Congress shall make no law... - An Historical Thread

Discussion in '2003 Archive' started by rlvaughn, Aug 28, 2003.

  1. rlvaughn

    rlvaughn
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    In several places I have noticed something touched on, but we have not gone over it in detail - Was the First Amendment - "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." - intended to only restrict the right of the Federal Legislative Branch in the area of religion or does it also restrict state governments as well? Current practice and the common viewpoint seem to favor the latter view. But was this the original idea in the minds of the framers? The Constitution was drafted in 1787 (by 1788 the nine states needed had ratified it) and the Bill of Rights (1st ten amendments) was added in 1791. Are there any facts from that time that speak to the issue? One fact that has been mentioned is that even AFTER the adoption of the Bill of Rights some states had their "established" religions. I believe one of these was Massachusetts. If memory serves, Massachusetts had a state church well into the 19th century, though I haven't found any documentation of that time-frame yet. Any information on them and/or others will be welcomed. Another state with a state church was Connecticut. The exchange between Thomas Jefferson and the Danbury (CT) Baptist Association provides some insight into political and religious thought a decade after the First Amendment was adopted.

    Danbury Baptists side with religious liberty:
    Connecticut legislated religion, and religious privileges to others were "favors" granted by the state and not rights:
    The Danbury Baptists did not seem to think that the First Amendment overrode the State Constitution concerning religious freedom:
    But they did hope views such as those held by President Jefferson would eventually prevail among all the states:
    Jefferson clearly establishes his belief in religion as a matter between a man and his God, and agrees with the Danbury Baptists:
    Jefferson gives his much debated "separation of church and state" comment, but to my mind is a little vague when he speaks of their legislature, which seems to mean the U. S. Congress:
    Nevertheless, Jefferson seems to note the First Amendment as "the supreme will of the nation" and desires to see this progress made throughout the whole nation:
    In conclusion, it seems that the Danbury Baptists understood that the First Amendment protected them on the federal rather than the state level, while I am not altogether clear on Jefferson's view (based on this letter). What Jefferson did not say may be telling - he did not say that Connecticut cannot do such & such because the U. S. Constitution/Amendments prohibits it! It is my opinion that states should not "make laws respecting an establishment of religion...," but that it is also quite possible that the framers only intended to keep the federal government out of religion, and did not contemplate the states in their language in the First Amendment.
     
  2. Clint Kritzer

    Clint Kritzer
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    Hi Robert.

    Do you think that the satement in Article VI sec. 2 of the Constitution may play some role in the application of the 1st Ammendment?

    Seeing as how the Constitution is the "supreme law," the fact that "no laws" could be imposed by Congress supercedes the desire of a state to mandate such. In other words, had the Constitution remained silent on the matter, then the states would have the right. But, since it (right to religious freedom) is mentioned, the "supreme law" established by the Feds gains dominance.

    I had also asked on one of the previous threads, since speech and press appear in the same sentence, could those liberties also be quashed by a state?

    I don't have any links on the subject you have brought up, but I sure have a collection on religious liberty since this all began! Makes this ol' boy proud to be a Baptist and a Virginian!

    We maintain therefore that in matters of Religion, no man's right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.
    - James Madison Memorial and Remonstrance Against Religious Assessments 1785
     
  3. rlvaughn

    rlvaughn
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    Trying to sort out the Constitution of the state of Massachusetts, here is what I think I've found.

    Original statements on religion:
    This was replaced by an Amendment (but I'm not sure what year):
    Amendment Article XVII was adopted in 1917:
    If I have correctly inspected the Massachusetts Constitution, this reflects their evolution of views on religious freedom/separation of church & state from state supported Protestant religion at the Constitution's adoption in 1780 until expunging all state support of religion in 1917. The evolution of this document seems to have come through changing of viewpoints among the citizens of the state of Massachusetts, rather than through federal judicial review, but I cannot say that for certain. This would tend to support the idea that the original fathers and framers saw the First Amendment as regulating the Federal government only, rather than the states.

    According to my encyclopedia, the Constitution of the Commonwealth of Massachusetts is the only original constitutional document still is use of all the Constitutions of the original thirteen states of the united States.
     
  4. rlvaughn

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    This certainly sounds plausible, but we must also consider it in light of the 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." One thing that becomes obvious when reading some of our better early political thinkers is that even they were not agreed on the proper relationship of federal and state government - what we might call "states' rights" issues.

    Nevertheless, I do think there is some evidence that early on, many people did not consider that the First Amendment applied to the States. Often you will see this religion and state 'union' in the states with heavy Puritan/Congregational influence, such as Massachusetts and Connecticut. Probably less than 150 years before the U. S. Constitution, Massachusetts was whipping Baptists (re: Clarke, Holmes, et. al). Remember that I am not advocating that States are morally right to dictate religious views to their citizens, but am investigating the possibly or probability that our founders did not understand the First Amendment as applying to state government. There may be practical evidence to the contrary. But I think what I've shown thus far tends to favor that historically.
     
  5. Clint Kritzer

    Clint Kritzer
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    I would be quite shocked if you did! [​IMG]

    I'm looking around for information specific to the Massachusetts issue. This link speaks of Isaac Backus fighting the Mass. Constitution, an argument he lost. This doesn't add much to your investigation, but may give you a keyword or two.

    http://www.loc.gov/exhibits/religion/rel05.html

    Being made of the red mud of Jefferson Country, I grew up hearing about the Hamiltonian-Jeffersonian debates over state rights. However, the statesmen here in Virginia were quite outspoken about the seperation of the state and religion. It was a concept of which both sides of the aisle stood firmly. (I may have a very strong "regional bias" on this topic to begin with. [​IMG] )

    Massachusetts, on the other hand, was descendant of Puritan stock, one of the greater sects of religious oppressors in our history. Certainly by the time the nation was being formed, other religions had entered the Colony, but that mindset coupled with the ripples still being felt from the Great Awakening influenced these politicians to take the role as "nursing fathers".
    A further thought upon your citing of the Danbury Baptist/Jefferson exchange: Jefferson, being the President, would have had no authority to say one way or the other if the Massachusetts Constitution was within Federal regulation or not. That would be the role of the courts, the Judicial branch of the government. Just as it is today.
     
  6. rlvaughn

    rlvaughn
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    Certainly Jefferson would have had no authority, but if it were his thinking that such provisions as in the Connecticut constitution were unconstitutional, it would seem he would have at least mentioned it, and corrected what would have been the somewhat incorrect thinking of the Danbury Baptists. I've read many debates over the "separation" statement in Jefferson's letter, but have seen few people address the content of the letter of the Danbury Association.
     
  7. Clint Kritzer

    Clint Kritzer
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    Wow! A six hour nap and you're right back at it, eh, Robert? [​IMG]

    I just realized from your last post that the Danbury folks were Connecticut, not Massachusetts. I'll search around some more today with a more specific criteria. [​IMG]
     
  8. Clint Kritzer

    Clint Kritzer
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    Robert -

    It appears that your conjecture over Jefferson's view of the 1st Ammendment is confirmed by a few quotes I found:

    http://members.tripod.com/~candst/tnppage/arg14.htm

    However, it has been affirmed that the 14th Ammendment, in the modern day, supercedes the 10th in this matter:

     
  9. rsr

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    As Jeff Weaver said on another thread:

    Looks like you've covered a lot of ground so far.

    I don't think there is much doubt that the Founders understood the First Amendment as applying to the states; but it seems clear that Baptists (as exemplified in the writings of Backus and Leland) that they actively lobbied in favor of attempts to disestablish the state-supported churches.

    Rhode Island, for example, never had an established church, (and I don't think Pennsylvania did either) but other colonies did. Virginia disestablished the Anglican church before the U.S. Constitution was adopted, but Massachusetts did not finally disestablish until the 1830s.

    As to Jefferson's understanding of the extent of the First Amendment, I would add this snippet that he wrote in his first draft of the letter to the Danbury Baptists:

    Jefferson must have believed that the amendment affected not only legislation, but his own actions as the nation's chief executive. (I have little doubt that is the case; why he removed the words from his final copy of the letter I can only guess; I suspect it was because he had learned to say less about religion than he thought because.)

    However, it is doubtful the Founders had any idea the lengths to which the concept would be applied by modern courts. (Madison, I'm not sure about; he just might have gone that far.)
     
  10. rlvaughn

    rlvaughn
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    Clint, you may be correct. The 14th Amendment, as currently interpreted, may make whatever intent the framers had one way or the other merely an interesting discussion with no application to our current situation. I did find it interesting in the last link you gave that six of the thirteen states had "religious establishment" at and beyond the time of the adoption of the First Amendment.

    Stephen, I think that Pennsylvania had "kind of" an established church (Quakers) - not in the sense of the other 11 colonies, but not total religious freedom as in Rhode Island. It is interesting that Rhode Island was the last state to ratify the U. S. Constititution - in 1790 by a vote of 32 to 30.

    In relation to religious establishment in the early history of the United States, I think it well to remember that often the individuals quoted by others to show that the U. S. was a "Christian nation" are individuals who in their own states had establishment of religion.
     
  11. rsr

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    Thought I'd pass along an interesting discussion in Liberty magazine of what "free exercise of religion" meant at the Founding:

    Liberty magazine, November-December, 1997

    THE FREE EXERCISE CLAUSE

    BTW, the Constitution's prohibition of religious tests for public office and responsibility provoked many a debate during ratification.

    Rhode Island, for instance, placed some civil disabilities on Roman Catholics until 1783. In fact, only the Virginia and New York constitutions outlawed such tests.

    Some of us forget at times how revolutionary that clause of the Constitution really was.

    James E. Wood, Jr., " 'No Religious Test Shall Ever Be Required': Reflections on the Bicentennial of the U.S. Constitution," Journal of Church and State 29 (Spring 1987)
     
  12. Clint Kritzer

    Clint Kritzer
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    Another thought to add to the mix on Jefferson's response is that it has been conjectured that the Danbury Baptists' letter was part of a political move in a wider sweeping campaign to attain seperation of church and state in Connecticut.

    Submitted for your consideration:

    Jefferson may have recognized this alleged ploy on the part of the Baptists and deliberately stayed clear of any incriminating comments.
     

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