Freedom to Worship
Some prefatory remarks on the manner of conceiving the relationship of religion and polity in pagan and Christian societies will draw our perspective into focus. The Greek philosophers believed that the ideals and values of the City derived their validity from Platonic vision of the Exemplary Good, the heavenly paradeigma of the due order of being and truth. With Aristotle, the City was the embodiment of ethical purposes, the politeia a way of life, ti biou. But for want of an adequate metaphysics (there was the embarrassing impediment of a confounding array of mythological gods) pagan theology was at best the philosophers' order of suprasensibles, of first principles and of ultimate origins of all that is as it is meant to be. Graeco-Roman statecraft was the constant endeavor to reconstruct in human affairs an abiding order of peace and justice in obedience to eternal laws.
With the advent of Christianity, man was supernaturally revealed as an image of divine personality endowed with authentic and transcendent purposes and accordingly invested with original responsibilities and connatural. rights. As a consequence the prerogatives of the pagan state as the supreme moralizing force were radically undermined and the identity of the Ultimate Good with the common good of the City was canceled. The acknowledgment of a higher law, of which the State was no longer the oracle, and the revelation of the divine guarantee of eternal beatitude, liberated man from the self-enclosed system of nature of which he was wholly a part and the City his fulfillment. Man was freed from the Promethean struggle between the spiritual aspiration for liberty and the pagan cosmological necessitarianism.  The Christian martyrs, the Fathers of the Church and the Church apologetes brought the divine inheritance of man to bear upon the absolute Roman imperium, rendering it ministerial of justice in obedience to the fiduciary function of authority. It is to the credit of St. Augustine that he expressed in theological terms the metaphysical necessity for the consent of the governed, and to have brought out its new significance as a delimiting principle upon law and authority.
Consent as a practical source of power was recognized since the days of Solon. But the idea of proper and due relationship between government and governed necessarily presupposes the prior consideration of the specific equality of men in terms not only of the constitution and exigencies of man's nature but also in light of his transcendental destiny. This more enlarged and definite view of man's essential nature is the metaphysical basis of the doctrine of inherent and inalienable rights which, because they are a divine investiture, render man inviolable (the connatural right of immunity from the arbitrary) and condition him to the use of consent. The basis of government derives not from consent alone, however, but from consent involving reservations of the law of human nature. By conjoining the doctrine of the divine origin and descent of authority to the doctrine of the equality of men, St. Augustine provided the initial premise for the development of constitutional limitation in medieval times a limitation not merely of wrongdoing but as a limitation inherent in the power itself.
Christian doctrine fomented the transformation of political ideas and practices to the gradual evolution of a constitutionalism of medieval provenance. As the eminent Carlyle brothers abundantly documented in their monumental History of Political Theory in the West, this Christian tradition of law and government maintained that the immediate source of political authority is the community; that law and authority are both purposively ordained to the advantage of the governed conceived as justice and commonweal; that the contractual relation between ruler and ruled is reciprocally binding and its conditions mutually inviolable; and that the supremacy of law rests juridically, as Hincmar of Rheims pointed out, upon the consent of the governed.
The central truths which energized this historic process were the inviolability of human personality and its indestructible rights , the equality of men in the divine adoption and the correlative doctrine of consent to governance, and the transtemporal value of human affairs. It was within the context of this Christian tradition of the influence of religious truths upon law and government that the birth of the American Republic took place.
Religion is understood here as man's total ontological and moral dependency upon God, his Creator, and the divine-creature relations as the proper objects of intellection and assent, either through motivation of divine revelation or the compelling persuasion of reason. To the Hebrew of the Old Testament, religion was God, the decalogue and the messianic promise. To the Christian religion is the fulfillment of the divinely inspired scriptural prophecies in the Incarnation. There is, in addition, a natural theology constructed by a rational analysis of the universe. Generally these believers are called theists rather than deists, for theists consent to the immortality of the soul and eternal reward by divine judgment, to God's special providence for man and to the efficacy of intercessory prayer.
Although our national history is rich in evidence that our political democracy was conceived in theological terms, not every American has posited religious beliefs as the spiritual wellspring of our democracy. Since the time of Washington there has been clear evidence of a secularist concept of our national experiment.  But this secular tradition is not the American tradition. On the contrary, the religious tradition is the original and prevailing one; it is authentic in the very fiber of our body politic and as such constitutes the genuine American consensus. Such an admission must be made with as much compelling force as that with which a sojourner in the Soviet State, wholly unsympathetic to it, must allow that the Red State was conceived and founded on the dialectical materialism of Karl Marx. Nonbelievers were not the controlling promoters of American independence, nor were they the leading and responsible architects of the New Republic.
The historical record of our Colonial and Revolutionary periods the Acts of the Continental Congress, the Declaration of Independence, the Northwest Ordinance, the Constitution, the Federalist Papers, the Bill of Rights, the long course of presidential utterances, Congressional acts, and declarations of our supreme judicature constantly affirms that our American political democracy was conceived in and must survive on moral and religious foundations.
An inquiry into the original American consensus will indicate that during the "seedtime" of the Republic (1765-1776) the prevailing practice of the colonists was resort to a "higher law" in justification of their campaign of protest, resistance and revolt.
Clinton Rossiter writes  of the "habit, in which most colonists indulged to excess, of recurring to first principles." Rarely was a specific issue argued, he says:
... without first calling upon rules of justice that were considered to apply to all men everywhere. These rules, of course, were the ancient body of political assumptions known as natural law and natural rights. The great political philosophy of the Western world enjoyed one of its proudest seasons in this time of resistance and revolution... few people have made such effective use of recourse to first principles.
The Declaration of Independence was written, the Constitution adopted, and the Republic launched in an age when most men, whether subtle or simple, believed unequivocally in higher law, generally called the law of nature.
Exemplary illustrations of the polemic use of the natural law doctrine are James Otis' Rights of the Colonists Asserted (1764); John Dickinson's fourth Letter to the Inhabitants of the British Colonies in America (1774); and James Wilson's Considerations on the Nature and Extent of the Legislative Authority of the British Parliament(1774). Whatever the variant versions of the ultimate source of natural law then extant either the divine natural law or the secularized natural law of an indifferent deism, or the nonmetaphysical, utilitarian, historically inductive law said to be "higher" because of a value proved constant by experience the language of the theist prevailed in the Declaration of Independence.
The more we study the Declaration of Independence, the more we appreciate its profound theological and philosophical presuppositions. The Preamble is a public official confession of the all-inclusive comprehension of the divine moral order over the consciences and affairs of men and nations. Such a profession rests on truths declared to be self-evident, not because they are immediately or intuitively known, but because of the clarity of their evidential intelligibility. Realism engenders the certitude for the cause of freedom. Since realism was the source of personal liberty for the Founding Fathers, it was by the same token the only guaranty of social and political liberty. Political freedom does not ensue from doubts, conjectures or empirical hypotheses, but from philosophical certitude. "We hold these truths to be self-evident" will equate by the conclusion of the argument "the truth has made us free."
The Declaration then pronounces the theological major in justification of the revolutionary cause. It neither vaguely asserts that "all men are equal" nor affirms the equality of men by the mere fact of birth. Rather, it specifies the equality of men which is ensured unfailingly and immutably by divine creative action. Men are equal by reason of their relationship to God. Human nature is divinely endowed with rights which, because of their connatural inherence, foreclose all alienability whatsoever to any superior temporal force or power. Those persons who read any utilitarian ideas into the phrase, "life, liberty, and the pursuit of happiness," should carefully regard James Madison's reflections on this very point. Writing to James Monroe, he observed:
There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong. Taking the word "interest" as synonymous with "ultimate happiness," in which sense it is qualified with every necessary moral ingredient, the proposition is no doubt true. But taking it in the popular sense as referring to immediate augmentation of property and wealth nothing could be more false. In the latter, it would be the interest of the majority in every community to despoil and enslave the minority of individuals. 
It was precisely on this basis of interest as "qualified with every necessary moral ingredient" that, two years before the Declaration, John Dickinson and James Wilson understood "ultimate happiness" to be the principle of reconciliation between English rule and colonial claims. Because of his inherent obligation in natural law to pursue his ultimate happiness, man has an inalienable right to all necessary means of attaining this end. Hence the profound significance in the illation "that to secure these rights, governments are instituted among men." The origin of politics is situated four-square in the theology of man. Governments are established primarily to secure, not grant such divinely endowed rights which protect the inviolability of the human personality and accordingly define the purposive direction of public authority.
The all-comprehensive divine moral order completes its arch in the Declaration when it asserts that the powers that derive from the consent of the governed must be just. As indicated above, consent as a practical source of power was recognized as far back as the days of Solon. But the subjection of popular consent to a higher law dates with the Christian revelation that "all power is from God." Unjust laws are not properly laws, arbitrary government is tyranny, unconstitutional exercise of power is usurpation. The unrestricted sovereignty which the colonials rejected in the British rule they would also reject for themselves in the guise of popular sovereignty. Vox populi, vox Dei the absolutizing of popular sovereignty was not part of the early American consensus. The people were collectively as well as individually dependent upon God and therefore considered themselves only as a second cause, never as the ultimate original source of all power. Even in the limited sphere of their own sovereignty they were sovereign only in a derivative, secondary sense. Man was never absolutely sovereign.
As a minor to the theological-moral premise, the Declaration catalogues repeated abuses and usurpations by reason of which both the natural law and the law of Englishmen justify in conscience not only the right but also the duty such as obtains whenever any form of government becomes destructive of its proper ends to institute a new government.
The revolutionary argument implicitly states that from the rights of God over men shall man better understand his own rights. There is Jefferson's own testimony that the Declaration is the embodiment of the original American consensus. Fifty years after the event, in a letter to Henry Lee, he wrote:
With respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American Whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be the expression of the American mind, and to give to that expression the proper tone and spirit called for it by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, in printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc. 
The historical explanation for popular concordance on the theological-moral presuppositions of the birth of the American nation lies in the fact that the experiment took place wholly within the broad Christian tradition of the divine natural law doctrine which had coursed its way from medieval Christendom through English Common Law and Whiggism to the new land.
Unlike the artificial theories of the eighteenth century and the French Enlightenment which deformed rather than illustrated the natural law, the Declaration conceived natural law as being wholly operative in human affairs because it ensues from the Divine Author whose sovereignty is complete over nations as well as individuals. There is no secularized substitute for the God-centered authority for law and government hence the correct distinction and necessary relation in the Declaration between the law of nature and human positive law. In the events leading up to the Revolution and in the theological preamble of the Declaration, the appeal is made first to the rights of Englishmen and, this failing, then to God's law, since in divine natural law the colonists had a right to their positive legal claims. This polarity of natural and human law was the very point made by Edmund Burke as he espoused the American cause, much to the dismay of the New Whigs who a decade-and-a-half later accused him of inconsistency. They failed to appreciate the radical difference between the American and French revolutions, between real and abstract rights. In his speech, Conciliation, Burke summed up the colonists' rightful claim to separation when he said that they were "not only devoted to liberty, but to liberty according to English ideas, and English principles. Abstract liberty like other mere abstractions is not to be found. Liberty inheres in some sensible object." 
The Declaration is hardly the instant creation of idealistic revolutionary leaders. But it is the most remarkable epitome of the theology of politics ever proclaimed within the concrete context of American history, and the most fruitful application of the theological convictions of the prevailing colonial mind to its cause. The year before the Declaration was written, the Continental Congress, fully aware of the choice it had to make between peace and war, made a public confession of total dependence upon divine providence, of the necessity of adoration, of intercessory prayer, of the confession and forgiveness of sins, and appointed July 20, 1775, as a "day of public humiliation, fasting, and prayer for preserving the union and securing just rights and privileges of the Colonies, that virtue and true religion may revive and flourish throughout our land; and that America may soon behold the gracious interposition of heaven for the redress of her many grievances, for the restoration of her invaded rights, for a reconciliation with the Parent State on terms constitutional and honorable to both; and that her civil and religious privileges may be secured to the latest posterity." 
The proclamation of June 12, 1775, one of four fastday proclamations of the Continental Congress prior to its first thanksgiving, had as its purpose the strengthening of the religious foundations of the colonial union as it was being molded into a nation. It coupled, with marked significance, a number of civil and religious privileges. The Northwest Ordinance of 1787 enacted by the last Congress of the Confederation reaffirms that "religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
The language of the official corporate proclamations of the Founding Fathers is unmistakably that of traditional Christianity. Of the Thanksgiving Day proclamations, the 1777 enactment of the Continental Congress is strikingly unusual for its Trinitarian confession. In later federal and state proclamations, this confession was generally omitted with the obvious intention of pertaining equally to all believers. Such a deliberate change was in line with the consensus to band together all theists in spiritual support of American polity.
Wholly in accord with this original corporate and official profession of the religious foundations of American democracy are the individual official pronouncements of the highest government officers from the very beginnings of the Republic. To discount the long tradition of presidential utterances, especially the presidential Thanksgiving Day proclamations, as expedient and pious exhortations is to testify to the strength of the American consensus that the nation's religious foundations must be officially acknowledged and promoted.
The inaugural addresses, messages to Congress, the proclamations on Thanksgiving Days by the chief executives from the first president to our own day have all set an incontrovertible historical record of the religious presuppositions of our national existence and endurance. In his memorable Farewell Address, Washington pointedly warned against the deceptive insufficiency of a laic morality: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports... And let us with caution indulge the supposition that morality can be maintained without religion." 
In his First Inaugural Address on March 4, 1797, John Adams gave similar vigorous expression when he listed the qualifications for the executive office:
a love of science and letters and a wish to patronize every rational effort to encourage schools, colleges, universities, academies, and every institution for propagating knowledge, virtue, and religion among all classes of people, not only for their benign influence on the happiness of life in all its stages and classes, and society in all its forms, but as the only means of preserving our Constitution from its natural enemies... 
Perhaps the most characteristically Christian and strikingly supernatural presidential utterance is John Adams' first Proclamation of Thanksgiving Day on March 23, 1798:
As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgement of this truth is not only an indispensable duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety without which social happiness cannot exist nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty or of danger... I do hereby recommend that... 9 day of May... be observed throughout the United States as a day of solemn humiliation, fasting, and prayer;... to the Father of Mercies... that all religious congregations do... acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation, beseeching Him... through the Redeemer of the World, freely to remit all our offenses, and to incline us by His Holy Spirit so that sincere repentence and reformation... that our civil and religious privileges may be preserved inviolate and perpetuated to the latest generations... that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom and pure religion may be speedily extended to all nations of the earth. 
This presidential expression clearly authenticates the original American consensus that the social happiness and civil and religious liberties of free government are derived from divine natural law. Both Washington and Adams sharply rejected the alien importation of Jacobin atheism in the guise either of French revolutionary totalitarian democracy or of Napoleonic supreme sovereignty. On March 6, 1799, President Adams warned of the subversive dangers of religious neutrality and repeated his earlier insistence on the nation's acknowledgment that it is a society dependent upon God:
... the most precious interests of the people of the United States are still held in jeopardy by the hostile designs and insidious acts of a foreign nation, as well as by the dissemination among them of those principles, subversive of the foundations of all religious, moral and social obligations, that have produced incalculable mischief and misery in other countries. 
Clearly in our earliest history as a new republic secularism was officially declared alien to the American religious affirmation and inimical to it. Lincoln's phrase, "this nation under God," gives focal point to the prevailing American tradition. In recent times, Presidents Roosevelt, Truman and Eisenhower have voiced this tradition as the authentic American affirmation. An illustration of President Roosevelt's witness occurred Jan. 4, 1939, when he personally gave his Annual Message to Congress. He identified the "ancient" American faith with the one prevailing "now as always: "
Storms from abroad directly challenge three institutions indispensable to Americans, now as always. The first is religion. It is the source of the other two democracy and international good faith. Religion, by teaching man his relationship to God, gives the individual a sense of his own dignity and teaches him to respect himself by respecting his neighbors...
In a modern civilization, all three religion, democracy, and international good faith complement and support each other. Where freedom of religion has been attacked, the attack has come from sources opposed to democracy. Where democracy has been overthrown, the spirit of free worship has disappeared. And where religion and democracy have vanished, good faith and reason in international affairs have given way to strident ambition and brute force.
An ordering society which relegates religion, democracy and good faith among nations to the background can find no place within it for the ideals of the Prince of Peace. The United States rejects such an ordering, and retains its ancient faith. 
The protestations of the secularist, or neutralist, through the course of our national history have never been an authentic part of America's religious and political heritage. The secularist is not giving witness to the original and prevailing American affirmation. In a distinctly nonprophetic sense, his is the voice crying in the wilderness. It is the voice of dissent, a protest against our "ancient faith" prevailing "now as always."
That our nation was conceived under God, with a religious view of human rights and the purpose of government, is abundantly evident in our early national history and in the vigorous tradition carried on by every incumbent of the presidential office. But in what manner did the religious conception of government enter into the very fabric of our federal government, that is to say, into the Federal Constitution? By presupposing the sound doctrine of the distinction between and necessary relation of human positive law and divine natural law as expressed in the declaration, the Founding Fathers drew up the Constitution, as a juridical document, as a superstructure built upon this dual foundation and, as such, did not need to affirm it explicitly.
It is noteworthy that the very men who guided the colonists to independence within the Christian tradition of natural law doctrine were generally those same men who either participated in the momentous discussions of the Federal Convention or helped advance the ratification of the Constitution in their several states.
First of all, the procedure adopted for the ratification of the Constitution conformed to every ethical requirement of the natural law. In McCulloch v. Maryland Chief Justice John Marshall took judicial notice of the regard due the "consent of the governed" in the construction of a new federal government directly binding upon individuals as well as states. Among other things he recounted the mode of procedure adopted by the convention which framed the Constitution and by the Congress which submitted it, upon recommendation of the Federal Convention, to the states for acceptance. The conventions in each state were chosen by the people thereof. Chief Justice Marshall also noted the juridical binding effect of popular determination upon the state sovereignties as well as upon the people of the new United States. The federal government truly proceeds directly from the people, deriving its powers from them. And only rarely in history has the principle of the "consent of the governed" been observed with such scrupulous care as in the ratification of the Constitution.
Secondly, American sovereignty is not that of totalitarian democracy, nor the unrestricted sovereignty espoused in Rousseau's Contrat Social which, instead of presupposing natural law, holds itself to be the original source of morality. The right of the people to choose their own form of government must necessarily presuppose the major premise in natural law that civil government is requisite to "life, liberty and the pursuit of happiness." A government of limited powers specified in a written constitution is wholly in accord with the sovereignty of God over states as well as over individual persons. Plenary but not absolute, derivative and not original, American popular sovereignty is under God, from whom all power descends. It does not, as with Rousseau, reside ultimately and inalienably in the people.
Thirdly, in the institutional structure of the Constitution e.g., the distribution and balance of empowerments in the delegation of limited and enumerated powers there are provisions for the security and restraint of the supremacy of the rule of law over the rule of men. The supreme judicature is also prepared to arrest ventures beyond the prescribed limits. Tyrannical exercise of power or the usurpation of power itself is therefore doubly restricted both by supremacy of law and adequate institutional safeguards.
Fourthly, American supremacy of law is neither legal autocracy nor mere legal process; it is medial for the prosecution of substantive civil goods. American political democracy has a substantive content as well as a procedural course. The Preamble proclaims the purpose of the founding of the federal government to be the "establishment of justice, the promotion of the General Welfare, and the blessings of Liberty." Substantive ethical goods are those rights and purposes of the law of human nature which have been historically and juridically secured even beyond human disowning. For the medievalist Bracton's dictum, sub Deo et lege, operated to the gradual realization of homo liber et legalis. Herein lies the radical significance of the American Bill of Rights. It juridically secures by the most endurable precedents of history those freedoms which the divinely endowed spiritual nature of man demands. The moral order enters concretely into human law and asserts that by no majoritarian or authoritarian determination will an American citizen be deprived of free exercise of religious conscience and worship; that before the bar of justice laws will be fairly and equally applied; that free speech and free press, the right to assemble peaceably and to petition the government are rational exigencies not only of the spiritual nature of man but also of the moral imperatives of society itself. What are preferred rights, due process and equal protection touching upon life, liberty and property if not the acknowledgment by law and the will of the people of that immunity from the arbitrary to which the spiritual nature of man is entitled?
American political democracy is more than a species of governance; it is a content as well as a process. But in the American context it is more so because of its unique historical genesis and successes as well as its purposive prerogative claims as a democratic politeia. The advantages of the democratic form of government rest with the political maturity of its citizens, who are called upon to participate responsibly in the direction and ultimate control of governmental policies; its broad purpose is the greater diffusion of opportunities for moral and material benefits. Both these ethical objectives and rational procedures are consequent to a philosophy of man or, as Aristotle said, "a way of life." Democratic collaboration is self-defeating without commonly accepted principles, without a fundamental creed, without a common denominator of beliefs, without certain imperishable values which are beyond question. Surely there are sound and unsound democracies, but the former depends on its accordance with the ultimates of mans nature. A totalitarian democracy can be just as brutal and arbitrary as a totalitarian dictatorship. The dictum, "nothing above the state, nothing outside the state, nothing against the state," applies equally to both. But American political democracy admits to many realities beyond the competence and the dominance of the state: the church, the family, the countless number of free associations of human endeavor in art and science and in numerous cultural and recreational pursuits. It admits to many delimitations upon the state, such as the prior rights and prerogatives of individuals and of associations which arise from the law of man's nature and of societies. To the preservation and prospering growth of these substantial moral values and to the guarantee of immunity of these human properties, American democracy as a process is wholly medial. In the American historical context, a substantive deposit, the American heritage, has been continuously asserted and reaffirmed politically, juridically and socially.
Without a philosophy of freedom and order there can be neither free order nor ordered freedom. The argument that American democracy is procedural and that there are no human values that cannot be changed by majoritarian vote affirms that there are no political truths or wrongs to which men and societies are committed or if they exist they are not humanly cognizable. But with unquestionable certitude Americans have held certain truths as self-evident and in this faith and conviction a new nation was conceived and has endured under God.
When the Federal Constitution affirms the equality of all men before the law, it recognizes that there are some equal rights given not by law, but by the Creator of men and societies; and that these rights must be secured with the full efficacy of human law and civil power. Legal expedients which proved historically efficacious for the security of fundamental rights were retained from our English heritage. The substantive and procedural rights of the American Bill of Rights and of the Fourteenth Amendment are historical reassertions and juridical securities of man's personal dignity and allow for the fuller expression of his capacity for freedom. Anglo-American constitutional history is the continuous record of the development of the secondary nature of man (to borrow from Burke) in accordance with his first nature.
The writ of habeas corpus, for example, has a theological presupposition. The writ asserts the right of an individual, but a right presupposes a value that no power can cancel. And although the theology of man does not demand a writ of habeas corpus, it does say that law must provide proper and adequate means of securing that immunity from the arbitrary which accords with the personal dignity of man. Due process means that persons, rights and possessions must be treated with reverence even when they are charged with crime. The Constitution does not state explicitly that man is a child of God. But those lands and governments which explicitly or in effect deny that man is a child of God also fail to provide adequate securities for man's immunity from governmental arbitrary action. In such countries there is no writ of habeas corpus. A comparison between the trial of Cardinal Jozef Mindszenty and the trial of Communist leaders under Judge Harold Medina shows the vast advantages derived from a government with ultimate theological roots. Due process in reverse is a legal restraint upon the presumption that the alleged criminal can be mobbed and lynched by popular demand.
There is throughout the whole of American constitutional history the underlying affirmation of a "higher law" of which the state is not the oracle. The First Amendment declares the inherent incompetence of legislative power in matters of mind and soul and in so doing confesses to the independence and supremacy of the spiritual nature of man. The American state neither originates nor concedes the right of freedom of religion; it recognizes that this right descends from a source superior to itself and is thereby inviolable, and that consequently it is obligated to protect it. The freedoms of speech and press, of peaceable assembly and petition are not Voltairean absolutes after all, but rights fully in accord with man's participation in society. More ever, they provide the means for a larger scope of democratic responsibilities contributory to the national welfare. There is no more striking feature of the American system than its expressed recognition that the government is one of limited powers, not because power corrupts but because power by reason of its divine descent is limited to the very purposes of the divine grant. Lastly, the Constitution is remarkably viable in accord with the dictates of sound reason. Providing the method of peaceable change, of identity through growth, it remains analogous to the natural law, so immutable in its fundamental principles and so progressive in its effects. Amendments to the Constitution preserve its substance for posterity. They do not annul or subvert it, least of all by the very provision inherent in the Constitution that makes possible the adaptations to the growth of our nation. The goal, "to form a more perfect union," is ever toward a more indissoluble survival.
A word about the Federalist Papers is relevant to our discussion. Besides being a profound compendium of political wisdom on the basic problems of government, it enjoys the unique distinction of being frequently cited by the Supreme Court concerning the genuine meaning of disputed provisions in the Constitution. The argument of the eighty-five papers is that the Constitution is apt and necessary for the proper coherence of liberties and authority, of stability and energy in government (no. 1 and no. 37). But more relevant here is the admission that the superstructure of government must rest on ultimates which precede and should determine human choice and contrivance. According to Hamilton:
In disquisitions of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to a1l reflections or combination, commands the assent of the mind (no. 31).
The American judiciary has repeatedly recognized that the nation's religious character bears upon American law and government. State and federal courts have declared that "Christianity is part of the law of the land," that "We are a Christian people,"  that "This is a Christian nation."  These judicial notices obviously are not intended to contradict the First Amendment (as Justice Joseph Storey observed , much less to intrude upon and embarrass non-Christians. They simply acknowledge the Christian genesis and quality of American law. There is scarcely anything offensive to Christianity in our legal system and there is much in accordance with its moral standards. American law incorporates the sociological exigencies of the religious life of the nation. When the eminent scholar, the late Dr. Edward Corwin sharply criticized the McCollum decision on historical and constitutional grounds, he pointed to the testimonial evidence of American history:
Is the decision favorable to democracy? Primarily democracy is a system of ethical values, and that this system of values so far as the American people are concerned is grounded in religion will not be denied by anyone who knows the historical record. 
As if in response are the concurring decisions of the New York State Court of Appeals  and the federal Supreme Court  in Zorach v. Clauson.
We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom of worship as one chooses... When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our tradition. For then it respects the religious nature of our people and accommodates the public service to their spiritual needs... We cannot read into the Bill of Rights (such) a philosophy of hostility to religion.
In conclusion we affirm again that the American consensus on the religious foundations of our political democracy is substantially and abundantly evidenced in the testimony of the Founding Fathers in the Continental Congress; in the drafting of the Declaration of Independence; in the construction of the federal Constitution; in the long tradition of presidential statements; and in the judicial recognition of the religious experience of the nation. The long history of legislative acts favoring cooperation with religious life is a vast and consoling study in itself and presupposes the theological convictions underlying American democracy. Although there is a secularistic stream in the nation's history, it is not the only American tradition. Moreover, it is not the original American tradition, much less the prevailing one, and it is certainly not the genuine and authentic one. In light of the historical record, the secularist claim is wholly alien to the American mind and as such constitutes a dissent and a protestation.
Certain practical considerations can be drawn from this affirmation. Since the days of the Northwest Ordinance the nation's moral, educational and political issues have been conceived as necessarily intertwined. The question now is whether American democracy can survive without its original theological and moral foundations. Will it endure on secularistic substitutes for God-centered values? Educators and political scientists who abide by their own intellectual prepossessions and who attempt to rewrite American history falsify the record. The charge that American political democracy is essentially a process, wholly a method whereby any change may be effected provided it is done peaceably and according to the rules in the contest of ideas and by the majoritarian determination of the suffrage,  is a case in point. In answer to this question the problems of national security and the many issues  concerning loyalty and subversion must also be faced.
Other grave and complex questions will be seriously affected by the admission or denial of a political substance of American democracy which is resonant with religious and spiritual verities and values. Should public education, for example, be religiously neutral? What should be the nature and extent of cooperation in church-state relations? Is the religious neutrality of public education contrary to the official and authoritative admissions to the religious foundations of American democracy? Can patriotic loyalty survive without adherence to the religious orientation of American democracy?
In 1954 Congress reaffirmed that patriotic duty and national allegiance are not religiously neutral, and accordingly inserted the phrase "under God" (always taken for granted) into the official formula of salute to the national flag. On March 28, 1955,  the New York State Board of Regents spoke out in unequivocal terms against the secularism which has crept into the public schools under guise of religious neutrality. In a statement titled "Fundamental Beliefs, Liberty Under God, Respect of Dignity and Rights of Each Individual, Devotion to Freedom, the Brotherhood of Man under the Fatherhood of God," the Board urged that schools devote frequent periods to the teaching of the country's moral and spiritual heritage. To this purpose it recommended intensive study of American documents and pronouncements by presidents and other national leaders which provide "an understanding and appreciation of the student's role as an individual endowed by his Creator with inalienable rights and as a member of a group similarly endowed, of respect for others, particularly parents and teachers, of devotion to freedom and reverence for Almighty God."
Concerning the Declaration of Independence the Regents noted:
"All men are created equal" is the basic principle of the brotherhood of man and "endowment by their Creator with life, liberty, and the pursuit of happiness" is recognition of the fatherhood of God and that these most precious rights come from the Creator and not from kings, princes, or other men.
And to leave no doubt as to the relevance of religious beliefs in American political democracy the Regents cited as the traditional presidential affirmation of the original, authentic and prevailing consensus the words of President Eisenhower:
Without God there could be no American form of government, nor an American way of life... Thus the Founding Fathers saw it: and thus, with God's help, it will continue to be... Each day we must ask that Almighty God will set and keep His protecting hand over us so that we may pass on to those who come after us the heritage of a free people, secure in their God-given rights and in full control of a government dedicated to the preservation of those rights.
The freedom of man has come with divine revelation; it was not conceived in philosophical agnosticism, nor in religious indifference, nor in rational skepticism, least of all in scientific empiricism. Doubts, uncertainties and ignorance have never offered effective barriers in the minds of men nor provided the inspiration to fight usurpations of power. The threat to liberties comes from those who deny the sovereignty of God over nations as well as over persons. This is the meaning, of "the Truth shall make you free," for God is truth.
The survival of American political democracy will not rest solely on a prosperous economy and military preparedness; it requires the religious perception that the insidious crime against the spiritual content of political liberty is indifference. There is no religious neutral ground between God and man for society.
Costanzo, Joseph F. "The Religious Heritage of American Democracy." Chap. 1 in This Nation Under God: Church, State and Schools in America. 24-48. New York: Herder and Herder, 1964.
Copyright © 1964 Herder and Herder