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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place the Religion Clauses of the First Amendment into a thoroughly synthesized jurisprudence, not only has the Court withdrawn from the original intent of the framers of the First Amendment, but it has also abdicated the original meaning of the Religion Clauses.8  First, the Court has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
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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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