|Separation of Church and State In A Nutshell|
[size=18:716e7bf8ff]Separation of Church and State In A Nutshell
by Fred T. Slicer [/size:716e7bf8ff]
The Constitution was ratified with the understanding that the national government had no power over religion. (Please see Elliot’s Debates which contains the record of five of the delegates who framed the U. S. Constitution, arguing in support of its ratification, that the national government has no power over religion)
The First Amendment’s religion clauses are highly ambiguous. The word “religion” is not defined and the term “an establishment of religion” was novel in 1789.
During the Early Years of the Republic there were two basic interpretations of the First Amendment. One view was that of the Jeffersonian Republicans who interpreted the Constitution to exempt religion, the duty which we owe to our Creator, from the cognizance of the national government. The other basic view was that of the Federalists who “held the Constitution to intend to prevent the establishment of a National Church, such as the Church of England.”
During what Sanford Cobb calls the Final Settlement (from 1789 to 1833) the issue of religious liberty in the United States was settled in favor of the Jeffersonian Republican’s interpretation of the Constitution to exempt religion from the cognizance of the government. During the first 50 years of the Republic, the “non cognizance” interpretation of the U. S. Constitution prevailed in every major political dispute over the meaning of the religion clauses.
One of the early political contests over the meaning of the establishment clause occurred in the U. S. House of Representatives in 1811 between the “non-cognizance” view of President James Madison and the “No National Church” interpretation of the Federalist. Representative Laban Wheaton (Connecticut) was a Federalist with a desire for the government to assume civil authority over the duty that we owe to the Creator. In 1811, he floated the idea of expanding the two Congressional Chaplainships to impose a government-established religion over the ten miles square of the District of Columbia.
Wheaton and Representative Timothy Pitkin (Massachusetts) challenged President James Madison’s 1811 veto of a bill incorporating an Episcopal Church in Alexandria in the District of Columbia. President Madison believed the bill established rules and procedures, that could not be amended by the church, to govern the selection and removal of the minister of the church. Madison claimed it violated the establishment clause.
Wheaton argued that Madison’s establishment clause principle was incorrect because Congress had already established two religions “by electing, paying or contracting with their Chaplains.” Wheaton deemed the meaning of the establishment clause to be of very great consequence. [Note 1}
Representative Wheaton held the view that religion established by the people or by God (instead of the government) was not really religion. He complained, on the floor of the House during the debate regarding the veto, that the people of the District of Columbia were never going to have any religion and made the absurd statement that religion had been entirely excluded from the ten square mile area of the District.
James Madison, according to his later writings, actually agreed with Wheaton that Congress had (improperly according to Madison) established two religions in 1789 by creating the Congressional Chaplainships. James Madison was ahead of his time with regard to religious liberty and perceived evil lurking under the plausible disguise of the Congressional Chaplains the eyes of others were sealed by custom to its inherent impropriety
Madison, in his later writings, advised us, rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism of the courts does not view as legal precedent trivial deviations from a principle or class it with slight mistakes forgivable in view of our human frailties. It appears Madison may have preaching that same sermon in 1811.
The same House of Representatives that voted 100 to 0 to pass the bill that Madison vetoed, voted 71 to 29 to sustain the Presidents veto. The “No National Church” Interpretation was rejected in favor of the “Total Separation of Religion and Government” interpretation of the President. James Madison was thus installed as the authority on the meaning of the religion clauses.
During the Early Days of the Grand and Glorious Republic it was always James Madison's interpretation of the establishment clause that eventually prevailed in every dispute over its meaning. These early Church State disputes included the following:
[u:716e7bf8ff] Presidential Religious Recommendations[/u:716e7bf8ff]
James Madison’s view that government religious recommendations were improper prevailed in 66 of the first 74 years of the young Republic. President Madison himself made the mistake of trying to accommodate Congressional requests for proclamations during the War of 1812 while at the same time making it clear that he claimed no civil authority over religion. President Madison claimed that his four proclamations employed a form and language meant to stifle any claim of political right to enjoin religious observances by resting his recommendation expressly on the voluntary compliance of individuals and even by limiting the recommendation to such as wished simultaneous as well as voluntary performance of a religious act on the occasion. [Note 2]
The consequence of Madison's wartime proclamations were malice and bitterness. In 1832 Representative Gulian Verplanck of New York recalled, in a speech on the House floor, that the that the wartime political religious observances under state authority were kept with “too much of the old leaven of malice and bitterness” and the Gospel of the Savior was employed by ministers and politicians “to point political sarcasm and to rekindle partisan rage.”
A lesson was learned from President Madison’s mistake of mixing religion and politics and every President from 1816 to 1860 flatly refused to issue religious proclamations under any circumstances. In 1832, Henry Clay and the Counterfeit Christians in the Senate took advantage of an impending epidemic and schemed to pass a join resolution requesting President Andrew Jackson to issue a prayer and fasting proclamation. Clay's resolution passed in the Senate but it failed in the House, where Gulian Verplanck of New York closed his famous speech by recommending that Congress "leave prayer to be prompted by the devotion of the heart, and not the bidding of the State."
Contrary to the widespread myth, there were no daily opening prayers in the First U S. Congress. If you know of any evidence of morning prayers in the official records of the First Congress, please tell me where it is.
[u:716e7bf8ff]Article III of the Northwestern Ordinance[/u:716e7bf8ff]
There was a dispute over whether Article III of the Northwestern Ordinance obligated the government to support religion in the Ohio Territory. The U. S. Congress believed that it did not and several attempts to enact legislation to "give legal effect" to the “support of the gospel” interpretation of Article III never even made it out of committee.
[u:716e7bf8ff]Sunday Mail Delivery[/u:716e7bf8ff]
The Sunday Mail dispute raged from 1810 to the development of the telegraph and railroad train systems. The subject of the controversy was an 1810 post office law that required the transportation and opening of the mail on Sundays. There were numerous attempts by the “Christian Party” to convince Congress to repeal the 1810l law, but they all failed. Representative Colonel Johnson of Kentucky, chairman of the House Post Office Committee, issued a famous report in 1830 that adopted James Madison’s view that religion was exempt from the cognizance of the government. One of the many petitions from citizens supporting the 1810 Post Office law declared that the establishment clause was intended to, “Leave the religion of the people as free as the air they breathe from government influence of any kind.”
[u:716e7bf8ff]Ten Commandment Displays in Federal Courts[/u:716e7bf8ff]
The 1789 Judiciary Act did not include a requirement for the display of the Ten Commandments in Federal Courts. I am not convinced that such a suggestion was actually introduced in Congress.
During the Early Years of the Republic (1789 to 1860) there were no disputes over “one Nation under God” in the Pledge of Allegiance, “In God We Trust” on the nations coins or government displays of the Ten Commandments. The Federal Government respected God’s authority over the conscience of men and refrained from using its legislative authority to issue religious advice to the people.
[Note 1]: The establishment of the Congressional Chaplains was probably supported by some Congressmen to merely undermine the Separation of Church and State or to convince gullible constituents that the Congressmen were pious Christians. The Congressional Chaplains were clearly not established because the Congressmen were pious Christians who wanted to attend religious services conducted by the Chaplains. By all accounts, only a very few Congressmen actually attended the Chaplain’s services.
[Note 2] In 1812, it had been twenty-three years since Congress had requested the President to issue a religious recommendation. This strongly suggests that the First Congress did not believe that government religious recommendations were a wholesome practice except in extraordinary rare circumstances. Congress did not request the second proclamation by Washington nor the two proclamations issued by John Adams.
Sources of Information:
Read Laban Wheaton’s argument for the No National Religion interpretation at http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=022/llac022.db&recNum=489
Read the official record of the 71 to 29 vote in 1811 in the House of Representatives in favor of James Madison’s interpretation of the establishment clause at http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=022/llac022.db&recNum=496
Read New York Representative Gulion Verplacnk’s 1832 speech on the subject of Presidential Religious Recommendations at [URL="http://memory.loc.gov/cgi-bin/ampage?collId=llrd&fileName=013/llrd013.db&recNum=490"]http://memory.loc.gov/cgi-bin/ampage?collId=llrd&fileName=013/llrd013.db&recNum=490[/URL]
Read the 1801 petition citizens and inhabitants of Wayne County, in the Northwest Territory praying for the support of the Gospel and for erecting the buildings necessary for the celebration of divine service. [URL]http://memory.loc.gov/cgibin/ampage?collId=llac&fileName=010/llac010.db&recNum=435[/URL]
Read about the 1802 announcement of Senator Uriah Tracy of Connecticut that he would ask leave to bring in a bill the nest day to carry into effect the support for schools and religion in the Northwestern Territory. The official records show that Tracy did not attempt to introduce the bill. [URL]http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=011/llac011.db&recNum=8[/URL]
Read about the 1802 appointment of a House committee to inquire into the matter of support of religion within the Territory of the United States Northwest of the river Ohio. The committee never reported the question to the floor.
Read about the Bill reported out of committee (but not passed) in 1828 that would have authorized the use of federal land in the State of Ohio for the support of religion.