Original Intent: The Courts, the Constitution, and Religion

by David Barton

  This description was entirely accurate; the Court unilaterally “reversed the historic position.” What was that historic position? According to Samuel Adams, the Bill of Rights was created because the people wished …

  … to see a line drawn as clearly as may be between the federal powers vested in Congress and distinct sovereignty of the several States upon which the private and personal rights of the citizens depend. Without such distinction there will be danger of the Constitution issuing imperceptibly and gradually into a consolidated government over all the States…. [T]he population of the U. S. live in different climates, of different education and manners, and possessed of different habits and feelings [and] under one consolidated government cannot long remain free.16

  Very simply, the purpose of the Bill of Rights was to keep the “education, manners, habits, and feelings” from being consolidated and micro-managed by the federal government. As Thomas Jefferson reminded Supreme Court Justice William Johnson:

  [T]aking from the States the moral rule of their citizens, and subordinating it to the general authority [federal government]…. would … break up the foundations of the Union…. I believe the States can best govern our home concerns, and the general [federal] government our foreign ones.17 (emphasis added)

  Jefferson made it clear that this was especially true with the First Amendment:

  Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the general [federal] government. It must, then, rest with the States.18 (emphasis added)

  The Bill of Rights was designed specifically to keep issues like that of the First Amendment’s religious expression out of the hands of the federal government and in the realm of the States where the people would have effective recourse against any encroachments upon their liberties. For this reason, earlier Supreme Courts consistently rejected attempts to federalize the States or to usurp their powers. As Founding Father and Chief Justice John Marshall explained in Barron v. Baltimore (1833):

  In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the general [federal] government – not against those of the local [State] governments…. These amendments contain no expression indicating an intention to apply them to the State governments. This Court cannot so apply them.19 (emphasis added)

  The documentation on the intent of the Bill of Rights as well as the intent of the Fourteenth Amendment was clear. Yet, the documentation on both of these Amendments has been not only ignored, but even rejected by the Court. Further, what makes the Court’s coupling of the Fourteenth and the First even more reprehensible is the fact that those who framed and ratified the Fourteenth made clear that it was not to be applied to the First. What evidence indicates this intent?

  Notice, for example, what occurred when the Blaine Amendment had been proposed in 1875. That proposed Amendment stated:

  No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof…. No public property and no public revenue … shall be appropriated to … the support of any school … under the control of any religious or anti-religious sect, organization, or denomination…. And no such particular creed or tenets shall be read or taught in any school or institution supported … by such revenue.20 (emphasis added)

  This Amendment would have done to the States exactly what the Court did in the 1940s; yet it was rejected by the Congress which passed the Fourteenth. In fact, the McCollum Court (1948) noted that not only the Blaine Amendment but also five similar ones which would have applied the First Amendment against the States were rejected by that Congress.21 The intent of the legislators who framed the Fourteenth was clear: it was not to be coupled to the First.

  Therefore, even though the Court invokes the Fourteenth Amendment as its supposed constitutional authority to intrude into the issue of State and local religious expressions, history proves that the Fourteenth actually provides the Court no legitimate basis for that interference. History factually demonstrates the extent to which the Court has taken into its own hand the complete subverting of the Constitution by rewriting the intent of a number of its clauses.

  2. The Efforts of James Madison and Thomas Jefferson in Virginia

  A second ploy routinely utilized by contemporary Courts is to invoke the efforts of James Madison and Thomas Jefferson in Virginia as the national standard. For example:

  This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute.22 EVERSON v. BOARD OF EDUCATION (emphasis added)

  In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson … opposed all religious establishments by law on grounds of principle [and] obtained the enactment of the famous “Virginia Bill for Religious Liberty.”23 ENGEL v. VITALE (emphasis added)

  By the Court’s use of such statements, one is led to believe that what Madison and Jefferson did with their celebrated “Virginia Bill for Religious Liberty” (often called the “Virginia Statute”) was the prototype for the entire nation. It was not.

  In Virginia, the Church of England (the Anglican church) was the only legally recognized and established denomination even though the members of other denominations (Baptists, Lutherans, Presbyterians, Quakers, etc. ) were more numerous than the Anglicans. To rectify this inequity, Jefferson authored the Virginia Statute to disestablish the Anglican church and place all groups on an equal footing. However, before the passage of the Statute, Jefferson traveled overseas to represent American interests. James Madison assumed the mantle and led the successful fight for its passage.

  Much of what Madison and Jefferson fought for in Virginia in 1786 had already occurred in many other States prior to the Virginia Statute. For example, New Jersey,24 North Carolina,25 and Delaware26 had already given equal denominational protection well before Virginia; and New York,27 Pennsylvania,28 Georgia,29 and Vermont30 had established religious liberty prior to the Virginia Statute.

  Furthermore, as early as 1773 (over a decade before the passage of the Virginia Statute) Samuel Chase and William Paca (signers of the Declaration) had led Maryland’s fight to end the system of State-ordered tithes31 – something Jefferson and Madison did not attempt in Virginia until years later. Clearly, many other States made progress in the area of religious liberty independent of the efforts of Jefferson and Madison in Virginia.

  Despite what the Court claims, the efforts in Virginia were not the primary influence in America’s movement to secure religious liberties. However, not only does the Court inaccurately claim that the Virginia Statute was the catalyst for the entire nation, it even claims that it served as the model for the First Amendment. This erroneous charge was ably rebutted by Justice William Rehnquist in Wallace v. Jaffree (1985):

  [T]he Court’s opinion in Everson – while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the Virginia Statue of Religious Liberty – is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights. The repetition of this error in the Court’s opinion in Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 (1948), and, inter alia, Engel v. Vitale, 370 U. S. 421 (1962), does not make it any sounder historically. Finally, in Abington School District v. Schempp, 374 U. S. 203, 214 (1963), the Court made the truly remarkable statement that “the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States.” On the basis of what evidence we have, this
statement is demonstrably incorrect as a matter of history. And its repetition in varying forms in succeeding opinions of the Court can give it no more authority than it possesses as a matter of fact; stare decisis [the reliance on previous precedent] may bind courts as to matters of law, but it cannot bind them as to matters of history.32

  In summary, the Virginia Statute, while an important piece of legislation in the history of Virginia, was not the sole source of religious liberty for America. The concepts it embodied had already been advanced and pursued by many other Founders and many other States. Furthermore, contrary to the current misportrayal, Madison and Jefferson in their efforts with the Virginia Statute were not attempting to limit either Christianity or public religious expressions but rather were attempting to secure its uninhibited expression for all groups.

  3. The Role of Thomas Jefferson and James Madison in the Formation of the First Amendment and the Bill of Rights

  Although the contemporary courts apparently consider Jefferson and Madison as the only significant authorities on the First Amendment, the historical records are clear that the current portrayal of their influence is dramatically overstated. This heavy reliance on both Jefferson and Madison is a new and recent phenomenon.

  In fact, the reason that Jefferson was rarely cited by earlier Courts was given by Jefferson himself when Dr. Joseph Priestley sent Jefferson a copy of an article he planned to publish. In that work, Priestley credited Jefferson with being a major influence in framing the Constitution. Jefferson knew this claim to be erroneous, and on June 19, 1802, he wrote Dr. Priestley, instructing him to correct that error:

  One passage in the paper you enclosed me must be corrected. It is the following, “And all say it was yourself more than any other individual, that planned and established it,” i.e., the Constitution. I was in Europe when the Constitution was planned, and never saw it till after it was established.33

  Jefferson knew that he could not be considered a leading figure in the creation of the Constitution; he was not even in America when it was framed. Jefferson properly disqualified himself.

  Interestingly, Madison, too, disqualified himself from being the significant spokesman on the Constitution and its intent. As he explained to William Cogswell:

  You give me a credit to which I have no claim in calling me “the writer of the Constitution of the United States.” This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads and many hands.34

  Furthermore, one must also recognize that Madison – while undeniably an important influence during the Constitutional Convention – was often out of step with the majority of the delegates. This is evidenced by the fact that 40 of his 71 proposals during the Convention failed;35 additionally, the Constitution that Madison initially sought was far removed from the final document.36

  Earlier generations properly recognized the significant influence of many Founders which today are ignored by the courts and many quasi-political advocacy groups. Others from the Convention previously given lofty recognition included James Wilson;37 Charles Pinckney (one early work called him “The Father of the Constitution”);38 and George Washington (James Monroe believed that without his leadership, the entire Convention would have adjourned unsuccessfully).39 In fact, in 1886, an eminent nineteenth century historian declared that Roger Sherman, George Washington, Charles Cotesworth Pinckney, James Madison, and Alexander Hamilton were the “master-builders of the Constitution.”40

  There indeed can be no legitimate single spokesman for the Constitution. However, this is not to say that Jefferson or Madison had no role; they definitely did. Yet, a serious consideration of the historical evidence makes it clear that they had much less impact than that which is attributed to them today.

  For example, while Jefferson was a leading Anti-Federalist and did want a Bill of Rights, he was only one of the many loud Anti-Federalist voices calling for express protections (e.g., George Mason, Samuel Adams, Patrick Henry, Elbridge Gerry, etc.). In fact, as Jefferson explained, his influence was minimal:

  On receiving it [the Constitution while in France] I wrote strongly to Mr. Madison urging the want of provision for the freedom of religion, freedom of the press, trial by jury, habeas corpus, the substitution of militia for a standing army, and an express reservation to the States of all rights not specifically granted to the Union…. This is all the hand I had in what related to the Constitution.41

  Jefferson wrote only a single letter broadly calling for a Bill of Rights.

  Who, then, was responsible for the Bill of Rights? And what was Madison’s role? A proper perspective on who was – and who was not – a major force in the formation of the Bill of Rights (and therefore in the formation of the First Amendment), can be provided by a brief review of the circumstances surrounding its creation.

  While the Constitutional Convention had ended with a proposal for a new federal government, it had also ended on a divisive tone. During the Convention, Virginian George Mason had advocated that a Bill of Rights be added to the Constitution to provide specific protection for States and individuals,42 but the other Virginians at the Convention – including James Madison – opposed any Bill of Rights; their position prevailed.43 For this reason, George Mason, Elbridge Gerry, Edmund Randolph, and others at the Convention refused to sign the new Constitution.

  Mason and the others returned to their home States to lobby against the ratification of the Constitution until a Bill of Rights was added. As a result of their voices (and numerous others who agreed with them), the ratification of the Constitution almost failed in Virginia,44 Massachusetts,45 New Hampshire,46 and New York.47 Rhode Island flatly refused to ratify it,48 and North Carolina refused to do so until limitations were placed upon the federal government.49 Although the Constitution was eventually ratified, a clear message had been delivered: there was strong sentiment demanding the inclusion of a Bill of Rights.

  The best source for examining the call for a Bill of Rights in the various State conventions is Elliot’s Debates in the Several State Conventions on the Adoption of the Federal Constitution (1836). This is the original compilation of the records from each State’s ratifying convention, and even today that work remains a primary reference, unrivaled in both scholarship and accuracy.

  The Virginia reports from June 2 through June 25, 1788, make clear that during their convention, Patrick Henry, George Mason, and Edmund Randolph led the fight for the Bill of Rights over James Madison’s opposition.50

  Henry’s passionate speeches of June 5th and June 7th resulted in Virginia’s motion that a Bill of Rights be added to the federal Constitution; and on June 25, the Virginia Convention selected George Mason to chair a committee to prepare a proposed Bill of Rights,51 with Patrick Henry and John Randolph as members.52 Mason incorporated Henry’s arguments as the basis of Virginia’s proposal on religious liberty.53

  Although Madison had opposed a Bill of Rights, he understood the grim political reality that without one, it was unlikely the new Constitution would receive widespread public acceptance.54 Consequently, he withdrew his opposition, and in the federal House of Representatives he introduced his own versions of the amendments offered by his State.

  Very little of Madison’s proposed religious wording made it into the final version of the First Amendment; and even a cursory examination of the Annals of Congress surrounding the formation of that Amendment quickly reveals the influence of Fisher Ames and Elbridge Gerry of Massachusetts, John Vining of Delaware, Daniel Carroll and Charles Carroll of Maryland, Benjamin Huntington, Roger Sherman, and Oliver Ellsworth of Connecticut, William Paterson of New Jersey, and others on that Amendment.55

  By utilizing Jefferson and Madison as the principal spokesmen for the First Amendment, the contemporary courts have chosen one who was out of the country at the time of the formation of the First Amendment and another who felt it unnecessary.

  4. Jefferson, Madison, and Religion

  B
ecause of the manner in which Courts invoke Jefferson and Madison when striking down passive and voluntary religious activities, one is led to believe that these two were opposed en toto to religious activities in official public arenas; this is patently untrue – especially in the case of Jefferson.

  Although Jefferson and Madison may certainly be considered two of the less overtly religious among the Founders, they certainly were not religion-hostile. Furthermore, the current portrayals of Madison and Jefferson fail to mention that these two did not even agree with each other on what was a permissible religious expression; each drew the line differently.

  For example, Madison offered Presidential proclamations for national days of prayer, fasting, and thanksgiving;56 but Jefferson refused to do so57 because he believed it to be the responsibility of the State governments rather than the federal one.58 Therefore, only as Governor of Virginia did Jefferson issue such calls.59

  Similarly noteworthy is the fact that the Virginia Statute was only one from a group of bills simultaneously authored by Jefferson and subsequently introduced and promoted by Madison. These other bills (seldom mentioned by the social promoters of Madison and Jefferson) further clarify the views of Jefferson and Madison on religion. Those bills included: “A Bill for Saving the Property of the Church Heretofore by Law Established,” “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers,” “A Bill for Appointing Days of Public Fasting and Thanksgiving,” and “A Bill Annulling Marriages Prohibited by the Levitical Law and Appointing the Mode of Solemnizing Lawful Marriage.”60