Over at the Volokh Conspiracy, Will Baude has posted the text of a proclamation issued by George Washington, then the President of the United States, in 1789, to call for national Thanksgiving celebrations, and an excerpt from a letter written by Thomas Jefferson in 1808, when he was President, to explain his refusal to issue a similar proclamation. These are short but fascinating texts. They are also most topical for us, because they neatly summarize the competing positions in the municipal prayer case which the Supreme Court is now considering, Mouvement laïque québécois v. Saguenay (Ville de).

Washington asserted 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.” The submissions of those who argued in favour of the permissibility of the prayer, especially the interveners, and pointed to the Preamble of the Constitution Act, 1982, which states that “Canada is founded upon principles that recognize the supremacy of God” echo this assertion. (These words in the Preamble, for their part, incongruous as they might seem in a constitutional document, somehow echo Washington’s thanks to God “for the peaceable and rational manner, in which we have been enabled to establish constitutions of government.”)

Jefferson, by contrast, argued that as “the government of the U S. [is] interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises,” he could not even “recommend” a religious “exercise” such as a Thanksgiving celebration. For even a recommendation emanating from the government

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? [Underlining in the original]

This is the position taken by those who are challenging the prayer: even though participation in and even attendance at the prayer is voluntary, it has an exclusionary effect on, a “proscription in public opinion” against, those who do not take part.

My own sympathies lies firmly with Jefferson here, but I think that it is important to acknowledge the pedigree, and the good faith, of the contrary position. The question before the Supreme Court is not an easy one.

On an unrelated note, I cannot resist highlighting a couple of phrases in Washington’s proclamation, which show that, as I have already explained here, the purported difference of national character between the Americans, who believe in “life, liberty and pursuit of happiness” and Canadians, who believe in “peace, order and good government” is blown out of proportion by our romantic nationalists. Washington thanked God “for the great degree of tranquility, union, and plenty, which we have … enjoyed,” and implored Him to “bless [all Sovereigns and Nations] with good government, peace, and concord.” So there.

Finally, to my American readers, a happy Thanksgiving. I am grateful for your support!

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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