Original Intent: The Courts, the Constitution, and Religion

by David Barton

  Additionally, today’s so-called Jeffersonians ignore the fact that Jefferson designated space in the Rotunda of the University of Virginia for chapel services;61 that he expected students to participate in the various religious schools which he personally had invited to locate adjacent to and upon the University property;62 that he praised the use of the Charlottesville courthouse for religious services;63 and that he stated that religion is “deemed in other countries incompatible with good government and yet proved by our experience to be its best support.”64

  In fact, Jefferson thought Christianity so important that he personally authored a work for the Indians entitled The Life and Morals of Jesus of Nazareth which set forth the teachings of Jesus as delivered in the Gospels.65 While President of the United States, Jefferson even approved several measures appropriating federal funds to pay for Christian missionaries to the Indians.66 Of one of these, Justice Rehnquist explained:

  Jefferson’s treaty with the Kaskaskia Indians … provided annual cash support for the Tribe’s Roman Catholic priest and church…. The treaty stated in part: “And whereas, the greater part of the Tribe have been baptized and received into the Catholic church, to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion … [a]nd … three hundred dollars to assist the said Tribe in the erection of a church.”67

  Furthermore, Jefferson signed into law three separate acts setting aside government lands for the sole use of Christian missionaries to evangelize the Indians and others.68

  While Jefferson’s policies toward religious expressions are clear and consistent, an investigation of Madison on this subject is much more difficult. An understanding of Madison’s views is complicated by the fact that his early actions were at direct variance with his later opinions. Consider six examples of his early actions.

  First, Madison was publicly outspoken about his personal Christian beliefs and convictions. For example, he encouraged his friend, William Bradford, to make sure of his own spiritual salvation:

  [A] watchful eye must be kept on ourselves lest, while we are building ideal monuments of renown and bliss here, we neglect to have our names enrolled in the annals of Heaven.69

  Madison even desired that all public officials – including Bradford – would declare openly and publicly their Christian beliefs and testimony:

  I have sometimes thought there could not be a stronger testimony in favor of religion or against temporal enjoyments, even the most rational and manly, than for men who occupy the most honorable and gainful departments and [who] are rising in reputation and wealth, publicly to declare their unsatisfactoriness by becoming fervent advocates in the cause of Christ; and I wish you may give in your evidence in this way.70

  Second, Madison was a member of the committee which authored the 1776 Virginia Bill of Rights and approved of its clause declaring that:

  [I]t is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.71 (emphasis added)

  Third, Madison’s proposed wording for the First Amendment demonstrates that he opposed only the establishment of a federal denomination, not public religious activities. His proposal declared:

  The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.72 (emphasis added)

  (Madison reemphasized that position throughout the debates.73)

  Fourth, in 1789, Madison served on the Congressional committee which authorized, approved, and selected paid Congressional chaplains.74

  Fifth, in 1812, President Madison signed a federal bill which economically aided a Bible Society in its goal of the mass distribution of the Bible.75

  Sixth, throughout his Presidency (1809-1816), Madison endorsed public and official religious expressions by issuing several proclamations for national days of prayer, fasting, and thanksgiving.76

  These were the early actions of Madison; yet, in later life in what is known as the Detached Memoranda, Madison retreated from many of these positions, even declaring his belief that having paid chaplains was unconstitutional.77 He also reversed another previous position by avoiding discussions of his religious views in his latter years.78

  Those who embrace Madison’s later beliefs in preference to his earlier actions attempt widely to publicize his Detached Memoranda. Then, in an effort to make Madison’s early actions conform to his latter beliefs, they even blatantly misportray his role in defeating Patrick Henry’s 1784 “Bill for Establishing Teachers of the Christian Religion” into a supposed “proof ” that Madison not only opposed, but that the entire nation also rejected, public endorsements of religion. Yet, consider the facts.

  Henry’s bill – today often titled the “Assessment Bill” – was an effort by Virginians to rebuild the spiritual foundation of their State. Understandably, those underpinnings had been ravaged during the Revolution because Virginia’s official State denomination had been The Church of England. In an effort to restore an emphasis on some of the necessary spiritual values, Patrick Henry proposed a tax to support statewide religious instruction for all denominations. William Wirt Henry, Patrick Henry’s biographer and grandson, described the tax:

  This was in effect a tax for the support of secular education, with the privilege to each taxpayer of devoting his tax to the support of the religious teachers of his own denomination.79

  Henry’s plan to introduce this bill sparked tremendous debate from both sides of the issue, and memorials both for and against the tax were ably written and broadly circulated in the State. However, the only one widely discussed today is that of Madison: his Memorial and Remonstrance.

  In that work, Madison made clear his position that given time, everyone would eventually choose to become a Christian as a result of their own personal initiative and investigation. Madison was not disparaging Christianity in the Memorial; he just wanted religion practiced only in the private forum.80

  It appeared, however, that Madison’s position would fail; for numerous distinguished Virginians, including George Washington, John Marshall, Richard Henry Lee, and others, supported Henry’s bill.81 Yet, in the midst of the debates, Henry left the legislature to take his seat as Virginia’s new Governor. With Henry’s persuasive leadership absent from the Assembly, Madison believed he could now turn the tide in his favor. As he explained to James Monroe:

  The bill for a religious assessment has not been yet brought in. Mr. Henry, the father of the scheme, is gone up to his seat for his family and will no more sit in the House of Delegates, a circumstance very inauspicious [unfavorable] to his offspring [the bill].82

  With Henry gone, Madison’s efforts prevailed. However, opposition to the new tax was not simply a matter of a religious debate; it was bolstered by the fact that the general state of postwar poverty which existed not only in Virginia but in all the States did not welcome new taxes of any kind. (For example, Shay’s Rebellion and the Whiskey Rebellion were clear illustrations of the people’s fervent opposition to new taxes.)

  Today, one is led to believe that what Madison “accomplished” in defeating Henry’s bill represented the national thinking; it did not. For example, in Massachusetts,83 New Hampshire,84 and Maryland,85 bills similar to that defeated in Virginia were passed, showing only that the majority of those in Virginia – and not the nation – embraced Madison’s position on this issue. And it is even debatable whether the majority of those in Virginia embraced Madison’s view since the evidence suggests that had Henry remained in the legislature, the bill probably would have passed.

  Another important factor ignored by those today who overly elevate Madison is that he was often in disagreement with many prominent Founding Fathers. For example, George Washington did publicly – and as the national leader – promote, encourage, and advance public religious expressions. With today’s only measure of constitutionality being Madison’s views, the absurd question becomes, “Did G
eorge Washington not understand the Constitution? Or did he intentionally violate it?” Such must be the case if Washington’s actions – and those of many other Founders – are judged only by the Madisonian standards which many promote today.

  In summary, in order to utilize Thomas Jefferson and James Madison to oppose public religious expression, Jefferson must be totally misportrayed, and Madison’s opinions from decades ex post facto must be elevated over his actions – a theory which clearly would be rejected even under the elementary rules of evidence.

  5. Omission of Facts

  The final strategy used by the Court to bolster its arguments is one previously introduced: historical omission. Not only does the Court regularly omit cases prior to 1947 from its discussions, it also disregards quotes from prominent Founders other than Jefferson or Madison. As explained by one government researcher, such omission is an effective strategy:

  [L]iberal and secular bias is primarily accomplished by exclusion, by leaving out the opposing position. Such a bias is much harder to observe than a positive vilification or direct criticism, but it is the essence of censorship. It is effective not only because it is hard to observe – it isn’t there – and therefore hard to counteract, but also because it makes only the liberal, secular positions familiar and plausible.86

  The Court’s failure to cite other Founders seems to imply either that no other Founders were qualified to address First Amendment issues, or that there exists no recorded statements from other Founders pertinent to the separation question. Both implications are wrong; numerous writings do exist; and since there were fifty-five at the Convention which framed the Constitution and ninety in the Congress which framed the First Amendment, numerous Founders do qualify as legitimate spokesmen.

  For example, Gouverneur Morris of Pennsylvania was the most active member of the Constitutional Convention (speaking 173 times) and was the head of the committee which created the final wording for that document. As its penman, Gouverneur Morris certainly knew its intent, yet he never mentioned a “separation of church and state.” On the contrary, he advocated that “education should teach the precepts of religion and the duties of man towards God.”87 Consequently, the Court omits Morris from its historical discussions.

  Additionally, James Wilson was the second most active member of the Convention (speaking 168 times) and was appointed by President George Washington as an original Justice on the United States Supreme Court where he coauthored America’s first legal text on the Constitution. James Wilson never mentions a “separation of church and state.” On the contrary, in his legal writings he declared, “Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants.”88 Therefore, Wilson is not cited by the Court.

  Similarly, it was Fisher Ames of Massachusetts who, on August 20, 1789, provided the final wording for the First Amendment as passed by the House of Representatives.89 Fisher Ames therefore certainly knew the intent of the First Amendment, yet he never spoke of a “separation of church and state.” On the contrary, he called for the Bible always to remain the principle textbook in America’s classrooms.90 Again, the Court chooses not to invoke Ames as an authority.

  Furthermore, George Washington was the President of the Convention which framed the Constitution, and the President of the United States who called for and oversaw the formation of the Bill of Rights. Thus he fully understood the intent of those documents. Yet, not only did Washington never talk of a “separation of church and state,” on the contrary, he advocated the inclusion of religious principles throughout national policies.91 Clearly, the Court ignores his statements. Numerous other well-qualified Founders have similarly fallen into the Court’s abyss of the forgotten or the forsaken.

  Any objective, thorough examination of the five common historical “defenses” on which the contemporary Court so frequently relies to justify its separation doctrine proves that each is fatally flawed. Furthermore, they not only provide the Court no legitimate defense, they also reveal the Court’s bias against the Founders’ original intent for public religious expressions.

  † During the period surrounding the Civil War, the Supreme Court regularly demonstrated hostily to the rights of African Americans. In 1856, it struck down a law of Congress in order to issue its deplorable Dred Scott opinion announcing that African Americans were property, not persons2 (this was the first time the Court used judicial review to strike down an act of Congress). In the period from 1861 to 1875, Congress passed almost two dozen laws related to civil rights as well as three civil rights amendments to the Constitution, but the Court refused to uphold those laws and amendments.

  For example, in 1875, Congress passed a law banning segregation,3 but in 1883, the Court overturned that law, continuing segregation;4 and in 1896, the Court reaffirmed segregation in the Plessy v. Ferguson decision;5 but in 1954, in Brown v. Board of Education,6 the Court finally reversed itself and struck down segregation in education. While the Court is often praised for its Brown v. Board decision, many forget that the Court was simply reversing itself from the racial segregation that it had imposed on the nation for seventy years longer than Congress and the people had desired. (For more information on African Americans and civil rights, see Setting the Record Straight by David Barton, available from www.wallbuilders.com.)

  ~11~

  Establishing the American Philosophy of Government

  Every human government ever established was the product of definable political theory; that is, each embraced a philosophy which, at least in its own eyes, justified its existence and manner of conducting affairs. The American government was no different.

  The Declaration of Independence and the Constitution were well-devised plans for government based on specific political philosophies selected only after extensive research, study, and debate. This fact was acknowledged by Benjamin Franklin at the Constitutional Convention when he reminded the other delegates that:

  We have gone back to ancient history for models of government, and examined the different forms of those republics…. And we have viewed modern states all round Europe.1

  The result of our Founders’ inquiries has been the longest ongoing constitutional-republic in the world. Yet, from what sources did our Founding Fathers select the ideas for their successful political philosophy?

  In an attempt to answer this question, a group of contemporary political scientists embarked on an ambitious ten-year project (beginning in the early 1970s) to analyze more than 15,000 political writings from the Founding Era (1760-1805).2 Those writings were examined with the goal of isolating and identifying the specific political sources cited amidst the debates in the establishment of American government. The identification of the sources which the Founders invoked would permit the origin of their political ideas to be determined.

  From the 15,000 representative writings selected, the researchers first isolated some 3,154 quotations and then documented the original sources of those quotations. The following table presents the results of that study and identifies the specific political authorities used most frequently during the Founding Era:

  Most Cited Thinkers3

  Baron Charles Secondat de Montesquieu

  Montesquieu (1689-1755), a French attorney and author, was the most frequently invoked political source during the Founding Era; his Spirit of Laws (1748) provided a powerful influence on the thinking of our Founders. A fundamental premise of his political theory was that national stability and longevity could not be achieved unless a society was founded upon unchanging, transcendent laws:

  [S]ociety, notwithstanding all its revolutions, must repose on principles that do not change.4

  What did Montesquieu believe to be the source of these immutable principles?

  The Christian religion, which ordains that men should love each other, would without doubt have every nation blest with the best civil, the best political laws; because these, next to this religion, are the greatest good that men can give and receive.5
/>
  Among many of Montesquieu’s specific political theories that the Founders embraced was his belief that the powers of government should be kept separate and distinct, with one power able to check the power of another – what we now term “separation of powers” and “checks and balances.” As John Quincy Adams noted:

  At the time of the Declaration of Independence, Montesquieu was one of the most recent and esteemed writers upon government, and he had shown the division of powers to be essentially necessary to the preservation of liberty.6

  Montesquieu had been very clear about “the division of powers”:

  When the legislative and executive powers are united in the same person … there can be no liberty; because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner. Again, there is no liberty if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.7

  This separation of powers theory is rooted in the Biblical concept espoused in Jeremiah 17:9 that man naturally tends toward corruption. Following the religious teachings of the day, it was generally accepted that the unrestrained heart of man moved toward moral and civil degradation (what the Puritans, Calvinists, and others called the “depravity of man”). Thus it was logical that society would be much safer if all power did not repose in the same authority. With the power divided, if one branch became wicked, the others might still remain righteous and thus be able to check the wayward influence.