I’ve been reading Original Intent, The Courts, The Constitution, & Religion, by David Barton. It is interesting reading.
Since this is Constitution Month (and September 17 is Constitution Day, followed by Freedom Week), I thought I’d share one aspect of the Constitution and Bill of Rights from the book.
The First Amendment states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”
According to Barton,
It does not.
The 1947 Supreme Court 5-4 decision in Everson v. Board of Education established the contemporary standard for this phrase. In that decision the court announced:
“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.”
After this declaration, the Supreme Court, as well as many lower courts, began striking down religious activities and expressions which had been constitutional for the previous 150 years.
The phrase “separation of church and state” actually first appeared in an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut.
Jefferson was the first Anti-Federalist President, who was also a champion of the rights of minority religions (in this case Baptists) in Virginia, and an advocate of clear limits on the centralization of government powers.
The Danbury Baptists wrote to Jefferson on October 7, 1801 – nearly seven months after his first inauguration as President. In their letter of congratulations to the new President, the Danbury Baptists also expressed their concern over the entire concept of the First Amendment. They wrote:
Jefferson believed that religious liberties were inalienable rights and that the issue of religious expression was above federal jurisdiction.
Basically, it turns out that the Supreme Court in the Everson case rested its decision not on the Constitution, but on an interpretation of a letter to a Baptist organization by a President – who was reaffirming religious liberties. The Supreme Court went on to continually use this phrase in its decisions since the landmark 1947 case. Part II of this blog entry will explore some of those decisions.
PHOTO SOURCES:
The US Supreme Court building
The Bill of Rights
Since this is Constitution Month (and September 17 is Constitution Day, followed by Freedom Week), I thought I’d share one aspect of the Constitution and Bill of Rights from the book.
The First Amendment states: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…”
According to Barton,
“The current application of the “separation of church and state” metaphor actually represents a relatively recent concept rather than the enforcement of a long-standing constitutional principal. This is demonstrated by the fact that the separation idiom appeared in only two cases in the Supreme Court’s first 150 years; yet over the past 50 years, it has been cited in seemingly countless numbers of Court decisions.”Many of our citizens think that the phrase “separation of church and state” appears in the Constitution.
It does not.
The 1947 Supreme Court 5-4 decision in Everson v. Board of Education established the contemporary standard for this phrase. In that decision the court announced:“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.”
After this declaration, the Supreme Court, as well as many lower courts, began striking down religious activities and expressions which had been constitutional for the previous 150 years.
The phrase “separation of church and state” actually first appeared in an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut.
Jefferson was the first Anti-Federalist President, who was also a champion of the rights of minority religions (in this case Baptists) in Virginia, and an advocate of clear limits on the centralization of government powers.
The Danbury Baptists wrote to Jefferson on October 7, 1801 – nearly seven months after his first inauguration as President. In their letter of congratulations to the new President, the Danbury Baptists also expressed their concern over the entire concept of the First Amendment. They wrote:
“Our sentiments are uniformly on the side of religious liberty: that religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific…. Therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights.”Jefferson wrote a short reply to the Danbury Baptists on January 1, 1802, in which he assured them that the free exercise of religion would not be interfered with by the national government. He wrote:
“Gentlemen, - the affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist Association give me the highest satisfaction. Believing with you that religion is a matter which lies solely between man and his God; that he owes account to no other for his faith or his worship; that the legislative powers of government reach actions only and not opinions, I contemplate with sovereign 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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious associations assurances of my high respect and esteem.”
Jefferson believed that religious liberties were inalienable rights and that the issue of religious expression was above federal jurisdiction.Basically, it turns out that the Supreme Court in the Everson case rested its decision not on the Constitution, but on an interpretation of a letter to a Baptist organization by a President – who was reaffirming religious liberties. The Supreme Court went on to continually use this phrase in its decisions since the landmark 1947 case. Part II of this blog entry will explore some of those decisions.
PHOTO SOURCES:
The US Supreme Court building
The Bill of Rights
-
2 comments:
Barton should be taken with a grain of salt. Zealotry more than fact shapes his work, which is marked by shoddy scholarship and downright dishonesty. See Chris Rodda, Liars for Jesus: The Religious Right's Alternate Version of American History (2006).
The Supreme Court's decision in Everson v. Board of Education cannot credibly be dismissed as merely a misreading of Jefferson's letter to the Danbury Baptists. The Court hardly "rested" its decision on that letter. Indeed, the Court mentioned it only in passing after stating its conclusion based on a lengthy and detailed discussion (encompassing many pages and many footnotes) of the historical context in which the First Amendment was developed. The metaphor "separation of church and state" was but a handy catch phrase to describe the upshot of its conclusion. The Court's reading of the First Amendment in this regard was unanimous; all nine Justices agreed on that much, but split 5-4 on whether the Amendment precludes states from paying for transportation of students to religious schools. It bears noting, as well, that Everson did not, as Barton would have it, overnight erect a wall separating church and state. The Supreme Court, again unanimously, first endorsed Jefferson's metaphor 68 years earlier in Reynolds v. United States (1879).
Perhaps even more than Thomas Jefferson, James Madison influenced the Court's view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to "[s]trongly guard[] . . . the separation between Religion and Government." Madison, Detached Memoranda (~1820). 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 lead them to 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 considered the question whether these were "consistent with the Constitution, and with the pure principle of religious freedom" and responded: "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]."
I think part of the problem is that there are so many different types of religious beliefs. Many of them such as Christianity and Islam have proselytizing as a cornerstone of their system. If we allow Christians to proselytize in public schools we have to allow Muslims as well. I don't think that would sit well with many of the Christians who decry the lack of prayers in school.
Post a Comment