their way.

The basic outlines o this argument are probably familiar to most of you. It is presented most often in discussions of the role of interest groups, particular y economic interest groups. In fact, the prominence Madison gave to commerce often leads people mistakenly to assume that he was thinking solely of economic interests. Nothing could be further from the truth. Madison made it clear that a faction could be a group of people held together by common interests, common passions, or common opinions. In fact, the two main sorts of divisions Madison specific illy mentioned as being dangerous to the stability of democracy were the divisions between the rich and poor and the divisions among religious sects.

Thus, we can begin to see that there is a sense in which the Constitution, broadly speal.ing, was meant as an answer to the problem of religion, Religious opinions were seen as sources of factions, and factions as potential threats to civil peace. The solution seems almost paradoxical. Religious factions were to be encouraged to be fruitful and multiply. As they multiply, the odds of any one faction's gaining a majority decrease. Of course, authors of the Federalist hoped to tame religious passions in other ways as well. Remember that a multiplicity of factions was seen as being most likely to flourish in a nation friendly to commerce. But a commercial nation, a nation whose people are wedded to trade, manufacture, and the spirit of profit, is not likely to be a nation whose people would be willing to destroy the civil peace for the sake of their religion.

None of this is stated explicitly in the Constitution. However, it is implied by the very fabric of that document, and it is spelled out very clearly in the Fede alist. The only place in the main body of

the Constitution where religion is mentioned is in Article 6, which prohibits the use of religious-test oaths for officers of the United States.

Many people during the state ratifying debates over the Constitution were concerned that there was no specific protection of religious conscience in the document, and several states called for adoption of a Bill of Rights immediately after the Constitution was ratified. Madison argued that a Bill of Rights was not necessary because the government was not delegated the power to legislate in a way that would affect speech or religion or the other matters that concerned the Antifederalists. The greatest protection for religious liberty, Madison felt, was an extended republic. But this was not enough for the Antifederalists. They wanted a Bill of Rights, and enough of the Constitution's supporters agreed with them to make adoption of a Bill of Rights politically necessary in the First Congress. Convinced by this outpouring that a Bill of Rights would help secure support for the new Constitution, Madison became its principal drafter and shepherd in the House of Representatives.

Let us now turn to the Bill of Rights, specifically to the sixteen words in the First Amendment reading: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." So far we have seen that, in the Declaration of Independence, liberty depends upon governments based on consent. We have also seen that the Federalist describes the Constitution as creating an extended sphere in which the multiplicity of sects and factions would promote liberty.

What do the sixteen words of the First Amendment religion clauses add to this? Does the free exercise clause say anything abou: the relationship between law and conscience that is not in the Dec. laration of Independence? Does the establishment clause, with it prohibition of an established church, say anything that is not in Madison's idea of an extended republic? I would maintain that the answer in both cases is no. That is precisely why Madison though the Bill of Rights was redundant. But, while the Bill of Rights ma have been redundant, given Madison's limited view of the power conferred on the government by the "necessary and proper" clause, it does make the intended limits more clear-particularly in light o the broader Hamilton-Marshall view of "necessary and proper' that has prevailed.

Let me start with the free exercise clause. There was virtually no discussion or debate of the free exercise clause during the Firs Congress that considered and passed the Bill of Rights, so we have

very little by way of direct evidence about precisely what its authors meant by the phrase. We can see from the debates in the First Congress that its authors at least meant to prevent Congress from prohibiting or compelling any form of religious worship, by, for example, either prohibiting or requering prayers That is, the clause protected not only the exeruse of religion but the freedom of its exercise.

Beyond this, the meaning of the free exercise clause is less clar, but it did develop out of a well-known history that included, ar long other things, the Virginia Bill for Establishing Religious Freedom. There is absolutely nothing in this history to suggest that the at thors of the Bill of Rights thought that religious people should be granted a right to be free of any legal obligations solely because a la v might clash with their religious consciences.

There was no direct discussion of this matter in connection with the First Amendment during the First Congress. But a very similar is ue did come up during discussion of the Second Amendment. That amendment now reads as follows: "A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." When that militia provision passed the House of Representatives, it contained an additional clause reading as follows: "No person religiously scrupulous of bearing arms shall be compelled to render military service in person." The Senate dropped this conscientious objector clause la gely because some members of the First Congress explicitly reje ted the idea that religious exemptions should be treated as rights. For example, Edward Benson of New York said in the House of Representatives that "no man can claim this indulgence of right. . . . [I] ought to be left to the discretion of the government."

The point here is not that the authors of the First and Second Amendments wanted to deny conscientious objector status to people who objected to bearing arms for religious reasons. It was just the of posite. They did grant exemptions to conscientious objectors. But they wanted those exemptions to be understood to be matters of grice extended by statute. They did not believe that they belonged to citizens as a matter of natural or constitutional right. The principle of law cannot permit the individual to decide whether or when to obey the law. In Locke's terms, that would make the individual th judge of his own case. Exemptions granted as a matter of grace do not violate this principle, but making exemptions a constitutional right would give the individual the right to decide when and whether the law applies to him.

As I hope this discussion of free exercise makes clear, the people who wrote the First Amendment expected the nation to be friendly toward minority religions. Moreover, we saw that the whole design of Federalist No. 10 involved creating an extended republic in which a multiplicity of religious sects would flourish. That being the case, why was an establishment clause necessary? It seems to go without saying that a nation with a multiplicity of sects would not tolerate the establishment of a national church or the adoption of a national credo. The First Congress considered language that simply would have prohibited the establishment of a national church, but Congress rejected that language and adopted something broader.

The language finally adopted said that Congress shall make no law "respecting an establishment of religion." What does this mean? The clause fits somewhere in that broad ground between the minimalist definition that merely would have prohibited a national church. and the position of the modern Supreme Court. Without going into all of the debates here, let me say that he establishment clause originally was meant to prohibit two different things, one relating to the present controversy over governmental aid to religion and the other relating to the relationship between the national government and the states.'

First, the establishment clause was meant to prohibit Congress from passing any law that would tend to prefer or favor one religion. over others. It was meant, in other words, to require a strict neutrality between religions, not neutrality between religion and irreligion. This is absolutely clear from the debates in the First Congress. At one point, in a speech that reiterated a theme raised often during the debates, Benjamin Huntington expressed concern about one early version of the establishment clause because he thought "the words might be taken in such latitude as to be extremely hurtful to the cause of religion." Huntington "hoped therefore, that the Amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who possess no religion at all." There were ample protections for atheists elsewhere in the Constitution-notably in the free speech clause and the clause prohibiting religious-test oaths for office. But contrary to the modern Supreme Court, the establishment clause had nothing to do with atheists. It was meant to prohibit Congress from discriminating among religions. All though the First Congress

1 For a detailed analysis of the debates, see Michae Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment (Washington, D.C.: American Enterprise Institute, 1978).

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