Roman Around

combating liberalism and other childish notions


Posted by Andrew Roman on August 9, 2009

Establishment Clause

Since posting my piece First Amendmant Musings” on Thursday, I’ve received some marvelously thoughtful e-mails and commentary. Thanks so much to everyone. (Please feel free to post your thoughts publicly on the blog.  E-mails are nice, but I do not post comments that come via e-mail). I especially wish to thank Doug Indeap who posted a most attentive, reasoned and well-written response. (Please read it).

My fear in posting the original article was that the discussion might evolve into yet another argument about the existence of God. While it is, indeed, a discussion I revel in engaging in (for what is more profound than contemplating the existence of God?), it was not the point of “First Amendment Musings,” nor did I wish it to be. Rather, I wanted to make the historical case for religiosity being an accepted (some would say necessary) influence and component to an effectively functioning – yes, secular –  government. The irony is, it is the secular nature of the Constitution enables the United States to continue to be the most religious nation  in the free world. I submit that The Establishment Clause of the First Amendment, as written and understood by the Framers of the Constitution, simply does not require, nor call for, religion to be sequestered from government function.

In today’s era of ever-expanding federal government – and the slow correlative corrosion of personal liberties – the “separation of church and state” debate isn’t simply a matter of making a definitional distinction between that which is considered the “public square” and that which falls under the awning of “government.”

For one, government has become more and more intrusive in the lives of Americans over the course of time. Thus, those elements that have historically been outside the realm of government control have shifted – and continue to shift – into their ever-annexing clutches (health care, the automobile industry, the banking industry). The idea that religion – specifically the free exercise thereof – is somehow immune from the metastasizing influence of the federal government is naive. The Supreme Court already has twisted the Establishment Clause far from the Framers’ intent – from validating the so-called erection of the Jeffersonian wall separating government and religion, to the removal of prayer in public schools, to the ongoing battles to make the Pledge of Allegiance (with its reference to God) unconstitutional.

Second, the concept of separating “church and state” – a phrase I find particularly obnoxious – has evolved disjointedly into an unfounded belief that the banishing of all things religious from public settings, such as city parks, town squares, government buildings and city streets is (or can be found to be) constitutionally sound.

“Separationists” and sympathetic organizations (such as the ACLU and the Freedom From Religion Foundation) allege that the Establishment Clause of the First Amendment is being violated when, for instance, a nativity scene is put up on the grounds of a city hall; or when students participate in Easter plays at school; or when the tablets displaying the Ten Commandments are visible at a county court house; or when public prayers are conducted at high school football games. Indeed, each year, stories from across the country tell of “offended” people who demand that Christmas lights be taken down from the neighborhood playground, or that decorations along streets be removed because of some phantom violation of the Establishment Clause.

These are things that are happening regularly in this country – and they are entirely inconsistent with the Founders’ understanding of religion, its role in society, and their vision of keeping the federal government from meddling with religious liberties.

It isn’t clear exactly how such aforementioned activities translate into a Congressional establishment of religion or an infringement of the free exercise thereof, but clearly, a century and a half of pre-Hugo Black originalist interpretations of the First Amendment didn’t prevent ardent “separationists” from pursuing their “separation of church and state” agendas.

And that is really what sits at the heart of this entire discussion – the fallacious “separation of church and state” arguments, all based on one misinterpreted private letter written by one man who wasn’t even in the country when the content of the First Amendment was originally debated and created.

Justice Hugo Black

Justice Hugo Black

The idea of such a thing – a constitutionally judicious argument for the “separation of church and state” based on a phrase pilfered from a Thomas Jefferson letter – is a concocted notion that has been nurtured and normalized thanks in part to the Supreme Court’s “incorporation” of the Establishment Clause in the 1947 Everson vs Board of Education case – that is, the Supreme Court’s application of the Establishment Clause directly to the states through the Due Process Clause of the Fourteenth Amendment. As originally intended and applied by those who wrote the First Amendment, the modern view of the Establishment Clause – born with that case – is almost unrecognizable.

Whereas the Establishment Clause was originally designed to protect the states, Everson vs Board of Education effectively took power away from the sovereign states – and thus delivered a blow to federalism itself. In other words, all federal “church and state” cases were to be exercised against state laws.

Justice Hugo Black, writing for a 5-4 majority, adopted the position that government shall not be touched by or tainted by religion in any way, nor will the business of government be conducted under its influence. In using the Fourteenth Amendment’s Due Process Clause to apply the Establishment Clause to the states, the Founders’ original intent was forever altered.

Black wrote:

“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.”

Even if one subscribes to the idea of the First Amendment erecting a wall between church and state, the notion that the wall is to be “impregnable” is spun from whole cloth, without an iota of corroborating history or tradition.

The Framers wanted to make certain that the new federal government did not infringe on the growing religious freedom and tolerance taking root across much of the young nation. Despite popular modern day rhetoric to the contrary, they did not wish to ensure that religion was without influence on government at all costs. In truth, there is much from the era of the founding that indicates that the vast majority of Framers supported religion because it helped to foster a more virtuous population, something that was deemed crucial for a free society to function successfully.

Take, for instance, the Northwest Ordinance of 1787, reenacted by the First Congress:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.

Former Chief Justice William Rehnquist, in the 1985 case Wallace v Jaffree, argued:

The Establishment Clause did not require government neutrality between religion and irreleigion, nor did it prohibit the Federal Government from providing nondiscriminitory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build a “wall of separation’ that was constitutionalized in Everson.

Indeed, the nation’s founding document, the Declaration of Independence, proclaimed that there existed one law for all men, the Law of our Creator – the Natural Law on which the Founders built this nation. As talk show host and constitutional attorney Mark Levin writes in his book Liberty and Tyranny:

In 1776, when representatives of the colonies signed the Declaration, they did so for the first time as representatives of states and as part of a loose confederation. The designation of the colonies as states did not erase the long histories and traditions of the former colonies. Many continued to promote religion with taxes and land grants. Some states required officials to affirm their allegiance to a particular religion or religious sect by way of an oath, although this practice was dropped a few decades after the founding. And some states continued to discriminate against certain religions. But when they bound themselves to the Declaration’s principles, they bound themselves to, among other things, religious liberty. It is little understood that the Declaration was a declaration of political and religious liberty.

The Declaration’s most famous passage reads:

We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the pursuit of Happiness.

While the Declaration of Independence is not the law of the land, it is quintessential in understanding and establishing the foundation of principles on which the United States of America was constructed. And because any and all discussions of the Constitution (adopted eleven years after the Declaration), and the amendments that comprise the Bill of Rights (added four years after that), can only be properly scrutinized if the intent of the Founders is taken into consideration, the Declaration of Independence, with its “firm reliance on the protection of Divine Providence,” is critical to that task.

The Founders’ believed that rights could not be bestowed by men upon other men – and thus they could not be taken away by other men; these rights, they affirmed, can only come from God.

Thus, in crafting the Constitution, the Framers were very specific in the words they chose.

It is in their meaning of the words that the interpretation of the Constitution is best rooted.

James Madison said:

Father of the Constitution, James Madison

Father of the Constitution, James Madison

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shapes and attributes of the Government must partake of the changes to which the words and phrases of all living languages are constantly subject.

What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense. And that the language of our Constitution is already undergoing interpretations unknown to its founders, will I believe appear to all unbiased Enquirers into the history of its origin and adoption.


Indeed, the majority of the Framers were opposed to the establishment a national church for fear that it would threaten the free exercise of religion and take away powers rightfully assigned to the sovereign states.

That is the key – and it is most relevant.

Interestingly enough, the Establishment Clause actually served to protect established state churches in Massachusetts, Connecticut, New Hampshire, Georgia, South Carolina and Maryland at the time of the adoption of the Bill of Rights.

Antithetical to today’s conventional wisdom, the men of that generation thought it perfectly acceptable for religion to play an influential role on how government conducted itself.

As Michael Medved writes in his book The 10 Big Lies About America:

In his first inaugural address George Washington declared his ‘first official act” his “fervent supplications to that Almighty Being who rules over the universe” that He might bless the new government.

In his farewell address, President Washington said, “And let us with caution indulge the supposition that morality can be maintained without religion.”

Former Attorney General Edwin Meese writes, “There is nothing in the drafting history of the First Amendment that contradicts Washington’s understanding of the appropriate relationship between government and religion.”

In his book The Heritage Guide to the Constitution, Meese details the evolution of the Establishment Clause:

In the First Congress, the committee proposal in the House read, “no religion shall be established by law, nor shall the equal rights of conscience be infringed.” But some evinced concern that the phrase might put in doubt the legitimacy of some of the states’ own religious establishments.

James Madison believed modifying the phrasing to prohibit a “national religion” would be sufficient to allay that concern and would make clear that the new government was not to impinge on the rights of conscience by establishing a governmental connection to a church.

Representative Samuel Livermore of New Hampshire suggested that “Congress shall make no laws touching religion or the rights of conscience.”

The House finally settled on this language: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.”

The Senate preferred the formula “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion,” which likely would have permitted direct financial support to a sect.

In the end, the conference between the House and the Senate agreed on the current version: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The addition of the word “respecting” is significant.

It prohibits Congress from legislating either to establish a national religion or to disestablish a state religion.

Meese goes on to quote Laurence Tribe, constitutional law professor at Harvard – considered one of the foremost constitutional scholars in the country – who wrote, “A growing body of evidence suggests that the Framers principally intended the Establishment of Religion Clause to perform two functions: to protect state religious establishments from national displacement, and to prevent the national government from aiding some, but not all, religions.”

The unrelenting separationists of today, with the help of mass media, the entertainment industry, and the post-Hugo Black thinkocracy, have harvested such influence and power in the culture – beyond the basic intention of keeping government religion-free – that religion is increasingly perceived as best removed altogether from public influence. Such thinking would have been implausible to the founding generation – even Ben Franklin and Thomas Jefferson. The idea that Christian services actually took place in the Capitol Building at one time – and attended regularly by such “deists” as Thomas Jefferson – would probably surprise a great deal of people. That many of the men who participated in drafting the First Amendment also attended these religious services in the federal Capitol Building is, too, deliciously ironic.

Michael Medved writes:

In Ten Tortured Words, an invaluable book on the Establishment Clause, Stephen Mansfield writes: “For all of that generation, the understanding was certain that the states were permitted to establish religion or support religion as aggressively as the people allowed.” President Jefferson explicitly shared that viewpoint, expressed in a public address of March 1805: “In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general [federal] government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it, but have left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies.”

Sadly, it has become increasingly acceptable over the course of the last half-century to view religion as a largely private matter meant to yield minimal impact on the culture at large. For many, that’s what the Establishment Clause of the First Amendment has come to mean. Even the City of Los Angeles, under pressure from fervent separationists, acquiesced to their demands and removed a cross from its city seal, despite the fact that religion played a major role in the city’s founding. (“City of Angels”).

If, for instance, public schools allot a minute each morning for students to pray if they so choose, how exactly is that inconsistent with the First Amendment? Has the federal government mandated that the student is required to believe in God? Has a theocracy been established? Has the student been required to change his religious affiliation (if he has any), or even pray at all?

Of course not.

The fact that such actions offend some or make others feel unsettled may be unfortunate, but it is irrelevant to the constitutionality of those actions in regard to the Establishment Clause. If being offended was a sound criterion for prohibiting an action, the entire constitution could be found unconstitutional. The fact is, people are offended all the time by government actions. That does not make the action unconstitutional.

The Framers made sure that the Constitution created a secular federal government with limited powers and very specific restrictions –  including prohibiting the creation of a national religion. Time has seen the Framers’ intent turned into what is now a seemingly natural and obvious antagonism between religion and government.

It is a sad reality with no historical basis.



  1. euandus said

    I suspect that the latest compromise regarding state banking regulation points to the influence of large corporations on the Congress as a culprit in the on-going eclipse of federalism. Pls see my blog if interested. Thanks.

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