Separation of Church and State: Historical Fact or Myth?
By Rep. William D. Graves
The Supreme Court’s Wall of Separation
Suggestions to allow voluntary prayer and Bible reading in the public schools are often met with the response that such practices violate the “wall of Separation between Church and State” doctrine “required” by the U.S. Constitution. Yet, that phrase is not found anywhere in the Constitution. Although the word “state” is, the words “wall”, “separation” and “church” are not there. The only references to religion are in Art. 6(3), prohibiting religious tests as qualifications for federal office, and the First Amendment providing in part:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
Where then did the doctrine of “separation of church and state” originate? The answer is in the U.S. Supreme Court’s 1947 decision of Everson v. Board of Education.1 Defining the First Amendment’s establishment clause in detail for the first time, the Court said:
‘”The establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice-versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a ‘wall of separation between church and state’.”
Did the Court’s definition accurately reflect the intent of the founding fathers as to religion and state? Since Everson became the basis for later court rulings invalidating laws requiring prayer, Bible reading and the posting of the Ten Commandments in the public schools, re-examination of the framers’ intent is long overdue. The results are shocking.
Madison and Established Churches
Many Americans are unaware that on Independence Day, 1776, nine of the original thirteen colonies had official state churches.2 On adoption of the First Amendment in 1791, four of the fourteen states recognized an official, state church.3 Despite the First Amendment; these state churches remained existent for many years before being abolished by voluntary state legislative action.
Yet, on adoption of the Constitution in 1789, there was fear that the new national government would either interfere with these state churches, or establish a national church. Hence, many states petitioned the First Congress to enact a Constitutional Amendment prohibiting such action.4
Congressman James Madison, the chief author of the First Amendment, told his Congressional colleagues that he was responding by it to the wishes of the State Conventions to prohibit establishment of a national religion where one religious “sect might obtain a pre-eminence” over others.’ 5Examination of the First Amendment shows that he accomplished that objective.
The Meaning of “An Establishment of Religion”
The word “establishment”, as used in the First Amendment, means recognition by government “of a church as the official church.6 The Amendment prohibits not “the establishment of religion” in general, but “an establishment of religion” by Congress, although not by the States.
However, as legal scholars point out, the pivotal word in the Amendment’s Religion Clauses is “respecting.” “Congress shall make no law respecting an establishment . . .” “Respecting” is synonymous with “concerning”, “regarding”, and “about.” Thus, Prof. Robert Cord, author of a 1982 book on the First Amendment, concludes that that provision does not…
“prohibit an establishment of religion; rather it prohibits Congress from making laws about, concerning or regarding an establishment of religion.” 7
Since a national religious establishment did not exist on passage of the First Amendment, it became unconstitutional to provide one after ratification. It also remained unconstitutional for Congress to make laws regarding the existing state establishments or, such establishments as the individual states might create.
Incidents Involving Congressional Intent
After passage of the First Amendment, the First Congress petitioned the President to proclaim a national day of prayer and thanksgiving.8 Is it probable that Congress requested a public day of prayer and, at the same time, proposed constitutional law to prohibit such prayer? Such contention was made by Rep. Tucker, who objected that prayer…
“is a religious matter and, as such is proscribed to us. If a day of thanksgiving must take place, let it be done by the authority of the several States …” 9
Nevertheless, the prayer resolution passed. If Congress’ competence in religious matters had not been raised, it might be said that the issue had never occurred to the members and therefore its action ought not to be conclusive on the point. Yet, with the issue squarely joined, Congress deliberately overrode objections similar to those raised today against officially sanctioned school prayer, and voted to offer prayer to God.
The First Congress also established the Congressional chaplain system by which official daily prayers to God are still offered, and recommended as a part of President Washington’s Inauguration that there be a religious service, in a church no less, “to hear Divine service.” 10 Most significant however, is that in those recorded and extensive debates on the First Amendment, not one word was said by any Congressman about a “wall of separation between church and state.”
Jefferson’s Wall of Separation
It is ironic that the Supreme Court would refer to Thomas Jefferson as authority, in the Everson case, for the meaning of the First Amendment since at its adoption in 1791, he was serving as Ambassador in Paris.11 Moreover, the reference is to a private letter Jefferson wrote as President in 1802, where he said:
“I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof’, thus building a wall of separation between Church and State.” 12
Obviously, the “act of the whole American people” declaring “that their legislature should ‘make no law…’” refers to Congress and not state legislatures. Moreover, in his Second Inaugural Address Jefferson had said that the whole matter of religion was left by the Constitution to the States. As President, he invoked the guidance of God in his public statements and negotiated an Indian treaty by which the U.S. Government paid the salary of a priest and built a church.13 In addition, he promoted14 religion in public education (as did Madison), 15 and regarded religion as “a supplement to law in government of men.” 16
Clearly, the only real “wall of separation” Jefferson referred to was that prohibiting Congress from establishing a national church. Implicitly, from his own actions his “wall” did not prevent government from associating with and encouraging the Christian religion.
Congress and Presidents Promote Christianity
In the first decades of the new American Republic, Christianity was promoted by the national government. Following adoption of the First Amendment, the First Congress assisted religious teaching in education by re-enactment of the Northwest Ordinance, providing in part:
“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” 17
Prayer, Bible instruction and reading continued in the nation’s public schools until adverse Court rulings in 1948, 1962-63. 18
Professor Cord reports that the first eight Congresses gave tax money to religious groups for the purpose of spreading the Christian gospel among the Indians.19 Indeed, President John Quincy Adams declared in an 1828 message to Congress that it was his administration’s policy as well as “our duty to use our influence to convert the Indians to Christianity.” 20 Such policies continued for over 100 years after the First Amendment. 21
Presidents Washington, Monroe, John Quincy Adams, Jackson and Van Buren also all negotiated Indian treaties by which the U.S. Government built churches for and provided aid in Christianizing the Indians. 22
Since the founding fathers were, by all reports, men of high principle, is it probable they would have condoned, much less promoted the foregoing actions if they thought they violated the Constitution they themselves had written?
The Judiciary and Religion Prior to Everson
Justice Joseph Story, described “as perhaps the greatest scholar”23 ever to sit on the Supreme Court (1810-45), rejected as unhistorical the view that the state should be neutral against religious belief, but held that Christianity should be patronized by government. He said the real object of the First Amendment was not
“to countenance, much less to advance, Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” 24
The great Chief Justice (1801-35) John Marshall, wrote that since the American people were entirely Christian
“It would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it.” 25
The Supreme Court prior to Everson had in fact held that Christianity is a part of the common law, 26 recommended Bible study in public education, 27 and proclaimed that “America is a Christian nation,” 28 “whose institutions presuppose a Supreme Being.” 29
Religion and the Fourteenth Amendment
Echoing Madison and Jefferson, Justice Story wrote:
“…the whole power over the subject of religion is left exclusively to the state governments…”30
How then, you ask, could the Everson Court hold that the First Amendment restricted the States as well as Congress? It had in fact held for nearly a century and a half that neither the First Amendment nor any of the Bill of Rights (first 8 amendments) were restrictions on the states, but only on Congress.31
The answer is that the Supreme Court again did some legislating of its own. It held for the first time in Everson that the First Amendment’s Establishment Clause had been “incorporated” into and made a part of the “due process” clause of the Fourteenth Amendment (adopted in 1868) and was thus a restriction on the states as well as Congress. Yet, that clause makes no reference to religion, but simply provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Although “incorporation” had been rejected by the Court for nearly three-quarters of a century after the Fourteenth Amendment’s ratification, 32 the Court gave no explanation for this stunning reversal, but simply exercised raw judicial power. Since Everson, eminent legal scholars have rejected “incorporation” as unhistorical.33
The Blaine Amendment and Religion
Conclusive proof that the Fourteenth Amendment’s framers did not intend for it to interfere with the states as to religion was the Blaine Amendment, introduced in Congress seven years after adoption of the Fourteenth.34 Substituting the word “state” for “Congress”, the Blaine Amendment read in part:
“No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof. “
The Blaine Amendment was considered twenty times by Congress between 1876 and 1929, but always failed. Significantly in the first Congress (1875-76) considering it were 23 members of the Congress that submitted the Fourteenth Amendment to the States.35 Yet, none of these Congressmen (including Blaine himself) 36 ever suggested that the First Amendment was “incorporated” into the Fourteenth. Senator Frelinghuysen’s remarks were typical: The Blaine Amendment, he said
“prohibits the states for the first time, from the establishment of religion … 37
If the Fourteenth Amendment did incorporate the First as the Supreme Court now says, why did its authors think the Blaine Amendment was necessary to restrict the power of the states as to religion? The Court has never addressed that question.
The Court Distorts History and Re-writes the First Amendment
Since Everson, the Supreme Court has also held that government may not favor Theistic religions over non-theistic religions, 38 and has invented its own test for determining whether or not a law is consistent with the First Amendment. However, that test, which follows, has in effect been substituted for the words of the Constitution in violation of the Art. V. amending provisions:
“First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion … finally, the statute must not foster an excessive entanglement with religion.” 39
The Court’s judicial legislating and principle of separation have served to transform a “Christian nation” into a secular nation. Yet, that principle is, as eminent legal scholars have pointed out, based on “distorted history”40 and “was in fact abruptly introduced into American law in very recent times.” 41 The only “wall” the First Amendment was intended to erect was that prohibiting Congress, AND ONLY CONGRESS, from establishing a national church and from interfering with state churches that had been or might be established.
On the other hand, the First Amendment was not meant to prohibit aid of or association with Christianity per se by government. Indeed, that amendment guarantees the “FREE EXERCISE” of religion ahead of speech, press and other protected freedoms. Moreover, the framers’ intent to leave the matter of religion to the states was not altered by the Fourteenth Amendment. Yet, that intent has been altered by the Supreme Court’s disregard of the Constitution its judges are sworn only to interpret. The Court fails to heed the sage advice of Jefferson, the reputed source of the separation doctrine and a constant critic of judicial legislating, who said:
“On every question of construction carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” 42
For, as Madison warned, if the framers’ intent be not the guide in interpreting the Constitution
“there can be no security for a faithful exercise of its powers.” 43
A Judge Holds the Supreme Court Erred
A courageous federal Judge, W. Brevard Hand, did only “interpret” the Constitution and, although subsequently reversed by less courageous appellate judges, held Alabama’s school prayer law Constitutional, and declared, based upon material such as presented in this treatise, that the Supreme Court has misinterpreted the First Amendment.44
The argument against the Supreme Court’s misinterpretation must be made again and again until its monumental error is corrected. Meanwhile, religious freedom and America’s health as a nation hang in the balance. As President George Washington said in his Farewell Address:
“Reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”
What can you Do?
- Inform others. Distribute copies of this article. Inform through letters to the Editor, radio and TV talk shows. Encourage more intensive study of the sources cited below.
- Under Art. 3, sec. 2 of the U.S. Constitution, Congress is empowered to enact legislation to prevent federal courts from considering religious matters involving the States. Ask your Congressman and Senators to sponsor and support such legislation. Ask for copies of pending legislation on this subject.
- Support a constitutional amendment to change the life tenure of federal judges to limited terms of office.
- Encourage the President and your Senators to select federal judges who will interpret the Constitution as written and intended by its framers.
- 330 U.S. 1 (1947).
- J. McClellan: A Blueprint for Judicial Reform, p. 300 (1982) Free Congress Research and Education Foundation.
- Chas. Rice, The Supreme Court and Public Prayer, p. 31, Fordham University Press.
- R. Cord, Separation of Church and State: Historical Fact and Current Fie· tion, p. 6 (1982) Lambeth Press.
- Annals of Congress I, p. 731(1789.1791).
- The World Book Dictionary, Vol. I. Thorndike-Barnhart 1977; The Encyclopedia Brittanica, 11th Ed. IX 787.
- Cord. Id. at 9.
- Annals of Congress 914 (1789-1791).
- Chas. E. Rice, “The Prayer Amendment: A Justification,” South Carolina Law Review, 70S, 715, 716 (1972): Annals of Congress 914, 915 (1789·1791).
- Rice, Supreme Court, Ibid. Debates and Proceedings in the Congress of the United States. I, 25.
- P. Kauper, Religion and the Constitution, 50 (1946).
- Cousins, In God We Trust, p. 135 (1958).
- Second Inaugural Address; Cord, Id. at 38.
- 19 The Writings of Thomas Jefferson (Memorial Ed. 1904) 408, 409.
- J. Reed’s dissent in. McCollum v. Bd. of Educ. 203, 245, citing 19 The Writings of Thomas Jefferson, Ibid.
- Corwin, “The Supreme Court as National School Board, 14 Law & Con· temparary Problems, 3, 14 (1949).
- Corwin, Ibid; Meyer v. Nebraska, 262 U.S. 390, 400 (1923).
- McCollum, ld; Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963).
- Public Statutes at Large, Vol. I, “Acts of the Fourth Congress,” Sess. I, Chap. 46, pp. 49G-91; Cord, Id.
- Cord, Id. at 71; Richardson, A Compilation of the Messages, Vol. II, pp. 415-16.
- J. M. O’Neill, Religion and Education, pp. 118·19.
- Cord, Id. at 58, 59.
- Raoul Berger, Government by Judiciary, p. 365.
- Story, Commentaries on the Constitution, 728.
- J. McCelln, Joseph Story and the American Constitution, 139 Oklahoma Univ. Press (1971) (Letter of John Marshall to Jasper Adams, May 9,1833).
- Vidal v. Girard, 43 U.S. (2 How.) 127, 198 (1844).
- Ibid. at 200.
- Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892).
- Zorach v. Clauson, 343 U.S. 306, 313 (1952).
- Story, Commentaries, Id. Sec. 1879.
- E.g., Barron v. Baltimore 7 Pet. 243 (1801) and Prudentiallns. Co. v. Cheek, 259 U.S. 530 (1922).
- Twitchell v. Po. 7 Wall. 321 (1869); Hurtado v. California, 110 U.S. 516 (1884); Twining v. New Jersey, 211 U.S. 78 (1908); Prudentiallns. Ca. v. Cheek, 259 U.S. 530 (1922).
- Chas. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review, 11(1949-50), 139, Berger, Id.
- 4 Congo Rec., 44th Cong., 205.
- McClellan, Joseph Story and the American Constitution, Id. at 154
- New York Times, Nov. 29, 1875, p. 2; O’Brien, 4 Washburn Law Journal at 188.
- Francis W. O’Brien, Justice Reed and the First Amendmen~ 116-17 (1958).
- Torcaso v. Watkins, 367 U.S. 488 (1961).
- Lemon v. Kurtzman, 403 U.S. 602, 612, (1971).
- Mark deWolfe Howe, The Garden and the Wilderness, 31 (1965).
- McClellan, Joseph Story,Id. at 127.
- Ford, The Writings of Thomas Jefferson, X 231 (1899).
- Berger, Id. citing Madison, The Writings of James Madison 191 (G. Hunt ed. 1900-1910).
- Jaffree V. Bd. of Schaol Cammissioners, 554 F. Supp. 1104 (1983).