by David Barton
The Constitution required an oath of office, but prohibited a religious test; an oath, however, presupposed a belief in God; therefore, only under the most extreme and absurd application of Article VI could a belief in God have been considered a religious test. Consequently, when the Torcaso Court struck down the requirement of belief in God to hold office, it essentially struck down the requirement that public officials take an oath to uphold the Constitution. As signer of the Declaration John Witherspoon clearly explained, the two were inseparable:
An oath is an appeal to God, the Searcher of hearts, for the truth of what we say and always expresses or supposes an imprecation [a calling down] of His judgment upon us if we prevaricate [lie]. An oath, therefore, implies a belief in God and His Providence and indeed is an act of worship…. Persons entering on public offices are also often obliged to make oath that they will faithfully execute their trust…. In vows, there is no party but God and the person himself who makes the vow.67
Recall also that since Article VI pertained only to the federal government, it was within the legitimate jurisdiction of the States to establish whatever provisions the people wished. Significantly, many of the State requirements were often drafted by the same individuals who had signed the federal Constitution and who had approved Article VI.
For example, signers of the Constitution George Read68 and Richard Bassett69 also directed the drafting of the Delaware constitution. That constitution required:
Every person who shall be chosen a member of either house, or appointed to any office or place of trust … shall … make and subscribe the following declaration, to wit: “I, __________, do profess faith in God the Father, and in Jesus Christ His only Son, and the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by Divine inspiration.”70
Constitution signer Nathaniel Gorham helped author the Massachusetts constitution71 which required:
Any person chosen governor, or lieutenant-governor, counsellor, senator, or representative, and accepting the trust, shall before he proceed to execute the duties of his place or office, take, make and subscribe the following declaration, viz. “I, ___________, do declare, that I believe the Christian religion, and have a firm persuasion of its truth.”72
Other States had similar requirements – often authored by those who had signed the federal Constitution and had approved Article VI. Clearly, then, the Founders never intended that the prohibition in Article VI be applied to the States.
The imperative for understanding today the original purposes of the two religion clauses in the Constitution results from contemporary Courts often excusing their unpopular decisions with the specious claim that they are upholding the Constitution’s original “intent” or “purpose.” This claim is an historical absurdity. Furthermore, it has only been in recent generations that the original intent has been obscured – and that obscurity has been caused by the Courts.
Perhaps the most conclusive historical demonstration of the fact that the Founders never intended the federal Constitution to establish today’s religion-free public arena is seen in their creation and passage of the “Northwest Ordinance.” That Ordinance (a federal law which legal texts consider as one of the four foundational, or “organic” laws73) set forth the requirements of statehood for prospective territories. It received House approval on July 21, 1789;74 Senate approval on August 4, 178975 (this was the same Congress which was simultaneously framing the religion clauses of the First Amendment); and was signed into law by President George Washington on August 7, 1789.76
Article III of that Ordinance is the only section to address either religion or public education, and in it, the Founders couple them, declaring:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.77
The Framers of the Ordinance – and thus the Framers of the First Amendment – believed that schools and educational systems were a proper means to encourage the “religion, morality, and knowledge” which they deemed so “necessary to good government and the happiness of mankind.”
Subsequent to the passage of this Ordinance, when a territory applied for admission as a State, Congress issued an “enabling act” establishing the provisions of the Ordinance as criteria for drafting a State constitution. For example, when Ohio territory applied for statehood in 1802, its enabling act required that Ohio form its government in a manner “not repugnant to the Ordinance.”78 Consequently, the Ohio constitution declared:
[R]eligion, morality, and knowledge being essentially necessary to the good government and the happiness of mankind, schools and the means of instruction shall forever be encouraged by legislative provision.79
While this requirement originally applied to all the territorial holdings of the United States in 1789 (the Northwest Territory – Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minnesota), as more territory was gradually ceded to the United States (the Southern Territory – Mississippi and Alabama), Congress applied the requirements of the Ordinance to that new territory.80
Therefore, when Mississippi applied for statehood in 1817, Congress required that it form its government in a manner “not repugnant to the principles of the Ordinance.”81 Hence, the Mississippi constitution declared:
Religion, morality, and knowledge, being necessary to good government, the preservation of liberty and the happiness of mankind, schools and the means of education shall be forever encouraged in this State.82
Congress later extended the same requirements to the Missouri Territory (Missouri and Arkansas)83 and then on to subsequent territories. Consequently, the provision coupling religion and schools continued to appear in State constitutions for decades. For example, the 1858 Kansas constitution required:
Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to make suitable provisions … for the encouragement of schools and the means of instruction.84
Similarly, the 1875 Nebraska constitution required:
Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the legislature to pass suitable laws … to encourage schools and the means of instruction.85
Numerous other territorial papers and State constitutions – past and present86 – make it clear that the Founding Fathers never intended to separate religious instruction or religious activities from the public or official life of America. Yet today the Courts have misinterpreted the First Amendment and Article VI to prohibit exactly what the Founders intended to protect.
The dilemma outlined in this chapter was succinctly described by Justice William Rehnquist in Wallace v. Jaffree:
History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the [First Amendment].87
The historical “straying” from the Founders’ original meaning for the First Amendment has been greatly facilitated by an overused, misused, and even regularly abused historical phrase: “the separation of church and state.” Although these words are familiar to virtually the entire nation, few Americans know their history; where did this phrase originate?
† Noah Webster (1758-1843) was among the first to call for the Constitutional Convention and was responsible for the copyright and patent protection clause found in Article 1, Section 8 of the Constitution.2 Furthermore, Webster was a master of word usage, learning over twenty languages and compiling America’s first dictionary that defined some 70,000 words.
† James Wilson (1742-1798) was a distinguished Founder; he was one of only six who signed both the Declaration of Independence and the Constitution; he was the second-most active member of the Constitutional Convention, speaking 168 times on the floor of the Convention; he was a law professor; he was nominated by President George Washington as an original Justice on the U. S. Su
preme Court; and in 1792 he was co-author of America’s first legal commentaries on the Constitution.
† Joseph Story (1779-1845) was the son of one of the “Indians” at the “Boston Tea Party”; was the Founder of Harvard Law School; was called the “foremost of American legal writers”;7 and was nominated to the Supreme Court by President James Madison.
† A brief biography of each of these individuals, as well as the other historical personalities referenced throughout this book, can be found in Appendix C: “Biographical Sketches of Select Individuals Referenced in Original Intent.”
† It is a common charge that during the Founding Era at least nine of the thirteen States had State-established denominations. Yet, even a cursory reading of the various State Constitutions enacted following the Revolution disproves this assertion.
Because religious issues often fell within local controls, and because many localities were often of the same denomination (e.g., the overwhelming majority of those in Massachusetts and Connecticut were Congregationalists), what frequently appeared as State establishments were often nothing more than the almost universal preference of the people of that region. As a modern example, the State legislatures of both Arkansas and Hawaii are almost universally composed of Democrats; yet this is not the result of any State constitutional mandate on the establishment of the Democratic Party; it is simply the preference of the people in those States.
Additionally, the erroneous charge concerning the alleged State-establishments often results from critics applying the Supreme Court’s current case-law whereby a State “establishment of religion” occurs if money is given to any religious group, or if any religious expression is permitted in government-sanctioned settings. However, this standard would have been almost universally rejected two centuries ago. Only under today’s broad definition of “establishment” (i.e., condoning, sanctioning, or aiding any religious expression) rather than the previous narrow reading (i.e., the State-establishment of a single denomination, as in Great Britain’s alternating establishment of Anglicanism and Catholicism), can the current charge be even partially defended.
† This 1793 declaration by Zephaniah Swift (1759-1823) – a leading Connecticut jurist, a U. S. Congressman, and the author of the first purely American law text – is one of many that clearly refutes today’s errant claim that Connecticut had a State-established denomination until their 1818 constitution repealed that establishment.
† Several of these court cases will be examined in detail in Chapter 4; note especially Charleston v. Benjamin and Lindenmuller v. The People.
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The Misleading Metaphor
“Separation of church and state” – the expression Justice William Rehnquist described as “a misleading metaphor”1 – appeared in an exchange of letters between President Thomas Jefferson and the Baptist Association of Danbury, Connecticut.
The election of President Jefferson – America’s first Anti-Federalist President – elated many Baptists since that denomination was, by-and-large, strongly Anti-Federalist.2 This political disposition by the Baptists was understandable; from the early settlement of Rhode Island in the 1630s to the time of the federal Constitution in the 1780s, the Baptists had often found themselves suffering from the centralization of power.
Consequently, now having a President who had not only championed the rights of Baptists in Virginia3 but who also advocated clear limits on the centralization of government powers, the Danbury Baptists wrote Jefferson a letter of praise on October 7, 1801, telling him:
Among the many millions in America and Europe who rejoice in your election to office, we embrace the first opportunity … to express our great satisfaction in your appointment to the Chief Magistracy in the United States…. [W]e have reason to believe that America’s God has raised you up to fill the Chair of State out of that goodwill which he bears to the millions which you preside over. May God strengthen you for the arduous task which providence and the voice of the people have called you…. And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.4
However, in that same letter of congratulations, the Baptists also expressed to Jefferson their grave concern over the entire concept of the First Amendment:
Our sentiments are uniformly on the side of religious liberty: that religion is at all times and places a matter between God and individuals, that no man ought to suffer in name, person, or effects on account of his religious opinions, [and] that the legitimate power of civil government extends no further than to punish the man who works ill to his neighbor. But sir, our constitution of government is not specific…. [T]herefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights.5
The inclusion of constitutional protection for the “free exercise of religion” suggested to the Danbury Baptists that the right was government-given (thus alienable) rather than God-given (hence inalienable), and that therefore the government might someday attempt to regulate religious expression. This was a possibility to which they strenuously objected – unless someone’s religious practice caused him, as they explained, to “work ill to his neighbor.”
Jefferson understood their concern; it was also his own. He made numerous statements affirming the inability of the government to regulate, restrict, or interfere with religious expression. For example:
[N]o power over the freedom of religion … [is] delegated to the United States by the Constitution.6 KENTUCKY RESOLUTIONS, 1798
In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general [federal] government.7 SECOND INAUGURAL ADDRESS, 1805
[O]ur excellent Constitution … has not placed our religious rights under the power of any public functionary.8 LETTER TO THE METHODIST EPISCOPAL CHURCH, 1808
I consider the government of the United States as interdicted [prohibited] by the Constitution from intermeddling with religious institutions … or exercises.9 LETTER TO SAMUEL MILLER, 1808
Jefferson believed that the government was to be powerless to interfere with religious expressions for a very simple reason: he had long witnessed the unhealthy tendency of government to encroach upon the free exercise of religious expression. As he explained to Noah Webster:
It had become an universal and almost uncontroverted position in the several States that the purposes of society do not require a surrender of all our rights to our ordinary governors … and which experience has nevertheless proved they [the government] will be constantly encroaching on if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious [effective] against wrong and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion.10
Thomas Jefferson had no intention of allowing the government to limit, restrict, regulate, or interfere with public religious practices. He believed, along with the other Founders, that the First Amendment had been enacted only to prevent the federal establishment of a national denomination – a fact he made clear in a letter to fellow-signer of the Declaration of Independence Benjamin Rush:
[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.11
Jefferson committed himself as President to pursuing what he believed to be the purpose of the First Amendment: not allowing the Episcopalians, Congregationalist
s, or any other denomination to achieve the “establishment of a particular form of Christianity.”
Since this was Jefferson’s view, in his short and polite reply to the Danbury Baptists on January 1, 1802, he assured them that they need not fear; the free exercise of religion would never be interfered with by the government. As he explained:
Gentlemen, – The affectionate sentiments of esteem and approbation which you are so good as to express towards me on behalf of the Danbury Baptist Association give me the highest satisfaction…. Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties. I reciprocate your kind prayers for the protection and blessing of the common Father and Creator of man, and tender you for yourselves and your religious association assurances of my high respect and esteem.12
Jefferson’s reference to “natural rights” invoked an important legal phrase which was part of the rhetoric of that day. The use of that phrase confirmed his belief that religious liberties were inalienable rights. While those words communicated much to people then, to most citizens today it means little.
