Essays In Addition to America's Real Religion
by Gene Garman
he principle of separation between church and state was a part of America’s history for over a century before the Constitution was written: When they have opened a gap in the. . .wall of separation between the Garden of the Church and the wildernes of the world, God hath ever made his Garden a Wildernesse (Roger Williams, 1644, Writings, 1:392).
The Founders could not have stated the principle of separation any more clearly than when they wrote: "No religious Test shall ever be required as a qualification to any Office or public Trust under the United States" (U.S. Constitution, 1787, Art. 6, Sec. 3).
President Washington explained the reason for only one reference to religion in the Constitution: I am persuaded, you will permit me to observe that the path of true piety is so plain as to require but little political direction. To this consideration we ought to ascribe the absence of any regulation, respecting religion, from the Magna-Charta [Constitution] of our country. (George Washington, 1789, Papers, Presidential Series, 4:274).
The First Amendment was added to further guarantee the principle of separation and many historical references define its meaning: "The general government is proscribed [prohibited] from the interfering, in any manner whatsoever, in matters respecting religion" (James Madison, 1790, Papers, 13:16).
"The government of the United States of America is not in any sense founded on the Christian Religion;" (U.S. Treaty with Tripoli, signed under John Adams, 1797, Hunter Miller, Treaties, 2:365).
"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" (Thomas Jefferson, 1802, Andrew A. Lipscomb, Writings, 16:281).
"Governments are limited by the essential distinction between civil and religious functions" (Madison, 1811, Gaillard Hunt, Writings, 8:132).
"The appropriation of funds of the United States for the use and support of religious societies, [is] contrary to the article of the Constitution which declares that 'Congress shall make no law respecting a religious establishment'" (Madison, 1811, Writings, 8:133).
"And may I not be allowed to read in the character of the American people, in their devotion to true liberty and to the Constitution which is its palladium [protection], a Government which watches over the equal interdict [prohibition] against encroachments and compacts between religion and the state" (Madison, 1816, Compilation of the Messages and Papers of the Presidents, 1: 579).
"The civil government functions with complete success by the total separation of the Church from the State" (Madison, 1819, Writings, 8:432).
"Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance" (Madison, 1822, Writings, 9:101).
"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" (Madison, undated, William and Mary Quarterly, 1946, 3:555).
"Religion enjoys in this country complete separation from the political concerns of the General Government" (Andrew Jackson, 1832, Correspondence 4:447).
"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" Alexis de Tocqueville, 1835, Democracy in America, 1:308).
"Perfect religious freedom [was] established in the United States, without any control exercised by the civil authority over spiritual concerns. In consequence of this, every denomination was ... without ... disadvantages arising from the connection of religion with secular policy" (Bird Wilson, 1839, Memior of the Life of the Right Reverend William White, p. 88).
"The divorce between Church and State ought to be absolute. It ought to be so absolute that no Church property anywhere, in any state, or in the nation, should be exempt from equal taxation; for if you exempt the property of any church organization, to that extent you impose a tax upon the whole community" (James A. Garfield, 1874, Congressional Record, 2: 5384).
"Leave the matter of religion to the family, the altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separate" (Ulysses S. Grant, 1875, Leo Pfeffer, Church, State, and Freedom, 1967, p. 337).
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 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. 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 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, Treaties, 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 that 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 religionthe broad definitionin both clauses.
Readers who wish to study the issue should read the classics in the field of religion and government: Leo Pfeffer's, Church, State, and Freedom (1967), and Leonard W. Levy's, The Establishment Clause (1986).
FREE EXERCISE OF RELIGION
The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." However, the free exercise of religion is absolute only in terms of belief. There is no total freedom in regard to action. While belief cannotbe established by law, actions can be limited by law. Government does have authority to uphold law and order, otherwise society has social anarchy.
On the other hand, government is limited in regard to making certain laws, otherwise society has total tyranny. One limitation placed on government prohibits laws for the mind. Thomas Jefferson said, "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man" (Writings, A. A. Lipscomb, ed., 10:175). James Madison said, "The Religion then of every man must be left to the conviction and conscience of every man" Papers,8:299).
On January 1, 1802, Jefferson wrote: "The legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law ... prohibiting the free exercise thereof [of religion],' thus building a wall of separation between Church & State. ... , convinced he [man] has no natural right in opposition to his social duties" (Library of Congress, LC 20593-20594; Writings, 16:281-282).
The wall of separation about which Jefferson wrote is built between government and belief. The free exercise of religion, in terms of belief, may not be prohibited, but, in terms of action, it may be limited. The Constitution is a social contract; and, man, says Jefferson, "has no natural right in opposition to his social duties."
In 1879 the U.S. Supreme Court quoted Jefferson and ruled polygamy unconstitutional regardless of religious belief. A unanimous Court said: "Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order" (Reynolds v. U.S., 98 U.S. at 164).
However, there are limitations placed upon government. Jefferson wrote: "I consider the government of the United States as interdicted [prohibited] by the Constitution from meddling with religious institutions, their doctrines, their discipline, or exercises" (Writings, 11:428). Jefferson made a distinction between routine church activities, or exercises, and actions in the name of religion which violate laws established by society.
In 1890 the Court again unanimously defined the "free exercise" of religion and said: "The First Amendment to the Constitution ... was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience ... It was never intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical [hostile] to the peace, good order and morals of society. ... However free the exercise of religion may be, it must be subordinate to the criminal laws of the country" (Davis v. Beason, 133 U.S. at 342).
The above two Court cases not only clearly define the limits of the "free exercise" of religion, but they also provide unquestioned examples of the fact that over 100 years ago the U.S. Supreme Court was using definitions of the religion clauses written nearly 200 years ago by Jefferson and Madison. These definitions were not invented 30, 40, or 50 years ago by the Court.
The free exercise clause does not mean that religion is above the lawit is not. The establishment clause prohibits required religion and prevents religious tyranny by the majority. The free exercise clause provides protection for law-abiding citizens and legal activities.
There is a reason why religion is not given total immunity from the laws of society. In his "Remonstrance" Madison wrote: "Experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy [effectiveness] of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence [laziness] in the clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution" ( Papers, 8:301).
Furthermore, in "Monopolies" Madison 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" (William and Mary Quarterly, 1946, 3:555).
Words mean things. The Constitution for the United States of America was not drafted overnight, and the religion clauses of the First Amendment are the result after numerous other proposed wordings were rejected. The words of the Constitution and of the religion clauses were debated and deliberately chosen. The Constitution, therefore, is not a blank piece of paper upon which we are to read whatever we choose.
Why then the controversy as to what the Constitution, as drafted in 1787 by the Founding Fathers, says about religion? Why the discussion as to the meaning of the religion clauses as approved by the First Congress in 1789 and the state legislatures in 1791? Understanding is as simple as reading the words. Yet, confusion obviously exists in comments from laymen to scholars, from clerics to justices, because of refusal to accept the words, as written, to say what they mean and mean what they say.
For example, what about religion and politics in the United States of America? It is written in the Constitution (Art. 6, Sec. 3) that "no religious test shall ever be required as a qualification to any office or public trust under the United States." I learned to read in a one room country school house in Kansas. I was taught that honest words mean what they say. Thus, "no" means no, "religious" relates to religion (not something else), "test" means test (like in a series of questions about religion), "required" means required, and "to any office or public trust under the United States" means just what the words say.
Further, the religion clauses of the First Amendment are understood just as simply: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." "No law" means no law, "respecting" means in respect to religion (not something else), "establishing" relates (in this sentence) to making authoritative by law, and "of religion" is a prepositional phrase explaining of what it is that is not to be established by law, that is, "religion."
It is apparent that in their final constitutional wording about religion neither the Founding Fathers nor the prevailing members of the First Congress used the word "church." Confusion reigns when "religion" is distorted to relate only to "church." If the writers of the clauses had meant "church," they would have so written. They wrote "religion" because religion is what they meant. It is not merely congressional establishment of a church which is by law forbidden; it is congressional establishment of "religion." It is not only a church test which is to be kept out of politics, it is a "religious test."
One more step; one more understanding. "Thereof" in the "free exercise" clauses gets its meaning from "religion" in the preceding "establishment" clause. What is it that Congress cannot prohibit? It is the "free" exercise of religion. In America, religion is to be freely exercised, not established or imposed by law or government. Words mean things. Honest words mean what they say. The exact wording of the religion clauses was carefully chosen. The wording means exactly what it says.
One more word: "prohibiting." A prohibition is complete; it means completely forbidden. Can Congress completely forbid the free exercise of religion? No! However, the word prohibiting does not carry the same meaning as the word abridging. The two words are different one ("abridging") relates to restrictions, and one ("prohibiting") does not. The relevant question regarding the choice of words is whether restrictions can be placed on the exercise of religion. The answer: yes! Otherwise, anarchy is allowed in the names of "religion" and "free exercise."
Nowhere in the writings of Thomas Jefferson and James Madison is there found one sentence which suggests that religious action is above the law. Nothing in their writings is more accepted than the principle of law as drafted in compact with the people. Never did either of them ever assert that unrestricted religion was to prevail or that everyone was free to do whatever they pleased in the name of "free exercise." It was the establishment of religion by law which both Jefferson and Madison fought to eliminate in Virginia and in America by forbidding such establishments through specifically drafted prohibitions in civil law. The law which rules America is civil law law created "by the people" at all levels of legitimate government.
In fact, the attorney Jefferson made it clear that "man ... has no natural right in opposition to his social duties." It is opinion which is totally free and unrestricted. It is actions which are subject to civil government: "the legitimate powers of government reach actions only, & not opinions." The letter in which Jefferson wrote those words was first read by the Attorney General of the United States, Levi Lincoln. Jefferson asked Lincoln to review the wording. In 1802 the President and the Attorney General of the United States understood that actions are subject to the laws of society.
In the Constitution it is written that Congress can make no law "prohibiting" the free exercise of religion. Not one of the Founding Fathers or members of the First Congress ever wrote that all actions in the name of "religion" are immune to the restrictions of civil society. It cannot be disputed that the Supreme Court of the United States has clearly ruled that actions in the name of religion are restricted by civil law. In Reynolds v. U.S., (98 U.S.145, 1879) and Davis v. Beason (133 U.S. 333, 1890) the Court repeated Jefferson's terminology about the legitimate powers of government reaching actions and ruled polygamy unconstitutional regardless of religious opinion by some Americans.
Unfortunately, in 1998 there are some Americans who do not understand the constitutional relationship between religion and government because they do not read and accept the Constitution as it is written. For example, RFRA: "Religious Freedom Restoration Act." Is religious freedom prohibited and in need of restoration? It is opinions which are above the law and totally free, not actions. Religious actions have always been subject to the law. Americans are free to believe whatever they choose in regard to religion, but actions in the name of religion are restricted and abridged by the laws of society. Have you noticed that "abridging" applies to the latter four freedoms of the First Amendment, but not to "free exercise"? Do you understand that the members of the First Congress who carefully worded the First Amendment could have easily used the word abridging in regard to "free exercise," if that is what they had also meant? In regard to religion, the First Amendment guarantees only that its "free" exercise cannot be prohibited; "abridging" is a different word, a different concept, and was not applied by the First Congress to the "free exercise" clause. The wording of the First Amendment does not say that "free exercise" shall not be abridged (restricted); it says "free exercise" shall not be prohibited (completely forbidden). That is a constitutional distinction. What is deliberately and plainly written cannot be ignored, lest the Free Exercise Clause become a license for anarchy. The religion clauses of the First Amendment were designed to provide harmony in a society composed of many different religious opinions; therefore, in America, opinions are free, but actions are limited by the laws of society.
James Madison discussed the question of religion's "legal rights" (even on "unessential points") in terms of "the necessity of preserving public order": "I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and Civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded ag[ain]st by an entire abstinance of the Gov[ernmen]t from interference in any way whatever, beyond the necessity [emphasis added] of preserving public order, & protecting each sect ag[ain]st trespasses on its legal rights by others" (Writings, 9:487). Anarchy has never been the rule of law in America. Actions in the name of religion are subject to the rule of law according to the Constitution. Action in the name of religion can be restricted by local, state, or federal legislation in conformity to the Constitution and because of the necessity of preserving public order.
Obviously, RFRA was in violation of the Constitution from its beginning. It was a "law" made by Congress "respecting an establishment of religion." RFRA was an attempt by Congress to establish "religion." The Supreme Court should have ruled RFRA unconstitutional with a unanimous one sentence opinion: "Congress shall make no law respecting an establishment of religion." The Court should do the same with the proposed Religious Liberty Protection Act (RLPA). As it is written, "no law" means no law.
THOMAS JEFFERSON AND THE DANBURY BAPTIST ASSOCIATION
The address of the Danbury Baptist Association in the State of Connecticut, assembled October 7th, 1801. (Typed from photocopies Library of Congress: LC, 20111 & 20593)
To Thomas Jefferson Esq., President of the United States of America.
Among the many millions in America and Europe who rejoice in your Election to office, we embrace the first opportunity which we have enjoyed in our collective capacity, since your Inauguration, to express our great satisfaction, in your appointment to the chief Magistracy in the United States. And though our mode of expression may be less courtly [stylish] and pompious [pompous] than what many others clothe their addresses with, we beg you, Sir, to believe that none are more sincere.
Our Sentiments are uniformly on the side of Religious Liberty That Religion is at all times and places a Matter between God and Individuals That no man ought to suffer in Name, person or effects on account of his religious Opinions That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour.
But Sir, our [Connecticut] constitution of government is not specific. Our antient [ancient] charter, together with the Laws made coincident therewith, were adopted as the Basis of our government At the time of our revolution, and such had been our laws and usages [practices], & such still are, that religion is considered as the first object of Legislation, & therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgments, are inconsistent with the rights of freemen.It is not to be wondered at therefore, if those, who seek after power & gain under the pretence of government & Religion should reproach their fellow men should reproach their chief Magistrate, as an enemy of religion Law, & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.
Sir, we are sensible that the president of the United States is not the national Legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial Effect already, like the radient beams of the Sun, will shine & forever prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth.
Sir, when we reflect on your past services and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America's God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have called you to sustain, and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people.
And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.
Signed in behalf of the Association,Neh'[emia]h Dodge The Committee Eph'[rai]m Robbins Stephen S. Nelson
TO THE ATTORNEY GENERAL [LEVI LINCOLN]
January 1, 1802
Averse to receive addresses, yet unable to prevent them, I have generally endeavored to turn them to some account, by making them the occasion, by way of answer, of sowing useful truths and principles among the people, which might germinate and become rooted among their political tenets. The Baptist address, now enclosed, admits of a condemnation of the alliance between Church and State, under the authority of the Constitution. It furnishes an occasion, too, which I have long wished to find, of saying why I do not proclaim fastings and thanksgivings, as my predecessors did. The address, to be sure does not point at this, and its introduction is awkward. But I foresee no opportunity of doing it more pertinently. I know it will give great offence to the New England clergy; but the advocate of religious freedom is to expect neither peace nor forgiveness from them. Will you be so good as to examine the answer, and suggest any alterations which might prevent an ill effect or promote a good one, among the people? You understand the temper of those in the North, and can weaken it, therefore, to their stomachs; it is at present seasoned to the Southern taste only. I would ask the favor of you to return it, with the address, in the course of the day or evening. Health and affection.
[The above is copied from The Writings of Thomas Jefferson, Library Edition, Andrew A. Lipscomb, Editor, 1904, 10:305. The "alliance between Church and State" of which Jefferson writes is the one which still existed in 1802 in Connecticut under its constitution (charter). In 1802 Baptists in Connecticut petitioned its legislature to repeal laws which compelled citizens to pay taxes for the support of religion. That "alliance" was eliminated by the Connecticut legislature in 1819. As Jefferson knew, tax support for Anglican clergy was eliminated in Virginia in 1776 and Virginia's "alliance between Church and State" was for all practical purposes destroyed in 1786 by the Virginia Statute for Religious Liberty. The only state which still had a significant "alliance" after 1819 was Massachusetts which disbanded its legal relationship in 1833, and the principle of voluntary financial support for religion and its institutions finally prevailed throughout the nation thanks, in no small way, to Jefferson's "bill for establishing religious freedom" which was introduced into the Virginia legislature in 1779. In his reply to the Baptists, President Jefferson deliberately defined the religion clauses, as they related to the national government, in terms of principle with which he totally approved, as "building a wall of separation between Church & State." Accommodationists, read it and weep including Justice Sandra Day O'Connor and those confused organizations which emphasize this comment from Jefferson and completely overlook his distinction (in the same sentence ) which clearly states that "the legitimate powers of government reach actions."]
To Messrs. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful & zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which delcared 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Th Jefferson Jan. 1, 1802
Thomas Jefferson's 1802 letter to the Baptists in historical context: "law religion" and "religious laws" in Connecticut, as described in 1791. The following is quoted from The Writings of John Leland, ed. L.F. Greene (New York: Arno Press and The New York Times, reprint edition, 1969).
Religion is a matter between God and individuals: the religious opinions of men not being the objects of civil government, or in any way under its control [p. 181].Government has no more to do with the religious opinions of men, than it has with the principles of mathematics. Let every man speak freely without fear, maintain the principles that he believes, worship according to his own faith, either one God, three Gods, no God, or twenty Gods; and let government protect him in so doing [p. 184].
Having made the foregoing remarks, I shall next make some observations on the religion of Connecticut....
At present, there are in the state about one hundred and sixty-eight Presbyterial, Congregational and Consociated preachers; thirty-five Baptist, twenty Episcopalians, ten separate Congregationals, and a few other denominations. The first are the standing order of Connecticut; to whom all others have to pay obeisance. Societies of the standing order are formed by law.... Their choice of ministers is by major vote; and what the society agree to give him annually, is levied upon all within the limits of the society-bounds; except they bring a certificate to the clerk of the society, that they attend worship elsewhere, and contribute to the satisfaction of the society where they attend. The money being levied on the people, is distrainable [enforceable] by law;....
It is not my intention to give a detail of all the tumults, oppression, fines and imprisonments, that have heretofore been occasioned by this law religion .... Let it suffice ... to say, that it is not possible,...to establish religion by human laws, without perverting the design of civil law and oppressing the people.
The certificate that a dissenter produces to the society clerk, must be signed by some officer of the dissenting church, and such church must be Christian; for heathens, deists, and Jews, are not indulged in the certificate law; all of them, as well as Turks, must therefore be taxed for the standing order, although they never go among them, or know where the meeting-house is.
This certificate law is founded on this principle, "that it is the duty of all persons to support the gospel and the worship of God." ...Is it the duty of a deist to support that which he believes to be a cheat and imposition? Is it the duty of a Jew to support the religion of Jesus Christ, when he really believes that he was an impostor? Must the Papists be forced to pay men for preaching down the supremacy of the pope, ...? Must a Turk maintain a religion, opposed to the Alkoran ...? I now call for an instance where Jesus Christ, the author of his religion, or the apostles, who were divinely inspired, ever gave orders to, or intimated, that the civil powers on earth, ought to force people to observe the rules and doctrine of the gospel.
Mahomet called in the use of the law and sword, to convert people to his religion; but Jesus did not does not.
...so there are many things that Jesus and the apostles taught, that men ought to obey, which yet the civil law has no concern in....
The charter of Charles II., is supposed to be the basis of government in Connecticut; and I request any gentleman to point out a single clause in that charter, which authorized the legislature to make any religious laws, establish any religion, or force people to build meeting-houses or pay preachers....
The certificate law supposes, first, that the legislature have power to establish a religion; this is false. Second, that they have authority to grant indulgence to non-conformists; this is also false, for a religious liberty is a right and not a favor. Third, that the legitimate power of government extends to force people to part with their money for religious purposes; this cannot be proved from the New Testament....
Although it is no abridgement of religious liberty for congregations to pay their preachers by legal force, in the manner prescribed above, yet it is anti Christian; such a church cannot be a church of Christ,...[pp.186-189].
In addition to the above, there is a quote from Elder Leland which provides understanding as to what Jefferson meant when he said that "man ... has no natural right in opposition to his social duties." On July 5, 1802, Leland used the same words in the following context:
Gentlemen, you have taken notice that some men are always contending for the energy of government, while others are pleading for the rights of the people. On this I shall remark, that man has no right which stands in opposition to his social duties; no right to exercise his liberty to destroy the right and property of his neighbor; no right that frees him from his proportionable part of the burdens of government, and the restraint of just laws [p. 266].
JAMES MADISON'S VETO MESSAGES
From President James Madison, Thursday, February 21, 1811:
To the House of Representatives of the United States:
Having examined and considered the bill entitled "An Act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," I now return the bill to the House of Representatives, in which it originated, with the following objections:
Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares that "Congress shall make no law respecting a religious establishment." The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. This particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration. Nor can it be considered that the articles thus established are to be taken as the descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics, as the regulations established are generally unessential and alterable according to the principles and canons by which churches of that denomination govern themselves, and as the injunctions and prohibitions contained in the regulations would be enforced by the penal consequences applicable to a violation of them according to the local law.
Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty. [Writings of James Madison, 8:132-133.]
In the House of Representatives, Thursday, February 21, 1811:
A Message was received from the President of the United States, by Mr. Edward Coles, his Secretary, who, by command of the President, returned to the House the bill passed by the two Houses entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," and presented to the President for his approbation and signature, on Thursday the fourteenth instant, to which bill the President having made objections,
The objections were read, and ordered to be entered at large on the Journal,
On Motion of Mr. Pitkin, the House proceeded to reconsider the bill.
Mr. Pitkin said, that this question was new to him. He had no idea that the Constitution precluded Congress from passing laws to incorporate religious societies for the purpose of enabling them to hold property, &c. He had always held the Constitution to intend to prevent the establishment of a National Church, such as the Church of Englanda refusal to subscribe to the tenets of which was to exclude a citizen from office, &c. Desiring time for reflection, he therefore wished the bill to lie on the table for further consideration.
Mr. Wheaton said he did not imagine that they were to assume the objections of the President to be valid, They had a duty to perform as well as the President. This was not a correct principle. In his view the objections made by the President to this bill were altogether futile. Mr. W. said he did not consider this bill any infringement of the Constitution. If it was, both branches of the Legislature, since the commencement of the Government, had been guilty of such infringement. It could not be said, indeed, that they had been guilty of doing much about religion; but they had at every session appointed Chaplains, to be of different denominations, to interchange weekly between the two Houses. Now, if a bill for regulating the funds of a religious society could be an infringement of the Constitution, the two Houses had so far infringed it by electing, paying or contracting with their Chaplains; for so far it established two different denominations of religion. Mr. W. deemed this question of very great consequence. Were the people of this District never to have any religion? Was it to be entirely excluded from these ten miles square? He should be afraid to come if that were to be the case.
Mr. Quincy quoted cases of laws which had passed the signature of the late President, which, in every material respect, appeared to him to contain the same provisions as this bill. [Annals, 22:982-984.]
In the House of Representatives, Saturday, February 23, 1811:
The House resumed the reconsideration of the bill passed by the two Houses, entitled "An act incorporating the Protestant Episcopal Church, in the town of Alexandria, in the District of Columbia," which was presented for approbation of Thursday, the 14th instant, and returned by the President on the 21st instant, with objections.
The said bill was read at the Clerk's table,
The President's objections were also again read; and, after debate, the question "That the House on reconsideration, do agree to pass the bill," was taken in the mode prescribed by the Constitution of the United States, and determined in the negativeyeas 29, nays 74,
And so the said bill was rejected, two thirds of the House not agreeing to pass the same. [Annals, 22:995-998.]
The override vote lost overwhelmingly as the 1811 House of Representatives upheld President Madison's veto. The above is quoted from the newspaper reporter's notes in the Annals of Congress.
From President James Madison, Thursday, February 28, 1811:
To the House of Representatives of the United States: Having examined and considered the bill entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory," I now return the same to the House of Representatives, in which it originated, with the following objection:Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment." [The Writings of James Madison, 8:133.]
In the House of Representatives, Saturday, March 2, 1811.
The House proceeded to reconsider the bill, entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory;" which was returned by the President of the United States, with objections.
The said bill was read the Clerk's table,
The President's objections were also again read: And after debate, the question, "That the House on reconsideration do agree to pass the bill," was taken in the mode prescribed by the Constitution of the United States, and determined in the negative yeas 33, nays 55,
And so the said bill was rejected; two-thirds of the House not agreeing to pass the same. [Annals, 22:1103-1105.]
The vote to override failed again as the House of Representatives upheld President Madison's veto. The above is quoted from the newspaper reporter's notes in the Annals of Congress.
In regard to the two bills which were passed by Congress, twenty years after adoption of the First Amendment's religion clauses, and which were vetoed by President James Madison ("Father of the Constitution"), the majority of the members of the 1811 Congress upon considering what the former member of the joint Senate-House conference committee which drafted the religion clauses had to say supported the position of James Madison. This lesson from history also documents the fact that the constitutional principle of separation between religion and government was not first debated or created in the 1947 Supreme Court case known as Everson v. Board of Education, as today's "cut and paste" history revisionists would have us believe; furthermore, a bill is not constitutional simply because Congress passes itif that were the case, we would not need the Constitution (or the Establishment Clause which prohibits Congress from establishing religion by law and protects the minority from tyranny by the majority).
The mentality of most religious fundamentalists is obviously the same regardless of brand name. Webster's dictionary defines fundamentalism as: "A movement or attitude stressing strict and literal adherence to a set of basic principles."
Any attempt to communicate a different opinion to rigid fundamentalists is like talking to a wall. The fundamentalist mind-set is programmed to not become confused by any proposition contrary to its program.
One of my professors used to say, "It is all right to be a fundy; just don't be a fool." Webster says a fool is a person "lacking in judgment." Foolishness, like stupidity, suggests a lack of common sense and is distinguished from ignorance which is due to lack of knowledge or education.
It is not common sense which motivates the reasoning of an unbending religious fundamentalist; it is a distorted viewpoint which declares that everyone else is wrong and that his or her religion is based on fact, rather than faith.
Of course, religion can be defined, broadly, as whatever it is in life for which a person really lives that for which a person really lives is his or her real religion. Whatever a person does in regard to that for which he or she really lives is worship.
Nevertheless, everyone has a right to personal belief; but, there is nothing which discredits narrow-minded religious fundamentalists more quickly than a stubborn unwillingness to admit a religion addiction which controls the brain just as easily as opium.The religion druggie is unable to admit reality (human fallibility) and is on a trip which is just as difficult to reverse as alcoholism. For example, how else does anyone explain the extremism of suicide bombers or murderers who kill themselves and/or others while believing they are doing God's will and at death will go straight to Heaven?
A college roommate saved me from fundamentalism's black hole. Occasionally, I would drift into outer space in regard to some unearthly position; and he would bring me back to ground zero with two simple questions: "Well, Gene, you could be wrong couldn't you? You are not God, are you?"
It is basic dishonesty which allows the fundamentalist to live in ignorant bliss by absorbing inflexible religion as if it were a natural morphine. On the other hand, no one objects to religion which provides peace and euphoria to the heart and mind of anyone. It is unreasonableness which is objectionable, particularly efforts which would establish religion by law.
Therefore, I have concluded it is the religions of fear which are to be feared. You can bet, for example, that Muslim and Christian fundamentalist extremists believe that if you do not agree with them you are going to Hell forever.
As John Adams said, "He [God] created ... the human species ... with the deliberate design of making nine tenths of our species miserable for ever ... Pardon me, my Maker ... I believe no such things" (Works, 10:66).
Thomas Jefferson understood what "constitutes the craft, the power and the profit of the priests" (his words). In 1813 he wrote, "Sweep away their gossamer [cobweb] fabrics of factitious [artificial] religion, and they would catch no more flies" (Jefferson's Extracts From the Gospels, p. 347).
When Christian fundamentalists want to appear open-minded they refer to America as a Judeo-Christian nation or a nation built on Judeo-Christian principles. However, there is not one Christian fundamentalist who believes that Jews are going to Heaven or that Judaism is worthy of spiritual respect in this worldbecause Judaism rejects the divinity of Jesus. Christian fundamentalists use the Jewish name only to abuse it.
Not all religion numbs the mind. Jefferson's deism and concept of religious freedom prompted his comment that "by bringing the sects together ... we shall soften their asperities [harshness], and liberalize and neutralize their prejudices, and make the general religion a religion of peace, reason, and morality" (Writings, 15:406). Jefferson—like Thomas Paine—advocated religion and morality unfettered by superstition. "The Religion then of every man must be left to the conviction and conscience of every man" (Madison, Papers, 8:299).
"Religion is a matter which lies solely between Man and his God, ... he owes account to none other for his faith or his worship" (Jefferson, Writings, 16:281).
"Every man conducting himself as a good citizen and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience" (Washington, Writings, 30:321).
It is all right to be a fundy; just don't be a fool. Or, as another of my professors used to say, "God gave us brains to use, not to sit on."
Why is it that some public school children are gathering around flagpoles and some individuals are standing on center stage in order to pray in public? Two reasons:
1. They want to be seen. They want newspaper photographers and television cameras to show their pictures on front pages and evening newscasts. They are making a public display and inviting the media; or, at the least, they are attempting to make a public scene in order to be seen by fellow students or the community.
2. They want to protest public school policy. Advocates of public prayer believe that public institutions should acknowledge God and should not be neutral in regard to religion. Public school policy has generally refused to allow schools to function as churches. Religious zealots have responded by way of public demonstrations and have succeeded in attracting attention through flagpole prayer meetings, law suits, or other open appeals for news coverage.
Another question often raised by public prayer advocates: What is wrong with public prayer or public school prayer assemblies? Some answers:
1. Public prayer deliberately staged in order to be seen by others is condemned outright by the acknowledged founder of Christianity. In Matthew 6:5-6 Jesus said what he meant and meant what he said.
2. Public prayer, vocal or obvious, is not necessary unless God is hard of hearing or has poor eyesight. God hears silent prayer and sees in private.
3. Public schools are not churches. Public institutions belong to citizens of every religious persuasion, should remain neutral, and should not be forced by pressure from anyonemajority or minorityto become tools for the promotion of religion. Public schools can teach about religion as a part of the human experience in history, but they should not serve as churches or indoctrination centers for any religion . Public schools should certainly teach and uphold the constitutional principle of separation between religion and government.
4. Advocates of public prayer at public functions apparently believe that such pious demonstrations have a positive impact. However, the practice often causes disharmony. In communities large and small the religious zealot viewpoint attempts, like the Crusades of the past, to overwhelm and browbeat the community into submission or silence. Nevertheless, in America religion is to be freely exercised, not established by law, government, or force. Imposed religion is un-American and un-Christian (contrary to the principle of voluntary acceptance).
Proponents of government sponsored prayer claim that the Founding Fathers allowed formal public prayer in the 1787 Constitutional Convention. No, the record states that the proposal failed "without any vote on the motion" (Farrand, The Records of the Federal Convention of 1787, 1:452). In fact, "in the Franklin MS, the following note is added:'The Convention, except three or four persons, thought Prayers unnecessary'" (Farrand, 1:452, n.15).
James Madison discussed "the proposition of Doctor Franklin in favor of a religious service in the Federal Convention" and writes that reports of Franklin's motion being approved by the Convention are "erroneous" (Writings, 9:529).
Proponents assert that the first Continental Congress immediately on its assembling adopted a resolution calling for prayer at the opening of each daily session and designated an Episcopal clergyman to act as chaplain of Congress. True, but "the person selected, after serving as chaplain two years, resigned, went over to the British, and departed to England" (Church, State, and Freedom, 1967, p. 120).
The First Congress in 1789 hired chaplains and required that "two Chaplains of different denominations ... shall interchange weekly." However, the decision was not unanimous. James Madison said, "it was not with my approbation [approval] , that ... they appointed Chaplains, to be paid from the Nat. Treasury" (Writings, 9:100).
Further, Madison asked: "Is the appointment of Chaplains to the two houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? ... In strictness the answer to both points must be in the negative. ... The establishment of the chaplainship to Congress is a palpable [easily noticeable] violation of ... constitutional principles" (William and Mary Quarterly, 1946, 3:558).
In 1962 the U. S. Supreme Court correctly ruled that a New York State Board of Regents written and required "prayer" was unconstitutional because: "It is no part of the business of government to compose official prayers for any group of the American people" (Engel at 370 U. S. 425). In 1963 the Court wrote: "The command of the First Amendment that the Government maintain strict neutrality ... does not permit a State to require a religious exercise even with the consent of the majority of those affected" (Abington at 374 U. S. 225).
Do not confuse them with the facts; they have already made up their minds.
There is abundant evidence that book writing Christian apologists do not need fact with which to write or sell their books. Please, understand, it is okay to be Christian and an apologist. The objection is to careless use of historical facts which eagerly get repeated by mindless or uncritical zealots and devotees.
Again, it is okay to be religious. The argument is with historical fiction being printed and sold as if it were scholarly fact:
- Whitehead, John W., The Second American Revolution, 1982. "Any law which contradicts biblical revelation is illegitimate" (p. 74). Whitehead, founder of the Rutherford Institute, believes in a "higher" law: "The higher law is clearly expressed in God's revelation as ultimately found in the Bible. . . . The higher law values of the Declaration [of Independence] are incorporated into the Constitution by its preamble. If we recognize that the Constitution presupposes the Declaration and the higher, fundamental law to which the Declaration witnessed, then we will understand the Constitution. ... If we see the Constitution as standing alone, and forget or deny that it presupposes the Declaration, we will misunderstand the Constitution" (p. 75). Whitehead cannot accept the words of the First Amendment as written by the First Congress and approved by the states. Therefore, says Whitehead, the religion clauses should be revised as follows: "The federal government shall make no law having anything to do with supporting a national denominational church, or prohibiting the free exercise of religion" (p. 98). Whitehead's revision of the words of history makes him a history revisionist.
- Cord, Robert L., Separation of Church and State, 1982. The only comment necessary to describe this book is written by the distinguished constitutional historian Leonard W. Levy. Levy describes Cord's book as "mostly fiction masquerading as scholarship" (Establishment Clause, p. 221). For example, on page 36 Cord wrote fiction when he stated that the intent of Thomas Jefferson's "Virginia Statute for Religious Liberty" was narrowly designed to disestablish the "Episcopal Church in Virginia." The fact is that Jefferson's bill for establishing religious freedom was introduced in 1779 in order to counter a bill sponsored in 1779 by James Henry (and in 1784 by Patrick Henry) which would broadly establish the "Christian Religion" as "the established Religion" of Virginia. It was, specifically, establishment of the "Christian Religion" which was rejected in Virginia when Jefferson's bill for religious freedom became law in 1786. Here is another example of Cord writing fiction: On page 46 Cord writes that "Madison apparently did not believe public prayer by a federally paid minister was an act or an appropriation establishing a national religion as indicated by his membership on the Congressional Committee which recommended the Chaplain system." What Cord does not mention is the fact that on July 10, 1822, Madison wrote: "It was not with my approbation [approval] that ... they appointed Chaplains, to be paid from the Nat[ional] Treasury" (Writings, 9:100). Yes, Cord is a fiction writer, not a reliable historian.
- Eidsmoe, John, Christianity and the Constitution, 1987. In May 1789 George Washington wrote: "No one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution" (Writings, 30:321). Eidsmoe asserts that "this statement summarizes Washington's view of the First Amendment" (p. 124). The First Amendment was not drafted until September 1789. Eidsmoe's apologist enthusiasm also led him to conveniently identify the "Daily Sacrifice" as originating from Washington (p. 130). The unsigned document is not in the Writings or Papers of Washington because its author has not been confirmed by real scholars.
- Hart, Benjamin, Faith and Freedom, 1988. Hart declares the Declaration of Independence as "America's founding document" (p. 13). As everyoneexcept Hart and Whiteheadknows, the Declaration was signed by representatives from colonies which were declaring themselves independent states. The founding document of the United States of America is its Constitution, not the Declaration of Independence or the Mayflower Compact. Hart quotes (without citation) Washington saying, "It is impossible to rightly govern ... without God and the Bible" (p. 13). Washington never said it. Hart quotes James Madison (without citation) saying, "We have staked the whole future of American civilization ... upon the capacity of each and all of us to govern ourselves ... according to the Ten Commandments of God" (p. 18). Madison never said it.
- Limbaugh, Rush, The Way Things Ought to Be, 1993 (paper). Limbaugh misquotes the establishment clause and declares: "Only a lawyer could claim not to understand the plain meaning of those words. The government is prohibited from setting up a state religion, ... but no barriers will be erected against the practice of any religion" (p. 281). If the meaning is plain, why add "a state"? And, will someone tell the Mormons (Reynolds, 1879) and Native Americans (Smith, 1990) Limbaugh has rescinded the Court's barriers against the practice of their religion? In See, I Told You So(1993), Limbaugh copied from Hart the bogus Madison quotation (p. 73).
- Barton, David. The Myth of Separation, 1992. At least twice Barton repeats the bogus Washington quote (pp. 113, 150). Barton's source is Halley's Bible Handbook. At least twice he repeats the bogus Madison quote (pp. 120, 155). Barton's source is a "Tractarian Society" publication.
- Evans, M. Stanton, The Theme Is Freedom, 1994. Journalist Evans' revision of the Establishment Clause from "religion" to "an official church" (p. 275) is unacceptable, unscholarly, and illustrative of a book which lacks significant "historical fact and relevant citation" (p. xvi).
- Dreisbach, Daniel L, Real Threat and Mere Shadow, Westchester, Il., Crossway Books, 1987. On page xiv, Dreisbach implies that President Thomas Jefferson's (1802) "wall of separation," upon which the Everson (1947) and McCollum (1948) courts stood when documenting the historical definition of the Establishment Clause, "was constructed to delineate jurisdictional lines of authority between the federal and state governments." This a lucid example of "history by omission" and "the intellectually dishonest practice of selectively recounting only those historical facts which could be read" to support a history revisionist's effort to misuse history by using only a part of the historical record and then finishing the sentence with words which do not exist in the document from which he quotes. Let it be clearly noted, for the record, that President Jefferson, in his letter to the Danbury Baptists, deliberately described the "wall of separation" as "between Church & State"not "between the federal and state governments," as Dreisbach writes. The simple problem is that to Dreisbach "the meaning of the First Amendment is ambiguous" (p.22) obviously. Now an example of how Dreisbach would reword the First Amendment: he says (p. 69) that to nonpreferentialistssuch as he isthe purpose of the Establishment Clause was to "prohibit the establishment of a national (or federal) church and implicitly to restrict Congress from granting any religious sect or denomination a preferred legal status." Again, for the record, let it be clearly noted that the word following "establishment of" in the Establishment Clause is "religion"not "national (or federal) church ... religious sect or denomination," as Driesbach prefers. The solution, then, is to understand the "voice of the framers,"in the terms in which the Establishment Clause is written, as well as in historical context. Everyone agrees that the Bill of Rights restricted the power of the federal government. The Establishment Clause restricted Congress in terms of an establishment of "religion"just as it is written. For example, from history, in Virginia on October 25, 1779, James Henry.
presented the conservative demands in his bill "concerning religion." This bill ... marks the great effort of the conservative party to re-establish ... a general assessment and a regulation of religion. ... The bill reads:
The Christian Religion shall in all times coming be deemed and held to be the established Religion of this Commonwealth; and all Denominations of Christians demeaning themselves peaceable and faithfully, shall enjoy equal privileges, civil and Religious...
Whenever free male Persons not under twenty one Years of Age, professing the Christian Religion, shall agree to unite themselves in a Society for the purpose of Religious Worship, they shall be constituted a Church, and esteemed and regarded in Law as of the established Religion of this Commonwealth
Every Society so formed ... shall entitle them to be incorporated and esteemed as a Church of the Established Religion of this Commonwealth.
The above example is quoted from pages 58-59 of a history first published by the Virginia State Library in 1910 as written by H. J. Eckenrode in the book Separation of Church and State in Virginia, (reprinted in 1971 by Da Capo Press). It is a clear illustration that "in the minds of the framers," like James Madison, there was the idea of an "Established Religion" which was defined in terms of all Christian churches, not just one, single, official, national denomination or church. The James Henry idea of establishing Christianity as the state religion was rejected in Virginia, and Dreisbach is wrong when he writes (p. 74) that "the final draft [of the Establishment Clause] fulfilled Madison's objective to proscribe ... a federal church." James Madison never used the words "a federal church," and there is no mention of "Christianity" in the Constitution for the United States of America. That which is prohibited in the Establishment Clause is an establishment of "religion"religion is what it says, religion is what it means, religion is the only word which is compatible with thereof in the free exercise clause, and it does not take a Rhodes scholar to understand it. President Madison understood it when in February 1811 he vetoed bills relating to an Episcopal and a Baptist church as violations of the Establishment Clause.
Parents do not send children to parochial and private schools simply because they want better education. The primary purpose of most church schools, for example, is to provide religious educationwhether Adventist, Baptist, Catholic, Jewish, or Muslim.
If you want to see the United States of America as balkanized as Europe, support the school voucher or "choice" proposition (parents already have choice; what voucher and tax credit proponents want is public money). Ever increasing economic, political, racial, and religious segregation is unavoidable through a school voucher plan because it will allow parents to send children, at public expense, to the school of the parents prejudiceeconomic, political, racial, or religious.
Public schools are the nursery of democracy and provide a fertile ground for producing harmony among children and students from all economic, political, racial, and religious backgrounds. Financing private schools with public money will facilitate economic, political, racial, and religious segregation, as well as conflict, will undermine public education, and will foster anarchy educational and social.
America does not need to subsidize and encourage division in its society by allowing the private school lobby greater access to the public purse, whether directly or indirectly. Private schools would not only get increasingly huge sums of money from the public treasury they would also continue to have the advantage of generous contributions from their special interest supporters.
In 1785 James Madison wrote one of the most important statements ever penned in regard to political and religious freedom. It was called a "Memorial and Remonstrance" against religious assessments. Madison's statement and protest was an objection to a bill in the Virginia legislature to use public tax money for the support of teachers of the Christian religion. Three sentences from his "Remonstrance" (Papers, 8:303):
"At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that 'Christian forbearance, love and charity,' ... into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of law?"
In 1920 the Netherlands passed legislation for public subsidy of private schools. By 1959 only 28 percent of primary students were in public schools (Dutch School System, 1960, p. 25). In The Politics of Accommodation (1968, p. 1.), Arend Lijphart writes: "The Netherlands ... is characterized by an extraordinary degree of social cleavage. Deep religious and class divisions separate isolated, and self-contained population groups. ... Each group has its own ideology and its own political organizations: political parties, labor unions, employers' associations, farmers' groups, newspapers, radio and television organizations, and schoolsfrom kindergarten to university."
Can the above happen in America? Ever heard of Kiryas Joel? Did you know that in the USA the Council of Islamic Schools maintains 108 elementary schools, five high schools, and two colleges? Do you remember the failed 1994 California school voucher initiative which, nevertheless, inspired a coven of witches to propose their own private school in order to take advantage of public handouts? All such schools would, presumably, be included in any fair voucher program. A July 1993 AP report quotes state Department of Education spokesman William L. Rukeyser saying he thought witches could qualify because "private schools are one of the last great unregulated industries in California."
In January 1993 the Cato Institute's David Boaz wrote nationally distributed columns advocating the use of public money (vouchers) for "a Catholic school, an independent minority-run school, or many other choices." A Catholic school is a Roman Catholic Church school; but, what is an independent minority-run school? Would that be a school run by the KKK, Black Muslims, or Queer Nation? Or, would such groups be included in "many other choices"?
The school voucher plan is not good public policy for America. Furthermore, it is the responsibility of government to regulate that which it finances or subsidizes. If private schools want to stay private, they should not feed at the public trough. As a graduate of two private church schools, I have no objection to private schools; but, I do object to the use of public tax money for private schools, especially when private schools would not be subject to the same rules as public schools.
The overwhelming majority of private schools in America are church related. Churches and church schools should be supported by voluntary contributions. Tax dollars are not given voluntarily. In 1875, President Ulysses S. Grant said: "Leave the matter of religion to the family, the altar, the church, and the private school, supported entirely by private contributions. Keep the church and state forever separate."
(Church, State, and Freedom, 1967, p. 337).
The traditional and constitutional American principles of separation between religion and government and of public funds for public institutions are under attack. If the judicial decision is made that the free exercise of religion clause of the First Amendment requires parochial aid (through the current "discrimination against religion" argument), all sorts of schools will demand their fair sharefrom white supremacists to black supremacists, from communists to fascists to socialists, and from extremists and anarchists of all kinds. If the Court decides that parochial aid is constitutional, how can any school be kept out? On what basis will a group or family calling itself a "school" be denied access to public funds? The Congress or the state would proclaim that only true schools would qualify, but we already allow virtually unregulated home schools (like kids who ride all day in their parents' truck or spend all day at a college library on the Internet). Nevertheless, no objection to public funding of any religion school would provide a legal challenge. Therefore, if the school voucher or tax credit idea for students at private schools ever becomes universal law, schools from the "licentious left" to the "radical right"from all across the religious and political spectrumwill receive public money in the name of "religion." The so-called "Religious Right" actually promotes this predictable fragmentation of American society as "parental freedom of choice." Just like the growth and abuse of welfare, schools of all sorts will choose to suck up to that additional pap on the federal sow or state nanny. Of course, the debate is not about freedom to exercise religion or choose private schools (parents are already free to choose private schools); the debate is about access to public money and about maintaining the obvious exception (discrimination) which the First Amendment commands in regard to government support of "religion." In contrast to the many functions which government is allowed to promote and fund, "religion" is not to be established by law or by government at any level. In 1947 the Supreme Court of the United States said, "no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion" ( Everson v. Board of Education, 330 U.S. at 15). Or, as was said in 1963, "What may not be done directly may not be done indirectly lest the Establishment Clause become a mockery" ( Abington v. Schempp, 374 U.S. at 230).
But perhaps the "Religious Right" has something else in mind when it refers to "freedom." Perhaps the type of "freedom" it ultimately has in mind is the freedom to use government for the purpose of imposing religion upon all Americans. Efforts throughout America by religion activists to gain control of school boards, state boards of education, state legislatures, and the Congress are obvious. Most "choice" advocates have already gone along with the scrapping of the First Amendment's religion clauses anyway. Why not simply get rid of the rest of that document and let "religion" rule? Besides, it was written 200 years ago as a Constitution which never mentions God, Christianity, or the Bible. And, Rush Limbaugh, who most of the "Right" believes can speak no wrong, has already told us that "The assault on America's religious underpinnings is based on a distorted interpretation of the establishment and free-exercise clauses of the First Amendment: The government is prohibited from setting up a state religion,...but no barriers will be erected against the practice of any religion." (Limbaugh, The Way Things Ought to Be, Pocket Star Books, paperback, 1993, p. 281). Rush is wrong; the establishment clause does not say "state" religion. In America all religion is to be supported voluntarily, not with public funds or government promotion. Public money should no more be used for the secular functions and requirements of a church school than for a churchregardless of how beneficial to society.
"At least let warning be taken at the first fruits of the threatened innovation....What mischiefs may not be dreaded, should this enemy to the public quiet be armed with the force of a law?" (James Madison, 1785 "Memorial and Remonstrance" against a bill in Virginia which would have provided tax money for support of teachers of the Christian religion; see the book America's Real Religion, p. 17).
JUSTICE SANDRA DAY O'CONNOR'S CONFUSION
It was not the intent of the Fourteenth Amendment to modify the meaning of the twin principles of religious freedom set forth in the First Amendment’s religion clauses, to give Congress or the states any power to overrule those principles, or to establish any religious practice as exempt from the laws of society. It was the intent of the Fourteenth Amendment to apply constitutional guarantees of liberty under the law to all citizens and to require the states to conform. There is no historical record which asserts that Congress or the states were given authority through Section 5 of the Fourteenth Amendment to do anything other than enforce civil liberties as guaranteed in the Constitution for the United States of America.
It is absurd to suggest that the Fourteenth Amendment was adopted with the intent to give “a majority in Congress” power to change the principles expressed in the First Amendment’s religion clauses or that the Gitlow (1925), Cantwell (1940), or Everson (1947) decisionswhich were unanimous in regard to the doctrine of incorporation as adopted by the Courtauthorized any congressional authority to change those principles. Thus, there is no historical evidence in the records of the passage of the Fourteenth Amendment or the above decisions of the Court to support Justice O'Connor's dissenting position in Boerne V. Flores (1997).
James Madison would have vetoed the Religious Freedom Restoration Act as an unconstitutional act of Congress and would have reasserted the same principles that he set forth in the Baptist and Episcopal vetoes and in his essay “Monopolies”--those documents of history and clearly stated principles of constitutional understanding which Justice O’Connor never mentioned in her limited and selective review of history regarding the proper constitutional relationship between religion and government. Justice O’Connor’s omissions distorted the constitutional position of James Madison: “Congress shall make no law respecting an establishment of religion.” Congress cannot prohibit the exercise of religion, but can restrict it. It was not the purpose of the Religious Freedom Restoration Act to prohibit or restrict religion; the obvious purpose of Congress was to, by a law, establish religion and religious practices--a direct violation of the First Amendment--as exempt from the laws of the land. And, President Thomas Jefferson would have told Congress, "no law shall be made respecting the establishment, or free exercise of religion" (Jefferson, Jan. 23, 1808).
About the Religious Freedom Restoration Act, Madison could have written: “Attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of citizens, tend to enervate [sap the strength of] the laws in general, and to slacken [weaken] the bands of society. If it be difficult to execute any law which is not generally deemed necessary or salutary [beneficial], what must be the case, where it is deemed invalid and dangerous? And what may be the effect of so striking an example of impotency in the government, on its general authority?” (From James Madison’s “A Memorial and Remonstrance,” the entire text of which is printed in the book America’s Real Religion.)
Allow me to make it easy for those readers who have not read Justice O’Connor’s dissent as she asks the question as to “whether Congress has exceeded” its Section 5, Fourteenth Amendment, enforcement powersJustice O’Connor says:
1. “Smith, 494 U.S. 872 (1990), [was] the decision that prompted Congress to enact RFRA as a means of more rigorously enforcing the Free Exercise Clause. I remain of the view that Smith was wrongly decided. ...If the Court were to correct the misinterpretation of the Free Exercise Clause set forth in Smith, ... it would ... allay the legitimate concerns of a majority in Congress who believed that Smith improperly restricted religious liberty.”
2. “In Smith ... this Court ... interpreted the Free Exercise Clause to permit the government to prohibit, without justification, conduct mandated by an individual’s religious beliefs [illegal drugs], so long as the prohibition is generally applicable [to everyone in America].”
3. “The Clause is best understood as an affirmative guarantee of the right to participate in religious practices and conduct without impermissible governmental interference, even when such conduct conflicts with a neutral, generally applicable law.”
4. “Before Smith, our free exercise cases were generally in keeping with this idea: where a law substantially burdened religiously motivated conduct--regardless whether it was specifically targeted at religion or applied generally--we required government to justify that law with a compelling state interest and to use means narrowly tailored to achieve that interest.”
5. “The Court’s rejection of this principle in Smith is supported neither by precedent nor ... by history. The decision [in Smith and Boerne] has harmed religious liberty.”
The above summary of Justice O’Connor’s argument in her dissent, was then followed twelve times by use of the word accommodate. Justice O’Connor is an accommodationist who believes that, regardless of civil law which applies to everyone equally, the United States of America is obligated by the Free Exercise Clause to reasonably accommodate “religious practice”; and, she cites some recent Court opinions which have played loose with Madison’s “constitutional principles” (“Monopolies”).
The problem with and answer to Justice O’Connor’s dissent is what she ignored and misconstrued from the legal and historical record and what limited sources she used in justifying her position:
1. The first Supreme Court case to cite President Thomas Jefferson’s use of his famous “wall of separation between Church & State” was Reynolds v. U.S.(1879) wherein the Court unanimously declared polygamy a violation of civil law regardless of religious opinion. “For altho’ we have freedom of religious opinion by law” (Jefferson, Jul. 30, 1816), not one Justice on the Reynolds Court believed that religious action was above the law or that the free exercise clause guaranteed unrestricted religious action. The Reynolds Court understood the difference between action and “the freedom of religious opinion, and its eternal divorce from the civil authority” (Jefferson, Dec. 8, 1822). This is what the Court in Reynolds said: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... Can a man excuse his practices ... because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Justice O’Connor never mentions the Reynolds decision (which is printed in America’s Real Religion) or the unanimous decision of the Court in Davis v. Beason (1890) which deliberately repeated the above quotation.
2. Justice O’Connor asserts that James Madison believed the right to free exercise of religion included “a right to be exempt from certain generally applicable laws.” Justice O’Connor never finds those words in the writings of Madison.
3. Justice O’Connor concludes: “At the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice.” Justice O’Connor never bothers to cite where in the Constitution or Bill of Rights such a guarantee or conclusion is stated.
4. Justice O’Connor interprets James Madison’s principle that “in Matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance” to mean (her words): “To Madison, then, duties to God were superior to duties to civil authorities.” Justice O’Connor never bothers to indicate where in the Constitution or Bill of Rights such a guarantee or conclusion is stated.
Conclusion: The classic work--and the Bible of church-state separationists--regarding the issue of religion and government is Church, State, and Freedom (1967) by the distinguished constitutional attorney Leo Pfeffer whom Justice O'Connor ignored. In the great book The Establishment Clause (1986) by the distinguished constitutional historian Leonard W. Levy is documented history which Justice O’Connor never mentions. As long as Justices of the Supreme Court ignore Madison’s clearly stated constitutional views as he applied (vetoes) and explained (“Monopolies”) them--in writings which Justice O’Connor never mentioned--the decisions of the Court will continue to show lack of consistency because of its failure to understand and accept the meaning of the religion clauses as written: ”religion” means religion and “prohibiting” does not mean restricting. In America, if you do not like the laws you work to change them; but, as President Jefferson wrote to the Danbury Baptists (and as Reynolds and Davis quoted), “man ... has no natural right in opposition to his social duties.” The social contract document which states the rights and duties of Americans is the Constitution; and it, thank God, provides religious action no exemption from civil law. Nevertheless, it is small wonder why Justice O'Connor is confused when even so-called separationist organizations do not understand that the two basic First Amendment religious freedom principles are not in conflict with each other or the rule of law in the United States of America.
1797 TREATY WITH TRIPOLI
Was and is the 1797 Treaty with Tripoli an official treaty of the USA? Yes, all 12 articles as printed in English. See Treaties and Other International Acts of the United States of America, Hunter Miller, ed., 2:349-385:
"Treaty of Peace and Friendship, signed at Tripoli November 4, 1796, and at Algiers January 3, 1797, Original in Arabic. Submitted [in English] to the Senate May 29, 1797. (Message of May 26, 1797.) Resolution of advice and consent June 7, 1797. Ratified by the United States June 10, 1797 Proclaimed June 10, 1797" (p. 349).
"Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary" (p. 364).
"Article 11. As the government of the United States of America is not in any sense founded on the Christian Religion,as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries” (p. 365).
"The text [of the] Treaty written in the Arabic Language, being translated into the Language of the United States, is almost exactly the same as that in the Statutes at Large, Accordingly the provisions of the twelve articles appear as written by [American diplomat Joel] Barlow in English in the original treaty book.
"Thus the proclamation [June 10, 1797] was immediate with the ratification and did not await any such formality as notice to the Bey of Tripoli of the ratification of the treaty by the United States. The treaty had been bought; and, as much of the purchase price had already been paid, any subsequent item of procedure was doubtless considered to be of comparatively little importance.
"Note Regarding the
BarlowTranslation. The translation is that of Barlow as written in the original treaty book, including not only the twelve articles of the treaty proper, but also the receipt” (p. 383).
"It is to be remembered that the Barlow translation is that which was submitted to the Senate and which is printed in the Statutes at Large and in treaty collections generally; it is that English text which in the United States has always been deemed the text of the treaty.
"The Barlow translation is at best a poor attempt at a paraphrase or summary of the sense of the Arabic. Most extraordinary (and wholly unexplained) is the fact that Article 11 of the Barlow translation, with its famous phrase, ‘the government of the United States of America is not in any sense founded on the Christian Religion,’ does not exist at all [in the Arabic]. There is no Article 11 [in the Arabic]. The Arabic text which is between Articles 10 and 12 is in form a letter, crude and flamboyant and withal quite unimportant, from the Dey of Algiers to the Pasha of Tripoli. How that script came to be written and to be regarded, as in the Barlow translation, as Article 11 of the treaty as there written, is a mystery and seemingly must remain so. Nothing in the diplomatic correspondence of the time throws any light whatever on the point.
"A further and perhaps equal mystery is the fact that since 1797 the Barlow translation has been trustfully and universally accepted as the just equivalent of the Arabic. Its text was not only formally proclaimed as such but has been continuously printed and reprinted as such . . . . The Italian translation of the Arabic text presents its own linguistic difficulties it is none the less in essence a reasonable translation of the Arabic. Indeed, allowing for the crudeness of the original Arabic and the changes which always result from a retranslation, it may be said that the Barlow translation . . . was ‘extremely erroneous’; but nothing indicating that the Italian translation was even consulted has been found, and it does not appear that it was ever before 1930 put into English” (p. 384).
Page 385: "When [James Leander]
Cathcart, as the American Consul, arrived at Tripoli on April 5, 1799, ‘a ratified copy of the Treaty with Tripoli’ [in the English language] was one of the enclosures with the instructions to Cathcart very likely the ratification embraced the copy certified by Barlow under date of January 4, 1797, [and] was delivered upon the settlement of April 10, 1799."
Conclusion: History revisionists of the so-called "religious right" strain to repudiate the 1797 Treaty with Tripoli as irrelevant and unofficial; they make much ado about the fact that Barlow’s version in English was a poor paraphrase of the version in Arabic; and they grind their teeth over the fact that it was the only English version in existence and the only one considered when the Senate of the United States read, accepted, approved, and ratified the 1797 Treaty with Tripoli. The fact which completely destroys their argument is that none of the Senators who read, accepted, approved, and ratified the Treaty could read Arabic. The official and only 1797 Treaty with Tripoli which was read, accepted, approved, and ratified by the Senate of the United States was the one penned by Joel Barlow in the English language. And, whether the so-called "religious right" revisionists like it or not, Article 11 of the official 1797 Treaty with Tripoli was in the Treaty in 1797 and is appropriately recorded in the official treaty book: "The government of the United States of America is not in any sense founded on the Christian Religion" (p. 365).
The 1797 Treaty with Tripoli was officially signed by President John Adams, and before the testimonium clause is this paragraph of ratification and proclamation:
"Now be it known, That I
John Adams, President of the United States of America, having seen and considered the said Treaty do, by and with the advice and consent of the Senate, accept, ratify, and confirm the same, and every clause and article thereof. And to the End that the said Treaty may be observed and performed with good Faith on the part of the United States, I have ordered the premises to be made public; And I do hereby enjoin and require all persons bearing office civil or military within the United States, and all others citizens or inhabitants thereof, faithfully to observe and fulfil the said Treaty and every clause and article thereof" (p. 383).
The official 1797 Treaty with Tripoli which President John Adams signed and "ordered the premises [propositions] to be made public" included Article 11 in the English language. As for the Treaty in Arabic, not one Senator read it. The only Treaty which mattered to the Senators and the President was the one in English. God bless America where all citizens can accept whatever religion they choose and can practice it freelyas long as they obey the laws of society.
- No Religious Test
- James Madison's List of Ecclesiastical Encroachments
- Religion Clauses 101, Revised, January 1999.
- The Ten Commandments and Public Schools
- The Supreme Law Of The Land
- Watch the Grave of James Madison
- Establishments Of Religion by James Madison
- Founding Principles Rejected: Colonial Virginia
- Twentieth Century Puritans
- Indian Treaties and Affairs
- John Leland: Secular Humanist?
- RFA, RFRA, and the RLPA
- Civil Law and Institutions of Religion
- The Poor Palatines
- Your Questions Answered
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