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Rutgers Journal of Law and Religion ^ | Volume 2, Number 2 - 2001 | Christopher N. Elliott

Posted on 12/02/2002 11:24:22 AM PST by Remedy

"Religion and Morality are the essential pillars of Civil society."

-- George Washington2


[1] The characterization of the separation of church and state, and the balance between law and religion, is one of enduring confusion in current American constitutional theory and conception.  An example of this confusion can be discerned from the recent presidential election, where the question of whether a candidate should or should not be allowed to profess his faith before the American public was presented.3 Furthermore, the claim for separation continues to remain a source of significant controversy in areas such as legislative acts,4 judicial decisions related to religion and prayers in schools,5 the media,6 and public opinion polls.7  The Establishment Clause of the First Amendment of the United States Constitution is usually believed to be the derivation of this wall of separation, however, the Framers never purposed such a wall.

[2] Part of the confusion in understanding religious liberty within the context of the political, legal, and social dimensions of America resides in the United States Supreme Court’s establishment and free exercise cases, which are frequently logically incomprehensible.  While attempting to place the Religion Clauses of the First Amendment into a thoroughly synthesized jurisprudence, not only has the Court withdrawn from the original intent of the framers of the First Amendment, but it has also abdicated the original meaning of the Religion Clauses.8  First, the Court has transgressed imprudently and directly into the states’ domain and indirectly into the people’s province of authority by judicially amending the Constitution to employ the First Amendment to the states.9  Second, by parting from the historical significance of the Constitution, the Court has discounted the notion that the Religious Clauses of the First Amendment are dual proscriptions, which function concurrently to secure the protection of religious liberty.  As a consequence, notwithstanding the Court’s disembarkation from the text and history surrounding the Constitution and the federalism restrictions placed upon the First Amendment leading to inconsistencies in the American jurisprudence, its latter two deviations have led to a legal and virtual misadventure, generating legal confusion and government-implemented religious discrimination.

[3] This Note addresses the confusion surrounding the question as to where exactly the authority and concerns regarding religion lie between the states and the federal government.  That question is analyzed in Part I by examining the historical evolution of the states as a protectorate and authority figure in the development and understanding of religious liberty in America and by examining the sentiment of the framers toward the role of the federal government and the states over religious concerns in a system of federalism.  Part II scrutinizes the adoption of the Fourteenth Amendment and its impact on the Religious Clauses of the First Amendment and the states in matters of religious liberty.  The recent establishment and free exercise cases and their discordant application to government treatment of religion will also be discussed.  

[4] After considering the disparate results of the steady erosion of authority historically held by the states and the aggrandizement of the federal government into the province of religion, Part III, begins by discussing some arguments, which may be made concerning the reversion of religion from the dominion of federal oversight to the states, and how they may be countered with respect to historical patterns of the states toward protecting, as well as, guaranteeing religious liberty. Thereupon, a series of examples will outline the modern prodigy of states as protectorates of religious liberty for a multitude of religious denominations, against illegal governmental activity.  Finally, an argument will be presented recommending a restoration of the preceding division of authority between the federal government and the states that more closely recognizes the Religion Clauses’ relationship to the rest of the Constitution. 


[5] It may be argued that religious beliefs and values have enlightened American law up to and including the period of the nation’s birth.10  As one author has stated, "religion and jurisprudence are so related," in fact, "that to understand American legal history, one must understand American religion."11  It has not been until recent generations that "the public philosophy of America [began to shift] radically from a religious to a secular theory of law."12 

[6] An acknowledgment that religious ideologies have historically appraised American law, however, does not solely vindicate modern legal reliance upon them.13  Closely affiliated with the historical perspective is the perspective originating from the principles and language of the Federal Constitution, which includes an aggregate of clauses relevant to the interplay between law and religion.14  As a textual and historical concern interpreting the Establishment Clause to forbid legal reliance on religious values appears contradictory, when in fact the words and background of the Constitution would seem to suggest against such an advance.15

1. Religious Tolerance During the Colonial Period

[7] The religion clauses of state constitutions and that of the First Amendment of the Federal Constitution, created between 1776 and 1791, encompassed both a political and theological ideology.16  Together they reflected both the dictates of religious believers in the early years of the American republic and the viewpoints of their political leaders.17  They demonstrated a conception, as espoused by John Adams, that the law is rooted in a common religious tradition.18

[8] As an example of this combined ideology, in developing their political and religious systems, in what was then the New England portion of the English colony, the Puritan’s ministers and magistrates united in casting out dissenters, implementing church attendance, confining electoral rights solely to members of the community church, and sustaining churches through taxation.19   Contrary to a general misconception, however, the Puritans also made lasting contributions to America’s tradition of religious liberty by disapproving of an ecclesiastical judiciary, and by cautiously differentiating between civil and religious control.20

[9] For approximately four generations, the Puritans experienced an unmitigated independence to carry out their political and religious experiments.21  The English royal charters that first established the New England colonies bestowed upon the Puritans, broad discretion to envision and develop their ideal polity and theology.22  The charters decreed neither a religious nor a royalist establishment.23  The charters granted the New England colonists the freedom to propose and practice their own theological beliefs, given that they "wynn and incite the Natives of Country, to the Knowledg and Obedience of. . .the Christian Fayth."24  The colonists were generally free to form their own political and legal frameworks, provided that they "be not contrarie or repugnant to the Lawes [and] Statutes of...England."25  They were given control over the migration of believers, such as themselves, to the colony, provided that "none of the saide Persons be...restrayned" by the Crown and "[t]hat every [one] of them shalbe free and quitt from all taxes."26

[10] At the same time that the religious and political turbulence of seventeenth-century England induced the Puritan migration to the New World, it also influenced dissidents to view America as a place for effectuating experiments founded on religious freedom.  Similar to the Puritans, the evangelicals who settled in the colonies, including Rhode Island, Pennsylvania, and New Jersey, fostered a theological theory of religious liberties and rights.27  They correspondingly encouraged the separation of church and state – the creation of a "wall of Separation between the Garden of the Church and the Wilderness of the world."28  However, they went farther than the Puritans in their understanding of institutional and individual religious rights and in their arguments for a greater separation between the institutions of church and state.29  The evangelicals attempted to defend the liberty of conscience of every individual and the license of association of each religious group.30  Unlike the Puritans, the evangelicals inhibited the legal establishments of religion, as well as all blends of politics and theology.31

[11] Furthermore, in the half-century prior to and including the American Revolution, other English colonies, such as Pennsylvania, New Jersey, New York, and Delaware, afforded broad-minded religious freedom.32  In New Jersey and New York, each had formal religious establishments, but because of the variety of religious assemblies in each colony, de facto religious liberty flourished.33  Similarly, the southern colonies also began to effectuate greater religious freedom.34  The religious establishments in the Carolinas and Georgia, however, continued to preserve Anglicanism.35

2. Religious Liberty, Revolution, and a New Nation

[12] The ideologies that forged the attitudes of the colonies on the eve of the American Revolution encompassed the perception of inalienable rights, the significance of a written constitution, the preeminence of natural law, Puritan covenant theology, and the existence of a government by popular consent.36  For instance, although it did not dilate upon the substance of religious freedom,37 the Declaration of Independence predicated theistic assumptions.38  These assumptions included four testimonials to a Deity: "nature’s God" and "Creator" in the first two paragraphs, and "Supreme Judge of the world" and "Divine Providence" in the closing paragraph.39  Moreover, the document’s most recognizable words reveals its theistic supposition.  "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; that among these are life, liberty, and the pursuit of happiness."40

[13] In addition, in the decade after achieving independence, the Continental Congress authorized legislative and military chaplains, provided for the importation of Bibles, and declared days of thanksgiving, prayer, and fasting.41  The Articles of Confederation, which functioned as the country’s foundational law before the adoption of the Constitution, alluded to the "Great Governor of the world" in article XIII and furnished the example for federal noninterference in state religious concerns.42  Furthermore, according to the preamble of the Northwest Ordinance of 1787, which created a republican form of government and a bill of rights for the Northwest Territory, the bill of rights were proclaimed to spread fundamental principles of civil and religious liberty.43  These principles form the basis upon which the laws and constitutions of these republics were erected.44  The Founders identified the impact of religion to the republic when they proclaimed in article III: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."45

[14] In formulating a Constitution, which created a republic premised on civil and religious liberty,46 the framers produced a tripartite federal government that expressed only enumerated powers.  Article VI of the Constitution expressly provides: "No religious Test [oath] shall ever be required as a Qualification" for public office.47  Under the Tenth Amendment, any powers not delegated to the federal government by the Constitution, "nor prohibited by it to the States, [were] reserved to the States respectively, or to the people."48  The Bill of Rights, adopted during Congress’ first session, also expressly restrained the authority of Congress in religious affairs.49

[15] The legislative history of the First Congress implies that an assortment of beliefs influenced the religious clauses of the First Amendment, including a sentiment that religious exercise was a delicate and inalienable right requiring particular safeguards.50 Additionally, that power over religion, to the degree it could be applied, was a state concern.51  The legislative history further implies that, unless deterred, Congress would present a serious threat to religious liberty, or would intercede among the establishments of the individual states.52  Fundamental to these beliefs was an axiom of federalism based on the political philosophy of the Framers and their trepidation towards centralized power.53  The conservancy of religious liberty relied upon this principle, which signaled the separation between state and federal authority.54  As two noted historians suggested, there are at least three justifications as to why the religious clauses were addressed only to Congress.  They include the belief by the Framers that: a national church offered the greatest threat to religious liberty; civil control over religious affairs was a state function; and the establishment clause was meant to avert congressional intervention with preexisting state establishments.55

[16] The Constitution nowhere accorded Congress explicit power in religious concerns.  While Federalists and Antifederalists discussed the necessity of a bill of rights, they seemed to acknowledge that indemnification for religious injustices should be left chiefly, if not entirely, at the state level.54 To grant Congress the authority over such affairs would impose on the states and produce a centralized threat to religious freedom.56 Alexander Hamilton, the chief supporter of a strong national government, imparted the latter apprehension in The Federalist Papers: "It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority."57


A.        The Young Republic and Federal Restrictions on Religion

[17] Clearly, nothing in the Constitution demanded that the states disestablish religion.58  As Justice Joseph Story, the foremost authority on the Constitution during this period, stated, "this whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the State Constitutions."59  The Supreme Court was first presented with the question of whether any terms of the Religion Clauses of the First Amendment limited the states, in Permoli v. Municipality No. 1.60  In Permoli, the Court was introduced, for the first time, to the issue of whether the Religion Clauses of the First Amendment applied to the states.61  Building upon its earlier decision in Barron v. Baltimore,62 which held the Bill of Rights did not apply to the states,63 the Court, in an unanimous opinion, deemed the Free Exercise Clause of the First Amendment did not apply to the states.  "The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states."64  The idea espoused in Barron influenced the Court until the passage of the Fourteenth Amendment.65 

[18] Within the timeframe between the passage of the First Amendment and the Fourteenth Amendment, the Court decided only six cases that directly or indirectly involved the question of religion.66  In none of these decisions did the Court even insinuate that, the Religious Clauses of the First Amendment should be applied to the states.  Therefore, prior to the War Between the States and the adoption of the Fourteenth Amendment, it was the prevalent understanding that the Religion Clauses of the First Amendment did not function as a restriction on state action pertaining to religion.

B.         The Evolution of the Fourteenth Amendment and the Modern Interpretation of the Religion Clauses.

[19] The ratification of the Fourteenth Amendment elevated new questions as to whether the states’ involvement with religion was limited by the Constitution in any way.67  Two doctrines have emerged from the debate as to the Framers intent.  The first doctrine, of  "total incorporation," has never been accepted by the Supreme Court.68  Consequently, the Court has never held that the Framers of the Fourteenth Amendment sought to apply the entire Bill of Rights towards the states.69  The other doctrine, which was adopted by the Court, applied specific rights established in the Bill of Rights towards the states through the Due Process Clause of the Fourteenth Amendment.  This doctrine is called "selective incorporation."70 

[20] The Court first addressed a case concerning religious liberty with the application of the "selective incorporation" doctrine in Hamilton v. Regents of the University of California.71  The belief that the Due Process Clause protected multiple facets of religious liberty was recognized not only by a unanimous Court, but by the concurring opinion of Justice Cardozo, who declared, "I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states."72 

[21] After the Hamilton Court’s identification that the Due Process Clause of the Fourteenth Amendment protects certain facets of religious liberty from state action, it was only a small step for the Court to incorporate the two Religious Clauses of the First Amendment.  Interestingly, however, the Court’s incorporation of the Free Exercise Clause in Cantwell v. Connecticut73 and the Establishment Clause in Everson v. Board of Education74 were arrived at with minor deliberation as to why the Religious Clauses of the First Amendment should be incorporated against the states through the Fourteenth Amendment.75  Even more intriguing, as one author points out, is why the Court withdrew from the traditional "selective incorporation" doctrine, and instead, resolved to apply the Religious Clauses of the First Amendment to the states through "total incorporation," By doing so, the court dictated  the same limitations on the states via the Fourteenth Amendment as the First Amendment dictates on the federal government.76

[22] Subsequent to the incorporation of the First Amendment Religion Clauses in both Cantwell and Everson, the Supreme Court has delivered an overabundance of decisions regarding the Religious Clauses.  In doing so, the court has prescribed the same circumscriptions on state governments as it has foisted upon the federal government.77  With respect to the free exercise of religion, the Court has distinguished an unmitigated right to believe what one may covet, but this right does not extend into an unquestionable prerequisite to engage in any religious behavior.78  Accordingly, laws that endeavor to regulate religious ideologies will be considered per se unconstitutional.79  Prior to 1990, under the tenet espoused in Sherbert v. Verner80 and Wisconsin v. Yoder,81 if a law encumbered the free exercise of religion,82 the government entity had to meet a strict scrutiny analysis83 or else, an immunity for that religious activity had to be carved out of the statute in question.84  The Court, however, did not employ the Sherbert test on every occasion upon which a free exercise issue arose,85 such as those situations pertaining to criminal institutions86 or the armed forces.87  Moreover, in several instances, the Court professed to utilize the strict scrutiny test, yet in supplication, used something much less rigid.88  As a result of this inconsistency by the Court, most free exercise petitioners lost their suits.89

[23] Since 1990, and subsequent to the contentious Employment Division v. Smith90 decision, it seems that religious-based exemptions would not have to be formulated out of detached and ordinarily applicable laws that encumber religious behavior, so long as a rational foundation exists.91  If, on the other hand, the law in question is neither neutral nor ordinarily applicable, or if the function of the law is designed to encroach upon or hinder religious exercises, then the Court will turn to the strict scrutiny test.92  A number of commentators criticized the Smith decision,93 and various justices called for the decision to be overruled.94  Furthermore, in reply to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA)95 in an attempt to re-establish the strict scrutiny test for the free exercise of religion.96  In 1996, however, the RFRA was declared unconstitutional as it related to state and local governments.97  Recognizing Congress’ reasoning in enacting the RFRA, the Court in Boerne held that Congress had exceeded its legislative capability by surpassing its enforcement powers.98  In declaring the RFRA to be substantive rather than remedial,99 the Court enunciated that "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end."100  Thus, for remedial legislation to be valid under the congruence and proportionality test, the Court must be convinced that sufficient constitutional violations of the Free Exercise Clause exist to justify congressional action on the subject.101

[24] Regarding the Establishment Clause of the First Amendment, the development of jurisprudence by the Supreme Court is even less comprehensible.102  The least variable classification of cases under this clause encompasses government assistance or sponsorship of religious activities in public education.  In case after case, the Court has continuously struck down such action on the part of a government entity as violating the Establishment Clause.103  In other domains of the Establishment Clause, however, the Court’s decisions have been less conspicuous.104  As a result of these inconsistencies,105 the Court has sent mixed signals pertaining to government sponsorship of religious displays106 and unique tax treatment for religious-based organizations.107

[25] The recognized test by the Court for cases related to the Establishment Clause has been the Lemon test.108  Since its inception, however, Lemon has been denounced from both within109 and without110 the Court, and in several instances the Court has either reconfigured the test111 or opted to abandon it altogether.112  In several cases, the Court has adopted a historical approach to Establishment Clause challenges, placing importance on the history of government concerns with religious matters.113  Most confusing, however, is that the Court has applied, over a period of twenty-five years, such subtle distinctions in both upholding and striking down aid to religious schools, that it is difficult, if not impossible, to determine in advance how a specific issue will be adjudicated.114  Many observers, even various Justices of the Court itself, have criticized the Court’s Free Exercise jurisprudence.115  Collectively, the Court’s decisions have left the American people with a body of legal doctrine that is essentially unprincipled, incoherent, and unworkable.


The Future Role Of The Incorporation Theory And The Establishment Clause.

[26] Among the demurrals with the Supreme Court’s current jurisprudence, there is the problem of the original intent of the Religion Clauses.  The only lucid original intent of the Framers is one in which the Religion Clauses were not to pertain to the states.116  By incorporating both Clauses against the states, the Court nullified the importance of original intent in defining the constitutional limitations placed on the states in comparison to the federal government.  The lofty searches for original intent that were laid out in Everson, Cantwell, and other opinions are essentially fruitless.  Although the authors of the First Amendment might have intended to apply the Religion Clauses to the national government, they had no such desire concerning the exercise of the Clauses upon the states except that the Clauses were not intended to apply to the states.117  As Professor Harold J. Berman stated: 

[27] To speak, then, of the history of the First Amendment, and of the intent of the Framers – as courts and writers continually insist that we must do if we are to understand what the Constitution requires in the sphere of ‘Church and State’ – is to run up against the plain facts that the first amendment left the protection of religious liberty at the state level to the states themselves and that the Framers expressed no intent concerning how the states should exercise their responsibilities in the matter.118

[28] Additionally, having nationalized the legal jurisprudence controlling church-state relationships, the Court has effectively left little leeway for state action in this area.  As a consequence, the Court has dramatically suspended the federalism concerns implicit in the Religion Clauses.119 

[29] Occasionally, however, the Court has seemed indisposed to expand the Religion Clauses to the dimensions required by its theories due to its acknowledgement that any interpretation of the issue at the federal level will, in some manner, affect the states.120  In these instances, the Court has curtailed the constitutional right at issue in order to explain giving it a broader application.121  As a result of the Court’s attempt to foster a broader application of the Clauses, several justices, including the second Justice Harlan, have warned the Court against lowering federal standards in order to accommodate state differences.122  Justice Harlan believed that by doing so, the Court would be exacting a rigid structure of constitutional law.123 

[30] Given the Federalist essence of the Establishment Clause, such paraphrasing by the Court is unworkable.  As originally apprehended, the Establishment Clause was meant to deter the federal government from interfering with state authority over religious matters.  Incorporation of the Religion Clauses, on the other hand, has the opposite effect – the elimination of the aforementioned authority.  At the same time, the incorporated Establishment Clause has left only a portion of its original purpose to neither prohibit nor require the states to have established churches.  Whereas the states were not previously required to establish a religion, the modern interpretation of the Clause by the Court now prohibits the states from establishing one.  In other words, not only is it not feasible for the Establishment Clause to be incorporated while accurately reflecting its primary federalist purpose, but it also cannot be incorporated without destroying its overall reason for existing.124

[31] Attempting to incorporate the Establishment Clause is therefore comparable to attempting to incorporate the Tenth Amendment, which reserves to the states those powers neither "delegated to the United States by the Constitution, nor prohibited by it to the States."125  The intent of the Tenth Amendment is to reaffirm that the states enjoy all powers not specifically delegated to the federal government by the Constitution.126  Incorporation of the Tenth Amendment would demand that the states be divested of all powers not specifically granted to them, thereby entirely inverting the Amendment’s original intent.  To the extent that the Establishment Clause is similar to the Tenth Amendment, its incorporation is likewise disjointed.127  In fact, one scholar has even gone so far as to suggest that the Establishment Clause be examined as a specific employment of the Tenth Amendment.128

[32] An endeavor to reconcile the incorporation of the Establishment Clause with its history was made by Justice Brennan in his concurrence in Schempp.129  He wrote that "[I]t has been suggested, with some support in history, that absorption of the First Amendment’s ban against congressional legislation  ... is conceptually impossible because the Framers meant the Establishment Clause also to foreclose any attempt by Congress to disestablish the existing official state churches."130  He replied to his own comment by stating that, regardless of the meaning of the Establishment Clause at the start of the nineteenth century

[33] It is clear on the record of history that the last of the formal state establishments was dissolved more than three decades before the Fourteenth Amendment was ratified, and thus the problem of protecting official state churches from federal encroachments could hardly have been any concern of those who framed the post-Civil War Amendments.131

[34] Although it may be true, however, that the authors of the Fourteenth Amendment were not interested with conserving the religious establishments of the states, it is equally true that they did not intend to end state involvement with religion.  This is due partially to the fact that when the individual states voluntarily disestablished themselves from particular religious sects, a majority of them continued to follow a doctrine of government accommodation of religion.132  Thus, disestablishment by the states should not be taken to intend that the Establishment Clause now dictates strict separation of church and state.

[35] The controversy of incorporating the Establishment Clause also manifests itself upon a review of the Fourteenth Amendment’s Due Process Clause, which presumes to safeguard individuals from deprivations of "liberty."133  Although the Religious Clauses were intended to protect religious liberty, such liberty did not encompass – and the Establishment Clause does not mandate – the separation of church and state.  The Framers believed that religious liberty would be protected, in part, by preventing the federal government from interfering with state authority over religion.134  As such, history discredits Justice Brennan’s implicit suggestion from his concurring opinion in Schempp that separation of church and state is a necessary prerequisite for religious liberty.135  In fact, all of the states that possessed established churches in the nineteenth century, apart from Connecticut, also had state constitutional guarantees of religious liberty.136  Furthermore, even if the Establishment Clause does not safeguard a liberty per se, it is not at all certain that it flows with Palko’s137 understanding of individual liberties as "implicit in the concept of ordered liberty."138 This author suggests that the intent of the Supreme Court to attempt to incorporate the Establishment Clause under Palko, while at the same time preserving the Clause’s original meaning is difficult, if not impossible.  Therefore, this inner incompatibility with the Court’s doctrine has to be addressed and corrected if it is not to be viewed by the American public as a product of "WILL instead of JUDGMENT."139 

[36] Additionally, the employment of the Establishment Clause against the states cannot be maintained under Justice Black’s conception that the Authors of the Fourteenth Amendment meant to incorporate the entire Bill of Rights.140  Although his belief was never shared by a majority of the Court, it is important to decide if it conceivably sustains the incorporation of the Establishment Clause.  First, in deciding Everson,141 and in incorporating the Establishment Clause in that opinion, Justice Black neglected to explain selective incorporation as his reasoning behind incorporation.  Consequently, an alternative explanation for the holding in Everson would be to suggest that Justice Black intended to completely incorporate the Clause rather than to selectively incorporate it.  Second, the argument that the Palko theory fails to justify the incorporation of the Establishment Clause is unnecessary if it was the purpose of the Fourteenth Amendment to incorporate the Clause.  However, credible historical evidence exists to suggest that whatever else the Framers of the Fourteenth Amendment may have expressed,142 they did not intend to incorporate the Establishment Clause.143

[37] The most remarkably persuasive indication of this fact is furnished by the defeat of the Blaine Amendment, which was proposed in the House of Representatives in 1875 by James G. Blaine.144  The Blaine Amendment, which was proposed and debated only seven years following the ratification of the Fourteenth Amendment, presents a significant challenge to the suggestion that the Fourteenth Amendment was intended to incorporate the Establishment Clause.  It may be argued, that if the Fourteenth Amendment had, in fact, incorporated the Establishment Clause, the Blaine Amendment would have been superfluous.  At the time of its introduction in Congress, the Amendment’s supporters were well aware that the Amendment would establish a constraint upon state authority over religion145 and that the Amendment may have been defeated for this very reason.146  Moreover, subsequent to the Blaine Amendment’s defeat, proposals comparable to the Amendment were unsuccessfully renewed in Congress on nineteen separate occasions between 1875 and 1930.147

[38] Yet, one argument that has been advanced in favor of the incorporation of the Establishment Clause against the states through the Fourteenth Amendment, contends that the Fourteenth Amendment’s protection of the free exercise of religion is already an accepted factor in Constitutional jurisprudence.148  The argument goes on to imply that the Blaine Amendment, had it been ratified, would merely have "added an explicit protection against state laws abridging that liberty."149  Such an argument, however, proves very little.  First, the authors of the Blaine Amendment surely could have questioned whether the Fourteenth Amendment actually incorporated the Free Exercise Clause because the Supreme Court did not construe the Fourteenth Amendment in this manner for another sixty-five years.150  Second, the argument neglects to take into account the discrepancy between the structural meaning of the Establishment Clause and the substantive Free Exercise Clause.151

[39] One approach the court could follow to provide a solution to the incorporation of the Establishment Clause against the states is to accommodate the incorporation of the Establishment Clause by justifying the need for a constitutional separation of church and state.  This approach could be focused, not on the history surrounding the Clause, but rather, on a developing understanding of the conception of "liberty" in the Fourteenth Amendment.152  A problem may exist, however, with this position if the separation of church and state is not prescribed by the history of the Establishment Clause, but is nevertheless a fundamental "liberty" protected by the Fourteenth Amendment.  The Court could also postulate, without inconsistency, that "liberty" also embraces a Lochner-style153 absolute right to freedom of contract or an unmitigated right to worship any religious precept regardless of maintaining public order that would require the reversal of Reynolds.154

[40] A second approach is to recognize that the history of the Establishment Clause is uniformly capricious with the Clause’s incorporation and deincorporate it.  This approach may not only be more appealing in attempting to restore the original meaning and history behind the creation of the Establishment Clause,155 but also more realistic and likely to be implemented given the Court’s present composition.

B.         Examples Of The Competency Of The States To Legislate And Adjudicate Church-State Disputes.

[41] Simply because the First Amendment of the United States Constitution includes provisions regarding the establishment and free exercise of religion at the federal level, it does not mean that state bill of rights offer no independent direction for determining issues encompassing religious liberty or the free exercise of religion.156  On the contrary, an examination of state constitutional assurances implies just the opposite.  For instance, many state constitutions provide safeguards for religious liberty that are more thorough and specific than those originating in the federal constitution.  Many of the original thirteen states, for example, acknowledged in their earliest constitutions a "natural and indefeasible right to worship Almighty God according to the dictates of [one’s] own conscience."157  Analogous language has been embraced by subsequent constitutions in other states.158  Furthermore, nineteen states presently prohibit religious tests for witnesses or jurors.159

[42] Additionally, while the First Amendment’s Free Exercise Clause presents no explicit method in reconciling the claims of free exercise of religion with the lawful exercise of police power by the states,160 nearly twenty state constitutions have endeavored to resolve possible clashes by subsuming a police power qualification in the free exercise of religion.161  At the same time, several state bills of rights have also explicitly taken notice of religious qualms regarding military service by excusing conscientious objectors from service in the state militia.162  Further, at least two state constitutions – those of Louisiana and Montana – bar various forms of discrimination centered on religion not only by government but also by private actors.163

[43] Even more representative of the states’ ability to safeguard religious liberty is the failure of the Religious Freedom Restoration Act (RFRA),164 to pass constitutional muster before the Supreme Court in Flores.165  In a post-Flores world, the states have been left in a predicament regarding the protection of religious liberties.  The previous semblance of a federal standard is defunct, since states are no longer obliged either statutorily or constitutionally, to excuse the religiously pious from neutral laws of applicability.166  A number of states have begun to consider whether their constitutions’ free exercise clauses could be construed more expansively than the Court’s holding in Smith.167  In fact, even before the RFRA was enacted and subsequently deemed unconstitutional, states began enunciating autonomous standards extending greater protection than the Court was willing to grant.168  Some states invigorated their freedom of religion safeguards by espousing the federal language of "compelling state interest" and "least restrictive means" when delineating their own constitutions.169

[44] Following the Flores decision, states, instead of Congress, have begun to prescribe the legal, political, and social course for religious liberties.  Many states have come to rely on the Supremacy Clause,170 arguing that, apart from the constant tug-of-war between state and federal law, ultimately it is not mandatory for them to construe their constitutions in precisely the same way as the Supreme Court interprets the United States Constitution.171  After RFRA’s application to the states was negated, state legislatures began to implement the axiom that "the federal constitution provides a floor of protection for rights and that the state constitutions provide a ceiling."172  Although states always retained the power to establish higher standards for preserving individual religious freedom,  a majority of states were content to employ only the compelling interest test espoused in Sherbert prior to Smith.173  Until recently, therefore, a staple of state religious liberty jurisprudence did not exist.174  Yet, an absence of state law precedent does not automatically preclude states from protecting the religious liberties of its citizenry, should a state choose to do so.175

[45] Due to the absence of case and statutory law in this territory, many states have been thrust into pronouncing a standard for establishing religious liberty protection without the advantage of a settled precedental record.176  In fact, the absence of case and statutory law in matters of religious liberty assists in demonstrating that state legislatures are the appropriate institutions to execute more extensive safeguards.  States are more favorably accoutered to protect religious freedom than the federal government, both textually and functionally.  Many state constitutions demand religious liberty exemptions,177 and the textual foundation that the states utilize to sustain those exemptions is embedded in their own "peace and safety" restriction provisions.178  In general, these clauses permit religious liberty only to the extent that public order is not unsettled.  Intuitively, this would suggest that local and state governments could prescribe their own compelling interest precisely enough to encompass peace and safety assertions alone and allow exceptions to all other religious liberty claims.

[46] Functionally, the states likewise enjoy institutional advantages over the federal government that enable them to effectively safeguard and preserve religious liberty.179  Within the confines of state legislatures and courts, states possess an advantage of not having to produce decisions for the entire country and. instead, can concentrate their attention on a much more precise policy goal.180  By allowing for a more definite focus, state courts and legislatures would be able to perform a more accurate balancing of the sensitive elements necessary for consideration in a compelling interest test.181  Furthermore, this limited range is beneficial in that it permits a specific receptiveness in choosing and legislating matters that a federal system cannot efficiently manage.182 

[47] Ultimately, a more decentralized RFRA bestows upon individual citizens the ability to have greater admission to political redress.  Protection of this nature ought to put to rest concerns that states will go in as many different directions absent a national standard.  At the same time, states are frequently permitted to conduct themselves autonomously.

Reinvesting The Preservation Of Religious Liberty Among The States.

[48] The most substantial overtone of deincorporating the Religion Clauses of the First Amendment and relinquishing Everson is the fact that the Constitution would no longer impede the states from establishing religion.183  At first glance the abandonment of Everson may appear quite disturbing.  Yet, there exists no reason to assume that each and every one of the fifty states would scurry to embrace religious establishments. 

[50] First and foremost, there were no established churches when Everson was decided in 1947.  By the early nineteenth century, every state that had permitted some form or another of established religion had voluntarily disestablished those churches.184  Second, such attempts to establish state-supported religions would be prohibited by a majority of state constitutions.185  However, this is not to say that abandoning Everson would not allow the states much more leeway to acknowledge, accommodate, and advance religion than current legal doctrine permits.

[51] By reinstating state authority over religious concerns, possibly the most meaningful virtue served is the federalist quality of decentralizing the decision-making process.  This decentralization of decision-making accords two benefits.  First, state and local governments are better suited to respond to the demands and concerns of the majority of their citizenry than the federal government.  This is because state and local governments can adapt their laws more easily to conform to local conditions and preferences.186  Rather, Everson’s burden of a uniform national rule of strict separation of church and state has made it impracticable to forge compromises regarding the applicable amount of government involvement with religion.187  A second advantage of a federalist design is the possibility of experimentation by and competition among the states.188  For instance, during the nineteenth century, the states without religious establishments pressed their sister states, which possessed such establishments, into changing their existing policies toward religion.189

[52] As noted above, the present Court has curtailed the scope of what constitutes a forbidden establishment of religion and is likely to continue to do so in the future.190  Although the states are free to prescribe greater restrictions on their own governments than the United States Constitution provides, as is the case relating to the free exercise of religion, approximately eleven states have explicitly enunciated that their state constitutional restrictions upon the establishment of religion are no more expansive than those of the United States Constitution.191  As the Court limits the Establishment Clause, the cohering state restrictions on the establishment of religion are also narrowed.192  Moreover, subsequent to the incorporation of the Establishment Clause, state courts adjudicating church-state issues have been inclined to rely on the First Amendment instead of their own state constitutions.193

[53] It may be proposed that if the Establishment Clause no longer pertained to the states, state constitutional restrictions toward the establishment of religion would inevitably be derived from an independent source, and might therefore be even more rigid than the federal restriction.  It may be implied, however, that in most states, greater church-state involvement would presumably succeed following the abandonment of Everson.  This is partially due to the fact that a majority of the citizenry in the United States remains profoundly religious.194  There exists an inherent value in permitting majorities to ventilate their beliefs through the modern democratic process.  Yet, at the same time, government accommodation of religion is also advantageous to American society as a whole.195  In a republic such as the United States, the duties and obligations of the government are not represented by the dictation of values upon its citizens. It is contingent, however, upon the citizenry to foster and nourish its own notions of virtue.196  The Founders recognized that a virtuous citizenry is fundamental in a political system where the people themselves are self-governing197 and religion would be a provenance of such virtue.198  Relinquishing Everson would allow the states to tend to their citizens’ religious needs, and as a corollary, their civic virtue.  Therefore, by returning to the Framers of the Constitution and the author’s of the Fourteenth Amendment original understanding of the Religion Clauses, restoring state authority over religion may actually foster the separation of church and state, while preserving and even enhancing individual religious liberties.


[54] Historically and textually, the Establishment Clause of the First Amendment was intended to prevent Congress from interfering with the states and their efforts to accommodate religion.  The Framers of both the First Amendment and of the Fourteenth Amendment of the United States Constitution were agnostic in regards to the desirability of religious establishments among the states and only sought to maintain state sovereignty with respect to religion.  Indeed, it was not until the Supreme Court incorporated the Religion Clauses of the First Amendment via Everson and Cantwell that the Clauses were applicable to the states.  Amidst the present doctrine regarding the separation of church and state, the Court has subjugated and cast aside many of the principles of federalism, which has been and remains the essential backbone of the American system of government.

[55] Instead of continuing to rely upon the enduring confusion of the Court’s application of the Religion Clauses, the restoration of an independent state jurisprudence over matters bearing upon the relationship between church and state is not only warranted but also appropriate.  As part of our system of federalism, state constitutional sureties vary prominently in structure and text from their federal counterpart.  In some instances, these discrepancies reflect the continuing outgrowth of constitutional evolution within a particular state, while in other cases, they reflect an implementation of provisions from sister states.  Whatever the origins of the differences, the end product has been the federalization of a distinct perspective on the relationship between the separation of church and state.  In the end, this distinct relationship at the state level presents an even greater opportunity for the protection and preservation of religious liberties beyond those guarantees that are currently offered by federal jurisprudence.

TOPICS: Constitution/Conservatism; Culture/Society; Government
KEYWORDS: church; federalism; morality; state
Original Intent and The Free Exercise of Religion


The doctrine of original intent relies upon long-settled rules of contract interpretation. "The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense and the terms and the intentions of the parties." JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES Vol. III, p.. 383 §400 (1833). Justice Story was appointed to the U.S. Supreme Court by James Madison and served between 1811-1845. He was elected President of Harvard Law School and is considered by many to be the father of American jurisprudence due to his prolific contributions to American law.

On every question of construction, carry [y]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. President Thomas Jefferson, Letter to Supreme Court Justice William Johnson, June 12, 1823.


The doctrine of original intent holds that the legislature--not the judiciary--is the "predominant" branch5; that the judiciary was the "weakest" of the three branches of government.6 To the Founders, the opinion that the Supreme Court was the ultimate arbiter of all constitutional issues was "never proper,"7 and a "dangerous doctrine"8 which would lead to the judiciary becoming a "despotic branch."9 They were concerned that the federal judiciary would usurp all the powers from the States.10 This was the system of checks and balances implemented in the Constitution. Recall the Dred Scott decision in 185711 wherein the Supreme Court held that "a man of African descent, whether a slave or not, was not and could not be a citizen of a state of the United States." In other words, black slaves were not "persons" protected by the laws of the United States. In a collision of the federal branches, Abraham Lincoln issued the Emancipation Proclamation and the Congress passed the 13th amendment. Lincoln disregarded the Dred Scott decision because he did not wish to resign the future of the country "into the hands of that eminent tribunal."12 In other words, a century ago, our leaders believed that both the President and Congress had the Constitutional authority to pass "constitutional" laws or orders without waiting for Supreme Court review. And the President and Congress could disregard or overrule Supreme Court decisions that were contrary to natural law, like the Dred Scott decision, by issuing the Emancipation Proclamation and by passing the 13th Amendment, respectively. This was the original intent of the Framers concerning the checks and balances of our national government. Imagine the Dred Scott Court in the late 1800's declaring the Emancipation Proclamation "unconstitutional" or that the 13th amendment was not a "proper exercise" of Congress' powers.


Whatever Jefferson meant by the "wall of separation" phrase, he clearly did not intend the modern notion of an impenetrable wall preventing individuals from religious expression.

I consider the government of the United States as interdicted [prevented] by the Constitution from intermeddling with religious institutions, their doctrines, discipline or practices. Clearly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the States.17

In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it, but have left them, as the Constitution found them, under the direction and discipline of state and church authorities. . . .18

The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

Further, on a facial review, the object of the First Amendment, which begins with the word "Congress", was clearly not intended to apply to the States. Rather the intent of the First Amendment's "establishment" clause was, according to Supreme Court Justice Joseph Story, ". . . to exclude all rivalry among Christian sects." 19 This is confirmed by the preliminary draft of the First Amendment proposed by James Madison to the House of Representatives in 1789:

The Civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.20

According to the Secretary,

Mr. Madison thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.21

In sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination.

However in 1947, the Supreme Court, in Everson v. Board of Education,23 used Jefferson's Danbury letter as a pretext to disregard centuries of legal tradition in the common law, the Declaration of Independence, the writings of the founding fathers, the notes and records of the Constitutional Convention and over a century of American constitutional jurisprudence. With the stroke of a pen, the Court created a new "law" by incorporating the Fourteenth Amendment (which dealt exclusively with specific State powers) with the First Amendment's federal provision against an "establishment of religion".

The result of this legal hocus pocus was devastating: first, the Court reversed 150 years of Constitutional precedent which limited the First Amendment's application to Congress, i.e., the national government; second, the Court declared that federal courts were now empowered to restrict not only the religious activities of the national government, but the religious expressions of the people and the States as well. Five years later in Zorach, the Court tried in vain to resuscitate the First Amendment's original intent:

We are a religious people who institutions presuppose a Supreme Being. When the state encourages religious authorities. . . it follows the best of our traditions. For it then respects the religious nature of our people. . . . To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious group. That would be preferring those who believe in no religion over those who do believe. . . .[W]e cannot read into the Bill of Rights such a philosophy of hostility to religion.24

"There is simply no historical foundation for the proposition," wrote Chief Justice Rehnquist in his dissent in Wallace v. Jaffree,25 "that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson. But the greatest injury of the 'wall' notion," continued Justice Rehnquist, is the mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and state" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.26

Ultimately, however, the Everson case and its progeny prevailed.27

Although the First Amendment reads "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof. . ., " most of the Court's recent decisions in this area involve neither Congress nor the "making of a law." For example, in Lee v. Weisman, the Court equates a Rabbi at a high school graduation ceremony with "Congress" and Rabbi's prayer during the graduation ceremony as the "making of a law." Indeed, using the Court's criteria, the First Amendment is internally inconsistent: a person's right to "free exercise" of religion may now collide with the prohibited "establishment" of a religion.

Finally, the Constitutional Framers understood that government encouragement of religion was not equal to the establishment of religion; that, as George Washington said, "religion and morality were indispensable supports" to political prosperity.30 Indeed, on the day the First Amendment was passed by the Congress in 1789, Washington accepted Congress' charge to proclaim a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." As Chief Justice Rehnquist opined in the Jaffree case, "History must judge whether it was the Father of our country in 1789, or. . . the Court . . . which has strayed from the meaning of the Establishment Clause."31



The federal Bill of Rights, which includes the First Amendment, served a dual purpose. It was to assure the citizenry that the federal government would not encroach upon the civil and religious liberties of individuals, and to guarantee the states that the federal government would not usurp the states' jurisdiction over civil and religious liberties. The Bill of Rights embodied a principle of federalism; it was essentially a states' rights document.


Thomas Jefferson and the Wall of Separation, Daniel L. Dreisbach ... Daniel L. Dreisbach, D.Phil. (Oxford University) and J.D. (University of Virginia), is a Professor in the Department of Justice, Law, and Society at American University. He is the editor of Religion and Political Culture in Jefferson's Virginia (2000) and Religion and Politics in the Early Republic (1996).

No phrase in American letters has had a more profound influence on church-state law, policy, and discourse than Thomas Jefferson's "wall of separation between church and state," and few metaphors have provoked more passionate debate. Introduced in an 1802 letter to the Danbury, Connecticut Baptist Association, Jefferson's "wall" is accepted by many Americans as a concise description of the U.S. Constitution's church-state arrangement and conceived as a virtual rule of constitutional law.

Despite the enormous influence of the "wall" metaphor, almost no scholarship has investigated the text of the Danbury letter, the context in which it was written, or Jefferson's understanding of his famous phrase. Thomas Jefferson and the Wall of Separation Between Church and State offers an in-depth examination of the origins, controversial uses, and competing interpretations of this powerful metaphor in law and public policy.

From Library Journal
President Jefferson's "wall of separation" metaphor is central to U.S. Supreme Court analysis of First Amendment religious practices and relations between religious institutions and governmental activities. Dreisbach (justice, law, and society, American Univ.) demonstrates the underpinnings and both 19th- and 20th-century interpretations of this pervasive metaphor, which began as a phrase in a letter Jefferson wrote to the Danbury, CT, Baptist Association in 1802. He shows how the "wall" metaphor represents a struggle for religious liberty and in a similar fashion has been used as a component of a strict separation policy between church and state. This historical analysis offers new insight into the foundations of church-state discourse in the United States while also providing documentary underpinnings to Phillip Hamburger's analysis of 17th- to 19th-century religious writings in Separation of Church and State. Almost half of Dreisbach's volume contains extensive appendixes, notes, and a bibliography. This well-constructed book will be useful for academic libraries as an addition to their history and law collections.


Harvard University Press/Separation of Church and State

In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later.

Hamburger provides an alternate historical and political understanding concerning the development of the separation concept, relying on 17th-through 19th-century religious arguments and social patterns to challenge our accepted understanding of relationships between church and state...This clear historical analysis will be accessible to anyone interested in U.S. church-state relations and civil liberties. Highly recommended. --Steven Puro, Library Journal

Philip Hamburger has, simply, produced the best and most important book ever written on the subject of the separation of church and state in the United States. He has laid to rest the historical credentials of the Jeffersonian myth of the "wall of separation," and shown how the notion of separation gained wide acceptance in the nineteenth century primarily due to the pervasiveness of American anti-Catholicism. He has also destroyed the notion that separation is the only alternative to the union of church and state, and demonstrated that acceptance of separation has in fact undermined the vitality of our original anti-establishment notions of religious freedom. Hamburger underplays the current constitutional implications of his historical arguments, but it is clear that this book will have a profound impact on the current law and politics of church and state.--Stanley N. Katz, Princeton University, President, Emeritus, American Council of Learned Societies

This richly documented and cogently argued book challenges conventional interpretations of separation of church and state as a constitutional standard in American history and promises to reshape the debate on the constitutional and prudential relations between religion and American public life.--Daniel L. Dreisbach, American University

Phyllis Schlafly Column 3/05/97 -- Republicans Have Duty To Hold Judges Accountable Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, received her J.D. from Washington University Law School, and received her Master's in Political Science from Harvard University. Mrs. Schlafly is a lawyer and served as a member of the Commission on the Bicentennial of the U.S. Constitution, 1985-1991, appointed by President Reagan. She has testified before more than 50 Congressional and State Legislative committees on constitutional, national defense, and family issues.

Even that great advocate of judicial power, Chief Justice John Marshall, wrote during impeachment proceedings against Justice Samuel Chase, for his arbitrary use of judicial power, that "a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment." Carter and Clinton judges are constantly making rulings contrary to what the legislature intended.

When President Gerald Ford was a Congressman, he proposed the impeachment of Supreme Court Justices William O. Douglas. Ford explained Congress's tremendous and far-reaching power of impeachment: "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."

Evolution and the Law:"A Death Struggle Between Two Civilizations"

Under this current theory, judges are solely responsible for the evolution of the Constitution, and it is living and organic according to their decree. As Justice Cardozo acknowledged, "I take judge-made law as one of the existing realities of life." [223] And Chief-Justice Charles Evans Hughes (1862-1948) similarly declared, "We are under a Constitution, but the Constitution is what the judges say it is." [224]

 Religion and Political Culture in in Jefferson's Virginia , Daniel L. Dreisbach (Editor) Garrett Ward Sheldon (Editor)
Ten essays examine the religious concepts and communities that influenced Thomas Jefferson and James Madison and may have informed their political thought, the political culture of their time, and the development of the American approach to church-state relations. Among the topics discussed are an analysis of the religious and philosophical influences on Jefferson and Madison, a profile of Christian communities in Virginia, and the impact of deism on organized religion in Virginia. Annotation c. Book News, Inc., Portland, OR

Religion and Political Culture in Jefferson's Virginia examines the influential statesmen and the political struggles in revolutionary Virginia that played a decisive role in developing a distinctive American approach to religious liberty and church-state relations. This collection of innovative essays by leading scholars profiles the Christian communities in Virginia, analyses the religious philosophical influences of Thomas Jefferson and James Madison, and discusses the Virginian contributions to the American experiment in religious liberty. Religion and Political Culture in Jefferson's Virginia presents a fresh perspective on religion's role in Virginian and American political culture and provides a critical reassessment of the existing scholarship in the field.

This is an exceptionally important and readable book. Students of religion and politics owe a deep debt of gratitude to Dreisbach and Sheldon for putting together a systematic correction of myths and misunderstandings about religion and politics in America. -(Charles W. Dunn, author of The Scarlet Thread of Scandal: Morality and the American Presidency) -Charles W. Dunn


 Kentucky and Virginia Resolutions Ghost-written by James Madison and Thomas Jefferson, the Virginia and Kentucky Resolutions (both 1798) were state laws that asserted the states' power and authority to declare federal laws unconstitutional.


Christianity, Our Early State Constitutions, and American Federalism

America's Christian federalism is nearly dead. Those who are in positions of power in education, cultural influence, law, and politics are either ignorant of it or hostile to it. Virtually all of those who run our national government and state governments have world-and-life-views which are alien to the spiritual, ethical, legal, and political foundations upon which our Christian federalism was established. Despite lip service to the Constitution, they are ignorant of, or hostile to the intentions behind our Constitution and the federal system which it established. Hence, they misinterpret, neglect, and violate the Constitution the Bill of Rights, and the intended role of the states in our federal system with impunity.

Sadly, American Christians are ignorant of their heritage in religion, ethics, civil government and law. Most denominations have long since departed from the full-orbed Christian faith which established the moral, legal, and governmental foundations of this once great nation of states. Though recent decades have seen a great revival of Christian schools and home education, few Christian schools or curricula teach a Biblical view of the world and of life, an understanding of the Biblical foundations and principles upon which our civil governments and laws were based, and the duty of Christians to attempt to revive, restore, and improve the Christian federalism which is evident in our early constitutions, declarations, and bills of rights.

The Lord blessed Americans through our early constitutions, declarations, and bills of rights because of the Christian faith and obedience of the people and their elected representatives which was represented in those documents. Despite the shortcomings of these early documents, their nature, principles, and practical consequences are far superior to those of American civil governments today.

We will not see a revival of America's Christian federalism until there is a revival of the Christian foundations upon which our traditional Christian federalism was based. For this to occur, there must at least be a mighty movement of God's Spirit, which will produce a revival of true belief in the sovereignty of God over all areas of life, an application of Biblical principles to all areas of human thought and practice, a restoration of understanding of the true nature and principles of our early constitutions, declarations, bills of rights and laws, and comprehensive action by Christians to restore and improve the precious heritage which is visible in our early state constitutions, declarations of rights, and bills of rights. CM

The Implosion of American Federalism

A truly robust federalism, in Nagel's view, requires not only a legal structure conducive to its maintenance, but a settled disposition on the part of the people in favor of local diversity and prerogative, and a disciplined love of liberty that transcends the desire for immediate gratification. None of these, he says, are to be found in great abundance these days. Instead, he finds a desire to avoid risk, an impatience with conflict, and a servile yearning for simple solutions decreed by centralized authority. These are not the hallüarks of a people that wishes to remain free. Indeed, says Nagel, "we may be witnessing the rapid realization of Tocqueville's foreboding vision of a mass of striving but discontented individuals 'endeavoring to procure . . . the pleasures with which they glut their lives' under the shadow of one 'immense and tutelary power.'"

A glum prognosis, to be sure, but one that is hard to take issue with. Virtually every important change in American social policy in the past two generations has been driven, if not initiated, by the judiciary. The Supreme Court has rewritten many of our cultural rules on the most sensitive matters, touching everything from sexual mores and the family to the place of religion in the social order. The striking feature in the Court's agenda is not only its radical departure from constitutional text and custom, nor even its almost contemptuous disregard for the expressed will of representative bodies. The remarkable thing is that, despite occasional wailing about wretched judicial excess, the American people tolerate it.

Not only do we willingly yield our responsibilities and liberties, Nagel contends, but we lie to ourselves when we do so. In his concluding chapter, "Lies and Nationhood," Nagel argues that the Clinton impeachment controversy demonstrates how deeply the cynicism of the legal elite has cut into common culture. The President's artful conjugation of "is," in Nagel's view, did not differ qualitatively from the routine pangloss of the professorial class when, for example, it argues without blushing that the right to abortion is deeply rooted in our constitutional tradition. Clinton's defense was but a particular application of the wink-and-nod sophistry that today passes for sophisticated legal advocacy. Everyone knew he had lied and dishonored the office of the President, but a majority of the public comforted itself either by pretending he hadn't, or if he had, by pretending it didn't matter. The entire sorry episode, Nagel concludes, confirms that "our system rests precariously on the edge of systematized dishonesty."


The Battle over the Tenth Amendment: Opening a Second Front

The question before us is not, unfortunately, that of the title of this workshop: What ever happened to the Tenth Amendment? We know the answer to that question -- in the past half century the Supreme Court has so emasculated the Tenth Amendment that it now resembles a wise and beloved ancestor -- revered and fondly remembered, but of very little consequence in day-to-day living.

The question before us is what we intend to do about it, and the answer to that question is far from clear. Of course the Supreme Court should overrule Garcia and its kin, including the majority's decision in Term Limits. We should continue to seek out and argue cases before the Court to persuade it to do so.

But it is unlikely that the High Court will act until it is given direction by Congress or the people. And so we must fight the battle for federalism by persuading both that a revival of the federalist principles embraced by the drafters of the Constitution is important to the future of the Republic and its citizens. A federalism statute would begin the debate; a proposal to utilize the "Exceptions Clause" of Article III of the Constitution to limit judicial consideration of the exercise of state power would sharpen it; and a proposed constitutional amendment would propel the debate to the forefront of social commentary.


Historic Supreme Court Cases on Federalism Starting with Marbury v. Madison, U.S. Supreme Court opinions that have defined and shaped the limits of American federailism.


Real Federalism: Why It Matters, How It Could Happen

The most plausible constituency for federalism (and the only currently available one) is what political analyst and activist Grover Norquist has called the "Leave-Us-Alone" coalition. The members of that coalition-including, for example, religious groups, property-rights groups, the term-limits movement, home-school and school-choice organizations, gun owners, and tax-limitation advocates-have a strategic interest in more open, decentralized political arrangements. Were the Supreme Court to endorse, embolden, and legitimize those constituencies, they would in turn defend the Supreme Court and its federalist jurisprudence against political assaults. Over time, a virtuous cycle of progressive accommodation and (often implicit) cooperation between the Court and federalist forces might succeed in advancing federalism.

The Leave-Us-Aloners and the Supreme Court

Federalism as an abstract proposition has never had a constituency. Political constituencies favor (or oppose) federalism to advance their substantive interests and agenda-and most of them agitate for centralization most of the time. Interest groups and parties thrive on redistribution, which is best accomplished at a highly centralized level of government-because it spreads the costs over a larger number of losers and eliminates exit options for them. Moreover, contrary to popular lore and the presumptions of New Deal jurisprudence, the states do not favor real federalism; they oppose it. While the states will defend their narrow prerogatives (such as immunity from suit under federal statutes), experience shows that they cannot be expected to support federalist competition.

In contrast, the Leave-Us-Alone constituencies identified earlier are a genuinely federalist force. Deeply suspicious of Washington politics, all Leave-Us-Alone constituencies fight against national impositions, from gun control to federal land-use regulations in environmental disguise. Most have maintained highly decentralized organizations. None pursue the redistributionist objectives that draw ordinary economic interests into the Beltway.

The difficulty in envisioning a virtuous cycle of (implicit) cooperation between the Leave-Us-Aloners and the Supreme Court is the pronounced mutual distrust between the Justices and federal-ism's constituencies. By design the most nationalist and most elitist of all our institutions, the Supreme Court is naturally suspicious of an open, indeterminate politics that would leave too much beyond the reach of the Constitution. On issues that are central to the Leave-Us-Aloners-term limits, abortion, homosexual rights, the role of religion in public life-the Court has often displayed an exasperating tendency to cater to elite opinion and, correspondingly, to treat populist constituencies as gauche and irresponsible. Conversely (and consequently), Leave-Us-Aloners tend to view the Supreme Court as the institutional bulwark of a despised elite culture.

That mutual distrust need not be permanent, however. The Supreme Court's decisions on civil rights-a central, hotly contested issue-provide a clear-cut example of a rapprochement. For a full decade, the Court has methodically curtailed racial preferences. It has also effectively sanctioned a state-by-state campaign for the abolition of such preferences. As a result, advocates of official colorblindness have come to view the Supreme Court as a reliable ally-in fact, as the only public institution that will support and lend legitimacy to their endeavor. Civil rights law illustrates that the relation between the Supreme Court and Leave-Us-Alone constituencies can change, in the span of a decade, from intense hostility to mutual (if guarded) trust and reliance.

A similar dynamic may be unfolding in the area of religion, where the Supreme Court has moved from the selective disenfranchisement of religion to official neutrality as the constitutional baseline. In a departure from past precedent, the Court has held repeatedly that religious groups and institutions may participate in public subsidy and financial aid programs. That posture may suffice to win the Leave-Us-Alone battles that matter-foremost among them, the battle over the participation of religious schools in school choice and voucher schemes. Here, too, the signs point toward progressive mutual accommodation.

Federalism on the Bench

This body of law is the principal target of the Rehnquist Court's federalism. Through narrow statutory constructions, the expansion of state immunity against federal lawsuits and commandeering, and a re-limitation of the federal government's constitutionally enumerated powers, the Court has made it much more difficult for Congress to impose its interest-group schemes on state and local governments. The Rehnquist Court is only two or three decisions away from a wholesale reversal of the Brennan legacy.

The obstacles to a more robust federalism after September 11 are the ones that Nagel identified before the event. The Supreme Court seems to have an obsessive fear of national disunity, especially concerning sexual mores, and it has shown an inability to build institutional, organized support for federalism. National unity seems, after September 11, not to require judicial edict. The signs of unity are the millions of American flags, which citizens would yet wave even if the Supreme Court were to allow them to govern themselves, in the various states, on abortion and gay rights.

MORE SERIOUS is federalism's lack of political resonance. Our national institutions are split between a ruthlessly nationalist Democratic party and a Republican party that sacrifices its strategic interest in a more open, federalist politics to poll-tested federal "reforms," from crime to education; between interest groups whose appetites can be satiated only in Washington and state governments whose idea of "federalism" is more federal funding with fewer strings. Without a rupture in these alignments, the Supreme Court's federalism, and ours, will remain feeble and domesticated.

 Laws and Standards - Do They Evolve?

The way in which a society addresses such controversies is directly related to how it answers the following three foundational questions: (1) Can man legislate morality? (2) If so, by what standard should man legislate? and, (3) Does this standard evolve? The answer to each of these questions is determined by one's approach to origins. By convincing large numbers of Christians that law is morally neutral, that human reason is the arbiter of truth, and that standards change as cultures mature, Darwinism has neutralized the restraining influence of Biblical Christianity on culture. While many Christians resist formal acceptance of the evolutionary hypothesis, they have implicitly accepted the assumptions on which the theory rests.

Is Religion Dangerous for America? The Supreme Court's Liberals Think So.

The Supreme Court's decision upholding the constitutionality of taxpayer-financed vouchers for private and religious schools was doubtless a significant victory for the cause of religious and educational freedom in America. But supporters of vouchers - and the prerogatives of religion in our national life generally - should note soberly that the victory was the result of a sharply divided 5-4 decision. And more important than the closeness of the vote was the clear and frightening hostility of the Court's liberal bloc toward those who take their faith seriously.

As all four of the dissenters imply, in varying degrees, those who take their religious faith seriously enough to pursue religious education for their children may pose a danger to society. You see, taking one's religious faith seriously may mean taking it too seriously for the public good, or so these wise men argue. All three dissenting opinions contend that such religious devotion is a grave threat to America, and advocate the use of the Constitution's Establishment Clause as a weapon against it. (see "The Nazi Master Plan: The Persecution of the Christian Churches")

 Reply To Judge Richard A. Posner on The Inseparability of Law and Morality

The age-old debate among philosophers, legal theorists, constitutional law scholars, politicians, judges, and academics, between what law is (Positive law) and what law ought to be (Natural law) can be summarized in the following two statements. The first is by Supreme Court Justice Benjamin Cardozo, who wrote that, "if there is any law which is back of the sovereignty of the state, and superior thereto, it is not law in such a sense as to concern the judge or lawyer, however much it concerns the statesman or moralist." 7 Justice Cardozo’s statement is a classic Positive law position–raw, statist power over the people. However, as I shall detail later in this article, there are many theoretical problems and internal contradictions with Positive law legal theory. The other statement is by Lawrence P. McDonald, who elucidates a contrasting legal philosophy called Natural law stating that, "if a judge can interpret the Constitution or laws to mean something obviously not intended by the original makers . . . then the nation’s Constitution and laws are meaningless."8 Which one was right about the nature of law? -- Cardozo or McDonald? – Positive law or Natural law? Is law a devise, tool or creation of man qua man or is law a set of tablets written by the "finger of God" to serve as a foundation of all laws of men? What presuppositions are at the foundations of our laws? Our statutes? Our Constitution?

In this article I would like to discuss one of the primary philosophical and intellectual suppositions that is the foundation of our contemporary conceptions of what law is Positive law or legal positivism, as opposed to what law ought to be Natural law or "the law of nature" as philosophers, Montesquieu, Hobbes, Blackstone, Locke, and Thomas Jefferson understood it.


Impeachment of Federal Judges

Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that "Congress sees the light when it feels the heat," and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.

Impeaching Federal Judges: A Covenantal And Constitutional Response To Judicial Tyranny cited twenty-four times at the House Impeachment Hearings in 1999. Steven Fitschen, ENDNOTES:

There is evidence that the mere threat of impeachment will have a salutary effect on the federal judiciary. As noted in the Introduction, the law school deans found this aspect of the impeachment movement especially troubling. Yet, the historical data clearly reflect that the Framers intended the threat of impeachment to have exactly this effect. Impeachment is a multi-step process. Resolutions can be introduced, authorizing impeachment directly or authorizing an investigation into possible impeachment proceedings. Assuming that an investigation occurs first, the steps leading to conviction would include investigation, debate on whether or not to draft articles of impeachment, a vote on passage of the articles, a trial in the Senate, and conviction. The farther the process goes, the greater the salutary impact will likely be. Those who are persuaded that impeaching judicial tyrants is correct should not give up before they start simply because they don't think they can obtain the final goal of conviction.

Joseph Story understood that the threat of impeachment must be real in order to serve as an effective check. He wrote that on the one hand, impeachment should not "be a power so operative and instant that it may intimidate a modest and conscientious statesman or other functionary from accepting office," but that on the other hand, it must not be "so weak and torpid as to be capable of lulling offenders into a general security and indifference."

The Separation of Church and State

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, not only was Thomas Jefferson not one of those ninety who framed the First Amendment, but also, 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 for the First Amendment-as is so frequently asserted-then at least one of those ninety who framed the Amendment would have mentioned that phrase; none did.


  1. Religious Clauses in State Constitutions
  2. Authors Most Frequently Cited By the Founders of the United States
  3. Amendment I (Religion)
  4. Amendment X
  5. Impeachment Clauses
  6. Separation of Powers





1 posted on 12/02/2002 11:24:23 AM PST by Remedy
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To: Remedy
Bump for retirement reading.
2 posted on 12/02/2002 11:30:05 AM PST by Badray
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To: Remedy
When the Muslims have the majority in this country, you'll want a wall of separation.
3 posted on 12/02/2002 11:35:45 AM PST by js1138
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To: Remedy
No time to read this now but the First Amendment was only to ensure that there was no official National Religion. "Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president.
4 posted on 12/02/2002 11:35:52 AM PST by justshutupandtakeit
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To: js1138
Stand to Reason Commentary - The Real Murderers: Atheism or ...
5 posted on 12/02/2002 11:48:34 AM PST by Remedy
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To: Remedy
Bump for later reading.
6 posted on 12/02/2002 11:52:36 AM PST by k2blader
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To: Remedy
requires further review.
7 posted on 12/02/2002 11:56:46 AM PST by joebellis
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To: Remedy
I have no problem with religious morality as the starting point for laws, but the decision to outlaw official religion was the smartest thing done in our constitution.
8 posted on 12/02/2002 11:57:49 AM PST by js1138
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To: js1138
"When the Muslims have the majority in this country..."

Please tell me you're kidding...

America is a Christian Nation, and will be until the End of the Age, denoted as "A.D." After that, you won't have to worry about Muslims, because they'll all have eternity to contemplate their bad judgement, and won't be bothering anybody.

9 posted on 12/02/2002 11:58:57 AM PST by Gargantua
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To: justshutupandtakeit
"No time to read this now but the First Amendment was only to ensure that there was no official National Religion. "Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president."

Could you explain in more detail your last two sentences? Not to start too big a fight, but the most overrated? What about x42?

10 posted on 12/02/2002 12:03:47 PM PST by Badray
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To: js1138
Outlawing official religion is different from outlawing religious expression in, for example, official ceremonies like swearings-in of witnesses and office-holders. True establishment of religion is a fairly high standard, and we have made that standard so hyper-sensitive that it effectively turned what should be a mandate for tolerance into a regulation against religion (except, of course, for pseudo-religions like "Gaia," etc. which now flourish under the umbrella of the twisted interpretation of anti-establishment).
11 posted on 12/02/2002 12:35:18 PM PST by eno_
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To: eno_
I've never been a fan of public swearing-in ceremonies. Those who are honest will be so with or without the ceremony. Those who are dishonest are not detered by the ceremony.
12 posted on 12/02/2002 12:40:51 PM PST by js1138
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To: Gargantua
And what about Confucianism? Kung Fu Tze was a kind of Peter Drucker of his day, with a goal of improving the performance of the Chinese bureaucracy. Many of our nominally Christian bureaucrats would benefit from a reading of the analects.
13 posted on 12/02/2002 12:50:44 PM PST by eno_
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To: Badray
bump and print for later reading
14 posted on 12/02/2002 12:56:48 PM PST by LiteKeeper
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To: eno_
Also, my bad for calling the anti-establishment clause "outlawing" establishment. It is, of course, a constitutional prosciption of law, and not a law itself. It says the government shall not make a law that establishes religion. Treating it like a law or regulation is part of the problem: This clause and surrounding doctrine is now brandished like a law against individual acts.
15 posted on 12/02/2002 12:59:22 PM PST by eno_
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To: justshutupandtakeit
"Separation" was another piece of Jeffersonian humbug. One of many by the most overrated American president.

Sounds like an ad hominem dodge by someone who wants goobermint and religion to NOT be separate.

Have you forgotten the "No religious oath or affirmation" clause?

The founders knew damn good and well that allowing ANY religion to use the goobermint for it's purposes would quickly result in tyranny.

16 posted on 12/02/2002 1:02:47 PM PST by jimt
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To: js1138

I have no problem with religious morality as the starting point for laws, but the decision to outlaw official religion was the smartest thing done in our constitution.

In sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination.

"Those of us who venerate freedom, be we Jewish or Christian, be we religious or secularized, have no option but to pray for the health of Christianity in America. No other group possesses both the faith and the numbers sufficient to hold back the ever-encroaching, sometimes sinister, power of the state. Rabbi Daniel Lapin's Toward Tradition " Sept. 2, 2000 ,Volume 15, Number 34, WORLD ON THE WEB, Marvin Olasky

17 posted on 12/02/2002 1:03:14 PM PST by Remedy
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To: eno_
Confucians will be right alongside the Muslims, with an excruciating eternity in Hell to spend regretting their bad judgement.
18 posted on 12/02/2002 1:14:41 PM PST by Gargantua
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To: LiteKeeper
Four Models of Western Religious Thought

Summit Ministries

928 Osage Ave.

Manitou Springs, CO 80829

19 posted on 12/02/2002 1:23:41 PM PST by Remedy
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To: Badray
x-42 is not highly rated by anyone except the most die hard lunatics. Jefferson has been accorded hosannas of praise from the University professors for 200 yrs. and has his bust on a Mountain yet his administration achieved one thing of value, it blundered into the Louisiana Purchase (which in his insane interpretation of the Constitution he believed unconstitutional.) Napoleon essentially threw it into Jefferson's lap as a reward for his pro-French activities including support of the French attempt to re-enslave Haiti. Napoleon's defeat there spelled an end to his plans to invade Louisiana and reconquer that lost in the New World by France decades before.

Even Jefferson's supporters do not deny that his second term was a disaster. He destroyed the military and wanted to reduce the navy to impotence believing navies were a source of war. Thus, we were to have no navy or merchant marine. His social theories of an agricultural nation with a pitifully weak federal government would have resulted in a weak country with no means of protecting itself. The military consequences of this almost resulted in disaster under his protege, Madison, as the nation's capital was burned by 5,000 British soldiers.

His idea of foreign policy, an embargo of France and Great Britain, caused immense misery in the American seaports and prevented farmers from shipping their grain abroad hurting them as well. This policy was the equivalent of hiding under the bed and was cowardly as well as being unsuccessful.

His reputation was blown up and enhanced by a hired crew of Republican flacks created to destroy the influence of Hamilton. He allowed them to traduce the reputation of Washington while he was in office earning that gentleman's eternal contempt so that he never spoke to him after he left the cabinet.

His version of the Constitution disemboweled it and made it into a mockery totally reversing the ideals of Washington, Adams and Hamilton and even the pre-1790 Madison. And the Virginia dynasty entrenched itself so firmly through his thought that it strengthened the influence of Slavers and eventually led to the Civil War.

Do some research about the real Jefferson. It is disgusting and horrific after about 1790. And that does not even consider the fact that he enslaved his own children. His highflown phrases are not the real Jefferson but rather his actions (mostly hidden from view.)
20 posted on 12/02/2002 1:45:05 PM PST by justshutupandtakeit
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To: justshutupandtakeit
I'm right with you on this. The guy showed flashes of brilliance throughout his life, especially in his philosohpical and oratorical side. But when it came to administering something and preserving it, whether it was his country or his own affairs, he just couldn't do it. He was like the consummate revolutionary who doesn't know what to do once he won and he had a state to manage.
21 posted on 12/02/2002 1:52:02 PM PST by rogerthedodger
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To: jimt
It is irrelevent what it "sounds" like to you. The fact of the matter is the 1st amendment was designed to prevent the formation of an established church like the Angelican church in England. States in the United States, even after the Revolution, often made a church the established church and used their power to tax for support of them. Congregationalist in Mass., Episcopalian in Virginia, Roman Catholic in Maryland etc.

I am not sure what clause you are referring to but Article 6 last clause of the last paragraph reads "...but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." States were still free to require such Tests and some did. Jews and Catholics were not allowed to hold state or local offices in some states.
22 posted on 12/02/2002 1:56:18 PM PST by justshutupandtakeit
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To: rogerthedodger
It took him 40 yrs. to build Monticello. Often newly constructed portions were torn down shortly after completion and for years the place was a shambles. That was also his view of government. No completion or strength just constant upheaval and weakness.

Jefferson's ability as an executive was shown by his term of office as governor of Virginia. It was so disastrous and incompetent that he barely escaped impeachment.
23 posted on 12/02/2002 2:00:02 PM PST by justshutupandtakeit
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To: justshutupandtakeit
And he died broke, having exhausted all loans from his friends, yet still making sure to keep his wine cellar fully stocked.
24 posted on 12/02/2002 2:04:08 PM PST by rogerthedodger
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To: rogerthedodger
The vast majority of his loans were from the Scottish and English bankers millions of pounds in fact. They were rewarded by having him attack their nation for decades with every imaginable lie.

This most aristocratic of aristocrats spent enormous energy attacking Hamilton, bastard son of a nobody with nothing, as an agent of the aristocrats. What a lie. A lie absolutely Clintonian in its ridiculousness. It is very fitting that Clinton's middle name was Jefferson.
25 posted on 12/02/2002 2:08:47 PM PST by justshutupandtakeit
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To: justshutupandtakeit
I think most people are so used to the notion that the Bill of Rights applies to the states through the Incorporation Doctrine, that they don't stop to discern which powers and limitations were intended to apply to the states as opposed to the federal government. Hence, the comment on the religious oaths. By the same token, you could rightly state that the Founders never intended the Second Amendment to apply to the powers of the states to regulate firearms ownership. You'd be pilloried on this website, but you'd be right (and I'm an NRA member, before anyone attacks me for saying this).

I think people also forget how extensive the powers of the government of England were, as well as the powers of the governments of the individual colonies before independence. The Founders knew that it was important that police and welfare powers remain with the states, and left it to the authorities in the states to determine how extensive intrusion on the life of the individual should be.
26 posted on 12/02/2002 2:10:18 PM PST by rogerthedodger
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To: Remedy
Not sure why you posted this address for me?

I live in Colorado Springs and know Dr Noebel and Kevin Bywater personally. I am using their curriculum to teach Bible classes at the Air Force Academy Preparatory School.

Nice to see we frequent some of the same haunts: Summit, STR, etc. I am currently working on a Doctorate in Religious Studies with an emphasis on comparative worldviews, church history, and apologetics. I go to those sites often, along with Probe and Access Research Network.

27 posted on 12/02/2002 2:17:20 PM PST by LiteKeeper
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To: LiteKeeper

I am using their curriculum to teach Bible classes at the Air Force Academy Preparatory School.


28 posted on 12/02/2002 2:38:56 PM PST by Remedy
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To: justshutupandtakeit
Thanks for your reply. I will have to do further study. I was aware to some small degree about some of his faults, but not to the degree that you espouse. I have to wonder how much is just distortion by his (then and now) critics and how much is fact. Not that any of the Founders were perfect, but I am suspicious of such derogatory (or is it revisionist) history - especially in light of clinton's defender's effort to bring TJ down to the level of WJC.
29 posted on 12/02/2002 4:03:24 PM PST by Badray
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To: justshutupandtakeit
"His reputation was blown up and enhanced by a hired crew of Republican flacks created to destroy the influence of Hamilton. He allowed them to traduce the reputation of Washington while he was in office"

The republicans weren't around until 1854. That's quite a bit later.

30 posted on 12/02/2002 4:14:37 PM PST by spunkets
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To: Remedy
The characterization of the separation of church and state, and the balance between law and religion, is one of enduring confusion in current American constitutional theory and conception.

There's no confusion. It is a long settled issue. The church(es) and the state are seperate.

31 posted on 12/02/2002 8:43:32 PM PST by jlogajan
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To: spunkets
There were two parties at that time: the Democratic Republicans (known as the Republicans) and the Federalist REpublicans (known as the Federalists.) Best know before you try to correct.
32 posted on 12/03/2002 7:10:21 AM PST by justshutupandtakeit
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To: Badray
I was always an admirer of Jefferson until I began some extensive research about that era and have been astounded by what the reality of his life actually was. He had many great talents and definitely was a supreme rhetoritician and propagandist. But his actions fell so far below his principles that it is almost unreal.

In his great rivalry with Hamilton there is almost nothing he would not stoop to to destroy him. Hamilton was by far the more profound thinker in every area (except architecture or mechanics.) Jefferson's doctrine of nullification in essence meant nullification of the constitution since it would have meant that we were not one nation under law. Thank God he was out of the country when the document was created and ratified for I fear he would have opposed it to the great detriment of the nation. Madison, at that time, was more Hamiltonian than Hamilton but seemed to go back on almost all his prior beliefs once he fell under the sway of a returned Jefferson.

The greatest heroes in the establishment of the new government were Washington, Hamilton and Adams. With the policies and deep political thought coming from Hamilton and the opposition to most policies coming from Jefferson some of whose actions were almost treasonous if not actually so.
33 posted on 12/03/2002 7:20:46 AM PST by justshutupandtakeit
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To: justshutupandtakeit
"There were two parties at that time: the Democratic Republicans (known as the Republicans) and the Federalist REpublicans (known as the Federalists.) Best know before you try to correct."

Democratic-Republicans, or Jeffersonians in this case, is what I'm familiar with. I made the comment with regards to the historical Republican party created in 1854 and the fact the democrats claim the lineage to the Democratic-Republicans.

34 posted on 12/03/2002 9:58:32 AM PST by spunkets
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To: justshutupandtakeit

In his great rivalry with Hamilton there is almost nothing he would not stoop to to destroy him.


JEFFERSON VS. HAMILTON Confrontations That Shaped a Nation, Noble E. Cunningham Jr. New York: St. Martin's Press, 2000 186 pp.,

  1. Hamilton, in turn, distrusted the citizenry. Federalists
  2. Hamilton's hopes for America lay in commerce and industry.
  3. Hamilton took up the opposing argument of implied powers, or loose construction.

Jefferson was a Francophile; Hamilton, an Anglophile.

from their first meeting in late 1782 or early '83 until Hamilton's death in 1804. They served together in Washington's cabinet, Hamilton as secretary of the treasury and Jefferson as secretary of state. Consider that in letters to President Washington both of these heroes of the Revolution came perilously close to formally charging the other with treason.

Cunningham's method is uncomplicated. He presents the reader with more than forty documents--consisting mostly of letters, reports, and speeches--in seven chronological chapters. Jefferson's and Hamilton's documents are interwoven so that we see each man proposing arguments and responding to the other's arguments and assertions. Cunningham's interspersed commentary is minimal.

Jefferson was born into the "privileged world of colonial Virginia planters, Hamilton began life in an insecure world in the British West Indies, Hamilton's father deserted the family when he was eleven years old. He had to struggle to achieve the kind of education Jefferson enjoyed as a birthright and had to earn his social position through gallant service as an officer during the Revolution. We might say, then, that Hamilton early had hitched his star to government and rose by the grace of government. Jefferson, on the other hand, served government in the spirit of noblesse oblige.

To his credit, Cunningham does not indulge in such speculation. When he addresses the inevitable question of which of the two was superior, which one was "right" in this historic rivalry, he does so by quoting two other important biographers of Jefferson and Hamilton: Dumas Malone, who favors Jefferson, and Broadus Mitchell, who favors Hamilton.

Malone, in his two-volume Jefferson and the Rights of Man, offers this comparison of the two: "Perhaps that is the real secret of [Jefferson's] eventual political success, as it assuredly is of his enduring fame. He was a true and pure symbol of the rights of men because, in his own mind, the cause was greater than himself." To Malone, Hamilton, however, "comes out of this investigation worse than I expected. ... I cannot escape the conviction that he ... lusted for personal as well as national power."

Mitchell sees the two differently. In his Alexander Hamilton: The National Adventure, 1788--1804, Hamilton was the idealist: "He was in love with the noble ideal of creating a vigorous, expanding nation." Jefferson "heard voices, saw visions, but was far from the stage of devising institutions or finding ways and means of equipping a new social order."

For his part, as a historian of the conflict between Jefferson and Hamilton, Cunningham clearly defines his mission with as much detachment and objectivity as possible. He simply presents us with the evidence in the form of well-chosen primary documents.

The first issue to divide Jefferson and Hamilton as members of Washington's cabinet was how the victorious new nation would finance its war debt. Should the states share equally the burden of the national debt? But what of the states that had already substantially paid their war debt? Would they not, in effect, be punished by such a settlement? Should the debt be paid at once, or should it be financed? The questions were thorny, and as secretary of the treasury, Hamilton championed a solution that was eventually adopted, the formation of a national bank.

One important reason for such a move was that a properly funded national debt "answers most of the purposes of money. Transfers of stock or public debt are the equivalent to payments in specie; or in other words, stock, in the principal transactions of business, passes current as specie." Hamilton then enumerated some of the attendant benefits of having established such stock: "First. Trade is extended by it; because there is a larger capital to carry it on. ... Secondly. Agriculture and manufactures are also promoted by it. ... Thirdly. The interest of money will be lowered by it; for this is always in a ration to the quantity of money, and to the quickness of circulation." The closely argued report was adopted with some modifications over Jefferson's objections--restrained objections, as he promised Hamilton they would be when Hamilton solicited his support.

Later, Jefferson's objections to the national bank grew more vehement as he sniffed out agendas hidden under the cloak of reasoned economic argument. Anti-Federalist that he was, Jefferson saw the national bank as a way for the "monarchists" to strengthen the federal government. In their plans of financing the debt--and, in his view, never paying it off--Jefferson saw a scheme to perpetually hold the states in extortion and thereby control legislation to their benefit.

He claimed to have acquiesced to the idea of a national bank for two reasons. He had been duped by Hamilton into accepting a plan he did not fully understand. And, as he wrote to his son-in-law Francis Eppes, "I see the necessity of sacrificing our opinions sometimes to the opinions of others for the sake of harmony."

To Jefferson, Hamilton was clearly transgressing into his domain as secretary of state. When Washington solicited Jefferson's opinion on the proposed national bank, Jefferson abandoned the restraint he had earlier promised Hamilton. In his Opinion on the Constitutionality of Establishing a National Bank, Jefferson argued that "all powers not delegated to the U.S. by the Constitution, not prohibited by it to the states, are reserved to the states or to the people (Xth Amendmt.). ... The incorporation of a bank, and other powers assumed by this bill have not, in my opinion, been delegated to the U.S. by the Constitution." A national bank, in other words, was, in Jefferson's opinion, unconstitutional.

. Moreover, Jefferson's argument against the bank opened a further rift between the two regarding a larger, more abstract issue: the complex and contentious point of just how the Constitution itself should be read.

Washington was persuaded by Hamilton and signed the bill to incorporate the bank just two days after receiving the report. In a private letter written five years later, Jefferson's ire was still smoldering.

By 1792 the conflicts between Jefferson and Hamilton involved such fundamental and unresolvable differences that they can be seen as foreshadowing the national horror, still about seventy years in the future, of the Civil War. The Federalists, Jefferson claimed, were scheming to concentrate and centralize political power in America through the establishment of a monarchy that "will form the most corrupt government on earth." Later in the letter he added, prophetically, "I can scarcely contemplate a more incalculable evil than the breaking of the union into two or more parts." But such fracture seemed to Jefferson inevitable when we review the mass which opposed the original coalescence, when we consider that it lay chiefly in the Southern quarter, that the legislature have availed themselves of no occasion of allaying it, but on the contrary whenever Northern and Southern prejudices have come into conflict, the latter have been sacrificed and the former soothed; that the owners of the debt are in the Southern and the holders of it the Northern division.

On the same day, September 9, Jefferson again wrote Washington, this time outrightly naming Hamilton and leveling specific accusations, each carefully elaborated and supported to show that Hamilton, not himself, was to blame for the feud. Whatever else he may have made of the deepening enmity between these two gifted members of his cabinet, Washington surely recognized that, in these exchanges of venomous accusations and counteraccusations, he was witnessing what many political observers had dreaded, the formation of political parties.

In 1796, Washington's vice president, John Adams, defeated Jefferson in a close election and became the second president. Under the constitutional provisions then in place, Jefferson became Adams' vice president. Of all the documents in the final third of Cunningham's book, which covers the period of Jefferson's vice presidency through his presidency (gained in 1800), none are so compelling as those dealing with the Sedition Act, which made its way through Congress in 1797. It too bode ill for preservation of the union.

The act made it unlawful for any persons "to combine or conspire to oppose any lawful measure of the government, to prevent any officer of the United States from performing his duty, or to aid or attempt to procure any insurrection, riot, or unlawful assembly." It also provided punishment of any person for writing, uttering, or publishing "any false, scandalous and malicious writing" against the president, Congress, or the government.

One of the charges that Jefferson had to defend himself against in his September 9, 1792, letter to Washington was that he had brought the poet Philip Freneau to Philadelphia for the express purpose of setting up a newspaper to defame and attack the Federalists. Sensitive, therefore, on the subject of "publishing malicious writing," Jefferson saw the Sedition Act as an attempt to silence Republican newspapers.

He immediately began to think of ways that states might assert their right to declare an act of Congress unconstitutional and void. Working with John Breckinridge, a former Virginian, and members of the Kentucky Assembly, Jefferson drafted the Kentucky Resolutions of 1798, which began with an ominous first point: "Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their general government." The second point concludes that "the power to create, define and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states, each within its own territory." The conflict between the rights of the state versus those of the federal government was thus sharply defined. The sovereignty of the state of Kentucky and the authority of the federal government were set at loggerheads.

Following Kentucky's lead, in December 1798 the General Assembly of Virginia also adopted resolutions protesting the Sedition Act. In a letter to Theodore Sedgwick, a Federalist senator from Massachusetts, Hamilton, clearly fed up with Virginia's anti-Federalism, angrily proposed to hold its feet to the fire. A powerful federal force should without delay be brought against Virginia and put that state to "the Test of resistance."

Decades hence, Virginia, home of the capital of the Confederacy, would indeed be put to such a test of resistance over many of the same issues that pitted Jefferson versus Hamilton. And at that event the whole nation would tremble.

35 posted on 12/03/2002 2:01:42 PM PST by Remedy
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To: Remedy
Jefferson's ideas were disastrous particularly that of an agarian society. Hamilton's ideas about the economy and finance were light years ahead of the reactionary ideals J. espoused. He understood that there must be a mixed economy in order for the nation to grow and become strong. Jefferson was convinced we should not have a navy or even domestic shipping because he feared navies led to war. Idiotic thinking but typical.

There are many mistakes in your post with regard to Hamilton. He was not an Anglophile but only believed the English governmental system was the best which had been devised. How could an Anglophile have devoted almost a decade to resisting England with ideas and arms? His father deserted the family when he was 8. He was orphaned at 11 or 12.

His devotion to trying to establish the new nation came at the cost of his ability to earn a fortune which he would have easily done since he was the best lawyer in the nation.
He did not distrust the people but democracies and those who would pander to the people (such as Jefferson.) He insisted at the constitutional convention that the people be directly represented in the House. That such a lie could still have legs is absurd since he spent his youth fighting for a republic (unlike Jefferson who spent that time chasing women in Paris.) He refused Washington's wish to appoint him to the Supreme Court because he could not afford to forgo the income his legal practice brought him.

All the founders, even Madison and Jefferson, accepted the doctrine of implied powers during the 1780s. It was understood that no document could enumerate all the powers of government. ONly when M. and J. swung into opposition did they discover any problem with implied powers. The assumption of the wartime debts was not related to the National Bank they are different issues altogether. Hamilton worked out a deal with J. to accomodate the states which had paid off their debts or which had merely defaulted on them.

Malone's comment about Hamilton's lust for power is sheer bullshit. Had he had such a lust what could have been easier than for him to flatter the mob, as J. and Burr did constantly, and court public opinion? After all he was the most well read of any of the founders writing hundreds of articles for the newspapers from the time he was a teenager. His ideas for the constitution were not exactly what was adopted yet no man did more to have it ratified. Personal power was what those opposed to the constitution were trying to protect not Hamilton.

As regards J. being "duped" by H. if that were so then he was not as smart as I think he was. It was just a lie he spread to quiet his allies. In fact, the deal which allowed him to become president was made when he promised to keep the financial system in place. Without this the Lousiana purchase would not have been possible. J. believed it unconstitutional anyway.

Jefferson's hypocrisy about the rights of man is monumental. Hamilton, in stark contrast, never owned slaves and founded a manumission society to free slaves and did legal work to help escapees retain their freedom. This was one of the major reasons the Slaverocrats hated him so much.

Jefferson did not understand the constitution and his Resolutions indicate that very clearly. As does his running dispute with John Marshall. No man understood the constitution better than Marshall and his friend, Alexander Hamilton, not even Madison. When Jefferson entered the lists used reason against Hamilton he inevitably lost. Hamilton's opinion on the constitutionality of the Bank was a masterpiece and clearly shows why the Bank was part of the implied powers of the government. Defeats such as this were the reason J. called H. a "host without numbers." No one could win a debate with him certainly not a J. who could barely speak and hated confrontation. Of course, having ridiculous ideas about the "monarchists" didn't help convince any but rabid screwballs.

Washington abhored the idea of disunion and used his farewell address to argue against it. That was the main thrust of the document not foreign affairs and it was written by H.

At the same time J. is writing W. about H.'s engendering the feud he is paying Phillip Freneau to slander H. and W. while
working for the Dept. of State. W. came to trust H. more in foreign affairs than J. because of J. support of anti-American forces in France and anti-government forces at home.

The Alien and Sedition Acts were opposed by H. and used as an excuse by the Republicans. States had more draconian laws on the books. Laws used by J. and his followers after the A&S acts lapsed to prosecute federalist editors.

The Civil War was J.'s legacy and for that he is to be forever damned.

I have to go and can't proof this so forgive any errors.
36 posted on 12/03/2002 3:07:52 PM PST by justshutupandtakeit
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To: Remedy
With that long read, for a minute there I thought this was a bash confederates thread, sorry remedy, wasn't WLAT after all. lol
37 posted on 04/16/2003 12:02:06 PM PDT by DeathfromBelow
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To: Remedy


38 posted on 08/16/2004 4:40:35 PM PDT by Tailgunner Joe
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To: Remedy


39 posted on 12/21/2005 6:51:37 PM PST by Tailgunner Joe
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