Constitutional Order Assignment
Tracy Nix
Helms School of Government, Liberty University
Introduction
As recent as November 22, 2021, Harold Shurtleff et al. Petitioners v. City of Boston Massachusetts et al. respondents brought a case before the Supreme Court because he was denied an opportunity to display a Christian flag for one hour of one day on a flagpole that was designated for private speech at a City Hall in Boston: in which no previous application had been denied by the city council for their flag’s display during the previous “two hundred and eighty-four times.” (Harold Shurtleff et al. Petitioners v. City of Boston Massachusetts et al. respondents, 2021, p. 2) The result of that ruling was ruled in favor of Harold Shurtleff, and he was allowed to display his Christian flag. There is a difference between a citizen expressing private beliefs publicly while interacting with the government and the government establishing a religion. The burden of the government establishing a religion is extensively weightier than one man allowed to display one flag for one hour on one day. What was the original intent of the First Amendment? The First Amendment states: “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.” (Congress, 1791) Did the Framers of the Constitution of the United States of America intend for the First Amendment to forbid people from actually acting out their beliefs (within the framework of their religious worldview) while participating in governance? They did not. The Framers of the Constitution of the United States of America intended for each man to be able to practice his worldview while actively participating in the governance of each other. The great exchange of ideas as to the best form of government is foundational in belief systems otherwise known as “world views,” and there is no such thing as a neutral worldview. Secularism is a hidden form of humanism that is founded on a worldview. As noted, historian David Barton reveals in his documenting of today’s radical interpretation of the First Amendment, “Even though the actual wording of a bill may be constitutional, the bill becomes unconstitutional if the legislator who introduced it had a religious activity in his mind. WALLACE v. JAFFREE, 198544.” (Barton, 2009, p. 20)
A Comparison in the History of the First Amendment
The First Amendment was the first concern of the Framers, and they cared about establishing a bill of rights that were God-given, natural rights according to and interpreted with the backdrop of those signers of the Declaration of Independence, just years earlier.
Notice that of George Mason (a member of the Constitutional Convention and The Father of the Bill of Rights”): [A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others. (Barton, 2009, p. 39)
Even the Preamble of the Constitution states that one of the reasons for the document is to establish liberty for future posterity or the generation of children to follow in succession. Scholar and Researcher James D Moseley of Brigham Young University states,
The American framers understood the Declaration of Independence to be the fundamental legal document attesting to the existence of the United States. All laws under the Constitution date from the Declaration. It is the document of the American Revolution for separation from Great Britain, as it is the document for union of the colonies. The natural and divine rights of the Declaration are the basis for the civil rights of the Constitution. The Declaration also gives the Constitution its moral purpose and points to a limited government, "to secure these rights." The Declaration's principles are from reason (political philosophy) and revelation (Scripture), with such words as "Creation," "self-evident truths," and "laws of nature and nature's God." (Moseley, 2018, p. 145-146)
This liberty of the First Amendment was not intended to impose a restriction upon individuals from participating in the government just because they happened to have a religious worldview. In fact, many of the framers of the Constitution were people that were religious people with religious worldviews, and those religious worldviews had an impact on the verity and coherence of the logic of the document itself. James Madison is known as the Father of the Constitution, and he is memorialized by the Montpellier Foundation, which notes a little religious history concerning this Framer,
As a state legislator in 1776, Madison proposed a small but profound change in the wording of the Virginia Declaration of Rights, which had said that everyone should have “fullest Toleration” of their religion. That wording implied that one religion was approved while the government would merely put up with others. Madison successfully argued that the wording should be changed to “free exercise of religion,” which truly protected the right to follow one’s conscience. In 1785, as the legislature debated whether to continue to fund churches with tax money, Madison wrote an influential petition called “Memorial and Remonstrance,” which clearly laid out 15 arguments against government support of churches. Madison emphasized that religion was a matter of individual conscience and could not be directed by the government in any way. (James Madison's Montpellier, 2023)
This religious man had no qualms with governing before God, but he didn’t believe it was the state’s role to dictate which religion a man should believe in his conscience. Part of the reason for the distinguishment of church and state that the framers of the Constitution wanted to make was due to the role of the State being very different than the role of the church. It was the role of the church to persuade the conscience, and the government is in a precarious position to truly persuade the conscience because its role is to use force to dictate outcomes for moral order: Or, as Romans 13 called it, the sword.
(Romans 13:1-4) 1 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. 2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. 3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same: 4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. (King James, 1769)
Providing moral order is best kept with a measure of some enforcement, and that is something that the history of civilization can attest to.
We must have government. Only government can perform certain tasks successfully. Without the government to defend us from external aggression, preserve domestic order, define and enforce private property rights, few of us could achieve much. Unfortunately, a government strong enough to protect us may be strong enough to crush us. (Higgs, 1987, p. 3)
This distinction in Church and State’s roles keeps the state from being in a position to outright ordain a religion as exclusive and then proceed to govern by force to make one believe like that religion or any religion for that matter. It is not that the legal laws have no moral boundaries founded in the Bible or have the root in Natural Law but that these legal laws cannot be punishable by force to make someone believe in their conscience. Human lawmakers making human laws have, for the most part, always sought to give a moral justification for the laws that they create. (Romans 2:14-15) 14 For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: 15 Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the mean while accusing or else excusing one another;) Murder is a moral law that can be enforced because the government is in the business of legislating the behavior of people. This legislation of behavior through laws has a moral founding that guides men’s hearts as a bumper bowling rail guides a child’s bowling session. It also seeks to guide moral, civil order in society and draw men to a learning heart and a moral foundation in their Creator God. It’s not the government’s job to persuade the conscience but dictate the moral order as the Creator intends. Oddly enough, this distinguishment of church and state was learned and self-actualized in our nation from the Bible. The Bible was the foundation for the Framers of this nation’s constitution, and this privately formed conscience guided their intellectual idealism and established a more perfect union. Interestingly, if they had not thrown off this idea of a church-state as practiced in England during their era, then they would not have been free to declare these liberties to future generations that were to follow. David Barton, a noted Historian, and the owner of the world’s most extensive private collection of revolutionary era documents demonstrates an egregious example of this hypocrisy when he states,
It is unconstitutional for the Ten Commandments to continue being displayed in a solitary setting at public courthouses and government buildings – despite the fact that the Ten Commandments are a basis of civil law in the Western World and are depicted in multiple locations throughout the U. S. Supreme Court and other federal buildings. HARVEY v. COBB COUNTY, 1993;14 YOUNG v. COUNTY OF CHARLESTON, 1999;15 ACLU OF TENNESSEE v. HAMILTON COUNTY, 2002;16 GLASSROTH v. MOORE, 2003;17 ADLAND v. RUSS, 2002;18 ACLU OF OHIO v. ASHBROOK, 200419 (Barton, 2009, p. 19)
The ruling of governments under God is not a religion at all. This natural law was founded well before America existed in the non-Christian philosopher’s public policy. It is what Plato called the Teleological law of nature to its natural end of an eternal mind. Aristotle labeled it as an eternal mind of the unmoved mover, “God.” (Duke, 2020, p. 15)All 50 States of the United States of America have the word God in their State Constitutions.
All but four state constitutions – those in Colorado, Iowa, Hawaii, and Washington – use the word “God” at least once. The constitutions in Colorado, Iowa and Washington refer to a “Supreme Being” or “Supreme Ruler of the Universe,” while Hawaii’s constitution makes reference to the divine only in its preamble, which states that the people of Hawaii are “grateful for Divine Guidance.” (Sandstrom, 2017)
The purpose then of the First Amendment was to keep the national government from establishing a denomination, a particular state church that everyone must follow without the freedom and dictates of the conscience, or to provide an oppressive favor in outweighing all other denominations. There is a difference between the Constitution forbidding the national government from doing this and the Constitution telling the state how, why, and what to do. The states are in a covenantal agreement to share sovereignties with a national government, and that agreement is known as federalism. As Duncan noted the words of the premier twenty-first-century scholar on the subject content of Federalism,
Elazar explains the general linkage between that concept and political theory in the following manner: "Just as God limits the exercise of His omnipotence by entering into covenants with humanity, thereby endowing people with freedom, so too does covenant limit the exercise of the boundless self, not only for the common good but also individual freedom. Thus, while contracts tend to create relations of mutual self-advantage and limited liability, the thrust of covenant is toward the creation of communities or commonwealths animated by concern for the public good" (Duncan, 2001, p. 716)
The covenant of Federalism, as understood in the Constitution of the United States of America, is a sacred trust between the States and their respective Union to not trample on each other’s sovereignties in the power-sharing structure.
It was not until the First and Fourteenth Amendments were merged in a court ruling that the SCOTUS made themselves the Supreme arbitress in the land regarding religious governing. To be clear, this is not to argue as to whether or not States should adopt a state church, only to say decisively that the constitutional authority of the national government has been given enumerated powers in the Tenth Amendment, and the remainder of the power goes back to the states for governance. “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.” (The Constitution of the United States of America, Article 1 Section 8) As Frohnen et al. state in their book Constitutional Morality and the Rise of Quasi-Law,
Some recent academics have sought to dismiss such criticism of the new dispensation by pointing to political checks on power that may still exist in our society.1 But political checks are not law. They neither rely upon nor encourage a habit of obedience to formal, constitutional structures and procedures. And the loss of such habits constitutes a significant loss to social order, the possibility of liberty, and resistance to the political pursuit of evil. The loss of constitutional structure and formalities not only has led to lawmaking that fails to abide by law in the higher, constitutional sense; it also has produced laws that increasingly fail to conform to basic standards of internal morality. And to the extent our laws no longer have the fundamental characteristics of law—are no longer predictable, known, consistent, and in accord with the other standards recognized as essential by Lon Fuller, among others—it is safe and necessary to say we no longer live under the rule of law. (Frohnen & Carey, 2016, p. 183-184)
Frohnen and Carry give the natural teleological end to the Constitution being separated from its original intent: and that is that the functional moral component of judges and swaying public opinion will carry out their definitions of not allowing the Federal government to establish a national denomination as was intended to the current habit of “prohibit any form of the Christian religion from even showing up in the thoughts of those who would make and interpret laws.”
As David Barton notes,
However, in Everson (1947), the modern Court discarded this objective. It first divorced the First Amendment from its original purpose and then reinterpreted it without regard to either historical context or previous judicial decisions. The result was that the Court abandoned the traditional constitutional meaning of “religion” as a single denomination or system of worship and instead substituted a new “modern” concept which even now remains vague and nebulous, having changed several times in recent years. (Barton, 2009, p. 36-37)
One cannot give David Barton too much credit for not only documenting his findings of the originally documented understandings of the minds and thoughts of the framers and those who have interpreted its document throughout the history of the United States, but in many cases, he owns these documents, reports, or correspondents in his own personal collection. He can just go into his study and peek at the intentionality of the verbiage of the day in the context of the pool of original resources. As he reports on his findings of how original intent was understood after the First Amendment was drafted and then interpreted by Congress in 1853,
Notice, too, the same clear understanding expressed in the 1853-1854 House and Senate Judiciary Committee reports: HOUSE JUDICIARY COMMITTEE: 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 a 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 [denomination]. Any attempt to level and discard all religion would have been viewed with universal indignation…. It [religion] must be considered as the foundation on which the whole structure rests…. In this age there can be no substitute 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 descendents.32 SENATE JUDICIARY COMMITTEE: The clause speaks of “an establishment of religion.” What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother-country…. [which was an] endowment, at the public expense, in exclusion of or in preference to any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided…. They [the Founders] intended, by this Amendment, to prohibit “an establishment of religion” such as the English Church presented, or any thing like it. But they had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people … they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy.33 The First Amendment was enacted only for a very narrow purpose and to prohibit a very specific offense. (Barton, 2009, p. 48-49)
Congress understood the First Amendment with consensus because there was a precedent set in court rulings that helped them understand what the First Amendment was and how it limited their powers. It was not until recently that the term “impregnable wall of separation of church and state” was used as interpretive facts to help “better” understand the Constitution. This term originated with a correspondent in the Thomas Jefferson collection. “That metaphor became the contemporary standard for judicial policy in 1947 in Everson v. Board of Education when the Court proclaimed: The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” (Barton, 2009, p. 18) Unfortunately, the court used Jefferson’s correspondence with the Danbury Baptist, requesting a Bill of Rights be added to the Constitution and that the Federal government not be for national religion, when Jefferson was not even on the Bill of Rights Committee. It would seem that the original intent of the other (just under one hundred) committee members might be best suited to read and interpret the actual verbiage in the Bill of Rights.
Instead of the First Amendment protecting the rights of its citizens protecting their freedom to worship within the dictates of their conscience, it’s the correct case at the Supreme Court is not considering an issue as to whether or not a man can attend his Sabbath services while being simultaneously scheduled to work for the U.S. Postal service. As the official petition notes,
The questions presented are:1. Whether this Court should disapprove the more- than-de-minimis-cost test for refusing Title VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate “undue hardship on the conduct of the employer’s business” under Title VII merely by showing that the requested accommodation burdens the employee’s co-workers rather than the business itself. (Gerald E. Groff, Petitioner v. Louis DeJoy, Postmaster General, 2022)
The question of prohibiting a religious practice oppressively by not making reasonable accommodations for this man is the key concern that makes this a First Amendment issue, especially since it is essentially the Federal government via the Post Office driving this practice. Earlier precedents were set by overreaching judicial activism, such as “A citizen riding a public bus cannot give a fellow rider a book containing Bible stories. ANDERSON v. MILWAUKEE COUNTY, 20065 A Bible school or church may not use the word “seminary” or issue Biblical degrees unless the State first pre-approves the Bible courses, Bible teachers, and theological curriculum. H.E.B. MINISTRIES v. TEXAS, 20036” (Barton, 2009, p. 18)
The Annals of Congress from June 8, 1789, to September 25, 1789, contains the official records of those who drafted and approved the First Amendment. Notice some of their discussions on its intent: AUGUST 15, 1789. Mr. [Peter] Sylvester [of New York] had some doubts…. He feared it [the First Amendment] might be thought to have a tendency to abolish religion altogether…. Mr. [Elbridge] Gerry [of Massachusetts] said it would read better if it was that “no religious doctrine shall be established by law.” … Mr. [James] Madison [of Virginia] said he apprehended the meaning of the words to be, that “Congress should not establish a religion, and enforce the legal observation of it by law.” … [T]he State[s]… seemed to entertain an opinion that under the clause of the Constitution … it enabled them [Congress] to make laws of such a nature as might… establish a national religion; to prevent these effects he presumed the Amendment was intended…. Mr. Madison thought if the word “national” was inserted before religion, it would satisfy the minds of honorable gentlemen…. He thought if the word “national” was introduced, it would point the Amendment directly to the object it was intended to prevent.11 The State debates surrounding the ratification of the First Amendment reinforce this intended purpose. Notice, for example, Governor Samuel Johnston’s comments during North Carolina’s ratifying convention: I know but two or three States where there is the least chance of establishing any particular religion. The people of Massachusetts and Connecticut are mostly Presbyterians. In every other State, the people are divided into a great number of sects. In Rhode Island, the tenets of the Baptists, I believe, prevail. In New York, they are divided very much: the most numerous are the Episcopalians and the Baptists. In New Jersey, they are as much divided as we are. In Pennsylvania, if any sect prevails more than others, it is that of the Quakers. In Maryland, the Episcopalians are most numerous, though there are other sects. In Virginia, there are many sects; you all know what their religious sentiments are. So in all the Southern States they differ; as also in New Hampshire. I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.12 In that same convention, Henry Abbot further explained: Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal.13 The records are succinct; they clearly document that the Founders’ purpose for the First Amendment is not compatible with the interpretation given it by contemporary courts. The Founders intended only to prevent the establishment of a single national denomination, not to restrain public religious expressions. (Annals of Congress)
“The records are succinct; they clearly document that the Founders’ purpose for the First Amendment is not compatible with the interpretation given it by contemporary courts. The Founders intended only to prevent the establishment of a single national denomination, not to restrain public religious expressions.” (Barton, 2009, p.18)
There is little debate from these archives as to what the Amenders meant. Establishing a national religion is a far cry from allowing people with a religious worldview to participate in governance. In fact, it is precisely this Christian worldview that the Amenders themselves held that allows all to govern regardless of their religious denomination. Their practices may undoubtedly come under scrutiny regarding how their beliefs dictate their actions at the state level and in front of their constituents when it is time for a vote.
Conclusion
The time of re-examination and reinterpretation for the original intent of all of the authors of the First Amendment is long overdue because of the deviation from its origin and the dereliction of the handlers of these laws. There is a need for equal application of this interpretative method to assess the outcomes of our recent verdicts regarding religious liberty. Suppose one wished to establish this doctrine of a secular state, “free from religion”. In that case, it is well within the ability of the Constitution and its current handlers to be amendable and succinctly say what they intend to be law. As Lee Strang so succinctly displays in his book Originalism’s Promise, “The Constitution’s original meaning is the primary mechanism of communication of legal directives among the Framers, Ratifiers, government officers, and all Americans, in light of the conditions and the process of constitutional communication in the United States.” (Strang, 2019, p. 44) However, it is dishonest to continue this charade of dogma just because it is public opinion. As McClellan writes when referring to the Constitution, “The basic interpretive task is to determine the intent of the Constitution, laws, and treaties, and to construe all instruments accordingly to the sense of terms and the intentions of parties.” (McClellan, 2000, p.463) Suppose one insists on changing the doctrine of the Constitution to match the permanent will of the people as to be interpreted by future generations. In that case, one must start with the document itself and not forced and coerced insistence transferred or eisegeses upon the document.
Did the Framers of the Constitution of the United States of America intend for the First Amendment to forbid people from actually acting out their beliefs (within the framework of their religious worldview) while participating in governance? They did not. The Framers of the Constitution of the United States of America intended for each man to be able to practice his worldview while actively participating in the governance of each other. The great exchange of ideas as to the best form of government is foundational in belief systems otherwise known as “world views,” and there is no such thing as a neutral worldview.
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References
Annals of Congress
Barton, D. (2009). Original Intent
The Constitution of the United States of America, Supreme Law of the United States of AmericaU.S.C. https://www.govinfo.gov/content/pkg/GPO-CONAN-2017/pdf/GPO-CONAN-2017.pdf
Duke, G. (2020). Aristotle and Natural Law. The Review of Politics, 82(1), 1-23. http://dx.doi.org.ezproxy.liberty.edu/10.1017/S0034670519000743
Duncan, C. M. (2001). The Covenant Connection: From Federal Theology to Modern Federalism. Edited by Daniel J. Elazar and John Kincaid. Lanham, MD: Lexington Books, 2000. 352p. $75.00. American Political Science Review, 95(3), 716-717. 10.1017/S0003055400500045
Frohnen, B., & Carey, G. W. (. W. (2016). Constitutional morality and the rise of quasi-law. Harvard University Press.
Higgs, R. (1987). Crisis and leviathan : critical episodes in the growth of American government. Oxford University Press.
James Madison's Montpellier. (2023). James Madison's Montpellier. Retrieved Aprile 18th, 2023, from https://www.montpelier.org/learn/religious-freedom
King James. (1769). King James Bible . Oxford University Press.
McClellan, J. (2000). Liberty, Order and Justice: An Introduction to the Constitutional Principles of American Government (Third ed.). Liberty Fund.
Moseley, J. D. (2018). THE U.S. CONSTITUTION OF 1787, BASED ON REASON AND REVELATION. Journal of Interdisciplinary Studies, 30(1/2), 145. https://go.openathens.net/redirector/liberty.edu?url=https://www.proquest.com/scholarly-journals/u-s-constitution-1787-based-on-reason-revelation/docview/2160330668/se-2?accountid=12085https://liberty.alma.exlibrisgroup.com/openurl/01LIBU_INST/01LIBU_INST:Services??url_ver=Z39.88-2004&rft_val_fmt=info:ofi/fmt:kev:mtx:journal&genre=article&sid=ProQ:ProQ%253Areligion&atitle=THE+U.S.+CONSTITUTION+OF+1787%252C+BASED+ON+REASON+AND+REVELATION&title=Journal+of+Interdisciplinary+Studies&issn=08900132&date=2018-01-01&volume=30&issue=1%252F2&spage=145&au=Moseley%252C+James+D&isbn=&jtitle=Journal+of+Interdisciplinary+Studies&btitle=&rft_id=info:eric/&rft_id=info:doi/
Sandstrom, A. (2017). God or the divine is referenced in every state constitution. Pew Research Center. Retrieved April 18th, 2023, from https://www.pewresearch.org/fact-tank/2017/08/17/god-or-the-divine-is-referenced-in-every-state-constitution/
Strang, L. J. (2019). Originalism's Promise: A Natural Law Account of the American Constitution. Cambridge University Press. 10.1017/9781108688093
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