Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . .
Jefferson made it clear in his Religious Freedom Statute that was adopted by the Virginia legislature in 1786 and in his private correspondence: he, as well as Madison, and other Founding Fathers, wanted to make sure that state and federal governments would take no part in establishing a state sanctioned religion as was the rule in England and English colonies around the world. To be permitted to do so would result in oppression and usurpation of individual freedoms. That was Jefferson’s interpretation and that of his contemporaries of the “establishment” and “free exercise thereof” clauses in the First Amendment.
The free exercise of individual rights was foremost on Jefferson’s mind. In a letter to Uriah Forrest, former colonel in the Maryland militia during the Revolutionary War and delegate to the Continental Congress of 1786 and 1787, Jefferson wrote in 1787 that, “I consider all the ill as established which may be established. I have a right to nothing which another has a right to take away.” If the populace gave government, Jefferson reasoned, the right to control individual freedoms, then individuals would have no freedom at all.
In correspondence to William Stephens Smith in 1788, the brother-in-law to John Quincy Adams and a former aide-de-camp to General Washington during the War for Independence, Jefferson penned these words:
It astonishes me to find . . . [that so many] of our countrymen . . . should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and the yoking them with a standing army. This is a degeneracy in the principles of liberty . . . .
Jefferson’s greatest fear, and that of his legislative colleagues, was that with a powerful central government, individual rights could easily be squashed as they had been in England and elsewhere in Europe. Man being man, if provided with too much uncontrolled power, would eventually do the despicable thing – trample on the rights of individuals and their precious freedom.
The First Amendment and the Doctrine of “Separation of Church and State.” Since 1947 the First amendment has been under assault from every quarter, but particularly from the federal and district judiciary. It is the legal interpretation of the First Amendment that has become the source of much controversy and national division.
As the Declaration of Independence was being formulated, John Adams wrote a letter on June 21, 1776 to Reverend Zabdiel Adams, his cousin and a minister in Massachusetts. “Statesman, my dear Sir,” Adams penned, “may plan and speculate for liberty, but it is religion and morality alone, which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue; and if this cannot be inspired into our people in a greater measure than they have it now, they may change their rulers and the forms of government, but they will not obtain a lasting liberty. They will only exchange tyrants and tyrannies.”
Washington also had a clear understanding of Constitutional rights. As the presiding officer over the Constitutional Convention of 1787, Washington’s view of the First Amendment was succinct. Many religious societies (denominations) in America were very concerned about the prospects of religious freedom under the new constitution. The Baptists in Washington’s home state of Virginia were no exception. In March, 1788, the General Committee of Baptist Churches inquired of Washington.
Does the new Federal Constitution which has now lately made its appearance in public, make sufficient provision for the secure enjoyment of religious liberty?
It took the busy Washington a time to respond, but on May 10, 1789 he offered this reply:
If I could have entertained the slightest apprehension, that the constitution framed in the convention, where I had the honor to preside, might possibly endanger the religious rights of any ecclesiastical society, certainly I would never have placed my signature to it; and, if I could now conceive that the general government might ever be so administered as to render the liberty of conscience insecure, I beg you will be persuaded, that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution. For you doubtless remember, that I have often expressed my sentiments, that every person, conducting himself as a good citizen, and being accountable to God alone for his religious opinions, ought to be protected in worshipping the Deity according to the dictates of his own conscience.
Constitutional ratifying legislatures from the states agreed with Washington on this matter and were making it abundantly clear that they did not want the government messing with the freedom of religion or religious expression. On June 21, 1788, the 104 delegates to New Hampshire’s ratifying convention approved the Constitution, along with a proposal for the addition of twelve individual rights, including the “Eleventh” which stated: “Congress shall make no Laws touching Religion, or to infringe the rights of Conscience.”
Five days later, on June 26, 1788, the 168 delegates to the Virginia ratifying convention finally hammered out their approval of the U.S. Constitution with 89 yea votes and proposed “That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People. . . .” Of the twenty rights recommended, the 20th concerned religion:
That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.
Amendment I guarantees five freedoms of individual expression: religion, speech, the press (or the written word), peaceful assembly and petitioning of the government. These are five basic freedoms that are irrevocably intertwined that the men who wrote, proposed and adopted the Bill of Rights wanted to forever secure for the American people.
The author of the First Amendment was Fisher Ames, a Massachusetts educator, turned attorney. He was an opponent of Jeffersonian democracy and was a proponent of a constitutional republic. “A democracy,” he said, “is a volcano which conceals the fiery materials of its own destruction. These will produce an eruption and carry desolation in their way. The known propensity of a democracy is to licentiousness which the ambitious call, and ignorant believe to be liberty.” He believed that, “Liberty has never lasted long in a democracy, nor has it ever ended in anything better than despotism.”
A devout Calvinist and espoused moralist, Ames believed that the Bible was the source of all wisdom and strongly advocated its use in education. Elected in December, 1788 as a first-term member of Congress, he queried his fellow members: “Should not the Bible regain the place it once held as a schoolbook? Its morals are pure, its examples are captivating and noble.” He believed that biblical morality in government, as well as among the citizenry, was essential, because he foresaw that it was “democracy that pollutes the morals of the people before it swallows up their freedoms.”
With that kind of thinking and Christian foundation, it would be hard to conceive that Ames, the author of the First Amendment, had in mind that the first declaration of individual rights would establish a “wall of separation between church and state.” Quite to the contrary, he felt that members of the state needed a strong biblical foundation from which to morally govern. But he wanted to make sure that government did not govern or dictate to the religious.
The distinguished physician and professor of medicine, Dr. Benjamin Rush of Pennsylvania, might have concurred with Ames’ philosophy. A highly religious Presbyterian, humanitarian and abolitionist, in a letter to John Armstrong on March 19, 1783 on religious and educational matters, he penned: “Religion is necessary to correct the effects of learning. Without religion I believe learning does real mischief to the morals and principles of mankind. . . .”
John Adams, who became the second President of the United States, maintained that elected men “may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand.”
If the Founding Fathers meant to insert a separation of church and state clause in the Constitution, why did they not? To the contrary, in the midst of debating the ideals of the Constitution, they passed the Northwest Ordinance on July 13, 1787 that included this maxim: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Evidently, the delegates to the convention did not see that religion and morality was inappropriate in the midst of a public or governmental arena.
If the Founding Fathers meant to keep us safe by a separation of church and state, why did the Continental Congress appoint (and continue to appoint) chaplains for itself and every military branch of service? In fact, the first official act of the First Continental Congress on September 7, 1774 was to call upon the Reverend Jacob Duche, the rector of Christ Church in Philadelphia, to lead the distinguished gathering of patriots in a prayer for the fledgling nation. Why did it authorize the promotion of Christianity on public lands among the Indians? If Congress and the Founding Fathers were so repulsed by the idea of a union of church and state, then why did they regularly call for days of national thanksgiving to Almighty God, as well as call for days of “humiliation, fasting, and prayer” before the Creator?
If these brilliant and judicious men were so concerned about keeping the Christian church out of the matters of state, then why did they repeatedly allow themselves to seek and be guided by a covenant theology? – a doctrine that proclaimed that God did indeed bind himself in a covenant with this unique nation and its people.
So where did the jurisprudence of “a wall of separation between church and state” come from in modern-day American life? It is certainly not in the body of the Constitution or the Bill of Rights. In fact it is not a part of any law prior to February 10, 1947. What happened in 1947? In the Supreme Court case of Everson v. Board of Education of the Township of Ewing [New Jersey] et al, a lawsuit was filed in which Everson contested the use of public tax dollars to pay for transportation of children to Catholic schools. In a summation for the 5-4 majority, Justice Hugo Black made this concluding statement:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.
With all due respect to Justice Black and the other four justices in agreement, the First Amendment makes no such proclamation, nor supposition. The First Amendment simply states (in part), Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . Where does this “wall” of separation occur? What law establishes this wall of separation between church and state? There is none. It is purely a figment of the imagination of the activist judges across America who ignore the Constitution.
For the Founding Fathers, the state and the government of a free people was birthed out of religion (specifically Christianity) and religious beliefs. The state did not give birth to religion, it only provided the governmental and judicial framework and legal security to permit the “free exercise thereof.” The First Amendment was clearly and specifically established to prevent the government’s intrusion into and sanctioning of any form of religion. It was not enacted to keep religion out of the public arena or the matters of state. The Founders and the authors of the Constitution did not want the United States to fall into the trappings of England where a specific form or religious expression (Anglican) was sanctioned and enforced by the king and parliament. The First Amendment was to assure all religious societies and their members that they could freely voice and act upon their religious beliefs in any setting as long as it did not break another law or deprive another of their civil liberties.
It is important to note that the U.S. Constitution makes no provision for laws to be enacted by the Judiciary. Lawmaking is strictly reserved for the Legislative body and no other branch of government, either at the state or federal level. The Founding Fathers feared an activist judiciary that might pull the country away from the Constitution. They did not want to empower the Judiciary in any manner on the side of lawmaking – only legal interpretation. However, in the case of Everson in 1947, the Supreme Court and the Courts that have followed have done just that – made a new law that supercedes the intent and wrongly interprets the First Amendment.
To establish a fictitious legal precedent, Justice Black and the hoard of activist judges of his ilk to follow, all reference a letter written by Thomas Jefferson to the Danbury Baptists. On October 7, 1801, the Danbury Baptist Association wrote a congratulatory letter to the recently elected President Jefferson. The letter did not reach Jefferson until December 30.
The context of their letter was both flattering, yet with a tone of deep concern about religious freedom. Prior to the Constitution and the Bill of Rights, there was a quasi-acceptance of state sanctioned religion in some of the colonies. There were the Puritans in parts of New England, the Congregationalists in Connecticut and Massachusetts, the Quakers in New Jersey and Pennsylvania and the Anglican Church in Virginia where Thomas Jefferson sought to break its stranglehold on the colony of Virginia. All enjoyed special privileges and endorsements within their realms. The Baptists in Connecticut were subjected to the scrutiny and oppressions of the Congregationalists. It was in this environment that there was a general call for a specific forbiddance of the state sanctioning any form of religion to be written into the Constitution.
The second paragraph expresses the crux of the Baptist’s concern.
Our Sentiments are uniformly on the side of Religious Liberty - That religion is at all times and places a matter between God and individuals - That no man ought to suffer in name, person, or effects on account of his Religious Opinions. That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor: But Sir our constitution of government is not specific. Our ancient charter together with the Laws made coincident therewith, were adopted on the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those, who seek after power & gain reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ.
Sir, we are sensible that the President of the United States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such a genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. . . .
On January 1, 1802, Jefferson quickly responded, but not before he consulted two trusted New England Republicans, Postmaster General Gideon Granger and Attorney General Levi Lincoln. Jefferson saw his response as a political opportunity to needle his opponents who referred to him as an “infidel” and “atheist” because he refused to use his political position to call for days of national prayer and thanksgiving as Washington and Adams did before him. But he wanted his response to be measured and without offending any of his supporters. It is this letter to the Danbury Baptists, not the First Amendment, the Constitution or any other law, that is the supposed source of modern-day America’s wrangling over the concept of “separation of church and state.” But did such a concept, doctrine or belief indeed exist with Jefferson and the Founding Fathers?
The letter (in part) “To mess. Nehemiah Dodge, Ephraim Robbins and Stephen S. Nelson, a committee of the Danbury Baptist Association in the state of Connecticut” was as follows:
Believing with you that religion is a matter which lies solely between Man & his God; that he owes account to none other for his faith or his worship; that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common Father and Creator of man, and tender you for yourselves and your religious association, assurances of my high respect & esteem [author emphasis].
This is the essential content of Jefferson’s letter as it was published in a Massachusetts paper a month after he sent it to the Danbury Baptists. However, it is not the entire letter that Jefferson sent. Upon further examination of Jefferson’s original handwritten letter by the Federal Bureau of Investigation and the curator of the 1998 Jefferson exhibit at the Library of Congress, it was noted that Jefferson requested a key statement be excised before publication. That statement occurred immediately after his “wall of separation between church and state” phrase. Jefferson wrote, in continuing his thought:
Congress thus inhibited from acts respecting religion, and the Executive authorised only to execute their acts, I have refrained from presenting even occasional performances of devotion presented indeed legally where an Executive is the legal head of a national church, but subject here, as religious exercises only to the voluntary regulations and discipline of each respective sect.
He followed this thought with his last sentence in the paragraph which begins with: “Adhering to this expression of the supreme will of the nation. . . .”
Precisely, Jefferson was stating that this “wall” he philosophically saw was one in which the Constitution prevents the state from crossing over into matters of religion. He did not want to see, and was assuring the Danbury Baptists, that the President or Executive branch of the government would not become the “legal head of a national church” as was the case in England where the king was the head of the state sanctioned church. In the margin of his letter, Jefferson notes that he wanted this sentence deleted to avoid offending his Republican party members in the east coast states who relished in the national calls to prayer and thanksgiving by his predecessors.
No matter how one chooses to interpret Jefferson’s letter, Jefferson was openly expressing his opinion and interpretation of the First Amendment. It was an opportunity for him to state a political manifesto that would needle his Federalist opponents who repeatedly tried to label him an “atheist” and “infidel,” in part because he did not, and would not call, for national days of prayer and thanksgiving. It was never meant, in Jefferson’s view, to be a declaration of fundamental principles concerning the First Amendment. As the current president it carried weight and he was aware and concerned about that – so concerned that he consulted the two New England members of his administration, Granger and Lincoln. It was Lincoln that recommended he delete the section referring to such religious observances as a day of thanksgiving.
Jefferson was not offering a legal opinion on anything and certainly not on the First Amendment. He was not offering an “executive order” on the matter either. If he did, he would be violating what he had just vowed would not happen – the Executive proclaiming what the public should do in matters of religion. He was not even offering an interpretation on what the author of the amendment, Fisher Ames, or the Constitutional Congress intended. Jefferson was in Paris at the time of the Constitutional Convention and had no direct influence on it or its members.
Interestingly, the day that Jefferson’s letter was posted (January 1, 1802) was the same day that the celebrated Baptist preacher, John Leland, arrived at the White House. A strong advocate of religious liberty, Leland was offered an opportunity by Jefferson to preach in the House of Representatives on Sunday, January 3. Jefferson attended the service as he did the services of numerous denominational ministers on most Sundays throughout his two terms as President.
If Jefferson did indeed interpret the First Amendment as establishing a “wall of separation between church and state,” then he readily and openly violated this cherished amendment only two days after he sent his letter to the Danbury Baptists. While Jefferson had an often cynical view of Christianity, in the 1790s he began to see as Washington did, that “religion and morality are indispensible supports” for the success of the new republic and its citizens. Whatever resistance he exercised to use the government or his executive power to proclaim days of public prayer and thanksgiving, Jefferson did not use when it came to opening up public and state property for religious purposes and preaching.
Six years after the Danbury letter, Jefferson wrote a similar letter to the Reverend Samuel Miller on January 23, 1808. In it, and with greater clarity, he once again expressed his opinion on the First Amendment and that it precluded him as President from proclaiming a national day of prayer and fasting.
. . . I consider the government of the U.S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, or religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly 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, as far as it can be in any human authority. . . . I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them. Fasting & prayer are religious exercises. The enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, & the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the constitution has deposited it.
. . . every one must act according to the dictates of his own reason, & mine tells me that civil powers alone have been given to the President of the U.S. and no authority to direct the religious exercises of his constituents.
Thirty-eight years after the Everson decision, in another church-state case before the Supreme Court, Wallace v. Jafree, 1985, then Associate Supreme Court Justice William Rehnquist, expressed an opposing view of the “law” of separation of church and state.
It is impossible to build sound constitutional doctrine on a mistaken understanding of Constitutional history. . . . The establishment clause has been expressly freighted with Jefferson’s misleading metaphor for nearly forty years. . . . There is simply no historical foundation for the proposition that the Framers intended to build a wall of separation. . . . The recent court decisions are in no way based on either the language or the intent of the Framers.
The mindset, history and religious beliefs of the framers of the Constitution would strongly support that they would undoubtedly agree with Justice Rehnquist’s assessment. Section 16 of the Virginia Declaration of Rights of June 12, 1776 drafted by George Mason and heavily relied upon by Madison in drafting the Bill of Rights, states:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.
In his Notes on the State of Virginia, 1781, in the section on Religion, Jefferson wrote:
The present state of our laws on the subject of religion is this. The [Virginia Constitutional] convention of May, 1776, in their declaration of rights, declared it to be a truth, and a natural right, that the exercise of religion should be free; but when they proceeded to form on that declaration the ordinance of government, instead of taking up every principle declared in the bill of rights, and guarding it by legislative sanction, they passed over that which asserted our religious rights, leaving them as they found them.
. . . The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others.
. . . It is error alone which needs the support of government. Truth can stand by itself. Subject opinion to coercion: whom will you make your inquisitors? Fallible men; men governed by bad passions, by private as well as public reasons. And why subject it to coercion? To produce uniformity. But is uniformity of opinion desirable? No more than of face and stature.
In the preceding and in The Virginia Statute for Religious Freedom, Jefferson was not only concerned about government’s interference in religious matters but also in the attempt of religious groups to coerce non-members to follow their dictates or support their causes. “Whereas Almighty God hath created the mind free,” he wrote; “that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do. . . .”
Jefferson also authored The Kentucky Resolutions of November 10, 1798. They were adopted in protest against the Alien and Sedition Acts of 1798 that were passed by the Federalist Congress. The Acts had the result of restricting individual freedom of expression, to which Jefferson and many others were strongly opposed. In Article 3 of the Resolutions, Jefferson reaffirmed his belief in the absolute freedom of religion, speech and the press.
Article 3. Resolved . . . that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people . . . And thus also they guarded against all abridgement by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others. . . .
For Jefferson, if one of the three rights of expression – religion, speech or the press – were violated by the legislative or judicial branch of government, then all three rights were violated. One could not have, for example, freedom of speech without freedom of religion; or freedom of religion without freedom of the written word, etc.
The Bill of Rights was proposed to the fourteen state legislatures on September 25, 1789. A three-fourths majority, or eleven states, were required for ratification. New Jersey was the first to approve the Rights on November 20, 1789. A little over two years later, on December 15, 1791, Virginia became the eleventh state and the Bill of Rights was ratified. Massachusetts, Georgia and Connecticut did not ratify the document for another 148 years in 1939, on March 2, March 18 and April 19, respectively.
Excerpted from We the People, Volume II: Birth of a Nation, 2005, by James F. Gauss, Ph.D.
