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THE ESTABLISHMENT CLAUSE - Of the Constitution of the United States of America

The Opinions of this article reflect that of the writer and not of the Coweta County Republican Party at large.

Was the Bill of Rights originally intended to apply to state governments? Some people argue that it was. They concoct some interesting arguments based on “rules of construction” or approach it through various philosophies of rights and liberty they attribute to the founders. But there simply exists no founding era evidence that Congress or the state ratifies intended for the protections included in the Bill Of Rights to bind state governments. In fact, doing so would essentially create a federal veto over state laws, a massive expansion of central government authority – the exact opposite of the stated purpose of including a bill of rights. The preamble makes the purpose of the Bill of Rights very clear. It states: Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And extending the ground of public confidence in the Government, will best ensure the beneficent ends of the institution.

James Madison wrote: “Each state, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, ant not a NATIONAL constitution.

Until the early twentieth century, the Bill of Rights was interpreted as applying only to the federal government. In the 1833 case Barron ex rel. Tiernon v. Mayor of Baltimore, the Supreme Court expressly limited applications of the Bill Of Rights to the Federal Government. By the mid-nineteenth century, this view was being challenged. For example, Republicans who were opposed to southern state laws that made it a crime to speak and publish against slavery alleged that such laws violated First Amendment rights regarding freedom of speech and freedom of the press.

For a brief time following the ratification of the Fourteenth Amendment in 1868, it appeared that the Supreme Court might use the Privileges and Immunities Clause of the Fourteenth Amendment to apply the Bill of Rights to the states. However, in the Slaughter-House Cases (1873), the first significant Supreme Court ruling on the Fourteenth Amendment, the Court handed down an extremely limiting interpretation of that clause. The court held that the clause created a distinction between rights associated with state citizenship and rights associated with U.S., or federal citizenship. It concluded that the Fourteenth Amendment prohibited states from passing laws abridging the rights of U.S. citizenship (which it implied were few in number) but had no authority over laws abridging the rights of state citizenship. The effect of this ruling was to put much legislation beyond the review of the Supreme Court.

Instead of applying the Bill of Rights as a whole to the states, as it might have done through the Privileges and Immunities Clause, the Supreme Court has gradually applied selected elements of the first ten amendments to the states through the Due Process Clause of the Fourteenth Amendment. This process, known as selective incorporation, began in earnest in the 1920’s. In Gitlow v. New York (1925), one of earliest examples of the use of the incorporation doctrine, the court held that the First Amendment protection of freedom of speech applied to the states through the Due Process Clause. By the late 1940’s, many civil freedoms, including freedom of the press (Near v. Minnesota, 1931), had been incorporated into the Fourteenth Amendment, as had many of the rights that applied to the defendants in criminal cases, including the right to representation by counsel in capital cases (Powell v. Alabama, 1931). In 1937, the court decided that some of the privileges and immunities of the Bill of Rights were so fundamental that the states were required to abide by them through the Due Process Clause (Palko v. Connecticut).

In 1947, the court rejected an argument that the Fifth Amendment’s rights against self-incrimination applied to the states through the Fourteenth Amendment (Adamson vs. People of the State of California, 1947). However, in one of the most famous dissents in history, Justice Hugo Black argued that the Fourteenth Amendment incorporated all aspects of the Bill of Rights and applied them to the states. In this landmark decision, Everson v. Board of Education (1947), the Supreme Court applied the Establishment Clause of The U.S. Constitution to state law. The Establishment Clause states that Congress shall make no law “respecting an establishment of religion”. The Establishment Clause is the only place in the Constitution where religion is referenced. This clause is generally interpreted to mean three things. 1) That the U.S. Congress may not establish an official religion or denomination and require people to support it or believe in it. 2) The U.S. Congress may not favor in its laws one religion or denomination over another. 3) The U.S. Congress may not favor or disfavor believers or unbelievers in any religion or denomination over any other.

The Everson v. Board of Education case was brought by a New Jersey taxpayer against a tax funded school district that provided reimbursement to parents of both public and private schooled people taking the public transportation system to school. The taxpayer contended that reimbursement given for children attending private religious schools violated the constitutional prohibition against state support of religion, and the taking of taxpayer’s money to do so violated the U.S. Constitution’s Due Process Clause. The Justices were split over the question whether the New Jersey policy constituted support of religion, with the majority concluding these reimbursements were “separate and so indisputably marked off from the religious functions” that they did not violate the Constitution.

The 5-4 decision in this case was handed down on February 10, 1947, and was based upon the writing of James Madison (Memorial and Remonstrance against Religious Assessments) and Thomas Jefferson (Virginia Statute for Religious Freedom). The Court, through Justice Hugo Black, ruled that the state bill was constitutionally permissible because the reimbursements were offered to all students regardless of religion and because the payments were made to parents and not to any religious institution. Perhaps as important as the actual outcome, though, was the interpretation given by the entire Court to the Establishment Clause. It reflected a broad and unconstitutional interpretation of the Clause that was to guide the Court’s decisions for decades to come. Justice Black’s language was sweeping:

The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between Church and State.”

A year after the Everson v. Board of Education decision, Justice Stanley F. Reed denounced the Court’s reliance on the metaphor. “A rule of law,” he protested, “should not be drawn from a figure of speech.” Justice Potter Stewart similarly opined in the first school-prayer case that the Court’s task in resolving complex constitutional controversies “is not responsibly aided by the uncritical invocation of metaphors like the wall of separation, a phrase nowhere to be found in the Constitution.” In a stinging repudiation of the Court’s use of the trope, Justice William Rehnquist offered that the wall “is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”

As used in the United States, the term “Separation of Church and State” originated from a letter Thomas Jefferson wrote in response to a letter he had received from Baptists in Danbury, Connecticut. No metaphor in American letters has had a more profound influence on law and policy than Thomas Jefferson’s “wall of separation between church and state.” Today, this figure of speech is accepted by many Americans as a pithy description of the constitutionally prescribed church-state arrangement, and it has become the sacred icon of a strict separationist dogma that champions a secular polity in which religious influences are systematically and coercively stripped from public life.

Although, today Jefferson’s Danbury letter is thought of as a principled statement on the prudential and constitutional relationship between church and state, it was in fact a political statement written to reassure pious Baptists constituents that Jefferson was indeed a friend of religion and to strike back at the Federalist-Congregationalist establishment in Connecticut for shamelessly vilifying him as an infidel and atheist in the recent campaign. The Danbury Baptists were apparently satisfied. They understood the “wall” to be one-directional, protecting them and other church groups from possible discrimination and harm from a governmental-favored denomination. Nevertheless, Jefferson’s eight word phase, “a wall of separation between church and state,” has become the defining metaphor for today’s interpretation of the First Amendment.

In 1819 Jefferson wrote: “The First Amendment has created a wall of separation between the church and the state. But that wall is one directional. It is to keep the government from running the Church. But it is not to keep Christian principles out of the government.” Jefferson’s wall, as a matter of federalism, was erected between the national and state governments on matters pertaining to religion and not, more generally, between the church and all civil government as created with Justice Black’s “wall of separation.” In other words, Jefferson placed the federal government on one side of his wall and state governments and churches on the other. The wall’s primary function was to delineate the constitutional jurisdictions of the national and state governments, respectively, on religious concerns, such as setting aside days in the public calendar for prayer, fasting and thanksgiving. Evidence for this jurisdictional or structural understanding of the wall can be found in both the texts and the context of the correspondence between Jefferson and the Danbury Baptists Association. You can find the same theme in his Second Inaugural Address, delivered in 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 [i.e. 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 several religious societies.”

In a letter to Rev. Samuel Miller dated January 23, 1808, Jefferson wrote in part: “I have duly received your favor of the 18th and am thankful to you for having written it, because it is more agreeable to prevent than to refuse what I do not think myself authorized to comply with. I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, or religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general [i.e. federal] government. It must then rest with the states, as far as it can be in any human authority. But it is only proposed that I should recommend, not prescribe a day of fasting and prayer.”

This letter shows Jefferson thought the constitutional division between federal and state powers, as well as the First Amendment, prevented him from issuing a proclamation setting aside a day for fasting and thanksgiving. First, the Tenth Amendment reserves to the states all powers not delegated to the federal government. No power whatsoever to regulate religions matters had been delegated to the federal government in Article 1 Section 8 of the Constitution, the Enumerated Powers. Thus, any authority to do so, if authority exists, must rest with the states. The concept expressed in this letter is significant because it contributes to Jefferson’s thoughts on the degree of separation between church and state. As explained in the introduction to the Danbury Baptists letter, the Supreme Court relied heavily on Jefferson’s thoughts regarding this subject in the Everson v. Board of Education decision. In the majority opinion, the Court portrays Jefferson as an absolutist. Although he may have interpreted the constitutional restraints on governmental interference more narrowly than some of his contemporaries, Jefferson was by no means an absolutist. As this letter indicates, Jefferson opposed any federal regulation of religious matters. As to whether he opposed state government regulation of religion is less clear, but his letter does express his understanding that if the authority to regulate religious matters can be placed in the hands of men, it must be done at the state level.

Jefferson argues that the restraints of the First Amendment prevent him from making a national proclamation. Regardless of the issuance of proclamations by his predecessors, Jefferson’s personal feeling is that the Constitution proscribed such activities. Although the proclamation merely suggests to the nation that it pause from its activities to fast and give thanks to the Supreme Being on an appointed day, the activities suggested are specific forms of religious conduct. Jefferson fears public reproach of all who choose not to observe this suggested conduct. Fasting and thanksgiving are religious activities whose purpose and observance should be left to each religious sect.

Jefferson’s refusal, as President, to set aside days in the public calendar for religious observances contrasted with his actions in Virginia where, in the late 1770’s, he framed “A Bill for Appointing Days of Public Fasting and Thanksgiving” and as governor in 1779, designated a day for “public and solemn thanksgiving and prayer to Almighty God.”

How can Jefferson’s public record on religious proclamations in Virginia be reconciled with the stance he took as President of the United States? The answer is found in the principle of federalism. Jefferson firmly believed that the First Amendment, with its metaphoric “wall of separation,” prohibited religious establishments by the federal government only. Addressing the same topic of religious proclamations, Jefferson elsewhere relied on the Tenth Amendment, arguing that because “no power to prescribe any religious exercise…has been delegated to the general [i.e. federal] government. It must then rest with the states, as far as it can be in any human authority,” which he wrote in the Samuel Miller letter.

Nowhere in Jefferson’s response to the Danbury Baptists Association, in his response to Rev. Samuel Miller, or in his personal writings does Jefferson express sentiments to abolish religion or the public acknowledgement of God from the public square. It is worth noting the Virginia Statute for Religious Freedom begins by stating “Almighty God hath created the mind free.” All this leads one to ask the question, “Why did Judge Hugo Black choose to use Jefferson’s letter to the Danbury Baptists, which included the wall of separation, in his opinion rather than Jefferson’s letter to Rev. Samuel Miller, which revealed Jefferson’s true thoughts on the separation of church and state?” The answer could be in the man himself.

In his opinion, Everson v. Board of Education, Justice Black quoted Thomas Jefferson’s term “wall of separation” and further added his own opinion that the wall must be high and impregnable. This meant that from that day forward the separation of church and state would be applied to all aspects of government, not just the federal level. In other words, the Bill of Rights applies not only to the Federal Government but to the states likewise. This “high and impregnable” wall, central to the past 50 years of church-state jurisprudence, is not Jefferson’s wall; rather it is the wall that Justice Hugo Black built in 1947 in Everson v. Board of Education.

Several key factors in Justice Black’s background inclined the Justice to rule unfavorably against religion. First, it is a known fact that Justice Black was a member of the Klu Klux Klan, an organization that is known to be particularly bigoted towards Catholics. He began his political career in the wake of his successful defense of a Klu Klux Klansman, who shot and murdered a Catholic priest. He is a former Kladd of the Klavern of the Alabama Klu Klux Klan, who used his Klan base to secure a seat in the U.S. Senate and ultimately an appointment on the U.S. Supreme Court. Second, Paul Blanshard was a controversial author, lawyer, humanist, and outspoken critic of Catholicism. Justice Black believed in Blanshard’s writings concerning the Catholic Church, shared his mistrust of the Catholic Church, feared the influence and wealth of the Catholic Church, and perceived parochial education as a threat to public schools and democratic values. Finally, at the time of his opinion, Justice Black was not a practicing Christian and the evidence shows that the Justice did not believe in the supernatural aspects of Christianity. This evidence supports a conclusion that the Justice was prejudiced against religion in his decision in Everson v. Board of Education and engaged in judicial activism.

The modern era application of the non-constitutional doctrine “a wall of separation between church and state” derives from Justice Black’s anti-Catholic bigotry in his Everson vs. Board of Education ruling and is preserved by pervasive anti-religious prejudice through organizations such as the ACLU and the Freedom From Religion Foundation and has become a “constitutional principle” through the jurisprudence of an anti-Catholic bigot.

In one of his quotes Hugo Black stated: “The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to the judges’ views of fairness, reasonableness, or justice. I have no fear of constitutional amendments property adopted, but I do fear the rewriting of the Constitution by judges under the guise of interpretation.” Justice Black did not decide Everson vs. Board of Education according to the terms of the Constitution, but under the guise of interpretation. He explicitly ignored the Enumerated Powers.

Thomas Jefferson wrote in a letter to Monsieur A. Coray dated October 31, 1823: “At the establishment of our Constitution, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little by little, the foundations of the Constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.”

In his opinion in the Everson vs the Board of education, Judge Black, as Jefferson stated in his letter, only concerned himself and individual suitors. He considered the Constitution as a living document and interpreted The Bill of Rights to agree with his personal agenda against the Christian religion. He completely ignored the enumerated powers and the Tenth Amendment in forming his opinion. The concept of the Constitution as a living document is contrary to the original intent of the Founding Fathers and renders our Constitution essentially meaningless. The framers of the Constitution carefully considered each word they wrote and Congress and the Courts should follow the plain language of the Constitution or Congress amend the Constitution as found in Article V, but never consider it as a living document.

Thomas Jefferson wrote in a letter to William Johnson Dated June 12, 1823: “On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the sprit manifested in the debates and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.”

In 1962, the Supreme Court, in the case of Engel v. Vitale, re-defined the word “church” to mean “a religious activity in public.” The revolt against the roots of American heritage had begun in earnest. Separation of Church and State now meant the government (both federal and state) and its institutions must be “protected” from the Christian religion.

Since 1962, there have been over 6,000 cases challenging Christian religious expressions in public institutions and public life. For example, numerous court cases ruled that verbal prayers in public schools, even if voluntary and denominationally neutral, were unconstitutional. In 1980, it was ruled that it was unconstitutional to hang the Ten Commandments on the walls of public school classrooms. Ironically, the Ten Commandments are engraved on the chamber walls of the U.S. Supreme Court. And in Virginia, a federal court ruled a homosexual newspaper may be distributed on a high school campus, but Christian religious newspapers may not. Needless to say, a cultural war of mammoth proportions was unleashed by the Everson v. Board of Education and Engel v. Vatale rulings.

In my opinion, there is no wall of separation between just any church and the state. Judge Hugo Black’s “wall of separation” was meant to mean separation between the Christian Church and the state!

Sources: The Heritage Foundation


Tenth Amendment Center

The Religious Liberty Archive

Liberty University

A-Z Quotes

Bellevue University

The Free Dictionary

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