This test could provide workable guidance to the lower courts, if ever, only by using little more than intuition and a tape measure. “It would be appalling to conduct litigation under the Establishment Clause as if it were a trademark case, with witnesses testifying they were offended but would have been less so were the crèche five feet closer to the jumbo candy cane.” This Court is ill-equipped to sit as a national theology board, and I question both the wisdom and the constitutionality of its doing so. The Court’s decision repudiated both historical precedent and even its own recent case law. It also provided the Court another opportunity to continue its rewriting of the purpose of the First Amendment. Hence, the Court declared:
The Constitution mandates that the government remain secular. Obviously, the Founding Fathers disagreed. Notice:
Has it government any solid foundation? Any chief cornerstone? I think it has an everlasting foundation in the unchangeable will of God. The sum of my argument is that civil government is of God. James Otis
The only true basis of all government is the laws of God and nature. For government is an ordinance of Heaven, designed by the all benevolent Creator. Samuel Adams
We will look for the permanency and stability of our new government to Him who bringeth princes to nothing and teacheth senators wisdom. John Hart, Signer of Declaration
The rights essential to happiness. We claim them from a higher source from the King of kings and Lord of all the earth. John Dickinson, Signer of the Constitution; Governor of Pennsylvania
Whatsoever State among us shall continue to make piety respect for God and virtue the standard of public honor will enjoy the greatest inward peace, the greatest national happiness, and in every outward conflict will discover the greatest constitutional strength. John Witherspoon, Signer of the Declaration
The Declaration of Independence first organized the social compact on the foundation of the Redeemer’s mission upon earth and laid the cornerstone of human government upon the first precepts of Christianity. John Quincy Adams
The Christian religion its general principles must ever be regarded among us as the foundation of civil society. Daniel Webster
True religion always enlarges the heart and strengthens the social tie. John Witherspoon
Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe. James Madison
The study and practice of law does not dissolve the obligations of morality or of religion. John Adams
I have always considered Christianity as the strong ground of republicanism. It is only necessary for republicanism to ally itself to the Christian religion to overturn all the corrupted political and religious institutions in the world. Benjamin Rush, Signer of the Declaration
The religion which has introduced civil liberty is the religion of Christ and his apostles and to this we owe our free constitutions of government. Noah Webster
National prosperity can neither be attained nor preserved without the favor of Providence. John Jay, Original Chief Justice U.S. Supreme Court
As guardians of the prosperity, liberty, and morals of the State, we are therefore bound by every injunction of patriotism and wisdom to patronize public improvements and to cherish all institutions for the diffusion of religious knowledge and for the promotion of virtue and piety. Daniel Tompkins, Governor of New York; Vice President of the United States
Nowhere can it be demonstrated that the Founders desired to secularize official society and “create a complete separation of the spheres of religious activity and civil authority.” The Abington decision represented a further step in the devolution of the First Amendment by rewriting the intent of those who created the Constitution and Bill of Rights. Walz v. Tax Commission of the City of New York, 1970
Rather than any direct issue of religious expression, this case addressed the constitutionality of tax exemptions for churches. Ironically, the Court began by congratulating itself:
Congress clearly intended that “the mail must go through!” Since Kirby and the three with him had confessed to interfering with the mail-carrier, they should be punished; however, there was more. It turned out that:
Two indictments were found by the grand jury of the county against the said Farris the mail-carrier for murder and placed in the hands of Kirby the sheriff commanding him to arrest the said Farris and bring him before the court to answer the indictments; that in obedience to these warrants Kirby arrested Farris, and was accompanied by other defendants as a posse, who were lawfully summoned to assist him in effecting the arrest. By arresting Farris, the mail-carrier, Sheriff Kirby and his posse had indeed interfered with the delivery of the mail. But was the law intended to keep a Sheriff from arresting a mail-carrier charged with murder? The Court recognized that although his actions violated the letter of the law, they did not violate its intent. The Court thus noted:
All laws should receive a sensible construction. General terms should be as limited in their application as not to lead to injustice, oppression, or an absurd consequence. The reason of the law in such cases should prevail over its letter.
That same Court provided some additional examples to buttress its point:
The common sense of man approves the judgment mentioned by Puffendorf a Christian philosopher quoted by numerous Founders that the law which enacted “that whoever drew blood in the streets should be punished with the utmost severity” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire “for he is not to be hanged because he would not stay to be burnt.” And we think that a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder. The Holy Trinity Court cited thirteen similar cases and then concluded by declaring emphatically that the spirit of a law should always prevail over its letter:
Those documents completely disprove the notion that any founding President, especially Washington, ever declared that America was not a Christian nation or people. Chapter 16 will provide numerous additional current examples of historical revisionism. Consider next the quote attributed to Thomas Paine:
“I disbelieve all holy men and holy books.” Is the accuracy of this quote any better than the previous ones imputed to Adams and Washington? In this case, the answer is probably yes that is, while we were unable to locate this specific statement by Paine, it is certainly of a tone similar to several others he made in his Age of Reason and other writings which attacked religion generally and Christianity specifically. However, the real story is not the accuracy of Paine’s quote, but rather how the other Founders reacted to Paine’s declarations. Consider first Benjamin Franklin’s response. Paine sent a copy of his thoughts on religion to Franklin, seeking his response.
Notice Franklin’s strong and succinct reply, and keep in mind that those on all sides of the religion question would concede Franklin to be one of the least religious Founders:
I have read your manuscript with some attention. By the argument it contains against a particular Providence, though you allow a general Providence, you strike at the foundations of all religion. For without the belief of a Providence that takes cognizance of, guards, and guides, and may favor particular persons, there is no motive to worship a Deity, to fear His displeasure, or to pray for His protection. I will not enter into any discussion of your principles, though you seem to desire it. At present I shall only give you my opinion that the consequence of printing this piece will be a great deal of odium hate drawn upon yourself, mischief to you, and no benefit to others. He that spits into the wind spits in his own face.
But were you to succeed, do you imagine any good would be done by it? Think how great a portion of mankind consists of weak and ignorant men and women and of inexperienced, inconsiderate youth of both sexes who have need of the motives of religion to restrain them from vice, to support their virtue. I would advise you, therefore, not to attempt unchaining the tiger, but to burn this piece before it is seen by any other person. If men are so wicked with religion, what would they be if without it.
Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of providential agency. We ought to be no less persuaded that the propitious favorable smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained.
Following his address, the Annals of Congress reported that: The President, the Vice President, the Senate, and House of Representatives, &c., then proceeded to St. Paul’s Chapel, where Divine service was performed by the chaplain of Congress. Several months later, Congress contemplated whether it should request the President to declare a national day of thanksgiving. The Annals of Congress for September 25, 1789, record those discussions: Mr. Elias Boudi not said he could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice in returning to Almighty God their sincere thanks for the many blessings He had poured down upon them. With this view, therefore, he would move the following resolution:
Resolved, that a joint committee of both Houses be directed to wait upon the President of the United States to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness. Mr. Roger Sherman justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself but as warranted by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon after the building of the temple was a case in point.
This example he thought worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution. Mr. Boudi not quoted further precedents from the practice of the late Congress and hoped the motion would meet a ready acquiescence approval. The question was now put on the resolution and it was carried in the affirmative. Strikingly, this request from Congress to the President was made the same day that Congress approved the final wording of the First Amendment. This clearly demonstrates that the same body which framed that Amendment did not believe that it was a violation for Congress to call for a national religious time of Thanksgiving. The Congressional resolution was delivered to President Washington who heartily concurred with its request. On October 3, 1789, he issued the following proclamation:
Only three days later, Paul Revere, William Dawes, and Samuel Prescott made their famous ride; and the next morning, April 19, the British began their march against Lexington and Concord which resulted in the “shot heard ‘round the world.’ ” The following day, British troops commenced military action In Virginia, seizing both public supplies and the Colonists’ gunpowder stored in Williamsburg. Patrick Henry, unwilling to allow the British action to go unchecked, gathered the local militia, and on May 2 addressed them in an impassioned speech which inflamed their patriotism by calling up before them the fields of Lexington and Concord still warm with the blood of their brethren; he showed them that the object of the British ministry was to render the colonies powerless by seizing their military stores; that the late plunder of the magazine at Williamsburg was only part of the general system of warfare that the moment had come when they must decide whether they would assert their freedom or basely submit to be slaves.
He reminded them of the pillar of cloud and the pillar of fire which guided the children of Israel; of the water gushing from the rock at Horeb; of the miraculous passage of the Red Sea, and then, with his eye uplifted, his arms aloft, and his whole soul burning with inspiration, declared that he same God still ruled in the heavens; that he was watching from his throne the oppressions of His people in America and that He was still strong to deliver and mighty to save. When word of the skirmishes in Massachusetts and Virginia reached Connecticut, the General Assembly secretly instructed Colonel Ethan Allen to enlist a group of men to disable Ticonderoga, a British stronghold in New York.
Late in the evening on May 9, 1775, Allen and his Green Mountain Boys approached the unsuspecting garrison, quietly capturing the sentries and securing the barracks of sleeping British soldiers. Allen then pushed on to camp headquarters and roused the commandant, Captain De La Place.
Allen himself described what next occurred: The Captain came immediately to the door with his small clothes in his hand when I ordered him to deliver to me the fort, instantly. He asked me by what authority I demanded it. I answered him “In the name of the Great Jehovah and the Continental Congress.” The fort was then handed over to Allen without the loss of a single life. On June 12, Congress declared a day of prayer and fasting, 84 of which John Adams told his wife Abigail: We have appointed a continental fast. Millions will be upon their knees at once before their great Creator, imploring his forgiveness and blessing; his smiles on American councils and arms. On June 29, John Witherspoon soon to become a signer of the Declaration of Independence and a group of ministers in New York and Pennsylvania issued this admonition to American patriots:
The “Fundamental Orders” explained why that document had been created: Well knowing when a people are gathered together, the word of God requires that to maintain the peace and union of such a people, there should be an orderly and decent government established according to God. 18 That constitution next declared the colonists’ desire to: Enter into combination and confederation together to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus which we now profess which, according to the truth of the said Gospel, is now practiced amongst us.
Later that year 1639, when the colonists of Exeter, New Hampshire, established a government, that document similarly declared: Considering with ourselves the holy will of God, and our own necessity that we should not live without wholesome laws and civil government among us, of which we are altogether destitute; do in the name of Christ and in the sight of God combine ourselves together to erect and set up among us such government as shall be to our best discerning agreeable to the will of God.
In 1643, the colonies of Massachusetts, Connecticut, New Plymouth, and New Haven joined together to form the New England Confederation America’s first “united” government. These colonies banded together because, as that document explained, each had similar goals: We all came into these parts of America with one and the same end and aim, namely to advance the kingdom of our Lord Jesus Christ. In 1669, John Locke assisted in the drafting of the Carolina constitution under which no man could be a citizen unless he acknowledged God, was a member of a church, and used no “reproachful, reviling, or abusive language” against any religion.
When Quaker minister William Penn established the 1682 “Frame of Government of Pennsylvania,” he prefaced the document with a lengthy exegesis of the spiritual and Biblical nature of civil government, chronicling its general progress and referring to numerous Scripture references. Penn’s introduction is recommended as excellent supplementary reading.
In New York the universal toleration of all religious professions and sentiments is secured in the most ample manner. Notwithstanding this constitutional declaration carrying the doctrine of unlimited toleration as far as the peace and safety of any community will allow, the courts have decided that blasphemy was a crime at common law and was not abrogated by the constitution. The court finally addressed the arguments of “freedom of the press” and emphasized the responsibility which limited that freedom:
According to the argument every act, however injurious or criminal which can be committed by the use of language, may be committed if such language is printed. Not only therefore would the article in question become a general license for scandal, calumny slander and falsehood, all other crimes however atrocious, if conveyed in printed language, would be dispunishable. The Founders never intended the unlimited, unrestrained, and often unconscionable “freedom of the press” practiced today. In fact, Thomas Jefferson had declared:
While we deny that the federal Congress have a right to control the freedom of the press, we have ever asserted the right of the States, and their exclusive right, to do so. While many civil libertarians today cringe at the thought of “controlling” the press, the controls were actually those which common sense and reason dictated, and all were rooted within the concept of responsibility in fact, responsibility and the duty of stewardship is intrinsic to the preservation of every liberty.
Concerning the balance between the freedom of the press and the responsibility of the press, printer and publisher Benjamin Franklin explained: If by the liberty of the press were understood merely the liberty of discussing the propriety of public measures and political opinions, let us have as much of it as you please; but if it means the liberty of affronting, calumniating falsely accusing, and defaming one another, I, for my part am willing to part with my share of it whenever our legislators shall please so to alter the law, and shall cheerfully consent to exchange my liberty of abusing others for the privilege of not being abused myself. QV96686234S8
For example, when Ohio territory applied for statehood in 1802, its enabling act required that Ohio form its government in a manner “not repugnant to the Ordinance.” Consequently, the Ohio constitution declared: Religion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision. While this requirement originally applied to all the territorial holdings of the United States in 1789 the Northwest Territory Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota, as more territory was gradually ceded to the United States the Southern Territory Mississippi and Alabama, Congress applied the requirements of the Ordinance to that new territory.
Therefore, when Mississippi applied for statehood in 1817, Congress required that it form its government in a manner “not repugnant to the principles of the Ordinance.” Hence, the Mississippi constitution declared: Religion, morality, and knowledge, being necessary to good government, the preservation of liberty and the happiness of mankind, schools and the means of education shall be forever encouraged in this State.
Congress later extended the same requirements to the Missouri Territory Missouri and Arkansas and then on to subsequent territories. Consequently, the provision coupling religion and schools continued to appear in State constitutions for decades. For example, the 1858 Kansas constitution required: Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to make suitable provisions for the encouragement of schools and the means of instruction.
Similarly, the 1875 Nebraska constitution required: Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to pass suitable laws to encourage schools and the means of instruction.
Numerous other territorial papers and State constitutions past and present make it clear that the Founding Fathers never intended to separate religious instruction or religious activities from the public or official life of America. Yet today the Courts have misinterpreted the First Amendment and Article VI to prohibit exactly what the Founders intended to protect. The dilemma outlined in this chapter was succinctly described by Justice William Rehnquist in Wallace v. Jaffree: History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the First Amendment.
The North Carolina constitution similarly prohibited from office those who denied “the truth of the Protestant religion” or who held “religious principles incompatible with the freedom and safety of the State.” However, as already noted, this was not a rejection of Roman Catholics in general, just of those who embraced doctrines “subversive of a free government established by the people.” In fact, when the people of North Carolina later amended their constitution, they maintained the clause excluding from office those who held “religious principles incompatible with the freedom and safety of the State,” but they changed “Protestant” to “Christian,” thus acknowledging that many American Catholics did not embrace this doctrine.
However, returning to the issue of religion in the federal Constitution, the first ten amendments were enacted solely to limit the jurisdiction of the federal government. Furthermore, it was acknowledged that the States had the legitimate power to prescribe State religious establishments. Therefore, the sole purpose of the First Amendment was to prevent the federal government from usurping this specific State power. Strikingly, however, although the States reserved this power, none of the State constitutions from the time of the American Revolution or thereafter established any single State denomination; most provided equal protection for all.
For example, in the framing of the Massachusetts constitution, John Adams explained that “the debates were managed by persons of various denominations” and that the “delegates did not conceive themselves to be vested with power to set up one denomination of Christians above another.” Numerous other States enacted similar provisions. Notice and every denomination of Christians shall be equally under the protection of the law: and no subordination of any one sector denomination to another shall ever be established by law.
There shall be no establishment of any one religious sect in preference to another.
There shall be no establishment of any one religious church or denomination in this State in preference to any other.
And each and every society or denomination of Christians in this State shall have and enjoy the same and equal powers, rights, and privileges.
Summarizing this tone, in 1793, Zephaniah Swift author of America’s first law textbook explained: Christians of different denominations ought to consider that the law knows no distinction among them; that they are all established upon the broad basis of equal liberty, that they have a right to think, speak, and worship as they please, and that no sect has power to injure and oppress another. When they reflect that they are equally under the protection of the law, all will revere and love the constitution, and feel interested in the support of the government. No denomination can pride themselves in the enjoyment of superior and exclusive powers and immunities.