By Justin Esthay
The First Amendment is one of the most contentious topics in politics today. It's also one of the most distorted and misconstrued portions of the Constitution. What does the "Establishment Clause" really mean?
Contrary to leftist assertions, the meaning of the Constitution is not supposed to change over time or...
be reinterpreted to conform to changing values. The Constitution is not a "living-breathing document·"
be reinterpreted to conform to changing values. The Constitution is not a "living-breathing document·"
"Toward the preservation of your Government and the permanency of your present happy state, it is requisite not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts." - George Washington, Farewell Address, 1796.
"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 is the legitimate Constitution. And if that not be the guide in expounding it, there can be no security for a consistent and stable,... exercise of its powers.... What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense." - James Madison, to Henry Lee, June 25, 1824.
"On every question of construction, carry ourselves back to the time when the Constitution was adopted,... 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." - Thomas Jefferson, to Judge William Johnson, June 12, 1823.
"[T]he history and state of things at the time may be consulted to elucidate the meaning of words, and determine the bona fide intention of the Convention." - John Adams, on interpreting the Constitution, February 9, 1811.
"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." - James Wilson, Of the Study of the Law in the United States," 1804.
"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." - Joseph Story, Commentaries on the Constitution of the United States, 1833.
So what did the first amendment mean when it was originally adopted? Supreme Court Justice Joseph Story, appointed by James Madison, explains.
"The same policy, which introduced into the Constitution the prohibition of any religious test, led to this more extended prohibition of the interference of congress in religious concerns. We are not to attribute this prohibition 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 matters 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. It was also obvious, from the numerous and powerful sects existing in the United States, that there would be perpetual temptations to struggles for ascendency in the National councils, if any one might thereby hope to found a permanent and exclusive national establishment of its own; and religious persecutions might thus be introduced, to an extent utterly subversive of the true interests and good order of the Republic. The most effectual mode of suppressing the evil, in the view of the people, was, to strike down the temptations to its introduction. ....
"The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; --- these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those, who believe in the truth of Christianity, as a devine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. ....
"Probably, at the time of the adoption of the Constitution, and of the Amendment of it now under consideration, the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State..." - Joseph Story, A Familiar Exposition of The Constitution of The United States, "Freedom of Religion."
"The real object of the amendment was, not to countenance, much less to advance Mahometanism, 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. It thus cut off the means of religious persecution, (the vice and pest of former ages,)..." - Joseph Story, Commentaries on The Constitution of The United States, 1833.
The House Judiciary Committee substantiates that the purpose of the First Amendment is not to prevent the government from supporting religion, but to prevent one denomination of Christianity from ascending to national dominance, and thereby imposing its own spiritual tenets upon or abridging the religious liberties of the others.
"What is an establishment of religion? It must have a creed defining what a man must believe; it must have rites and ordinances which believers must observe; it must have ministers of defined qualifications to teach the doctrines and administer the rites; it must have tests for the submissive and penalties for the nonconformist. There never was an established religion without all these. .... Had the people, during the revolution, had any suspicion of any attempt to war against Christianity, that revolution would have been strangled in its cradle. At the time of the adoption of the constitution and the amendments; the universal sentiment was that Christianity should be encouraged, not any one sect. Any attempt to level and discard all religion would have been viewed with universal indignation. The object was not to substitute Judaism, or Mohammedanism, or infidelity, but to prevent rivalry among sects to the exclusion of others. .... In this age, there can be no substitution for Christianity: that, in its general principles, is the great conservative element on which we must rely for the purity and permanence of free institutions. That was the religion of the founders of the republic, and they expected it to remain the religion of their descendants." - House Judiciary Committee, 1854.
The existence and pertinence of this sectarian contention was likewise confirmed by Jefferson.
"[U]nder the prevalence of that delusion on the clause of the constitution, which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity thro’ the US; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians & Congregationalists. ... They believe that any position of power confided to me will be exerted in opposition to their schemes. And they believe truly; for I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man. " - Thomas Jefferson to Benjamin Rush, September 23, 1800.
Knowing this the clause can now be interpreted accurately.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"
The wording itself provides the evidence as the First Amendment states congress shall not respect "an" establishment of religion as opposed to "the" establishment of religion. In order for it to mean what leftists contend it would have to say "the;" denoting religion altogether. In fact, I have often heard people reciting this clause incorrectly, using the word "the" instead of "an." An is crucial as it reveals its true intent. When it says congress shall not respect "an" establishment of religion, it means it may not respect one of the then established religions in the nation, all of which were Christian denominations, in preference to the others, and thereby (as prohibited by the following clause) abridge the religious liberties of said other denominations. It in no way means the government may not encourage, endorse, or support Christianity.
(Addendum: Notice Story states the prohibition on religious tests at the federal level was for the same purpose.)
Being that the meaning of the Constitution never changes, as illustrated above, it still means today exactly what it meant then. The Constitution is a legal document· The notion of a "living breathing" Constitution is as about as absurd as, say, asserting my ex-wife has filed a "living breathing" restraining order on me. I use this analogy precisely because the Constitution is a restraining order on the federal government. To weaken these restraints, through modern reinterpretation, is extremely dangerous as the tendency of government is to grow ever more controlling and abusive.
In earlier times, prior to its infiltration by Socialist activists, the Supreme Court also affirmed the Founding interpretation of the First Amendment, stating it was synonymous in meaning with the constitutions of the states.
"Even the Constitution of the United States, which is supposed to have little touch upon the private life of the individual, contains in the First Amendment a declaration common to the constitutions of all the states, as follows: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," - United States Supreme Court, 1892.
Examples of the "declarations" to which the court refers are as follows:
"And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law." - Constitution of Massachusetts, drafted by John Adams.
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"[E]very person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established." - Constitution of New Hampshire.
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"[T]here shall be no establishment of any one religious sect in this province, in preference to another;" - Constitution of New Jersey.
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"[T]here shall be no establishment of any one religious church or denomination in this State, in preference to any other;" - Constitution of North Carolina.
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"No preference shall be given by law to any christian sect or mode of worship. ... And each and every society or denomination of Christians in this state shall have and enjoy the same and equal powers, rights, and privileges." - Constitution of Connecticut.
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"There shall be no establishment of any one religious sect in this State in preference to another;" - Constitution of Delaware.
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"We, the representatives of the freemen of Pennsylvania, in general convention met, for the express purpose of framing such a government, confessing the goodness of the great Governor of the universe... without partiality for, or prejudice against any particular class, sect, or denomination of men whatever,..." - Constitution of Pennsylvania.
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"We the representatives of the freemen of Vermont, in General Convention met, for the express purpose of forming such a government, confessing the goodness of the Great Governor of the universe,... without partiality for, or prejudice against, any particular class, sect, or denomination of men whatever,..." - Constitution of Vermont.
As Zephaniah Swift, author of the first legal treatise published in America, stated:
"Christians of different denominations ought to consider that the law knows no distinction among them; that they are all established upon the broad basis of equal liberty, that they have a right to think, speak, and worship as they please, and that no sect has power to injure and oppress another. When they reflect that they are equally under the protection of the law, all will revere and love the constitution, and feel interested in the support of the government. No denomination can pride themselves in the enjoyment of superior and exclusive powers and immunities."
The First Amendment is synonymous in meaning to those clauses of the early state constitutions, which in no way established an ideologically pluralist form of government, but rather established all Christian denominations on equal footing under federal law.
