by David Barton
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…. [A]ll its doctrines and precepts are calculated to promote the happiness of society and the safety and well being of civil government.35 (emphasis added)
Numerous religions did exist in America at the time of the Founders; and the Founders understood the potential value of any major religion to a society; but they specifically preferred Christianity – a fact John Adams made clear in a letter to Thomas Jefferson:
Who composed that army of fine young fellows that was then before my eyes? There were among them Roman Catholics, English Episcopalians, Scotch and American Presbyterians, Methodists, Moravians, Anabaptists, German Lutherans, German Calvinists, Universalists, Arians, Priestleyans, Socinians, Independents, Congregationalists, Horse Protestants and House Protestants, Deists and Atheists, and Protestants “qui ne croyent rein.” Very few, however, of several of these species; nevertheless, all educated in the general principles of Christianity…. Could my answer be understood by any candid reader or hearer, to recommend to all the others the general principles, institutions, or systems of education of the Roman Catholics? Or those of the Quakers? Or those of the Presbyterians? Or those of the Methodists? Or those of the Moravians? Or those of the Universalists? Or those of the Philosophers? No. The general principles on which the fathers achieved independence were…. the general principles of Christianity…. Now I will avow that I then believed, and now believe, that those general principles of Christianity are as eternal and immutable as the existence and attributes of God…. I could therefore safely say, consistently with all my then and present information, that I believed they would never make discoveries in contradiction to these general principles.36
Today, we might accurately describe the “general principles of Christianity” as the “Judeo-Christian Ethic” since the Founders showed great attachment to the “Hebrews” (see chapter 8 for detailed information of the Founders’ views on this group). Yet, even though the Founders openly acknowledged their veneration for Judaism, they nonetheless believed that the teachings of Christ provided the greatest benefit for civil society. Thomas Jefferson explained:
The precepts of philosophy, and of the Hebrew code, laid hold of actions only. He [Jesus] pushed his scrutinies into the heart of man; erected his tribunal in the region of his thoughts, and purified the waters at the fountain head.37
Zephaniah Swift similarly explained:
Indeed moral virtue is substantially and essentially enforced by the precepts of Christianity, and may be considered to be the basis of it. But in addition to moral principles, the Christian doctrines inculcate a purity of heart and holiness of life which constitutes its chief glory. When we contemplate it in this light, we have a most striking evidence of its superiority over all the systems of pagan philosophy, which were promulgated by the wisest men of ancient times.38
Jefferson and Swift (and numerous others; see Chapter 17) present a compelling argument. Civil law (and most religions) focuses on stopping the act of murder, yet Christianity focuses on stopping the hate and anger which causes the murder. Similarly, the law and most religions try to prevent the act of adultery, but Christianity attacks the internal lust which results in that external behavior. The strongest civil code is impotent against malicious behavior unless the heart itself can be restrained, and even Benjamin Franklin joined Thomas Jefferson (two of the least religiously orthodox Founders) in believing that the teachings of Christianity best accomplished that goal.39
Does this mean that the Founders opposed pluralism? No – as long as the beliefs of other religions did not manifest in violent or deviant behavior which might threaten the stability of civil society. In fact, the Founders believed that pluralism survived only within the concept of religious liberty espoused by American Christianity.
Indeed, both modern and ancient history demonstrate that most, if not all other religious nations (whether Muslim, Jewish, Buddhist, monarchal Christian, etc.) rarely allow pluralism. However, independent America was different; it allowed the “free exercise” of other religions. In fact, early courts openly acknowledged that America was pluralistic and tolerant of other religions only because it was a Christian nation.†
The second argument raised against maintaining the original intent of the First Amendment is that times have changed; therefore, the meaning of that Amendment should be modernized. While the Founders would have agreed with this premise, they would have vehemently disagreed with the mechanism by which the change has occurred. The Founders made clear that if the meaning and application of any part of the Constitution was to be altered, it was to be at the hands of the people – not at the feet of the Court. (A discussion on the Founders’ views of the proper way to alter or “evolve” the meaning of the Constitution is presented in Chapter 12.)
In summary, the First Amendment’s prohibition on “an establishment of religion” was designed to restrict neither religious beliefs nor religious activities but only the federal establishment of a national denomination. Since the people had made no change in that, the Courts, therefore, long realized that just because religious expressions occurred in public, such actions did not “establish religion” under the First Amendment.
However, just as the Founders’ massive documentation on the intent of the First Amendment has been ignored, their documentation on the Constitution’s other reference to religion has also been disregarded. What was the intent of Article VI’s prohibition of a religious test?
As with the First Amendment, Article VI was a provision which limited federal powers and jurisdiction. Since the issue of religion was left to the States, it was therefore not within the federal government’s authority to examine the religious beliefs of any candidate. Consequently, as Justice Joseph Story explained, through Article VI it was possible that on the federal level …
… the Catholic and the Protestant, the Calvinist and the Armenian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship.40
Did this therefore mean – as many currently claim – that the Founders were attempting to prevent an investigation into the religious beliefs of a candidate, or that such beliefs were immaterial to his election? Definitely not (see the Founders’ clear views on this issue in Chapter 18). The issue was not the investigation of the religious beliefs of candidates, but rather the jurisdiction for such investigations. The Founders believed that the investigation of the religious views of a candidate should not be conducted by the federal government, but rather by the voters in each State. What evidence supports this?
The discussion of this topic during the ratification debates provides extensive evidence. For example, in the North Carolina ratifying convention, Governor Samuel Johnston explained:
It is apprehended that Jews, Mahometans, pagans, &c., may be elected to high offices under the government of the United States. Those who are Mahometans, or any others who are not professors of the Christian religion, can never be elected to the office of President or other high office, but in one of two cases. First, if the people of America lay aside the Christian religion altogether, it may happen. Should this unfortunately take place, the people will choose such men as think as they do themselves. Another case is if any persons of such descriptions should, notwithstanding their religion, acquire the confidence and esteem of the people of America by their good conduct and practice of virtue, they may be chosen.41 (emphasis added)
Signer of the Constitution Richard Dobbs Spaight also declared:
As to the subject of religion…. [n]o power is given to the general [federal] government to interfere with it at all…. No sect is preferred to another. Every man has a right to worsh
ip the Supreme Being in the manner he thinks proper. No test is required. All men of equal capacity and integrity are equally eligible to offices…. I do not suppose an infidel, or any such person, will ever be chosen to any office unless the people themselves be of the same opinion.42 (emphasis added)
Supreme Court Justice James Iredell (nominated to the Court by President Washington) similarly explained:
But it 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 it is never to be supposed that the people of America will trust their dearest rights to persons who have no religion at all, or a religion materially different from their own.43 (emphasis added)
Article VI simply reaffirmed the Founders’ belief that any provisos on religion should remain beyond federal jurisdiction.
The Court’s initial abrogation of the original purpose of the Constitution’s religious test clause occurred in Torcaso v. Watkins44 (1961) – the Court’s first-ever Article VI ruling. In that case, the Court used this federal constitutional provision to strike down Maryland’s 200 year-old State constitutional requirement that a candidate must declare a belief in God to hold office. This utilization of Article VI obviously resulted in the breaking of new legal ground. As legal authorities observed:
Not until 1961 was this “declaration of belief [in God]”… invalidated.45
The Torcaso ruling reflected two major mistakes by the Court: one in jurisdiction and one in interpretation. The jurisdiction error was that the Article VI prohibition against religious tests applied only to the federal and not to the State governments. The interpretation error was that the Founding Fathers did not consider a requirement to believe in God to be a religious test.
As an example, consider the provisions of the 1796 Tennessee Constitution (a document created with the help of Constitution signer William Blount46):
Article VIII, Section II. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State.
Article XI, Section IV. That no religious test shall ever be required as a qualification to any office or public trust under this State.47
Article VIII first requires a belief in God to hold office; then Article XI prohibits a religious test. Clearly, then, requiring a belief in God was not a religious test in their view. In fact, the Founders believed that any oath or affirmation – including that of elected officials to uphold the Constitution – presupposed a belief in God.
For example, Supreme Court Justice James Iredell observed:
According to the modern definition [1788] of an oath, it is considered a “solemn appeal to the Supreme Being for the truth of what is said by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments according to that form which would bind his conscience most.”48
Signer of the Constitution Rufus King explained:
[In o]ur laws … by the oath which they prescribe, we appeal to the Supreme Being so to deal with us hereafter as we observe the obligation of our oaths. The Pagan world were and are without the mighty influence of this principle which is proclaimed in the Christian system – their morals were destitute of its powerful sanction while their oaths neither awakened the hopes nor fears which a belief in Christianity inspires.49
George Washington, too, believed that an oath inherently contained a sense of religious obligation. In his “Farewell Address,” he asked:
[W]here is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths … ?50 (emphasis added)
And John Adams similarly declared:
Oaths in this country are as yet universally considered as sacred obligations.51
Also indicative of this belief is the fact that when the convention of South Carolina ratified the Constitution in 1788, it proposed that in Article VI the word “other” should be inserted after the word “no,” implying that an oath or affirmation to support the Constitution was itself a religious test.52
Numerous other sources further illustrate the fact that the taking of an oath presupposed a belief in God. For example, the 1799 Kentucky Constitution declared:
The manner of administering an oath or affirmation … shall be esteemed by the General Assembly [the Legislature] the most solemn appeal to God.53 (emphasis added)
Other constitutions contained the same declaration.54
Chancellor James Kent (a Father of American Jurisprudence) noted that an oath of office was a “religious solemnity” and that to administer an oath was “to call in the aid of religion.”55 In the case People v. Ruggles (1811), Kent ruled that “Christianity was parcel of the law and to cast contumelious [insulting] reproaches upon it tended to weaken … the efficacy [effectiveness] of oaths,”56 again affirming the intrinsic relationship between taking an oath and a belief in God.
In Commonwealth v. Wolf (1817), the Supreme Court of Pennsylvania explained that “laws cannot be administered in any civilized government unless the people are taught to revere the sanctity of an oath…. It is of the utmost moment, therefore, that they should be reminded of their religious duties,”57 thus again coupling an oath with a religious duty.
Early school books also taught that to take any oath inherently required a belief in God. One text explained, “An oath supposes that he who takes it believes that there is a God who will in a future life reward the worthy and punish the wicked.”58 An early House Judiciary Committee also declared:
Laws will not have permanence or power without the sanction of religious sentiment – without a firm belief that there is a Power above us that will reward our virtues and punish our vices.59 (emphasis added)
In his arguments before the U. S. Supreme Court, Daniel Webster, the great “Defender of the Constitution,” queried:
“What is an oath?” … [I]t is founded on a degree of consciousness that there is a Power above us that will reward our virtues or punish our vices…. [O]ur system of oaths in all our courts, by which we hold liberty and property and all our rights, are founded on or rest on Christianity and a religious belief.60
He further noted:
We all know that the doctrine of the … law is that there must be in every person who enters court as a witness, be he Christian or Hindoo, there must be a firm conviction on his mind that falsehood or perjury will be punished either in this world or the next or he cannot be admitted as a witness. If he has not this belief, he is disfranchised [not admitted].61
Justice Story confirms this, declaring that “infidels and pagans were banished from the halls of justice as unworthy of credit,”62 and the New York Spectator of August 23, 1831, reported:
The court of common pleas of Chester county (New York) a few days since rejected a witness who declared his disbelief in the existence of God. The presiding judge remarked that he had not before been aware that there was a man living who did not believe in the existence of God; that this belief constituted the sanction of all testimony in a court of justice: and that he knew of no cause in a Christian country where a witness had been permitted to testify without such belief.63
This had long been the practice of courts. For example, Zephaniah Swift declared:
All persons who believe in the existence of a God, let their religion be what it will, may be admitted to be witnesses. An oath is a solemn appeal to the Supreme Being that he who takes it will speak the truth, and an imprecation of His vengeance if he swears false.64
An oath, whether taken by a court witness or a public official, inherently signified a belief in God. There are abundant examples that this was not just an eighteenth century phenomenon. For instance, an 1834 legal guide for Tennessee judges declared:
Judges, justices of the peace, and all other persons who are or shall be empowered to administer oaths, shall … require the party to be sworn to lay his hand upon the holy evangelists of Almighty God in token of
his engagement to speak the truth as he hopes to be saved in the way and method of salvation pointed out in that blessed volume; and in further token that if he should swerve from the truth, he may be justly deprived of all the blessings of the gospels and be made liable to that vengeance which he has imprecated on his own head; and after repeating the words, ‘So help me God,’ shall kiss the holy gospels as a seal of confirmation to said engagement.65
There were, however, some groups which held religious convictions for not conforming to this method of oath-taking (the Quakers, for example). Tolerant of such groups, the legal guide provided this recourse:
In all cases where … the person to be sworn shall be conscientiously scrupulous in taking a book oath … [then] the party … shall stand with his right hand lifted up towards Heaven in token of his solemn appeal to the Supreme God whose dwellings are in the highest Heavens, and also in token that if he should swerve from the truth he would draw down the vengeance of Heaven upon his head … with these words, viz: “‘You solemnly appeal to God, as a witness of truth and avenger of falsehood, as you shall answer for the same at the great day of judgment, when the secrets of all hearts shall be made known, that,’ &c.66
The evidence is clear: the Founders, and even legal authorities for generations afterwards, viewed a belief in God as an inherent part of taking an oath.