The Great Agnostic

by Susan Jacoby

  The men who framed the Constitution were mindful and fearful of the history of state-enforced religious power in Europe and were determined that the blueprint for the new national government would provide no sanction for such actions—even though most state governments did have laws privileging particular religious denominations. But the framers made no mention of God, even the deistic “providence,” in the preamble and explicitly prohibited religious tests for federal office in Article 6, Section 3—although numerous states retained such prohibitions in their laws into the 1840s. Many states also had blasphemy laws, dating from the early 1800s, on their books, but such laws were rarely enforced. If local defenders of the faith became agitated, however, they could invoke the old laws and try to enforce them. That is what brought Robert Ingersoll to court in Morristown, New Jersey, to defend freethinker C. B. Reynolds, who had distributed a pamphlet denying the infallibility and divine authorship of the Bible, as Thomas Paine had (with greater literary skill) more than a century earlier.

  Reynolds was one of the traveling lecturers who spoke throughout the country in tents provided by donors to the American Secular Union, the best-known national freethought organization of the era. The tents were needed because most lecture halls would not rent space to antireligious speakers (unless the speaker was Ingersoll, who always sold out the house and made money for the godly proprietor). Appearing in the “freethought tent” erected in the small town of Boonton, New Jersey, Reynolds had to flee as a stone-throwing mob began to vandalize the canvas structure (which was ultimately shredded). Then he moved on to distribute more pamphlets attacking the Bible in Morristown, not far from the stretch of the Delaware River where George Washington made his famous crossing on Christmas Eve of 1776. The Morristown pamphlet had a cover that particularly enraged Methodists and Catholics, because it showed Reynolds literally trying to cast pearls before Methodist and Catholic swine pictured in the foreground. Reynolds was charged under a statute dating from the colonial era, which made blasphemy a crime punishable by a year of imprisonment or a fine of two hundred dollars. In his summation, Ingersoll emphasized the descent of the New Jersey law from the kinds of laws that had decreed the death penalty for blasphemy—not in the Middle Ages but at the very time the United States was becoming a nation. Such laws, Ingersoll said, identified any man who disagreed with some aspect of orthodox doctrine (whether orthodox Protestantism or orthodox Catholicism) “and took that poor honest wretch—while his wife wept—while his children clung to his hands—to the public square, drove a stake in the ground, put a chain or two about him, lighted the fagots, and let the wife whom he loved and his little children see the flames climb around his limbs.” Even though the penalty might be less harsh, Ingersoll emphasized, “the same spirit made this detestable, infamous, devilish” New Jersey law.1

  The Reynolds trial, widely publicized in New York because Morristown is located only thirty miles from the city, did not attract the same level of national publicity that the Scopes trial would forty years later. What the trials had in common was that they were perceived, at least by intellectuals and some business leaders, as the last stand of rigid religious belief that, even though it might still be enshrined in old laws, had little to do with everyday contemporary life and social institutions. As Ingersoll noted in his summation, the last person imprisoned for blasphemy in the United States, the Universalist ministerturned-freethinker Abner Kneeland, had been jailed in Boston nearly a half-century earlier in 1838. Kneeland, who had been arrested for stating that the Christian god of the Universalists was “nothing more than a chimera,” was unsuccessful in a defense claiming that he was not an atheist but a pantheist. (He served sixty days in jail and moved on to Iowa, where he founded a little-known utopian community named Salubria.)

  Ingersoll’s chief argument in the trial was that the old blasphemy law violated the 1844 New Jersey state constitution, which, like most state constitutions, guaranteed freedoms of speech and religion along the lines of the federal constitution’s First Amendment. Although the blasphemy law had not been enforced for most of the nineteenth century, Ingersoll reminded the jurors, the statute had nevertheless been allowed to “slumber” on the books. “You inherited it from your ignorant ancestors, and they inherited it from their savage ancestors,” he explained. “The people of New Jersey were heirs of the mistakes and the atrocities of ancient England.”2 It should be recalled that in Ingersoll’s time, the equal protection clause of the Fourteenth Amendment, ratified in 1868, was not used to challenge state laws that conflicted with the Bill of Rights; the only argument he could make was that the New Jersey blasphemy law violated the state’s own constitution. (As evinced by his condemnation of the 1883 Supreme Court decision repealing the federal civil rights act, Ingersoll held to a broad interpretation of the national Constitution.) Ingersoll concluded his defense by appealing to the jury’s patriotism and expressing the fervent wish “that it will never be necessary again, under the flag of the United States—that flag for which has been shed the best and bravest blood of the world—under that flag maintained by Washington, by Jefferson, by Franklin and by Lincoln—under that flag in defence of which New Jersey poured out her best and bravest blood—I hope that it will never be necessary again for a man to stand before a jury and plead for the Liberty of Speech.”3

  According to the New York Times, “As Colonel Ingersoll left the room, a throng pressed after him to offer him congratulations. One old man said: ‘Colonel Ingersoll, I am a Presbyterian pastor, but I must say that was one of the noblest speeches in defence of liberty I ever heard! Your hand, sir; your hand!’”4 The jury, however, was not convinced. The outcome of the Reynolds trial clearly reflected the ambivalence of the court about religion-based law and the separation of church and state. The jurors returned a verdict of guilty, but the judge, unwilling to be recorded in history as the man who imprisoned an American citizen for blasphemy for the first time in fifty years, imposed a fine of only twenty-five dollars. He also assessed seventy-five dollars in court costs, which were paid by Ingersoll, who had already donated his own legal services.

  The prosecution of Reynolds for blasphemy underscores the shortness of the period, as historical time is measured, between an era when a man might be imprisoned or even killed for expressing disbelief in a particular religion and an era in which, even though freethought was not generally accepted, it also seemed anachronistic to severely punish anyone for ridiculing the idea of a deity. In his summation to the jury, Ingersoll stressed the antiquated nature of any blasphemy charge, but he was certainly well aware that a century, or a half-century, not only sub specie aeternitatis but in an ordinary man’s life, was a very short time for society to embrace an intellectual and political shift as important as the acceptance of man’s right to scoff at God.

  In its national constitution, America had turned its back on theocracy swiftly but without violence—a shift that contrasted sharply with the bloody religious strife that had roiled seventeenth-century England and would consume the French Revolution during the Jacobin terror. But the pace of religious change in the new nation was uneven, affected not only by the tension between the federal republic and states’ rights but by an education gap between the North and South that widened as slavery fostered resistance to both public schooling and any science that challenged the Bible. Those who claim today that the founders never really meant to separate church and state argue that the framers of the Constitution expected nearly all matters of religion, and government relations with religion, to be determined by the states. According to this logic, little importance should be attached to the omission of God from the Constitution, the prohibition of religious tests for national office, or the careful provision that officeholders be allowed to “swear or affirm” their allegiance to the United States. (The word “affirm” was specifically intended to allow declarations of allegiance by those who did not wish to “swear on the Bible.”) In this view, the body of the Constitution and the First Amendment were des
igned only to protect religion from government—not government from religion.

  The opponents of church-state separation are partly right: the founders did indeed know that there was an existing crazy-quilt of state laws favoring religion in general and, in many instances, one established religion. At the time the national constitution was ratified, the Massachusetts state constitution—much to John Adams’s dismay—prohibited both Jews and Catholics from holding public office. Delaware required officeholders to affirm their belief in the Holy Trinity. New York allowed Jews and Protestants, but not Catholics, to hold office. What the founders did by leaving God out of the Constitution, and making it clear that religious belief was not a condition for holding federal office, was announce that the new nation was going to do things differently. There was no doubt in the minds of those who wanted a constitution that paid customary deference to the deity as the source of political power that the omission of God from the document did represent a momentous departure from the idea and ideal of a Christian nation. The Reverend John M. Mason, a fiery New York Federalist who did not share Washington’s and Adams’s liberality in religious matters, decried the absence of God in the Constitution as “an omission which no pretext whatever can palliate.” He warned his fellow Americans that “we will have every reason to tremble, lest the Governor of the universe, who will not be treated with indignity by a people more than individuals, overturn from its foundations the fabric we have been rearing, and crush us to atoms in the wreck.”5

  Moreover, many of the founders, including Jefferson, Madison, and Adams, hoped that the new federal constitution would encourage the states to revise their religiously based laws. Their hope was partly fulfilled. Between 1789 and 1792, five of the original thirteen states changed their religious laws to reflect the more secular values of the Constitution. It took the other original states decades longer to arrive at anything approaching the Constitution’s example. Massachusetts, still bound to its Puritan heritage, did not remove all religious restrictions on holding public office until 1833, and Connecticut took another decade to allow Jews to run for office.* But new states joining the union, as the framers had hoped, generally took the federal constitution as their model on relations between church and state. Nevertheless, many “sleeper” religion-based laws, like New Jersey’s blasphemy statute, remained on the books.

  The society in which Ingersoll set out to remind his countrymen of the nation’s most secular revolutionary traditions was, of course, characterized by a much higher level of religious pluralism than the early republic. The post–Civil War influx of East European Jews and Roman Catholics had reminded the Protestant religious establishment of the predictions of many orthodox eighteenth-century ministers that the godless constitution would, in theory, allow anyone—including atheists, Jews, and those Protestant theological flip-floppers, Unitarians and Universalists—to serve as president. There was also enormous concern about the growing political influence of Roman Catholics in the nation’s large cities. These fears about religious pluralism played an important role in the repeated demands by mainstream Protestant organizations for a Christian amendment, like the one presented to Abraham Lincoln, to remedy the primal religious omission of the founders. (The American Catholic hierarchy, well aware of the Protestant American majority’s fear of Rome and “popery,” did not make such demands at the time.)

  Ingersoll used every possible public platform to remind Americans why the founders had written a godless constitution in the first place. In response to one of the many ministerial pleas for a godly constitution since Lincoln had evaded the issue in 1864, Ingersoll noted that “if there is to be an acknowledgment of God in the Constitution, the question naturally arises as to which God is to have this honor.”

  Shall we select the God of the Catholics—he who has established an infallible church presided over by an infallible pope, and who is delighted with certain ceremonies and placated by prayers uttered in exceedingly common Latin? Is it the God of the Presbyterians with the Five Points of Calvinism, who is ingenious enough to harmonize necessity and responsibility, and who in some way justifies himself for damning most of his own children? Is it the God of the Puritans, the enemy of joy—of the Baptist, who is great enough to govern the universe, and small enough to allow the destiny of a soul to depend on whether the body it inhabited was immersed or sprinkled?

  What God is it proposed to put in the Constitution? Is it the God of the Old Testament, who was a believer in slavery and who justified polygamy? If slavery was right then, it is right now; and if Jehovah was right then, the Mormons are right now. Are we to have the God who issued a commandment against all art—who was the enemy of investigation and of free speech? … What court, what tribunal of last resort, is to define this God, and who is to make known his will? In His presence, laws passed by men will be of no value. The decisions of courts will be as nothing. But who is to make known the will of this supreme God? Will there be a supreme tribunal composed of priests?6

  Ingersoll had two major concerns about separation of church and state. First, he feared that in an expanding and expansive society that included people of more varied cultures and beliefs than the founders could ever have imagined, the most retrograde representatives of orthodox Protestantism would attempt to solidify their political and economic power by laying claim to a religion-based political authority denied by the Constitution. Second, he anticipated that the Catholic Church would press for more laws in conformity with its doctrines as the number of American Catholics increased. This concern intensified as Catholics began to finance the nation’s first large parochial school system as an alternative to public education. Ingersoll saw the Catholic opposition to free public schooling and its suspicion of science as particularly harmful and noted that the Vatican respected the religious liberty of others only in areas where Catholics were a minority.

  But Ingersoll also had a low opinion of the curriculum in American public schools when it came to teaching students about either freedom of conscience or the separation of church and state in American history. If public schools and their teachers were doing a good job of representing the secular side of history, Ingersoll argued, the jurors in the Reynolds blasphemy trial would have understood the connection between an eighteenth-century auto da fé and a nineteenth-century imposition of even a small fine for distributing a pamphlet ridiculing the Bible.

  For the Great Agnostic, the relative obscurity of Thomas Paine in the second half of the American nineteenth century was nothing less than a crime against the true history of the United States. Paine’s writings were, by then, much better known among the educated classes in England than in America. “These are the times that try men’s souls”—the opening line of The Crisis Papers—may have been more familiar to nineteenth-century American schoolchildren than it is to children today, but Paine himself was a touchy and largely unexplored subject. The prerevolutionary call to arms “Common Sense” sold more than half a million copies in the colonies in the mid-1770s. Paine received no money for his famous revolutionary pamphlets, because he allowed them to be published and circulated freely as his contribution to American independence. As Ingersoll noted in his standard speech on Paine, “no one stood higher in America” at the successful conclusion of the Revolution than the author of The Crisis Papers. “The best, the wisest, the most patriotic, were his friends and admirers,” Ingersoll recalled, “and had he been thinking only of his own good he might have rested from his toil and spent the remainder of his life in comfort and in ease.” This alternative Paine could have remained “what the world is pleased to call ‘respectable.’ He could have died surrounded by clergymen, warriors and statesmen. At his death there would have been an imposing funeral, miles of carriages, civic societies, salvos of artillery, a nation in mourning, and, above all, a splendid monument covered with lies. He chose rather to benefit mankind.”7

  The benefit to mankind, as outlined by Ingersoll for his audiences, was Paine’s exploration of the relig
ious tyranny that had always been indispensable to political tyranny: “He knew that the throne skulked behind the altar, and both behind a pretended revelation from God.”8 Living out his credo that “the world is my country, and to do good my religion,” Paine resided and wrote in both England and France after the American Constitution was ratified. Threatened with a possible charge of treason, Paine was forced to flee England after publication, in 1791, of the anti-monarchist The Rights of Man, but his writings were so popular in France that he was elected to the revolutionary National Assembly in 1792. Soon he was in trouble again, imprisoned, and in danger of being put to death, because of his principled opposition to capital punishment. Even though Paine was the most passionate of anti-monarchists, he opposed the execution of King Louis XVI on the ground that the state degraded itself and, in a democracy, its citizens by claiming and exercising the authority to take human life. Ingersoll, like nearly all freethinkers, opposed both the death penalty and torture because such punishments were historically rooted in the idea that since God has the power of life and death, the government, as the deity’s representative on earth, could also lay claim to that power.*

  The death penalty was prescribed for hundreds of offenses in the Old Testament, Ingersoll noted, and Christian countries followed suit until the end of the eighteenth century. He described the prohibition of “cruel and unusual punishment,” enshrined in the Bill of Rights, as another secular concept. By the late nineteenth century, the death penalty was considered too cruel and unusual to be imposed for such crimes as horse thievery—though not for rape. Murder and treason, however, remained capital crimes in every state. Like Paine, Ingersoll opposed the death penalty not out of pity for criminals but because he thought that such punishments debased the people whose government claimed the right to murder—whatever the form of government. “Search the records of the world,” Ingersoll insisted, “and you will find but few sublimer acts than that of Thomas Paine voting against the king’s death. He, the hater of despotism, the abhorrer of monarchy, the champion of the rights of man, the republican, accepting death to save the life of a deposed tyrant—of a throneless king. This was the last grand act of his political life—the sublime conclusion of his political career.”9