A Brief Discussion
A Brief History Lesson
The Constitution of the United States was signed on 17 Sept. 1787 and became effective on 4 Mar. 1789. It was designed to bring unity to the country, which the Articles of Confederation it superseded failed to do. The Constitution laid the new foundation for the federal government, assigning specific roles to three separate and equal branches of power. Many signers still held reservations about it, since it did not limit the power of the federal government. The result of this distrust of too strong a central government was Bill of Rights--the first Ten Amendments. Congress passed the Bill of Rights on 25 Sept. 1789 and three-fourths of the States ratified it by 15 Dec. 1791. It is crucial that we remember the purpose of the Bill of Rights--to limit the power of the federal government--when we discuss any of the articles or their application.
The First Amendment to the Constitution of the United States declares that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Note the phrase "separation of church and state" appears nowhere in the First Amendment, nor anywhere else in the Constitution. It was first publicly used by Thomas Jefferson in a letter replying to the Danbury Baptist Association of Danbury, Connecticut. Although the First Amendment prevented any one denomination from becoming state sponsored, the Danbury Baptists were concerned about rumors that a national denomination might be chosen. They wrote President Jefferson with those concerns. On 1 January 1802, Jefferson responded:
I contemplate with solemn 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.1
Why did Jefferson use this particular wording, since it appears nowhere in the Constitution? He was paraphrasing one of the Danbury Baptists' senior ministers, Roger Williams, who wrote:
When they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself...And there fore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world...2
Thus both Williams and Jefferson understood the wall to work in only one direction, protecting the Church from the State. Although now the phrase has been given de facto Constitutional authority, it is interesting to note that:
Jefferson was not a delegate to the 1787 Constitutional Convention, nor was he a member of Congress in 1789, nor was he a member of any state legislature or ratifying convention at any time relevant to the passage of the First Amendment; he was serving as a U.S. Minister to France throughout this time.3
The misunderstanding and misuse of the phrase is a fairly recent occurrence. A large part of Jefferson's letter to the Danbury Baptists was quoted and used as he originally intended in a key Supreme Court decision, Reynolds v. United States4, in 1878. This case was used by the Court to affirm that though the government could not favor one denomination over another, civil laws were to be enforced based on general Christian standards. The ruling went against the Mormon cult's practice of bigamy. This decision was typical for 150 years, until Everson v. Board of Education5 in 1947.
The Founding Fathers' Intent
The degree of Christian influence in law and government until 1947 can be seen in the statements of nearly every founding father and the myriad of court cases in the intervening years. George Washington, who was President of the Constitutional Convention, believed strongly that Christianity was a key part of education. He told the Chiefs of the Delaware Indians in 1789:
You do well to wish to learn our arts and ways of life, and above all, the religion of Jesus Christ. These will make you a greater and happier people than you are. Congress will do every thing they can to assist you in this wise intention.6
John Adams, signer of the Declaration of Independence and second President of the United States, penned the prayer that is engraved in the state dining room of the White House:
I pray Heaven to bestow THE BEST OF BLESSINGS ON This House and All that shall hereafter Inhabit it, May none but Honest an Wise Men ever rule under This Roof.
On the basis of his experience with the atheist government of France (as Minister to France) and his fervent support and expert knowledge of the U.S. Constitution, President Adams stated:
We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.7
Thomas Jefferson himself asked:
And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with his wrath? Indeed, I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.8
Before we move to 1947, we must consider two more Amendments in the Bill of Rights. Anyone doubting that the writers of the Bill of Rights and it ratifiers mistrusted, even feared, an overly dominant federal government should refer to the Ninth:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
and Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Erosion of Freedom
Although the Everson v. Board of Education in 1947 ruled in favor of using public school transportation to convey children to religious schools, the Court stated in its opinion that:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.9
This misstated President Jefferson's intent in the Danbury letter and reversed 150 years of legal precedent. Then, in 1962, the Court delivered the coup de grce. In Engel v. Vitale10, it outlawed prayer in public school. The prayer in question was "generic", just 22 words:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.11
The Court even recognized it as totally voluntary:
The schools did not compel any pupil to join in the prayer over his or his parents' objection.12
Nevertheless, the Court concluded that:
Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the [First Amendment]...[It] ignores the essential nature of the program's constitutional defects...Prayer in its public school system breaches the constitutional wall of separation of Church and State.13
Not content with simply outlawing school prayer, the Court furthered its new doctrine of separation of Church and State:
A union of government and religion tends to destroy government and to degrade religion.14
As we've seen, those who fought the American Revolution, framed the Constitution, and wrote and ratified the Bill of Rights fervently disagreed. George Washington put it succinctly:
It is impossible to rightly govern the world without God and the Bible. 15
Abigal Adams, wife of John Adams and mother of John Quincy Adams wrote:
A patriot without religion...is a great paradox, as an honest Man without the fear of God...The Scriptures tell us righteousness exalteth a Nation.16
There are some interesting observations to be made about this ruling. Court decisions usually cite constitutional principles and previous cases. These previous cases are known as precedents. In Engel v. Vitale, the Court overturned over 300 years of educational practice and did not cite a single legal precedent for its decision! Of course, it couldn't because there wasn't one. Its decision flew in the face of 150 years of precedents. The Court also substituted an out of context quote from Thomas Jefferson for constitutional basis. The Court was making new law.
Since 1962, many rulings were based on Engel v. Vitale. It was used to eventually outlaw: reading from the Bible in schools (School District of Abington Township v. Schempp, 1963); posting the Ten Commandments in schools (Stone v. Graham, 1980), though they are posted in the Supreme Court itself; students praying aloud over lunch (Reed v. van Hoven, 1965); war memorials in the shape of a cross (Lowe v. City of Eugene, 1969); opening or closing school graduations with prayer (Graham v. Central Community School District, 1985, and Lee v. Weisman, 1992); and a kindergarten class to ask whose birthday is celebrated at Christmas (Florey v. Sioux Falls School District, 1979). These examples barely scratch the surface.
More recently, some reversals have been won. A key test in recent cases is that religious activities must be "student initiated and student run". The most celebrated is the Equal Access Act passed by Congress. It permitted the use of public school facilities during non-instructional times for student religious and political clubs. Opponents challenged the law in court and lost (Westside Community Schools v. Mergens, 1990). Other local and national gains continue to be made by those willing to stand up for their "free exercise" rights.
Interpreting the Constitution
This discussion of legal interpretation will be somewhat oversimplified, but will point out the importance of whom a president selects to serve on the Federal Courts and especially the Supreme Court. There are primarily two camps of constitutional interpretation: judicial restraint and judicial activism.
Judicial restraint adherents attempt to glean the intent of the framers of the Constitution before ruling on a particular case. They take the overall theme of the document into consideration before making a specific ruling. They neither add to nor subtract from the Constitution or its Amendments, believing that this power resides solely with Congress. In other words, the courts should not make new federal law through judicial opinions since that power is reserved for Congress by Article I of the Constitution.
Judicial activists don't feel bound by the strict wording in the Constitution. Historical precedent and the framers' intent are virtually irrelevant. Like theological liberals, they interpret the documents primarily from their own personal point of view. Creation of the new "right to privacy" is an example of judicial activism.
The difference is clearly illustrated in the First Amendment controversies. Practitioners of judicial restraint attempt to balance the "establishment" clause vs. the "free exercise" clause, protecting the states' and citizens' rights in accordance with the First, Ninth and Tenth Amendments. Judicial activists feel free to take an extra-Constitutional phrase like "separation of Church and State" out its original context and make it a new law. They then take the Fourteenth Amendment, which was intended to guarantee the rights of freed slaves after the Civil War, and use it to transfer powers to the federal government that are rights guaranteed to the states and citizens by the Ninth and Tenth Amendments.
Examples of a recent "restraintists" are Chief Justice William Renquist and Federal Judge Robert Bork. The new Associate Justice Ginsburg is a judicial activist.
Since Thomas Jefferson finds himself at the center of this debate, what did he say about the Supreme Court and judicial activism? Commenting on Marbery v. Madison (1803), then President Jefferson opposed the power of the Court had taken upon itself as the ultimate and exclusive interpreter of the Constitution:
Nothing in the Constitution has given to them a right to decide for the Executive, more than the Executive to decide for them...The opinion which gives the judges the right to decide what laws are constitutional, and what are not...for the legislature and the executive...would make the judiciary a despotic branch.17
As a footnote, Jefferson ignored the Court's ruling in that case and several others. In the early days of the Constitution and even at Abraham Lincoln's time, it was the Legislature that overruled the Supreme Court instead of the reverse. After the Court ruled that blacks couldn't become citizens18, Lincoln was unconcerned:
A decision...has always needed confirmation before the lawyers regarded it as settled law.19
President Lincoln was refering to Legislative confirmation.
I'll close this discussion by quoting two more founding fathers. I find these to be particularly fitting summaries of the mind and intent of those who both fought for our freedom from tyranny and who constructed the most successful republic in history.
Patrick Henry is probably most famous in the secular world for his cry of "Give me liberty, or give me death!" He was a member of the Continental Congress and five-term Governor of Virginia. George Washington offered Henry the positions of Secretary of State and First Chief Justice of the Supreme Court, both of which he turned down. Henry was largely responsible for the adoption of the Bill of Rights, including the First Amendment. He believed:
It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ! For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.20
John Quincy Adams, Secretary of State under James Monroe and sixth President of the United States, said:
The highest glory of the American Revolution was this: it connected, in one dissoluble bond, the principles of civil government with the principles of Christianity.21
This important part of our history is no longer taught in the public school system, nor seemingly acknowledged by our courts.
Barton, David. The Myth of Separation. Wallbuilder Press, Aledo, TX. 1991
Barton, David. America: To Pray or Not To Pray. Wallbuilder Press, Aledo, TX. 1991
Encyclopaedia Britannica, 15th Edition. Encyclopaedia Britannica, Inc., Chicago, IL. 1980-1993 (including Year Books)
Foster, Marshall, and Mary-Elaine Swanson. The American Covenant: The Untold Story. Mayflower Institute, Medford, OR. 1983
Grant, George. Trial and Error: The American Civil Liberties Union and Its Impact on Your Family. Wolgemuth & Hyatt, Brentwood, TN. 1989
Millard, Catherine. The Rewriting of America's History. Horizon House, Camp Hill, PA. 1991
Smith, Edward Conrad, editor. The Constitution of the United States with Case Summaries. Barnes & Noble, New York, NY. 1972
1Thomas Jefferson, Jefferson Writings, Merrill D. Peterson, ed., Literary Classics of the United States, Inc., NY, 1984, p. 510
2John Eidsmoe, Christianity and the Constitution, Baker Book House, Michigan, 1987, P. 243
3Ibid, p. 242-243
4Reynolds v. U.S.; 98 U.S. 145 (1878)
5Everson v. Board of Education; 330 U.S. 1 (1947)
6George Washington, The Writings of Washington, John C. Fitzpatrick, ed., U.S. Government Printing Office, Wash DC, 1932, Vol XV, p. 55
7John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, ed., Little, Brown, Boston, 1854, Vol IX, p. 229
8Supra note 1 at Query XVIII, p. 289
9Supra note 5
10Engel v. Vitale; 370 U.S. 421 (1962)
11Ibid, 421, 422
13Ibid, 421, 430, 425
15Henry Halley, Halley's Bible Handbook, Zondervan, Grand Rapids, MI, 1927, 1965, p. 18
16Adams Family Correspondence, L. H. Butterfield, ed., Belknap Press, Cambridge, MA, 1963, Vol. I, p. 323
17Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, ed., Thomas Jefferson Memorial Association, Wash., DC, 1904, Vol XI, pp. 50-51
18Dred Scott v. Sanford; 60 U.S. 393 (1857)
19J. G. Holland, The Life of Abraham Lincoln, Springfield, MA, p. 175
20Steve C. Dawson, God's Providence in America's History, Rancho Cordova, CA, 1988, p. I:5
21J. Wingate Thornton, The Pulpit of the American Revolution, 1860 (reprinted by Burt Franklin, NY, 1970), p. XXIX