Monday, January 26, 2009

The First Amendment Debates

A closer look at the genesis of the Establishment Clause
by Tom Van Dyke



As we know, George Mason, a "key" Founder and delegate to the Constitutional Convention of 1787, refused to sign the draft that came out of it because it lacked a Bill of Rights. So, even though he didn't work on it himself, the House and Senate set about working on one.

And so, the legislative history of the religion clause of what became the First Amendment:


* Mason's original conception: "All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others."

* James Madison's draft, June 7, 1789: "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, nor on any pretext infringed. No state shall violate the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases."

* House Select Committee, JUL-28 "No religion shall be established by law, nor shall the equal rights of conscience be infringed..."

* Samuel Livermore, AUG-15 "Congress shall make no laws touching religion, or infringing the rights of conscience."

* House version, AUG-20 "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." (Moved by Fisher Ames)

* Initial Senate version, SEP-3 "Congress shall make no law establishing religion, or prohibiting the free exercise thereof."

* Final Senate version, SEP-9 "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion."

* Conference Committee: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."



Philip Hamburger, very good, on what was on Madison's mind during the debates in the House.

Some notes:

a) The Virginia Declaration of Rights was not the product of the Enlightenment-type secularists; Baptists and the Presbyterian laity [eventually joined by their clergy] wanted government to butt out of state-supported religion. It should be noted that Virginia was one of the more diverse states sect-wise: The [Anglican] Episcopalians were in the mix there, too. That the sects were in competition was key, and indeed Hamburger alludes to the thought that several sects might combine against the others.

b) Virginia isn't typical: the other states tended to be dominated by one sect or another.

c) Quotes from the House debates:

Mr. SYLVESTER had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. He feared it might be thought to abolish religion altogether.

Mr. HUNTINGTON said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction on it.


Hyuh, you got that one right, Messrs. SYLVESTER & HUNTINGTON.


But in fairness, although we cannot pick up the debate after it moved from the House to the Senate, because it seems there wasn't much of one, let's look at the record:

September 3, 1789--First Federal Congress


The Senate resumed the consideration of the Resolve of the House of Representatives on the Amendments to the Constitution of the United States.


The third article [which became the religion part of the First Amendment---TVD], as it passed the house, stand thus:

"Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed."

On motion, To amend Article third, and to strike out these words. "Religion or prohibiting the free Exercise thereof," and Insert, "One Religious Sect or Society in preference to others,"

It passed in the Negative.

On motion, For reconsideration,

It passed in the Affirmative.

On motion, That Article the third be striken out,

It passed in the Negative.

On motion, To adopt the following, in lieu of the third Article, "Congress shall not make any law, infringing the rights of conscience or establishing any Religious Sect or Society,"

It passed in the Negative.

On motion, To amend the third Article, to read thus- "Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed."

It passed in the Negative.

On the question upon the third Article as it came from the House of Representatives-

It passed in the Negative.

On motion, To adopt the third Article proposed in the Resolve of the House of Representatives, amended by striking out these words- "Nor shall the rights of conscience be infringed."

It passed in the Affirmative.


Since we respect the Framing/Ratification process as Madison asks us to, we can plainly see that the Senate wanted no part of overspecifying "religion" to merely mean preventing one Christian sect from gaining dominance over the others, although that meaning might be reasonably drawn from the House debates.

We should also note that just as Rep. LIVERMORE "was not satisfied with the amendment; but he did not wish them to dwell long on the subject," and Madison himself wrote privately that the Bill of Rights was a "nauseous project,"
so too, "after this the amendments to the Constitution sent from the House of Representatives...[t]hey were treated contemptuously by Izard, Langdon, and Mr. Morris. Izard moved they they should be postponed till next session. Langdon seconded, and Mr. Morris got up and spoke angrily but not well."

There were obviously many who were opposed or just bored with the idea of a Bill of Rights, and Sen. Robert Morris in particular was kinda wasted and going bankrupt by then. Sorta like now.


So, there's plenty of wiggle room for all.


But let's return to James Madison once more, which might explain the Senate's retisence to get involved at all:

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.


Obviously, if the clauses barring "[o]ne Religious Sect or Society in preference to others" or "establishing any particular denomination of religion in preference to another" had been adopted, a majority of the states could still come up with a looser definition of Christianity and use it to gang up on a Quaker state or a Catholic one or a Unitarian one; surely it would make sense for the Senate to dodge the question entirely. Lord knows that Christianity had a long history of one set of Christians declaring another set of Christians to not be Christians at all.

And so, it might be useful at this point to revisit that link from Philip Hamburger on the Virginia debates. Sects/denominations "ganging up" on the others would be a real possibility, and would explain why the Senate wanted no part of that possible complication. In that case, the anti-sectarian argument for non-establishment still holds. Certainly those who argue from the lack of evidence for the Founders' orthodoxy would be hard-pressed to argue that the Founders contemplated any other religions than Christianity taking over, or even that they knew much about the other non-Christian religions.

In closing, I'd also submit that
any discussion of this matter must begin at the beginning, with "Congress shall make no law..." [Bold face mine.]

According to the record of the House debates, Roger Sherman, a "key" Founder who was also part of the committee of five who drafted the Declaration of Independence, and generally regarded as not only a thoughtful but very religious man, "thought the amendment altogether unnecessary, inasmuch as Congress had 'no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out."

Perhaps Rep. Sherman was right, and we are arguing about nothing, since by most understandings, religion was formally and purposely left out of the central government for the states individually to sort out for themselves.

59 comments:

Brian Tubbs said...

Very good article, Tom.

Two points...

1) Our courts should be guided by the "ORIGINAL UNDERSTANDING" or "ORIGINAL INTENT" of the language when applying laws and statutes to situations today. Thus, I find historical analyses like yours to be very appropriate.

2) I will concede that the 14th Amendment applies the Bill of Rights to the states -- i.e., requiring the states to guarantee the same basic civil rights to its citizens that the US Bill of Rights does. Thus, "Congress shall make no law..." now applies to state legislatures as well.

Lindsey Shuman said...

Yes Brian, but was that what the founders wanted? I wonder what they would have to say.

Jonathan Rowe said...

Re the First Amendment & incorporation, that's something we still have to do in more detail. Hamburger doesn't think any of the BOR properly incorporates. Amar and Munoz think it does, but that the Establishment Clause nonetheless resists incorporation. Justice Thomas finds that reasoning persuasive.

Our Founding Truth said...

Perhaps Rep. Sherman was right, and we are arguing about nothing, since by most understandings, religion was formally and purposely left out of the central government for the states individually to sort out for themselves.>

Tom:

I think Sherman is right. We shouldn't have to argue about this, if not for secularists trying to revise our Christian history.

Not once did any framer, ever, in any state ratifying convention for the first amendment, mention any religion other than Christianity! [emphasis added]

The framers never mentioned another religion, because it wasn't on their mind.

Not once did any framer refer the word "sect" as any religion other than Christianity. That word was always denominated as a denomination of Christianity.

"Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit."

The people of the states never said a word about other religions. Christianity was the established religion.


Let me know what you think about this. The context of Madison's, and the others, is the state constitutions.

How can the word "National" refer to more than one religion? It can't mean Islam, Christianity, and Judaism at the same time? The particular religion must be applied with the words into the amendment. Once Madison used "national" the amendment became limited to one religion.

Mr. MADISON thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.

Madison says the word "National" is what the religion the amendment is refering to, no? The Federal Amendment has the same context as the State Constitutions.

In order for the secularists to be correct, they need ratifiers mentioning other religions in the debates. They have none.

Here's a delegate affirming the truth, as did all the others in the ratifying conventions:

Mr. SMITH, of South Carolina, inquired what were the words used by the conventions respecting this amendment.

Our Founding Truth said...

Mr. MADISON thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.>

Tom:

How can Islam, Judaism, and Christianity combine together and form a National Religion?

Jonathan Rowe said...

How can the word "National" refer to more than one religion? It can't mean Islam, Christianity, and Judaism at the same time?

There is no principle of logic that supports this assertion. Of course "national religion" can mean "Christianity," a particular Christian sect, Judaism, or Islam or a particular sect thereof.

By OFT's logic, the gov't of the US would be prohibited from establishing a "Christian" sect, but not an Islamic, or any other non-Christian one. To which I might respond, let's make "Zoroastrianism" the national religion of the United States because if the First Amendment only applies to "Christian" sects, then this is not forbidden.

Tom Van Dyke said...

Theoretically, they could, monotheism vs. polytheism or pantheism, which you'll find in Eastern religions. Which would weaken your point.

I'm not really taking a "side" here, just looking for clarity.

Let's keep in mind that Madison favors the "plain reading" by various ratifiers above "original intent" by Framers, as well as favoring the laws, custom and practice that resulted, giving support to "original understanding" but not to "original intent."

Therefore, we must put a careful eye to the Senate proceedings even more than the House debates. Although the House gave birth, the baby finds its own legs and we must follow its travels.

Our Founding Truth said...

There is no principle of logic that supports this assertion. Of course "national religion" can mean "Christianity," a particular Christian sect, Judaism, or Islam or a particular sect thereof.>

So, in order for your theory to have any legs, you need to post the words of the ratifiers that refer to other religions, besides Christianity, that could be the established religion of the first amendment. Otherwise, all the evidence supports Christianity as the subject of the establishment clause.

Raven said...
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Jonathan Rowe said...
This comment has been removed by the author.
Jonathan Rowe said...

So, in order for your theory to have any legs, you need to post the words of the ratifiers that refer to other religions, besides Christianity, that could be the established religion of the first amendment. Otherwise, all the evidence supports Christianity as the subject of the establishment clause.

Actually your interpretation of the record amounts to a "non-sequitur," -- a conclusion that does not follow from the facts. Yes, of course, much of the record consists of the Founders speaking of rivalry among the various "Christian" sects -- the Episcopalians v. the Presbyterians v. the Baptists, and whatnot. However, that fact alone does not therefore mean that ONLY "Christian" sects were to have rights or restrictions under the Establishment Clause. YOU would need to offer evidence that the phrase "respecting an establishment of religion" was meant to apply to "Christian" sects (and NOT apply to non-Christian sects) in a sense that privileged Christianity but not other religions. In short you'd have to show the Founders didn't think non-Christian religions qualified as "religions" in the Constitution. But, to your chagrin, every time the framers and ratifiers of the Constitution mentioned non-Christian religions, they purposefully INCLUDED them as "religions" that fall within the rubric of the term "religion" or "religious" as used in the US Constitution.

And that's the bottom line of this untenable theory OFT does not effectively defend: the "Christian Nation" thesis attempts to argue that the Establishment Clause -- a Clause that is entirely restrictive in its wording and not meant to empower or privilege any kind of "religion" -- somehow empowers or privileges "Christianity" and not other religions. This reading amounts to the worst kind of Judicial Activism. Worse and more "activist" than Roe v. Wade or any modern Supreme Court case as it reads things into the text of the Constitution that *do not exist* and cannot be supported by the plain reading of the Constitution's text.

Brad Hart said...

Forget about it, Raven!

Our Founding Truth said...

However, that fact alone does not therefore mean that ONLY "Christian" sects were to have rights or restrictions under the Establishment Clause.

I never said that. The establishment clause only refers to an established national church.

YOU would need to offer evidence that the phrase "respecting an establishment of religion" was meant to apply to "Christian" sects (and NOT apply to non-Christian sects) in a sense that privileged Christianity but not other religions.>

The context supports the exclusive Christian establishment. The context determines the subject, and sect has never referred to anything other than Christianity. The Father of the Bill of Rights gives us evidence, as well as Jefferson, and history:

"[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly."

~Jefferson, Writings, Vol. III, p. 441, to Benjamin Rush on September 23, 1800.

"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..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 association assurances of my high respect and esteem."

~Jefferson, Writings, Vol. XVI, pp. 281-282, to the Danbury Baptist Association on January 1, 1802.

Jefferson believed, regarding the first amendment, it only referred to Christianity, since there is no natural rights in Islam, or other religion. Natural rights only exist in Christianity.

And that's the bottom line of this untenable theory OFT does not effectively defend: the "Christian Nation" thesis attempts to argue that the Establishment Clause -- a Clause that is entirely restrictive in its wording and not meant to empower or privilege any kind of "religion" -- somehow empowers or privileges "Christianity" and not other religions.>

You're missing the point. Establishment of a church is the issue.

Raven said...
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Tom Van Dyke said...

Thx for that, Brad.

I did want to point out that there's reason to believe they didn't give much thought to other religions at all, as many saw the whole deal as an annoying chore.

Neither does it appear anyone believed that ratifying the First Amendment would require changing any existing custom or practice prevailing at the time.

Therefore, it appears to me that the net must be cast wider to look at prevailing law, custom and practice circa 1787 and in the years immediately following. I believe Madison would approve of this view.

bpabbott said...

Tom,

In the past I'd spent quite a few evenings reading through articles on Religious*Tolerance.org. However, I'd not seen this one before. Thanks for pointing it out.

Tom: "Perhaps Rep. Sherman was right, and we are arguing about nothing, since by most understandings, religion was formally and purposely left out of the central government for the states individually to sort out for themselves."

I agree that "by most understandings, religion was formally and purposely left out of the [federal] government."

However, it appears (to me) that many see this as an unintended omission.

Regarding other governing agencies, the incorporation of the 14th amendment comes into play. A good example is that of Torcaso v Watkin.

In any event, I think the first question to be considered is; How was the 1st amendment intended to constrain federal action with regards to religion.

Secondly, to what degree were these restrictions incorporated by the 14th amendment?

The Religious*Tolerance.org website includes an article on Introduction: Separation of Church and State. In it they note; "The 14th Amendment was proclaimed adopted on 1868-JUL-21. Since that date, the First Amendment, and other amendments guaranteeing rights to citizens, apply equally to all levels of government."

I'm not sure that the courts would favor the "all" in "all of government." For example, is my homeowners association bound by the incorporation of the 1st amendment? However, I think it is already settled that city, county, and state governments are.

Regarding the question as to whether or not our Nations founders would approve of such "incorporaiton", I think their opinion to be irrelevant. It is the framers of the 14th amendment that are relevant in this context. Regarding the intent of the 14th amendment, Ron Roland has a nice article on the subject; Intent of the Fourteenth Amendment was to Protect All Rights.

His conclusion; "[...] it should be clear that all of the rights recognized by the U.S. Constitution are not only rights against state action, but that the Fourteenth Amendment authorizes Congress to legislate protection of such rights against state action, and grants jurisdiction of the federal judiciary over cases between citizens and their states involving them. Among those rights are the right to keep and bear arms and the right to a grand jury indictment. While the Supreme Court might reasonably have confirmed this in any given case by only declaring such rights as are minimally needed to render a decision, it is important that they not fail to do so for all the rights that are issues before the court."

While the conclusion does not explicitly mention religion, Roland includes in the body ...

"In debate on February 28 on the representation of the Southern States in Congress, Senator James Nye of Nevada opined that the Bill of Rights already applied to the States, and that Congress has power to enforce it against the States. He stated:

In the enumeration of natural and personal rights to be protected, the framers of the Constitution apparently specified everything they could think of — "life," "liberty," "property," "freedom of speech," "freedom of the press," "freedom in the exercise of religion," "security of person," &c.; and then, lest something essential in the specifications should have been overlooked, it was provided in the ninth amendment that "the enumeration in the Constitution of certain rights should not be construed to deny or disparage other rights not enumerated." ... All these rights are established by the fundamental law.

Will it be contended, sir, at this day, that any State has the power to subvert or impair the natural and personal rights of the citizen?
" [emphasis mine]

In any event, that is my long way of saying that "by [my] understandings, religion was formally and purposely left out of the [all] government." ... well except, perhaps, my homeowners accociation ;-)

bpabbott said...

Tom: "Neither does it appear anyone believed that ratifying the First Amendment would require changing any existing custom or practice prevailing at the time."

In general, I agree. In my opinion this is an obvious conclusion. Althought, I do seem to remember Jefferson saying something implying that he'd hope liberty would grow beyond the status it held at that point in time, I don't see how such qualifies as explicit.

For explicit intent, futher legislation was/is needed, and I think the 14th qualifies nicely.

The framers of the 14th amendment are understood to have believed that the first amendment should apply to state and local government.

bpabbott said...

OFT: "The establishment clause only refers to an established national church."

Positive claims require positive evidence.

"Congress shall make no law respecting an establishment of religion [...]" [emphasis mine]

The wording is rather clear (to me). The respecting phraseology is not equivalent to "respecting a religious establishment". It is much broader than that.

Regarding evidence that your narrow interpretation is wrong, the wording proposed by Fisher Ames was rejected; "Congress shall make no law establishing religion [...] ... as was that of the House Select Committee, "No religion shall be established by law [...]", as was the *original* by Madison; "The Civil Rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established [...]". (see this link for several recorded drafts of the 1st amendment).

By either a literal or historical perspective, the language ratified is the broadest of the proposals.

Please take note; none of this places our religion under attack.

Jonathan Rowe said...
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Jonathan Rowe said...

Jefferson believed, regarding the first amendment, it only referred to Christianity, since there is no natural rights in Islam, or other religion. Natural rights only exist in Christianity.

OFT, you are arguing nonsense. Natural religion defines as those religious tenets to which all good men of whatever religion (including Islam) believed. The entire reason for the appeal to "nature" (as in "natural" anything -- "rights," "law," "religion," "laws of nature and nature's God,") was to argue for a basis of reality that is accessible outside of the closed reality of "Christianity" or "revealed" truth.

Tom Van Dyke said...

In theory, perhaps. But as we know, Kristo argues otherwise, that such a framework simply doesn't exist outside Christianity. OFT is out on a limb here, perhaps one that's unsupportable, but it's not nonsense.

The fact is that there was an existing baseline of religious custom and practice that the First Amendment left untouched.

What that baseline was or is, is another question. But the First Amendment didn't obliterate that baseline.

Our Founding Truth said...

Natural religion defines as those religious tenets to which all good men of whatever religion (including Islam) believed. The entire reason for the appeal to "nature" (as in "natural" anything -- "rights," "law," "religion," "laws of nature and nature's God,") was to argue for a basis of reality that is accessible outside of the closed reality of "Christianity" or "revealed" truth

The framers believed the Law of Nature is the God of the Bible, therefore, rights from reason and revelation come from Him.

What this gentleman fails to understand, is everyone has these rights because the framers believed Jesus Christ granted them! [emphasis mine]

Go to Saudi Arabia and talk about Natural Rights; Natural Law comes only from Christianity, which is why the establishment clause can only refer to Christianity:

The moral or natural law was given by the Sovereign of the universe to all mankind; with them it was co-eval, and with them it will be co-existent. Being rounded by infinite wisdom and goodness on essential right, which never varies, it can require no amendment or alteration. [bold face mine]

~The Correspondence and Public Papers of John Jay, Henry Johnston, editor (New York: G. P. Punam's Sons, 1893), Vol. IV, to John Murray April 15, 1818.

Our Founding Truth said...

Tom:

But as we know, Kristo argues otherwise, that such a framework simply doesn't exist outside Christianity.

No other religion besides Christianity could be the established church. The burden of proof to refute this statement belongs to secularists:

"All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others."

~George Mason-Father of the Bill of Rights.

Jonathan Rowe said...

What this gentleman fails to understand, is everyone has these rights because the framers believed Jesus Christ granted them! [emphasis mine]

Go to Saudi Arabia and talk about Natural Rights; Natural Law comes only from Christianity, which is why the establishment clause can only refer to Christianity:


Here's the reason why this is wrong -- at least wrong from YOUR religious perspective.

I understand the critique that Islam doesn't seem to be "recognizing" natural rights as Christian societies currently are. But 1) there was a time when Christian societies (both Roman Catholic AND Protestant, see for instance Winthrop and Calvin's governments) likewise didn't recognize natural rights, and 2) from a Sola-Scriptural perspective, natural rights don't exist as that concept is as foreign to the Bible as it is to the Koran.

Jonathan Rowe said...
This comment has been removed by the author.
Jonathan Rowe said...

No other religion besides Christianity could be the established church.

1) Irrelevant as it does nothing to prove non-Christian religions are somehow NOT covered under the Establishment Clause (which uses the term "religion" and they -- Muslim, Jewish sects, etc., are "religions");

2) Why you even seem to be concerned I do not know. If the EC is only a "restrictive" clause that prevents a particular religious sect from becoming a national church (that is one that grants no rights or privileges, but ONLY restricts), what difference does it make that an Islamic sect is likewise restricted from being respected as an establishment? Indeed if the EC is only so restrictive a clause and does not cover non-Christian sects, then we can make an Islamic sect the national religion of America and not violate said clause!

3) That you are so concerned on the matter tells me that you see the EC as a provision of the Constitution that is meant to grant rights and privileges to "Christianity" in a constitutional sense, and not other "religions" (which the text of the clause does not and CANNOT do).

Our Founding Truth said...

I understand the critique that Islam doesn't seem to be "recognizing" natural rights as Christian societies currently are. But 1) there was a time when Christian societies (both Roman Catholic AND Protestant, see for instance Winthrop and Calvin's governments) likewise didn't recognize natural rights, and 2) from a Sola-Scriptural perspective, natural rights don't exist as that concept is as foreign to the Bible as it is to the Koran.>

What?

There is no principle of logic that supports this assertion. Of course "national religion" can mean "Christianity," a particular Christian sect, Judaism, or Islam or a particular sect thereof.

Hey Tom, I think you may be the only who can grasp this, so that's why I'm referencing you.

Lock at this quote the gentleman from Pennsylvania has made. Remember, Madison clarified the context, being a "national religion" meaning the amendment cannot include all religions, but must mean every religion applied into the amendment.

This, here is what the gentleman is actually saying:

"Congress shall make no law respecting an establishment of Islam, nor prohibiting the free exercise thereof"

or

"Congress shall make no law respecting an establishment of Judaism nor prohibiting the free exercise therof"

Since secularists believe satanism is a religion, here you go:

"Congress shall make no law respecting an establishment of Satanism nor prohibiting the free exercis thereof"

Think about that? Religions the framers despised, including all forms of paganism, hinduism, and any other ism, could be the established church in our nation!

Talk about madness! This is what secularism is; madness, and foolishness!

The real object of the First Amendment was not to countenance, much less to advance Mahometanism, or Judaism, or infidelity by prostrating Christianity; but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.

~Joseph Story, Our greatest Judge

Jonathan Rowe said...

It "locks" like this debate is driving you mad.

The wonderful thing about the term "religion" is that it is broadly general and includes, not just "Christianity" but also "Islam," "Judaism," "Hindooism," and many other non-Christian creeds. Thank God the Founding Fathers used THAT term and not "Christianity." If they wanted to limit the EC to "Christianity" of protect THAT particular religion only, they could have said someting along the lines of "Congress shall make no law respecting the establishment of a sect of the Christian religion or prohibiting the free exercise thereof." But thankfully, they didn't.

Our Founding Truth said...

We can all see where this national religion leads us. Just think about it, secularists believe James Madison claimed every religion besides Christianity was false in 1785, and two years later believed all those false religions could be the established National Church of the United States! [emphasis added]

That is pure fantasy land.

Thank God, James Madison used the word "national" to show what kind of church establishment we were prohibiting. Later congresses understood the same thing:

"Christianity..was the religion of the founders of the republic, and they expected it to remain the religion of their descendents."

~House Judiciary Committee, 1853

"The [First Amendment] clause speaks of "an establishment of religion." What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country ... endowment at the public expense, peculiar privileges to its members, or disadvantages or penalties upon those who should reject its doctrines or belong to other communions,-such law would be a "law respecting an establishment of religion..." They intended, by this amendment, to prohibit "an establishment of religion" such as the English Church..But they had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people... . They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistic apathy."

~Congress of the United States of America January 19, 1853, as part of a Congressional investigation, records the report of Mr. Badger of the Senate Judiciary Committee:

Joseph Story, and the Father of the Bill or Rights believed the first amendment only could establish Christianity.

Tom Van Dyke said...

If it's OK with you, OFT, I'd rather not moderate the debate that you and Jonathan Rowe persist at. If you make a good point, I often jump in to highlight it. I actually asked you both to desist and plant the locus closer to the center of this blog, as you tend to argue points on the edges that none of our contributors or commenters seem to be interested in.

And that includes me.

What I'm willing to do is create space for each of you to speak your minds and present your evidence.

I meself ignore opinions but eat up evidence, as evidence helps me make up my own mind. [Ben, that's why I seem so dispassionate at times, preferring to present evidence so people can make up their own minds. I might make for a good Protestant someday. And I think modern journalism could use a few more like me, who respect the intelligence of the reader.]

Both Jon and OFT present a lot of evidence around here, even if/when I disagree with their conclusions.

And that's the best thing about you both, and why you're each so valuable to this blog, this inquiry, this court of opinion.

When you're at your best, you don't try to tear down the other guy's argument, you try to present stronger counterarguments, and back it up with your evidence.

And this blog benefits. I benefit. I learn nothing when people shoot off mere opinions. Opinions are like fecal extruders, and you know the rest of that one...

I've learned from you both, and I can't think of a higher compliment to give or receive.

Rock on.

Pinky said...

.
You people are digging for strawberries.
.
Tom, your article is a very good recitation. I like the way you did it--very factual.
.
And, the continual bickering by those people that want to believe the Founders wanted America to be a Christian nation gives us a pain where no pill can reach.
.
But, did you (or anyone else for that matter), in your research, run across any references to how the Founders dealt with the ideas of justice when the Bill of Rights was being considered?
.

Jason_Pappas said...

Tom: "Neither does it appear anyone believed that ratifying the First Amendment would require changing any existing custom or practice prevailing at the time."

BpAbbot: “In general, I agree.”

I think the emphasis in Tom’s statement is misleading in the sense that there was no “static” custom or practice. The growth of religious tolerance was dynamic and not without some rough and tumble within the states. Here is what John Fiske writes:

“In 1776 Jefferson and Mason succeeded in carrying a bill which released all dissenters from parish rates and legalized all forms of worship. At last in 1785 Madison won the crowning victory in the Religious Freedom Act, by which the Church of England was disestablished and all parish rates abolished and still more the Religious, all religious tests were done away with.”

He continues with other examples with Virginia as the state leading the fight for religious freedom. However, he ends on a bitter note:

“It is the historian's unpleasant duty to add that the victory thus happily won was ungenerously followed up. Theological and political odium combined to overwhelm the Episcopal church in Virginia. The persecuted became persecutors. It was contended that the property of the church, having been largely created by unjustifiable taxation, ought to be forfeited. In 1802 its parsonages and glebe lands were sold, its parishes wiped out, and its clergy left without a calling. … In Virginia the church in which George Washington was reared had so nearly vanished by the year 1830 that Chief Justice Marshall said it was folly to dream of reviving so dead a thing.”

It was quite a state of flux and the above only gives a sliver of the picture. I take the first Amendment as securing on the federal level the gains won by Jefferson and Madison on the state level. It was the power of the federal government that worried these men was it not?

“The Critical Period of American History: 1783-1789,” p81-82, John Fiske, 1888

jimmiraybob said...

"Christianity..was the religion of the founders of the republic, and they expected it to remain the religion of their descendents."

~House Judiciary Committee, 1853


Can you give the full quote - without the ellipsis? Who is speaking/writing? What is the context? Can you give a source for reviewing this (these) documents more closely? Thanks in advance.

Our Founding Truth said...

If it's OK with you, OFT, I'd rather not moderate the debate that you and Jonathan Rowe persist at.>

That's cool Tom. I wanted your opinion on the logic of the national religion context of Madison, and if you think a particular religion can be protected without being applied to the amendment?

At least I feel some people have thought about my theory, although I'm unaware of anyone promulgating my point. I say again, if any religion can be the established national church, that religion must be applied to the amendment! [emphasis mine]

If I'm correct, than I've proven only Christianity is referred to in the establishment clause.

Our Founding Truth said...

"Christianity..was the religion of the founders of the republic, and they expected it to remain the religion of their descendents."

~House Judiciary Committee, 1853

Can you give the full quote - without the ellipsis? Who is speaking/writing? What is the context? Can you give a source for reviewing this (these) documents more closely? Thanks in advance.


Reports of Committees of the House of Representatives Made During the First Session
of the Thirty-Third Congress (Washington: A. O. P. Nicholson, 1854), pp. 1, 6, 8-9.

Reports of Committees of the House of Representatives Made During the First Session
of the Thirty-Third Congress (Washington: A. O. P. Nicholson, 1854), pp. 1, 6, 8-9.

jimmiraybob said...

Thanks for the reference.

Our Founding Truth said...

I've learned from you both, and I can't think of a higher compliment to give or receive.

Rock on.>

Thanks bro. I learned a ton from both you and the gentleman from Pennsylvania. I looked at you bio, it said lala land, don't worry, I wasn't going to use that, haha.

The way the framers spoke to each other in governmental situations is awesome.

jimmiraybob said...

OFT – I was hoping to be able to find a source on-line but haven’t yet. I'll keep looking.

However, I should point out that the words of one person or even a majority on a house committee in 1854 does not speak for the whole house much less the whole congress much less multiple congresses as you suggest, "...Later congresses understood the same thing:..." followed by the quote.

Our Founding Truth said...

However, I should point out that the words of one person or even a majority on a house committee in 1854 does not speak for the whole house much less the whole congress much less multiple congresses as you suggest, "...Later congresses understood the same thing:..." followed by the quote.>

You could be right, you could be wrong. Conservative principles and the church exploded the first half of the 19th century, so it's seems consistent with how the nation believed. If Joseph Story affirms my theory, you can include Marshall, Kent, and most of the other Federalists as well.

I need to find other quotes.

Raven said...
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Tom Van Dyke said...

He continues with other examples with Virginia as the state leading the fight for religious freedom. However, he ends on a bitter note:

“It is the historian's unpleasant duty to add that the victory thus happily won was ungenerously followed up..."


I hope that "historian" isn't referring to himself and his agenda-driven nonsense.

Historian James H. Hutson replies:

"The story of how Madison and a diverse band of evangelicals and civil libertarians mounted, in 1785, a successful public relations campaign against [Patrick] Henry's bill, highlighted by Madison's celebrated religious liberty manifesto, the Declaration and Remonstrance, is a familiar one in American church-state literature, especially since it resulted in 1786 in the passage by the Virginia Assembly of Jefferson's landmark Statute for Religious Freedom.

The downfall of the general assessment bill is usually depicted as a kind of slow moving Armageddon, in which Madison and his followers, representing the forces of light and progress, gradually vanquish the legions of reaction who would have dragged America back into the dark ages of religious persecution and bigotry."

"There are several things wrong with this interpretation, one being that it can not explain why, if the general assessment bill was so wrong-headed and regressive, it was supported by "most Protestants in Virginia," not to mention several of Virginia's most eminent patriots and champions of human liberties, including Henry himself, Richard Henry Lee, John Marshall, Edmund Pendleton and George Washington.

Nor can it explain why similar general assessment bills were supported, after 1776, by the legislatures of five other states and by a galaxy of revolutionary heroes, including John Adams, Samuel Adams, John Hancock, Roger Sherman Oliver Ellsworth, and in neighboring Maryland, Samuel Chase, William Paca and Charles Carroll."

"This explanatory failure is the result of a form of scholarly malpractice that Herbert Butterfield denounced early in the last century as the Whig interpretation of history. According to Butterfield, "Whig" historians regularly succumb to the temptation of concentrating on precursors of present day "progress" and denying their opponents the benefit of "historical understanding."

"Butterfield warned that Whig historians will fix their eyes on "certain people who appear as the special agencies of...progress." In Whig eyes Madison and his supporters deserve to be explained and extolled because they are the pioneers of what is currently regarded as the "progressive" doctrine of strict separation of church and state. No time need be wasted on their opponents, as an offhand remark by Irving Brant, a prime example of Butterfield's Whig historian, indicates."

"Brant noted that Henry's 1784 speech, advocating "religious assessments," had not survived but that this was not a matter of regret, since it would have contained nothing worth reading; "a plea to unite church and state is not," wrote Brant, "of the sort on which libertarian fame is built." Ignoring the case for general religious assessments does not alter the reality that in post-1776 large numbers of Americans, great and small, approved them."

Tom Van Dyke said...

Ben, the stuff on the Fourteenth Amendment was interesting, and thank you. It's a field I've given up on studying; I'm afraid that although it was designed for racial equality, I've become cynical enough to believe that it can be perverted for most any purpose by the courts. And is.

Therefore, even an intelligent scholarship on it will be useless, I'm afraid, except for the occasional Justice Thomas, folks who are actually concerned with understanding and preserving the Constitution.

The rest of 'em on the courts will continue to do whatever they damn please under guise of a "living Constitution."

Raven said...
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Our Founding Truth said...
This comment has been removed by a blog administrator.
Brad Hart said...

OFT:

My apologies but I accidentally deleted your comment. It was the letter that you received from someone. I am really sorry and it was an honest accident. I was trying to delete a different comment but accidentally clicked on yours. I hope you still have the info available to post the comment again.

My apologies.

Our Founding Truth said...

During my brain storm I wanted a different perspective from Dr. Shain. Here's what I wrote to him:

Dear Sir,

My brain storming, a blog discussing religion, and perusal of your excellent book prompt my writing to you this day. My thoughts have concluded that James Madison's context for the Establishment Clause is the correct one. That is, the National Religion could only be a particular sect of Christianity. My question, and sincere want of your reply, is, "Could all religions be encommpassed in the Establishment Clause?"

My thoughts declare the negative to that question; immpossible. For all religions to be considered the established National Church, they all must individually be applied to the Amendment, correct? If the religion is not applied to the amendment, how can it be considered as the established religion?

In that case, is this what Madison meant:

"Congress shall make no law respecting an establishment of Islam, nor prohibiting the free exercise thereof."

Replace Islam with whatever religion possible. Did not the framers despise paganism, hinduism, and other forms of idolatry?

Could Madison believe all religions false, as in his Memorial, and two years later believe those false religions could be the established National Church of the United States? Could those pagan religions be the established church, as the church of England?

Thoughts from a seminary student. Your obedient servant.

James J. Goswick

And Dr. Shain responded back promptly:

Dear Mr. Goswick,

Thanks for your note. I am no expert on Constitutional questions, but my general approach is to place less emphasis on Madison's views of such matters and more on that of most Americans or, even only other elites. Madison is, on almost every question regarding religion, an outlier. As Jim Huston has noted it would be as if Voltaire were to be consulted as authoritative on the French view of the Church. The exact wording of the 1st Amendment, too, is not his, but more likely Ames or others. You might, too, read Benjamin Rush's essay in Lutz and Hyneman's (sp) collection on his views of non-Christian religions -- what was critical for him was a belief in an afterlife and punishment and reward and, in such a view, he wasn't atypical of an important stream of elite thought in the 1780s (much changed quickly in the late 18th century). Three excellent guides to such matters who I'd recommend are Dan Dreisbach, Jim Hutson, and Philip Hamburger. I trust their scholarship and integrity.

My best.

Barry Shain

I respect Dr. Shain's work, and respect his recommendations.

bpabbott said...

OFT: "Could all religions be encommpassed in the Establishment Clause?"

ok, I'm confused.

Do you imply the founders intended the establishment clause to be interpreted as

"Congress shall make no law respecting an establishment of Christianity [...]"

If so, I'll remind you that the establishment clause is restrictive. If non-Christian religions are not encompassed by it, then Congress may make law respecting an establishment of Islam/Paganism/Hinduism/etc.

I'm sure that is not what you intend.

What is the purpose that you subscribe to the establishment clause?

Jason_Pappas said...

Upon reading Hutson’s whole article, he doesn’t contradict Fiske’s main point that Virginia led the way regarding "the seperation of church and state." I’ll regretfully quote only one passage even though one should consider the article as a whole:

“The importance of the contest in Virginia in 1785 transcended the borders of the state, as Madison knew. Virginia, he wrote late in life, had brought 'the great and interesting subject' of tax support for religion,' to 'a decisive test' and set the American nation on its future course. After 1786 Madison's involvement with church-state issues shifted to the national level. He was the principal architect of the federal constitution, drawn in Philadelphia in the summer of 1787.”


I thank you for bringing this article to my attention since I’ve wanted to learn more about Madison’s philosophical framework and motivation. I’m more impressed with Madison after reading Hutson, especially his opposition to the ‘general assessment.’ It was a joy to read about the influence of “oppositional,” radical Whig, or “country ideology.” Once again, thanks.

Jonathan Rowe said...
This comment has been removed by the author.
Jonathan Rowe said...

OFT,

As I read Dr. Shain's comment to you and as I read your own view of this, I think you miss forest for the trees in Madison's view of all this: Madison was, as Dr. Shain intimates, a radical on matters of separation of Church & State. He took positions that were to the left of the ACLU's.

The Memorial & Remonstrance where he supposedly calls non-Christian religions false advocates a "no-cognizance" standard where government couldn't aid teachers of the Christian religion. And Madison pushed thru Jefferson's VA Statute on Religious Liberty that likewise made it illegal to aid religion. The very proposed Amendment of Madison's that used the term "national religion" didn't end there. It had subsequent language that arguably would have mandated something like separation at both the federal and state level.

"[N]or shall the full and equal rights of conscience be in any manner, or on any pretext infringed."

"No state shall violate the equal rights of conscience, or freedom of the press, or trial by jury in criminal cases."

Madison believed ALL religions, not just Christianity, but pagan and infidel ones EQUALLY possessed the FULL rights of conscience. That amendment HAD it been adopted would have arguably leveled every single religion -- Christian & non-Christian -- at the federal state and local level.

Tom Van Dyke said...

Mr. Pappas, I'm impressed you looked up the Hutson article for yourself. I regret now not having made the proper links, as it is almost always not worth my while. Next time, surely.

Fiske is just the sort of Whig historian Hutson warns about, one who blatantly cheers for the Enlightenment, and so his evenhandedness is quite suspect.

Madison's a tough nut to crack. I remember hearing a scholar say his biggest surprise about Madison was his commitment to federalism, the devolvement of power to the state level. Seldom argued elsewhere.
___________________

Mr Abbott writes:

"Congress shall make no law respecting an establishment of Christianity [...]"

If so, I'll remind you that the establishment clause is restrictive. If non-Christian religions are not encompassed by it, then Congress may make law respecting an establishment of Islam/Paganism/Hinduism/etc.

I'm sure that is not what you intend.



Hehe. Good one.

Our Founding Truth said...

"Congress shall make no law respecting an establishment of Christianity [...]"

If so, I'll remind you that the establishment clause is restrictive. If non-Christian religions are not encompassed by it, then Congress may make law respecting an establishment of Islam/Paganism/Hinduism/etc.>

The above quote doesn't follow. Religion is left to the states, and they established Christianity. The context is the same for both realms. Then, Congress can only grant Islam/Paganism/Hinduism/etc. freedom of conscience. They could never be the National Church. It is blasphemes, (sp) which is punishable by fine and prison, against common law, proving it is impossible to happen.

Every ism would be included in the EC clause, taoism, etc. If any religion could be the National Church, Satanism could be the National Church. It is a religion and would come under the secularists perview of the EC clause.

Jonathan Rowe said...

OFT,

You are still not presenting logic, facts or history to prove your position, only that you don't like those other religions.

That's the beauty of the First Amendment, Congress shall make no law respecting an establishment of Satanism nor prohibiting the Free Exercise thereof works perfectly with it. I think you would object to Congress making a law respecting the Establishment of Satanism.

Our Founding Truth said...

You are still not presenting logic, facts or history to prove your position, only that you don't like those other religions.>

Since the framers despised other religions, not liking other religions is their position.

That's the beauty of the First Amendment, Congress shall make no law respecting an establishment of Satanism nor prohibiting the Free Exercise thereof works perfectly with it.>

Well, I'll find out soon enough if that crazy theory was possible.

I think you would object to Congress making a law respecting the Establishment of Satanism.>

The framers would object, I am just trying to find their view. It isn't logical that these men despised, and was disgusted at paganism, and would allow paganism a chance to be the National Religion.

The EC Clause must only refer to Christianity, with the Free exercise clause including every belief.

Satanism or paganism was against the law; how could it be the established church?

bpabbott said...

bpa: "'Congress shall make no law respecting an establishment of Christianity [...]' [...] I'll remind you that the establishment clause is restrictive. If non-Christian religions are not encompassed by it, then Congress may make law respecting an establishment of Islam/Paganism/Hinduism/etc."

OFT: The above quote doesn't follow. Religion is left to the states, and they established Christianity.

When the 1st Amendment was ratified, the establishment clause restricted the actions of the federal government.

After the ratification of the 14th Amendment, those restrictions were incorporated so as restrict state and local governments in the same manner.

In the context of today, and by your argument (i.e. law respecting non-Christian religions is not restricted by the establishment clause), then Congress (or State Legislatures) may legislate laws respecting an establishment of Islam/Paganism/Hinduism/etc. By your argument, they may legislate with favor or prejudice.

OFT: "Congress can only grant Islam/Paganism/Hinduism/etc. freedom of conscience. They could never be the National Church. It is [blasphemous], which is punishable by fine and prison, against common law, proving it is impossible to happen."

Under US law, blasphemy is not punishable by fine or prison ... I doubt you could convince an average fifth grader of that. It might be useful to examine why blasphemy is not subject to legal sanction ... but not today.

OFT: "Every ism would be included in the EC clause, taoism, etc. If any religion could be the National Church, Satanism could be the National Church. It is a religion and would come under the secularists perview of the EC clause."

Correct, all legislative action respecting establishments of any & all religions is restricted by the establishment clause.

By the way, I recommend that you avoid the use of the term National Church as it does not fit the context (something I need to remind myself of as well). The proper term is Established Church. The reason isn't so much as to bring the term into line with the understanding of the establishment clause, but because established Churches exist by rule of government authority ... they are established by government authority.

A National Church does not rely upon government authority, but upon the will/desire of the citizens.

Give some thought to that.

Tom Van Dyke said...

That's the beauty of the First Amendment, Congress shall make no law respecting an establishment of Satanism nor prohibiting the Free Exercise thereof works perfectly with it.>

Well, I'll find out soon enough if that crazy theory was possible.

I think you would object to Congress making a law respecting the Establishment of Satanism.>

The framers would object, I am just trying to find their view. It isn't logical that these men despised, and was disgusted at paganism, and would allow paganism a chance to be the National Religion.


Well, OFT, you got caught on the horns of the sophist. But sophism was an honorable profession among the ancient Greeks---the teaching of accuracy in logic and argument.

And sophistic readings of the constitution have become law. [See making US citizens of children born of resident aliens on US soil.]

In this case, had the First Amendment used the term "Christian," a literalist/legalist reading could indeed permit Satanism as an established national religion.

The idea is pure nonsense, but it also indicates why the constitution employs more vague language rather than more strict language. Stricter language is more easily perverted. Perhaps someone pointed out this possible loophole for Satanism in the debates.

As for you Ben, it's astonishing to see you actually making affirmative arguments here, and now I understand why you usually steadfastly refuse to do so. I'll let them slide in the interest of encouraging you to venture more of the same.

After all, you've just stuck a toe in the water, but with a little patience, the shark can get an entire meal instead of a snack. ;-D

Jonathan Rowe said...

We might need to go back and examine the no religious test clause debates on Art. VI. Many people DID point out the loophole that non-Christians were eligible to be voted into office. And the response was Christians still have the right to VOTE Christians into office and if we decide we want to vote for someone who is non-Christian, so be it.

Tom Van Dyke said...

I also think they were well aware of the propensity of Christians calling the other guy not-Christian.

Who decides?

Best to drop the word completely, the Gordian Knot Solution.

Brian Tubbs said...

Re: natural rights and Christianity...

Has anyone read Dinesh D'Souza's What's So Great About Christianity?

He makes arguments similar to OFT - that Christianity (more so than other religions, certainly more so than Islam) provides our current western understanding of natural rights and civil rights.