In the following paper on the First Amendment, I did my best not to rely on David Barton due to his questionable scholarship and checked any quotes I cite from him with other sources to ensure he didn't make them up. Furthermore, I would say about half or even a bit more of my sources are pretty strongly pro-separationist and thus, are not in agreement with my position. I did not just read people I agree with to write this little paper. I have a bunch more notes on things like the 14th Amendment and historical evidence, but I was exhausted after doing the reading for all of this and didn't get around to including all that stuff. I scratch the surface of the 14th Amendment here....I would have liked to trace the history of incorporation some more. I might write something up on that and post it here or on another thread sometime, but I don't have the energy to do that right now.
Now, to what I wrote which I believe needs to be shared:
While the current legal interpretation of the First Amendment is that it requires a “separation of church and state,” numerous historical and judicial precedents make it possible that this interpretation is much broader than the original intent of the amendment’s framers. After considering court opinions, history, and primary source documents, a good case can be built that “separation” was not in mind, and is not required even with the Fourteenth Amendment. If accurate, this has radical ramifications for the relationship between the earthly and heavenly kingdoms in American public policy, depending, of course, on whether the courts change their interpretation based on a revisiting of the evidence.
Before being able to begin examining the original intent of the First Amendment, it is important to establish different interpretation methods first. Without the foundation of an understanding of the major interpretive models, a person does not see the overall principles leading to a particular conclusion on the religion clauses. Such a foundation is invaluable in the analysis of a particular conclusion, as it not only provides insight into what that interpreter believes, but aids in helping one express disagreement or agreement with the proposition.
Judges typically adhere to one of two models in determining the meaning of Constitutional text: interpretivism and evolutionism. Interpretivism is also called strict constructionism. Interpretivism is the model in which judges limit themselves to enforcing Constitutional norms explicit or implicit in the actual text, while evolutionism permits changes in Constitutional thinking as society changes; the words themselves are not considered of paramount importance, but instead broad principles contained therein are emphasized. Evolutionists depart in varying degrees from the specific intent of the founders, while interpretivists insist on the “original intent” of the text itself.
Current U.S. Supreme Court Chief Justice, William Rehnquist, a staunch interpretivist, says evolutionist judges become: “[a] small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers considering what is best for the country” (qtd. in Davis 15). In this “roving commission,” Rehnquist sees a judiciary that considers itself worthy of determining what is “best,” not just what is Constitutional. Rehnquist believes that judges must not insert opinion into Constitutional interpretation, as that exudes an arrogant attitude that judges knows more than everyone else about what is best for the nation.
The founders’ writings lend support to Rehnquist’s view of the judiciary. Thomas Jefferson was an ardent believer in interpretivism, and he is famous for opposing Supreme Court Justice John Marshall’s Marbury v. Madison ruling that established the principle of judicial review in 1803. Even though he no doubt understood times change, Jefferson expresses a strict constructionist attitude in this June 12, 1823 letter to Supreme Court Justice William Johnson:
"On every question of interpretation, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed" (Barton 22).
Note that Jefferson wrote this letter in 1823, well after his presidency, yet still believed in strictly interpreting the Constitutional text. Also, James Madison says, “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation…And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers” (Barton 22). A belief in interpretivism expresses itself in the very thesis of this paper, in that no evaluation of the First Amendment’s justice is provided, but only an examination of precedent to determine what the intent of the First Amendment probably was when drafted.
An obvious requirement for determining original intent is a study of the original debates on the Bill of Rights. During the debates on the Constitution, religion was a subject that did not come up much, except when the framers discussed Article IV, clause 3, which prohibits religious tests for public office. Religious freedom came up so little that it seems perhaps the delegates to the Constitutional Convention saw the prohibition on religious tests as an adequate restriction on the federal government in regards to religion. At the very least, this belief in the adequacy of the Constitution is the attitude expressed by the Federalist Papers. Alexander Hamilton says, “For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed” (Federalist 84)? Edmund Randolph had this to say: “No part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion" (qtd. in Stokes & Pfeffer 151). This Federalist attitude was one that was pretty common. In fact, James Madison, father of the Bill of Rights, did not consider any amendments necessary, but proposed them to secure votes from anti-Federalists for the Constitution. Anti-Federalists were concerned about the rights of states under a Constitution; they feared their rights would be hurt by a strong national government. Therefore, the states ended up leading the charge for the Bill of Rights. Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia all submitted suggested amendments securing personal liberties and the only state that did not address religion was Massachusetts. In any event, eventually, James Madison proposed his Bill of Rights to pacify the Anti-Federalists (Davis 441).
The history of the First Amendment’s adoption provides important insight into its intent. James Madison introduced the First Amendment in the House of Representatives June 8, 1789, with the original text reading: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed” (Annals of Congress). By August 15, it read: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.” Importantly, in the debate that day, Roger Sherman is recorded in the Annals as thinking, since Congress had no power to establish religious establishments, an amendment to forbid it was unnecessary. Such was the belief of both Madison and Jefferson. In a significant announcement, Madison explained the intent of his amendment recorded in the Annals for August 15, as it is recorded that “He apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” Nothing in this explanation supports a contention that the federal government could not ever pass an act supporting religion in general, even perhaps generally the Christian religion. Madison (who in some cases seems to broadly interpret “establish”) very narrowly construes the meaning of establish in the amendment.
Of course, this amendment went through further changes. An example is the final draft of the House version in the Annals for August 20, 1789: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." A person attempted to alter the amendment in the Senate to stop any “state” from doing such, not just Congress. However, the motion failed. The final version in the Senate (from the Annals of Congress for September 9) read as follows: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” It should be noted that the Senate beat back attempts to alter the language to prohibit the establishment of a particular “denomination” (Annals, September 3). One major First Amendment authority believes that rejecting the wording of "denomination" shows that the narrow constructionist view of the establishment clause was rejected (Stokes & Pfeffer 98). However, in the very final Senate version quoted above, the legislators did narrowly construct the amendment. Congress is only forbidden from establishing articles of faith and manner of worship, not a broad restriction in any sense of the word. Furthermore, a consistent wording in changes to the First Amendment as offered initially is the banning of acts “establishing” a religion (an example is the House version), putting in doubt the statement of one author that any law even touching upon something of a religious nature is unconstitutional (Lowell 8).
Even if the First Amendment was intended to broadly restrict religious activity in the public sphere, the framers cared deeply about religion and did not regard it as a negative influence like some who argue for a strict separation do today. The framers included in the August 15 debate argued about whether the amendment would hurt religion or allow it to thrive, for the amendment's motivation was not to hinder religion. Such a presupposition is well summed up by Supreme Court Justice Wiley B. Rutledge much later in this statement from the landmark ruling Everson v. Board of Education (1947): “We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion” (Dreisbach 500). In other words, they must be separate to prosper. Well, it is doubtful in this writer’s view that the founders actually intended a complete separation, but the principle of both flourishing without major interference in their respective spheres is truthful to the intention of the framers. Along these lines, the attitude of First Amendment supporters at the time of adoption was that government had no moral right to interfere with religion. Curry explains by saying, “[People] saw government attempts to organize and regulate such support [financial support of churches] as an usurpation of power” (222). In this sense, the government takes power not granted it when going so far as to financially support an established church.
Now that history has been examined, what does the judiciary say? The early Supreme Court did not take many religion cases. But, despite the court not hearing many cases early on, the cases that were heard provide vital insight into the early judicial interpretation of the First Amendment. In one of the first major cases, Vidal v. Girard’s Executors, a man put in his will that a college should be formed, but that no church teachers would be allowed to teach about the faith. The court ruled that the will’s requirement was acceptable because it allowed layman to teach, just not church leaders. It also expressed support for teaching religion in schools, saying, “Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college” (Barton 58)? Later, the Court ruled that Mormons do not have a right to practice polygamy in its 1889 case Davis v. Beason. The Davis case deals really with the free exercise clause, not the establishment clause, but is important because the court used language referring to America as a “Christian” country and its primary justification for disallowing polygamy was due to morality (64). Surely such reasoning would be considered unconstitutional in itself by many of today’s strict separationists.
Legal wrangling occurred almost from the start over the limits imposed on states by the First Amendment. Barron v. Baltimore (1833) settled the question for a long time. The Supreme Court said the Bill of Rights was clearly not intended to be applied to the states and so the Court could not make them apply (200). In Permoli v. Municipality No. 1 of the City of New Orleans (1845), the Supreme Court reaffirmed the doctrine that the First Amendment did not restrict the actions of states. The court said the following in its ruling:
"There is no repugnancy to the constitution, because no provision thereof forbids the enactment of law or ordinance, under state authority, in reference to religion. The limitation of power in the first amendment of the Constitution is upon Congress, and not the states" (FindLaw).
The debate was revived with the passage of the Fourteenth Amendment that made blacks protected citizens, as some used it to try to claim states were bound to the First Amendment. This interpretation is incorrect. First though, some things should be pointed out that make such an interpretation possible. Senator Jacob Howard, who sponsored the amendment in the Senate, was one who hoped it would force the Bill of Rights to apply to the states (Swomley 21). John Howard, House sponsor, expressed a similar intent for the amendment, yet later stated that its substantive effect was to prohibit states from curtailing inherent rights of citizenship, which were not believed to include the first eight amendments to the Constitution (Reichley 117). This is more understandable when one knows about the Slaughterhouse cases, in which the Supreme Court said state citizenship is distinct from federal citizenship and states can restrict some rights; the demand of the Bill of Rights on federal citizenship can not be placed on the states. In summary of his supporter’s views in the House, Bingham denied that the Fourteenth Amendment would take away state’s rights, though he later said that an abuse of such rights could be found in applying the establishment clause. Thus, the record is rather muddled on what Howard and Bingham intended for the amendment, so some other areas need to be considered.
For one thing, no state debates on ratifying the Fourteenth Amendment expressed a concern over whether it would extend the Bill of Rights to the states; the debates only discussed making blacks citizens with equal rights (119). Moreover, in Congressional debate on the Blaine Amendment, which would have made the First Amendment apply to the states, Reichley claims no person suggested the Fourteenth Amendment already did the job (119-20). The Blaine Amendment was ultimately rejected despite the passage of the Fourteenth, significant due to the lack of statements in the debates claiming that the 14th Amendment already covered the ground the Blaine Amendment was framed around. According to David Barton, five similar amendments were rejected by the same Congress that approved the Fourteenth Amendment (201). The courts soon took up the effect of the anti-slavery amendment.
For a long time, courts did not see anything extraordinary about the anti-slavery amendment. A defense used to try to get polygamy allowed in Davis v. Beason was that the Fourteenth Amendment prohibited states from stopping the practice of religious activity, an argument the court ultimately rejected. The Slaughterhouse cases briefly mentioned earlier are very important also, for they echo this rejection. Indeed, as Marnell puts it, “There is no evidence…anyone in a responsible judicial position thought of the Fourteenth Amendment as a means of guaranteeing in the states the protection of the religious freedom clause of the Bill of Rights” (151). But, in the 20th century, the Supreme Court began to selectively incorporate the Bill of Rights into the Fourteenth amendment’s intent. In the 1947 Everson v. Board of Education case, the Court finally ruled the establishment clause was applied to the states through the Fourteenth Amendment, setting off the current course in First Amendment interpretation (Barton 198).
One final note: The failed Blaine Amendment discussed earlier interestingly really did not die, as many states have separation clauses in their constitutions that resemble the Blaine Amendment. In some cases, these amendments are stronger than the federal government in separating religion from government. So, in these states, even with a narrow meaning for the First Amendment, the state constitution may ultimately require strict separation. In the debate about the federal Constitution, the state ones can get lost in the shuffle. One must never forget that they matter just as much as the federal Constitution. The founders did not intend for us to exalt the national government to the detriment of the states.
In the end, while some argue that the First Amendment should be interpreted as broadly as possible, the weight of the evidence—both historical and judicial—leads to a different conclusion, a conclusion that maintains church and state are not enemies, but can work together as long as one religion is not legislatively given footing above others. If loyalty to the Constitution is to have any meaning, a serious reexamination of the amendment must be undertaken by legal minds.
Sources:
Annals of Congress. Library of Congress. 28 Feb. 2003. http://memory.loc.gov/ammem/amlaw/lwac.html
Barton, David. Original Intent: the Courts, the Constitution & Religion. Aledo: Wallbuilder Press, 1996.
Curry, Thomas. The First Freedoms. Oxford: Oxford University Press, 1986.
Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations. Buffalo: Prometheus Books, 1991.
Dreisbach, Daniel L. "Sowing Useful Truths and Principles: the Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation.’” Journal of Church and State. 39.3 (1997): 455-502.
FindLaw for Legal Professionals. FindLaw. 11 Apr. 2003. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=44&invol=589
Hamilton, Alexander, et al. The Federalist Papers. Ed. Clinton Rossiter. New York: New American Library, 1999. 481-482.
Lowell, C. Stanley. The Great Church-State Fraud. Washington: Robert B. Luce, 1973.
Marnell, William H. The First Amendment. Garden City: Doubleday, 1964.
Reichley, James A. Religion in American Public Life. Washington: Brookings Institution, 1985.
Stokes, Anson, and Leo Pfeffer. Church and State in the United States. New York: Harper and Row, 1950.
Swomley, John M. Religion, the State, and the Schools. New York: Pegasus, 1968.
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Some quotes relevant to the First Amendment:
"The Whole power over the subject of religion is left exclusively to the state governments." --Commentaries on the Constitution by early SCOTUS Chief Justice Joseph Story
"I am for freedom of religion, and against all maneuvers to bring about a legal ascendancy of one sect over another." --Thomas Jefferson to Elbridge Gerry, Jan. 26, 1799 (source: Library of Congress online)
"...No power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states or the people...Libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals." --- Thomas Jefferson Papers, Library of Congress. Kentucky Resolution (may have just been a draft, or left in the final version...can't remember)
"I consider the government of the United States as interdicted by the Constitution from intermeddling in religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government. It must rest with the States, as far as it can be in any human authority (Jefferson letter to Samuel Miller, Jan. 23, 1808)."
"[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, ever one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes." -- Thomas Jefferson to Benjamin Rush, Sept. 23, 1800
"Religion, morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged." ---Northwest Ordinance
I also read a quote where Madison says establishment only means a state church. Unfortunately, I took note of that when I read the book, but didn't take down the quote, just the page number. It was a library book, so I don't have it. Anyway, this is interesting because it goes against some of his other statements (he says chaplains are an establishment of religion in the Detached Memoranda), yet it jives more accurately with what he stated in the debates on the First Amendment, as recorded in the Annals of Congress.
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Some information on religious use of government buildings:
From: http://lcweb.loc.gov/exhibits/religion/rel06-2.html
If Moore is doing something that is unconstitutional, then the usage of govt. buildings for church is as well, yet they were used for church well after the First Amendment was passed. As far as I am aware, they were only used for Christian services, not Muslim, Jewish etc.
Jefferson at Church in the Capitol
"In his diary, Manasseh Cutler (1742-1823), a Federalist Congressman from Massachusetts and Congregational minister, notes that on Sunday, January 3, 1802, John Leland preached a sermon on the text "Behold a greater than Solomon is here. Jef[ferso]n was present." Thomas Jefferson attended this church service in Congress, just two days after issuing the Danbury Baptist letter. Leland, a celebrated Baptist minister, had moved from Orange County, Virginia, and was serving a congregation in Cheshire, Massachusetts, from which he had delivered to Jefferson a gift of a "mammoth cheese," weighing 1235 pounds." Journal entry, January 3, 1802
Jefferson and Family at Church
"In this letter Manasseh Cutler informs Joseph Torrey that Thomas Jefferson "and his family have constantly attended public worship in the Hall" of the House of Representatives. Manuscript letter"
Madison Seen at House Church Service
Abijah Bigelow, a Federalist congressman from Massachusetts, describes President James Madison at a church service in the House on December 27, 1812, as well as an incident that had occurred when Jefferson was in attendance some years earlier.
The Old House of Representatives
Church services were held in what is now called Statuary Hall from 1807 to 1857. The first services in the Capitol, held when the government moved to Washington in the fall of 1800, were conducted in the "hall" of the House in the north wing of the building. In 1801 the House moved to temporary quarters in the south wing, called the "Oven," which it vacated in 1804, returning to the north wing for three years. Services were conducted in the House until after the Civil War. The Speaker's podium was used as the preacher's pulpit.
Communion Service in the Treasury Building
Manasseh Cutler here describes a four-hour communion service in the Treasury Building, conducted by a Presbyterian minister, the Reverend James Laurie: "Attended worship at the Treasury. Mr. Laurie alone. Sacrament. Full assembly. Three tables; service very solemn; nearly four hours." Journal entry, December 23, 1804
The Old Supreme Court Chamber
Description of church services in the Supreme Court chamber by Manasseh Cutler (1804) and John Quincy Adams (1806) indicate that services were held in the Court soon after the government moved to Washington in 1800.
Description of church services in the capitol building:
