by David Barton
This is only common sense, for legislators are unable to foresee every circumstance that might arise under the enforcement of a law they enact. Furthermore, they vividly recall the extensive discussions in which their legislation was framed and often believe that the law communicates more clearly than it actually does. Yet those called upon to enforce that law years later do not always see the intent which the legislators felt was so obvious.
For this reason, it was an elementary principle of law, and thus a fundamental responsibility of the courts, to establish the spirit of a law before ruling on any issue. Signer of the Constitution John Dickinson had explained the importance of this principle:
[N]othing is more certain than that the forms of liberty may be retained when the substance is gone. In government, as well as in religion, “the letter killeth, but the spirit giveth life” [2 CORINTHIANS 3:6].2
Courts, understanding this principle, long strove to establish the spirit (intent) of a law before issuing a ruling on any controversy touching that particular law. To illustrate the absurdities, and even atrocities, which could result if a law’s intent were disregarded, the Holy Trinity Court cited numerous cases, including the following two.
The State v. Smith Clark, 1860
Supreme Court of New Jersey
The “offense” was described in the case:
[T]he defendant [Smith Clark] did maliciously and willfully … break down … twenty panels of rail fence belonging to and in the possession of George Arnwine. The…. [law] provides that if any person or persons shall willfully … break down … or destroy any fences … belonging to … any other person … [they] shall be deemed guilty of a misdemeanor.3
Smith Clark had confessed to intentionally destroying George Arnwine’s fence; therefore, under this law, he should be found guilty and sentenced. However, there was more:
The defendant offered to show, by way of defence, that at the several times when he broke down the fence, he had title to the land upon which it was built, and … that the fence which was destroyed was erected … upon [his] land.4
The fence that Clark broke down was wrongly built by Arnwine on Clark’s property. Despite its wording, the law clearly had not been designed to prosecute Clark for tearing down someone else’s fence built on his property; Arnwine was the real abuser of the law. The court thus correctly concluded:
The language of the act, if construed literally, evidently leads to an absurd result. If a literal construction of the words of a statute be absurd, the act must be so construed as to avoid the absurdity.5
The legislature felt the intent of the law was obvious; it could never have foreseen such an attempt to misapply its law by a zealous prosecutor. Had the court applied the law solely by its wording and not according to its intent, it would have created an injustice while supposedly administering “justice.”
United States v. Kirby, 1868
United States Supreme Court
This “offense” was also described in the case:
[T]he act of Congress … provides “that if any person shall knowingly and wilfully obstruct or retard the passage of the mail, or of any driver or carrier … he shall, upon conviction, for every such offence, pay a fine not exceeding one hundred dollars…. ” The indictment contained four counts, and charged the defendants with knowingly and wilfully obstructing … the passage of one Farris, a carrier of the mail, while engaged in the performance of his duty.6
Congress clearly intended that “the mail must go through!” Since Kirby and the three with him had confessed to interfering with the mail-carrier, they should be punished; however, there was more. It turned out that:
[T]wo indictments were found by the grand jury of the county against the said Farris [the mail-carrier] for murder … and placed in the hands of Kirby [the sheriff] … commanding him to arrest the said Farris and bring him before the court to answer the indictments; that in obedience to these warrants [Kirby] arrested Farris, and was accompanied by other defendants as a posse, who were lawfully summoned to assist him in effecting the arrest.7
By arresting Farris, the mail-carrier, Sheriff Kirby and his posse had indeed interfered with the delivery of the mail. But was the law intended to keep a Sheriff from arresting a mail-carrier charged with murder? The Court recognized that although his actions violated the letter of the law, they did not violate its intent. The Court thus noted:
All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence…. The reason of the law in such cases should prevail over its letter.8
That same Court provided some additional examples to buttress its point:
The common sense of man approves the judgment mentioned by Puffendorf [a Christian philosopher quoted by numerous Founders] that the … law which enacted “that whoever drew blood in the streets should be punished with the utmost severity” did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit. The same common sense accepts the ruling … which enacts that a prisoner who breaks prison shall be guilty of felony, does not extend to a prisoner who breaks out when the prison is on fire – “for he is not to be hanged because he would not stay to be burnt.” And we think that a like common sense will sanction the ruling we make, that the act of Congress which punishes the obstruction or retarding of the passage of the mail, or of its carrier, does not apply to a case of temporary detention of the mail caused by the arrest of the carrier upon an indictment for murder.9
The Holy Trinity Court cited thirteen similar cases and then concluded by declaring emphatically that the spirit of a law should always prevail over its letter:
[T]he legislature used general terms … and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.10
Previous courts had long applied this principle to cases on the First Amendment, consistently finding that the Founders’ sole intent was to prevent the federal establishment of a single denomination of Christianity. However, the nation now finds itself under the “absurd results” stemming from the Courts’ ignoring the Founders’ massive documentation concerning the purpose of the First Amendment. Our Founders never envisioned that the First Amendment would become a weapon to excise Christian or traditional religious expressions from the public arena.
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Rewriting Original Intent
Eight of the Supreme Court’s contemporary landmark religious liberty cases will be reviewed in this chapter; each will demonstrate that the absurd results feared by previous Courts have now become commonplace.
As the Court’s rulings in these eight cases are reviewed, rebuttals to the Court’s rulings will also be presented. These rebuttals will be taken from two sources: (1) the statements and declarations of the Founding Fathers, and (2) the dissents of other Justices, thus presenting the other side of the Court’s decision. According to the following proverb, such an examination is vital to determining truth:
He who states his case first seems right until his rival comes and cross-examines him. PROVERBS 18:17 (AMPLIFIED BIBLE)
Any story sounds true until someone tells the other side and sets the record straight. PROVERBS 18:17 (LIVING BIBLE)
Through the “cross-examination” provided both by the dissents and by the Founders’ declarations, it will quickly become evident how extensively contemporary Courts not only have abandoned but also have contradicted the original intent of the First Amendment.
McCollum v. Board of Education, 1948
This case, decided the year following the Everson decision which introduced the sepa
ration phrase, was typical of an issue frequently raised in subsequent cases: can voluntary religious activities be unconstitutional?
The controversy in this case was over elective classes offered in Illinois schools. The Court delineated the facts:
[I]nterested members of the Jewish, Roman Catholic, and a few of the Protestant faiths formed a voluntary association called the Champaign Council on Religious Education. They obtained permission from the Board of Education to offer classes in religious instruction to public school pupils in grades four to nine inclusive. Classes were made up of pupils whose parents signed printed cards requesting that their children be permitted to attend; they were held weekly, thirty minutes for the lower grades, forty-five minutes for the higher. The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools. The classes were taught in three separate religious groups by Protestant teachers, Catholic priests, and a Jewish rabbi.1
Not only were the classes voluntary, students could attend only with parents’ written permission; yet the Court found these classes unacceptable. It reiterated its position taken the previous year:
[A]s we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.2
Justice Felix Frankfurter further expounded on this position:
Separation means separation, not something less…. It is the Court’s duty to enforce this principle in its full integrity…. Illinois has here authorized the commingling of sectarian with secular instruction in the public schools. The Constitution of the United States forbids this.3
The Court’s assertion that it was wrong for Illinois to “commingle sectarian with secular instruction” seems ironic when one recalls that on August 7, 1789, George Washington signed the Northwest Ordinance4 which encouraged schools in the territory that would become Illinois to teach “religion, morality, and knowledge.”5
Furthermore, when Thomas Jefferson authored his plan of education in Virginia, he considered religious study an inseparable component in the study of law and political science. As he explained:
[I]n my catalogue, considering ethics, as well as religion, as supplements to law in the government of man, I had placed them in that sequence.6
Notice statements from additional Founders and early statesmen which further contradict the assertion made by the McCollum Court against commingling religious and secular instruction in public schools:
You have … received a public education, the purpose whereof hath been to qualify you the better to serve your Creator and your country…. Your first great duties, you are sensible, are those you owe to Heaven, to your Creator and Redeemer. Let these be ever present to your minds, and exemplified in your lives and conduct.7 WILLIAM SAMUEL JOHNSON, SIGNER OF THE CONSTITUTION
As piety, religion and morality have a happy influence on the minds of men, in their public as well as private transactions, you will not think it unseasonable, although I have frequently done it, to bring to your remembrance the great importance of encouraging our university, town schools, and other seminaries of education, that our children and youth while they are engaged in the pursuit of useful science, may have their minds impressed with a strong sense of the duties they owe to their God.8 If we continue to be a happy people, that happiness must be assured by the enacting and executing of the reasonable and wise laws expressed in the plainest language and by establishing such modes of education as tend to inculcate in the minds of youth the feelings and habits of “piety, religion and morality.”9 [E]ducation…. leads the youth beyond mere outside show [and] will impress their minds with a profound reverence of the Deity…. It will excite in them a just regard to Divine revelation.10 SAMUEL ADAMS
[R]eason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle…. Promote, then, as an object of primary importance, institutions for the general diffusion of knowledge.11 GEORGE WASHINGTON
Religion is the only solid basis of good morals; therefore education should teach the precepts of religion and the duties of man towards God.12 GOUVERNEUR MORRIS, PENMAN AND SIGNER OF THE CONSTITUTION
[T]he only foundation for a useful education in a republic is to be laid in religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.13 Without religion, I believe that learning does real mischief to the morals and principles of mankind.14 BENJAMIN RUSH, SIGNER OF THE DECLARATION
In my view, the Christian religion is the most important and one of the first things in which all children, under a free government, ought to be instructed…. No truth is more evident to my mind than that the Christian religion must be the basis of any government intended to secure the rights and privileges of a free people.15 NOAH WEBSTER
The attainment of knowledge does not comprise all which is contained in the larger term of education…. [A] profound religious feeling is to be instilled and pure morality inculcated under all circumstances. All this is comprised in education.16 DANIEL WEBSTER
Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as Divine revelation in the college [school] – its general precepts expounded, its evidences explained and its glorious principles of morality inculcated? … Where can the purest principles of morality be learned so clearly or so perfectly as from the New Testament?17 JOSEPH STORY, U. S. SUPREME COURT, FATHER OF AMERICAN JURISPRUDENCE
I cannot omit this occasion of inviting your attention to the means of instruction for the rising generation. To enable them to perceive and duly to estimate their rights, to inculcate correct principles and habits of morality and religion, and thus to render them useful citizens, a competent provision for their education is all essential.18 DANIEL TOMPKINS, GOVERNOR OF NEW YORK; VICE PRESIDENT OF THE U. S.
Just these few examples illustrate that our Founders intended to “commingle sectarian and secular instruction in the public schools.”
When the Court struck down the elective classes and ruled in favor of Mrs. Vashti McCollum who had initiated action against the classes, Justice Jackson argued in his concurring opinion that the Court had awarded her too much and gone too far. He explained:
The plaintiff, as she has every right to be, is an avowed atheist. What she has asked of the courts is that they not only end the “released time” plan but also ban every form of teaching which suggests or recognizes that there is a God. She would ban all teaching of the Scriptures. She especially mentions as an example of invasion of her rights “having pupils [in the voluntarily attended, elective classes] learn and recite such statements as, ‘The Lord is my Shepherd, I shall not want.’ ” And she objects to teaching that the King James version of the Bible “is called the Christian’s Guide Book, the Holy Writ and the Word of God,” and many other similar matters. This Court is directing the Illinois courts generally to sustain plaintiff’s complaint without exception of any of these grounds of complaint.19
Despite the fact that students attended the elective classes only with signed parental permission, and that the instructors were non-school personnel paid through private funds, the Court ruled in favor of a single atheist not involved in the classes but who was personally offended by religion and therefore did not want any students taught religious principles.
This decision foreshadowed what was soon to become routine: a single individual, unable to advance his or her goals through legitimate political and legislative means, convincing a willing Court to violate the rights of the overwhelming majority of its citizens in order to accommodate the wishes of that individual.
One further note from this decision: a concurring Justice observed that, through this ruling, the Court was now assuming “the role of a super board of education for every school district in the nation”20 – an ominous prediction of what has now become the norm.
Engel v. Vitale, 1962
For fourteen years following the McCollum case, the Court not only ceased to strike down voluntary religious activities for students, it actually upheld them, retreating significantly from its inflexible concept of “separation” introduced in 1947 in Everson (see Zorach v. Clauson, 195221). However, in the Engel case, the Court reverted to its Everson position; it attacked the long-standing tradition of school prayer and struck down this simple 22-word prayer from New York schools:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.22
Contemporary reviewers often claim that the “real” issue in this prayer case was coercion since it involved a state-approved prayer. Yet this is a misportrayal; there was no coercion; even the Court conceded that …
… the schools did not compel any pupil to join in the prayer over his or her parents’ objection.23 (emphasis added)