the imaginative conservative logo

George Washington prayingAn increasingly heated debate is taking place in America to redefine the role of faith in the public square. Faith has been a part of the American experience since the earliest days of the founding. As the nation now considers the relationship of the sacred and the secular, it may be helpful to reconsider our roots. This debate does not take place in a vacuum. In fact we have several hundred years of American experience since the earliest settlers came here. The role of faith in the founding of America is worth revisiting, as is the truth about the relationship between church and state.

The American founders believed that freedom must be linked to faith, or freedom would fail. They were convinced that a free nation can function well only if its citizens live by the fruits of faith, although they did not want the government to impose one church on the nation. They believed that individual men and women can live in liberty only if they are governed from within. They believed that faith fosters good character, and that without virtue and self-restraint, there would be conflict and chaos. The American founders were certain that religion is indispensable for freedom. The relationship of church and state is this: the state depends on the fruits of faith for its survival. Without virtue, freedom cannot be sustained. And faith is necessary to foster virtue.

George Washington said so plainly in his Farewell Address: “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports…let us with caution indulge the supposition, that morality can be maintained without religion. …reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.”[1] That is exactly the same conclusion John Adams reached, and he drove the point home saying, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” [2]

Conclusive Christian Convictions

The signers of the Declaration were predominantly devout Christians, despite the contemporary spin on history that would tell us otherwise. Professor M.E. Bradford researched their lives thoroughly, including their correspondence, wills, and writings, and found conclusive evidence that the signers, with very few exceptions, were firmly committed in traditional practice of Christianity. [3] Bradford found that the references by the founders to “Jesus Christ as Redeemer and Son of God” are “commonplace in their private papers, correspondence, and public remarks.”[4] Their faith was evident not only in their words, but in their lives. For example:

Patrick Henry wrote in his will, “This is the inheritance I can give to my dear family. The religion of Christ will give them one which will make them rich indeed.”[5]

John Jay of New York in his will thanked “the author and giver of all good… for His merciful and unmerited blessings, and especially for our redemption and salvation by his beloved Son.”[6]

Elias Boudinot of New Jersey was “heavily involved in Christian missions and was the founder of the American Bible Society.”[7]

Roger Sherman “was a ruling elder of his church.”[8]

Richard Bassett “rode joyfully with his former slaves…singing on the way to Methodist camp meetings.” [9]

Charles Cotesworth Pinckney “set aside money to evangelize slaves” and “distributed Bibles to blacks” as president of the Charleston Bible Society.[10]
During the Revolution, Abraham Baldwin of Georgia “served as chaplain in the American army.”

Luther Martin declared “his devotion to ‘the sacred truths of the Christian religion.’” [11]

James Madison and Alexander Hamilton “regularly led their households in the observance of family prayers.” [12]

David Brearly of New Jersey and William Samuel Johnson of Connecticut “devoted themselves to reorganizing the Episcopal Church in their states.”[13]

John Witherspoon educated Presbyterian clergy with treatises such as “The Absolute Necessity of Salvation Through Christ.”[14]

Their lives are the proof of their Christian faith, which permeated the founding and their intentions for the country.

Even Jefferson, whose Deist convictions put him outside the mainstream of the founders, clearly articulated the necessity of reliance on God for the survival of our republic. His words are etched in the wall of the Jefferson Memorial in Washington, D.C.: “God who gave us life gave us liberty. Can the liberties of a nation be thought secure when we remove their only firm basis, a conviction in the minds of people that these liberties are a gift from God?” Jefferson’s own convictions, even as a Deist, honored Christian teaching and specifically Jesus. Jefferson did not believe in the divinity of Christ, miracles in the Bible, or the trinity, but he wrote , “The philosophy of Jesus is the most sublime and benevolent code of morals ever offered to man. A more beautiful or precious morsel of ethics I have never seen.”[15]

While Jefferson was president, he regularly attended worship services on Sunday in the Capitol Building. Rev. Ethan Allen, who lived nearby, wrote in his own hand an account of the following encounter. President Jefferson was on his way to church one Sunday morning with his large red prayer book under his arm when, after wishing him a good morning, Allen asked him which way he was walking.

Jefferson replied, “To church, sir.”

He exclaimed, “You going to church Mr. Jefferson? You do not believe a word of it.”

“Sir,” said Mr. Jefferson, “No nation has ever yet existed or been governed without religion. Nor can be. The Christian religion is the best religion that has ever been given to man and I, as chief Magistrate of this nation, am bound to give it the sanction of my example. Good morning Sir.” [16]

The Truth about Church and State

Two dominant characteristics of early America were its deep Christian faith and its denominational diversity. So to encourage faith without diluting it, while preserving the right of all individuals to practice their faith freely, the First Amendment prohibited Congress from imposing one denomination on the country. In fact, the right to establish churches at the state level was fully legal, and several states did so. Massachusetts, Connecticut, Virginia, New Hampshire, and South Carolina had established state churches supported with taxes, the last of which ended only in the 19th century. [17]

The phrase “separation of church and state” appears nowhere in the Constitution or the First Amendment. The metaphor of a “wall of separation” was used in a private letter Thomas Jefferson wrote to the Baptists in Danbury Connecticut in 1802, a phrase in a letter with no legal binding power. The current application of this phrase to attempt to eradicate all traces of faith from the public square runs completely contrary to the founders’ intentions. It was never intended to guarantee “freedom from faith.”

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The intent of the founders was specifically to prevent Congress from imposing one denomination on the entire nation from the federal level. The First Amendment was never intended to exorcise all traces of religion from public life. Quite the contrary. The founders believed that the practice of religion was essential to provide the moral content to inform prudent decisions in the institutions of the newly formed government. They understood that in the absence of virtue, there could be no order in freedom. Gouvernor Morris put it this way: “Religion is the only solid Base of morals and Morals are the only possible Support of free governments.” [18]

The First Amendment did not prohibit the use of government money or property for religious purposes. Quite the contrary. The founders wanted to encourage religious belief and its practice. Public schools regularly taught from the Bible and offered character education based on it. Jefferson himself authorized the use of federal funds to purchase Bibles to “propagate Christianity among the Indians.”[19] Worship services were held every Sunday in the Capitol building. The sessions of Congress opened with prayer, and presidents were sworn into office in a public inauguration with their hand on a Bible, just as they are now. The Northwest Ordinance of 1787 proclaimed “Religion …[to be] necessary to good government and the happiness of mankind,” and set aside land for churches. [20]

States had free reign to foster the practice of religion and its instruction. John Adams in Massachusetts affirmed that “religious education was essential to survival of a free republic.” His state’s constitution “required the state to pay for religious education if there weren’t any private groups able to do it.” [21]The article of religion drafted by George Mason for the Virginia Declaration of Rights in 1776 and modified by James Madison, reflects the climate of ideas at the time they worked through different drafts of the First Amendment: “Religion or the duty we owe to our Creator…. all men are equally entitled to the free exercise of religion, according to the dictates of conscience….. [I]t is the mutual duty of all to practice Christian forbearance, love and charity toward each other.”[22] Forbearance, love and charity. These are the attributes that the founders wanted to foster in America.

A City on a Hill

The roots of America’s convictions are in the Bible. John Winthrop delivered his famous “city on a hill” sermon on the deck of the ship Arbella halfway between England and Cape Cod in 1630, to remind the Pilgrims of the covenant they had made with God and with each other. He said, “We must delight in each other, make others’ conditions our own, rejoice together, mourn together, labor and suffer together…For we must consider that we shall be as a city upon a hill, the eyes of all people are upon us.” [23] Like the Israelites, they had a covenant with their creator.

The settlers who came here believed that their life and liberty were gifts from God, and they would be judged at the end of their days according to how they used these remarkable gifts. They believed that they would be held accountable for their actions, their sins of omission and commission, the care or negligence they showed their neighbors, and their honesty in dealing with each other. They knew God as not only a God of mercy, but also of the God of justice, and they feared his wrath. “I tremble,” Thomas Jefferson wrote, “when I reflect that God is just.”

The Pilgrims, separatists from the Puritan movement in England, settled in the northeast colonies. A small enclave of Roman Catholics settled in the northeast as well. The settlers in the middle colonies tended to be members of the Anglican Church, while the south had a greater concentration of Baptists and Calvinists. There were Presbyterians, Lutherans, and Quakers who also populated the colonies, along with a sprinkling of Jews. Because so many settlers had come here with ferociously independent denominational convictions, albeit overwhelmingly Christian, they found it useful to adapt Old Testament language and imagery. Novak tells us, that in “national debate, lest their speech be taken as partisan,” Christian leaders usually adopted the “idiom of Abraham, Isaac, and Jacob” as the “religious lingua franca for the founding generation.” [24] This shared language of Judaism “came to be the central language of the American metaphysic – the unspoken background to a special American vision of nature, history and the destiny of the human race.”[25]

The colonists knew the Bible well, both Old Testament and New. The influence of Biblical teaching on early America was profound. At the time of the American Revolution, 84% of the pamphlets circulating were reprints of sermons, generously peppered with Scriptural references. Even in the secular pamphlets, 34% of the quotations were from the Bible.[26] It was the book often used to teach youngsters how to read, starting with the Gospel of John. Biblical imagery permeated the language and the culture. Sermons were the main form of spiritual, intellectual and civic formation.[27] The settlers had a clear understanding of theology in which the family was the primary unit ordained by God for mutual care. They believed they had been given property and ability as gifts of God, which were to be released through work. Producing prosperity was an expression of the fullness of a godly life. And they believed that they should be open-handed with neighbors in need.

The Fruits of Faith

Sermons of the founding era, whether Anglican, Congregationalist, Methodist, or Presbyterian, regularly noted that faith without works of compassion was dead. Benjamin Colman warned in a sermon, “God values our Hearts and Spirits above all our Silver or Gold, our Herds and Flocks. If a Man would give all the Substance of his House instead of Love, …it would be contemned.” [28] When Methodism spread in the eighteenth century, American followers urged their countrymen to follow John Wesley’s advice to ‘put yourself in the place of every poor man and deal with him as you would have God deal with you.’ ” [29] It is clear that faith was expected to produce fruits.

In fact, the fruits of liberty prompted by faith are exactly what the founders had in mind. As Gleaves Whitney has pointed out, the intention of the founders was not only to protect the practice of religion, but to foster the fruits of its practice as well: the virtues of forbearance, love, and charity. The preamble of the Constitution is to “provide the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Here we see that the founders sought not mere liberty, but the blessings of liberty.

Gleaves points us deeper. “If the Founders seem as interested in securing ‘the blessings of liberty’ as in liberty itself, then it is because they viewed liberty as instrumental. It is a means, not the end – rather like money. Most people want money, not for its own sake, but for what it allows one to have: status, security, power, material comforts, and so on. It’s not the money per se but the blessings of money that we want. By analogy, the Preamble suggests that the Founders viewed liberty not as an end in itself, but as the means to the end, which is the good life.”[30] The good life consists in the virtues of forbearance, love and charity – fruits of the spirit.

Compact and Covenant

Before the first settlers even set foot on Plymouth Rock, they bound themselves to each other and to God in a form of governance derived from covenant theology of the Old Testament. In the words of the Mayflower Compact of 1620: “Having undertaken for the glory of God,…and advancement of the Christian faith, a voyage to plant colony…in the presence of God and of one another, we do Covenant and Combine ourselves together into a Civil Body Politic, for our better ordering and preservation.”[31] As Donald Lutz proves in the Origins of American Constitutionalism, this was a defining moment for America, because of the character of a covenant, and its civic counterpart, a compact.[32] The Mayflower Compact and other compacts which the original colonies implemented were derived directly from the covenant of the Old Testament, binding Abraham, Isaac and Jacob to the great “I am” and obligating themselves to live in accordance with his law. Our Constitution has the same roots.

The names for God referenced in the Declaration of Independence were Old Testament names: Lawgiver, Creator, Judge, and Providence. Michael Novak points out that, “If these Hebraic texts of the Declaration were strung together as a single prayer, the prayer would run as follows: “Creator, who has endowed in us our inalienable rights, Maker of nature and nature’s laws, undeceivable Judge of the rectitude of our intentions, we place our firm reliance upon the protection of divine Providence, which you have extended over our nation from its beginnings.’”[33] This is no secular document: our Declaration of Independence has embedded in it this subtext, a prayer.

The Founders’ Syllogism

Was America founded as a “Christian nation” or a “secular nation”? Neither. There were strong Christian influences, as well as individualistic strands, and a deist strand as well. But they wound together to form a republic that depends on virtues formed and sustained by religion. The American founders planted their political order in the soil of a nation nourished by Christian faith. But the political order can neither mandate nor inculcate the virtues necessary for its survival. The founders’ syllogism was this: a republic requires virtue for freedom to be sustainable. Virtue requires faith to be sustainable. Therefore, the republic requires faith to be sustainable. But the government cannot require faith or virtue – in fact it is incapable of inculcating either. That must come from the private, voluntary sector.

For more articles in this series, click here and here.

Books mentioned in this essay may be found in The Imaginative Conservative BookstoreAdapted from Barbara Elliott’s Street Saints: Renewing America’s Cities (Templeton Foundation Press, 2004).

Notes:

1. George Washington, “Farewell Address” in W.B. Allen, ed., George Washington: Collection (Indianapolis, IN: Liberty Classics, 1988) p. 521.
2. John Adams, Address to the Military, Oct. 11, 1798, quoted in The Founders’ Almanac, p. 191.
3. M.E. Bradford, “Religion and the Framers: The Biographical Evidence,” in Original Intentions: On the Making and Ratification of the United States Constitution, (Athens, GA: University of Georgia Press, 1993), pp. 87-102.
4. Bradford, Original Intentions, p.89
5. Campbell, Patrick Henry, p. 418. Quoted in Bradford, p. 89.
6. William Jay, The Life of John Jay with Selections from His Correspondence, 3 vols. (New York, NY: Harper, 1833) 1: 519-20. Quoted in Bradford, pp. 89-90.
7. George Adams Boyd, Elias Boudinot: Patriot and Statesman, 1740-1821, (Princeton, NJ: Princeton University Press, 1952). Referenced in Bradford, p. 91.
8. Christopher Collier, Roger Sherman’s Connecticut: Yankee Politics and the American Revolution (Middletown, CT: Wesleyan University Press, 1971), p. 325-329. Referenced in Bradford, p. 91.
9. Bradford, p. 91.
10. Marvin R. Zahniser, Charles Cotesworth Pinckney: Founding Father (Chapel Hill, NC: University of North Carolina Press, 1967), pp. 272-274. Quoted in Bradford, p. 91.
11. Bradford, p. 91.
12. Bradford, p. 91.
13. Bradford, p. 91
14. Bradford, p. 91.
15. Quoted in Novak, On Two Wings, p. 29.
16. From Rev. Ethan Allen’s handwritten history “Washington Parish, Washington City” in the Library of Congress MMC Collection, 1167 MSS, in James H. Hutson, Religion and the Founding of the American Republic (Washington, D.C.: Library of Congress, 1998) p. 96. Quoted in Novak, p. 31.
17. Bradford, Original Intentions, p. 93-94.
18. Gouvernor Morris, letter to George Gordon, June 28, 1792, quoted in The Founders’ Almanac,p. 190.
19. Robert L. Cord, Separation of Church and State: Historical Fact and Current Fiction (New York, NY: Lambeth Press, 1982) pp. 41-45.
20. American Legacy: The United States Constitution and other Essential Documents of American Democracy, (Calabasas, CA: Center for Civic Education, 1997) pp. 38-39.
21. Charles Colson, “Walls of Our Own Making: The Founders and Religion” BreakPoint with Commentary 020104, Jan. 4, 2002.
22. Quoted by Russell Kirk in Roots of American Order, p. 436.
23. John Winthrop, “A Model of Christian Charity” 1630, in Perry Miller (ed.) The American Puritans: their Prose and Poetry (New York, NY: Doubleday, 1956) p.78.
24. Michael Novak, On Two Wings, p. 7.
25. ibid.
26. Donald Lutz, Center for the American Idea Seminar lecture, Del Lago, TX, June 2000. See his book, The Origins of American Constitutionalism, (Louisiana State University Press: 1988).
27. See Ellis Sandoz,, Political Sermons of the American Founding Era: 1730-1805 (Indianapolis, IN: Liberty Press, 1991).
28. An echo of 1Cor. 13. Benjamin Colman, The Merchandise of the People: Holiness to the Lord (Boston, MA: J. Draper, 1736), from sermons preached in 1725 and 1726., Quoted in The Tragedy of American Compassion,Marvin Olasky, p. 8.
29. Olasky, The Tragedy of American Compassion, pp. 7-8.
30. Gleaves Whitney, Center for the American Idea Seminar lecture, Del Lago, TX, June 2000.
31. American Legacy: The United States Constitution and other Essential Documents of American Democracy, (Calabasas, CA: Center for Civic Education, 1997), p.5.
32. Donald S. Lutz, The Origins of American Constitutionalism, (Louisiana State University Press: 1988).
33. Novak, On Two Wings, pp. 17-18.

Print Friendly
"All comments are subject to moderation. We welcome the comments of those who disagree, but not those who are disagreeable."
9 replies to this post
  1. I'd like to recommend our paperback reprint of Ben Hart's FAITH & FREEDOM ($14.95), which argues very much along the same lines as does Barbara. Good classroom text for high school and college students. Exam copies on request.

    FORREST MCDONALD wrote: "Hart's argument is bold, clear and historically indisputable."

    Jameson Campaigne
    Jameson Books. Inc.
    722 Columbus Street
    Ottawa, IL 61350

  2. Barbara, this is a winner and an eye-opener for me. I had suspected as much but the data is unassailable. Where de Tocqueville observed, not much later, that the only two books likely to be found in an American household were the Bible and Pilgrim's Progress, how could a small and fairly integrated population not be imbued with Christian values inside and out? We might reasonably ask how moderns might come to think otherwise: (a) wishful thinking from secularists; (b) modern Americans utterly deprived of religious education (I have met some), who know so little of even the core concepts and iconography of Christianity that it is all a blank to them ("what's that woman and kid doing on that donkey?"); (c) poor teaching of history; and (d) the 'real' multiculturalism that I described recently, where a much more populous America is now so divided into little self-segregated micro-cultures that few people can imagine a time when values were so fully integrated that they became almost instinctive. Your quote of Jefferson and his Bible being a perfect example. I am eager for the next installment.

    Stephen Masty

  3. The phrase "separation of church and state" is but a metaphor to describe the principle reflected by the Constitution (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) and, indeed, saying nothing substantive about god(s) or religion at all except in the First Amendment where the point is to confirm that each person enjoys religious liberty and that the government is not to take steps to establish religion and another provision precluding any religious test for public office. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they've discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    Whether some of the founders were atheists, deists, or non-Christians of other sorts has nothing whatever to do with the principle of separation of church and state. While many founders were Christian of one sort or another, care should be taken not to make too much of the founders’ individual religious beliefs. In assessing the nature of our government, the religiosity of the various founders, while informative, is largely beside the point. Whatever their religions, they drafted a Constitution that plainly establishes a secular government and separates it from religion as noted above. This is entirely consistent with the fact that some founders professed their religiosity and even their desire that Christianity remain the dominant religious influence in American society. Why? Because religious people who would like to see their religion flourish in society may well believe that separating religion and government will serve that end and, thus, in founding a government they may well intend to keep it separate from religion. It is entirely possible for thoroughly religious folk to found a secular government and keep it separate from religion. That, indeed, is just what the founders did.

    Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you.

  4. When I worked on Capitol Hill, my representative had that Washington print hanging in his office.

    It speaks volumes.

    Also, Barbara, I own your Street Saints book. May I send it to you for an autograph?

    Dana in GA
    Hillsdale, '78

  5. I really don't want to take the time to answer Mr. "Doug Indeap" above, because it in several ways distracts the reader from Barbara's fine and nuanced essay, which is about much more than the Everson Case or even the much larger question of the separation of church and state. But Mr. "Indeap" is, indeed, in rather deep.

    First of all he calls the separation of church and state "but a metaphor," which it is not unless used in conjunction with the "wall of separation." Although as in almost all of Jefferson's metaphors it is quite difficult to make out what he meant, one thing is certain: he was limiting an old American idea to one secular interpretation, which was almost certainly not the prevailing American interpretation in 1800 or so. Here one can read John Witherspoon with profit, to understand that most Americans wanted separation of church and state not because, as was the case with Jefferson, Madison and others, he was worried that tyrannical churches would threaten secular political freedom, but just the opposite, because tyrannical governments threatened the true flowering of Christianity. As early as Roger Williams the metaphor of the wall was used so that the "garden of Christianity" could be protected from the "wilderness of the world."

    It is also rather strange that anyone would claim that it makes no difference what people who write important public documents believe. Does that hold true for dedicated communists, for example, or for ideologues of any other kind? Can one really imagine the many constitutions of our founding era written by people who believe that human nature is infinitely malleable?

    I wouldn't argue that the Everson case was unrepresentative of one line of thinking on the question of separation–it did, in fact represent much of Jefferson's thinking. But to ignore the fact that it also initiated the overturn of the other, much richer American tradition is simply to ignore about three hundred years of history.

    Even the arch liberal justice, William O. Douglas, expressed qualms about making legal principles from a metaphor.

    Perhaps the writing of Daniel Dreisbach, Jeffrey Morrison, and from an older generation Mark deWolf Howe and Sidney Ahlstrom might shed some light.

  6. I'll add to Dr. Wilson's critique of "Mr. Indeap's" comments from a legal perspective. The 1st Amendment, as all of the Amendments constituting the original Bill of Rights, was intended as a limit on federal government against the states. This is Marshall's interpretation in Barron v. Baltimore (1833). Under this interpretation, the 1st Amendment only prevents Congress (i.e. the federal government) from making laws respecting the establishment of religion, and has no bearing on what the states may do. The States were perfectly free to make such laws, and they did.

    It was not until 1940, in Cantwell v. Connecticut, that the Court changed this long-standing reading of the 1st Amendment by applying the 14th Amendment beyond its intended scope (originally, meant to apply against the states to the limited issue of freed blacks) to make the 1st Amendment apply not just to the federal government, but to state governments as well. The Court went even further, in this case, and made the 1st Amendment an individual right against both the federal and state governments. Thus, not until 1940, 149 years after the adoption of the 1st Amendment and 72 years after the adoption of the 14th Amendment, were there "constitutional" principles in place for giving individuals a right against both the federal and state governments regarding the establishment of religion.

    The whole notion of "separation of church and state" and the controversial Engel case that Mr. Indeap references and that refers to this unfortunate phrase, should be seen in light of this legal history. Until 1940, The 1st Amendment was not thought to create a "separation of church and state," but merely to prevent the federal government from making laws regarding religion that would have interfered with the state's sovereignty in this regard. Far from being a separation of church and state, it's original intention was solely to create a wall of separation between the federal and state governments to prevent the federal government from infringing upon the states' rights with respect to religion.

    Thus, aside from the issue of the eventual (and questionable) use the Court has made of the 1st and 14th Amendments, I'd seriously question the notion that the original intention was to form a secular government and to strictly separation church and state. To draw such a conclusion from a mere separation between the federal and state levels of government regarding matters of religion would seem to require a serious leap of logic indeed.

  7. John Creech,

    You are quite right to note that the First Amendment constrains only the federal government and not the states and that, at the time of the founding, some states had established religions. Adoption of the First Amendment reflects, at the federal level, a "disestablishment" political movement then sweeping the country. That political movement succeeded in disestablishing all state religions by the mid-1830s. (Side note: A political reaction to that movement gave us the term "antidisestablishmentarianism," which amused some of us as kids.)

    While some among those who drafted and ratified the First Amendment undoubtedly were motivated by a desire to protect the rights and powers of states from the federal government as you suggest, others just as undoubtedly sought to protect the rights of individuals from the federal government. Whatever their various motivations, they agreed on an Amendment that limits the power of the federal government so as to serve all of these ends.

    You disagree with the Supreme Court's interpretation of the 14th Amendment, which guarantees individual rights against infringement by states, including equal protection and due process of law and the rights and privileges of citizenship. As the Amendment did not come with a handy glossary of terms explaining exactly what rights are encompassed within those terms, the Court quite naturally and reasonably looked to the Bill of Rights, reasoning that there are found the rights we hold most fundamental, and ruled that at least some of those, including freedom of religion and freedom from government established religion, are protected from state infringement. See, e.g., http://en.wikipedia.org/wiki/Incorporation_%28Bill_of_Rights%29

    You suggest that the passage of 72 years from the adoption of the 14th Amendment to the decision that it encompasses First Amendment rights somehow calls into question the legitimacy of that decision. Such time frames, though, are hardly unusual in constitutional jurisprudence. Indeed, it was not until 2008, 217 years after adoption of the Second Amendment, that the Court decided that it provides an individual right to possess a firearm, unconnected to service in a militia, and just last year that it decided the 14th Amendment protects that right from infringement by states.

  8. Mr. Indeap,

    Thanks for engaging me in this discussion. I'm preparing a post on this issue so I can go into more depth, so, for now, I'll keep my reply brief.

    The Congressional debate on the 1st Amendment clarifies that its purpose is to (1) prevent a national church, (2) maintain state sovereignty against the federal government on religious matters, and (3) by doing (1), prevent dissolution of the recently unified states. As such, to whatever extent the 1st Amendment is part of a "disestablishment" movement, this doesn't mean it was intended as an effort to establish a secular nation where church and state are strictly separated. Further, the fact that all states had repealed their establishment laws by 1833 has no bearing on the purposes of the 1st Amendment. By repealing such laws, the states were exercising the very sovereignty over religious matters (to establish or disestablish as they saw fit) that the 1st Amendment secured for them.

    While you accurately describe the incorporation doctrine whereby the Supreme Court began applying the Bill of Rights to the states through the 14th Amendment, this does not address the constitutional criticisms to which the incorporation doctrine is subject. These are deep waters, so I'll have to address them more fully in my future post, but the criticisms are these: (1) Many think that even if the incorporation doctrine applies to other provisions in the Bill of Rights it's least likely to apply to the 1st Amendment, one reason being that the amendment expressly applies to Congress alone; (2) the incorporation doctrine ignores the congressional intent and history of the 1st Amendment and Bill of Rights, insofar as they were principally to protect states against federal infringement; (3) congressional intent and the historical context of the 14th Amendment suggest that the amendment was for the limited purpose of securing for freed slaves the rights of other citizens; and (4) the complex history and controversy of the incorporation doctrine, including the fact that there's disagreement over what rights are implicated (it's not entirely settled that it's, as you suggest, the Bill of Rights and the Bill of Rights alone), suggest to me the possibility the Court has strayed from a legitimate course and thus found itself in a legal quagmire.

    Finally, regarding the McDonald gun control case, I'm aware the Supreme Court uses the incorporation doctrine, but if this doctrine is faulty, I'm quite willing to say that the Court is wrong and that the states should be left to decide their own gun-control issues. On the other hand, if the argument is right that to whatever other rights the 14th Amendment applies it doesn't apply to the 1st, then McDonald would not disturb the view that the 1st Amendment doesn't apply to the states. Besides the McDonald case reflects another jurisprudential tendency (besides timing) with respect to the 14th – to table certain thorny issues and take the law as it stands in order resolve the dispute before it. That doesn't mean that it has taken a definitive stance on the tabled issue (though, admittedly, it still adds to its precedential value).

Please leave a thoughtful, civil, and constructive comment: