4. The Relation of the States to the Government of the Union. The Federal Constitution and its Relation to the Constitutions of Individual States. The Subjection of Religious Questions to the Particular Governments of Individual States. The Significance of This Fact for the Development of Religious Equality. The Slow Development in the States of the Principle of Freedom of Religious Conscience. The Present State of the Question. The Position of Catholics. The Inevitable Privilege of the Strongest Confessional Forms. Public Charity. Concluding Conclusions

The colonies, which entered into the composition of the United States, before the proclamation of independence lived completely separate lives from one another, had nothing in common except external submission to English rule. They were populated by emigrants of different nationalities, different confessions, customs and manners, and different political views. When the struggle with England began, the common interest required them to unite their forces for self-defense, and they formed a united Union, which found legal expression in the federal constitution. But in entering this Union, they did not wish thereby to lose their local self-government, and therefore sought to limit the jurisdiction of the federal government only to those common subjects and relations which equally concerned all of them, and to exclude from it everything that constituted the internal life of each colony. In a word, they entered the Union as completely separate and independent states, as is shown by the very name United States, which means United States. Each state is a completely separate and independent state, having its own peculiar governor, its own senate, its own legislative assembly, its own constitution. The federal constitution limits its jurisdiction only to the common interests of the united states, just as the federal government conducts only the general relations of the Union, without any right to interfere in the internal affairs of individual states. The states were very jealous in preserving their own self-government and excluded from the jurisdiction of the federal constitution everything that went beyond the bounds of the common interests of the Union. They took the same position in the legal determination of the question of freedom of religious conscience.

Before the proclamation of independence, the colonies, as we saw above, were so saturated with religious intolerance, particularly toward Catholics, that even their common political interest in the matter of liberation from English rule could not suppress this spirit of mutual intolerance, and it clearly expressed itself in the new constitutions through the exclusion of Catholics from certain civil rights and privileges, for example, upon election to public office. The federal constitution overcame this injustice, and the 3rd clause of Article VI abolished all religious determination of eligibility to hold public office. “No religious test shall be required as a qualification to any office or public trust in the government of the United States,” states this article. This article apparently equalizes the rights of all religious confessions, and consequently of Catholics, but its true significance is determined only by the relation of the federal constitution to the particular constitutions. By force of the system of relations of individual states to the Union set forth above, the federal constitution deals only with the federal government, and its jurisdiction therefore extends only to the sphere of activity of the latter. Hence the article on the abolition of religious tests has force only within the jurisdiction of the federal government, and has no significance outside these bounds, that is, does not extend to individual states as independent units. Therefore, by force of this article Catholics were equalized in their civil rights and privileges only before the federal government and could be elected to offices only within the jurisdiction of that government. It thus did not repeal the provisions of the particular constitutions which excluded Catholics from public office, but only created a new provision giving Catholics civil rights equal to all other confessions in an entirely different sphere, outside the individual states. So the states understood this article, which is particularly clear from the history of the origin of the famous amendment to it, by which “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This law, as we saw above, had been proposed to Congress for consideration even before the article on the abolition of religious tests, but it rejected it and adopted the latter article. When this article was proposed to the local conventions of the individual states for ratification, the insufficient precision in the determination of its jurisdiction seemed dangerous to many conventions for local self-government, as by a certain interpretation its effect could extend to the states as separate, independent units. They wished to retain the jurisdiction of religious matters for themselves, and therefore many of them made their ratification of the federal constitution conditional on the proposal to make the aforesaid amendment to the article on the religious question. These proposals were so insistent that Congress was forced to accept the provision it had previously rejected, and adopted the amendment by which it “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This amendment has a twofold meaning. First, it proclaims the complete separation of the federal government from religion, and second, it limits its right in relation to the government of individual states, repeals its right of jurisdiction in the sphere of religion, the conduct of which is thus wholly left to the jurisdiction of individual states. The amendment was only a formal renunciation by the federal government of the right to interfere in the religious affairs of individual states, while its actual exclusion from this right was already implied by the states earlier. Upon ratifying the federal constitution, they ratified it as binding only within the limits of the federal government, not of the governments of individual states. Therefore, its article denying all religious test for election to public office, while having full significance for the federal government, was completely not binding in the legal sense for the government of individual states. So it turned out in reality. The particular conventions of the states, recognizing the article on the abolition of religious tests in the federal constitution, at the same time did not consider it binding for their particular constitutions, and the articles in them excluding Catholics from the right to be elected to public office continued to exist as before.

Thus in the legal sense the federal constitution established freedom of religious conscience only in a limited form, equalized the civil rights of religious confessions only before the federal government, which, owing to the complete dependence of the federal government itself on the electoral will of individual states, made freedom of religious conscience almost fictional. Thus, a Catholic, under such circumstances, could never attain the presidency, for his election to it is conditioned not by the federal government but by the electoral will of individual states. But while having no legal significance, the federal constitution had enormous moral significance for the legislation of individual states. It was, so to speak, the highest expression of the collective sense of the entire people, and in this respect it involuntarily exerted influence on individual legislations, morally impelling them to conform their provisions to the fundamental spirit of this supreme national law. And indeed some states, shortly after the ratification of the federal constitution, hastened to conform their particular constitutions to it and, like it, abolished religious tests upon election to public office. Thus, the constitution of the state of Georgia, dated May 6, 1789, the first new local constitution adopted after the ratification of the federal constitution, excluded the article according to which members of the general assembly must be of the Protestant religion. The constitution of South Carolina, dated June 3, 1790, the second new constitution, excluded such a provision, as well as all other provisions making Protestantism the state religion, and stipulated that “the free enjoyment and exercise of religious profession and worship, without distinction or preference, shall forever hereafter be allowed in this state to all mankind”[1]. But other constitutions long retained articles excluding Catholics from the right of election to public office, and only gradually, over time, yielded to the moral influence of the federal constitution. Thus, in New York State, only in 1806 was the article abolished according to which Catholic immigrants, upon election to public office, were obligated to solemnly renounce all obedience to a foreign church authority, that is, to the Pope[2]. Such an article was contained in the constitution of Massachusetts, and it was abolished only in 1821, thus providing Catholics with the possibility to hold public office[3]. In Virginia complete freedom of conscience was granted only in 1830, when religious tests were abolished[4]. According to the constitution of North Carolina, upon election to office an oath was required acknowledging the truth of the Protestant religion. Any person denying the existence of God or the truth of the Protestant religion, or the divine authority of the Old and New Testaments, should not hold any office in the state. In 1835 this article underwent modification, and instead of Protestant was substituted Christian religion[5], whereby Catholics were equalized with Protestants. In the constitution of New Jersey the Protestant article, according to which “no Protestant resident shall be deprived of his civil and political rights,” was abolished only in 1844[6]. Finally, in New Hampshire, the article excluding Catholics from the right to hold public office outlived even the centennial celebration of American independence, celebrated in 1876, and this solemn festival of national freedom witnessed in the constitution of this state such articles: “each member of the house of representatives must be of the Protestant religion”; “no person shall be eligible for election to the senate who is not of the Protestant religion”; “no person shall be elected to the office of governor unless he is of the Protestant religion”[7].