Roman Around

combating liberalism and other childish notions

FIRST AMENDMENT MUSINGS

Posted by Andrew Roman on August 6, 2009

first amendment

<Isn't it amazing what a work-out our First Amendment gets? Three commas, two semi-colons and a single period help to separate and punctuate the forty-five words that comprise it. Of those forty-five, none seem to foster such cultural disconnect from the Founder’s intent nearly as much as the first sixteen do. Plain, unambiguous and rock-solid as they appear to be to a two-dimensional originalist like myself, the “big sixteen” are apparently far more malleable than I’d ever realized, laden with nuance and intricacies that even the Founding Fathers were too short-sighted to recognize.

Having been through the first sixteen words of the first amendment hundreds of times, I’ve often wondered if I might ever see what others see in them. I’ve speculated that if I perhaps read carefully enough and concentrate intently, I might unearth something buried within, perhaps discovering something masterfully woven into the text I hadn’t seen before. Unfortunately, I can’t seem to crack that elusive third dimension and continue to come up with nothing other than what the Founders wrote:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Simpleton that I am, I find nothing indistinct. To me, the phrase “establishment of religion” means designating one specific faith as the official religion of the land and calling it something like the “Church of the United States.”

Fortunately, this will never come to pass, nor could it.

All of this seems fairly straightforward, yet “the big sixteen” have inexplicably been twisted by those charged with interpreting and caring for them into somehow meaning that no religious designation of any kind shall be acknowledged, referenced, mentioned or disseminated in any place considered a public setting or forum within the United States, lest it be considered to have been “established” by the federal government. I look across this great country – from Los Angeles, California to rural Kentucky – and see a sad and frightening trend. I see a religious heritage being stripped and banished from the public square by those who have managed to discover things in those sixteen words that simply aren’t there, reinterpreting them to the point where they are actually abolishing the “free exercise thereof.”

A palpable question is: Since when is displaying a religious symbol or acknowledging a religion publicly the same as establishing a religion?

First, the obvious point … that one sentence in a private letter from Thomas Jefferson to a Connecticut religious group should, nearly a century-and-a-half after the fact, be the unembellished foundation for the trite, belabored, utilitarian argument for a “wall of separation between church and state” is laughable.

Of course, Jefferson was a slave-holder, so his credibility takes an immediate hit on any issues inconsistent with modern liberalism.

Jefferson’s one-time use of the term in a personal letter was actually written as an attempt at finding common ground with the Baptist community, of which he was not a member. In hoping to ease their concerns, and responding to spreading rumors that a national religion was close to being established (the Congregationalists), Jefferson chose to employ the language and style spoken by Roger Williams, a well-known Baptist preacher, to make his point. Williams had said:

“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.”

Jefferson thus wrote:

“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.”

Second, and most important, even if people like Jefferson, James Madison and George Washington were not openly religious people and did not wear their faith on their sleeves (whatever that faith may have been), it only lends more strength and credence to the countless writings put forth by almost all of the Founding Fathers that without religion and God in everyday life, virtue and morality cannot exist. For instance if, for the sake of argument, Jefferson was an openly acknowledged agnostic (and he certainly wasn’t), the First Amendment is even that much more relevant and the vision and wisdom of the Founding Fathers that much more obvious.

It isn’t. That’s the dirty little secret. I know these sorts of things tend to frighten clacking yackers of modern liberalism – more so than, say, the threat of Islamo-fascist terrorism – but they needn’t worry.
Melting glaciers, second-hand smoke and fatty cooking oil will devastate the planet before Sarah Palin, Rush Limbaugh and the Illuminati are afforded the opportunity to successfully institute a federally mandated religion.

It’ll be close, though.

JeffersonThe oft-alluded to “separation of church and state” clause exists nowhere in the federal Constitution. (This should be a booming “well, duh” factoid by now). Thomas Jefferson’s use of the term in a personal letter to the Danbury Baptist Association of Connecticut in 1802 – eleven years after the Bill of Rights was ratified – and regularly cited by modern secularists and anti-constitutionalists (a phrase coined by talk-show host Mark Levin, I believe) as the smoking gun to the Founding Fathers’ endorsement of removing God from the public square, was actually written by Jefferson as an attempt at finding common ground with the Baptist community, of which he was not a member.

Jefferson’s well-selected – and appropriate – words were meant as an assurance to the Danbury Baptists that there would never be an officially state-sanctioned religion for the United States of America.

So then, what exactly do the first sixteen words of the first amendment – the “big sixteen” – really mean?

James Madison, the “Father of the Constitution,” said that the first amendment was worded as it was because “the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform.” 

Note the word “sect.” It helps to illustrate a dirty little secret that may come as a surprise to the enlightened. The vast majority of the American population at the time of the founding was not only religious but also Christian. (There, I said it!) And comprising that overwhelming majority were many different Christian denominations – or “sects.” Thus, as Supreme Court Justice Joseph Story, one of the founders of Harvard Law School and considered “the foremost of American legal writers,” wrote:

“The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects [denominations] and to prevent any national ecclesiastical patronage of the national government.”

The Founders, in writing the establishment clause, were actually prohibiting the exclusivity of one Christian sect from becoming the national sect – not keeping religion altogether out of the public square. Read the words of North Carolina Governor Johnston during his state’s convention to discuss ratification of the Constitution. It lends wonderful insight into the national mindset regarding the ratification debate. He said:

“The people of Massachusetts and Connecticut are mostly Presbyterians. In every other state, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”

Quite obviously, there was never an intention to remove God from public view – only the desire to keep God in plain view without having to fear any sort of reprisal from the government.

Justice Joseph Story also wrote:

“We are not to attribute this prohibition of a national religious establishment [in the First Amendment] to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence than the framers of the Constitution).”

Despite this, in 1947’s landmark case Everson v. Board of Education, the First Amendment was treated to a new, restrictive interpretation, reviving and subjecting the “separation of church and state” syntax to a twentieth century makeover. Thanks to Justice Hugo Black, the following words essentially paved the way for all subsequent restrictions placed on public religiosity.

Wrote Black:

“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.”

I don’t even own a black robe, and I am saying categorically that he could not have been more wrong.

bill of rightsThe First Amendment “erects” nothing. Rather, it limits what Congress can do – namely, prohibiting the establishment of a state religion. It also prohibits Congress from restricting the free exercising of one’s religion, whatever it may be.

It’s certainly true that neither Jefferson’s letter to the Danbury Baptists or the writings of Joseph Story constitute law. Nor do the elucidations of John Jay, Alexander Hamilton and James Madison in the Federalist Papers. The Constitution itself – in its succinct brilliance – is indeed the law of the land, and anything else is ultimately fodder for think tanks, opinion columns and debating societies. But to whom else should we turn to help explicate the meaning of the Constitution? To whom should the judiciary turn to in helping to determine the Constitutionality of disputes? Isn’t it invaluable to understand exactly what the founders intended when they composed the Constitution as well as the interpretations of their contemporaries? Aren’t their expositions and thoughts regarding the very document they created (of which there is an enormous wealth available) absolutely crucial to any interpretation of the Constitution? Isn’t it essential to put it all in proper context?

And isn’t it clear that the creators of the Constitution did not ever mean to vanquish religion from public life?
There.

Some research for you.

Can we agree that the old cliché “freedom OF religion is not freedom FROM religion” is entirely consistent with the Founder’s concept of America?
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2 Responses to “FIRST AMENDMENT MUSINGS”

  1. Doug Indeap said

    I enjoyed reading your thoughtful commentary. You’ve plainly done some homework and given it some thought. I think, though, in some respects you’ve fallen into some common misconceptions.

    You complain, for instance, that the First Amendment has been interpreted to mean that “no religious designation of any kind shall be acknowledged, referenced, mentioned or disseminated in any place considered a public setting or forum within the United States.”

    In discussing issues of separation of church and state, it is critical to avoid the all-too-common mistake of conflating the “public square” with “government.” The principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. And in practice, there is plenty of religion out there in the public square; I see and hear of it daily on the street, on the radio, on the TV, on the internet, etc. The First Amendment’s “establishment” clause constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in their classrooms), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is acting in an official or private capacity in any given circumstance can be complex, recognizing the distinction is critical.

    You state it is “laughable” that one sentence in a private letter from Thomas Jefferson should be the foundation for the argument for a “wall of separation between church and state.”
    I suppose we agree on that–in the sense that it’s laughable to suppose that the principle is based only on that letter. For instance, like Jefferson, James Madison, who had a central role in drafting the Constitution and the First Amendment, made plain that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (1817). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that old habits die hard and that tendencies of citizens and politicians could and sometimes did entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he questioned whether these were “consistent with the Constitution, and with the pure principle of religious freedom.” His response: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.” What then, Madison further inquired, should be made of these various actions already taken in the nation’s then “short history” inconsistent with the Constitution? Ever practical, tacitly conceding the infeasibility of reversing these actions at that time, he answered not with a demand that they be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].”

    Next you allude “to the countless writings put forth by almost all of the Founding Fathers that without religion and God in everyday life, virtue and morality cannot exist.”
    Exactly what you would make of this observation, you don’t say. As you observe, some of those who drafted the founding documents professed their belief in a god, some specifically the Christian god. So what? Others among the drafters did not profess, or denied, any such belief. In any event, they drafted a Constitution plainly founding the government on the power of the people (not a deity). In discussing this topic, it is important to distinguish society and government. If, for instance, a founder says he is religious and he would prefer society to be religious too, that doesn’t give us a clue about his intent regarding separation of church and state. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion.
    You observe that the words “separation of church and state” do not appear in the Constitution, noting this “should be a booming ‘well, duh’ factoid by now.”

    The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. The absence of the phrase in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression the words appeared there and later learned of their mistake. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
    You say that “James Madison, the ‘Father of the Constitution,’ said that the first amendment was worded as it was because ‘the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform.'”

    Actually, Madison used those words during the proceedings of the First Congress to describe his understanding not of the First Amendment, but rather of a precursor then under consideration (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”). He proposed adding the term “national,” thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings about the wording and scope of the proposal. Mr. Livermore suggested that it be altered to state “Congress shall make no laws touching religion, or infringing the rights of conscience.” Madison withdrew his motion, and the House then considered and passed Livermore’s motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment. As noted above, in his Detached Memoranda, Madison offered a detailed discussion of his understanding of the First Amendment as actually adopted.

    You take Justice Black to task for his opinion in Everson v. Board of Education. You’ll have to broaden your attack to all nine Justices, since they unanimously agreed on the broad sweep of the First Amendment establishment clause. Indeed, Justice Black was taken to task by the four dissenters for recognizing the intent of the Amendment yet upholding the state’s transporting of students to religious schools.

    Finally, you say: “Can we agree that the old cliché “freedom OF religion is not freedom FROM religion” is entirely consistent with the Founder’s concept of America?”

    Yes and no. Those who equate freedom “of” religion and freedom “from” religion have a valid constitutional point to the extent they refer to freedom from religion promoted or established by government, but not to the extent they refer to freedom from religion practiced and expressed by individuals in public.

  2. [...] Dial on EMASCULATING AUTHORITYMegan on SOMETIMES, REALITY BITESDoug Indeap on FIRST AMENDMENT MUSINGSMurf on GO SNITCH FOR USGO SNITCH FOR US « Roman Around on BAM AND [...]

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