the Cabinet, as he still does. The Founding Fathers decided on a complete and formal separation
of powers but they did not follow the logic of this course and insist on separating, at a personal
level, judicial sheep from political goats. Thus the early chief justices tended to be professional
lawyer-politicians, who saw running the court as merely a step on a public ladder which might
lead to higher things rather than as the culmination of a legal career placing the occupant high
above all political temptations.
The first Chief Justice, John Jay, was primarily a politician, who resigned in 1795 to run for
the governorship of New York. The second, John Rutledge (1739-1800), resigned before he
could even be confirmed by the Senate, in order to take up what was then regarded as a higher
post on the South Carolina Supreme Court. The third, Oliver Ellsworth himself, served 1796-
1800 but then resigned to take up a diplomatic post in Paris. One of the Supreme Court justices,
Samuel Chase, engaged openly in politics while sitting on the bench. This applied lower down
too. Of the twenty-eight judges on the federal district courts during the 1790s, only eight had
held high judicial office, but all had been prominent politicians. There was, however, a strong
desire, first articulated by Alexander Hamilton, that federal judges should stand above the
political battle, should be primarily experts, dedicated to interpreting the law as the ultimate
protection of the citizen's rights, rather than politicians engaged in the hurly-burly of making it.
There was a complementary feeling among the judges themselves that they should be the new
priests of the Constitution, treating it as the secular Ark of the Covenant and performing quasi-
sacramental functions in its service. That meant a withdrawal from politics, into a kind of public
stratosphere. This hieratic notion was gradually gaining ground in the 1790s, displacing the more
robust view of the Revolutionary democrats that, in a republic, any citizen was fit to discharge
any public duty, if voted into it. The federal judges, it began to be mooted, were `special,'
remote, godlike defenders of the public interest and the private rights of all, who sat in the
empyreum. But for this to become generally accepted doctrine, confirmed by events, we have to
await the arrival of Chief Justice John Marshall in 1801. We will deal with that shortly.
In the meantime, what of the real priesthood, the real religion of the people? We have said
nothing, so far, about the part played by the churches, or by Christianity, as such, in the
constitution-making. As we have seen, America had been founded primarily for religious
purposes, and the Great Awakening had been the original dynamic of the continental movement
for independence. The Americans were overwhelmingly church-going, much more so than the
English, whose rule they rejected. The Pilgrim Fathers had come to America precisely because
England had become immoral and irreligious. They had built the City on the Hill.' Again, their descendants had opted for independence and liberty because they felt their subjugation was itself immoral and irreligious and opposed to the Providential Plan. There is no question that the Declaration of Independence was, to those who signed it, a religious as well as a secular act, and that the Revolutionary War had the approbation of divine providence. They had won it with God's blessing and, afterwards, they drew up their framework of government with God's blessing, just as in the 17th century the colonists had drawn up their Compacts and Charters and Orders and Instruments, with God peering over their shoulders. How came it, then, that the Constitution of the United States, unlike these early documents in American history, lacks a religious framework, as well as a religious content? The only reference to religion in the document is in Article VI, Section 3, which bans anyreligious Test' as a `Qualification to any
Office,' and the only mention of God is in the date at the end-'In the Year of our Lord one
thousand seven hundred and eighty seven.' Even the wretched irreligious English had an