Separation of Church and State

Notes and sources from Joshua’s talk on the Separation of Church and State at the Fortnight for Freedom event on July 2, 2013

Part 1

Click here for Hour 1 | Click here for Hour 2 of the radio show also on this topic (covers the info below with commentary).


Origin

church_state roadsignWhere does the phrase “Separation of Church and State” come from?
It’s not found in Declaration of Independence or even the US Constitution.
So then where did we get this phrase that is so commonly referred to?

Rev. Roger Williams words in the letter from the Danbury Baptist Association to Thomas Jefferson:
“[T]he faithful labors of many witnesses of Jesus Christ, extant to the world, abundantly proving that . . . when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness, as at this day. And that therefore if He will ever please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world; and that all that shall be saved out of the world are to be transplanted out of the wilderness of the world, and added unto His church or garden.”
Source: Roger Williams, “Mr. Cotton’s Letter Lately Printed, Examined and Answered,” in Miller, Roger Williams: His Contribution to the American Tradition, 98.

Rev. Williams was a separatist in that he wanted to make sure that individuals could freely exercise their religious beliefs according to their conscience and that the state could not force the individual to violate their faith/beliefs. The Danbury Baptists were ultimately concerned of a rumor that a “National” denomination would be established.

Thomas Jefferson’s letter in response to the Danbury Baptist Association:
“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 eternal separation between Church & State.”
Read the full text of the letter HERE.

So what was the purpose of Jefferson’s use of the phrase?
Jefferson referred back to Rev. Williams’ concept of “the hedge or wall of separation between the garden of the church and the wilderness of the world” to assure the Danbury Baptists that the federal gov’t would not establish a single denomination of Christianity as the national denomination. His reference was not about divorcing church and state or church and fatih as it is understood or referred to today.

Where The Misunderstanding Stems From

The biggest misunderstanding is not even the concept of the “Separation of Church and State” itself, but really a misunderstanding of:

  1. Federalism
  2. The purpose of the US Constitution
  3. Application of the original Amendments (i.e. the Bill of Rights)

Federalism

Here in America, Federalism is defined as two separate governments that have jurisdiction over their inhabitants. So for example, people in the state of Maryland are governed by the government of the state of Maryland and also governed by the Federal government.

It’s also important to recognize that the sovereign states created the Federal government, not the other way around. This is clearly articulated in Article VII of the US Constitution:
“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

The people of the states, through their state governments (via their conventions), delegated very specific powers to the newly created Federal government. A list of these powers can be found HERE and James Madison referred to this delegation of powers in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” “The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Finally, all authority that was not delegated to the Federal government via the US Constitution, was retained by the states and/or the people as articulated in the 10th 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.”

Purpose of the US Constitution

The purpose of the US Constitution was to specifically document the powers/authority delegated to the federal government (i.e. what the federal government could do). Very simply, the people of the states authorized what the newly created Federal government had the power to do.

State governments have their own constitutions. More on that later…

Application Of The First Ten Amendments

What or who did the “Bill of Rights” apply to? This was no mystery to the founding generation who (i.e. what government) those first ten amendments to the US Constitution applied to, as written about in detail HERE.

Let’s first explore the Preamble to the Bill of Rights:
“THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

As articulated in the preamble, the people of the states (i.e. in most states) were steadfast in agreement that they (i.e. the states’ representatives in the ratifying conventions) would only ratify the US Constitution if there were “further declaratory and restrictive clauses” to clarify the limited powers of the Federal government.

Hence, the Federal Bill of Rights documented specifically what the federal government was not allowed to do (i.e. power/authority it didn’t have). The key part being that it was pertaining only to the federal government, not state or municipal governments.

Let’s review the most widely known public record during the era closest to ratification that showcases who/what the first ten amendments do not apply to:
Barron v. Baltimore, 1833
Marshall, writing for a unanimous court, said that the 1st 10 amendments “contain no expression indicating an intention to apply them to the State governments.”

You see, state governments ratified their own state constitutions (most included a Declaration of Rights or a Bill of Rights), which was the authority delegated to the state government by its citizens (along with the limitations on the state government). This gives way to why states retained the authority to enact blue laws or have official state religions. On a related note, this is also why states can limit the gun rights of its citizens, where the Federal government cannot constitutionally do so (there are some caveats to this of course).

Here’s an example of how the citizens of a state enacted protections (similar to the 1st Amendment to the US Constitution) from their state government from trampling on their religious freedom:
VA constitution (1776)
“SEC. 16. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only 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.”

Separating Religion/Faith From The Public Square

But wait!? “Here in America, we separate religion and faith from law; that’s constitutional, right?”

Common statement usually referencing the 1st Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The first amendment to the US Constitution consists of six limitations; broken down they are:

“Congress shall make no law establishing a religion”
“Congress shall make no law prohibiting the free exercise of religion (i.e. worship)”
“Congress shall make no law abridging (i.e. to cut short) the freedom of speech”
“Congress shall make no law abridging the freedom of the press”
“Congress shall make no law infringing upon the right to peaceably assemble”
“Congress shall make no law infringing upon the right to petition the government for a redress of grievances”

Of course, on our topic, we’re focusing on those first two limitations. If we’re to believe that this was applicable to all government, then the founding generation MUST have meant they wanted to exclude religion from the state governments as well, right? Let’s take some time to explore some state constitutions, because they must remove church/religion/faith from there too…right?

Constitution of Delaware; 1776
ART. 22. Every person who shall be chosen a member of either house, or appointed to any office or place of trust, before taking his seat, or entering upon the execution of his office, shall take the following oath, or affirmation, if conscientiously scrupulous of taking an oath, to wit:
“I, A B. will bear true allegiance to the Delaware State, submit to its constitution and laws, and do no act wittingly whereby the freedom thereof may be prejudiced.” And also make and subscribe the following declaration, to wit:
“I, A B. do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.” [emphasis added]

Constitution of North Carolina: December 18, 1776
XXXII.(5) That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State. [emphasis added]

Constitution of Maryland: November 11, 1776
XXXV. That no other test or qualification ought to be required, on admission to any office of trust or profit, than such oath of support and fidelity to this State, and such oath of office, as shall be directed by this Convention or the Legislature of this State, and a declaration of a belief in the Christian religion. [emphasis added]

Constitution of Massachusetts: 1780
Chap VI – Oaths and Subscriptions “Article I. Any person chosen governor, lieutenant-governor, councillor, senator, or representative, and accepting the trust, shall, before he proceed to execute the duties of his place or office, make and subscribe the following declaration, viz:
I, A.B., do declare that I believe the Christian religion, and have a firm persuasion of its truth; and that I am seized and possessed, in my own right, of the property required by the constitution, as one qualification for the office or place to which I am elected.” [emphasis added]

Whoa…whoa….WHOA!!

Something’s not right here! If they truly wanted ALL religion, church, faith, etc. removed from ALL government and the public square, how can these original state constitutions jive with our current understanding (via SCOTUS jurisprudence) of the meaning of “separation of church and state?”

We already discussed the SCOTUS case, Barron v. Baltimore (1833) where it was very clear that the 1st ten amendments did not apply to the state governments.

So what happened? What changed the application of what we know as the Federal Bill of rights?

Enter the Incorporation Doctrine…

Where EVERYTHING Changed

So what is this “Incorporation Doctrine”…?

It has come to be know as a doctrine where selected provisions of the first ten amendments are made applicable to the states through the due process clause of the 14th Amendment.

Summary: The 14th amendment was adopted in 1868. The Incorporation Doctrine (starting in 1925 in SCOTUS case Gitlow vs. New York) took the meaning of the first section of the 14th Amendment and applied it to the states, even though that was not why the 14th Amendment was ratified by the states. A prime example of how the SCOTUS completely MADE UP the doctrine is found in the fact that an amendment was proposed to do this in 1875 called the Blaine Amendment:
“No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

Just ask yourself, if the 14th Amendment was intended to apply provisions of the 1st 10 Amendments to the states, why in the world would many of the same people who participated in adopting the 14th Amendment, propose a new amendment to the US Constitution to do the very same thing specifically around the context of the 1st amendment? This is judicial activism at its finest (or worst, depending on your point of view).

This made up doctrine doesn’t even pass the sniff test. Even common sense dictates this is bogus!

For further insight into this complex topic, please watch THIS VIDEO by Prof. Thomas Woods on the 14th Amendment. Also, please check out this excellent article by Michael Maharrey HERE about the danger of using the Federal government as the “Liberty Enforcement Squad” via the Incorporation Doctrine (great piece written layman’s terms). Finally, check out both hours of our show on this topic HERE and HERE.

Because of this made up “Incorporation Doctrine” everything related to faith in the public square started to change…and change it did, rapidly starting in 1947.

Everson v. Board of Education, 1947
Establishment clause (1st Amend) was “incorporated” into the 14th Amend (P&I clause) and applied to state law (FIRST TIME!)
This case was brought by a New Jersey taxpayer against a tax funded school district that provided reimbursement to parents of both public and private schooled children taking the public transportation system to school.

McCollum v. Board of Education, 1948
Restricted voluntary religious classes in public school

Engel v. Vitale, 1962; Abington v. Schempp, 1963; commissioner of Ed. v. School Committee of Leyden, 1971
A verbal prayer offered in a school is unconstitutional, even if it is both voluntary and denominationally neutral.

Stein V. Oshinsky, 1965; Collins v. chandler unified School Dist., 1981
Freedom of speech and press is guaranteed to students unless the topic is religious, at which time such speech becomes unconstitutional.

Reed v. van Hoven, 1965
If a student prays over his lunch, it is unconstitutional for him to pray aloud.

DeSpain v. DeKalb county Community School Dist., 1967
It is unconstitutional for kindergarten students to recite: “We thank you for the flowers so sweet; We thank you for the food we eat; We thank you for the birds that sing; we thank you for everything.” Even though the word “God” is not contained in it, someone might think it is a prayer.

Lowe v. city of Eugene, 1969
It is unconstitutional for a war memorial to be erected in the shape of a cross.

State Board of Educ. v. Board of Educ. of Netcong, 1970
It is unconstitutional for students to arrive at school early to hear a student volunteer read prayers which had been offered by the chaplains in the chambers of the United States House of Representatives and Senate, even though those prayers are contained in the public Congressional Record published by the U.S. Government.
State of Ohio v. Whiner, 1976
It is unconstitutional for a Board of Eduction to use or refer to the word “God” in any of its official writings.

Florey v. Sioux Falls School Dist., 1979
It is unconstitutional for a kindergarten class to ask during a school assembly whose birthday is celebrated by Christmas.

Stone v. Graham, 1980; righ v. Grand Forks Public School Dist., 1980; Lanner v. Wimmer, 1981
It is unconstitutional for the Ten Commandments to hang on the walls of a classroom since the students might be lead to read them, meditate up them, respect them, or obey them.

Wallace v. Jaffree, 1985
It is unconstitutional for a kindergarten class to recite; “God is great, God is good, let us thank Him for our food.”

Graham v. Central Community School Dist., 1985; Kay v. Douglas School Dist., 1986
It is unconstitutional for a school graduation ceremony to contain an opening or closing prayer.

With all of these court cases in mind, let’s reflect on Jefferson’s letter to the Danbury Baptists and its context of assuring them, by referring to Rev. Williams comments about the “wall of separation between the garden of the church and the wilderness of the world,” that a national denomination would not be established. Let’s take a final moment to touch on a SCOTUS case (Reynolds v United States, 1878) where a Mormon argued that the Federal government couldn’t stop polygamy based on 1st Amendment grounds. It’s important to to note that in this case, the SCOTUS properly cited Jefferson’s letter, but interestingly enough reversed it’s view of Jefferson’s words almost 70 years later in Everson v. Board of Education (1947).

In Closing…

Viewing the topic of “Separation of Church and State” in the proper context of federalism and the construction of the US Constitution in conjunction with state constitutions, along with the proper application of the 1st 10 amendments to the US Constitution, we can better understand how the framers and ratifiers understood the relationship between “church and state” but more importantly, how they viewed the proper powers and limitations of government involvement with religious affairs.

To those who have found this information enlightening and informative, I implore you to join me and be stewards of liberty and purveyors of proper history. Liberty will not preserve itself – it’s our responsibility to keep its flame burning bright.

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Joshua Lyons

Co-Host/Producer at The Forgotten Men Radio Show
Joshua is the co-host of The Forgotten Men radio show, which airs Saturdays at 12 noon ET on AM930 WFMD. The Forgotten Men focus on the current political and economic challenges through the lens of the Constitution and federalism.
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