by David Barton
One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law…. There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations.70 I verily believe Christianity necessary to the support of civil society.71 JOSEPH STORY, U. S. SUPREME COURT JUSTICE; FATHER OF AMERICAN JURISPRUDENCE
We have been assured, Sir, in the Sacred Writings that except the Lord build the house, they labor in vain that build it. I firmly believe this; and I also believe that without His concurring aid, we shall succeed in this political building no better than the builders of Babel.72 BENJAMIN FRANKLIN
[T]he Declaration of Independence first organized the social compact on the foundation of the Redeemer’s mission upon earth…. [and] laid the cornerstone of human government upon the first precepts of Christianity.73 JOHN QUINCY ADAMS
[T]he Christian religion – its general principles – must ever be regarded among us as the foundation of civil society.74 DANIEL WEBSTER
True religion always enlarges the heart and strengthens the social tie.75 JOHN WITHERSPOON
Before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.76 JAMES MADISON
The study and practice of law … does not dissolve the obligations of morality or of religion.77 JOHN ADAMS
I have always considered Christianity as the strong ground of republicanism…. It is only necessary for republicanism to ally itself to the Christian religion to overturn all the corrupted political and religious institutions in the world.78 BENJAMIN RUSH, SIGNER OF THE DECLARATION
[T]he religion which has introduced civil liberty is the religion of Christ and his apostles…. and to this we owe our free constitutions of government.79 NOAH WEBSTER
[N]ational prosperity can neither be attained nor preserved without the favor of Providence.80 JOHN JAY, ORIGINAL CHIEF JUSTICE U. S. SUPREME COURT
As guardians of the prosperity, liberty, and morals of the State, we are therefore bound by every injunction of patriotism and wisdom … to patronize public improvements and to cherish all institutions for the diffusion of religious knowledge and for the promotion of virtue and piety.81 DANIEL TOMPKINS, GOVERNOR OF NEW YORK; VICE PRESIDENT OF THE UNITED STATES
Nowhere can it be demonstrated that the Founders desired to secularize official society and “create a complete separation of the spheres of religious activity and civil authority.” The Abington decision represented a further step in the devolution of the First Amendment by rewriting the intent of those who created the Constitution and Bill of Rights.
Walz v. Tax Commission of the City of New York, 1970
Rather than any direct issue of religious expression, this case addressed the constitutionality of tax exemptions for churches. Ironically, the Court began by congratulating itself:
[W]e have been able to chart a course that preserved the autonomy and freedom of religious bodies while avoiding any semblance of established religion. This is a “tight rope” and one we have successfully traversed.82
Justice Brennan continued that praise:
[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.83
However, not only were these self-commendations self-serving, as already demonstrated, they also were false.
Yet, this case introduced a further step in the continuing rewriting of the First Amendment when Justice William Douglas claimed that its purpose was to enhance non-religion and to promote pluralism:
[O]ne of the mandates of the First Amendment is to promote a viable, pluralistic society [one which acknowledges no religion or system of belief above any other] and to keep government neutral, not only between sects, but also between believers and nonbelievers.84
It is unquestionably true that our Founders did respect many major religions. For example, while describing a federal parade in Philadelphia, Benjamin Rush commented:
The rabbi of the Jews locked in the arms of two ministers of the Gospel was a most delightful sight. There could not have been a more happy emblem.85
George Washington’s letter to the Hebrew congregation of Savannah showed a similar warmth:
May the same wonderworking Deity, who long since delivered the Hebrews from their Egyptian oppressors and planted them in the Promised Land, whose Providential agency has lately been conspicuous in establishing these United States as an independent nation, still continue to water them with the dews of Heaven and to make the inhabitants of every denomination participate in the temporal and spiritual blessings of that people whose God is Jehovah.86
Of the Hebrews, John Adams had declared:
I will insist that the Hebrews have done more to civilize men than any other nation…. [They] preserve and propagate to all mankind the doctrine of a supreme, intelligent, wise, almighty Sovereign of the Universe, which I believe to be the great essential principle of all morality, and consequently of all civilization.87
John Witherspoon, too, complemented the Jews:
To the Jews were first committed the care of the sacred Writings…. [Y]et was the providence of God particular manifest in their preservation and purity. The Jews were so faithful in their important trust.88
Elias Boudinot, President of Congress, was so fond of the “Hebrews” that he served as president of the “Society for Ameliorating the State of the Jews” and made personal provision to bring persecuted Jews to America where they could have an “asylum of safety” and have the opportunity, if they so chose, to inquire into Christianity “without fear or terror.”89
However, the Founders’ respect for other religions should not be confused or misinterpreted as a promotion of pluralism – evidenced by this statement from Benjamin Rush:
Such is my veneration for every religion that reveals the attributes of the Deity, or a future state of rewards and punishments, that I had rather see the opinions of Confucius or Mohamed inculcated upon our youth, than see them grow up wholly devoid of a system of religious principles. But the religion I mean to recommend in this place is that of the New Testament.90
Similarly, consider Justice Story’s statement in his Commentaries on the Constitution:
The real object of the [First A]mendment 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 [a denominational council] the exclusive patronage of the national government.91
Representative quotes of many Founders demonstrate their preference for Christianity and provide no evidence of any alleged “mandate to promote a visible, pluralistic society.” Notice:
You do well to wish to learn our arts and ways of life, and above all, the religion of Jesus Christ…. Congress will do everything they can to assist you in this wise intention.92 GEORGE WASHINGTON
Let … statesmen and patriots unite their endeavors to renovate the age by … educating their little boys and girls … [and] leading them in the study and practice of the exalted virtues of the Christian system.93 SAMUEL ADAMS
[W]ithout morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure … are undermining the solid foundation of morals, the best security for the duration of free governments.94 CHARLES CARROLL, SIGNER OF THE DECLARATION
However gradual may be the growth of Christian knowledge and moral reformation, yet unless it be begun, unless the seeds are planted, there can be no tree of knowledge and, of course, no fruit. The attempt to Christianize the heathen world and to produce peace on earth and goodwill towards men is humane, Christian, and sublime.95 WILLIAM ELLERY, SIGNER OF THE DECLARATION
History will also afford frequent opportunities of showing the necessity of a public religion … and the excellency of th
e Christian religion above all others, ancient or modern.96 BENJAMIN FRANKLIN
[O]nly one adequate plan has ever appeared in the world, and that is the Christian dispensation.97 JOHN JAY, ORIGINAL CHIEF JUSTICE U. S. SUPREME COURT
[T]he Christian religion is superior to every other…. But there is not only an excellence in the Christian morals, but a manifest superiority in them to those which are derived from any other source.98 JOHN WITHERSPOON, SIGNER OF THE DECLARATION
[T]he Christian religion, in its purity, is the basis, or rather the source of all genuine freedom in government…. and I am persuaded that no civil government of a republican form can exist and be durable in which the principles of that religion have not a controlling influence.99 NOAH WEBSTER
From the day of the Declaration, the people of the North American Union and of its constituent states were associated bodies of civilized men and Christians…. They were bound by the laws of God, which they all, and by the laws of the Gospel, which they nearly all, acknowledged as the rules of their conduct.100 The Declaration of Independence cast off all the shackles of this dependency. The United States of America were no longer Colonies. They were an independent nation of Christians.101 JOHN QUINCY ADAMS
Let us enter on this important business under the idea that we are Christians on whom the eyes of the world are now turned…. [L]et us earnestly call and beseech Him for Christ’s sake to preside in our councils.102 ELIAS BOUDINOT, PRESIDENT OF THE CONTINENTAL CONGRESS
[T]he ethics, doctrines, and examples furnished by Christianity exhibit the best models for the laws.103 DEWITT CLINTON, INTRODUCED THE TWELFTH AMENDMENT; GOVERNOR OF NEW YORK; U. S. SENATOR
An early House Judiciary Committee affirmed the Founders’ lack of pluralistic intent when it declared:
Christianity…. was the religion of the founders of the republic, and they expected it to remain the religion of their descendants.104
The Founders did respect other religions; however, they neither promoted pluralism nor intended that the First Amendment do so.
Although the Court’s decision in this case was favorable in the sense that tax exemptions for churches were preserved, the ruling demonstrated a major inconsistency by the Court: it upheld tax exemptions because of their historical precedent. As the Court explained:
[I]n resolving such questions of interpretation “a page of history is worth a volume of logic.” … The more long-standing and widely accepted a practice, the greater its impact upon constitutional interpretation.105
However, Justice William Douglas, who had voted to remove tax exemptions from churches, pointed out in his dissent that the Court’s reliance on history and precedent to arrive at its conclusion in this case was the very practice it had avoided in previous First Amendment cases. He noted, for example, that although school prayer had been as equally a long-standing historical tradition as tax exemptions, this had not prevented it from being declared unconstitutional.106 The Walz case, despite its favorable ruling, had introduced yet another new and different purpose to the First Amendment by claiming its intent was to promote pluralism.
Stone v. Graham, 1980
The issue in this case was the passive use of a portion of the Bible: specifically, the display of the Ten Commandments on the walls of schools in Kentucky. The posters of the Commandments were like the other numerous pictures and posters which adorned the school walls: they were passive displays. Students would look at them only if they wanted to and read them only if they were individually willing to take the time.
The Ten Commandments had been posted in the schools because the Kentucky legislature believed it beneficial to expose students to the historical code which had formed the basis of civil laws in the western world for over two thousand years. Reflective of this, at the bottom of each poster was printed: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”107
Despite both the passive and non-coercive nature of the poster, a legal challenge was lodged. When the Supreme Court heard the Kentucky legislature’s assertion that the Ten Commandments had secular importance, the Court erupted in a surprising outburst of religious prejudice:
The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.108
When considering the Court’s claim that the purpose for posting the Ten Commandments was “plainly religious in nature,” one wonders if the Court had forgotten that depictions of the Ten Commandments appear in two different locations within the Supreme Court. As Chief Justice Warren Burger noted in Lynch v. Donnelly:
The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments.109
Perhaps the Court had also forgotten that it is often easier to find the Ten Commandments displayed in government rather than in religious structures, and that our civil prohibitions against theft, murder, perjury, etc. are drawn from the Ten Commandments. There was much evidence – and much professional opinion – which disputed the Court’s assertion that the display of the Commandments was “plainly religious in nature.” In fact, Justices Marshall, Brennan, and Stevens – three liberal Justices – noted in Allegheny v. ACLU:
[A] carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal [unclear and uncertain] message, perhaps a respect for Judaism, for religion in general, or for law.110
It was striking that in Stone the Supreme Court completely ignored the facts which led both the Kentucky legislature and the federal district court to acknowledge the secular importance of the Ten Commandments. This unprecedented rejection of fact by the Court drew sharp criticism from Justice Rehnquist in his dissent:
[T]he Court concludes that the Kentucky statute involved in this case “has no secular legislative purpose,” … and that “[t]he preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature…. ” This even though, as the trial court found, “[t]he General Assembly thought the statute had a secular legislative purpose and specifically said so…. ” The Court’s summary rejection of a secular purpose articulated by the legislature and confirmed by the State court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute’s purpose in Establishment Clause cases…. The Court rejects the secular purpose articulated by the State because the Decalogue is “undeniably a sacred text…. ” It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court [also] concluded that evidence submitted substantiated this determination…. Certainly the State was permitted to conclude that a document with such secular significance should be placed before its students, with an appropriate statement of the document’s secular import.111
Almost as amazing as the Court’s claim that the Ten Commandments lacked secular purpose was the Court’s complaint of what would occur if students were to view the Commandments:
If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.112
The Court therefore concluded:
[This] … is not a permissible state objective under the Establishment Clause…. [T]he mere posting of the copies … the Establishment Clause prohibits.113
The Founding Fathers would have disagreed vehemently. For example:
The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice
to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.114 JOHN ADAMS
The law given from Sinai was a civil and municipal as well as a moral and religious code … laws essential to the existence of men in society and most of which have been enacted by every nation which ever professed any code of laws.115 Vain indeed would be the search among the writings of profane antiquity [secular history] … to find so broad, so complete and so solid a basis for morality as this decalogue [Ten Commandments] lays down.116 JOHN QUINCY ADAMS
[I]t pleased God to deliver, on Mount Sinai, a compendium of this holy law and to write it with His own hand on durable tables of stone. This law, which is commonly called the Ten Commandments or Decalogue…. was incorporated in the judicial law.117 WILLIAM FINDLEY, REVOLUTIONARY SOLDIER; U. S. CONGRESSMAN
The opinion that human reason left without the constant control of Divine laws and commands will … give duration to a popular government is as chimerical [unlikely] as the most extravagant ideas that enter the head of a maniac…. Where will you find any code of laws among civilized men in which the commands and prohibitions are not founded on Christian principles? I need not specify the prohibition of murder, robbery, theft, [and] trespass.118 NOAH WEBSTER
