On the Constitutionality of Religious Expression in the United States

For many years I was opposed to any kind of public sponsored religious display because I thought of myself as a strict Constitutionalist and accepted as fact the commonly held assumption that such displays are unconstitutional.  I’ve subsequently discovered by actually reading the Constitution and studying the history of early America that contrary to what I once believed, and to the stand taken by our federal government, the ACLU, and most American liberals, the Constitution has very little to say about religion or “Separation of Church and State”.  The main body of The U.S. Constitution only mentions religion once at the end of Article VI where we find, “… no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  Then the First Amendment includes the simple statement: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The first of these statements means that one needn’t be of any particular religion to hold public office or a government job; the second could be interpreted as supporting religion in public forums as much as the contrary view because what it says is that the federal government will keep its nose out of religion, and be neither prohibitive nor supportive. 

More importantly, nothing in the U.S. Constitution affects the rights of State or local governments regarding religion.  The term “Congress” in the context “Congress shall make no law…” refers to the legislative branch of the Central Government in this and in every such passage in the Constitution. The First Amendment has no authority over State or local governments.  We know this because for more than forty years after ratification of the Bill of Rights, including the First Amendment, Massachusetts, in its constitution made provisions for Protestant Christian worship and teachers at public expense. In addition to this specific, official doctrine in the Massachusetts Constitution*, virtually every classroom in America engaged in prayer and other displays of religion as did virtually every community.

It’s well established that Thomas Jefferson was strongly opposed to State sponsored religion.  To cite just one example, he wrote in The Virginia Act For Establishing Religious Freedom:  “Be it therefore enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in nowise diminish, enlarge, or affect their civil capacities.”

Yet for eight years as President, sworn to uphold the Constitution, Jefferson did not invoke the First Amendment or any other part of the Constitution to enforce a separation of church and State in Massachusetts or anywhere else in the United States.

Jefferson’s Act for Establishing Religious Freedom did not pass in the Virginia legislature when he introduced it in 1779. It had to wait to be championed by James Madison in 1786 while Jefferson was serving as ambassador to France. Madison blew the dust off of Jefferson’s Act after he led the fight to defeat a bill sponsored by Patrick Henry to levy religious taxes.  Madison was no less opposed to State sponsored religion than Jefferson.  It’s also worth noting that Madison was considered the foremost authority on the Constitution that he was so involved in creating, and was the author of The First Amendment that is so widely invoked in modern times to challenge any hint of religious activity in public forums in the United States.

Yet for eight years as President, sworn to uphold the Constitution, Madison did not invoke the First Amendment or any other part of the Constitution to enforce a separation of church and State in Massachusetts or anywhere else in the United States.

Why did these two Presidents who were so opposed to state sponsored religion and so dedicated to the United States Constitution suffer to allow so much intermingling of church and State during their Presidencies if the First Amendment forbade it and gave them not only the authority but the duty to put an end to it?  The answer is that the First Amendment did no such thing; they recognized that the central government had no authority to oppose State sponsored religion at the State or local level. 

This seems to have been understood by every President for at least the first hundred years of American history.  All of these Presidents were sworn to uphold the Constitution; none saw a duty to oppose religious expression at the State or local level based on that Constitution.

Moderns who invoke the Constitution to oppose all displays of religious expression in the public forum are either ignorant of our history or contemptuous of it.  Knowledge and respect of the Constitution, our early history, and the men involved eliminates any notion that there exists in the U.S. Constitution, including the Bill of Rights, anything that prohibits any expression of religion by State or local governments.  The central government has acquired the power to prohibit the States from allowing religion in schools and other public places by taxing the citizens and then doling the money back to the States with massive stipulations, and by backdoor Constitutional Amendment in the courts. 

Following the Civil War the Fourteenth Amendment was added to the Constitution; its obvious purpose being to guarantee the rights of newly freed slaves within the States where they resided.  One sentence from Section 1 of the Fourteenth Amendment** states, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“ 

This statement, known as the “due process” clause of the Fourteenth Amendment, sounds pretty reasonable and straightforward, but somehow, through a series of Supreme Court decisions beginning in 1925, these simple straightforward words were twisted and  distorted to mean that all of the limitations placed on the central government by the Bill of Rights and Constitution in general also apply to the States.  These decisions provided finality in the process of eliminating the sovereignty of the individual States in the United States of America; by such methods the federal government has usurped the sovereignty of the States on every front, including freedom of religion. 

I’m not a religious person and I’m glad that I’m not forced to pay taxes to support a church that I wouldn’t attend.  I’m glad that I’m not compelled by government to support or send my children to schools that teach a religious creed that I or my neighbor might disagree with.  But I now understand that the United States Constitution was not meant to give the Federal Government jurisdiction over these issues; that by the nature of The Constitution, our Federal Republican System, the obvious intentions of the Framers, and as assured by the Tenth Amendment***, the power to control these things should be held by the States and ought to be addressed in the State Constitutions or by State and local legislatures.

http://www.loc.gov/exhibits/religion/rel05.html
http://religiousfreedom.lib.virginia.edu/sacred/vaact.html
http://www.usconstitution.net/consttop_reli.html

http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution
http://www.apsanet.org/imgtest/Nationalization_Bill.pdf

* From Article III of “Part the First” of the Constitution of the Commonwealth of Massachusetts:

As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.

**Fourteenth Amendment, Section 1:  All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

***Tenth Amendment: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.