THE JUDICIAL STANDARD EMERGING FROM COLONIAL POLITICAL AND RELIGIOUS HISTORY TO BE APPLIED TO CONSTITUTIONAL CHALLENGES BASED ON THE RELIGION CLAUSES OF THE FIRST AMENDMENT
Tayra de la Caridad Antolick
© May 2002
*The Law and Liberty Foundation gratefully acknowledges the author's permission to use this Brief as part of the Foundation's mission of "education in the public interest." (Click on the author's name above to read about her.) The popular idea of Separation of Church and State is one of the most intellectually dishonest, and legally indefensible ideas to ever come down the pike. I intend to make this "required reading" for my political science classes. John Sterling
The current use of the “wall of separation” between church and state as a legal defense for the removal of the expression of American religious culture from governmental institutions and the prohibition of the free exercise of individuals working within them goes contrary not only to the original intent of the Founders and the Framers but also to the religious, political, and legal history and traditions of the United States of America. Courts, county school boards, teachers, and individuals, unwittingly devoid of the knowledge of the substantial role religion (primarily Protestant Christianity) played in the birth and formation of the United States are taking the Establishment Clause of the First Amendment beyond its scope: they are using it as a weapon against the free exercise of religion and abusing it by extending its interpretation beyond separating the jurisdiction of each institution. If the historical reasons or contentions for the separation of church and state were to be applied to the Establishment Clause as they were argued, it can be deduced that neither Congress nor any state legislature, after the incorporation of the First Amendment to the states, has never violated the clause, since there has never been a governmental declaration of a legally recognized national denomination or religion. The two jurisdictions have remained separate since the beginning. However, the presence of American religious culture within the public sphere has also been present since the birth of this country. Therefore, the “separation of church and state” can only be interpreted as the separation of jurisdiction of each institution and not the separation of the American religious culture from the public sphere.
Since the Supreme Court ruled in Everson v. School Board of Education, 330 U.S. 1 (1947), “separatists” have increasingly used the legendary phrase and the Establishment Clause to chisel away at this nation’s religious heritage from the public arena, especially in public primary and secondary schools, encompassing an age when a child’s development and formation of moral values is crucial. This thesis will argue that a historical standard or test emerges from the original intent of the Framers, extracted from historical documents. The standard, though simple, is not simplistic; it condenses from the fervent arguments of those whose right to religious freedom of conscience was threatened. Applying this standard to constitutional challenges based on the religion clauses of the First Amendment will help to halt “separatists” from eradicating religion from the public sphere and bring consistency to court rulings without vanishing America’s religious heritage into historical and political obscurity.
The purpose of the First Amendment was to separate the legal institutions of church and the state, not to separate or eradicate religious expression from or within governmental institutions. Evidence from the Journal of the Continental Congress, Supreme Court decisions, historical documents, and the lives and actions of the Founders and Framers support the conclusion that the terminology they used in legal documents and the religious principles they practiced while holding public office do not support that their original intent was to separate religion (Christianity) from the public sphere, but rather that the separation was to be between the civil and religious institutions. The Ten Commandments and certain books of the Torah (Pentateuch), which are revered in Christianity and Judaism, respectively, are more than religious documents; they are historical documents from which much of Western civilization derives its laws. To deprive Americans of the historical and literary importance religion has in the founding of this country is as damaging as withholding from their academic experiences any other historical document which contributed to the formulation of the American legal system. That current separation doctrine allows for the teaching of religious documents within history and literature brings to question why there is so much litigation when they are taught within those parameters. If the violation occurs when they are taught as revealed truth, then the mere posting or engraving of Biblical phrases should not present a problem. Much of this type of litigation would be frivolous if the citizenry were more knowledgeable about the importance of religion, mainly Protestantism, and the actual issues that precipitated the two clauses. Diligently investigating American history will unearth that the intent of the Establishment and Free Exercise Clauses as applied today is much different from what the Framers envisioned.
The original intent of the Framers is neither indiscernible nor unattainable; it can be deduced from historical documents. Numerous Supreme Court opinions refer to the intent of the Framers in formulating their arguments. Of all the legal topics for which original intent may be sought and deduced, the area covering the Establishment and Free Exercise Clauses are the simplest to decipher because the contentions are few and clear, and supported by an abundance of historical and legal material. The religious prohibitions enforced today do not find their strength in history, the Bill of Rights, or the Constitution. There is a preponderance of evidence in early American documents supporting the conclusion that the separation of these two institutions was to be the severance of the legal alliance between them, not the disunion of religious and legal principles that promote social order, a mutual interest of both institutions.
ASCERTAINING ORIGINAL INTENT
The overwhelming evidence behind the Establishment and Free Exercise Clauses reaches far back into American colonial history. In the colonies, dissident Christians, such as the Baptists and Quakers, suffered much persecution because their religious conscience ran contrary to the beliefs sanctioned by colonial governments, some of which were tied to religious institutions. After the Revolutionary War, religious dissenters were concerned that the federal government would charter or create a national church. In fact, their concern was more like dread. Justice Joseph Story pinpoints the origin and nature of the trepidation:
We are not to attribute this prohibition [on the federal government] of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to a dread by the people of the influence of ecclesiastical power in matter of government; a dread, which their ancestors brought with them from the parent country, and which, unhappily for human infirmity, their own conduct, after their emigration, had not, in any just degree, tended to diminish…Probably, at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement 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. 
According to Story, the First Amendment, drafted to restrict the power of the federal government, is to eliminate the temptation so easily available to those in power: to legislate the exclusivity of that power. Thus, the legal separation of the institutions of church and state is imperative, accomplished by commissioning the Establishment Clause of the First Amendment as guardian over the Free Exercise Clause and placing the freedom of religion among the first fundamental freedoms mentioned in the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The phrase “separation of church and state,” however, is nowhere to be found in the document and yet, it has become an appendage to it, to which the courts have progressively given equal weight. With the incorporation of the First Amendment via the Fourteenth Amendment, the several states are likewise prohibited from proclaiming a religious sect as the state-sanctioned religious institution. Prior to the Fourteenth Amendment, however, the states were free to establish a state church.
Also not mentioned in the Constitution is the prohibition on federal and state employees from exercising their religious freedom or their constitutionally protected fundamental right of religious speech—whether it be informational or persuasive, written, oral, or symbolic—while performing their employment duties. Finally, there is no textual evidence that the Constitution explicitly or implicitly prohibits non-state employees—private citizens, including children—from exercising the same rights should they be exercised on government property, such as carrying a Bible or writing about a biblical story for a class assignment.
The people of the United States have tacitly consented to adhere to the Constitution since its ratification, thus heightening the importance of understanding the vision the Framers concerning the First Amendment. As with any historical document, its clearest meaning is obtained by studying the events, language, and social context in which it was written. These set the parameters within which a historical document will reveal its most accurate, initial meaning. It would be improper to superimpose contemporary language use and events upon a historical document to derive its interpretation, and since the country’s political and legal foundations along with individual freedoms are at stake, it is imperative that those using the Constitution as a legal defense are intimately familiar with the historical parameters within which it was written to derive its most accurate meaning.
Some say, however, that the original “intent” of the Framers is irrelevant; since they are long gone, what they intended is no longer applicable. Others like Justice Brennan say that the meaning of the Constitution is evolving, changing according to what it means in our time. Justice Brennan feels “[it] is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions.”  Raoul Berger quotes A. S. Miller as saying that the Constitution should be left “to succeeding generations…to rewrite the ‘living’ Constitution anew.”  However, the Constitution cannot be rewritten if it is to remain the standard against which deviance is to be measured. The “specific, contemporary questions” are the ones changing, not the Constitution. That particular facts change over the years does not mean that the standard against which they are measured has to change along with them. Modern facts can still be judged against the initial concept the Framers had in mind precisely by studying the conclusions they derived when they applied the Constitution to their own contemporary facts. Perhaps in doing so, Supreme Court opinions would be more consistent and less troublesome to legislators and the legal profession.
It is misleading to say that the attempt to accurately gauge the intent of the Framers is arrogant and impossible, for some of them speak contrary to Brennan. Alexander Hamilton is quoted as saying that “[t]o avoid arbitrary discretion in the courts, it is indispensable that they [the judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them”  (emphasis in the original). Justice Brennan would agree that the courts should be bound to precedence; however, the rules and early precedence then applied to generate it should be the guide and standard because of their proximity to the ratification of the Constitution. Furthermore, those who witnessed or participated in its creation were the ones applying the rules and precedence to their contemporary issues. It is not inconceivable that to Hamilton, an evolving Constitution was far from “strict rules and precedents”; the Constitution was the strict rule.
Justice Joseph Story, one of the fathers of American jurisprudence, quotes Justice Blackstone on the interpretation of the Constitution as follows:
§ 400. I. The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties. Mr. Justice Blackstone has remarked, that the intention of a law is to be gathered from the words, the context, the subject matter, the effects and consequence, or the reason and spirit of the law. He goes on to justify the remark by stating, that words are generally to be understood in their usual and most known signification, not so much regarding the propriety of grammar, as their general and popular use; that if words happen to be dubious, their meaning may be established by the context, or by comparing them with other words and sentences in the same instrument; that illustrations may be further derived from the subject-matter, with reference to which the expressions are used; that the effect and consequence of a particular construction is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted; and that the reason and spirit of the law, or the causes, which led to its enactment, are often the best exponents of the words, and limit their application. 
That the “spirit of the law” be considered in interpreting the Constitution does not mean that the Constitution itself should be “rewritten” as society evolves. In fact, saying that the Constitution is a “living” document is a misnomer that defeats the purpose of the document, which is to be the standard against which all laws are measured. A standard cannot change; only the facts to which it is applied do. What is, therefore, the “spirit” of the Establishment and Free Exercise clause? By studying the arguments ardently presented by those whose religious liberty was at stake, the “spirit” was to prohibit the legislative declaration of a national church, to keep the legal institutions of church and state separate so that there would be no religious “test” to run for or hold public office, and to prohibit religious taxation of people who were not represented within the denomination imposing the tax. That “spirit” has not changed and it can be applied today to a myriad of scenarios regardless of the particular facts of the case. To avoid “literal meanings [that] would involve a manifest absurdity,” there is no better guide to constitutional meaning than early jurisprudence, legislative enactments, and the plain, ordinary meaning of words within their cultural contexts.
The Oxford English Dictionary offers the definition of the word “establish” as used in colonial times:
I. Action or means of establishing.
1. The action of establishing; the fact of being established: in various senses of the vb. 1688 Col. Rec. Penn. I. 226 That such Sanction and Establishment may be as Effectual and binding as any Law. 1739 BUTLER Serm. Wks. (1874) II. 225 The bare establishment of Christianity in any place...is a very important and valuable effect. 1788 W. GORDON (title) The History of the rise, progress and establishment of the United States of America.
2. esp. The ‘establishing’ by law (a church, religion, form of worship). (See ESTABLISH v. 7.) a. In early use, the settling or ordering in a particular manner, the regulating and upholding of the constitution and ordinances of the church recognized by the state. b. In 17th-18th c. occasionally the granting of legal status to (other religious bodies than that connected with the state). c. Now usually, the conferring on a particular religious body the position of a state church. 1640-1 LD. DIGBY Sp. in Rushw. Hist. Coll. (1721) IV. 172 A Man…that made the Establishment by Law the Measure of his Religion. 1706-7 Act 5 Anne c. 5 Securing Ch. Eng., Acts of Parliament now in Force for the Establishment and Preservation of the Church of England. 
7. From 16th c. often used with reference to ecclesiastical ceremonies or organizations, and to the recognized national church or its religion; in early use chiefly pass. in sense (esp. in phrase by law established, i.e., ‘prescribed or settled by law’)…Hence, in recent use: To place (a church or a religious body) in the position of a national or state church. 1660 CHAS. II Declar. Eccl. Affairs 25 Oct 8 The…esteem we have for the Church of England, as it is established by Law. 1731 CALAMY Life (1830) I. i. 73 Opposition to the church by law established. 1731 SWIFT Presbyterian’s Plea Merit Wks. 1776 IV 260 Which [Presbyterian] sect was established in all its forms by…an ordinance of the lords and commons.
Definitions 2 and 7 are of particular interest because they make a clear connection between the establishment of a church or religion with the state through law. The colonial usage of the word clearly shows that in relation to a church or religion, the word “establish” or “establishment” has no application other than a declaration by the legislative branch giving a religious organization exclusive recognition and privilege.
There are several examples where political leaders have emphasized the importance of the plain understanding of words used at the time of ratification. In his inaugural address, Thomas Jefferson promised to oversee the Constitution “according to the safe and honest meaning contemplated by the plain understanding of the people at the time of its adoption—a meaning to be found in the explanations of those who advocated [it]”  (emphasis added). In ascertaining the meaning of the word “commerce,” Chief Justice Marshall stated in Gibbons v. Ogden that all Americans understood the meaning of the word as they used it at the time of the ratification:
To ascertain the extent of the power [of Congress to regulate commerce], it becomes necessary to settle the meaning of the word [commerce]…Commerce, undoubtedly, is traffic, but it is something more—it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse… if commerce does not include navigation, the government of the Union has no direct power over that subject…All America understands, and has uniformly understood, the word “commerce” to comprehend navigation. It was understood, and must have been so understood, when the Constitution was framed…The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late. 
Justice Sutherland in Euclid v. Ambler Co., 272 U.S. 365 at 387 (1926) stated, “the meaning of the constitutional guaranties never varies, [although] the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operations.” The meaning that “never varies” must be referring to the original intent of the Framers, which is knowable to a great degree through the study of their political and personal actions, beliefs, and statements within the culture and events from which it emerged. Thus, the immutable meaning of any constitutional principle must determine whether the varying contemporary issues to which it is applied are constitutional. The importance of the original intent is so great that James Madison gave this warning: “[if] the sense in which the Constitution was accepted and ratified by the Nation… be not the guide in expounding it, there can be no security for a consistent and stable [government], more than for a faithful exercise of its powers.”  That “sense” is derived from the original intent embedded in the culture and events that generated it. The “sense” which is embodied in the Establishment and Free Exercise clauses is clear and narrow; its historical conception is easily identified and defined. In his book, Taking Rights Seriously, Ronald Dworkin illustrates the existence of “conceptions” within each concept presented in the Bill of Rights. According to him, the principles, concepts, or “sense” in the Constitution and especially in the Bill of Rights, carry within them a number of different “conceptions.” He gives the example of the concept of “fairness.” Within it, there are many conceptions of what constitutes fairness. He recounts his example thus:
Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind examples of the conduct I mean to discourage, but I would not accept that my “meaning” was limited to these examples, for two reasons. First, I would expect my children to apply my instructions to situations I had not and could not have thought about. Second, I stand ready to admit that some particular act I had thought was fair when I spoke was in fact unfair, or vice versa, if one of my children is able to convince me of that later; in that case I should want to say that my instructions covered the case he cited, not that I had changed my instructions. I might say that I meant that family to be guided by the concept of fairness, not by any specific conception of fairness I might have had in mind  (emphasis in original).Dworkin argues that judges can use political philosophy to decide what a conception of a concept might be. He states that the constitutional text only provides concepts like due process, cruel and unusual punishment, and free exercise of religion. The document does not, however, provide the conceptions within those concepts. It is precisely because of the lack of textual “conceptions” that we must intently look at early American history to articulate them.
In his scenario, Dworkin states that he has in mind examples (the conceptions) of fairness (the concept). It is therefore not unreasonable to infer that for a concept to be conceived there must be an initial conception, at least one conception that generates the concept; concepts are not generated in a vacuum. There must be at least one conception of fairness to generate an inclusive concept of fairness; there must be at least one conception of due process or commerce for their concept to be birthed. That initial conception sets the parameters for the others following, determining whether they legitimately belong within the concept. The same applies to the two clauses of the First Amendment at issue as well as to the word “religion” itself. In Reynolds v. United States, 98 U.S. 145 at 162 (1879), Chief Justice Morrison R. Waite found it necessary to go outside the Constitution to determine the meaning of the word “religion”: “We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed” (emphasis added). Eleven years later, the Court in Davis v. Beason, 133 U.S. 333 at 342 (1890), defined “religion” as a term that
has reference to one’s view of his relations to his Creator, and to the obligations they imposed of reverence for his being and character, and of obedience to his will…. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.
According to the Court, religion has a Supreme Being, the Creator, or Maker, whom mankind obeys, reveres, and with whom mankind has a relationship. It is fascinating to note here that it took approximately one hundred and ten years after the ratification of the Constitution for the Court to find it necessary to define religion. It was not until the introduction of Mormonism that the Court addressed this issue. Most probably, the reason for this is that up until that time, most of the existing denominations were actually sects of the same religion, Christianity. There was no need for definition before this time because “the safe and honest meaning [of religion] contemplated by the plain understanding of the people” was Christianity. Therefore, the “conception” within the “concept” of religion in the First Amendment is very narrow: its parameters are set by Christianity, including the teachings of Old Testament Judaism from which Christianity derives its historical and theological context and origin. Islam, and to a lesser degree Hinduism, also qualify as “religions” under the Davis definition because they too have at least one god who requires allegiance and obedience.
Among all the fundamental freedoms protected in the First Amendment, the free exercise of religion and the prohibition on religious establishment are the least complicated. Although the “concept” of the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection of the Fourteenth Amendment may have numerous “conceptions,” which are outside the scope of this thesis, the conceptions of religion within the Establishment and Free Exercise Clauses must align themselves to these narrow issues: 1) the establishment of a national religion to which special privileges are rendered, 2) the religious test to hold public office, and 3) the financial support of the established national religion via taxes paid by citizens not represented within that religion. These issues culminated in the drafting of the First Amendment and surfaced in the years between the early 1600s and the ratification of the Constitution in 1789. In order to arrive at an understanding of the initial conceptions within the concepts of religious establishment and free exercise in the First Amendment, an investigation of the historical context covering those one hundred and ninety years is imperative.
COLONIAL UNDERPINNINGS OF THE RELIGION CLAUSES
The Church of England traditionally enjoyed legally established preeminence over other denominations, which was supported by the Crown.  During his reign in the late sixteenth and early seventeenth centuries, King James I was not tolerant of religious dissenters from the Anglican Church. He persecuted Separatists, some of which were Baptists, and vowed to “make them conform themselves, or [he would] harrie them out of the land.”  These religious migrants fled England and found asylum in Holland. The ones who settled in Leiden became the Pilgrims who made their way to Plymouth Rock in 1620. To distinguish themselves from the Puritans and other Separatists, the Plymouth congregation drafted the Baptist Confession of 1612, whose Article 84 declared the following:
That the magistrate is not by virtue of his office to meddle with religion, or matters of conscience, to force or compel men to this or that form of religion, or doctrine: but to leave the Christian religion free, to every man’s conscience, and to handle only civil transgressions (Rom. xiii), injuries and wrongs of man against man, in murder, adultery, theft, etc., for Christ only is the king, and lawgiver of the church and conscience (James iv. 12). 
This is perhaps the first document advocating the separation of church and state. Although the Article pertains only to Christians because it was a Christian sect asserting the separation, the argument remains universal. The Article focuses on the separation of the office of the king from religious matters. Only Christ is to be king over the church, its only lawgiver. The document states that the magistrate is not authorized “by virtue of his office” to legislate and compel the citizenry to adhere to a state-sanctioned form or doctrine of religion, that being the Church of England. Civic office does not give the magistrate the legal authority to meddle within the sphere of religion. There is, however, no mention of any separation of Christian values, principles, or symbols, i.e., Christian culture, from the civic realm. To acknowledge the moral principles derived from Christianity that will promote good social order is not contrary to keeping the two institutions separate. The separation was purely legal in nature, that being, statutory: the state cannot statutorily declare establishment of one denomination over another. Another Separatist, Leonard Busher, while zealously fighting for the full freedom of religious conscience of all people back in England, including Jews and Catholics, he specifically vocalized his support of religious freedom for the Baptists:
King and magistrates are to rule temporal affairs by the swords of their temporal kingdoms, and bishops and ministers are to rule spiritual affairs by the Word and Spirit of God, the sword of Christ’s spiritual kingdom, and not to intermeddle one with another’s authority, office, and function… It is not only unmerciful, but unnatural and abominable, yea, monstrous, for one Christian [Anglican] to vex and destroy another [Baptist] for difference and questions of religion. 
The focus of this passage is for the Church and State “not to intermeddle one with the other’s authority, office, and function.” These three areas—authority, office, and function—are those related to governmental authority, not individual practice. The tone of these two proclamations is one calling for religious plurality within a Christian community and a nation that does not have a legally established religion. Since the contending religions had a common origin, it was crucial that the state did not legally recognize or privilege one over the other.
By contrast, the Puritans were more concerned with securing religious purity within the decadence of the Church of England than with religious freedom of conscience. To them, religious freedom represented the Crown’s protection against Catholicism. In their analysis of the Anglican Church during the rule of the Stuarts, its theological and practical tendencies moved too closely to that of the Roman Catholic Church, thus destroying the protection of their religious liberty.  The Puritan John Winthrop and the others at the Massachusetts Bay Colony did not necessarily want to separate from the Church of England. According to their belief, God had made a special covenant with them, commissioning them to live according to the Scriptures, to reform the Church, and to demonstrate to their brethren in England that their community will be as a “city upon a hill,”  a beacon for the rest of Christendom, and a pure theocratic entity. It was imperative for the Puritans that the church and civil government remain together to achieve a truly moral society, although ministers could not hold public office nor could they exercise any political authority. Membership in their Congregationalist churches and in the community was the measure of an individual’s commitment to Christianity. To them, democracy was deplorable and religious tolerance of other dissident Christians was actually anti-Christian.  The Congregationalist pastor John Cotton believed that “theocracy” was “the best forme of government in the commonwealth, as well as in the church.” 
It is important to understand the Puritan’s desire to keep the church and state together because it is the backdrop against which the argument for the separation of the two institutions is staged. Roger Williams, initially a Puritan, was banished by the Puritans from the Massachusetts Bay Colony to Rhode Island for his “radical” theology and his extreme views, among which was the separation between church and state. He insisted that the civil magistrates had no business punishing people for their religious beliefs, that the state is not religious or Christian, and that civil authority is “natural, human, and civil.”  Williams cared so much about the church that he insisted that the two entities be separate. According to the authors Isaac Kramnick and R. Laurence Moore, “since [Williams] came to believe that no organized church possessed all of God’s truth, he concluded that any effort to sanction by law an official religion impeded the advance of God’s millennial church.”  The key in their statement is “the sanction by law of an official religion” (emphasis added). Williams further stated, “no civil government or country can be truly called Christian, although true Christians be in it.”  These early ideas of separation of church and state do not in any way support the exclusion of religion in the public sphere nor do they prohibit the exercise of Christian morals and values, or the display of religious symbols, within the civil or public arena. Kramnick and Moore themselves emphasize that Williams’ contention was with the sanctioning of an official religion; government “should not declare an official church or a state religion”  (emphasis added). Williams was not concerned with religious principles, wording, or symbols being brought within governmental walls. What this colonial American sought was a legal separation of the two entities so that membership in the church would not qualify participation in public office. The common denominator in all his statements is the separate source and exercise of authority: the government’s and the church’s authority do not overlap; they have distinct origins, functions, and spheres.
Williams was very much persecuted for his religious beliefs and the political implications they carried. However, contrary to Kramnick and Moore’s opinion, Williams was not “inventing a godless politics.”  In fact, they fail to define what they mean by “godless Constitution” and ignore the numerous times that Congress appropriated funds for the support of ministers and provided statutory formations of religious schools.  What Williams was trying to create was an institutionally “non-denominational” polity, and the two are very different. “Religion” denotes a dogma, a ritual, a creed, and a set of rules within a set entity. A Supreme Being is the recipient of worship and faith, and that faith, that trust, is carried within people, affecting how they will comport themselves in all aspects of their life, even their political life. If it were true that Roger Williams’ intent was to withdraw all religious references from the political sphere, then he would not have approved Rhode Island’s 1663 charter. The charter strictly prohibited any persecution by the state of any person exercising freedom of religion:
[We h]ave therefore thought ffit, and doe hereby publish, graunt, ordeyne and declare, That our royall will and pleasure is, that noe person within the sayd colonye, at any tyme hereafter, shall bee any wise molested, punished, disquieted, or called in question, for any differences in opinione in matters of religion It is very interesting, however, that in the same legal document the following statement is found:
“…whereby oure sayd people and inhabitants, in the sayd Plantationes, may be soe religiously, peaceably and civilly governed, as that, by theire good life and orderlie conversations, they may win and invite the native Indians of the countrie to the knowledge and obedience of the onlie true God, and Saviour of mankinde….” 
Did he who advocated separation of church and state contradict himself? Is it contradictory for the signers of this document to have said that the behavior of the citizens of Rhode Island should have been of such godly manner that they “may win and invite the native Indians of the countrie to the knowledge and obedience of the onlie true God, and Savior of mankinde” and still demand freedom of religion from state control? The “God and Savior” to whom they referred is the Christian God and Savior, Jesus Christ. If there was a contradiction in fact concerning the separation of church and state, this document does not reveal it. The document does reveal that the authors included within a legal document a religious goal, from which it can be inferred that their intention was to separate the institutions, not to bar the inclusion of words and meanings with religious values. Whether the document promotes religion in private life only and not public life is not the issue; the issue is that religious terminology was included in a legal, political document, which today some would argue as unconstitutional, violating the Establishment Clause of the First Amendment. The belief may be private, but the document expressly declares a public religious goal.
Kramnick and Moore use Roger Williams’ life and statements to support a Constitution void of religion. But they neglect to acknowledge that Williams’ contention was strictly one of institutional establishment of religion by legislation, which would in turn would hinder religious freedom of conscience. It should be noted that John Clarke, who was largely responsible for the issuance of the 1663 charter, is considered both as the Father of Rhode Island as well as the Father of American Baptists. 
Christian doctrine played a major role in influencing the politics of the American Revolution; the Baptists in particular spearheaded the severance of religious and political institutions.  The Great Awakening of the mid eighteenth century had a great impact on colonial life. This protestant, evangelical movement focused on personal accountability before God, personal revelation of the Scriptures, individual repentance and salvation through faith in Christ, and called into question the entire Puritan societal system.  It also sought to erase the contentions between Protestant sects. As George Whitefield eloquently said, “Don’t tell me you are a Baptist, and Independent, a Presbyterian, a dissenter… tell me you are a Christian, that is all I want.” It was also the catalyst for the increase in dissenting religious groups, causing the “New Lights” to split from the “Old Lights” who were the forerunners of Unitariansim  and saw the New England community as a Christian society whose continuity was ordained by God and was threatened by the individualistic salvation of the New Lights. To the Old Lights, America was a “holy commonwealth”  and the separation of church and state threatened its stability. “Awakened” New Light Congregationalists who refused to adhere to their Old Light church doctrines and insisted on ordaining their own pastors formed their own “Separate” Congregational churches, many of which became Baptist.
The individual responsibility toward faith in God translated to the political ideology of civil and religious separation, since “Christ and His Scriptures are the only binding authorities for individual Christians.”  Therefore, civil government had no authority to dictate what a person should believe about God and religion. One of the most outspoken Baptist preachers arguing for religious liberty and the separation of church and state was Isaac Backus. He, like many other colonial preachers, wrote pamphlets to propagate their view and turn the tide of religious as well as political opinion. History of New England was Backus’ most influential work in which he makes it clear religious oppression was not the principle upon which New England was established, and that such oppression was an intruder that came afterwards. The founders of New England fled England for freedom of conscience. With the subtitle of his pamphlet, “with Particular Reference to the Denomination of Christians Called Baptists,” he inferred that the Baptists were the true successors of the New England founders’ mission: religious freedom of conscience. His political theory based civil authority on the consent of the governed and demonstrated that power becomes corrupt when civil and ecclesiastical authorities intermingle.  The desire for religious liberty of conscience paralleled the secular liberty the colonists sought from England; fighting the tyranny hindering religious and political self-governance were concurrent and righteous revolutionary causes. Dissent from well-grounded Anglican laws was the non-violent weapon of choice.
The Church of England was suffering dissent throughout the colonies. As early as 1740, New Light Presbyterians in Virginia defied ecclesiastical mandates, and Roman Catholics held public office although there were laws excluding them. Many dissenting groups were exempt from paying church taxes and Anglican Communion. Separatists in Connecticut and Massachusetts were so persuaded that they were “the only true orthodoxy…[that they] refused to accept the legal benefits available to officially recognized dissenters.” They insisted that liberty of conscience was an “unalienable right of every rational creature,” and demanded “complete separation of church and state.” 
By contrast, and because the “established” Anglican Church was so tenuous, recognized dissenters in Connecticut and Massachusetts enjoyed tolerance in worship and exemption from Church taxes to such an extent that John Adams described the situation as “the most mild and equitable establishment of religion that was known in the world, if indeed [it] could be called an establishment.”  His statement is revelatory in that it equates entrenched religious concessions with dissenters to the deeply rooted laws of the Church of England, which was the one and only established church possessing the supreme authority and power sanctioned by the state, and reveals the colonial, Dworkin “conception” of what was considered the establishment of religion during the Revolutionary Era. It is obvious that in the mind of John Adams “establishment” had more to do with the requirements a church placed on the citizens of a locale rather than the individual religious practices of individuals within their private as well as public spheres.
The colonial conception of establishment is further refined by William Livingston, a pamphleteer and New York lawyer who, with a group of colleagues, campaigned against the privileges of the Church of England’s college in New York, mounting the offense within the pages of the Independent Reflector in 1753. As Bernard Bailyn describes it, the issue Livingston confronted was the “right of any one religious group [the Anglicans] to claim for itself exclusive privileges of public support…[He] advanced for the first time in American history the conception that public institutions, because they were ‘public,’ should be if not secular at least non-denominational”  (emphasis added). The main contention was not that a religion was receiving public funding, but that it received it in exclusion of all other religions; only the members of the Anglican Church at the expense of dissenters enjoyed the privileges.
That to the colonists the word “establishment” meant nothing other than the government’s disbursement of privileges or favors to one religious sect over another and enforcing legal requirements on the population regardless of its religious make-up is evident by the fears and accusations the dissenters hurled against the Anglican Church and the King based on their legal and ecclesiastical inseparability. The clergy in Virginia protested against the Two Penney Act of 1759, which they contended illegally devalued their salaries. Their protest was so successful that it defeated the Act in England and prompted the Bishop of London to issue a castigatory letter “denouncing the people of Virginia for [their] disrespect to the Church of England, laxness in dealing with dissenters, and a desire ‘to lessen the influence of the crown and the maintenance of the clergy.’” Patrick Henry actually defended the Act, stating that “the only use of an established church and clergy in society is to enforce obedience to civil sanctions, and …when a clergy cease to answer these ends, the community have no further need of their ministry, and may justly strip them of their appointment.” Instead of being worthy agents of the state, these dissenting Anglican ministers “ought to be considered as enemies of the community, and…very justly deserved to be punished with signal severity.” 
Contrary to Henry’s views, Virginians were adamantly opposed to the merger of church and state. Jonathan Mayhew, a pamphleteer experienced in both politics and theology, attacked the Church of England’s appointment of East Apthorp as missionary of its Society for the Propagation of the Gospel outside of Harvard College, warning that “[i]f the Church of England were ever established in New England, religious oaths would be demanded as they were in England ‘and all of us [would] be taxed for the support of bishops and their underlings.’”  Such a widespread establishment of the Church would require an act of Parliament or royal proclamation. According to Mayhew, neither Parliament nor the crown had any right to interfere with the internal affairs of the colonies through the manipulation of religious institutions:
If bishops were speedily to be sent to America, it seems not wholly improbable, from what we hear of the unusual tenor of some late Parliamentary acts and bills for raising money on the poor colonies without their consent, that provisions might be made for the support of these bishops, if not of all the Church clergy also, in the same way (emphasis in original). 
Fifty-four years after the Mayhew-Apthorp controversy, John Adams credited it as
spread[ing] an universal alarm against the authority of Parliament. It excited a general and just apprehension that bishops, and dioceses, and churches, and priests, and tithes, were to be imposed on us by Parliament. It was known that neither King, nor ministry, nor archbishops could appoint bishops in America without an Act of Parliament; and if Parliament could tax us, they could establish the Church of England with all its creeds, articles, tests, ceremonies, and tithes, and prohibit all other churches, as conventicles and schism shops. 
The essence of the contention was the integration of the religious polity with the civil polity, thus compelling the population to pay for the support of a religion alien to their own without receiving reciprocal benefits.
During the years of the Great Awakening, Separate Baptists, New Light Presbyterian, and Methodists flooded Virginia, all of them violently hostile to coercion in any form, and all of them demanding full religious freedom. Nonetheless, the House of Burgesses tried to pass a bill requiring dissenters to meet only during daylights hours in licensed meeting halls with doors unlocked; preaching and baptizing slaves was strictly prohibited and “dissenters suspected of disloyalty could be forced to take the test oath and to swear to the articles of the Church of England.”  The dissenters protested with a vengeance, demanding that all Protestant and non-conformist preachers have the right to “preach in all places and at all seasons without restraint.”  Furthermore, they fervently argued that the pursuit of civil liberty was equal to the pursuit of religious freedom of conscience to preach and teach anywhere in the colonies. The Virginian electorate ordered the Burgesses to work on a declaration “that no religious sect whatever be established in this commonwealth”  (emphasis added). Finally, persecuted Baptists, Presbyterians, and enlightenment idealists urged James Madison to write the phrases pertinent to religious freedom in the Virginia Declaration of Rights. Article XVI of the Declaration states the following:
That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. 
Delegates from three Virginia counties emphasized that, in light of the inevitable military struggle with Britain, they sought “equal privileges” in both religion and civil affairs, since to establish one denomination over another would be a great injustice, and demanded that “without delay all church establishments might be pulled down, and every tax upon conscience and private judgment abolished.”  Presbyterians from Hanover County demanded that “no ecclesiastical establishment” be enacted and that no religious group be granted the “exclusive or separate emoluments or privileges…to the common reproach and injury of every other denomination” culminating in the abolition of “all partial and invidious [religious] distinctions.”  By their own admission, the non-conformist religious groups considered “establishment” equal to granting privileges to one religious group over another, and instead of demanding no privileges at all, they wanted privileges for all.
In Massachusetts, the attack on Apthorp was just as heated. His reply to a series of articles attacking his extravagant lifestyle and his “identification of Christian orthodoxy with episcopacy” shook the profound fears of the non-Anglican community throughout the colonies, reverberating most strongly in New England, where they feared that America was about to establish an episcopate. The disdain for the union of church and state was not vaguely verbalized: “We regard neither pope nor prince as head of the church; nor acknowledge that any Parliaments have power to enact articles of doctrine of forms of discipline or modes of worship or terms of church communion.”  Isaac Backus and his supporters resented civil government’s power to dole out religious favors to whomever it deemed worthy and to tax them without their consent to support theology contrary to their convictions, accusing it of hypocrisy for demanding liberty from England:
[The established church] has declared the Baptists to be irregular, therefore the secular power still force them to support the worship which they conscientiously dissent from…. [M]any who are filling the nation with the cry of LIBERTY and against oppressors are at the same time themselves violating that dearest of all rights, LIBERTY of CONSCIENCE…[They call themselves] Sons of LIBERTY, but they treat me like sons of VIOLENCE (emphasis in original).
“Taxation without representation” became the revolutionary cry of the Baptists. They rebelled against taxes supporting a religious institution, which went contrary to their fundamental beliefs. In his Appeal to the Public for Religious Liberty, Backus argued, “religious liberty is so blended with civil that if one falls it is not to be expected that the other will continue.” Only an act of the legislature can decide which sect is worthy of civil privileges and which one is not, making the selection arbitrary and subject to a majority vote. To their shame, Backus condemned them with their own words: “[H]ave we not as good right to say you do the same thing, and so that wherein you judge others you condemn yourselves?…[Just like] the present contest between Great Britain and America, is not so much about the greatness of the taxes already laid as about submission to their taxing power, so…our greatest difficulty at present concerns the submitting to a taxing power in ecclesiastical affairs.”  To the Baptists and all dissenters, religious freedom of expression was not something an earthly government had the power to bestow on a select few. The right to worship as their conscience dictated was not a “favor” or “privilege” dispensed at the will of the legislature; it was an inalienable right the Creator imparted to all human beings.
Against this long battle for religious freedom, the Baptists were rightly concerned that the right to worship without governmental compulsion would be abridged or eradicated. Eleven years after the ratification of the Bill of Rights, the Baptists’ apprehension that the separation would not be maintained was still fresh on their minds as evidenced in a letter the Danbury Baptist Association sent to President Thomas Jefferson on October 7, 1801. The Association expressed their concern that “what religious privileges [they] enjoy (as a minor part of the State) [they] enjoy as favors granted, and not as inalienable rights”  (emphasis added). The phrase “separation of the church and state,” which is not found in the Bill of Rights, is actually found in the President’s reply to them on January 1, 1802: “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.”  From the Association’s statement, the fear they projected to President Jefferson was not that they would be prohibited from exercising their religious rights, but rather that their rights would be taken away by the state if those rights were indeed granted favor or privileges and not inalienable rights. Furthermore, in light of the historical debates evidenced above, their concern focused on the establishment of a sect of Christian religion as the sanctioned, legislatively approved religion, respecting it over others, and bestowing special favors and privileges on it.
The Baptist Association differentiated between granted favors and inalienable rights. Surely Thomas Jefferson was familiar with the term “inalienable rights” which he penned in the Declaration of Independence. According to Jefferson and all who ascribed to the Declaration, inalienable rights were inherent, in-born, given to men by “their Creator.” That is why no legislature could enact laws to encroach them. The source of these rights was not worldly; rather, the source was above and beyond human authority. To comprehend the legal difference between the two, definitions are in order. Black’s Law Dictionary defines favors as acts “of kindness or generosity, as distinguished from one that is inspired by regard for justice, duty, or right.”  Several definitions of the word “inalienable” help in ascertaining the full scope of the meaning. Black’s defines inalienable as “not subject to alienation; the characteristic of those things which cannot be bought or sold or transferred from one person to another….”  The Oxford English Dictionary is especially revelatory because it gives definitions of words as they were used in a particular historical context. The word “inalienable” was used as follows:
a. Not alienable; that cannot be alienated or transferred from its present ownership or relation. 1611 COTGR., Inalienable, unalienable; which cannot be sold, or passed away. . 1743 J. MORRIS Serm. vii. 197 God…gives all men their being, and has an unalienable claim to their obedience. 1809-10 COLERIDGE Friend (1865) 120 This right of the individual to retain his whole natural independence…is absolutely inalienable.
The definitions are not restricted to the mere selling of one’s rights, but also include their transfer, repudiation, surrender, and eradication. Whether possessors of such rights are active or passive agents, neither they nor any outside agent or entity can compel the separation of these rights from the possessor. By contrast, favors are “acts of generosity” transferred from one person or entity to another, or legislatively enacted. So are legal privileges. The members of the Danbury Baptist Church were not concerned that they themselves would sell, transfer, or surrender their rights to another, or be compelled to do so; they were concerned that the federal government would take away their rights if they were to be construed as government-granted favors instead of favors or inalienable rights granted by the Creator. The source of the liberty made all the difference.
Jefferson’s reply to them reassured that the “wall of separation” was a wall barring only the legislative body of government, the external entity, from establishing a particular sect of the Christian religion and prohibiting the free exercise of all religion. The text does not indicate that the people are barred from any action. Contrary to Kramnick and Moore’s view that “a wall of separation, after all, prevents trespassing in both directions,”  the First Amendment is only prohibiting one party from such trespass. A physical wall may prevent two parties from trespass, but a legal wall may prevent only one party from acting—much like an injunction—and that one party is the legislative branch, whether it is Parliament or Congress (emphasis added).
It is not difficult to deduce from historical revolutionary pamphlets and other documents that the consensus among the colonists and the consequent intent of the Framers was that government could not bestow special privileges to one Christian sect and deny them to others. Government could not legislatively establish one Christian sect over another in the same manner that the Church of England was the national church nor could government compel members of nonconformist religions to pay taxes to support a government-approved established religious institution. If one sect was endowed with special privileges, all should receive the same consideration. Furthermore, government could not bar anyone from public office because of the content of his or her religious convictions or lack thereof. The Establishment Clause of the First Amendment has already effectively accomplished all these goals, and participation in the republican form of government guarantees representation in the legislature to secure the equal treatment. Nothing in the Clause or in the historical record alludes to the prohibition of government funding of religion as long as it is available to all religions, even if one religion is in the majority within a particular community. Thus, the Dworkin “conception” within the Establishment Clause is very narrow. Its enlargement can occur only by ignoring colonial history.
END of PART I
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 Joseph Story, A Familiar Exposition of the Constitution of the United States 2d ed. (New York: Harper, 1859; reprint, Lake Bluff, Illinois: Regnery Gateway, 1986), 314, 316.
William J. Brennan Jr. “The Constitution of the United States Contemporary Ratification,” in Constitutional Interpretation, 5th ed. Ducat and Chase (St. Paul: West Publishing, 1972), 62.
Raou Berger, Government by Judiciary: The transformation of the Fourteenth Amendment, 2d ed., with a foreword by Forrest McDonald (Indianapolis: Liberty Fund, 1997), 402.
Joseph Story, Commentaries on the Constitution of the United States, [book on-line]; available from http://www.constitution.org/js/js_000.htm, accessed 14 November 2001.
 Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 263.
Oxford English Dictionary, s.v. “establishment,” [database on-line]; available from http://dictionary.oed.com. Accessed 20 April 2002.
Oxford English Dictionary, 2nd ed., s.v. “establish.”
Gibbons v. Ogden, 22 U.S. 1 (1824) at 190
Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), 134.
 Gordon S. Wood, The Radicalism of The American Revolution (New York: Alfred A. Knopf, 1992), 17
 James E. Wood, Jr. “Introduction,” in Baptists and the American Experience, ed. James E. Wood, Jr. (Valley Forge: Judson Press, 1976), 11.
 Gordon Wood, 12-13.
James E. Wood, Jr., 13.
 Jeffrey M. Kahl, “The Righteous Cause of Liberty: Christianity and the American Revolution.” Master’s Thesis, Ashland Theological Seminary, 1997, 18.
 Matthew 5:14.
 James E. Wood, Jr., 15
 Ibid., 16
 Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (New York: W. W. Norton & Co., 1996), 52.
James E. Wood, Jr., 16.
 Kramnick, 58.
 Erez Kalir, “Book Note: Is the Constitution "Godless" or Just Nondenominational?” Yale Law Journal, 106 Yale L.J. 917, (1996): 919. See also, Northwest Ordinance; July 13, 1787, Avalon Project at Yale Law School [database on-line]; available from http://www.yale.edu/lawweb/avalon/nworder.htm , Section 14, Article 3. Accessed 21 April 2002.
Charter of Rhode Island and Providence Plantations - July 15, 1663, Avalon Project at Yale Law School [database on-line]; available from http://www.yale.edu/lawweb/avalon/states/ri04.htm. Accessed 18 November 2001.
 James E. Wood, Jr., 17.
 Bailyn, 245-72.
Mark A. Noll, “From the Great Awakening to the War for Independence: Christian Values in the American Revolution” in Christian Scholar’s Review 12, no. 2 (1982): 100-1.
 Kahl, 39.
 Winthrop S. Hudson, “Baptists, the Pilgrim Fathers, and the American Revolution” in Baptists and the American Experience, edited by James E. Wood, Jr. (Valley Forge: Judson Press, 1976), 29-30.
 Isaac Backus, “An Appeal to the Public for Religious Liberty,” in On Church, State and Calvinism, ed. William G. McLoughlin (Cambridge: Harvard University Press, 1968), 316-325.
 Diary and Autobiography of John Adams, III, 312, quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 248.
 Ibid., 252-3.
 Jonathan Mayhew, Observations... (Boston, 1763), 20-1, 26, 155-56; Richard J. Hooker, “The Mayhew Controversy,” Church History, 5 (1936), 254, Adams, Works, X, 288, as quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 256.
G. MacLaren Brydon, Virginia’s Mother Church and the Political Conditions Under Which It Grew, II, 249 ff., 367 ff., quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 258.
Ibid., 378-80, 381, 555, 556, 557, quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 259.
Virginia Declaration of Rights, Avalon Project at Yale Law School [database on-line]; available from http://www.yale.edu/lawweb/avalon/states/ri04.htm. Accessed 7 March 2002.
William T. Hutchison, et al., eds., Papers of James Madison (Chicago: University of Chicago Press, 1962), I, 112, 170-5; Brudin, Virginia’s Mother Church, II, 562-3, 564, 565, 566, quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 261.
Amos Adams, Religious Liberty an Invaluable Blessing, (Boston: Levertt, 1768), quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 262.
 Isaac Backus, A Seasonable Plea For Liberty of Conscience, Against Some Late Oppressive Proceedings, Particularly in the Town of Berwick in the County of York, (Boston: 1770), 8, 3, 14, quoted in Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1992), 263. See also, Edwin S. Gaustad, “Baptists and the Making of a New Nation” in Baptists and the American Experience, edited by James E. Wood, Jr., (Valley Forge: Judson Press, 1976) 32.
Backus, “An Appeal…”.
“Thomas Jefferson on the Separation of Church and State,” First Amendment Cyber-Tribune [database on-line]; available from http://w3.trib.com/FACT/1st.jeffers.2.html. Accessed 28 November 2001.
Black’s Law Dictionary, 6th ed., s.v. “favors.”
Oxford English Dictionary, s.v. “inalienable,” [database on-line]; available from http://dictionary.oed.com/cgi/entry/00113765. Accessed 20 April 2002.
Webster's Revised Unabridged Dictionary and WordNet, s.v. “inalienable” [database on-line]; Available from http://www.dictionary.com/doctor/ . Accessed 19 February 2002.
 Kramnick, 43.CLICK HERE to go to part II