Celebrating 17 years

Original Intent and The Free Exercise of Religion1

The purpose of this essay is to provide the reader with a summary of an alternate jurisprudence "model" to better understand and analyze the nature and sources of our rights and liberties found in the United States Constitution. The primary tenets of this jurisprudence model are: first, that natural law as referenced in the Declaration is the primary legal foundation of American constitutional law, rights and liberties; and second, as a corollary, that "original intent" is a more accurate basis for interpreting the Constitution and the Bill of Rights. As an example, the model will be applied to the First Amendment's guarantee to the free exercise of religion.

1. THE DOCTRINE OF ORIGINAL INTENT.

The doctrine of original intent relies upon long-settled rules of contract interpretation. "The first and fundamental rule in the interpretation of all instruments [documents] is to construe them according to the sense and the terms and the intentions of the parties."2

On every question of construction, carry [y]ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.3

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in the modern sense.4

In other words, in order to correctly understand what the parties to a contract intended, a court should look to the circumstances surrounding the execution of the contract, e.g., writings, phone calls, letters, memorandums, etc. In the same way, when analyzing any clause or amendment of the Constitution, the Supreme Court should first discover the "original intent" of the parties to the document by looking to the events surrounding the drafting and passing of the clause or amendment, including the records of the Constitutional convention and the writings of the Framers.

2. ORIGINAL INTENT: THE FRAMERS DID NOT INTEND THE SUPREME COURT TO BE THE ULTIMATE ARBITER OF ALL CONSTITUTIONAL ISSUES.

The doctrine of original intent holds that the legislature--not the judiciary--is the "predominant" branch5; that the judiciary was the "weakest" of the three branches of government.6 To the Founders, the opinion that the Supreme Court was the ultimate arbiter of all constitutional issues was "never proper,"7 and a "dangerous doctrine"8 which would lead to the judiciary becoming a "despotic branch."9 They were concerned that the federal judiciary would usurp all the powers from the States.10 This was the system of checks and balances implemented in the Constitution. Recall the Dred Scott decision in 185711 wherein the Supreme Court held that "a man of African descent, whether a slave or not, was not and could not be a citizen of a state of the United States." In other words, black slaves were not "persons" protected by the laws of the United States. In a collision of the federal branches, Abraham Lincoln issued the Emancipation Proclamation and the Congress passed the 13th amendment. Lincoln disregarded the Dred Scott decision because he did not wish to resign the future of the country "into the hands of that eminent tribunal."12 In other words, a century ago, our leaders believed that both the President and Congress had the Constitutional authority to pass "constitutional" laws or orders without waiting for Supreme Court review. And the President and Congress could disregard or overrule Supreme Court decisions that were contrary to natural law, like the Dred Scott decision, by issuing the Emancipation Proclamation and by passing the 13th Amendment, respectively. This was the original intent of the Framers concerning the checks and balances of our national government. Imagine the Dred Scott Court in the late 1800's declaring the Emancipation Proclamation "unconstitutional" or that the 13th amendment was not a "proper exercise" of Congress' powers.

Today, however, virtually everyone believes the "dangerous doctrine" that the Supreme Court is the ultimate authority on whether a law or policy is "constitutional." Legislation is not deemed "constitutional" until the Supreme Court has ruled. And for the Court to rule, a suit must be filed challenging the constitutionality of a statute. These suits are usually filed in federal court by an organization such as the ACLU which oftentimes uses the Court to further its own political agenda.13 A recent case in point: in January, 1997, the Congress, in response to its constituents and the concerns of parents, passed the Communications Decency Act (CDA) to protect children from pornography on the Internet. In keeping with its public position of favoring the rights of pornographers, the ACLU immediately filed a lawsuit in federal court arguing the CDA was "unconstitutional" in that it violated "free speech," i.e., pornography. In July, 1997, the Supreme Court declared the law unconstitutional and invalid.

3. ORIGINAL INTENT: THE FIRST AMENDMENT AND THE METAPHORICAL "WALL OF SEPARATION BETWEEN CHURCH AND STATE"

"Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. . . "

The Congressional Records from June to September, 1789 record the months of discussions and debates of the ninety Founding Fathers who framed the First Amendment. Significantly, during those debates not one of the framers ever mentioned the now infamous phrase "separation of church and state." The phrase, "separation of church and state" is not found in the U.S. Constitution, the First Amendment, nor any of the notes from the Constitutional Convention. In fact, the current application of the "separation" doctrine is a relatively recent concept rather than the enforcement of a long-held constitutional principle.

The primary occasion of the phrase "separation of church and state" dates back to a letter written in 1802 from then President Thomas Jefferson to the Baptist Association of Danbury, Connecticut. It is important to note that the letter was written fourteen years after the passage of the First Amendment; that Jefferson was in France at the time the Constitutional amendments (the Bill of Rights) were passed by Congress; and that he had no part in drafting or approving the First Amendment. In their letter to the President, the Danbury Baptists set forth their position 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: . . .and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights. . . .

In other words, the Baptists were concerned that the First Amendment's "free exercise" right was granted by the national government, rather than an unalienable right endowed by the Creator as Jefferson wrote in the Declaration of Independence. And if religion was a right granted by the government, the Baptists reasoned, government could regulate or prohibit religious activity in the marketplace. Jefferson shared their concern and replied by letter on January 1, 1802:

Gentlemen:

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and 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 and State. . . . I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced that he has no natural right in opposition to his social duties.14

Note that Jefferson refers to the free exercise of religion as a "natural right." Recall that in 1776 Jefferson wrote the Declaration of Independence which relied on the "Laws of Nature and Nature's God," "unalienable rights endowed by the Creator" and "the Supreme Judge of the World."15 Also note that Jefferson prayed at both of his inaugurations and he approved several measures appropriating federal funds to pay for missionaries to the Indians.16

Whatever Jefferson meant by the "wall of separation" phrase, he clearly did not intend the modern notion of an impenetrable wall preventing individuals from religious expression.

I consider the government of the United States as interdicted [prevented] by the Constitution from intermeddling with religious institutions, their doctrines, discipline or practices. Clearly, 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.17

In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it, but have left them, as the Constitution found them, under the direction and discipline of state and church authorities. . . .18

The "wall" was a jurisdictional limitation against the federal government's interference with an individual's natural right to the free exercise of religion. The federal government, reasoned Jefferson, has jurisdiction over "actions only and not opinions"; it had no jurisdiction over religion, which was a matter "solely between man and his God."

Further, on a facial review, the object of the First Amendment, which begins with the word "Congress", was clearly not intended to apply to the States. Rather the intent of the First Amendment's "establishment" clause was, according to Supreme Court Justice Joseph Story, ". . . to exclude all rivalry among Christian sects." 19 This is confirmed by the preliminary draft of the First Amendment proposed by James Madison to the House of Representatives in 1789:

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.20

According to the Secretary,

Mr. Madison thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.21

In sum, the object of the First Amendment was to prevent the national government from choosing one Christian sect [denomination] over another and establishing a single national denomination.

Moreover, the Framers intended the powers and limitations contained in the U.S. Constitution to apply only to the federal government and not to the States. For example, in the famous case of Barron v. Baltimore, the Plaintiff sued to apply the Fifth Amendment to the City of Baltimore. In its holding, U.S. Supreme Court Chief Justice John Marshall wrote:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. * * * If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.22

For over one-hundred and fifty years, this was the original intent regarding the scope and jurisdiction of the Constitution, the national government and the Bill of Rights.

However in 1947, the Supreme Court, in Everson v. Board of Education,23 used Jefferson's Danbury letter as a pretext to disregard centuries of legal tradition in the common law, the Declaration of Independence, the writings of the founding fathers, the notes and records of the Constitutional Convention and over a century of American constitutional jurisprudence. With the stroke of a pen, the Court created a new "law" by incorporating the Fourteenth Amendment (which dealt exclusively with specific State powers) with the First Amendment's federal provision against an "establishment of religion".

The result of this legal hocus pocus was devastating: first, the Court reversed 150 years of Constitutional precedent which limited the First Amendment's application to Congress, i.e., the national government; second, the Court declared that federal courts were now empowered to restrict not only the religious activities of the national government, but the religious expressions of the people and the States as well. Five years later in Zorach, the Court tried in vain to resuscitate the First Amendment's original intent:

We are a religious people who institutions presuppose a Supreme Being. When the state encourages religious authorities. . . it follows the best of our traditions. For it then respects the religious nature of our people. . . . To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious group. That would be preferring those who believe in no religion over those who do believe. . . .[W]e cannot read into the Bill of Rights such a philosophy of hostility to religion.24

"There is simply no historical foundation for the proposition," wrote Chief Justice Rehnquist in his dissent in Wallace v. Jaffree,25 "that the Framers intended to build the 'wall of separation' that was constitutionalized in Everson. But the greatest injury of the 'wall' notion," continued Justice Rehnquist, is the mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and state" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.26

Ultimately, however, the Everson case and its progeny prevailed.27

Although the First Amendment reads "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof. . ., " most of the Court's recent decisions in this area involve neither Congress nor the "making of a law." For example, in Lee v. Weisman, the Court equates a Rabbi at a high school graduation ceremony with "Congress" and Rabbi's prayer during the graduation ceremony as the "making of a law." Indeed, using the Court's criteria, the First Amendment is internally inconsistent: a person's right to "free exercise" of religion may now collide with the prohibited "establishment" of a religion.

Moreover, contrary to the intent of the Framers, the Court now believes that it alone has "secret knowledge" 28 to decide what is "constitutional" for the rest of the nation. For example, in Boerne v. Flores29 decided July, 1997, the Court held that Congress' attempt to protect the religious liberties of the people by passing the Religious Freedom and Restoration Act (RFRA) was "unconstitutional." In its holding the Court opined that RFRA was "not a proper exercise of Congress' enforcement power because it contradicts vital principles necessary to maintain separation of powers and the federal-state balance."

Finally, the Constitutional Framers understood that government encouragement of religion was not equal to the establishment of religion; that, as George Washington said, "religion and morality were indispensable supports" to political prosperity.30 Indeed, on the day the First Amendment was passed by the Congress in 1789, Washington accepted Congress' charge to proclaim a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." As Chief Justice Rehnquist opined in the Jaffree case, "History must judge whether it was the Father of our country in 1789, or. . . the Court . . . which has strayed from the meaning of the Establishment Clause."31

The fears of the Danbury Baptists have come true . The Supreme Court has become, in Jefferson's words, a "despotic branch." By rejecting natural law and the doctrine of original intent, the Court now assumes: first, that the State--not the Creator--grants men their fundamental (unalienable) rights, and second: since our rights are no longer "unalienable" they can be regulated or even abridged with impunity.

Two centuries after the First Amendment was approved, the Court now sits in judgment of our beliefs as a "national theology board"32 and uses the First Amendment as a "bulldozer of social engineering"33 to remove all religious expression from the marketplace of ideas. The Court no longer feigns adherence to the Founders' original intentions regarding the object of the First Amendment or the natural rights of the people found therein. Ironically, as predicted in Zorach, the Court now protects the rights of "those who believe in no religion over those who do believe" by engaging in the methodical religious sanitization of our institutions and communities. The Court has guaranteed freedom from religion as opposed to freedom of religion.

While our forefathers left us a legacy of faith, optimism and shared values, the Court has forced us to leave our children a moral wasteland littered with the refuse of cynicism, despair and anarchy.

Let us return to common sense--to natural law and original intent--before it is too late.

 

  1. The essay is adapted from a handout given to his students at UT Brownsville.
  2. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES Vol. III, p.. 383 §400 (1833). Justice Story was appointed to the U.S. Supreme Court by James Madison and served between 1811-1845. He was elected President of Harvard Law School and is considered by many to be the father of American jurisprudence due to his prolific contributions to American law.
  3. President Thomas Jefferson, Letter to Supreme Court Justice William Johnson, June 12, 1823.
  4. James Madison, Letter to Henry Lee, on June 25, 1824. Madison is considered the "father of the Constitution" by many Constitutional scholars.
  5. "In a republican government, the legislative authority necessarily predominates." James Madison, The Federalist #51.
  6. "... [T]he judiciary from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power . . . [and] the general liberty of the people can never be endangered from that quarter." Alexander Hamilton, The Federalist #78
  7. "As the courts are generally the last in making the decision [on laws], it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper." James Madison, Oct. 15, 1788.
  8. "To consider the [Supreme Court] judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. They have, with others, the same passions for party, for power and . . . privilege. Their power is the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal." Thomas Jefferson, Letter to William Jarvis, Sept. 28, 1820 (emphasis added).
  9. "The opinion which gives to the judges the right to decide what laws are constitutional and what are not, not only for themselves in their own sphere of action but the legislature and executive also in their spheres, would make the judiciary a despotic branch.." Thomas Jefferson, Letter to Abigail Adams, Sept. 11, 1804.
  10. "The germ of dissolution of our federal government is in . . . the federal judiciary; an irresponsible body (for impeachment is merely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States." Thomas Jefferson, Letter to Mr. Hammond, 1821.
  11. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).
  12. ". . . [T]he candid citizen must confess that if the policy of the government upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in civil actions, the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal." Abraham Lincoln, First Inaugural Address, March 4, 1861.
  13. Perhaps the most famous example is Roe v Wade, 410 U.S. 113 (1973) where the ACLU represented the Plaintiff to secure "abortion on demand." Ironically, the Plaintiff later admitted she was not pregnant at the time. The ACLU supports the following: legalization of child pornography (see The Policy Guide of the American Civil Liberties Union, 1986, p. 6-9), legalization of drugs, (Policy Guide at 260, 265), legalization of prostitution (Policy Guide at 261), and legalization of polygamy (Policy Guide at 175). In addition the ACLU opposes the following: voluntary school prayer (Policy Guide at 161-162), sobriety checkpoints (Policy Guide at 246-249, 267), religious displays in public (Policy Guide at 185-187), parental consent laws (Policy Guide at 345-346), prison terms for criminal offenses (Policy Guide at 307-308), parental choice in educational such as vouchers and home schooling (Policy Guide at 159-160), teaching "monogamous, heterosexual intercourse within marriage" in public schools (quoted in a letter from the ACLU to the California Assembly Education Committee, May 26, 1988). Excerpted from the excellent book on the ACLU entitled, GEORGE GRANT, TRIAL AND ERROR: THE AMERICAN CIVIL LIBERTIES UNION AND ITS IMPACT ON YOUR FAMILY (1989).
  14. THOMAS JEFFERSON, WRITINGS OF THOMAS JEFFERSON VOLUME XVI, PP. 281-282 (1904)
  15. Consistent with the Declaration, Jefferson believed that our rights and liberties were the gift of God. "The God who gave us life gave us liberty at the same time. . . .And can the liberties of a nation be thought secure if we have lost the only firm basis, a conviction in the minds of the people that these liberties are the gift of God? That they are to be violated but with His wrath?" THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA, QUERY XVIII (1794).
  16. WALTER LOWRIE, ED., AMERICAN STATE PAPERS VOL. IV P. 687 (1832).
  17. THOMAS JEFFERSON, JEFFERSON'S WRITINGS (1905).
  18. Thomas Jefferson, Second Inaugural Address (1805) (emphasis added).
  19. STORY, COMMENTARIES Vol. III, p. 728, §1871. Justice Story continues, ". . . the whole power over the subject matter of religion is left exclusively to the State governments to be acted upon according to their own sense of justice and the State constitutions." STORY, COMMENTARIES VOL. III P. 731 §1873.
  20. Proposed by James Madison, June 8, 1789, (Annals of Congress, 1:434-435) (emphasis added). See http://www.louisville.edu/~tnpete01/church/basic4a.htm.
  21. Id.
  22. Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, 8 L.Ed 672 (1833).
  23. Everson v. Board of Education, 330 U.S. 1, 18 (1947).
  24. Zorach v. Clauson, 343 U.S. 306 (1952).
  25. Wallace v. Jaffree 472 U.S. 38 (1985), Rehnquist, J. (dissenting).
  26. Jaffree at 92, Rehnquist, J. (dissenting).
  27. Examples include: McCollum v. Board of Education, 333 U.S. 203, 212 (1948) where the Court assumed "the role of a super board of education for every school district in the nation"; Engel v. Vitale, 370 U.S. 421 (1962) and School District of Abington v. Shempp, 374 U.S. 203 (1963) where the Court, without citing any precedent, struck down voluntary public school prayer by showing its contempt for the Founders' views on the First Amendment when it opined that "prayer seems relatively insignificant when compared with the governmental encroachments upon religion which were commonplace 200 years ago"; Stone v. Graham, 449 U.S. 39 (1980) where the Court held that the posting of the Ten Commandments in a public school violated the Establishment clause even though the Supreme Court itself is decorated with Moses holding the Ten Commandments; Wallace v. Jaffree 472 U.S. 38, 92 (1984), and Lee v. Weisman, 120 L.Ed. 2d 467 (1992) where the Court introduced a new test: the "psychological coercion" test . Under Weisman when in the event a single individual is uncomfortable or feels that he is being "psychologically coerced" (such as a Rabbi reading a prayer at a high school graduation) the activity is unconstitutional.
  28. "What secret knowledge is breathed into lawyers when they become Justices of this Court, that enables them to discern that a practice which the text of the Constitution does not clearly proscribe, and which our people have regarded as constitutional for 200 years, is in fact unconstitutional?" O'Hare Truck Service, Inc. v. City of Northlake, No. 95-191 (1996) SCALIA, J., dissenting.
  29. City of Boerne v. Flores, Archbishop of San Antonio, et al., (1997). RFRA was Congress' attempt to restore the "compelling interest test" which was rejected in Employment Division, Department of Human Services v. Smith, 494 U.S. 872 (1990) where the Court held that state is no longer required to apply the "compelling interest" test to determine whether a state may burden an individual's right to the free exercise of religion.
  30. George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (1796).
  31. Jaffree at 113-114, Rehnquist, J. (dissenting).
  32. Count of Allegheny v. ACLU, 106 L.Ed 2d 472, 547-548 (1989), Kennedy, J. (concurring in judgment in part and dissenting in part).
  33. Lee v. Weisman at 509, 514, Scalia, J. (dissenting).