What ‘wall of separation’?
First a quick civics lesson. The section of the Constitution that deals with religion is Amendment I of the Bill of Rights – the first 16 words of it, anyway.
There’s the “Establishment Clause” (“Congress shall make no law respecting an establishment of religion”) and the “Free Exercise Clause” (“or prohibiting the free exercise thereof”).
The “Establishment Clause” – that’s the one today’s courts almost always focus on – simply prohibits the federal government from “establishing” a national church, or from interfering with the established churches in the states! (Remember, several states already had state-supported “establishments of religion.”)
Possibly you wonder whether the issue is really this cut-and-dried. After all, for the last half-century, judicial activists on the Supreme Court and lower courts, ACLU lawyers, the press and the secular culture in general have embraced “the constitutional separation of church and state” as though it actually existed somewhere in the Constitution. Of course, none of these words – “separation,” “church” or “state” – are in the First Amendment.
Let’s go back in time and witness the conversation among those who debated and approved the wording of the Bill of Rights, and find out what they really meant.
The date is June 8, 1789. James Madison – key architect of the Constitution and a leading member of the First Congress – is proposing the following wording for what ultimately will become the religion clauses of the First Amendment:
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
The representatives debate this for a bit, and then turn it over to a committee consisting of Madison and 10 other House members, which comes up with a new version:
“No religion shall be established by law, nor shall the equal rights of conscience be infringed.”
More debate. Madison explains that “he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”
Rep. Benjamin Huntington complains the proposed wording might “be taken in such latitude as to be extremely hurtful to the cause of religion.” So Madison suggests inserting the word “national” before the word “religion,” to assuage the fears of those concerned over the establishment of a national religion – and of being compelled to conform to it. (After all, wasn’t that precisely the reason their forefathers the Puritans had come to America in the first place – to escape the tyranny of England’s compulsory state religion?)
But Rep. Gerry balks at the word “national,” because, he argues, the Constitution created a federal government, not a national one. So Madison withdraws his latest proposal, but assures Congress his reference to a “national religion” had to do with a national religious establishment, not a national government.
A week later, the House again alters the wording this way:
“Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”
Meanwhile, the Senate debates other versions of the same amendment and on Sept. 3, 1789, comes up with this wording:
“Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.”
The House doesn’t like the Senate’s changes and calls for a conference, from which emerges – finally – the wording ultimately included in the Bill of Rights:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
OK, now that we’ve “witnessed” the debate over the First Amendment, do you really think the Founding Fathers wanted to make kids into criminals for saying “Merry Christmas” at school? Did they intend for the Supreme Court to outlaw prayer in the nation’s learning institutions, when all of their own congressional sessions to this very day open with a prayer?
Of course not. In fact, Joseph Story, appointed by President James Madison to the Supreme Court in 1811, where he served for the next 33 years until his death, explained exactly how the high court regarded the First Amendment in his celebrated “Commentary on the Constitution of the United States”:
- Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
The real object of the [First Amendment] was, not to countenance, much less to advance Mahometanism [Islam], or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.
Even today, Supreme Court Chief Justice William Rehnquist, in reviewing the same 1789 First Amendment deliberations you just “witnessed” comes to the same conclusion as Story:
- On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the House of the Amendments which became the Bill of Rights … His original language, “nor shall any national religion be established,” obviously does not conform to the “wall of separation” between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language – “that Congress should not establish a religion, and enforce the legal observation of it by law” is of the same ilk. …
It seems indisputable from these glimpses of Madison’s thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion. …
Rehnquist adds tellingly that “None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them … would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly. …”
Oh, by the way, as if to thumb its nose through time at the ACLU two centuries later, the very day after the House of Representatives adopted the First Amendment’s religion clauses, Rep. Elias Boudinot proposed a resolution asking the president, George Washington, to issue a national Thanksgiving Day Proclamation.
Boudinot said he “could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them.”
On Sept. 25, 1789, Boudinot’s resolution was passed, and within two weeks Washington responded with the following Presidential Proclamation. Read it carefully:
- Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.
These inspiring words from the father of our country would no doubt have inspired a lawsuit threat from the ACLU had the group been around then.
What happened to God?
For the next 150 years or so, America’s judiciary interpreted the First Amendment in accord with what you have just read – as prohibiting the establishment of a single national denomination. Court rulings and public policies reflected that common understanding.
But then, halfway through the last century, something happened which changed all that.
This “something” first showed its face in 1947, in the landmark Supreme Court case Everson v. Board of Education. Speaking for the majority, and without citing previous case law to support the court’s decision, Justice Hugo Black announced a new and previously unknown legal principle: “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.”
Ever since then, the high court’s rulings have progressively and relentlessly aimed at removing every vestige of Christian words, imagery or symbolism from public property.
From the decisions during the 1960s outlawing school prayer and religious instruction in the nation’s schools to today’s surreal court battles over whether it’s OK for school kids to pledge allegiance “Under God,” today’s judiciary interprets the First Amendment in a radically different way than did their predecessors during America’s first one-and-a-half centuries.
Time to ask some disturbing questions.
First, about these judges. When they create legislation through judicial fiat that no legislature in the nation could, or would, dare enact – as the Massachusetts Supreme Judicial Court did in November 2003 when it mandated same-sex marriage in that state – do these judges realize what they’re doing? Do they understand that they’re flouting the U.S. and state constitutions, violating their oaths of office daily, betraying the trust of current and future generations of Americans, and usurping power that’s not legally theirs?
You might think: How could they not know? After all, these judges are virtually all lawyers and supposedly constitutional scholars. They’ve sworn an oath to uphold the Constitution. Before rendering a decision they presumably have conducted a thorough investigation into what the Constitution says – and means – about the matter at hand.
Keep in mind that, despite what you may have been led to believe, it’s a simple task to ascertain the original meaning of any part of the Constitution or its amendments. We’ve more or less demonstrated that in these pages by briefly examining the debate over the First Amendment’s religion clauses. The Constitution is not long, mystical and transcendent like the Bible, open to all sorts of conflicting interpretations. Rather, it is a short, clear, relatively recent, English-language contract that was written for the average person. Its original intent is an open book and therefore beyond reasonable dispute.
How about some more specific questions:
- How can Supreme Court Justice Ruth Bader Ginsburg, sworn to uphold the U.S. Constitution, proclaim that she and her fellow justices are now looking to international law to guide their decisions, as she did in a 2003 speech to the American Constitution Society? “Our island or lone-ranger mentality is beginning to change,” she proclaimed, adding that justices “are becoming more open to comparative and international law perspectives.”
- Similarly, how could Justice Stephen Breyer, on ABC News’ “This Week,” question whether the Constitution will be sufficient to governing America in the future? Breyer said to host George Stephanopoulos: “We see all the time, Justice O’Connor and I, and the others, how the world really – it’s trite but it’s true – is growing together. Through commerce, through globalization, through the spread of democratic institutions, through immigration to America, it’s becoming more and more one world of many different kinds of people. And how they’re going to live together across the world will be the challenge, and whether our Constitution and how it fits into the governing documents of other nations, I think will be a challenge for the next generations.”
- Say what? “… whether our Constitution”? “… how it fits”? What happened to the Constitution being the “supreme law of the land”?
- How does the Supreme Court justify mountains of federal gun control laws when justices know very well the original intent of the 2nd Amendment was to guarantee to the individual an unfettered (“shall not be infringed”) right to use firearms to defend himself and his family – whether from criminals, or, as was the Founders’ greater concern, from tyrannical government?
- How did Justice Harry Blackmun, who wrote the majority opinion in the most controversial Supreme Court decision in history, Roe v. Wade, divine the right to abortion from the 14th Amendment’s supposed “right to privacy,” when there simply is no right to privacy in the 14th Amendment or anywhere else in the Constitution?Let’s pause for a moment on Roe v. Wade – a decision that opened the door to over 40 million abortions. If we’re exploring how and why judges feel perfectly justified in ignoring the Constitution’s original intent, let’s consider one illuminating little story involving Blackmun, the hero of Roe v. Wade, and his pregnant daughter.In March 2004, when Blackmun’s private papers were finally released to the public decades after the momentous 1973 Roe decision, his daughter, Sally Blackmun, revealed something remarkable.
Talking to Womens Enews, Sally Blackmun disclosed for the first time that her father consulted with members of his family after being assigned responsibility for writing the majority opinion on Roe v. Wade.
“Roe was a case that Dad struggled with,” Blackmun told the feminist news service. “It was a case that he asked his daughters’ and wife’s opinion about.”
Most pertinent among those opinions would have been Sally’s. Seven years before Roe v. Wade, while she was a 19-year-old sophomore at Skidmore College in Saratoga Springs, N.Y., Sally Blackmun discovered she was pregnant.
“It was one of those things I was not at all proud of, that I was not at all pleased with myself about. It was a big disappointment to my parents,” she told Womens Enews. “I did what so many young women of my era did. I quit college and married my 20-year-old college boyfriend. It was a decision that I might have made differently had Roe v. Wade been around.”
Shortly after the wedding, Sally Blackmun lost her child to a miscarriage. Although it took six years to complete her graduation requirements, she questions whether she would have graduated at all had her child been born. Getting pregnant had caused a major dent in the life she had planned. In those same six years, her hastily formed marriage collapsed. By then it was 1972 – the same year her father sought her input on Roe.
At the time of the Roe decision, Sally Blackmun lived and worked in Washington, D.C. Although Supreme Court decisions are generally made without advance announcement, Justice Blackmun notified his daughter so she could be present in court when the decision was read.
“I remember that it was very tense in the courtroom, very crowded. The decorum is such that people aren’t yelling and screaming and carrying on. We didn’t know how he was going to come down on it. And I was very pleased with the decision and the fact that it gave women that right of choice,” Blackmun told Womens Enews. “Dad always felt that it was the right thing to do and the necessary thing to do toward the full emancipation of women in this country. So we certainly were in favor of what he did.”
The obvious question: Did U.S. Supreme Court Justice Harry Blackmun’s passion for championing abortion rights have anything at all to do with his own daughter’s out-of-wedlock pregnancy experience and the pain, embarrassment and trauma it caused the Blackmun family? Do we need to guess what sort of advice Sally – who later became an attorney and chairwoman of Planned Parenthood of Greater Orlando – might have given her father? And is this how a Supreme Court decision, especially one responsible for over a million abortions ever year for three decades, is supposed to be made?
Is this what we’ve come to? Judges just make rulings based on their personal whims, emotions and family traumas, oblivious to the fact that they’re changing the course of history in profound and destructive ways?
How did we get from having justices like Joseph Story, who reverenced the Constitution and honored the intent and wisdom of the founders, to today’s justices? While a minority of modern judges are principled, many are simply unfettered by the Constitution.
Do you really want to know what happened in the mid-20th century that caused the Supreme Court to lose its prior allegiance to higher principles? The answer to this question is as obvious as it is unsettling: America as a whole was drifting away from its prior allegiance to higher principles.
Want to know how the Supreme Court could crank out its revolutionary 1962 ruling that outlawed school prayer and its 1963 decision banning Bible reading, religious classes and religious instruction in the nation’s schools? Just look at what was going on in Middle America at the same time.
‘Is God Dead?’
The cover of the April 8, 1966, issue of Time magazine – perhaps its most controversial edition ever – said it all. On a black background, giant red letters trumpeted the scandalous question: “Is God Dead?”
“There is an acute feeling that the churches on Sunday are preaching the existence of a God who is nowhere visible in their daily lives,” wrote Time reporter John T. Elson, surveying the religious malaise and uncertainty of mainstream Christianity during the 1960s. Leader after religious leader expressed doubt and confusion about the faith of their fathers. Even Francis B. Sayre, then Episcopal dean of Washington’s famed National Cathedral, admitted, “I’m confused as to what God is – but so is the rest of America.”
In light of the nation’s identity crisis during the 1960s, is it so shocking that the Supreme Court would lose its moorings and drift into uncharted legal waters?
Read a little more of what Time had to say:
- Lutheran Church Historian Martin Marty argues that all too many pews are filled on Sunday with practical atheists – disguised nonbelievers who behave during the rest of the week as if God did not exist. …
“I love God,” cries one anguished teen-ager, “but I hate the church.” Theologian Langdon Gilkey says that “belief is the area in the modern Protestant church where one finds blankness, silence, people not knowing what to say or merely repeating what their preachers say.” …
Says Marty’s colleague at the Chicago Divinity School, the Rev. Nathan Scott, who is also rector of St. Paul’s Episcopal Church in Hyde Park: “I look out at the faces of my people and I’m not sure what meaning these words, gestures and rituals have for them.” …
In search of meaning, some believers have desperately turned to psychiatry, Zen or drugs. Thousands of others have quietly abandoned all but token allegiance to the churches, surrendering themselves to a life of “anonymous Christianity” dedicated to civil rights or the Peace Corps. Speaking for a generation of young Roman Catholics for whom the dogmas of the church have lost much of their power, philosopher Michael Novak of Stanford writes: “I do not understand God, nor the way in which he works. If, occasionally, I raise my heart in prayer, it is to no God I can see, or hear, or feel. It is to a God in as cold and obscure a polar night as any non-believer has known.”
Whoa, talk about a fiery faith! With shepherds like this, no wonder the 1960s flock was scattered and befuddled. No wonder Eastern and cultic religious movements, from Transcendental Meditation to Hare Krishna, flourished and proliferated. And no wonder government, especially the judiciary, became intoxicated with the idea that it could create a more perfect world by enlarging its scope and power.
There was a spiritual vacuum in America – and government, as it usually does, came whooshing in to fill it.
Time’s analysis went on to explain that, in America, faith was being replaced by a new source of wisdom and truth – namely, science. “The rebellion against this God of faith is best summed up by the word secularization,” wrote Elson, who noted that the prestige of science had become so great that it had come to dominate other areas of life.
- In effect, knowledge has become that which can be known by scientific study – and what cannot be known that way somehow seems uninteresting, unreal. In previous ages, the man of ideas, the priest or the philosopher was regarded as the font of wisdom. Now, says [Anglican theologian David] Jenkins, the sage is more likely to be an authority “trained in scientific methods of observing phenomena, who bases what he says on a corpus of knowledge built up by observation and experiment and constantly verified by further processes of practice and observation.”
In other words, faith was out as a basis for governing our lives or country. In light of this zeitgeist among America’s elite – and believe me, Supreme Court justices live among the elite – is it any wonder that genuine respect for a Constitution and Bill of Rights that were largely the result of a Christian worldview would drastically diminish?
Wouldn’t this seismic shift in worldviews, with its worship of scientific progress and dismissive attitude toward traditional faith, fit perfectly with the notion at the heart of all judicial activism that the Constitution is a “living, breathing” – and therefore changing – document?
What’s wrong with living and breathing?
Times do change. The world has been radically transformed by technology. We don’t keep slaves any more. So what’s wrong with regarding the Constitution as a “living, breathing” document as, indeed, a great many people do today?
Of course, the Constitution can be changed through the amendment process – as it has 17 times since the adoption of the first 10 amendments in the Bill of Rights. But the idea of a “living” Constitution is very different; it means the contract between America and her government is to be “interpreted” anew by each generation.
Here’s the problem: Though our technology, knowledge base and culture have all changed dramatically over the centuries, human nature and human character weaknesses haven’t changed a bit. Objective reality – “the Laws of Nature and of Nature’s God” as the Declaration of Independence puts it – hasn’t changed. The Bible and the 10 Commandments haven’t changed. The universal appeals to man’s pride – ambition, greed, lust, envy, power – haven’t changed. Specifically, the tendency for too much power to corrupt those entrusted with it has most definitely not changed.
Thus the need for strictly constitutional government with clearly defined and limited powers is still necessary, because, despite our advances, absolute power still corrupts absolutely.
Unfortunately, in today’s America, the judiciary has assumed something approaching absolute power.
Without question, there are some fine judges in America today, including several on the Supreme Court. But far too many see themselves, not as humble servants and guardians of a sacred, 200-plus-year-old contract between Americans and the government they created, but rather as high priests of a new order, chosen to chart the path of civilization in the new, globalist, more enlightened world.
It’s their job – their destiny, or so they think – to help us lesser folk make the transition from the old days of wooden ships, muskets and Indians to today’s world of microchips, speed-of-light communications and the long march of man.
Of course, the illogic in all this is that if the Constitution – meant to be the standard by which we measure all other laws, rulings and so on – can be changed on the whim of the current court, then we really have no Constitution.
Continued on next page…
