We are a religious people, whose institutions presuppose a Supreme Being.
There is no better way to confirm the truth of the foregoing aphorism of the late justice William O. Douglas, than to take a tour of the state constitutions. As attorney Robert Cannada has noted, forty-seven of the fifty states have preambles invoking the name of Almighty God. (Three state constitutions do not have preambles.)
A joint resolution of the Congress–which would require no more than simple majorities in both houses–could declare that children in public schools might lawfully recite voluntary prayers employing only such acknowledgment of divine power and goodness as is present in their own state constitution, or in the constitutions in any of the other states. When this resolution is signed by the President–and it is difficult to imagine any reason to object to it–it could take effect immediately. It is also difficult to imagine that the Supreme Court could take exception to such a resolution. To do so would not only put it in direct opposition to the elected branches of government, but also would require it, in effect, to declare the state constitutions unconstitutional!
We submit herewith some examples of the perfectly nonsectarian piety embodied in the fundamental laws of the states.
We, the people of the state of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this constitution … All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience.
We the people of the State of Arkansas, grateful to Almighty God for our civil and religious liberty, and desiring to perpetuate its blessings …
We the people of the State of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution.
We the people of Colorado, with profound reverence for the Supreme Ruler of the Universe …
We the people of Maine … acknowledging with grateful hearts the goodness of the Sovereign Ruler of the Universe … and imploring God’s aid and direction …
We the people of the State of New Jersey, grateful to Almighty God for the civil and religious liberty which HE hath so long permitted us to enjoy, and looking to him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generations …
We the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking his guidance …
Since through Divine Providence we enjoy the blessings of civil and religious liberty, we the people of West Virginia, in and through the provisions of this Constitution, reaffirm our faith in and constant reliance upon God and seek diligently to promote, preserve and perpetuate good government …
This selection should be sufficient to illustrate both the consistency in the patterns of all the preambles, and the interesting variations that occur in some of them. Who could ask more in a school prayer than to acknowledge that it is through Divine Providence that we enjoy our civil and religious liberty, and that we reaffirm our faith in and constant reliance upon God to preserve and perpetuate it?
It is notable that the state constitutions have provisions equivalent to the “no establishment” and “free exercise” clauses of the First Amendment to the United States Constitution. One example that will suffice for present purposes is that of California.
Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace and safety of the State. The legislature shall make no law respecting an establishment of religion.
From this it is apparent that the people of the states have seen no inconsistency between the guarantees of religious freedom in their constitutions, and the expressions of gratitude to God for the enjoyment of that freedom in the same constitutions.
American constitutions, whether federal or state, rest ultimately upon the theology of the Declaration of Independence. This fact has been obscured by the domination of a legal positivism which is simply unable to understand the relationship between natural and divine law on the one hand, and human law on the other. Yet this relationship was axiomatic for our Founding Fathers. If however we ask why we have an obligation–that is to say, a moral duty–to obey the laws, either of our State or of the United States there is only one answer. It is because those laws exist “to secure these rights,” rights with which we have been “endowed by [our] Creator.”
Constitutional governments have no other purpose but to render valuable rights whose origin is altogether independent of human will, rights which are unalienable because they are fixed eternally in “the laws of nature and of nature’s God.” Through the ages many governments which did not respect the rights of the individual have claimed to be based on the consent of the governed. But the consent of the governed required by our republican constitutions is derived from the equal and unalienable rights of each human person.
Legal positivists deny to the Declaration any role in constitutional interpretation. However, according to the United States code, adopted by the Congress, the Declaration is the first of the Organic Laws of the United States. This prominence is not merely formal or ceremonial. As David Sonenstein pointed out to me, every enabling act by the Congress for the admission of a State to the Union since the Civil War has had the following provision!
The Constitution of the State of ________shall always be republican in form and shall not be repugnant to the Constitution of the United States and the principles of the Declaration of Independence.
The United States Constitution, while guaranteeing to every state of the Union a republican form of government, does not expressly say what the form is. But the Congress, in implementing that guarantee in the case of each new state added to the union in the last one hundred and thirty years, does expressly define that form by the principles of the Declaration of Independence.
Under this mandate from the Congress, we find these principles affirmed over and over again in the State constitutions. For example, the Declaration of Rights of the Constitution of the State Of Ohio has a provision that reads:
All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.
It can be seen that “endowed by their Creator” and “by nature” are correlative terms each implying the other. It can also be seen that the rights secured to us by the human law, whether of the states or of the United States, are means of implementing antecedent rights whose origin is in a Supreme Being. It is difficult to imagine how we can teach citizenship to future citizens, without inculcating in them an understanding of and a reverence for this origin.
Harry V. Jaffa, a Senior Fellow at the Claremont Institute, is author of Crisis of the House Divided. His most recent book is Original Intent and the Framers of the Constitution.