WITH LIBERTY AND JUSTICE FOR ALL (Part Two)
The Pledge of Allegiance and
the "Wall of Separation" between Church and State
on the day after Our Nation's 226th Birthday
Friday, July 5, 2002
by RICHARD E. BERG-ANDERSSON
Yesterday, President George W. Bush emphatically declared- on the very holiday that marks the anniversary of another, much earlier Declaration-that "[n]o authority of government can ever prevent an American from pledging allegiance to this one Nation under God". He's right, you know! No authority CAN do that- not even a judge of the 9th Circuit Court of Appeals!!... but, of course- truth be told, no authority ever DID... for, regardless of what one might think of that rather controversial opinion of last week, that particular judge's decision DIDN'T do anything to stop any American from so pledging allegiance (tens of millions did so yesterday- many of these doing so in defiant answer to the court's decision; however, many of these same people would, so I am sure, also opine that the judge DID try to stop Americans from saying the Pledge as written- their very actions, of course, well undermined their argument [though I sincerely doubt they themselves would accept this premise]). Yet, since when have actual facts- let alone reason and logic- really ever mattered in an Election Year?
For we are here dealing with essentially the same political issues that are involved in the long-running (for now just over 40 years since the first of the landmark cases on this particular subject, Engel v. Vitale, was decided by the U.S. Supreme Court) debate over the constitutionality- as well as, at times, the efficacy- of Prayer in Public Schools. Engel- which ruled that a State could not compose a prayer, no matter how (allegedly) nondenominational or otherwise ecumenical, for use in the public schools of that State- was decided on 25 June 1962 (the Monday after I had just completed kindergarten outside of New Haven, Connecticut and [over the ensuing weekend] moved, at the tender age of 6, with my Mom and Dad to Staten Island, New York City). The other landmark case on this subject, Abingdon School District v. Schempp- which ruled that the First Amendment prevented States from requiring religious exercises in their public schools, was decided on 17 June 1963 (as I was in my penultimate week as a first grader on Staten Island).
Now, I dare say I continued to attend the public schools of New York City, followed by a longer stint in the public schools of a Northern New Jersey suburb for another 11 academic years thereafter before finally graduating from high school in 1974 and I will let all those who might read this piece in on a "dirty little secret": I PRAYED IN PUBLIC SCHOOLS! Yep-- now (as I am quite sure the "statute of limitations" for my "crimes" has well expired) it can be told: I actually engaged in the rather "hideous" practice of praying to God Almighty Himself while sitting inside a public school!!
But I'll let you in on an even "dirtier" secret as you all recover from your deep intake of breath and guttural cries of "horrors!": NO ONE EVER STOPPED ME FROM PRAYING IN A PUBLIC SCHOOL!!! And do you know WHY?! Because I didn't at all force everyone else in my Geometry class or in Study Hall or wherever I happened to be at the time I uttered my prayers to actually sit there and listen to my prayers! Putting it as bluntly as I can so that even the least of my readers can understand: I did NOT seek to shove MY own deeply and strongly held religious beliefs down anyone else's throat without their having first indicated to me a willingness to hear them in the first place!! So successful was I, in fact, in keeping my religious views to myself while I was growing up that I was quite widely viewed- by many, if not most, of my peers during my junior high and high school days- as being rather irreligious (though this was mostly due to the common adolescent practice of judging someone by who at least some of their friends and associates happen to be): even more than a few in my local church group openly wondered just what I was doing attending its meetings since I was so "obviously" an "atheist" (when, indeed, nothing could have been further from the truth!)
All in all, I was never prevented from praying in public school by a decision by even the most liberal of Supreme Courts... of course, neither was anyone else (despite some shallow and baseless claims to the contrary!)
Likewise, there is nothing in the opinion that recently came out of Federal court in California (regardless of the particular merits, or lack thereof, of that decision) that prevents anyone from saying the Pledge of Allegiance- with or without that "under God" 'thang'- even in a public school. What the decision does, at best, is to keep a State from forcing people- in this case, public schoolchildren- from reciting the "under God" clause of the Pledge in a potentially coercive manner. If you want to attack the recent decision on the Pledge, be my guest-- it's still a free country, last time I checked... but at least be honest- or, to put it another way (since we are here touching, however lightly, on matters theological), at least do not at all "bear false witness"- about what the political and constitutional issues herein actually are!!
The words "Wall of Separation between Church and State" do not appear in the Constitution of the United States, it is true; nevertheless, the words themselves have a constitutional history. Their author was Thomas Jefferson, who- as President- responded to a letter from the Danbury Baptist Association with a letter of his own: an Open Letter, by the way- intended to be publicly read and discussed. In order to fully understand the meaning of this phrase and its possible constitutional applications, we must know the background of the original letter the Danbury Baptists wrote to President Jefferson and the origins of the ideas Jefferson put into his response: only context can bring clarity.
At the turn of the 18th into the 19th Century- 1800, the very year that then "old" Republican (to distinguish the Jeffersonian party from the present-day Republicans) Vice President Thomas Jefferson would wrest the Presidency from incumbent Federalist John Adams in a rather contentious election that wouldn't finally end until the very first time the Federal House of Representatives would be called upon to determine the President- the State of Connecticut, though legally "free and independent" along with its sister States since 1776, was still operating its State government under its colonial Charter, granted by King Charles II in 1662 (the only other State using its colonial Charter as its "constitution" at the time was neighboring Rhode Island). Under this document, the legislature in Connecticut was supreme- not only in terms of legislative functions, but in executive and judicial spheres as well! There was no honor given to the concept of Separation of Powers in the Connecticut of 1800!!
The State's legislature was originally called the General Court and actually went all the way back to even before the Fundamental Orders of Connecticut of 1638/9; as its name implied, it was a general gathering- originally of all the men of the colony's towns (so it was, in effect, a colony-wide Town Meeting!)- at the capital in which the Governor and his "Assistants" (these forming a council that was the colony-wide equivalent of the Board of Selectmen administering a Connecticut town between Town Meetings) would be elected annually and in which also the political and even judicial business of the colony would be transacted. As the colony grew and more and more towns were established, it became impractical to have everyone in the colony who could show up meet as the colonial government and so "deputies" were elected to represent the townspeople in the General Court held together with the Governor and his Court of Assistants.
Over time, the "deputies" became "delegates" and, at around the same time, began meeting separately from the Governor and his Assistants- the legislature was now made up of two houses, the lower house coming to be known as the General Assembly with the Court of Assistants as the upper house of the General Court. However, the Assistants- besides being one of two lawmaking bodies in the colony- also had to approve many of the executive decisions made by the Governor AND also served as the highest (judicial) court in the colony. When Connecticut became a State, the General Assembly became the House of Representatives, the entire General Court was itself renamed the General Assembly and, soon thereafter, the Court of Assistants became the State Senate but the executive and judicial functions (the Senate meeting as a "Supreme Court of Errors") remained part and parcel of the State's legislative upper house.
In essence, the "constitution" of Connecticut was whatever the General Assembly (particularly, its Senate) said it was; there was no Declaration of Rights, as was found in most of the earliest State Constitutions that 11 States- apart from Connecticut and Rhode Island- had been forced to draft in 1776/7 in the wake of the Declaration of Independence, in Connecticut's charter. Thus, Connecticut's General Assembly functioned much like Parliament in England: much of the State's "constitution" was unwritten (despite the existence of the Charter of 1662) and its legislature still truly held that "mini-Parliament" role the Patriot cause had claimed for all 13 colonial assemblies back at the start of the American Revolution!
There was, therefore, no constitutional restriction- on the State level- preventing Connecticut from passing and then enforcing a law that permitted Town Meetings throughout the State to raise taxes for the support of religious institutions in the town, provided that the religious institution so supported had a certain percentage of the town's rolls (lists of eligible voters) as members. Although this permitted towns with large minorities of other denominations to also fund said denominations, as a practical matter this law pretty much allowed for the public funding of the dominant Congregationalist churches in virtually every town in Connecticut! In Danbury, the Baptists did not meet the percentage threshold for receiving town funding for their church, yet these same Baptists were legally required to shell out their tax money for the support of other, larger denominations in that town!! And there was no recourse- no provision in the "constitution" of the State requiring even the acknowledgement of religious liberty- and, even if a suit on constitutional grounds were to be brought, the highest court in the State- the ultimate arbiter of Connecticut law- happened to also be the upper house of the very legislature that made the law as well as the very body that aided the Governor in the enforcement of that law!!!
Yet, Connecticut- as a State- couldn't do anything it bloody well pleased: as a constituent State of the Union known as the United States of America, Connecticut was, of course, bound by the U.S. Constitution which stated emphatically- in its Tenth Amendment- that "[t]he powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the People", implying that- were a State prohibited from doing something by the Federal Constitution- the State couldn't do it! And, while it is highly unlikely the Danbury Baptists were reasonably hoping that, somehow, the First Amendment guarantee of "free exercise" of religion and its not allowing for "establishment of religion" could be brought to bear directly upon Connecticut (for, indeed, it would take another Amendment to the U.S. Constitution- the Fourteenth- and its application, more than a century after the Danbury Baptists would write their letter to President Jefferson, to the States by the Federal Supreme Court before such a thing would become the stuff of American Constitutional Law), it seems that the Danbury Baptists were trying to more or less shame Connecticut into recognizing- and then doing "the right thing" about- their predicament by showing how out of step their State was with the basic concepts of Liberty embodied in the Federal document.
Thus, their letter to Jefferson- The Danbury Baptists clearly welcoming Jefferson's election as President: first of all, because Connecticut was a Federalist stronghold and there was no way the Federalist Administration of John Adams was ever going to acknowledge their particular problem. But they also welcomed Jefferson's election because Jefferson's views on religious liberty were already so well known, because they had been placed in writing a decade and a half earlier.
In 1785, the Commonwealth of Virginia sought to renew its financial support of the established church in that State- the Anglican (Episcopalian) denomination: the renewal of the levy, however, was arousing considerable controversy. Although he had once preferred Death if he could not have Liberty, Patrick Henry- by then a force in the Virginia legislature- proposed a modified measure that would provide financial support for "the Christian religion or of some other Christian church, denomination or communion of Christians or of some form of Christian worship" (the purpose of Henry's modification was clearly intended to- as was the case with the Connecticut law that the Danbury Baptists opposed- mollify non-established church Christians). A young up-and-comer within the Virginia legislature, however, stood in opposition to even this proposal; this up-and-comer was none other than one James Madison (of whom one can read more in "Part One" of this Commentary, dated 1 July 2002). More importantly, Madison had garnered a powerful ally in his fight with Patrick Henry, none other than former Virginia Governor Thomas Jefferson, recently appointed United States Minister to France and still highly regarded as the principal author of the Declaration of Independence.
Jefferson ended up penning a "Bill for Religious Liberty" which was introduced in the wake of the defeat of Henry's measure on the floor of the Virginia House of Delegates, in which was written that "Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness"; it further declared that compelling someone to support "opinions which he disbelieves, is sinful and tyrannical". Thus did the Dambury Baptists know to whom they were writing!
So, on 7 October 1801, the Danbury Baptists complained to
although, at the same time, they were
For his part, Jefferson- a full century before another President, Theodore Roosevelt, would proclaim his office to be the "bully pulpit"- believed (rightly or wrongly) that one of the "hats" the President wore was that of Conscience of the Nation: it was, indeed, his own Republican twist on the Federalists' concept of the President as "Guarantor and Protector of the Liberties" of the Nation, its States and their People. He felt it was his duty to comment from time to time on the grander issues of the day and decided to respond to the Danbury Baptists in an Open Letter; he also intended it to be only one of a series of Open Letters on the issues nearest and dearest to him- of which Religious Liberty was just one. Jefferson composed his letter- but, of course, it was to be no ordinary letter! First, he ran it by his Attorney General, Levi Lincoln, to ascertain whether his sentiments well reflected a good legal argument for his position (after all, unlike Lincoln, Jefferson was not a lawyer). But then he gave it to a possibly even more important personage for the purpose within his own Cabinet- this being his Secretary of State, none other than James Madison!
Back during their alliance in opposition to Virginia's state support for established churches back in the mid-1780s, Jefferson had encouraged Madison to put together a Memorial and Remonstrance against the law. Madison had well argued therein that true religion did not need the support of secular law (simply put, if people willingly believe something they don't need government to tell them to believe it: implying that, if government has to pass laws to support religion, it is likely that it is precisely because people are not so willing to so believe!), that a free society required that men's minds be free and that, to force either believer or non-believer to support a religious institution, was wrong. Keep in mind that, less than five years later (again, see "Part One" of this Commentary, dated 1 July 2002), Madison- as one of the first Congressmen- was to introduce the very proposals that were to provide the basis of the Bill of Rights, which- of course- includes those famous provisions prohibiting "establishment of religion" or infringement of "the free exercise thereof". Now, a dozen years or so after that, Madison told Jefferson that the letter he was about to send off in response to the Danbury Baptists well fit Madison's own understanding of just what Non-Establishment and Free Exercise actually meant!
Thus armed with the opinions of the highest law enforcement officer
in the Land as well as the man who drafted what became the First
Amendment, the man who did the rough draft of the very Declaration that
spoke most eloquently about "inalienable rights"
"endowed by [one's] Creator" sent off his famous letter to
the Danbury Baptist Convention, dated 1 January 1802. In it Jefferson
responded, in part:
Jefferson's concept of the "Wall of Separation" has since been embodied into American Constitutional Law by the courts (mostly because Madison, the principal drafter of what became the Bill of Rights [including- of course- the Establishment and Free Exercise Clauses of the First Amendment], himself saw Jefferson's letter as agreeing with his own views of religious liberty going back to before he drafted the first proposed Amendments). In the 1870s, the U.S. Supreme Court- in the case of Watson v. Jones- opined that the clause mandating Non-Establishment was just as much a guarantor and protector of religious liberty as the Free Exercise clause and that the two clauses were, indeed, complementary: "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasions of the civil authority".
As I contemplate the place of Religion in American Society in the wake of the first Fourth of July since the horrific events of last September 11th, I think we can do a whole lot better than shoving Religion- in the cheap disguise of Sunshine Patriotism- down the throat of a little girl in a California classroom, for doing that is something seemingly much more conducive to the type of people who hate Religious Liberty, the very type who carried out the attacks of September 11th!