"The national government was itself the creature of the states. ... Yet today it is often made to appear that the creature, Frankenstein-like, is determined to destroy the creators." – President Dwight Eisenhower, Governors' Conference, June 24, 1957
The original thirteen states were afraid that the new federal government they just created might become too powerful, as King George's government had been.
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Mercy Otis Warren wrote in "Observations on the new Constitution, and on the Federal and State Conventions," 1788: "The origin of all power is in the people, and they have an incontestable right to check the creatures of their own creation."
George Mason, a delegate to the Constitutional Convention from Virginia, refused to sign the U.S. Constitution because it did not put enough limits on the federal government. George Mason's strong insistence that restrictive clauses be added to the Constitution to prevent an abuse of federal power earned him the title "Father of the Bill of Rights."
The Bill of Rights, or First Ten Amendments, were ratified Dec. 15, 1791.
The premble of the Bill of Rights stated:
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"... 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. ... Resolved ... that the following Articles be proposed to the Legislatures of the several states, as Amendments to the Constitution of the United States..."
Twelve Amendments were approved by Congress, signed by Vice President John Adams, as president of the Senate, and Rev. Frederick Augustus Muhlenberg, the Lutheran pastor elected a Congressman from Pennsylvania who was the first speaker of the house. These were sent to the states for their consideration. After much heated debate in state ratifying conventions, the states settled on ten amendments which were intended to limit, not themselves, but the federal government. These Amendments were to act, figuratively, as handcuffs on federal power.
The First Amendment to limit the federal Congress began:
"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."
During North Carolina's ratifying convention, Governor, Samuel Johnston argued, July 30, 1788: "The people of Massachusetts and Connecticut are mostly Presbyterians. ... 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. ... I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established."
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Supreme Court Justice Joseph Story, who was appointed by James Madison, explained in his "Commentaries on the Constitution of the United States," 1833: "In some of the states, Episcopalians constituted the predominant sect; in other, Presbyterians; in others, Congregationalists; in others, Quakers. ... The whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice and the state constitutions."
What acknowledgments of religion were in the state constitutions at the time those states debated and ratified the Bill of Rights?
The first state to ratify 10 of the proposed 12 articles of the Bill of Rights was New Jersey on Nov. 20, 1789. At that time, New Jersey was still operating under its 1776 Constitution, which stated: "All persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government ... shall be capable of being elected."
Maryland was the second state to ratify the Bill of Rights, Dec. 19, 1789. At that time, Maryland was still operating under its 1776 Constitution, which stated: "No other test ... ought to be required, on admission to any office ... than such oath of support and fidelity to this state ... and a declaration of a belief in the Christian religion."
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North Carolina was the third state to ratify the Bill of Rights, Dec. 22, 1789. At that time, North Carolina was still operating under its 1776 Constitution, which stated: "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 ... office."
South Carolina was the fourth state to ratify the Bill of Rights, Jan. 19, 1790. At that time, South Carolina was still operating under its 1778 Constitution, which stated: "No person shall be eligible to a seat ... unless he be of the Prostestant religion. ... The Christian Protestant religion shall be deemed ... the established religion of this state."
New Hampshire was the fifth state to ratify the Bill of Rights, Jan. 25, 1790. At that time, New Hampshire was still operating under its 1784 Constitution, which stated: "No person shall be capable of being elected ... who is not of the Protestant religion."
Delaware was the sixth state to ratify the Bill of Rights, Jan. 28, 1790. At that time, Delaware was still operating under its 1776 Constitution, which stated: "Every person ... appointed to any office ... shall ... subscribe ... 'I ... 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.'"
New York was the seventh state to ratify the Bill of Rights, Feb. 24, 1790. At that time, New York was still operating under its 1777 Constitution, which stated: "The United American states ... declare ... 'Laws of nature and of Nature's God ... All men are created equal; that they are endowed by their Creator with certain unalienable rights. ... Appealing to the Supreme Judge of the world ... A firm reliance on the protection of Divine Providence' ... People of this state, ordain ... the free exercise and enjoyment of religious profession and worship, without discrimination. ... Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness."
Pennsylvania was the eighth state to ratify the Bill of Rights, March 10, 1790. At that time, Pennsylvania was still operating under its 1776 Constitution, which stated: "Each member, before he takes his seat, shall ... subscribe ... 'I do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and the Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.'"
Rhode Island was the ninth state to ratify the Bill of Rights, June 7, 1790. At that time, Rhode Island was still operating under its 1663 Colonial Constitution, which stated: "By the blessing of God ... a full liberty in religious concernements ... rightly grounded upon Gospel principles, will give the best and greatest security ... in the true Christian faith and worship of God. ... They may ... defend themselves, in their just rights and liberties against all the enemies of the Christian faith."
Vermont was the 10th state to ratify the Bill of Rights, Nov. 3, 1791. At that time, Vermont was still operating under its 1777 Constitution, which stated: "And each member, before he takes his seat, shall make and subscribe the following declaration, viz. 'I ____ do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration, and own and profess the Protestant religion.' And no further or other religious test shall ever, hereafter, be required."
Virginia was the 11th state to ratify the Bill of Rights, Dec. 15, 1791. At that time, Virginia was still operating under its 1776 Constitution, which stated: "It is the mutual duty of all to practice Christian forbearance, love, and charity towards each other."
After the Bill of Rights were ratified by three-fourths of the states, Secretary of State Thomas Jefferson certified their adoption on March 1, 1792.
Regarding religion, Thomas Jefferson wrote to Samuel Miller, Jan. 23, 1808: "I consider the government of the U.S. as interdicted (prohibited) by the Constitution from inter-meddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the U.S. ..."
Jefferson continued: "Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general (federal) government. It must then rest with the states as far as it can be in any human authority. ... I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines. ... Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets."
The Legislative Reference Service of the Library of Congress prepared "The Constitution of the United States of America – Analysis and Interpretation" (Edward S. Corwin, editor, U.S. Government Printing Office, Washington, 1953, p. 758), which stated: "In his 'Commentaries on the Constitution,' 1833, Justice Joseph Story asserted that the purpose of the First Amendment was not to discredit the then existing state establishments of religion, but rather 'to exclude from the National Government all power to act on the subject.'"
Justice Joseph Story wrote in "A Familiar Exposition of the Constitution of the United States," 1840: "We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence than the framers of the Constitution). ... Probably, at the time of the adoption of the Constitution, and of the Amendment to it now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation. ..."
Story continued: "But the duty of supporting religion, and especially the Christian religion, is very different from the right to force the consciences of other men or to punish them for worshipping God in the manner which they believe their accountability to Him requires. ... The rights of conscience are, indeed, beyond the just reach of any human power. They are given by God, and cannot be encroached upon by human authority without a criminal disobedience of the precepts of natural as well as of revealed religion. The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government."
Thomas Jefferson stated in his second inaugural address, March 4, 1805: "In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general (ederal) government. I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it; but have left them, as the Constitution found them, under the direction and discipline of state and church authorities by the several religious societies."
Things began to change with the 14th Amendment.
In 1889, John Bouvier's Law Dictionary (Philadelphia, J.B. Lippincott Co.) gave the definition of "Religion" and then hinted of the novel use of the 14th Amendment: "'Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof' ... By establishment of religion is meant the setting up of state church, or at least conferring upon one church of special favors which are denied to others. ... The Christian religion is, of course, recognized by the government, yet ... the preservation of religious liberty is left to the states. ... This provision and that relating to religious tests are limitations upon the power of the (federal) Congress only. ... Perhaps the Fourteenth Amendment may give additional securities if needful."
The 14th Amendment was passed July 28, 1866, to force Southern Democrat states to give rights to freed slaves. But in solving one problem it created another.
Republican Congressman John Farnsworth of Illinois stated of the 14th Amendment, March 31, 1871: "The reason for the adoption (of the 14th Amendment) ... was because of ... discriminating ... legislation of those states ... by which they were punishing one class of men under different laws from another class."
The 14th Amendment was sponsored by Republican Congressman John Bingham of Ohio. When asked if he feared the 14th Amendment might open the door for the federal government to usurp rights away from the states, Rep. John Bingham replied: "I repel the suggestion ... that the Amendment will ... take away from any state any right that belongs to it."
Nevertheless, shortly after the 14th Amendment was ratified, activist federal judges began to do just that. Darwinist philosopher Herbert Spencer influenced Harvard Law School dean Christopher Columbus Langdell to apply evolution to the legal process. Rather than upholding the intent of those who wrote the laws, Langdell taught that laws could evolve through a series of "case precedents."
There developed two ways to change laws.
The first way to change laws requires motivating a majority of citizens to elect Congressmen and Senators, who in turn, need a majority to pass a law, which in turn needs to be signed by the president, who was elected by a majority.
The second way to change laws is much easier. Simply find an activist judge who is willing to subtly change the definitions of words that are in existing laws.
This evolutionary view influenced Supreme Court Justice Oliver Wendell Holmes, Jr., to challenge the traditionalist concept that the Constitution should only be changed by two-thirds of the states approving Amendments.
Federal courts gradually began to use the 14th Amendment to change the role of the Bill of Rights, particularly the first eight Amendments, from limiting the federal government to limiting the state governments.
Federal judges used the 14th Amendment, along with an expanded reading of the "commerce clause," to remove from states' jurisdiction responsibility over trade disputes, union strikes, and even what farmers could grow on their own farms.
Justice John Marshall Harlan warned in his dissent of Lochner v. New York (1905), the first case to overturn a state law on the grounds that the law violated the "due process" clause of the 14th Amendment: "No evils arising from ... (state) legislation could be more far reaching than those that might come to our system of government if the judiciary, abandoning the sphere assigned to it by the fundamental law, should enter the domain of legislation, and upon grounds merely of justice or reason or wisdom annul statute that had received the sanction of the people's representatives."
Federal court cases which began to creatively usurp state jurisdiction included:
- Freedom of speech and press, Gitlow v. New York, 1925 (re: Socialists) and Fiske v. Kansas, 1927 (re: Unions)
- Freedom of press, Near v. Minnesota, 1931 (re: anti-Catholics)
- Freedom of assembly, DeJonge v. Oregon, 1937 (re: Communists)
Federal judges used the 14th Amendment to remove from states' jurisdiction responsibility for freedom of religion in cases regarding Jehovah's Witnesses:
- Cantwell v. Connecticut, 1940
- Minersville School District v. Gobitis, 1940
- Jones v. Opelika, 1942
- Taylor v. Mississippi, 1943
- Martin v. Struthers, 1943
- United States v. Ballard, 1944
- Saia v. New York, 1948
- Niemotoko v. Maryland, 1951
Cases of anti-Catholic discrimination were appealed to the Supreme Court: Pierce v. Society of Sisters of Holy Names of Jesus and Mary, 1925, and Everson v. Board of Education, 1947.
Federal courts gradually created a case by case "crucible of litigation" method (Wallace v. Jaffree, 1985) by which the First Amendment took on an increasingly anti-religious interpretation. The federal courts figuratively took the handcuffs off their wrists and placed them on the states.
Thomas Jefferson warned Charles Hammond, 1821, how federal judges would be tempted to usurp power: "The germ of dissolution of our ... government is in ... the federal judiciary ... working like gravity by night and by day, gaining a little today and a little tomorrow ... until all shall be usurped from the states."
Ronald Reagan addressed the Alabama state Legislature, March 15, 1982: "The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny."
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