by David Barton
Justice Joseph Story† emphasized this same principle, declaring:
The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense of the terms and the intention of the parties.8
It was – and typically still is – a fundamental maxim of law to determine the intent of the authors of a statute before attempting to apply it. Therefore, to discover the legitimate scope of protections and prohibitions intended in either the First Amendment or Article VI, investigate the records from that era rather than relying on an interpretation concocted by the Court two hundred years ex post facto.
Begin, for instance, by investigating the various proposals for the First Amendment. Notice that of George Mason (a member of the Constitutional Convention and “The Father of the Bill of Rights”):
[A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others.9
James Madison proposed:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.10
The Annals of Congress from June 8, 1789, to September 25, 1789, contain the complete official records of those who drafted and approved the First Amendment. Notice some of their discussions on its intent:
AUGUST 15, 1789. Mr. [Peter] Sylvester [of New York] had some doubts…. He feared it [the First Amendment] might be thought to have a tendency to abolish religion altogether…. Mr. [Elbridge] Gerry [of Massachusetts] said it would read better if it was that “no religious doctrine shall be established by law.” … Mr. [James] Madison [of Virginia] said he apprehended the meaning of the words to be, that “Congress should not establish a religion, and enforce the legal observation of it by law.” … [T]he State[s]… seemed to entertain an opinion that under the clause of the Constitution … it enabled them [Congress] to make laws of such a nature as might… establish a national religion; to prevent these effects he presumed the amendment was intended…. Mr. Madison thought if the word “national” was inserted before religion, it would satisfy the minds of honorable gentlemen…. He thought if the word “national” was introduced, it would point the amendment directly to the object it was intended to prevent.11
The State debates surrounding the ratification of the First Amendment reinforce this intended purpose. Notice, for example, Governor Samuel Johnston’s comments during North Carolina’s ratifying convention:
I know but two or three States where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other State, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.12
In that same convention, Henry Abbot further explained:
Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal.13
The records are succinct; they clearly document that the Founders’ purpose for the First Amendment is not compatible with the interpretation given it by contemporary courts. The Founders intended only to prevent the establishment of a single national denomination, not to restrain public religious expressions.
Recall from the previous chapter that the First Amendment was designed to restrain only the federal government in the area of religion; it was well established that the States were free to do as they pleased. For example, in his Commentaries on the Constitution, Justice Joseph Story explained that because of the First Amendment …
… 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.14
Thomas Jefferson had previously confirmed this same scope of power:
I consider the government of the United States [the federal government] 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 [the First Amendment], but from that also which reserves to the States the powers not delegated to the United States [the Tenth Amendment]. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General [federal] Government. It must then rest with the States.15 (emphasis added)
Although it was completely permissible for the States to have their own State-established denominations, most simply made provision for the encouragement of religion, or for the public teaching of religion in general – as, for example, in the constitutions of New Hampshire and Massachusetts:
As morality and piety rightly grounded on evangelical principles will give the best and greatest security to government and will lay in the hearts of men the strongest obligations to due subjection; and as the knowledge of these is most likely to be propagated through a society by the institution of the public worship of the Deity and of public instruction in morality and religion; therefore, to promote these important purposes, the people of this State have a right to empower, and do hereby fully empower, the legislature to authorize, from time to time, the several towns, parishes, bodies corporate, or religious societies within this State to make adequate provision at their own expense for the support and maintenance of public Protestant teachers of piety, religion, and morality. NEW HAMPSHIRE16
As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of God and of public instructions in piety, religion and morality: Therefore to promote their happiness and to secure the good order and preservation of their government, the People of this Commonwealth have a right to invest their Legislature with power to authorize and require … the several towns, parishes, precincts, and other bodies politic or religious societies, to make suitable provision at their own expense for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality. MASSACHUSETTS17
Since the previous excerpts made express provision for Protestant teaching, a mention should be made here about Roman Catholics in America.
The Founders were not opposed to Catholics as individuals. This is clearly evidenced by the fact that signer of the Declaration Charles Carroll and signers of the Constitution Thomas FitzSimons and Daniel Carroll were Roman Catholics. In fact, there were numerous Roman Catholic patriots and leaders in the struggle for American liberty, including Commodore John Barry, General Casimir Pulaski, and General Stephen Moylan.† The Founders were not fearful of Roman Catholics but rather of the aspect of Catholic doctrine which they viewed as repugnant to America’s unique form of government. Specifically, they opposed the vesting of total, absolute, and irrevocable power in a single body (the Papal authority) without recourse by the people – and they were able to point to specific examples to bolster their argument.
For example, Dr. David Ramsay (a member of the Continental Congress, a surgeon during the Revolution, and an historian) noted that during America’s struggle for independenc
e:
[T]he Roman Catholic clergy [in Canada]…. used their influence in the next world as an engine to operate on the movements of the present. They refused absolution [forgiveness of sins] to such of their flocks as abetted [aided] the Americans.18
John Adams similarly criticized the Roman Catholic “power of deposing princes and absolving [releasing] subjects from allegiance.”19 Understandably, the Founders did not want individuals leading American government who maintained a sworn oath of allegiance to a “foreign power” (the Pope). The concern was that such individuals might be required to resist American government by their obedience to an authority who conceivably could issue a hostile decree. As Joseph Story explained:
[If] men quarrel with the ecclesiastical establishment, the civil magistrate has nothing to do with it unless their tenets and practice are such as threaten ruin or disturbance to the state. He is bound, indeed, to protect…. papists [Roman Catholics]…. But while they acknowledge a foreign power superior to the sovereignty of the kingdom, they cannot complain if the laws of that kingdom will not treat them upon the footing of good subjects.20
It was the implications of this Roman Catholic doctrine which caused many States to exclude from office those who claimed a sole and absolute allegiance to a “foreign power.” As the framers of the Massachusetts constitution explained:
[W]e have … found ourselves obliged … to provide for the exclusion of these from offices who will not disclaim these principles of spiritual jurisdiction which Roman Catholics in some centuries have held and which are subversive of a free government established by the people.21
The North Carolina constitution similarly prohibited from office those who denied “the truth of the Protestant religion” or who held “religious principles incompatible with the freedom and safety of the State.”22 However, as already noted, this was not a rejection of Roman Catholics in general, just of those who embraced doctrines “subversive of a free government established by the people.” In fact, when the people of North Carolina later amended their constitution, they maintained the clause excluding from office those who held “religious principles incompatible with the freedom and safety of the State,” but they changed “Protestant” to “Christian,”23 thus acknowledging that many American Catholics did not embrace this doctrine.
However, returning to the issue of religion in the federal Constitution, the first ten amendments were enacted solely to limit the jurisdiction of the federal government. Furthermore, it was acknowledged that the States had the legitimate power to prescribe State religious establishments. Therefore, the sole purpose of the First Amendment was to prevent the federal government from usurping this specific State power.
Strikingly, however, although the States reserved this power, none of the State constitutions from the time of the American Revolution (or thereafter) established any single State denomination; most provided equal protection for all.† For example, in the framing of the Massachusetts constitution, John Adams explained that “the debates were managed by persons of various denominations” and that the “delegates did not conceive themselves to be vested with power to set up one denomination of Christians above another.”24 Numerous other States enacted similar provisions. Notice:
And every denomination of Christians … shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law. NEW HAMPSHIRE25
[T]here shall be no establishment of any one religious sect … in preference to another. NEW JERSEY26
[T]here shall be no establishment of any one religious church or denomination in this State in preference to any other. NORTH CAROLINA27
And each and every society or denomination of Christians in this State shall have and enjoy the same and equal powers, rights, and privileges. CONNECTICUT28
Summarizing this tone, in 1793, Zephaniah Swift (author of America’s first law textbook) explained:
Christians of different denominations ought to consider that the law knows no distinction among them; that they are all established upon the broad basis of equal liberty, that they have a right to think, speak, and worship as they please, and that no sect has power to injure and oppress another. When they reflect that they are equally under the protection of the law, all will revere and love the constitution, and feel interested in the support of the government. No denomination can pride themselves in the enjoyment of superior and exclusive powers and immunities.†29
This was the prevalent sentiment across America. In fact, signer of the Declaration Charles Carroll (a Roman Catholic) even declared that the reason that he and many other Founders had entered the Revolution was to ensure that all Christian denominations were placed on an equal footing:
To obtain religious as well as civil liberty I entered jealously into the Revolution, and observing the Christian religion divided into many sects, I founded the hope that no one would be so predominant as to become the religion of the State. That hope was thus early entertained, because all of them joined in the same cause, with few exceptions of individuals.30
Although this was the tone common among the States, it was not the result of any provision of the federal Constitution. The constitutional prohibition against “an establishment of religion” forbade only the federal establishment of a national denomination.
Earlier generations long understood this, and thus prevented any misapplied enforcements of those constitutional provisions. Notice, for example, Justice Story’s clear articulation:
We are not to attribute this [First Amendment] prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence, than the framers of the Constitution)…. Probably, at the time of the adoption of the Constitution, and of the Amendment to it now under consideration, the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State…. An attempt to level all religions and to make it a matter of state policy to hold all in utter indifference would have created universal disapprobation [disapproval] if not universal indignation [anger].31 (emphasis added)
Notice, too, the same clear understanding expressed in the 1853-1854 House and Senate Judiciary Committee reports:
HOUSE JUDICIARY COMMITTEE: What is an establishment of religion? It must have a creed defining what a man must believe; it must have rites and ordinances which believers must observe; it must have ministers of defined qualifications to teach the doctrines and administer the rites; it must have tests for the submissive and penalties for the nonconformist. There never was an established religion without all these…. Had the people, during the Revolution, had a suspicion of any attempt to war against Christianity, that Revolution would have been strangled in its cradle. At the time of the adoption of the Constitution and the amendments, the universal sentiment was that Christianity should be encouraged, not any one sect [denomination]. Any attempt to level and discard all religion would have been viewed with universal indignation…. It [religion] must be considered as the foundation on which the whole structure rests…. In this age there can be no substitute for Christianity; that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That was the religion of the founders of the republic, and they expected it to remain the religion of their descendents.32
SENATE JUDICIARY COMMITTEE: The clause speaks of “an establishment of religion.” What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country…. [which was an] endowment, at the public expense, in exclusion of or in preference to any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully
provided…. They [the Founders] intended, by this Amendment, to prohibit “an establishment of religion” such as the English Church presented, or any thing like it. But they had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people … they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy.33
The First Amendment was enacted only for a very narrow purpose and to prohibit a very specific offense.
The Founders, however, not only chose not to establish federally any particular denomination of Christianity, they further never intended the First Amendment to become a vehicle to promote a pluralism of other religions. As Justice Story explained in his Commentaries:
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.34
Some people raise two objections against the original intent of the First Amendment. First, they argue that its purpose is no longer valid today since at the time of the Founders the nation was completely homogeneous in its faith. This assertion is incorrect. The Founders openly acknowledged the presence of numerous religious groups in America, including Buddhists, Muslims, Jews, etc. In fact, in 1790, Dr. Benjamin Rush (a signer of the Declaration and one of America’s top educators) authored the first work calling for free public schools. In that work, he declared: