Copyright 2006 Gene Garman. No part of this essay may be reproduced in full or in part without express permission from the owner and publisher.
What I am going to talk about is some of the history and background of the religion commandments of the Constitution. It is the religion commandments of the Constitution for the United States of America which should be displayed on every court house wall and on every state house lawn, not the Jewish commandments of Moses or of any religion. It is the religion commandments of the Constitution which should be taught in every public school in America.
How many specific religion commandments are there in the Constitution? There are three! The Constitution's first religion commandment was drafted by the Founding Fathers in 1787. The second and third religion commandments were drafted by the First Congress in 1789. Understanding of the constitutional principle relating to religion and government in the United States of America did not change in the two years between 1787 and 1789. Clearly expressed by the Founding Fathers and the First Congress, as worded by the Constitutionšs three religion commandments, establishment of religion is not the business of government; that is, religion is not to be established by law or government. An original and fundamental constitutional value in the United States of America is: there shall be "no religious test" (Art. 6., Sec. 3.) and "no law respecting an establishment of religion" (First Amendment).
So, I am going to talk about the fundamental constitutional philosophy of the three religion commandments of the Constitution, the supreme law of the land, especially in terms of understanding the original intent and application of those commandments by the men who actually wrote the Constitution and its First Amendment. Words mean things. The Founding Fathers and the men of the First Congress understood the English language, wrote what they meant, and meant what they wrote. Fundamental judicial philosophy, therefore, is, for judges and justices, as they are sworn to do, to uphold strict constructionist wording of the commandments of the Constitution, as written, not as unconstitutionally changed, revised, or interpreted by later courts. The wording and intent of the Constitution is to be changed only through amendment by the people of the United States.
What I hope each of you will do is, patiently, listen rather well because some of the things I am going to say, some of you, possibly, have never heard. Furthermore, by the time I have completed my commentary, I hope every one of you will have heard a rather thorough presentation concerning the constitutional principle of separation between religion and government in the United States of America. I want you to look at and listen to the documents and to understand what the Founding Fathers and members of the First Congress meant when they wrote the 1787 Constitution and the 1789 First Amendment.
I assume all of you know that the first issue raised in the Bill of Rights to the United States Constitution is religion, that religion was a fundamental element of the American revolution, that our colonist ancestors were concerned not only about political tyranny (taxation without representation), but that they were also concerned about religion tyranny, for example, the payment of taxes for support of religion.
However, do you know, do you understand, in the First Amendment there are two commandments relating to religion, not just one, but, two. We often talk about the First Amendment. We say it guarantees freedom of religion in America, but that is not all it guarantees in respect to religion. Freedom of religion is the essence of the second commandment. The first commandment, first stipulation, first clause in the First Amendment deals with freedom from religion.
In other words, in the United States of America, you have the right to the free exercise of your religion, or the right to freedom of no religion, as long as that right, that freedom, or that exercise does not interfere with or infringe upon the right of others to be free--from--your--religion, to be free from everyone elsešs religion, to be free from religion, period. In America, what I am saying is this, in America neither religion nor the support thereof is to be established by law or imposed by government upon anyone. That constitutional proposition is a significant part of about what America is.
As you should easily understand, use of law and government to force support of religion is not going to produce good religion. Benjamin Franklin once observed, "when a religion is good, I conceive it will support itself, but if it does not support itself, and its god does not take care to support it, so that its professors are obliged to call for help of the civil power,'tis a sign, I apprehend, of its being a bad one."
Perhaps some of you wonder whether or not the colonists were really concerned about freedom from religion in America. Well, if you do not believe that at least some of them were concerned about freedom from religion, you just go back and ask some of those Baptists, Quakers, Roman Catholics who were jailed, branded, and banned on penalty of death from that good "Christian" colony called Massachusetts, because they had differing religion views.
If you do not believe that at least some American colonists were concerned about freedom from religion, go back and ask Obadiah Holmes, a Baptist. Ask Mr. Holmes while he is taking thirty public lashes, after being arrested, for worshipping in a private home rather than in a meeting place of the legally established church. Ask Roger Williams as he trudges through winter snow to take up habitation with Indians in Rhode Island. Ask Henry Dunster, first President of Harvard College, ask him while he is being ousted from his post because of a sermon he preached and a position he took, in which he said, "there is no scriptural basis for infant baptism." That's pretty serious crime, isn't it? Ask those neighbors of James Madison who were jailed in Orange County, Virginia, for preaching "dissenting doctrine," like the Baptist, Elijah Craig, who continued to preach, even from his jail cell.
Nevertheless, the fact that there were religion dissenters in the colonies is evidence some of them did have some freedom to exercise their religion, if they dared. But, a freedom which many of them did not have was freedom from the religion of others which was established by law and imposed by government upon everyone. Some of our colonist ancestors saw what was going on in America, and they determined something ought to be done about it.
Moreover, many of the men who founded this government of ours a couple hundred years ago had read history. Through the eyes of history they had seen many things. Through the eyes of history they had witnessed the casting of Christians to the lions in the Roman Coliseum, the slaughter of Muslims by the Christian crusaders in the "Holy Land," the persecution of Jews in many lands. Through the eyes of history they had seen the Spanish Inquisition of Protestants, the murder of Protestant Huguenots in France, the Thirty Years War between Protestants and Catholics in Germany. Through the eyes of history they had seen Galileo condemned as a heretic by the Inquisition. Why? In proving the Copernican theory, Galileo said the planets, including Earth, revolved around the Sun and earth itself spun like a top on an axis.
Through the eyes of history they had seen men burned at the stake, like Michael Servetus, no thanks to that good Protestant John Calvin. Why? Because Servetus was a unitarian, not a trinitarian. They had seen the execution of John Hus, who believed the legally established church corrupt, and said so. That was his real mistake, just saying so. John Hus was burned at the stake. Through the eyes of history they had seen William Tindale tied to a stake, strangled by a hangman, burned, in front of a church in the town of Vilvoorde, near Brussels, Belgium. Why? Well, Tindale believed the Bible ought to be translated, translated into the English language so that English speaking and English reading people could read it for themselves and make up their own minds about what it had to say. That is why William Tindale was burned at the stake.
Too many of the pages of history are blackened with the ashes of religion dissenters. In my opinion, just as many atrocities have been committed, just as much ignorance has been perpetuated, in the name of religion, as in any other name. Many of the Founding Fathers knew these things. They determined that in America things should be different.
At the time of the founding of the thirteen colonies or constituting of the thirteen states, every nation in Western Europe, including the British Isles, every one of them, had numerous laws establishing various propositions relating to religion--oath taking, blasphemy, state religions. These were nations which did not understand or recognize the difference between religion, which is established by law and imposed by government, and religion, which is freely accepted, without law or government. There is a difference. In the colonies and in the states, something different, unique, actually took place in the history of the Western World. At the time of the signing of the Declaration of Independence, four of the colonies, at least four, did not have substantially significant legal and financial ties to religion.
January 1776. That first great apostle of the United States of America, Thomas Paine, distributed his pamphlet, "Common Sense," throughout the colonies. It was widely read. In it he called for "independence" and referred to the colonies as the "free and independent states of America." It has been said Paine's writings probably had as much to do with uniting the thinking of the colonies toward independence from the so-called "Mother Country" as any other single factor.
A short time after "Common Sense" Paine's friend, Thomas Jefferson, produced a draft of a "Declaration of Independence." It was adopted by the colonies. They each became sovereign, independent states. On July 4, 1776, in the constitutions or articles of government of the states of Delaware, New Jersey, Pennsylvania, and Rhode Island, four of them, there were no substantially significant legal and financial ties to religion. Yes, something different was taking place in America.
On the other hand, in 1776, some of the colonies, some of the states, not all of them, but some of them, did have substantially significant legal and financial ties to religion. In Virginia, for instance, was the Church of England in America, Anglican, Episcopal. But, on December 9, 1776, the legislature of the sovereign state of Virginia specifically suspended payment of taxes for support of the Anglican clergy. This was a major step toward disestablishment of the Anglicans in Virginia. The controversy which followed that decision was a discussion about the proper legal role or relationship between religion and government in Virginia.
In 1779, the debate was still going strong. On one side was James Henry who supported legislation to specifically establish the Christian religion as the state religion of Virginia. If you cannot establish one Christian sect, the Episcopalians, establish them all, why not? Operating in opposition to James Henry and his legislation to specifically establish the Christian religion as the state religion of Virginia was a bill drafted by Thomas Jefferson. Jefferson's bill was known as a "Bill for establishing religious freedom." This bill, Jefferson's bill, was a bill which would disestablish religion in Virginia, not just the Anglicans, but the Christians--not just Christianity, but religion. Nonetheless, in 1779 the legislators of Virginia were still so evenly divided that neither Henry's nor Jefferson's legislation prevailed. This situation continued until 1784.
In 1784 a new bill was introduced which finally broke the stalemate. This time it was a bill strongly supported by Patrick Henry. Patrick Henry supported legislation known as a "bill establishing a provision for teachers of the Christian religion." This bill, Henry's bill, was a tax bill, a bill which would provide tax money--coerced, forced tax money--for teachers of the Christian religion. This was a bill which levied taxes for support of Christian education in Virginia, and it allowed every taxpayer the right to designate to which church or religion society he wanted his share of the taxes to go. Patrick Henry's version of the so-called "voucher" plan--1784.
In that year, 1784, Jefferson was in France, as a minister from the states, to succeed the retiring Benjamin Franklin. The person, then, in Virginia, who took up the struggle, against Patrick Henry and his voucher plan, was James Madison. Madison got the politicians to postpone a decision until the next session. In the meantime, in the summer of 1785, Madison drafted and had distributed his famous "Memorial and Remonstrance," a memorial and remonstrance against religion assessments. A memorial is a statement. A remonstrance is a protest. An assessment is a tax. Madison's statement and protest was a protest against use of tax money for support of religion and of religions, plural, all of them. That is precisely the essence of Madison's "Memorial and Remonstrance" against religion taxes. Madison's protest was persuasive. When the Virginia legislators reconvened in October 1785, Patrick Henry's bill establishing a provision for teachers of the Christian religion, soon died in committee. A good place for a bill like that to die--in committee.
James Madison's memorial and remonstrance against religion taxes is one of the finest statements ever written on the subject of religion freedom. If you have not read it, you should. It ought to be priority reading for every American. Madison said of it, in Virginia, his remonstrance gained the approval "of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even ... a few of the sect formally established by law," the Episcopalians. Those are Madisonšs words.
In December 1785 the Virginia legislature resurrected Thomas Jefferson's "Bill for establishing religious freedom." It was adopted by the legislature and signed into law by the Governor of Virginia in January 1786. It became known as the Virginia Statute of Religious Liberty. In that bill, that law, Jefferson wrote: "To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves ... is sinful and tyrannical." To force a man to pay taxes for support of religion opinion which he does not believe is sin, tyranny. In 1786 that sentence was a part of the law in Virginia.
Therefore, do not be misled. Do not be misled by those people in our society who would try to tell you otherwise. Unfortunately, there are some people in America who would mislead you in regard to our nationšs history and heritage. But, the fact is, Virginia, in 1786, for all practical purposes, disestablished religion. When the First Amendment became a part of the supreme law of the land, on December 15, 1791, no more than four states, no more than four out of the fourteen which existed at that time, no more than four of them, had substantially significant legal and financial ties to religion: Vermont, New Hampshire, Connecticut, and Massachusetts. All four of those states substantially disestablished religion within their borders within a generation of the adoption of the First Amendment, the last to do so was Massachusetts in 1833.
When the First Amendment was drafted and adopted, it applied only to the national Congress: "Congress shall make no law ...." It did not apply to the states. However, a point which I wish to make most emphatically, most emphatically: the same ideals and principles which prevailed in the drafting and adopting of the religion commandments of the Constitution, as they applied to the national Congress, those same ideals and principles also prevailed in every one of the states, and every one of them, on their own, of their own free will, disestablished religion. And, remember, they were Christian establishments.
Yes, there was a time in the history of our country, when some of the colonies, some of the states, not all of them, but some of them, did have substantially significant legal and financial ties to religion; but, in time, every one of those relationships was either specifically eliminated or simply ignored. And, remember, they were Christian relationships.
I began this lecture by pointing out there are three religion commandments in the Constitution. James Madison personally helped write all three of them. As a Founding Father, Madison was one of the fifty-five men who debated and decided upon the wording of the "no religious test" commandment, in Art. 6., Section 3., of the Constitution. As a member of the First Congress, Madison was a co-chair of the six member joint Senate-House conference committee which drafted the final version of the wording of the First Amendmentšs religion commandments. If there is an authority as to the meaning of the religion commandments of the Constitution, it is James Madison. He personally helped write all three of them. James Madison possibly left more commentary relating specifically to the meaning of the religion commandments of the Constitution than all of the other Founding Fathers and members of the First Congress combined.
In 1785, just two years before the Constitution was drafted and four years before the First Amendment was drafted, James Madison, in his "Memorial and Remonstrance" listed fifteen reasons for his protest against use of tax money for support of religion. Twice, in reasons four and fifteen, Madison specifically used the terms, "free exercise of religion." Further, in reason seven, Madison specifically objected to the "legal establishment of Christianity," and in reason eight Madison specifically objected to the legal establishment of "religion." In 1785 James Madison wrote the exact same words which he wrote four years later into the 1789 final draft of the First Amendmentšs religion commandments.
Who was it then that, in September, 1789, stood before the United States House of Representatives and reported that a wording of the First Amendment had just been accepted by a joint six-member Senate-House conference committee, after lengthy debate, and was being recommended to the Congress for adoption? It was James Madison, "Father of the Constitution" and co-chair of that 1789 congressional conference committee. James Madison, an original and primary drafter of the three religion commandments in the Constitution, three clauses, stipulations, commandments relating to religion--freedom of and freedom from.
In the words of the First Amendment: Congress shall make no law even "respecting an establishment of religion," Congress shall not entirely prohibit, which is what "prohibiting" means--totally, the "free exercise" of religion, and Congress shall not abridge (which means reduce) speech, press, peaceable assembly, and petition. It is unreasonable to assert the members of the First Congress did not understand "establishment of religion" by law or the difference in meaning between "prohibiting" and "abridging" as used in the First Amendment. Pulitzer prize winning constitutional historian Leonard W. Levy writes in the preface of his 1994 book, The Establishment Clause: "Congress can pass laws regulating and even abridging the free exercise of religion without prohibiting it altogether. The difference ... is the difference between diminishing and abolishing" (p. xxii).
Four of the six persons on the 1789 joint Senate-House conference committee, which created the final draft of the First Amendment, were also Founding Fathers, that is, they participated in the Constitutional Convention of 1787 and in the First Congress. In other words, James Madison, Roger Sherman, William Paterson, and Oliver Ellsworth personally helped write all three of the Constitution's religion commandments, that is, the Constitution's "no religion test" commandment and, two years later, the First Amendment's commandments relating to no law "respecting" an establishment of religion and no law "prohibiting" the free exercise of religion. The other two members were John Vining, a lawyer and Charles Carroll of Carrollton, who, along with Sherman, had signed the Declaration of Independence. Madison went on to become President. Paterson and Ellsworth went on to become Justices of the Supreme Court of the United States. There is no historical evidence which suggests a conflict in understanding as to the meaning of the words of the Constitution's three religion commandments or that any of those six distinguished Americans, misunderstood or at any time changed their understanding of the words which established the constitutional principle of separation between religion and government. After much discussion in the First Congress, the entire purpose of the joint Senate-House conference committee was about drafting the First Amendment in terms of specific words and specific understanding.
The meaning of the Constitution's three religion commandments is that "establishment of religion" is not the business of Congress or the national government. Neither the initial Constitution nor the First Amendment gave Congress power in respect to "establishment of religion." Not one state would have ratified either the Constitution or the First Amendment if power, in respect to "establishment of religion" by law or government, had been given to Congress. As Professor Levy asserts, amazing stupidity and black magic is "an appropriate response" (p. 140) to those who would change the First Amendment into a source of congressional power in terms of "establishment of religion." The purpose of the First Amendment was to limit congressional power.
The joint congressional committee which drafted the Establishment Clause approved the Free Exercise Clause at the same time. The two commandments are in the same sentence and are not in conflict. The Free Exercise word "thereof" gets its entire meaning from the Establishment Clause and is in complete harmony with the wording of the Establishment Clause: "thereof" means "religion." On September 15, 1821, James Madison wrote, "the legitimate meaning of the Instrument [Constitution] must be derived from the text itself ... ; or ... in the sense attached to it by the people in their respective State Conventions." On August 28, 1830, Madison wrote, "In order to understand the true character of the Constitution ... It must more than any other, be its own interpreter according to its text and the facts of the case." It is a fact, not an interpretation, that the First Amendment, in terms of "establishment," "prohibiting," or "abridging," limited the power of the national Congress.
To argue that the free exercise commandment should be understood as empowering Congress with authority to establish religion in respect to its exercise or accommodation creates the contradictory conclusion that the First Amendment gave power to Congress in respect to the subject of establishing religion and its exercise. Levy says, "it is not only an impossible conclusion; it is ridiculous" (p. 141). It is a fact, not an interpretation, that no state would have agreed to such a conclusion and neither should the Supreme Court of the United States.
Furthermore, the Free Exercise Clause is not a license for anarchy. Not one word of the national Constitution or of any state constitution authorizes anarchy. The Free Exercise Clause commands that "Congress shall make no law ... prohibiting the free exercise" of "religion." The First Amendment word "prohibiting," is different in meaning from the word "abridging." According to The Oxford English Dictionary, "prohibiting" is a verbal substantive related to the word "prohibition," which means entirely forbidding "an action or thing by or as by a command or statute." In other words, the free exercise of religion cannot be entirely or totally prohibited.
In America, religion actions are no more constitutionally accommodated than non religion actions. Actions relating to the exercise of religion are subject to the same laws of the land which apply to all actions, regardless of religion. Not one word of the Constitution authorizes religion or religion actions as being above or an exception to the laws of the land. It is opinion only which is above the law.
The First Amendment word "abridging," which means shortening or reducing, applies specifically and broadly to speech, press, peaceable assembly, and petition, not to the exercise of religion. It is speech, press, peaceable assembly, and petition which shall not be abridged or reduced through laws passed by Congress. A grammatically and historically harmonious understanding of the First Amendment in respect to religion action is not discrimination; it is simple common sense, as constitutionally expressed in a nation guided by the rule of law and its equal application to all citizens, in spite of religion beliefs. It is unreasonable to suggest the six men who, with solemn deliberation, chose the specific words of the First Amendment, as finally approved by Congress, after numerous rejections, did not understand the meaning of the words used in the First Amendment.
The First Amendment, when adopted, curtailed the power of Congress, not the states. Now, because of the Fourteenth Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Now, the First Amendment applies equally to both Congress and the states.
Constitutionally, America is a nation wherein citizens of all religions and of none are welcome to participate fully in all of America's social and political functions. In his "Memorial and Remonstrance," Madison wrote, "the religion then of every man must be left to the conviction and conscience of every man."
Just what did a proposition like that mean to the citizens of Virginia when they read Madisonšs remonstrance? Perhaps Jefferson explains his understanding of such a proposition this way: In his autobiography, the autobiography of Thomas Jefferson, Jefferson refers to the time when the Virginia legislators were debating his "Bill for establishing religious freedom." He says one of the legislators wanted to amend one of the sentences in that bill. This is the sentence which Jefferson wrote: he said, coercion is "a departure from the plan of the holy author of our religion." Coercion, force, is a departure from the plan of the holy author of our religion.
Let me see if I can give you a brief word picture as to possibly the kind of idea which Jefferson had in mind when he wrote that sentence. Perhaps some of you have been to a Christian meeting where you have heard a minister or someone else refer you to that scripture, Revelation 3:20, which says, in the King James translation, "behold I stand at the door and knock." Or, possibly you have had someone refer you to that "picture" or painting which portrays "Jesus" standing before a door. It is that picture of a door which has no handle on the outside. The person says, the meaning is this, the handle is on the inside. If you want Jesus to come in, you must open the door. He will not force his way. Coercion is a departure from the plan of the holy author of our religion.
However, before you jump to an erroneous conclusion as to what Jefferson really had in mind when he wrote that sentence, let me tell you what the amendment was which the legislator wanted to make to the sentence. He wanted to add two words, the words "Jesus Christ," so that the sentence would read, coercion is a departure from the plan of "Jesus Christ," the holy author of our religion. That proposed "Jesus Christ" amendment, Jefferson says, was rejected. It was rejected by a great majority of the Virginia legislators, which proves, says Jefferson, that they, the Virginia legislators, intended to include within the protection of the religion freedom law in Virginia, "the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." Those are Jefferson's words.
It took some of the legislators, some of the states, longer than others to understand that idea of religion freedom. After all, it was an idea relatively new to the world. But, historians have often referred to America as "the new world." Nevertheless, in time, the idea of religion freedom applying to everyone, to every citizen, prevailed, and when the history of our country is put into that proper perspective, it is definitely proper to say, the government of the United States of America is not founded on the Christian religion. Rather, the proposition concerning religion upon which this country is founded is freedom of and freedom from --freedom from religion established by law or imposed by government.
Allow me to provide some specific examples:
In 1787 the Founding Fathers met in Philadelphia for the purpose of drafting a Constitution for the people of the United States of America. In that Constitution there is only one specific use of the word "religion." Article 6., Section 3., of the Constitution for the United States of America commands, "no religious test shall ever be required as a qualification to any office or public trust under the United States." That is the commandment, the principle, which the Founding Fathers deliberately wrote into the basic fundamental law of the United States of America and is the principle, the commandment, which the American people specifically approved in 1788. In other words, under the United States, every citizen has a right to hold public office, regardless of religion affiliation or persuasion. It does not make any difference if you are a Buddhist, a Muslim, a Christian, a Jew, a Hindu, a Wiccan, or an atheist. Under the United States there is to be no religion test. How much more clearly could the persons who worded the Constitution have stated the principle, the constitutional principle, of separation between religion and government?
Yet, not even that strong constitutional statement was enough to satisfy everyone. Therefore, the persons who were promoting adoption of the Constitution had to promise that a further guarantee relating to separation between religion and government would be added to the Constitution as a part of a bill of rights.
On December 15, 1791, ten amendments were added to the Constitution. The first statement in the First Amendment, as approved by the people of the United States, deals with religion and says, "Congress shall make no law respecting an establishment of", of what? Of "religion." Notice that the wording does not say of "a" religion, of "a national" religion, of "a church," of "a state church." It says of "religion," and that is exactly what the drafters of the First Amendment intended for it to say, "of religion."
By the way, the "United States" named in the first sentence of the Constitution is the same "United States" as named in Article VI, Section (3), of the Constitution. The Constitution specifically binds all judges, legislators, and executive officers, both of the United States and of the several states--which obviously includes "any office or public trust under the United States"--to support the Constitution as the supreme law of the land. From the beginning, the Founding Fathers got it right: under the United States there is to be no religion test for public office.
Article VI, Section (2), of the Constitution says: "This Constitution and the laws of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding" [the word "notwithstanding" means in spite of any laws of any State to the contrary].
Article VI, Section (3), of the Constitution says: "The ... members of the several State legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States."
Of course, in 1787 and 1789, there were dissenters in respect to the constitutional principle of separation between religion and government, but allow me state even more clearly the traditional American position of the forefathers who prevailed. In 1797 the United States of America signed a treaty with the country of Tripoli. This treaty with Tripoli was read and ratified by members of the United States Senate. It was written and read by members of the United States Senate in the English language. This treaty with Tripoli was read in the English language and signed by President John Adams. The only treaty with Tripoli which President John Adams and the members of the United States Senate read was the Treaty with Tripoli in the English language. Neither the President nor any member of the United States Senate read Arabic.
Article 11 of the 1797 Treaty with Tripoli--a part of the supreme law of the land--says, in plain English: "The government of the United States of America is not in any sense founded on the Christian religion." How much more clearly could President John Adams and the members of the United States Senate, in 1797 (just ten years after creation of the Constitution), have stated the American constitutional principle of separation between religion and government? The prevailing understanding of separation, as established by the three religion commandments of the Constitution, did not change in the ten years between 1787 and 1797.
January 1, 1802. President Thomas Jefferson wrote his famous letter to the Danbury Baptist Association of Connecticut. In 1802, Connecticut still had laws requiring taxes for support of religion. The Baptists of Connecticut objected. They wrote to President Jefferson because they knew he sympathized with their situation. Jefferson and Madison had fought the same religion tax battle, in Virginia, twenty years earlier. In 1779 Jefferson wrote his bill for establishing religion freedom, which objected to taxation for support of religion, and in 1785 Madison was responsible for getting Jeffersonšs bill adopted by the Virginia legislature.
In President Jeffersonšs letter of reply to the Baptists of Connecticut, he referred to the religion commandments of the First Amendment. This is what he said: "Believing with you [you Baptists] that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, 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."
In 1802, President Thomas Jefferson, who was Secretary of State when the First Amendment was ratified, clearly said the purpose of the religion commandments of the Constitution was to build a wall of separation between church and state. However, the words "church and state" are not in the Constitution and Jefferson was not a Founding Father. He was in France in 1787 and did not participate in the Convention which drafted the the words of the Constitution. The words Founding Father, with capital Fs (see Webster's Dictionary), refer to the fifty-five men who participated in the 1787 Constitutional Convention.
A few years later (about 1817), in an undated essay titled "Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments," James Madison, "Father of the Constitution," accurately termed the meaning of the religion commandments of the Constitution when he wrote: "Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies may be illustrated by precedents already furnished in their short history." James Madison, a co-chair of the committee in the First Congress which drafted the final version of the First Amendment, said the purpose of the religion commandments of the Constitution was to strongly guard "separation between Religion and Government." It is "religion" which shall not be established by law or Congress, not just a church.
In referring to the meaning, the intent, the essence, the significance, the purpose, the understanding of the religion commandments of the Constitution, both Jefferson and Madison used the word "separation." Jefferson said "separation between church and state." Madison said "separation between religion and government." Both refer to the same thing, the same idea, the same principle, the principle of voluntarism in matters of religion. This principle, voluntarism in matters of religion, in effect and in essence, is expressed and embodied in the religion commandments of the Constitution and is the principle which establishes the basis and foundation of Americašs constitutional tradition of separation between Religion and Government.
In the United States of America, religion is not to be established by law or imposed by government; rather, religion is to be freely and voluntarily exercised. By the way, in terms of understanding the meaning of the religion commandments of the Constitution, there are no two more distinguished or authoritative historians than James Madison and Thomas Jefferson.
Frenchman Alexis de Tocqueville visited the United States in the early 1830s. In the book Democracy in America he wrote: "On my arrival in the United States the religious aspect of the country was the first thing that struck my attention .... I questioned the members of all the different sects; I sought especially the society of the clergy .... As a member of the Roman Catholic Church, I was more particularly brought into contact with several of its priests .... I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point."
In summary, two brief quotations from precedent setting decisions of the Supreme Court of the United States: In two United States Supreme Court cases, Everson in 1947 and McCollum in 1948, is the following assertion: "We have staked the very existence of our country on the complete faith that separation between the state and religion is best for the state and best for religion." From the United States Supreme Court case Abington, in 1963: "What may not be done directly may not be done indirectly lest the Establishment Clause become a mockery" (374 U.S. 203 at 230).
In 1964, Richard Cardinal Cushing, of Boston said: "I donšt know of anywhere in the history of Christianity where the Catholic Church, the Protestant Church, or any other church has made greater progress than in the United States of America, and, in my opinion, the chief reason is, there is no union of church and state."
Unfortunately, recent constitutional revisionist and precedent rejecting supreme court justices have boldly mocked both the history and the judicial precedents I just cited. Some of them would have difficulty recognizing or admitting a violation of the Establishment Clause, even if James Madison were to rise from his grave to repeat the three religion commandments he helped write. Plainly, the effort to debunk strict constructionist understanding of the religion commandments has been obvious. Beginning with the constitutional confusion led by Chief Justice Warren Burger in the 1971 Lemon v. Kurtzman and the 1982 Marsh v. Chambers rulings, plus the outright distortion of history created by revisionist Justice William H. Rehnquist, joined by Justices Burger and White in their 1985 Wallace v. Jaffree dissents, they all ignored the First Amendment's words and James Madison's "Detached Memoranda," as they transmogrified the word "religion," in the First Amendment's no Establishment Clause, into "a national religion" or "a national church." Neither the word "church" nor the word "national" is in the First Amendment.
It is a distortion of the constitutional principle of separation to use the wording "church and state," as if those words are in the Constitution. Further, the conversion of the Free Exercise Clause adverb "thereof" into meaning "a national church" or "a national religion" is outright dishonest and demonstrates a lack of elementary understanding of English grammar: Congress shall make no law ... prohibiting the free exercise of a national religion? Nonsense! It is "religion" that shall not be established by law or Congress, and it is the free exercise of "religion" that shall not be prohibited (which means totally).
It is way past time for Justices of the Supreme Court of the United States to acknowledge the difference in meaning between "prohibiting" and "abridging." A glaring recent example of grammar and history challenged justices of the Supreme Court is the February 2006 decision Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal.
Rather than uphold the First Amendmentšs Establishment Clause, as the supreme law of the land, revisionist Justices on the Supreme Court of the United States, in February 2006, rejected strict constructionist understanding of the First Amendment's words and upheld an unconstitutional 1993 congressional law which established religion, the so-called Religious Freedom Restoration Act.
Just because Congress makes a law does not make that law constitutional. In 1993 Congress made a law respecting establishment of religion practices, even if those religion practices are in violation of the general laws of the land and in spite of the fact that the general laws of the land apply equally, without discrimination, to all citizens. The 2006 Supreme Court, led by Chief Justice John Roberts, said such illegal practices are okay, if they are a "sincere exercise of religion" or if such illegal practices are "substantially burdened" by laws of general applicability. The wording of the First Amendment makes no such exception or exemption.
Neither Congress nor the Court has authority to make law which rewrites and rapes the original words and intent of the religion commandments of the Constitution. It is not the business of government at any level to make any law respecting an establishment of religion. When the Supreme Court rejects a law which applies to every citizen, in spite of religion beliefs, and thereby establishes a law in respect to religion, it violates the Establishment Clause. The 2006 Gonzales decision should be reversed, just as was the 1940 Gobitis decision because the very purpose of the Constitution's religion commandments is to withdraw religion from political controversy, to place religion beyond the reach of majorities and officials, at both national and state levels, and to establish the legal principle that the legitimate powers of government reach actions, not opinions. In the 1878 Reynolds case the United States Supreme Court unanimously agreed that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties." The Free Exercise Clause does not say that religion actions are above the law.
Of course, nothing in congressional history has been more obviously and unquestionably unconstitutional than the act of Congress, in 1954, when Congress made Public Law 396 and established religion ("under God") in the pledge of allegiance. Just what part of the "Congress shall make no law respecting an establishment of religion" commandment do the members of Congress not understand?
Before I conclude, if you are interested in additional information, read President James Madison's two February 1811 veto messages overturning religion bills passed by Congress, read James Madison's (c.1817) "Detached Memoranda," google "Detached Memoranda" up on the internet, read the 1910 book Separation of Church and State in Virginia by H.J. Eckenrode, read the 1950 book Separation of Religion and Government by Frank Swancara, and read the very helpful 1994 book, The Establishment Clause, by Leonard W. Levy.
Finally, at this point in my lecture, I want to repeat some words which you may have read or heard before and may easily recognize, as follows:
"It is apparently necessary for me to state ... not what kind of church I believe in ... but what kind of America I believe in.
"I believe in an America where the separation of church and state is absolute ... where no church or church school is granted any public funds or political preference ....
"I believe in an America that is officially neither Catholic, Protestant nor Jewish ... and where religious liberty is so indivisible that an act against one church is treated as an act against all.
"For while this year it may be a Catholic against whom the finger of suspicion is pointed, in other years it has been, and may someday be again, a Jew--or a Quaker--or a Unitarian--or a Baptist. It was Virginia's harassment of Baptist preachers, for example, that helped lead to Jefferson's statute of religious freedom. Today I may be the victim--but tomorrow it may be you.
"Finally, I believe in an America where religious intolerance will someday end ... where Catholics, Protestants and Jews ... will ... promote instead the American ideal of brotherhood.
"That is the kind of America in which I believe. ...
"And in fact this is the kind of America for which our forefathers died ... when they fought for the Constitution, and the Bill of Rights, and the Virginia Statute of Religious Freedom, and when they fought at the ... Alamo. For side by side with Bowie and Crockett died McCafferty and Bailey and Carey--but no one knows whether they were Catholics or not. For there was no religious test at the Alamo." Senator John F. Kennedy, 1960, Houston, Texas.
Copyright 2006 Gene Garman