America's Unwritten Constitution: The Precedents and Principles We Live By (14 page)

But once we recall the importance of enactment, we can slice the Gordian knot with one clean stroke: Of the nine states that printed the texts of the Constitution that they were ratifying, a majority—five—ended the text with the single sentence of Article VII and thus severed off the witness and signature flourish. Evidently, all five states understood that the witness and signature language was not part of the official written Constitution itself. No matter how we count, this closing flourish was never ratified by the nine-state minimum required by Article VII.
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TO INSIST THAT THE PARCHMENT
’
S
final flourish is no part of our official
written
Constitution is only to begin proper analysis, once we acknowledge the existence of an
unwritten
Constitution worthy of respect. What should we make of the fact that thirty-nine framers subscribed to language with explicit Christian overtones? And how should we understand the additional fact that a majority of the ratifying conventions—seven, to be precise—used the “Year of our Lord” phraseology in dating their own acts of assent in 1787, 1788, and 1790? Don’t these facts give rise to an enactment argument in support of the “Christian nation” interpretation of America’s Constitution?
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Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why. True, the unwritten Constitution may properly supplement the written word. Not every textual gap in the written Constitution should be read as a purposeful, pregnant omission. The unwritten Constitution can also discourage flatfooted over-readings of textual provisions that were meant to be followed faithfully, not literally. But the unwritten Constitution should never contradict the plain meaning and central purpose—what Blackstone called the “main object”—of an express and basic element of the written Constitution. Supplementing the text is one thing; supplanting it, something altogether different. Proper enactment arguments intertwine with, but never strangle, the Constitution’s text.
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Yet strangulation of the text would indeed ensue if we insisted that America’s unwritten Constitution proclaims that Christ is King. Were the Lordship of Jesus Christ truly a full-fledged (albeit unwritten) constitutional principle comparable to the constitutional principle
nemo judex in causa sua
, then the carefully chosen language of Article VI would be reduced to gibberish: “The Senators and Representatives…and all executive and judicial Officers…of the United States [and various state officials] 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.”

The central meaning of this clause—not some uncommon, counterintuitive, quirky, peripheral application, but its basic thrust, its main object—is that no federal public servant may ever be forced to pass a religious test.
For example, no one may be forced as a condition of federal service to affirm that Jesus Christ is Lord. But if the Lordship of Christ were indeed a basic constitutional principle, Article VI would require every covered federal public servant to pledge to support a Christian Constitution while simultaneously proclaiming that no religious test whatsoever should ever be imposed on these very same federal public servants! Congress in 2002 thus got the matter exactly backward: They were the ones whose reading of the “Year of our Lord” language would make the Constitution itself unconstitutional—a truly “absurd result.”

Even if the Article VI clause banning federal religious tests did not exist, religious neutrality would still be a clear, central, and striking element of the written Constitution as a whole—especially once we attend to what the Constitution did
not
say. Though not all textual omissions were purposeful, some surely were. For instance, the document nowhere described the system of government it created as a
confederation
or a
league
. Nowhere did it use the word
sovereignty
to describe the legal status of states. Nor did it require that all federal power be
expressly
enumerated. All of these italicized words had been high-profile and weighty textual features of the Articles of Confederation. Thus, the pointed absence of these words from the written Constitution was no mere oversight or irrelevance. These were pregnant and purposeful omissions, as Federalists freely admitted—indeed, proudly stressed—during the ratification process.
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Similarly, although the Declaration of Independence, the Articles of Confederation, and several state constitutions had explicitly and prominently invoked God in their opening and/or closing passages, the federal Constitution conspicuously did not. Thus, neither the Preamble nor any other constitutional clause explicitly mentioned the “Creator” or “Nature’s God” or “the Supreme Judge of the World,” as had the Declaration of Independence and the New York Constitution of 1777 (which incorporated the Declaration); or “the Great Governor of the World,” as had the
Articles of Confederation; or the “Great Governor of the Universe,” as had the Pennsylvania Constitution of 1776; or “the Great Legislator of the Universe,…the Supreme Being, the great Creator and Preserver of the universe,” as had the Massachusetts Constitution of 1780. The South Carolina Constitution of 1778 used the word “God” nine times—a word that explicitly appeared in every revolution-era state constitution save Virginia’s. But this word appeared nowhere in the federal Constitution—a pointed omission if ever there was one.

That said, a religiously neutral Constitution should not be confused with an antireligious or anti-Christian Constitution. Just as no unbeliever could be barred from federal service for his atheism, no true believer could be excluded for his abiding faith.

For example, while most Founding-era state constitutions expressly included the phrase “so help me God” or some analogous reference to “God” in their obligatory oaths, the Article II presidential oath omitted all mention of God. This omission was surely pointed and purposeful, with the result that no duly selected president could be obliged to utter the word “God” or profess his belief in any supreme being. But neither did Article II bar the use of the word “God” or the phrase “so help me God” or “in Jesus’ name” at a presidential oath ceremony if the oath-taker opted to add an allusion to the Almighty. Over the years, many (but not all) presidents have chosen to utter the words “so help me God” alongside the oath as prescribed verbatim by Article II. Similarly, presidents have often taken their oaths with a hand upon the Christian Bible, even though Article II makes no mention of a Bible (in sharp contrast to eighteenth-century English-law requirements for the monarch’s oath ceremony). The invocations of God and the introductions of Bibles at presidential inaugurations are properly recognized as personal religious choices. Thus, these grand ceremonies have dramatized that the Constitution’s essence is religiously neutral but not antireligious. This spirit of neutrality welcomes all types—believers, doubters, and deniers alike—into federal service and does not seek to prohibit personal and voluntary professions and exemplifications of religious belief, even in prominent public settings.
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This is exactly how we should understand the parchment’s “Year of our Lord” language—which perhaps was, at least for some signers, a personal and voluntary profession of belief in the most prominent public setting
imaginable. Each of the thirty-nine signers was signing for himself, and in that signing moment was properly allowed to profess his faith, if he so chose. Many signers with quill in hand likely gave no thought to the “Year of our Lord” language and its theological overtones. But other signers may well have mused on things eternal, and on their personal relationships to God, at the precise instant when they added their names to a plan that they hoped would sharply bend the arc of human history toward justice. Modern commentators who try to minimize the “Year of our Lord” language by denying even the possibility of its religious significance may well misread at least some of the signers.
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Precisely because the signatures were so personal, the words of Lordship did not need to mean the same thing for all signers. Each man was signing as a human being, as a “witness.” Were these words of Lordship true law, they might well need to have an unvarying, impersonal, objective, official meaning. But these words were not words of law. Each signer at Philadelphia could decide for himself on the meaning, or lack thereof, of these words, much as the words “so help me God” have probably meant different things to the different human beings who have uttered these words in their presidential oath ceremonies.
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The best interpretation of the signatures thus clarifies one major feature of the written Constitution: America’s supreme law was (and remains) not aggressively antireligious but merely religiously neutral.

But what are we to make of the fact that seven states included the phrase “Year of our Lord” in dating their own respective decisions to ratify the document? In these seven instances, the phrase was not unofficial and personal, as with the signatures of the Philadelphia delegates. Rather, the phrase was part of an official legal action—indeed, an action that was at the heart of the enactment process by which the Constitution acquired its legal authority. How does this enactment fact about the unwritten Constitution square with the meaning of the written Constitution?

Actually, it squares quite nicely. The written Constitution’s principle of religious neutrality applied to the federal document itself and to federal public service, but states were far freer to favor religion in general or even one sect in particular. Thus, the oath provision of Article VI began by obliging both
state and federal
public servants to pledge allegiance to the United States Constitution, but then proceeded to bar religious tests
only
for federal
public servants. Here was another pointed and purposeful omission, allowing states to continue to use religious tests for state officials. As of 1787, almost every state did in fact use religious tests. Nine states incorporated these tests into the very texts of their written constitutions.
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The Founders’ framework for both free-expression law and church-state law, a framework most people today associate with the written text of the First Amendment, was thus largely settled, thanks to America’s unwritten Constitution, well before the First Amendment was even drafted. In various ways, the First Amendment merely codified extant, albeit unwritten, constitutional principles implicit in the original text and/or incarnated in the enactment process.

If anything, the text of the First Amendment underprotected the deep principles of free speech and free press by expressly safeguarding free expression against Congress without explicitly mentioning Americans’ broad free-expression rights against states. (Recall the discussion of this precise point in
Chapter 1
, in our Lincoln Abraham hypothetical.) In partial mitigation, nothing in the First Amendment limited the power and duty of Congress to protect citizens from any state effort to stifle the free political expression that was essential to republican government.

By contrast, the text of the First Amendment did tell Congress to lay off the states in matters of religion. The amendment prohibited Congress merely from
“abridging”
free expression (thus allowing Congress to
promote
free expression, where necessary and proper), but limited Congress more symmetrically on the topic of religion. Congress could not pass any law
“respecting”
religious establishments—that is, any law either establishing a national church or disestablishing state churches. Generally speaking, religion simply lay beyond the scope of enumerated federal power, leaving the states free to do as they pleased, even to prefer religion in general or one denomination in particular.

Thanks to the intertwining of America’s written and unwritten Constitution, this system—a religiously neutral federal regime alongside state freedom to aid preferred sects—was already largely in place before the First Amendment was even drafted. The emphatic words of Article VI banning federal religious tests prefigured the First Amendment, as did various elements of an
unwritten
Constitution: the pointed
absence
of “God” in the Preamble; the notable
lack
of any enumerated federal power over religion
in Article I; the striking
nonappearance
of religious elements in the Article II presidential oath; and the
omission
of the words “our Lord” in the official written Constitution, in stark contrast to the presence of those two words in various official state ratification instruments that lay
outside
the Constitution’s formal text.

IF THE FIRST AMENDMENT
was not the first word on the constitutional law of church and state, neither was it the last. The Fourteenth Amendment, adopted in the wake of the Civil War, added additional words that barred states from preferring whites over blacks or Gentiles over Jews. Thanks to this amendment, citizens of all races and all creeds now stand equal before the states, and no state may abridge any citizen’s fundamental rights, freedoms, privileges, and immunities—including the privilege to choose her religion (or atheism) freely without state compulsion or favoritism. States today are no longer allowed to proclaim the Lordship of Christ or the preferred status of an official Protestant church, just as they are no longer permitted to proclaim an official policy of white supremacy—interrelated principles to which we shall return in later chapters.