Power over Religion

[Mark Graber]

Having spent a good deal of the past month reading the Documentary
History of the Constitution and Farrand, some preliminary conclusions
on congressional power over religion.

1.  For Madison and some other Virginians, the crucial point was not
powers of government, but structure.  Government would not oppress
any religion because in the large republic no majority bent on
supressing a particular religion could form.  This is the primary
protection for liberty, not some parchment barrier which Federalists
to a person tended to scorn.

2. The crucial issue in 1787 was whether government was advancing
some legitimate goal, not the precise means being used.  Thus,
government could not regulate religion for the sake of establishing a
state religion, but might do so when the act had a reasonably close
connection with interstate commerce.

3.  An ambiguity begins to creep in during the ratification debates
of 1788.  Some federalists begin to claim that no power to regulate
means no power to regulate for any reason; others claim no power to
regulate simply means no power to regulate for specific reasons (the
particular ambiguity I am studying is what did the framers mean by no
power to interfere with domestic slavery--some take this to mean the
federal government can never emancipate a slave for any reason,
others simply that the federal government can never emancipate a
slave for the purpose of ending slavery, but might do so when
necessary to win a war).

4.  I think we simply have to deal with the fact that the persons
responsible for the constitution did not have a complete meeting of
minds of the relationship between federal powers and rights with
respect to religion (and slavery).

Mark A. Graber
mgraber at bss2.umd.edu