Thanksgiving and the Constitution

 
 

Strict separation of church and state would require us to throw out Thanksgiving as a religious holiday proclaimed by the president. Instead, we should embrace Thanksgiving and throw out strict separationism as a misguided interpretation of the Constitution.

America’s long and venerable tradition of presidential proclamations of thanksgiving—which reaches from Barack Obama all the way back to George Washington—is a standing rebuke to the modern Supreme Court’s interpretation of the Establishment Clause of the First Amendment.

The Establishment Clause famously provides that “Congress shall make no law respecting an establishment of religion.” From the founding to the present, Americans of all points of view have agreed that this provision forbids the creation of a state church or an official religion.

For the last sixty-five years, however, the Supreme Court has held that the meaning of the clause goes further, that it in fact requires a “strict separation of church and state.” The Court announced this meaning in 1947 with its decision in Everson v. Board of Education, it began using it in the 1960s to invalidate acts of government designed to support religion, and it has held to it resolutely ever since, despite strong criticism from sources both on the Court and off of it.

According to the theory of strict separation, the government is forbidden not only to set up an official church or religion, but also to do anything in support of religious belief. It may not invoke its authority on behalf of any particular religion, and it may not even act to foster religious belief in general. To use the language of the Court, the Establishment Clause requires that the government be neutral not only among sects, but also between religion and non-religion.

Strict separation’s strictness, its utter intolerance of any governmental affirmation of religion, also arises from its insistence that government may not deploy its power or even its prestige on behalf of religion. According to the Court, violations of the Establishment Clause need not be predicated on coercion. Government may not require religious observance, but neither can it merely encourage such observance. Thus, in the 1960s, the Court threw out exercises of prayer and devotional Bible reading in public schools, despite the fact that these activities were acknowledged to be voluntary. According to the Court, they were violations of the Establishment Clause even though students who did not wish to take part were free to decline to do so.

Strict separationism presents itself as based on history. It claims, in fact, to be the result of an inquiry into the original understanding of the Establishment Clause. American liberals generally dismiss originalism as a mode of interpretation, but they embrace it enthusiastically here, where it seems to yield results to their liking. Seems is the operative word, however, because strict separationism depends on a tendentious reading of the historical evidence.

Defenders of strict separation claim that their interpretation is based on the views of the founders, especially Thomas Jefferson and James Madison. Jefferson, they’ll argue, opposed even generalized governmental support for religion and famously used the phrase “wall of separation of church and state” to express his view of the meaning of the Establishment Clause. Meanwhile, they’ll say that Madison joined Jefferson in resisting efforts to use the government of Virginia to support religion. In the context of this struggle, Madison authored his celebrated Memorial and Remonstrance, which argued that government must take no cognizance of religion. And Madison went on to be the primary architect of what became the First Amendment.

This argument is perhaps fine as far as it goes: Jefferson and Madison did indeed oppose even generalized, non-disciminatory governmental support for religion. But as then-Justice Rehnquist pointed out in his dissenting opinion in Wallace v. Jaffree, one cannot equate the public meaning of the Establishment Clause with the views of Jefferson and Madison, most obviously because they were not the only founders.

If we seek evidence of the broadly shared public view of the meaning of the Establishment Clause at the time of the Founding, we find not an insistence on strict separation of church and state but instead a largely uncontroversial willingness to see the government act in a non-coercive and non-discriminatory manner to encourage religious belief and practice.

This brings us to Thanksgiving and the country’s tradition of presidential proclamations of thanksgiving. As Rehnquist observes in his Wallace dissent, the First Congress—the same Congress that Madison led in drafting the Establishment Clause—passed a resolution asking President George Washington to proclaim a day of thanksgiving for the nation. Washington complied, and his proclamation of October 3, 1789, is as clear an example as one could wish of government encouragement of religion.

Washington began by claiming that it is “the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor.” He then proceeded to “recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious being, who is the beneficent Author of all the good that was, that is, or that will be.” To believe that the original understanding of the Establishment Clause requires strict separation of church and state, or utter government neutrality between religion and irreligion, we would have to believe that the first Congress and the first president pursued a line of conduct that was inconsistent with the Constitution they were then in the process of implementing.

In response, defenders of strict separation have argued that Washington’s 1789 Thanksgiving Proclamation does not necessarily shed any light on the founding generation’s understanding of the Establishment Clause. After all, they point out, although the First Amendment was being crafted at the same time as Congress requested the Thanksgiving Proclamation, it was not ratified for another two years. Washington’s Proclamation, then, was not a violation of the Constitution because the Constitution at that time did not include the Establishment Clause. Therefore, the fact that these founding statesmen did not seem to be conscious of anything unconstitutional in their actions does not necessarily shed light on the meaning of the yet-to-be formalized Establishment Clause.

This argument is clever but unpersuasive. Clearly, the first Congress passed the Establishment Clause—adding it to the nation’s fundamental law—because they thought it would be deeply improper for Congress to make any law respecting an establishment of religion. If strict separationism is a correct interpretation of the founders’ understanding, then we must believe that they thought, in addition, that any government promotion of religious belief—no matter how non-discriminatory and non-coercive—was also deeply improper.

If that was in fact their belief, it is not credible that they would have sought the Thanksgiving Proclamation as they did, even if the Amendment formally prohibiting what they thought deeply improper had not yet been ratified. It is hardly reasonable to think of the leading statesmen of the founding period as the kind of men to eagerly seize the chance to get away with something they disapproved of and were in the process of forbidding. They would no more have done so than they would have tried to use unreasonable searches and seizures or deprive citizens of the right to confront their accusers while the rest of the Bill of Rights was still pending before the states.

In any case, this argument is also undercut by the fact that Washington issued a very similar proclamation in 1795, after the First Amendment had been ratified and was an operative part of the Constitution. In this pronouncement, Washington once again reminded Americans of their “duty as a people, with devout reverence and affectionate gratitude, to acknowledge our many and great obligations to Almighty God and to implore him to continue and confirm the blessings we experience.” Once again, Washington went on to recommend “to all persons whomsoever” in the United States to set aside a specified day “as a day of public thanksgiving and prayer.”

Similar proclamations of days of thanksgiving were issued by Washington’s successor in the presidency, John Adams. And while Jefferson declined to issue any during his presidency, even James Madison, Jefferson’s partner in disapproval of governmental support for religion, issued them during his tenure as president. It may well be that Madison did so against his better judgment to placate the public’s expectations. Those expectations, however, once again confirm that the dominant sense of the founding generation was that there was nothing constitutionally improper in a governmental exhortation to religious activity.

The tradition of presidential proclamations continues to this day, and it is observed even by a liberal president, Barack Obama, who is a former teacher of constitutional law. Obama’s 2012 Thanksgiving Proclamation is not as religious as those of Washington. He spends more time discussing the importance of family and service to the community than reverence for God. Nevertheless, he does use the proclamation to encourage religious belief. Thanksgiving, he affirms, is a day for us to be “grateful for the God-given bounty that enriches our lives.” He calls upon Americans to spend the day “lifting up those we love, mindful of the grace bestowed on us by God.”

Obama’s proclamation, of course, does not lend support to any particular religion, nor does it require anyone to do anything, any more than Washington’s did over 200 years ago. Like Washington, however, Obama uses the prestige of the government to encourage religious practice and belief. His proclamation does not focus as much on God as Washington’s did, but neither can it be understood to take a purely neutral posture on the question of religion versus irreligion.

Thanksgiving is a time to be grateful for the blessings we have received, but also an opportunity to reflect on the traditions we have inherited—which are among the greatest of those blessings—and to ask ourselves whether they are being properly preserved. Strict separationism, consistently applied, would require us to throw out Thanksgiving as a religious holiday proclaimed by the president. Instead, we should embrace Thanksgiving as such a holiday, and recognize that it requires us to throw out strict separationism as a misguided interpretation of the Constitution.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

 

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