The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Happy Thanksgiving to our readers! I posted this last year, but since I'm teaching a seminar on constitutional interpretation outside of the courts in January, this seems appropriate again. Here are competing Thanskgiving wishes from ex-Presidents Washington and Jefferson:
Whereas 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 . . .
Now therefore I do 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 … that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions- to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually-to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed-to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord-To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us-and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.
I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority.
But it is only proposed that I should recommend, not prescribe a day of fasting & prayer. That is, that I should indirectly assume to the U.S. an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority, and to be sanctioned by some penalty on those who disregard it; not indeed of fine and imprisonment, but of some degree of proscription perhaps in public opinion.
And does the change in the nature of the penalty make the recommendation the less a law of conduct for those to whom it is directed? I do not believe it is for the interest of religion to invite the civil magistrate to direct it's exercises, it's discipline, or it's doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.
I am aware that the practice of my predecessors may be quoted. But I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another. Be this as it may, every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the U S. and no authority to direct the religious exercises of his constituents.