by David Barton
In Saratoga Springs, New York, a five-year-old kindergarten student was forbidden to say a prayer over her lunch, and was scolded by a teacher for doing so.104
In Houston, Texas, school officials confiscated the personal Bibles of two students and threatened to have the students picked up by Child Protective Services; they also confiscated from the students their personal Ten Commandments book covers.105
In Poway, California, teachers are not allowed to display historical phrases that contain religious words (such as the Declaration of Independence, National Motto, etc.).106
In Orono, Maine, a third-grader who wore a T-shirt containing the words “Jesus Christ” was required to turn the shirt inside out so the words could not be seen.107
In Dickson, Tennessee, high-school students were required to write a paper on any topic and to use at least four research sources. Some students wrote about reincarnation, witchcraft, and the occult but the student who chose to write about the life of Jesus Christ was given a zero by her teacher for choosing that topic.108
Additionally, school officials have taken the position that students at school may:
invite their friends to meetings – unless the meetings are religious109
share literature with their friends – unless the literature is religious110
receive personal gifts from friends – unless the gift is a Bible or has a religious message111
wear the clothing of their choice – unless it has Christian messages112
pass out valentines to classmates – unless the valentines have a religious message113
wear costumes at Halloween – unless the costume depicts a religious personality114
and there are numerous additional examples.
While all of this transformation has occurred since the 1947 introduction of the “separation” metaphor in Everson, significantly, none of the activities currently restricted represent any violation of the actual wording of the First Amendment. That Amendment places prohibitions only against the federal Congress and not on States, communities, schools, or individuals (i.e., “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ”). However, under the Court’s new First Amendment:
“Congress” now means a “student” (or a citizen, teacher, soldier, school, community, etc.)
“make no law” means “cannot express one’s faith in a public arena”
“establish” religion means “allow” religion; and
“an establishment of religion” now means “to express one’s formerly constitutionally-protected ‘free exercise of religion’ in an official public forum or arena”
It is more than a bizarre rendering when “Congress” (an elected body of the federal legislature) can mean a single individual, and “making a law” (the action of the federal legislature) can mean expressing one’s personal faith in public.
The Everson decision, however, was revolutionary not only for its introduction of the modern “separation” doctrine but also for dramatically expanding the role of the federal judiciary. How was this accomplished? By coupling the Fourteenth Amendment’s racial civil rights guarantee with the First Amendment’s prohibition against the congressional establishment of a national religion. The consequence of merging these two dissimilar Amendments was twofold.
First, the Court reversed the bedrock constitutional standard that the First Amendment limited only the federal but not State or local governments. Second, because the new reading of the First Amendment empowered the Court to restrict States, communities, and individuals, the federal judiciary therefore assigned itself the role as sole arbiter of all religious controversies, even to what an individual citizen may or may not do. Yet, the massive expansion of the Court’s federal jurisdiction was achieved only by directly disregarding the specific purposes for which both the First and the Fourteenth Amendments were enacted – a fact clearly demonstrated by a brief review of each of those Amendments.
An Overview of the First Amendment
The prominent characteristic of the emerging national government during and after the American Revolution was the strong ardor of the people and the States to protect their traditional powers and rights from the national government.† History and experience had both proved that centralized government power could be a source of tyranny and abuse, so under early national government (such as the Articles of Confederation), policies were enacted not by the concurrence of a simple majority but rather by a three-fourths supermajority,115 thus allowing States easily to block the action of the entire national government if they believed their own rights or powers were being infringed.
From this backdrop, delegates were selected from the individual States and sent to a national gathering in Philadelphia in 1787. That assembly (now called the Constitutional Convention) produced a new federal government, but it also generated an element of strong opposition. Several delegates, believing that the Constitution contained insufficient barriers to prevent the federal government from usurping State authority in a number of areas, refused to sign the document. This group (known as the “Anti-Federalists” and led by delegates such as George Mason, Luther Martin, John Francis Mercer, and Elbridge Gerry and joined by prominent Founding Fathers such as Samuel Adams, Thomas Jefferson, Richard Henry Lee, and Patrick Henry), warned Americans that unless specific amendments were added to the Constitution to limit the powers of the new federal government, it might invade and usurp the rights of States, communities, and individuals. For example, Samuel Adams warned:
I mean … to let you know how deeply I am impressed with a sense of the importance of Amendments, that the good people may clearly see the distinction – for there is a distinction – between the federal powers vested in Congress and the sovereign authority belonging to the several States, which is the Palladium [the protector] of the private and personal rights of the citizens.116
When the States assembled conventions to ratify the new federal Constitution, those conventions resounded loudly with the Anti-Federalist arguments. The Constitution therefore received only marginal approval in several States, and North Carolina even refused to ratify unless clear restraints were placed on the power of the federal government (Chapter 10 contains greater details on how the States voted).
The Constitution was eventually ratified, but a clear message had been delivered. Consequently, when the new federal government assembled, President George Washington promptly urged Congress to consider how the Constitution might be amended in order to address the concerns raised in the State conventions.117 Congress responded, and the result was twelve proposed amendments specifying exactly what the federal government, and only the federal government, could not do. Of those twelve, ten (now termed the Bill of Rights) were ratified by the States. At the top of the ratified list was the amendment completely removing the subject of religion and religious expression from the jurisdiction of the federal government, thereby leaving it as it had been: in the hands of the States and the people. Therefore, the Court’s 1947 decision to federalize the First Amendment and apply it against the people and the States was a complete abrogation of that Amendment.
An Overview of the Fourteenth Amendment
The means by which the Court federalized the Bill of Rights was by rewriting the purpose of the Fourteenth Amendment – one of the three racial civil rights amendments added to the Constitution at the end of the Civil War. The Thirteenth Amendment (ratified in 1865) abolished slavery; the Fifteenth (1870) provided black Americans the right to vote; and the Fourteenth (1868) guaranteed State privileges and citizenship, regardless of race. Yet, in the Everson case, the Supreme Court took the Fourteenth Amendment securing racial civil rights to federalize the issue of religious expressions. Such a possibility was not only unimaginable at the time the Fourteenth Amendment was enacted but it was even specifically rejected by Congress during that period,118 as well as by Supreme Courts afterwards. In fact, in 1876 – eight years after the Fourteenth Amendment
had been ratified, and following two Supreme Court cases on that Amendment – a noted commentator reported:
The Rule adopted by the Supreme Court of the United States in interpreting the [Fourteenth Amendment] … makes it inapplicable to the religious liberty or any other right of the citizen as determined by the State of which he is resident. The Court in the cases of Paul vs. Virginia (8 Wallace, p. 168), and of the New Orleans Slaughter-house (16 Wallace, p. 36), laid down the principle…. There is nothing in the last three amendments to the Constitution that reaches the question of religion, and nothing anywhere else in this instrument that places the States under the slightest restraint with reference to this subject; and hence it is true, as remarked by Justice Story [one of the Supreme Court’s most noted legal scholars, appointed by President James Madison] in his Commentaries on the Constitution (section 1879), that “the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their sense of justice and the State constitutions.”119 (emphasis added)
(A more complete examination of the Fourteenth Amendment is found in Chapter 10.
The Effect of the Coupling
When one understands the intent of these two Amendments, it is not surprising that no previous Court had ever coupled them as did the 1947 Everson Court.† In fact, in 1970, Justice William Douglas openly acknowledged that by coupling the Fourteenth Amendment and the Bill of Rights, the Court had not only usurped State authority over many areas but that it had also created an American revolution that …
… involved the imposition of new and far-reaching constitutional restraints on the States. Nationalization of many civil liberties has been the consequence of the Fourteenth Amendment, reversing the historic position that the foundations of those liberties rested largely in State law…. And so the revolution occasioned by the Fourteenth Amendment has progressed as Article after Article in the Bill of Rights has been incorporated in it [by the Court] and made applicable to the States.120 (emphasis added)
The Everson decision represented a disturbing and unprecedented judicial paradigm shift.
Summary
Today, the Court divides the religious clauses of the First Amendment into what it terms “The Establishment Clause” (“Congress shall make no law respecting an establishment of religion”) and “The Free Exercise Clause” (“nor prohibiting the free-exercise thereof ”). It is very obvious that no portion of the phrase “separation of church and state” appears in either part of the First Amendment (nor in any other part of the Constitution). It is not surprising, therefore, that the recent reliance by the Court on this non-constitutional phrase has prompted complaints by many constitutional jurists. For example, in Baer v. Kolmorgen, Judge Elbert Gallagher complained:
Much has been written in recent years … to “a wall of separation between Church and State.” … [It] has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution.121
Supreme Court Justice Potter Stewart similarly observed:
I think that the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation” – a phrase nowhere to be found in the Constitution.122
And Supreme Court Justice William Rehnquist, after describing this phrase as a “misleading metaphor,”123 then noted:
But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights…. The “wall of separation between Church and State” is a metaphor based on bad history – a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.124
Regrettably, the public’s current understanding (actually, misunderstanding) of the religious provisos of the First Amendment has been shaped primarily by a phrase which does not even appear in the Constitution – a phrase almost totally unknown in constitutional jurisprudence for well over a century-and-a-half before the 1947 Everson case.
Yet, while all must truthfully concede that the separation metaphor is not actually found in the Constitution, many today nevertheless argue that the phrase as applied today accurately captures the intent of the Framers – that the concept of a complete separation (i.e., an enforced secularization of the public square) was practiced by them during the Founding Era. Is this assertion correct?
† There are many indications of the sovereignty zealously preserved by the States. In fact, the Chief Executive in some States was not called the “Governor,” as is common in States today, but rather was called the “President” of the State (e.g., Pennsylvania, Delaware, New Hampshire), which is much more reflective of the independent mindset at that time. Perhaps the best current parallel would be Europe: although composed of many small and independent nations (sometimes called European “states”), they are joined together under a single European Parliament. Yet each individual nation/“state” – and not the European Parliament – exercises powers over its own people, and each refuses to relinquish its own complete sovereignty to the European Parliament. The American States were much the same.
† Justice William Douglas later acknowledged that although the Court had incorporated a portion of the First Amendment into the Fourteenth Amendment as early as 1940 in Cantwell v. Connecticut (310 U. S. 296), it was not until Everson in 1947 that the Establishment Clause was incorporated into the Fourteenth. See Walz v. Tax Commission, 397 U. S. 664 at 702 (1970).
~2~
Religion and the Constitution
The question of what the Founders intended as the proper relationship between religious expressions and “public” life (whether in education, law, government, or throughout society in general) is clearly documented in their numerous writings on this subject. Those records establish their intent and thus clarify their two references to religion in the Constitution.
The first reference is in Article VI, Section 3:
[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.
The second is in the First Amendment:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …
Through the years, these two constitutional requirements have formed the basis of many judicial decisions. Historically, legal scholars have examined both phrases when seeking the intent of either; the understanding of each was made more complete through the examination of both.1 The goal was always to identify and establish the original context and purpose of those two religious provisos before attempting to apply them.
However, in Everson (1947) the modern Court discarded this objective. It first divorced the First Amendment from its original purpose and then reinterpreted it without regard to either historical context or previous judicial decisions. The result was that the Court abandoned the traditional constitutional meaning of “religion” as a single denomination or system of worship and instead substituted a new “modern” concept which even now remains vague and nebulous, having changed several times in recent years. By this substitution, the Court created a new and foreign purpose for the First Amendment and completely rewrote its scope of protections and prohibitions.
In attaching today’s “enlightened” perceptions to yesterday’s acts, the Court demonstrated an unscholarly and even disquieting approach to both law and history. As explained by Founder Noah Webster,† not only misinterpretation but even serious error can result when original meanings are ignored:
[I]n the lapse of two or three centuries, changes have taken place which in particular passages … obscure the sense of the original languages…. The effect of these changes is that some words are … being now used in a sense different from that which they had … [and thus] present wrong signification or false ideas. Whenever words are understood in a sense different from that which they had when introduced…. mistakes may
be very injurious.3
To avoid the “injurious mistakes” which may arise from misinterpreting the First Amendment, one need simply establish the original intent of that Amendment. How can this be accomplished? As President Thomas Jefferson admonished Supreme Court Justice William Johnson:
On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.4
James Madison also declared:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers…. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.5 (emphasis added)
Justice James Wilson† similarly explained:
The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.6