by David Barton
By definition, “natural rights” included “that which the Books of the Law and the Gospel do contain.”13 Very simply, “natural rights” incorporated what God Himself had guaranteed to man in the Scriptures. Thus when Jefferson assured the Baptists that by following their “natural rights” they would violate no social duty, it was understood that he was affirming to them his belief that the free exercise of religion was their inalienable God-given right. They were therefore assured that the issue of religious expressions was above federal jurisdiction.
So clearly did Jefferson understand the Source of America’s inalienable rights that he even doubted whether America could survive if we ever lost that knowledge. He queried:
And can the liberties of a nation be thought secure if we have lost the only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are not to be violated but with His wrath?14
Jefferson believed that God, not government, was the Author and Source of our rights and that the government, therefore, was to be prevented from interference with those rights. Very simply, the “fence” of the Webster letter and the “wall” of the Danbury letter were not to limit religious activities in public; rather they were to limit the power of the government to prohibit or interfere with those expressions.
Earlier courts long understood Jefferson’s intent. In fact, when Jefferson’s letter was invoked by the Court (only once prior to the 1947 Everson case – the Reynolds v. United States case in 1878), unlike today’s Courts which publish only his eight-word separation phrase, that Court published a lengthy section from Jefferson’s letter, and then concluded:
Coming as this does from an acknowledged leader of the advocates of the measure, it [Jefferson’s letter] may be accepted almost as an authoritative declaration of the scope and effect of the Amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.15 (emphasis added)
That Court then succinctly summarized Jefferson’s intent for “separation of church and state”:
[T]he rightful purposes of civil government are for its officers to interfere when principles break out into overt acts against peace and good order. In th[is] … is found the true distinction between what properly belongs to the church and what to the State.16
With this even the Baptists had agreed; for while wanting to see the government prohibited from interfering with or limiting religious activities, they also had declared it a legitimate function of government “to punish the man who works ill to his neighbor.”
That Court, therefore, and others (for example, Commonwealth v. Nesbit17 and Lindenmuller v. The People18), identified actions into which – if perpetrated in the name of religion – the government did have legitimate reason to intrude. Those activities included human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide, advocation and promotion of immorality, etc.
Such acts, even if perpetrated in the name of religion, would be stopped by the government since, as the Court had explained, they were “subversive of good order” and were “overt acts against peace and good order.” However, the government was never to interfere with traditional religious practices outlined in “the Books of the Law and the Gospel” – whether public prayer, the use of the Scriptures, etc.
Therefore, if Jefferson’s letter is to be used today, let its context be clearly given – as in previous years. Furthermore, that single letter should never be invoked as a stand-alone document. Earlier Courts had always viewed Jefferson’s Danbury letter for what it was: a personal, private letter to a specific group. There is probably no other instance in America’s history where words spoken by a single individual in a private letter – words clearly divorced from their context – have become the sole authorization for a national judicial policy. A proper analysis of Jefferson’s views must include his numerous other statements on the First Amendment.
For example, Jefferson also declared that the “power to prescribe any religious exercise…. must rest with the States”19 (emphasis added). Interestingly, the federal courts who misuse his separation phrase deliberately ignore this succinct declaration, regularly striking down scores of State laws which encourage or facilitate public religious expressions. Such rulings are a direct violation of the intent of the one on whom the courts claim so heavily to rely.
One further note should be made about the now infamous “separation” dogma. The Congressional Records from June 7 to September 25, 1789, record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, during those debates not one of those ninety Framers ever mentioned the phrase “separation of church and state.” It seems logical that if this had been the intent of the Founding Fathers for the First Amendment – as is so frequently asserted – then at least one of those ninety would have mentioned that phrase; none did.
Since the “separation” phrase was used so infrequently by the Founders, and since early courts rarely invoked it, how did those courts rule on the religious issues and activities which confront today’s courts? Were their conclusions different from those reached now? As demonstrated in the following chapter, the answer is an emphatic and a resounding, “Yes!”
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The Judicial Evidence
Excerpts from twenty-one early cases will be presented in this chapter. These cases, representative of many others, will demonstrate that contrary to the actions of current courts, early courts protected, advanced, encouraged, and promoted the role and influence of religion throughout society. Significantly, several Judges who ruled in these early cases had personally participated in the drafting and ratification of the Constitution and thus were quite sure about its intent.
Church of the Holy Trinity v. United States, 1892
United States Supreme Court
This case provides a good starting point since it incorporates several previous decisions. At issue was an 1885 federal immigration law which declared:
[I]t shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever to … in any way assist or encourage the importation … of any alien or … foreigners into the United States … under contract or agreement … to perform labor or service of any kind.1
Since this law, on its face, appeared to be a straightforward ban on hiring foreign labor, when the Church of the Holy Trinity in New York employed a clergyman from England as its pastor, the U. S. Attorney’s office brought suit against the church. When the case reached the Supreme Court, the Court began by examining the legislative records surrounding the passage of that law and discovered that its sole purpose had been to halt the influx of almost slave-like foreign labor to construct the western railroads. Thus, while the church’s hiring of the minister had violated the wording of the law, it clearly had fallen far outside the spirit and intent of that law. The Court therefore concluded that it would be an absurd application to prosecute the church under that law.
After vindicating the church, the Court spent the remainder of the case explaining that it would be completely repugnant to the spirit of the Constitution to in any way hinder, whether directly or indirectly, the spread or propagation of Christianity by legislative act. As the Court noted:
[N]o purpose of action against religion can be imputed to any legislation, State or national, because this is a religious people…. [T]his is a Christian nation.2
To support its conclusion that “this is a religious people…. this is a Christian nation,” the Court paraded a veritable litany of precedents from American history:
From the discovery of this continent to the present hour, there is a single voice making this affirmation. The commission to Christopher Columbus … [recited] that “it is hoped that by God’s assistance some of the continents and islands in the ocean will be discovered,” etc. The first colonial grant – that made to Sir
Walter Raleigh in 1584 – … and the grant authorizing him to enact statutes for the government of the proposed colony provided that “they be not against the true Christian faith…. ” The first charter of Virginia, granted by King James I in 1606 … commenced the grant in these words: “ … in propagating of Christian Religion to such People as yet live in Darkness ….”
Language of similar import may be found in … the various charters granted to the other colonies. In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant. The celebrated compact made by the Pilgrims in the Mayflower, 1620, recites: “Having undertaken for the Glory of God, and advancement of the Christian faith … a voyage to plant the first colony in the northern parts ….”
The fundamental orders of Connecticut, under which a provisional government was instituted in 1638-1639, commence with this declaration: “ … And well knowing where a people are gathered together the word of God requires that to maintain the peace and union … there should be an orderly and decent government established according to God … to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess … of the said Gospel [which] is now practiced amongst us.”
In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: “ … no people can be truly happy, though under the greatest enjoyment of civil liberties, if abridged of … their religious profession and worship….”
Coming nearer to the present time, the Declaration of Independence recognizes the presence of the Divine in human affairs in these words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights … ”; “ … appealing to the Supreme Judge of the world for the rectitude of our intentions … ”; “And for the support of this Declaration, with a firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.”3
After citing many additional historical examples, the Court then reviewed several legal precedents which further buttressed its declaration:
[W]e find that in Updegraph v. The Commonwealth, 11 S. & R. 394, 400, it was decided that, “Christianity, general Christianity, is, and always has been, a part of the common law … not Christianity with an established church … but Christianity with liberty of conscience to all men.” And in The People v. Ruggles, 8 Johns. 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: “The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice…. [W]e are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those impostors [other religions].” And in the famous case of Vidal v. Girard’s Executors, 2 How. 127, 198, this Court … observed: “It is also said, and truly, that the Christian religion is a part of the common law.”4
After several pages of similar discourse, the Court concluded:
There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons: they are organic [legal, governmental] utterances; they speak the voice of the entire people…. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.5
As far as the Court was concerned, the issue was closed; it would never support any action which might have the effect of suppressing religion or of limiting religious expression.
Since the Court cited Updegraph v. Commonwealth, People v. Ruggles, and Vidal v. Girard’s Executors in reaching its conclusion, it will be profitable to review these cases. However, before examining these three cases – and seventeen others – an observation should first be made about rulings issued by State Supreme Courts.
For 150 years following the ratification of the Constitution, States were considered the highest authority on any dispute involving the issues within the Bill of Rights. Only under unusual circumstances would a case involving those freedoms reach the federal courts. In fact, the Holy Trinity Court noted that federal courts rarely ruled on controversies involving religion.6
Therefore, since federal courts were less of an authority on these issues, they frequently cited State Supreme Court decisions as their authority – as did the Court in Holy Trinity. Only since the Court’s federalization of the States in the mid-twentieth century have State Supreme Courts been viewed as subordinate to the federal courts. It will be helpful to recall this when reviewing the following cases.
Updegraph v. The Commonwealth, 1824
Supreme Court of Pennsylvania
This was the first case cited in Holy Trinity, and the facts of the case were described in the grand jury’s indictment:
Abner Updegraph … not having the fear of God before his eyes … contriving and intending to scandalize and bring into disrepute and vilify the Christian religion and the scriptures of truth in the presence and hearing of several persons … did unlawfully, wickedly and pre-meditatively, despitefully and blasphemously say … : “That the Holy Scriptures were a mere fable: that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies.” To the great dishonor of Almighty God [and] to the great scandal of the profession of the Christian religion.7
Updegraph, indicted under the State law against blasphemy, was found guilty by the jury; that verdict was appealed.
Since the central question revolved around the issue of blasphemy, the court needed to establish a legal definition of that word. It therefore turned to the writings of the foremost legal authority of the day: William Blackstone.
Blackstone’s Commentaries on the Laws, introduced in 1766, became the law book of the Founding Fathers.8 (In fact, so strong was its influence in America that Thomas Jefferson once quipped that American lawyers used Blackstone’s with the same dedication and reverence that Muslims used the Koran.9) It was therefore logical that the court should turn to this source to establish the legal definition of “blasphemy”:
Blasphemy against the Almighty is denying His being or Providence or uttering contumelious [insulting] reproaches on our Savior Christ. It is punished at common law by fine and imprisonment, for Christianity is part of the laws of the land.10
By the legal definition, Updegraph had clearly violated the law. His attorney, however, argued that his conviction should be overturned for two reasons: (1) Updegraph was a member of a debating association which convened weekly, and what he said had been uttered in the course of an argument on a religious question; (2) that both the State and federal Constitution protected freedom of speech, and that if any State law against blasphemy did exist, the federal Constitution had done away with it; Christianity was no longer part of the law. (Undoubtedly, defense arguments would differ little today.) The supreme court responded:
The jury … finds a malicious intention in the speaker to vilify the Christian religion and the Scriptures and this court cannot look beyond the record nor take any notice of the allegation that the words were uttered by the defendant, a member of a debating association which convened weekly for discussion and mutual information…. That there is an association in which so serious a subject is treated with so much levity, indecency and scurrility [vulgar and obscene language] … I am sorry to hear, for it would prove a nursery of vice, a school of preparation to qualify young men for the gallows and young women for the brothel, and there is not a skeptic of decent manners and good morals who would not consider such debating clubs as a common nuisance and disgrace to the city…. [I]t was the outpouring of an invective so vulgarly shocking and insulting that the lowest grade of civil authority ought not to b
e subject to it, but when spoken in a Christian land and to a Christian audience, the highest offence contra bonos mores [against proper standards].11
Having rejected the defense argument concerning a debating society, the court concluded by refuting the defense contention that the constitution disregarded Christianity:
[T]he assertion is once more made that Christianity never was received as part of the common law of this Christian land; and it is added that if it was it was virtually repealed by the Constitution of the United States and of this State….
We will first dispose of what is considered the grand objection – the constitutionality of Christianity – for, in effect, that is the question. Christianity, general Christianity, is and always has been a part of the common law … not Christianity founded on any particular religious tenets; not Christianity with an established church … but Christianity with liberty of conscience to all men.
Thus this wise legislature framed this great body of laws for a Christian country and Christian people…. This is the Christianity of the common law … and thus it is irrefragably [undeniably] proved that the laws and institutions of this State are built on the foundation of reverence for Christianity…. In this the Constitution of the United States has made no alteration nor in the great body of the laws which was an incorporation of the common-law doctrine of Christianity.