Thursday, December 10, 2009

Religion Left to the States?

A good discussion broke out in the comments section under my last post American Creation: Time to Move Forward? that I should have brought up to the main page a while back but I got busy.  A commenter named David Kalivas is debating Tom Van Dyke about whether religion was left to the states in the Constitution prior to the 14th Amendment.  Below is part of the dialogue:

David stated:

"This was not a Christian document, it was a statement declaring the dissolution of a social contract with the British Crown. Referring to the DOI as a religious document is not reading it, nor focusing on the men who wrote it. Certainly, given the war had begun, there were other urgencies in mind and the major concern of the Continental Congress was to agree on dissolution and have a declaration that articulated their case against England and then get to the details of funding and waging the war. It is also interesting to note when time came for a Federal Constitution that created the legal framework for the new country,there were no references to divine providence or any such deity."

To which Tom replied:

"That's because they left religion to the states.

Also, as Joseph Story noted, had the Constitution been loaded with religion, states like Virginia would have been unable to ratify because of their own laws and charters.

Joseph Story was a Supreme Court justice and wrote the first major analysis of the Constitution. More here:

Then David began to argue from article six of the Constitution:

"A favorite expression of several participants in this discussion has been "the constitution left religion to the states." That statement does not appear to be completely accurate. I would venture to say that the constitution left religion up to individuals. Further, lets re-read the First Amendment as it pertains to religion: 
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.."
There is nothing ambiguous about this statement -- the national government was not authorized to establish a state religion and neither should it interfer with the free expression of religious worship.

And then we have that other little fact called Article VI:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

David concluded with this:

"In the case of establishing or prohibiting a state religion, those powers were prohibited and made the law of the land by virtue of their prohibition as articulated in the First Amendment and as further supported by Article VI stipulating the subordination of the states on matters of establishing or prohibiting religion as a state function. This language would not have been so carefully crafted to protect free worship of religion and prevent the establishment of religion within the union of states had there not been the intent to make sure the government was secular even though the communities were for the most part religious in nature. It is one thing to be religious and quite another to govern soley from the tenets of any specific religion. The notion that the constitution left religion to the states is not in keeping with Article VI or the First and Tenth Amendments."

Tom replied:

"In counterargument, I present two relevant quotes:

“I consider the government of the United States 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 of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General government. It must then rest with the States.”

"…the whole power over the subject of religion is left exclusively to the State governments to be acted upon according to their own sense of justice and the State constitutions.”
---Justice Joseph Story in 
Commentaries on the Constitution

One of the chief arguments to the "Nation is founded on Christian principles argument" is that the Constitution has no references to God in it.  Tom Van Dyke was the first person I ever read that countered that religion was left of to the states.  I read most of what he said about it and actually changed my mind and now believe he is right.  So much so that I replied to David:

"Show one quote where Jefferson wanted to use the Federal government to override the state on matters of religion? Jefferson also as governor called for fasts that he would not as President. Was it politics? Maybe but it was also consistent with his feelings about federalism and religion. Tom's quote is right on and yours is a poor reply.

Daniel Dreishbach wrote a good book called "Thomas Jefferson and the Wall of Separation Between Church and State" I have not finished it yet but it gives some real insight into the quote your cited from Jefferson and exactly what it means.

You are wrong on this one. I know many strict secularists that at least admit that the Founders intended to leave religion to the states."

Of course I could be wrong but I think TVD has a good case.  If he is right lovers of truth must confront what Tom calls the "prevailing narrative" of the founding and the "Godless Constitution" argument.  If we are going to call out David Barton the other side needs to be called out as well.  This is where I commend Dr. Gregg Frazer.  I might not always agree with him but he hits the strict "secularists" like David just as hard as the strict "Christian Nationalists".  

What do you guys think about this?  I think it fits well with the question I have been asking in my last few posts:

Which Christian ideas, if any, helped bring us into the modern world?

I for one do not believe there is any "form" of Christian government.  I think there are principles that can be used to form governments.  I am more interested in the principles behind the purpose of the government.  With that said, I think most on this site agree that Republicanism is not a Christian idea.  That should free us up to discuss the "Godless Constitution" theory and hopefully sooner or later get to the DOI.  I was going to post on Gary Amos and the DOI but I think David and Tom have the floor right now and I do not want to distract from a great discussion on a relevant topic.

Let's all chime in and invite our friends.


Gregg Frazer said...

Article VI is irrelevant here because the Constitution does not say that "government" shall not make any law respecting establishment, it stipulates that CONGRESS shall make no such law. So, if a state legislature makes such a law, it is not violating the Constitution because it is not Congress. There is no opposition to the Constitution, so no grounds for invoking Article VI.

Tom is quite right that the relevant amendment is the 10th for the reasons he gave.

King of Ireland said...

I think you are right Gregg. We are starting to agree more. Something has got to be wrong.

David Kalivas said...

No specific mention of Congress in Article VI:

Article VI

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

Tom Van Dyke said...

The question isn't necessarily whether Mr. Kalivas' constitutional argument is valid because these days anything goes, but whether there's any historical precedent that the issue was ever understood that way.

All historical evidence points to the contrary.

Jefferson's argument is elegant, though: The Constitution was understood to give only limited powers to the "general" [federal] government, and religion was not one of them. Further, the First Amendment [amendments supersede what comes before, we must keep in mind, so that would include Article VI] explicitly says the federal government must keep its hands off religion.

So as Jefferson and Story note, that leaves the power to the states, and I believe Roger Sherman's work on the Tenth contemplates this as well.

Gregg Frazer said...

The issue is not whether Article VI mentions "Congress" (that isn't what I said). The point is that the provisions of Article VI make the Constitution superior to state law WHEN THEY CONFLICT with one another. But the First Amendment only limits what laws "Congress" can pass -- it doesn't place any limits whatsoever on the states -- it doesn't even mention the states.

Article VI says that state law cannot violate the Constitution -- but the Constitution never says that state legislatures shall make no law respecting establishment of religion. So, there's no conflict into which to insert the provisions of Article VI.

As Tom suggested here, and as I suggested on the other page, I'd like to see some historical evidence that anyone at the time saw it the way Mr. Kalivas does.

As Tom has noted, the 10th Amendment reserves to the states all powers not delegated to the national government or prohibited "to the states" -- it does not deny to the states powers prohibited "to Congress." The whole point of the 10th Amendment is that the states can do whatever is not given to Congress (and not prohibited to them).

As I also noted before, only a handful of establishment clause cases had to be dealt with by the Court in the first 150 years because everyone understood it to mean what Tom and I have been saying. So, activities at the state and local level were not relevant. It is only after Everson in 1947 that a plethora of cases arise -- having to do with state and local matters.

Gregg Frazer said...


[MY OPINION FOLLOWS] It is refreshing to be on the same side as you and Tom. I think it should tell you both that I'm not the raving ideologue that you think I am. I'm not on the extreme of either side; I'm trying to get at the truth -- which is often (but not always) somewhere in the middle. I'm trying to take into account all of the evidence.

King of Ireland said...


I disagree with some of your stances but we see eye to eye on a lot of things. We just have not talked about those things that much.

I have always said you are fair. I think you, I do it a lot too, are black and white on some things that could be gray. I said I would stop calling you judgemental and start using the term black and white. That is what I really mean. The former is a poor choice of words. You did not get my comment where I apologized?

As far as your opinion. I think you think you are quoting God sometimes when you are just quoting what you think the text is saying. But if you want to clarify everything with prefacing it with your opinion go ahead.

Most of the crap I give you is to egg you on. Above all things I am a marketer. Have you noticed that when you show up the comments go up? I went back and looked and when you and I go at it the comments are the highest in the history of this blog. A lot of it is really Tom and you going at it but Tom is a behind the scenes guy. The socratic method, intentional or not, is what makes this sight what it is. I go back and read the old debates a lot and learn more than by someone telling me.

So for the record you do call them like you seem them. I think I have said that before. I still think you asked the wrong question with your thesis though. But we can leave that to another day and let you, Tom and David go at it.

Tom Van Dyke said...

Gregg, we have a disagreement about the application of the term "Christian," which you define from the inside and I from the outside. I have never found your position extreme, invalid, or unreasonable. However, I have never known us to disagree about the underlying facts, and that's the good part. This is what makes discussion possible, a common language, that and that we respond directly to each other's arguments and do not evade them. Mr. Rowe and I don't always see eye-to-eye either, but share the same common language and co-operation as well. Cheers, mate.

King of Ireland said...


I echo Tom. I think my issue is that you focus on applying the term Christian to people of the era when it is more relevant to attempt to apply it to the actual ideas we are looking at. I think this is what time means when he talks about socio-historical.

I think this current discussion is causing us all to see some common ground and maybe the road less traveled that will shed some light on what we need to take from the second wave into the third wave as political, theological, and philosophical underpinnings that made us who we were and no longer are in many ways.

Pinky said...
This comment has been removed by the author.
Pinky said...

Of course, Gregg Fraser is correct.
I have no doubts.
BTW, it is proper to always capitalize the word constitution when you are talking about the U.S. Constitution.
It's a matter of respect.

David Kalivas said...

Let me ask the group some questions so that I may more fully understand the context of this discussion.

1. Did post-1790 America leave legislating on matters of religion up to the individual states?

2. Was it the intention of the Founders to leave the right of establishing or aiding specific religious groups up to the states?

3. As Amendments essentially re-create the Constitution each time it is amended. Was it the intention of the Founders to exclude the Bill of Rights from offering protection to the individuals of the national community within the individual states?

4. Did the First Amendment, and the Bill of Rights, apply to the National (Federal) Government during the first 150 years of the United States?

5. Does Article VI provide for establishing national law and the US Constitution as the supreme basis for laws in all states?

I appreciate your patience in taking the time to provide additional clarity for me. All the best.

Jonathan Rowe said...

The "religion was left to the states" is accurate as far as it goes. However, it's mainly a jurisdictional claim. The FFs were quite "anti-Statist" and believed the Federal government extremely limited in its jurisdiction.

Many things about today's modern era would appall the FFs. What many social cons ignore -- because it's a hard case -- is the Supreme Court's (and the President's and Congress'!) understanding of the Commerce Clause post-Wickard. (I not sure if we can or should repeal the New Deal; but THAT would shock the FFs as much as any modern cultural change.)

The FFs believed, given the extremely limited reach of the federal government, state and local governments were the best guarantors of natural rights.

But they DID believe the "unalienable rights of conscience" had some kind of meaningful reach/claim against ALL governments. You could draw more of a consensus among them on Free Exercise issues than Establishment Clause/equality issues, however.

But a larger point is the substantive ideals of the FFs are to some extent federalized thru the 14th Amendment. And as Prof. Amar notes, it's the framers and ratifiers of the 14th's views on religion and government that ultimately determine what gets applied against state and local governments.

bpabbott said...

Regarding Article VI Clause 2, those interested can read many of the Founder's thoughts here.

bpabbott said...

U.S. Constitution: Article VI Clause 2. Supremacy of the Constitution, Laws and Treaties at

Tom Van Dyke said...

Jon, Wickard is 1942, and what does it have to do with "social conservatives?"

Everson [1947] is plenty to chew on. But if you're saying Wickard was the death [murder!] of federalism, perhaps that battle's not over yet. We can only hope.

The "religion was left to the states" is accurate as far as it goes. However, it's mainly a jurisdictional claim.

Well, Dr. Kalivas disputes even that. Sorry, David, your questions were largely answered infra, and you haven't answered any of the questions directed at you first. I for one am interested in our presenting evidence for our opinions; whether we all agree in our conclusions is secondary, even unnecessary. It's all about cooperative inquiry and discussion, not who's right and wrong. I'm sure King didn't mean to present it as debate with winners and losers.

Jon, I don't share your expansive and poetic reading of the 14th, but I'd agree that religious tests would violate individual rights.

Although New Hampshire required officeholders to be Protestant until 1877! Just a new factoid I just ran across.

However, I think there's something to what Pinky's been posting on, the understanding of private and public rights. Would a state established church [public] violate someone's individual rights? Surely not up until the 14th [1868], although I'm sure any court was rule that it did in 2009. Although I'm not sure I'd agree with the reasoning.

But that's getting off religion and the Founding, and I don't have much interest in the Court's "reasoning" over the past 60 years or so. Anything goes once one gets expansive and poetic about the 14th. It has nothing to do with reason.

Jonathan Rowe said...

"Well, Dr. Kalivas disputes even that."

So did the Baron contrarians. And many of them were serious thinkers.

Lysander Spooner, likewise, thought slavery was unconstitutional before the 13th and 14th Amendments.

Angie Van De Merwe said...

It seems an "ideal" that the local or state level is more aware of the pertinent needs and issues concerning their locale, which is a good thing. The difficulty and problem becomes when local means ingrown. Ingrown communities are prone to neopotism, and conflict of interests.

While this is true at the local and state level, the national level leaves little persaonabilty to know or understand the situation or needs of certain locations and universializing "needs" can be a mistake, as well as more expensive. But, the national level is more objective in holding the local or state accountable to the "rule of law", which is supposed to be blind equality (non-discrimanitory)...hard to do in small towns and communities...

Wasn't this the South's argument over the issue of slavery and the "need" of the slave for economic reasons?

Tom Van Dyke said...

Jon, I don't disagree with Lysander Spooner or Dr. Kalivas in the abstract. [Well, actually I do, but that's not the issue.]

But those arguments are abstract, not historically germane to the Founding.

Religion was left to the states, and if anything, the fed govt accommodated religion, and was not hostile to it in the name of "neutrality," as we see in 2009.


And Angie, you have a grain of discussable truth about the virtue of local governance vs. the problem of "ingrownnness," which Madison addressed in the Federalist Papers.

But slavery clouds the waters instead of providing clarity.

They called slavery the "peculiar" institution, and we use that word today to mean weird or odd, but what they meant back in the 1700s and 1800s is in the secondary definitions:

1. Unusual or eccentric; odd.
2. Distinct from all others.
3. Belonging distinctively or primarily to one person, group, or kind; special or unique.

Race is America's original sin, and cannot be compared to anything else. Distinct from all others.

Jonathan Rowe said...

The problem with that Tom is that race can be compared to other things and is rightly compared.

Ever hear the phrase "white propertied Protestant Males." There is more than just "race" in that phrase.

Slippery slopes, logical implications, and reductio ad absurdums run in all directions. If you can tease out torturing puppies from the opponents abstract ideals, we can get more than just "race" re the Founders failure to live up to the implications of their ideals.

NOTHING is sui generis. To claim something is, is a sophistical debating trick to try to stop slippery slopes and others taking your logic to places you don't want.

Tom Van Dyke said...

NOTHING is sui generis.

No. Comparing everything to race is the real "sophistical debating trick to try to stop slippery slopes and others taking your logic to places you don't want," because race is the sympathetic and lazily-played trump card. Reason goes out the window.

Sorry, dude. Any other argument outside race should be able to stand on its own without playing the race card. Race is peculiar, America's original sin.

And none of this has anything to do with religion and the Founding, except in the abstract world where everything equals everything else. That is relativism, and it has zero to do with history.

Pinky said...

Our ancestors in that Founding generation were steeped in religion. The pulpit was to them what our television is to us today. They didn't have to legislate religion, it was the culture they swam in.
So, I'm questioning that a populist government would feel very much limited by the law regarding religious activity.

David Kalivas said...

Mr. Van Dyke writes that I haven't responded to his questions, when in fact I have, but my responses have been dismissed as out of historical context, or abstractions detached from reality, or simply inaccurate. Whatever I've offered, the responses have informed me that it's not so, or I've been asked to present evidence and then I supply responses using the primary sources with my explanations and have been told I'm wrong again. On top of that, whatever counter-arguments I've used have simply been ignored or told they're inaccurate, or that the burden of proof is on me to present evidence, etc, etc...

However, I have not seen convincing evidence that indicates the principal founders were not influenced by deist or free thinking, have not seen much evidence that the intent of the Federal Constitution was to create a strong national government with the Supremacy Clause (Article VI) edge over the strong state governments, nor have I seen any evidence to support the contention that in matters of religion it was left up to the states to direct religious worship, or establish state religions, which in fact was left up to individual conscience. I forget who dismissed the notion that it did not matter if the several state constitutions approving state religions were from the pre-Federal era and it did not matter that those few state constitutions were amended and ended those provisions by the 1830s. Well, it did matter, that was part of the historical context that reflected a culture that was increasingly respecting and increasingly creating a "wall between separation of church and state." ( I believe that's from one Jefferson's many statements).

My understanding of the US Constitution and the principal Founders has always been their desire to balance factions, including the popular faction, and give an edge to the national government in conjunction with strong state governments and leave personal freedoms up to individuals within a general framework established by the Bill of Rights -- a difficult balancing act that has not always succeeded to the satisfaction of all parties.

I've always like this quote from former Justice Sandra Day O'Connor in her book _On the Majesty of the Law_:

“The Bill of Rights was drafted intentionally in broad, sweeping terms, allowing meaning to be developed in response to changing times and current problems,” O’Connor wrote. “In many ways, the Bill of Rights is like a novel by Faulkner or a painting by Monet: it does not change, but our understanding and perception of it may.”

In any event, the next couple or so days is going to be quite busy for me with end of term grading, but I will offer more responses and re-join the conversation once I have a chance to do so. Need to dig up materials and either find additional evidence to support or change my perceptions based on what I find. Until then, all the best to everyone.

jimmiraybob said...

David, on the earlier thread I cited USSC case law incorporating these very issues[TORCASO v. WATKINS], including Article VI, - specifically state establishment of religion, and was either ignored or dismissed without argument. I quoted a former North Carolina state Supreme Court justice and executive director of the N.C. Institute for Constitutional Law (Bob Orr) regarding a similar situation now occurring there*, “Rights enshrined in the U.S. Constitution trump the restriction in the state constitution.”

*North Carolina’s constitution – “Article 6, section 8 of the state constitution says: ‘The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.’”

I don't know what to say but keep up the tenaciousness.

Carried over from downstairs:

TVD - I don't even think religion per Article VI or the First Amendment even need be applicable in the case you cite [TORCASO v. WATKINS (1961)].

Tom, it hardly matters what you or I think, although I see the applicability, since it/they is/are relevant as held by the USSC and beyond. States cannot pass laws or adopt constitutions that require a religious test - and an oath asserting a belief in God establishes a discriminatory test and acts as an establishment of a specific religious belief.

Some footnotes from TORCASO v. WATKINS:

[ Footnote 9 ] In one of his famous letters of "a Landholder," published in December 1787, Oliver Ellsworth, a member of the Federal Constitutional Convention and later Chief Justice of this Court, included among his strong arguments against religious test oaths the following statement:
"In short, test-laws are utterly ineffectual: they are no security at all; because men of loose principles will, by an external compliance, evade them. If they exclude any persons, it will be honest men, men of principle, who will rather suffer an injury, than act contrary to the dictates of their consciences. . . ." Quoted in Ford, Essays on the Constitution of the United States, 170. See also 4 Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution, 193.

[ Footnote 10 ] In discussing Article VI in the debate of the North Carolina Convention on the adoption of the Federal Constitution, James Iredell, later a Justice of this Court, said:
". . . [I]t is objected that the people of America may, perhaps, choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But how is it possible to exclude any set of men, without taking away that principle of religious freedom which we ourselves so warmly contend for?"
And another delegate pointed out that Article VI "leaves religion on the solid foundation of its own inherent validity, without any connection with temporal authority; and no kind of oppression can take place." 4 Elliot, op. cit., supra, at 194, 200.

[ Footnote 11 ] Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others. See Washington Ethical Society v. District of Columbia, 101 U.S. App. D.C. 371, 249 F.2d 127; Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 394; II Encyclopaedia of the Social Sciences 293; 4 Encyclopaedia Britannica (1957 ed.) 325-327; 21 id., at 797; Archer, Faiths Men Live By (2d ed. revised by Purinton), 120-138, 254-313; 1961 World Almanac 695, 712; Year Book of American Churches for 1961, at 29, 47.


So, what I said previously stands, "I think that it’s abundantly clear that the founding spirit is about the rights of individual conscience, especially when applied to religious freedom. The US Constitution may have left religion to the states in the sense that the peoples of any of the several states could establish the religions and religious practices of their choosing but as a political matter governments could not dictate religious belief or custom."

David Kalivas said...

After quoting from case law Jimmiraybob wrote:

"Rights enshrined in the U.S. Constitution trump the restriction in the state constitution."

"...the founding spirit is about the rights of individual conscience, especially when applied to religious freedom. The US Constitution may have left religion to the states in the sense that the peoples of any of the several states could establish the religions and religious practices of their choosing but as a political matter governments could not dictate religious belief or custom."

Yes, I appreciated reading the case references and agree with your conclusions jimmiraybob.

Just couldn't resist taking a peek here, now I'm on my way back to those term papers. Look forward to the discussion.

Daniel said...


Your citations clearly show that there was opposition to religious tests at the time of the founding and that in the past 40 years or so, the prohibition against religious tests has applied to the States. They do not address the question whether States could impose religious tests.

I think practice at the time indicates that the trend in the States was away from any form of religious establishment. But the Constitution did not mandate that. Arguably, the Constitution did require that when the Constitution was amended following the Civil War, but even that was not discovered until years later.

I'm not sure whether we are all using terms in the same way, so I should be explicit. I agree that the Constition left religion to the States. By that, I simply mean that the Constitution does not address State laws concerning religion. It do not think that means that the Framers intended that the States establish religion. They assumed that different States would do different things.

It is difficult to remember that the States really were viewed as sovereign. The Constituion, in its original conception did not make the States entities of the United States. They remained sovreigns within a sovreign. When the Constitution refers to the United States, it refers to the national entity, and not to the individual States.

King of Ireland said...

Jrb stated:

""...the founding spirit is about the rights of individual conscience, especially when applied to religious freedom. The US Constitution may have left religion to the states in the sense that the peoples of any of the several states could establish the religions and religious practices of their choosing but as a political matter governments could not dictate religious belief or custom."

No they left it to the states because they were not going to touch that issue. They ignored the establishment of several churches.

Dr Kalivas states:

"My understanding of the US Constitution and the principal Founders has always been their desire to balance factions, including the popular faction, and give an edge to the national government in conjunction with strong state governments and leave personal freedoms up to individuals within a general framework established by the Bill of Rights -- a difficult balancing act that has not always succeeded to the satisfaction of all parties. "

I would agree with most of that statement except that they wanted to give the edge to the National government only on certain things. They were spelled out. The rest was left to the states or the people. If the states were violating individual rights then those individuals would have to petition the 3 branches of the National government for redress.

Do you have any examples of anyone who did that in the Founding Era? I think it is because Gregg is right and the understanding was that "Congress" pass no law. Religious Freedom man himself Jefferson was in office when he wrote the Danbury Baptists. Is their any evidence that they were attempting to petition the National legislature or courts to disestablish the Congregationalists(I think it was them)?

I also repeat that the frame this discussion started in was the "Godless Constitution" argument. Even if it was something they ignored and got back to later like slavery it still shows:

1. How weak the National government was
2. That that is the reason for them to stay silent on the issue other than say Congress was not going to establish one church over another and had no power to stop people from exercising religion.

I think your taking a post 14th amendment case and trying to make it fit into a time period it would never have been listened to. Hell, they had to shove it down the South's throat just to get it ratified about a hundred years later.

King of Ireland said...


Well put. I do not think anyone is arguing that they intended to have the states establish religion. They just were not going to touch state sovereignty as you put it. Not on any issue.

I am sure they all probably agreed that it was a bad thing to torture dogs. They were not going to claim supremacy and nullify a state law that said it was ok. They could not because they did not have enough muscle to do it even if they wanted to.

They were more worried about another King than they were about States abusing individual rights. That is where I think Dr. Kalivas gets it wrong. Too much emphasis on the power of a weak central government that was designed to be weak for that purpose.

King of Ireland said...

I took Gregg's advice and went to Ben's link and found what Madison had to say about Article 6 in a letter to Jefferson:

"This ground-work being laid, the great objects which presented themselves were 1. to unite a proper energy in the Executive and a proper stability in the Legislative departments, with the essential characters of Republican Government. 2. to draw a line of demarkation which would give to the General Government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them. 3. to provide for the different interests of different parts of the Union. 4. to adjust the clashing pretensions of the large and small States. Each of these objects was pregnant with difficulties. The whole of them together formed a task more difficult than can be well concieved by those who were not concerned in the execution of it. Adding to these considerations the natural diversity of human opinions on all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle."

He goes into much more detail and explains how he favored the National government being able to negate state laws and how his idea lost out by a slim majority. The relevant part here is number 3 about about providing for different interests in different parts of the union. I did not read one thing about individual rights or anything to do with religion at all. It is probably because it was the interest or business of the states themselves.

Some were interested in land. Others in keeping their slaves. Others in making sure they were represented in a way that did not allow the big states to rule. And yes, some wanting to keep their established church in place. With these slim majorities on each vote if any walked it was over. Not to mention if things were not worded right to ensure protection of these interests ratification would fail in certain states.

Ben where did you get that? Do they have it for all the article and clauses? I want to bookmark it.

Jonathan Rowe said...

Wrong Tom. America's original sins extend to many categories beyond race (and includes religion, ahem, anti-Roman-Catholic bigotry). And neither the DOI or the 14th Amendment, when they invoke their ideals, mention "race" at all.

bpabbott said...


The University of Chicago is a great place to read about the Constitution.

The table of contents is here.

For this site's purposes, Amendment I (Religion) will be where most of the interest is.

Regarding Madison's letter to Jefferson and your comment; "I did not read one thing about individual rights or anything to do with religion at all.", at that point in time (1787) Madison held the opinion that a Bill of Rights was unnecessary because the powers of the national government were specifically enumerated, and did not permit the Nation's government to act in a manner that the Bill of Rights prohibited.

James Madison University's web site has an analysis Madison's letter to Jefferson.

They also have an Introduction to Madison and the Bill of Rights which includes;

"At the Constitutional Convention, James Madison had not believed that a bill of rights was required for the new government. However, during the ratification process, several states had called for a bill of rights, and Madison felt it was his obligation, his duty, to propose one. Madison also clearly felt a need to control the amendment process by taking leadership of the effort. New York, when it ratified the Constitution, had called for another constitutional convention, which was now clearly provided for in the Constitution. By drafting a Bill of Rights, Madison headed off that possibility".

The is also some good information at (For example: Amendment I).

The Separation of C&S Homepage is another good source of information. This one is an old favorite of mine ... it includes a lot of commentary on current issues (which can be interesting), but I like it for its examination of history, specifically the Founder's intent.

King of Ireland said...

Jon stated:

" And neither the DOI or the 14th Amendment, when they invoke their ideals, mention "race" at all."

Now at the risk of being an idiot and arguing the Constitution with a lawyer, I think this is a little bit of a rhetorical device. To look at the 14th Amendment by itself and not take into account the 13th and 15th is foolish. Both of those clearly state "race" and were drafted to protect the individual rights of one race. That was all their was back then. The whites that already could not be slaves and vote and the blacks who could not.

Now it is applied, and rightly so, to all races and cultures of people now. I think it is abused to. Along with the supremacy and interstate commerce clauses. I do think the New Deal needs to be repealed. That is a topic for PL more than here but to correct the sins of our country with other possibly worse sins is not helping anything.

Their is a difference between being equal and the same. Our nation was founded on the former and the statists would drive us toward the latter. I think both groups use "Christian Ideas". This goes back to my post about Lockean Christianity vs. Augustinian.

I went back and read the debate at the NC ratification convention for the 1st Amendment. There were more worried about the Pope being President than anything else. A distant second was having pagans and Muslims in government and wanting to keep religious tests.

This generation mistrusted centralized power in government and for good reason. This would include religion and that is why some things were allowed to go on in some states that not all would have agreed with. It was there business as a state to fight it out like they did in Virginia. They all eventually did and did not need big brother telling them what to do.

Daniel said...

K of I,
I raised the point because I think it is sometimes unclear in the discussion. At times I have thought I caught an implication that there was an expectation or desire that the States take care of (i.e. establish) religion. It seemed best to spell it out.

The more I read, the more I think it is a mistake to say "the founders thought ...". Some mistrusted central government; others simply wanted to preserve their States power. Some wanted religion in government, some wanted it out, and some wanted it in except that they feared the wrong flavor of religion taking control. The Constitution was a compromise product of many ideas and interests.

Jonathan Rowe said...


I haven't yet presented it, but it looks like we are going to have too soon; there is evidence in the record that the Privileges or Immunities Clause of the 14th was intended to incorporate the Bill of Rights, including the 14th, against the states.

Check out Timothy Sandefur's brief that he prepared for the Cato Institute that I linked to in the meantime. It deals with the subject matter at hand.

bpabbott said...

For those who haven't come across it before, Wikipedia has a nice article on the 14th.

Its introduction is below.

"The Fourteenth Amendment (Amendment XIV) to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments on July 9, 1868. The amendment provides a broad definition of citizenship, overruling the decision in Dred Scott v. Sandford (1857), which had excluded slaves, and their descendants, from possessing Constitutional rights; this was used in the mid-20th century to dismantle racial segregation in the United States, as in Brown v. Board of Education (1954). Its Due Process Clause has been used to apply most of the Bill of Rights to the states. This clause has also been used to recognize: (1) substantive due process rights, such as parental and marriage rights; and (2) procedural due process rights requiring that certain steps, such as a hearing, be followed before a person's "life, liberty, or property" can be taken away. The amendment's Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions. The amendment also includes a number of clauses dealing with the Confederacy and its officials."

A quick google will produce many articles on the 14ths intent, one example.

Tom Van Dyke said...

Jon, considering how the 14th Amendment is invoked in ways that would startle even the most imaginative of the ratifiers, no slippery slope argument seems far-fetched.

Nude table dancing,

I kid you not.

We can turn this blog into a debate on constitutional theories in 2009, but that's not history. As for incorporating the 14th against religion and the states, the failure of a proposed 15th Amendment, the Blaine Amendment, is quite germane if we're to keep any tether to religion and the Founding.

As for slavery, it was peculiar to America. "Sins" like anti-Catholicism aren't in the Constitution, and we common to England as well, making sins like that not terribly original.

Invoking slavery, unless it's about slavery itself, simply poisons the well no less than invoking Hitler.

King of Ireland said...


I read part of it. His article on John Locke changed my life and really pointed me to what I want to do:

Property Law

I lost sight of that trying to straighten out the public schools and their lunacy. I am going to do Real Estate and hopefully have some time to do law on the side.

My one issue with him is excepting Locke's philosophy and rejecting his theology. It is the same mistake the French made. The Second Treatise means nothing without the First.

This 14th amendment keeps coming up for a reason here. Federalism was a vital principle to our founding. It no longer exists. I am afraid that some who would benefit from that used race and other heart issues to undermine the ideals of our government. The pendulum needs to swing way back the other way.

King of Ireland said...


There is not point in studying this stuff if it does not apply. There is a fine line of course and this could turn into a History class that only talks about current events. But just as bad is a history class that does not apply the lessons of History to issues of today in a relevant way.

I for one think this discussion of federalism is crucial to understanding the founding and religion. As the truth comes out the whole "Godless Constitution" argument is exposed for the fraud it is. When the DOI comes up strict secularists get real good about changing the subject and not answering the question.

The bottom line is that they pretty ignored the issue to get the deal done at the Convention. When it became necessary to placate both sides of the establishment debate they put in a very general view into the Bill of Rights. It was one of those potential deal breaker issues that was treated with kids gloves.

Silence on the issue does not = secular nation.

Jonathan Rowe said...

I reject the idea that the failure of the Blaine Amendment to pass means the First is not incorporated against the states. If you look at the text of the Blaine, it would have done much more than incorporate the First against the state.

We do have to get to John Bingham & the 14th.

This is what Bingham, the chief author of the 14, said on the house floor in 1871:

"Mr. Speaker, that the scope and meaning of the limitations imposed by the first section, fourteenth amendment of the Constitution may be more fully understood, permit me to say that the privileges or immunities of citizens of the United States, as contradistinguished from the citizens of a State, are chiefly defined in the first eight amendments to the Constitution of the United States. . . ." [Bold mine.]

Angie Van De Merwe said...

It is my understanding that Jefferson's DOI did separate authority of government from the individual. It is stated "We the People" and we have inalienable rights, which are granted by nature's god, not Church sanction.

Therefore, it would seem to me, that the Jabcobian (?) who were free-thinkers were not committed to organized religion. This is would lead to an affirming of individual conscience concerning liberty. Jefferson was foremost concerned about unifying the nation.

Angie Van De Merwe said...

but, I didn't add, Jefferson was no for the individual under State authority, either...

Angie Van De Merwe said...

In my reading of the "Priviledges and Immunities Clause", it states that states have no "required" behavioral standard toward their citizenry. And yet, in cases that concern those of other states, the visiting citizen must be "respected"???

What is the rationale of THAT? Shouldn't a state deem their citizens rights, just as important as visitor's rights? Citizens are not "wards of their state", are they?

Tom Van Dyke said...

Yeah, I read up on Bingham.

He was from Ohio. Do you think they'd have ratified the thing if they knew it could be read as requiring them to remove the Almighty from their state constitution?

They also removed "creed" from the earliest drafts of the Fourteenth. I understand your argument. I just don't think it lays proper claim to the Founding principles because its concept of "liberty" in 2009 is so untethered from the understanding of it in 1787 that now it includes nude table dancing.

That such absurd reasoning wins in the Supreme Court these days is a triumph of sophistry; the best we can do is point out the absurdity. That the Constitution requires the "liberty" to dance nude was beyond any reasonable expectation of any of the ratifiers, altho I admit bon vivants like Gouverneur Morris would absolutely have loved the idea.

Angie Van De Merwe said...

How is it "sophistry" to talk of the "real implications" of the law? Don't we have to understand how the Constitution reads and what it means to be able to understand real issues, and situations?

Tom Van Dyke said...

How is it "sophistry" to talk of the "real implications" of the law?

To twist its meaning, to redefine its concepts and "principles" so that one achieves the result he wants. I made my case above. "Liberty" means nude dancing. OK, whatever.

Jonathan Rowe said...

Nude table dancing as the reductio ad absurdum?


Hmm. Speech, as defined by America's Founders = words and/or pictures, especially those that convey expressive meaning. Hard core pornography whether painted, drawn, photographic stills or moving pictures = speech as America's Founders articulated the concept (as words and/or pictures that covey expressive meaning).

For nude table dancing, the question is whether a live event that otherwise is entitled to First Amendment protection when captured in permanent form is entitled to the same protection. Arguably it is.

What WOULDN'T be protected under the First Amendment is lap dances because that involves contact. (But perhaps we could make a 9th and/or P or I claim for that).

Jonathan Rowe said...


That seems an illogical result (yes, I've seen a few scholars try to make that argument).

The scholars I follow argue the P or I clause grants citizens of the United States certain baseline rights, regardless of what state they are from. Likewise the Equal Protection Clause requires all governments to give the same equal protection of these privileges or immunities to all persons, regardless of their state citizenship and arguably regardless of their national citizenship as well.

Angie Van De Merwe said...

I tuned in to the last part of an interview this morning on NPR. A Iranian Dutch citizen who was writing his dissertation on the philosophy of technology was talking about recent legislation that limits certain nationalities to gain entrance into certain institutions. It seemed that he had sued because of the limitation upon his career...I guess the issues of international law, and national security are always at odds...

Tom Van Dyke said...

Nude table dancing as the reductio ad absurdum?

Not a reductio atall. Just absurd, and quite real. That's the problem.

Angie Van De Merwe said...

I do not know what you mean, by nude dancing on the table...are you talking about legally sanctioning certain behaviors?

King of Ireland said...


He is talking about a First Amendment case he cited many comments back.

David Kalivas said...

Here is the first part of my post:

My understanding of Article VI is there does not have to be a conflict for Article VI to be “invoked.” The relevant clause of the Article is quite specific:
“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
It says the National Constitution and all laws of the country are the supreme law of the land. It further states that each state’s judiciary is bound to the national constitution and to the laws of the national government. The clause then goes on to stipulate that anything in the “constitution or laws of any state” that are contrary must conform to the laws of the land. In short, the US Constitution and the laws of the national government must be adhered to by the states, no matter if there is or is not a conflict, but a conflict naturally creates conditions for court challenges of state law. There is no provision for when this clause will be or won’t be “invoked,” it is always in force. However, when a conflict between state and national legislation does occur then state laws are subordinate to the national law and Constitution. That being said, if the States began legislating to institutionalize or impede religion or religious worship, then such state laws would be un-Constitutional and subject to nullification either through state legislation or through a judicial ruling, which can happen in a variety of ways. Religion was not left to the states, if the establishment or interference of religion was exercised at the state level then it would be in violation of the spirit and wording of the Constitution. The intent of many founders varied, but regardless of those multiple views, what came out of the constitutional convention and the wording of the actual First Amendment in conjunction with Article VI have some relevance here. To cite those few state constitutions from the Pre-Federal Era that lingered into the first decades of the 1800s as examples of how religion was left solely to the states plays with the chronology of events as well as under appreciates the context of the times and the time it took to effect changes. However, the fact remains that those changes to state constitutions did happen and those examples were gone by the 1830s.

David Kalivas said...

Here is the second part of my post:

Further, the spirit and intent of The First Amendment section on religion, as first proposed by Madison can be gleaned here from one of the original proposal for that amendment: “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, or on any pretense, infringed.” This was not the specific wording that was later ratified as the First Amendment, but it does provide a window on Madison’s (and his friend Jefferson’s) views that matters of religion were not to be left to regulations or infringements by the government. And, as it was the national government that made laws for the country, and Article VI made those laws supreme over the states, then it suggests that it was not the states that should regulate or legislate on matters of religion, but that religion should be left up to the free will of the individuals per their individual “conscience” and not up to either national or state governments.

This was not a Republic founded as a Christian or Religious Republic, nor was it godless as there are references to the Divine Creator, Providence, and other iterations of god used by the founders. However, it is clear in the Constitution and the Declaration of Independence that sovereignty, the authority to govern at the national and state levels emanated and rested with the people and their elected governments. It is also was quite in keeping with the tenor of the late 18th and early 19th centuries to pay homage to the Divine Creator, or Providence without subscribing to a view that the government was ordained and guided by God and Biblical sources -- such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries.

King of Ireland said...

Dr Kalivas stated:

" such reliance on God is not evident in the language or authority structured by the US Constitution for the new society it created over the past two centuries."

That is the rub it did not such much create a new society as it built upon the "British Liberal Traditon" that is founded on natural rights and common law rights. The DOI is a legal document that presents the Christian case for interposition. Up until Parliment attempted to nullify their rights as Englishmen the representatives of the colonies argued from their rights as Englishmen. When those were taken away they appealed to natural rights.

See my post above on Gary Amos.

bpabbott said...


“This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

I read this as saying;

"This Constitution, and the laws of the United States which shall be made [as actions of the government]; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Thus I am in agreement that the laws of the Nation do trump those of the states. However, 1st Amendment specifically applies to the National government, and not to the states.

As such, prior to the 14th Amendment, the States were permitted to legislate to institutionalize or impede religion or religious worship.

What leads you to take the position that the 1st Amendment was intended to apply to State as well as the National government?

bpabbott said...

David, I hadn't read your 2nd comment before I commented above (my apologies).

You make a compelling argument for those who shared Jefferson's ideals universal religious liberty (I think Madison, and Mason, may be included here).

However, were those ideals intended by those who ratified the 1st Amendment. It does not appear to met that they were.

Angie Van De Merwe said...

I think I read somewhere, where the Jacobins or freethinkers and Jeffersonianism, lost the debate over nationalizing the ideals of the DOI, which would underwrite the human rights argument today.

The Constitution was made for the more conservatively minded. Our national interests are protected by our national boundaries and interests and this was the point of establishing the 1st protect religious liberty as well as underwrite the "right" of the national government over state rights, as it concerns individual citizens. So, Jeffersonianism was incorporated into the Constitution, which also affirmed the "rule of law", versus the DOI "free for all" democracy....

Pinky said...

This, of course, is another area I think as was mentioned by Tom, that we could argue until year's end.
Both sides make great points.
I remember an old saying that acts like a fly in the ointment, "Laws are made to be broken".
And, the courts figure out how the questions should be settled.
Now our Supreme Court seems to lean toward just right of center; but, wait a while.
Is that why some questions wait until the Supreme Court might be more or less favorable to a certain position?

King of Ireland said...


I pushed this further up the page so the discussion could continue up there. Hopefully, the resident lawyer and Dr. Frazer will chime in.

Tom Van Dyke said...

Ben states the counterargument well: Jefferson and Madison lost some of these battles, and lost this one. We must look at the entire Founding, not the musings of a few, no matter how "key."

The First Amendment has primacy over Article VI by virtue of being ratified last, and it tells Congress to butt out of religion, which even Mr. Separation hisself, Jefferson, concedes is therefore left to the states.

Angie Van De Merwe said...

But, the state cannot over-ride individual conscience. That is the point that Daniel made and I think made it well...We are national citizens which are protected by the Bill of our "form" of worship...

Tom Van Dyke said...

Individual conscience may not override natural law.

Jonathan Rowe said...


Your dispute with Angie hits on something germane to the discussion: Individual conscience was view as PART of the natural right according to the FFs.

On jurisdictional matters, Jefferson (more so than Madison) was on your side: It would be the state and local governments, NOT the federal, that would guarantee the unalienable rights of conscience. The Federal just didn't have the power to do much.

However, Jefferson made clear to the states, all governments were to respect the ideas and ideals in his VA Statute on religious liberty, else they trespassed on natural rights.

Tom Van Dyke said...

Jon, we must not confuse or conflate freedom of conscience with freedom of action being subject to natural law, i.e., liberty, not license.

That's Locke, at least as understood by the Founding era. One cannot accept liberty from natural law then turn around and ignore it. As you suspected, this is the hole in Barnett's argument.

Pinky said...

I've attempted to make a certain point in a couple of different ways. Perhaps it just won't be possible to make it here at this blog-site. Even though, this is the site where it should be made.
The focus at this site is heavily placed on the side of what was enacted into law during the Revolutionary/Founding era. And, of course, that is of the utmost importance when we look at the U.S. Constitution as well as the constitutions of the various states.
But, just as it is true today, it was true back then. The people operated according to their local interests regardless of the law.
Perhaps we should pay some attention to the anthropological aspects of the Founding? Who knows, we might discover something?

Angie Van De Merwe said...

Pinky said,"But, just as it is true today, it was true back then. The people operated according to their local interests regardless of the law."

That is a "heavyly weighted" comment...first one has to understand what the law was created for and about. The Calvanists types used it as "supernaturally revealed" and impounded it upon others, no matter what...and this is what Protestantism became...

The Catholic Church had their "canon law', which was formed around Popish determinations.

The Founders wanted to create a way to establish law based on human rights, and they used natural law, and social contract to protect indvidual interests. Business contracts are to be based on negotiation, not expected because of some "penance mentality".

Human needs and personal values are what determine what one does in this world. Those that try to discriminate based upon some "small definitions" that do not repsect "equality under law", should be taught a lesson. (That doesn't mean I am "threatening")...

What anyone should expect, MINIMUM basic behavior is to treat another as an 'EQUAL' citizen, no matter what their views or ideas....and this is not done in the Church...which is discrimination...and I don't like it...

King of Ireland said...

Tom stated:

"Jon, we must not confuse or conflate freedom of conscience with freedom of action being subject to natural law, i.e., liberty, not license.

That's Locke, at least as understood by the Founding era. One cannot accept liberty from natural law then turn around and ignore it. As you suspected, this is the hole in Barnett's argument."

Please explain further. I am starting to suspect you and Jon are both "classical liberals". He being more on the modern liberal side of things and you the conservative. One can see these debates split the movement with even a casual reading of "libertarian" movement.

If I am right I would have never guessed this until Tom post on his friend.

Angie Van De Merwe said...

I stated above that Daniel made the point well...but it was David Kalivas...