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Friday, May 11, 2012

1. The First Amendment


“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” 

It seems the common belief today is that the First Amendment requires the separation of church and state.  This is inaccurate.  As the United States was being formed, the people believed in God, and they believed people had the right to worship God however they saw fit.  They certainly did not want any entity, whether king or a national government, demanding they practice a particular religion.  By the time the Constitution was written, several Christian sects had already sprung up throughout the states.  That being the case, it would make sense that the people wanted assurance that the newly formed government could not enforce a national religion. Thus, what today is referred to as the Establishment Clause was introduced into the First Amendment.  “Congress shall make no law respecting an establishment of religion.”  Our government was set up so that only Congress could make laws.  And the wording of the Establishment Clause was meant to assure the people that Congress could not establish a national religion.  In other words, Congress cannot make a law requiring the people of the United States to participate in a particular religion.  Furthermore, the Exercise Clause which states “…or prohibiting the free exercise thereof” was meant to assure that Congress could not forbid United States citizens from practicing their religion.  Yet the Supreme Court has on numerous occasions declared certain religious practices as being unconstitutional.  On what grounds? The absurd idea of separation of church and state, which the Court believes is implied by the First Amendment.

Where did that idea come from?

When the Constitution was written, Thomas Jefferson was in France.  And when the Bill of Rights was introduced, he had not yet returned to the United States.  Later, in 1802, he wrote a letter to members of the Danbury Baptist Association in Connecticut as a response to a letter he had received from them.  In their letter, they had expressed concern that the wording in the First Amendment was not enough to keep Congress from making a law adverse to their religious doctrine.  Jefferson’s response was meant to assure the association that their fears were unfounded.  “Believing with you that religion is a matter which lies solely between man and his God…I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church and State.”  A copy of the letter can be found here.  Because of this letter, the Supreme Court has interpreted the First Amendment to mean that the State, whether that be a state or its government buildings or its court or its funded schools, cannot and should not allow any religious practices within its structure.  So according to the Supreme Court, even though Jefferson was not part of the Constitutional Convention and did not take part in the Bill of Rights, his letter defined the First Amendment.   Interestingly, Jefferson believed that the national government had no power to make laws regarding religion.  However, he did believe that the states had the authority to do so.  In a letter written by Jefferson to Rev. Samuel Miller, Jefferson stated, "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."

The First Amendment was included in the Bill of Rights only to prevent the government from forming a national religion. Go here to review the statements made during the Congressional debates.  Elbridge Gerry said the First Amendment would read better if it was stated as, “No religious doctrine shall be established by law.”  James Madison suggested the First Amendment should be worded to read, “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.”  Indeed, after the First Amendment was written, Madison interpreted it to mean that Congress could not establish a national religion.  George Mason also believed that no sect of Christianity should be established in preference (pg. 244) of any other.  Furthermore, while speaking at the ratifying convention in North Carolina, Samuel Johnston expressed his belief that the Constitution would not allow the establishment of any one religion, and that there was no reason to fear such an event.**  However,  Peter Sylvester was afraid the First Amendment could be used to do away with religion altogether.  Considering the many decisions by the Supreme Court, it seems Sylvester’s fears were not unmerited.

**Can be verified by accessing ELLIOT'S DEBATES from the Library of Congress, Volume 4, pg. 198, 199. (Link won't work by copying and pasting)

Next Friday: 2. Beginning of a Nation


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  2. 1. Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

  3. 2. While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The legislative history does not bear out your claim. The first Congress debated and rejected several provisions narrowly tailored as you note and ultimately chose the more broadly phrased prohibition now found in the Amendment. Madison doubted that an amendment on this subject was even necessary because he thought it beyond the power of the federal government to establish religion. As others felt the need for such an amendment, though, he was persuaded to draft and introduce such a provision (worded as you note) and then shepherd it through various iterations to adoption and ultimate ratification. Madison did not, as you state, interpret the First Amendment, after it was written, to mean that Congress could not establish a national religion. Indeed, just the opposite is true. He spoke the words you cite on August 15, 1789, with respect to an earlier proposal stating that "no religion shall be established by law, nor shall the equal rights of conscience be infringed." He proposed adding the term "national," thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings not only about the wording but also the scope of the proposal. Mr. Livermore suggested that it be altered to state "Congress shall make no laws touching religion, or infringing the rights of conscience." Madison withdrew his motion, and the House then considered and passed Livermore's motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment. While combining elements of both Livermore's proposal and the one figuring in the remarks of Madison that you would cast as the ultimate intent of the First Amendment, it reads closer to the former than the latter. There is a substantial and substantive difference between saying "no religion shall be established by law" and "Congress shall make no law respecting an establishment of religion."

    In any event, Madison stated his understanding of the Constitution and First Amendment, as ultimately adopted, in his Detached Memoranda, quoted above. Moreover, during his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes.

    In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

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  5. 1. I do not deny the separation of powers. The whole point of the set up of our government was to keep one entity from controlling the country as the king had tried to control it. Also, I would agree that the Founding Fathers intended to keep the federal government out of religion but only in regards to the government requiring the American people to practice any religion. They did not expect that people's religious rights would be denied by the federal government, which is what has happened on several occasions by the Surpreme Court. I believe matters of religion were intended to be left to the states. And in order to determine if something is lawful in that state, a person would have to turn to that state's constitution.

    Also, I would like to point out that you have just done exactly what David Barton accuses people of doing, which I find interesting. Barton, and others in support of the argument I am making, point out that critics often quote Jefferson, Madison, and Madison's DETACHED MEMORANDA as if they are the only source out there to determine the intent of our Founding Fathers. The problem with Madison is this: his ideas and opinions in his later life conflict with his views from earlier on. Why his position changed so drastically is unclear. Jefferson did not take part in the Constitutional Conventin or the debates/writing of the Bill of Rights. But I don't think it would be appropriate to discredit him; I think he still had some influence.

  6. 2. Yes, you are correct in stating that Madison did not see it necessary to include any statement regarding religion in the First Amendment. At that time, he believed the government had no authority over the religion. And a review of the debates regarding the Billl of Rights shows that the people involved did not come to the final wording of the First Amendment easily. That being said, it is also clear that the whole purpose of putting anything pertaining to religion was to assure "we the people" that the federal government could not demand people to partake in any one religion or deny the people from exercising their beliefs.

    The entire history has to be viewed as a whole. We cannot take the statements of one man and assume that his statements were in agreement with those of the other Founding Fathers.

    The argument I am making is this: the Supreme Court has used the "separation of church and state" to take away religious rights, and that is not at all what the Founding Fathers intended. I will reiterate that the intent was to protect the people's rights, not remove them.

  7. We can readily agree that there is no doubt the founders intended to prohibit the federal government from requiring people to practice any religion.

    Similarly, there is no doubt that, at the time of the founding, the Constitution left matters of religion to the states. (The 14th Amendment later changed that.)

    With respect to acting as exactly Barton accuses, I think you're trying to press my round comment into Barton's square peg. In any discussion of separation of church and state, it is hardly surprising to mention the two founders who often and clearly expressed strong views on such matters. Even in the limited scope of a blog comment, though, I hardly relied on Jefferson and Madison as if they are the only source to determine the intent of the founders. Rather, I first pointed to the text, structure, and context of the Constitution, then observed Jefferson's and Madison's statements, and additionally noted aspects of the legislative history of the First Amendment, the views of Mr. Livermore, and Madison's vetoes of two bills (which can hardly be passed off as somehow reflecting a change of opinion late in life).

    I'm not sure what you have in mind when you speak of religious rights being denied by the federal government. The primary purpose of the First Amendment religion clauses is to protect individuals' religious freedom. The free-exercise clause does this directly by constraining the government from prohibiting individuals from freely exercising their religions. The establishment clause does this indirectly by constraining government from promoting or otherwise taking steps to establish any religion, thus assuring that individuals are free to exercise their religions without fearing the government will favor the religions of others and thus disfavor theirs.

  8. I was not meaning to imply you were using Jefferson and Madison as your sole evidence. What I did mean was that I found it interesting you mentioned those two men when there are so many others that we can look to. Also, it wasn't Madison's vetoes that I was referring to when I mentioned his later views seem to conflict with his earlier views. It is his DETACHED MEMORANDA that I was referring to, and I can see I did not make that very clear.

    As for your last paragraph, what I mean regarding religious rights being denied will be addressed in a later post. Therefore, I will not go into detail now. And to be clear, I did not say the federal government has denied rights. Rather I referred to one branch of the federal government (the Surpreme Court). Additionally, I will later propose that the Surpreme Court has used the idea of separatin of church and state to deny religious rights.

    Thank you for your comments.

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