Constitution Lecture 9: Separation of Church and State

Uploaded by shanedk on 26.03.2010

Another misunderstood concept regarding the Constitution and the founding principles of
our country is Separation of Church and State. Some say that this is a right codified in
the Constitution; others say that the phrase appears nowhere in the Constitution, and that
our founders wanted a religious state. Who is right?
It is true that there is no phrase “separation of church and state” in the Constitution,
but that’s not very relevant. The question is not, are the words there, but is the concept
there? The place where this concept is claimed to be is in the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof;...” This clause actually does two things: it prohibits
Congress from respecting any religious establishment--in other words, it can't privilege any religious
belief or set of beliefs above others--and bans the prohibition of religious exercise.
Does this mean that the Constitution requires a complete separation of church and state?
Remember from Lecture 2 that we are not looking for the intention of any one founder, but
what the words were considered to mean at the time. So we need to find where this phrase
“separation of church and state” comes from and what it was considered to mean, as
well as that of the First Amendment.
The phrase comes from an 1802 letter by Thomas Jefferson to the Danbury Baptist Association.
They had written in a letter to him: “Religion is considered as the first object
of Legislation; and therefore what religious privileges we enjoy (as a minor part of the
State) we enjoy as favors granted, and not as inalienable rights: and these favors we
receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen.
It is not to be wondered at therefore; if those, who seek after power & gain under the
pretense of government & Religion should reproach their fellow men...”
Jefferson replied: “Believing with you that religion is a matter
which lies solely between Man & his God, that he owes account to none other for his faith
or his worship, that the legitimate powers of government reach actions only, & 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 & State. Adhering to this expression of the supreme will of the nation in behalf
of the rights of conscience, I shall see with sincere satisfaction the progress of those
sentiments which tend to restore to man all his natural rights...”
So the phrase, from its very origin, was linked directly to the language of the First Amendment.
And this wasn’t just Jefferson’s opinion; James Madison used the phrase in an 1819 letter
to Robert Walsh, where he said: “[T]he number, the industry, and the morality
of the priesthood and the devotion of the people have been manifestly increased by the
total separation of the Church from the State.” Madison felt that both government and religion
were better off when there was no link between them at all, and this was the common sentiment
at the time.
Going back to the First Amendment, we see that there are two parts to this. The first
part is a prohibition of any respect towards any establishment of religion. This is also
considered to be the secularization of government. The second part is a guarantee of the freedom
of religious exercise. The misunderstanding of this concept has led to many cases where
the attempt to comply with the First Amendment actually runs afoul of its true meaning.
Peyote is an illegal drug, and yet both the Federal government and 23 different states
allow the use of peyote for religious purposes, as is the case with some Native American religions.
The idea is that, even though peyote is illegal for everyone else, prohibiting it for religious
use violates the First Amendment’s restriction on prohibiting the free exercise of religion.
Another example is that members of certain religious groups can be exempted from paying
the Social Security tax. Any member of a religion on a list of government-recognized religions
can file Form 4029 and, if approved, never have to pay any Social Security tax at all--again,
justified by the prohibition on the free exercise of religion.
But there’s a problem of logic here: the establishment clause prohibits Congress from
respecting ANY establishment of religion. What do these laws do, if not exactly that?
These laws effectively grant members of certain religions privileges that cannot be exercised
by anyone else. That completely runs afoul of the concept of Separation of Church and
There’s another issue regarding this clause: the claim that the founding fathers were Christian
and wanted a Christian nation, coming up with all sorts of quotes form the founders for
support. Even without taking the enormous amount of time required to examine all of
these, we can see the fallacy here just by recalling Lecture 2: The intent of the founders
should not be considered when interpreting the Constitution, only the meaning of the
words they used. Although some founders were Deist, others were Christian--but felt, like
the Danbury Baptists, that religion should be a personal thing and not managed or supported
in any way by government.
Here’s a good way of thinking about this: If it’s true that America is a Christian
nation because a majority of the founders were Christian, then is it not just as true
that America is a White Male nation because a majority of the founders were white men?
If that statement is racial and sexual bigotry, then surely the argument about a Christian
nation must be religious bigotry as well.
They have tried using various founders for support. For example, they usually turn to
Ben Franklin as an example of a founding father who proposed that each morning of the Constitutional
Convention open with a prayer. What they fail to mention is that his proposal was rejected.
They didn’t even bother to vote on it. They adjourned for the day, and Franklin never
brought it up again.
Even if you could definitively find a founder who was a Christian and wanted a Christian
nation, it would only be that individual’s opinion, and nothing about that was ever codified
into the Constitution. In fact, the Constitution only mentions religion in one other place,
where Article VI prohibits religious tests as a requirement to take public office. Remember
that the Constitution is there to specifically enumerate the powers, functions, and character
of the Federal government, and the absence of any religious preference is enough to discount
the idea of a Christian nation entirely.
This is the point Roger Sherman made when the establishment clause was being debated.
According to the minutes of the debate from August 15, 1789, “MR. SHERMAN thought the
amendment altogether unnecessary, inasmuch as Congress had ‘no authority whatever delegated
to them by the Constitution to make religious establishments.’” He was worried that
the inclusions of this clause would otherwise imply that the government had any power to
do this in the first place, which it didn’t.
The fact that there is no power given in the Constitution to favor any religious belief
over others should be enough, but in case it isn't, there is one example of the secular
nature of our government being codified into law. In November of 1796, the United States
signed a treaty with Tripoli, signed by President John Adams and written by him with Thomas
Jefferson's input. Article 11 of this treaty reads: “As the Government of the United
States of America is not, in any sense, founded on the Christian is declared
by the parties that no pretext arising from religious opinions shall ever produce an interruption
of the harmony existing between the two countries.”
According to Article VI, any treaties made in pursuance of the Constitution are part
of the Supreme Law of the Land. This declaration therefore has the same effect as if it were
part of the Constitution itself. This treaty was confirmed unanimously by the Senate; it
was published in the Philadelphia Gazette, and there is no record of any dissent from
any members of the public. Some Christians have claimed that the quoted passage is a
mistranslation from the Arabic, but this is the precise language that was approved by
the Senate and entered into the law of the land.
Some also claim that it was replaced by the Treaty of Peace and Amnity in 1805, but this
is untrue. The purpose of this treaty was to end the hostilities that broke out in 1801
when the Pasha of Tripoli broke the 1796 treaty. There is nothing in the language of this new
treaty that amends or overrules the language of Article 11 in the previous treaty.
They point to other bits of evidence as well, such as the motto “In God We Trust” on
the money, and “Under God” in the Pledge of Allegiance. Neither of these hold water.
The phrase “In God We Trust” does not appear on a single coin until 1864. Before
then, the only place this motto could be found was in the fourth stanza of The Star-Spangled
Banner: “And this be our motto: In God is our trust.” But the Star-Spangled Banner
wasn’t made our official National Anthem until 1931; before then, the unofficial anthem
was “Hail, Columbia,” which makes no mention of God at all.
The country’s first coin, the Continental, bore the motto “Mind Your Business,” while
coins minted after the 1792 Coinage Act bore the motto “E Pluribus Unum,” Latin for,
“Out of many, one.” It still appears on coins to this day. And although the phrase
"In God We Trust" appears prominently on current money, such as this recently-printed one dollar
bill, it did not appear on earlier bills, like this 1935 dollar.
“In God We Trust,” despite showing up on a few coins beforehand, wasn’t made the
official US motto until 1956, as a Cold War statement against the “godless Communists”
during the era of McCarthyism.
As for the Pledge of Allegiance, it wasn’t even written until 1892. It was written by
Francis Bellamy, a famous socialist, and didn't include any reference to God at all. It initially
read, “I pledge allegiance to my Flag and to the Republic for which it stands, one nation
indivisible, with liberty and justice for all.” Today, libertarians wonder what a
free country is doing with a pledge to begin with. This picture of schoolchildren reciting
the pledge is particularly disturbing. At any rate, the phrase “Under God” was not
added until 1954, during that very same McCarthy-era posturing that made “In God We Trust”
the motto.
So, not only is it untrue that America was a Christian nation that was undermined by
secular liberals, it is actually true that entirely the opposite is the case. The separation
of church and state was universally recognized from the very beginning, and only came into
doubt in more recent times.
As always, stay strong and be free.