ESTABLISHMENT CLAUSE

by Gene Garman

Now it is my turn: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Numerous newspaper articles, magazine reports, and books, as well as a multitude of radio and TV shows, repeat the First Amendment's religion clauses and then distort what those clauses say with a repeated assertion that the Establishment Clause refers only to a national religion, a state church, or a single denomination. I am going to destroy that narrow definition.

I am hereby challenging (1) the underinformed newspersons and commentators who ignore Thomas Jefferson and James Madison as if those two did not know about what they were talking and (2) the undereducated history revisionists who reword the Establishment Clause to suit themselves and who trash the members of the First Congress who drafted and approved the religion clauses as if they were not capable of writing and saying what they meant.

In 1787 (two years before the First Amendment was drafted), the Founding Fathers perfectly expressed the principle of separation between religion and government in clearly stated terms: "No religious Test shall ever be required as a qualification to any Office or public Trust under the United States" (Constitution, Art. 6., Sec. 3.).

Under the United States every citizen has a right to hold public office regardless of religious affiliation or persuasion. It does not make any difference if that person is Buddhist, Jewish, Muslim, Hindu, Christian, or atheist; there will be "no religious Test." That is the exact wording as drafted by the Founders and approved by the states. How much more specifically could the Constitution have stated the position of the American people in regard to separation between religion and government?

Yet, in 1787, that strong constitutional statement was not enough to satisfy everyone. The persons who promoted adoption of the Constitution had to promise a further guarantee related to separation between religion and government would be added to the Constitution as a part of a Bill of Rights.

In 1789 a six member joint Senate-House conference committee was given responsibility for finalizing amendments. Congressman Madison was a cochairman of that committee. Madison, in September of 1789, reported to the House an agreement as to the wording of the religion clauses of the First Amendment. The wording was accepted by the Senate on September 25, 1789, and ratified by the states on December 15, 1791 (Bill of Rights Day).

As originally drafted, the First Amendment applied only to Congress. Congress was given no authority to establish religion of any kind. It was not an oversight by the Founding Fathers who wrote or by the Americans who approved the Constitution that the words "God," "Christianity," "christian principles," and "judeo-christian heritage" are not in the Constitution. In 1797 there was no misunderstanding when President John Adams signed a treaty --read and ratified by the U.S. Senate (in the English language)-- with Tripoli which in Article 11 declares: "The government of the United States of America is not in any sense founded on the Christian Religion" (Hunter Miller, ed., Treaties and other International Acts of the United States of America, 2:365).

On January 1, 1802, President Thomas Jefferson deliberately defined the religion clauses, in his letter to the Danbury Baptist Association, by asserting that "the legitimate powers of government reach actions only, & not opinions . . . thus building a wall of separation between Church & State" (Library of Congress, LC 20593-20594).

In 1811 President and Founder James Madison specifically applied the meaning of the Establishment Clause as he vetoed two bills passed by Congress. On February 21 Madison vetoed a bill that would have involved, in violation of the Establishment Clause, the government in matters related to an Episcopal church in Alexandria because "governments are limited by the essential distinction between civil and religious functions"; and, on February 28 Madison vetoed another bill which, in violation of the Establishment Clause, would have donated a parcel of land to a Baptist church in Mississippi Territory because the bill "comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies" (James D. Richardson, Compilation of the Messages and Papers of the Presidents, 1:489-490).

Nevertheless, the word "national" was specifically rejected by the 1789 conference committee and obviously does not appear in the Establishment Clause. Thus, in one sentence I will destroy the "national" religion distortion: common sense and proper English require the word "thereof" in the Free Exercise Clause refer to and mean the same thing as the Establishment Clause! "Congress shall make no law . . . prohibiting the free exercise" of a governmentally established national religion, a state church, or a single denomination? Give me a break. The word "religion" means religion--the broad definition--in both clauses.

In other words, how do I define what "religion" means in the Establishment Clause? Very simply, it means exactly whatever "thereof" means in the Free Exercise Clause and whatever "religious" means as used by the Founding Fathers in Article 6., Section 3., of the Constitution. The words of the Constitution are not in conflict.

To paraphrase unitarian John Adams in his rejection of trinitarianism: Howl, snarl, bite, you flaming liberal revisionists who change the words of the Constitution to fit your misguided agenda. You say I am in error, but I reply you are no conservative strict constructionist--and there you lose (restated from The Works of John Adams, 10:67, 1813).

Readers who wish to study the issue should read the classics in the field of religion and government: James Madison's 1785 "Memorial and Remonstrance," Thomas Jefferson's 1786 "Virginia Statute of Religious Liberty," H. J. Eckenrode's Separation of Church and State in Virginia (1910), Leo Pfeffer's Church, State, and Freedom (1967), and Leonard W. Levy's The Establishment Clause (1986).

Copyright 1996 Gene Garman

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