Image via WikipediaThe 1st 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."
So where does the "separation of church and state" come from? It comes from the "Everson vs. Board of Education" Supreme Court case in 1947.
From Blavatsky Net
Ewing Township in New Jersey had been using the public bus system to get the school children to school. The township had been reimbursing the parents of the children to pay for the bus trips. But of course, some of those children were sent to Catholic parochial schools and were taught religious teachings on premises. Mr. Everson objected, the case reached the Supreme Court and became known as Everson v. Board of Education.
For a century and a half this first amendment stood as intended. In fact it was hardly referenced. The federal government passed no laws establishing a national religion.
The court ruled in favor of the Township - they could continue to reimburse even Catholic parents without violating the constitution. However the majority opinion was written by Justice Hugo Black. Black indeed wrote for the majority but he slipped into the opinion a view of his own that was entirely contradictory to the ruling of the court. Yes - inconsistency in the same ruling. He added the new principle:
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.
This was a new and previously unknown legal principle.
So if the specific words of the constitution were completely clear, if the intents of those drafting the first amendment were totally clear, if this clause had been clear for a century and a half, on what basis did Black introduce a new dictum?
The answer is that he found some incidental words written by Thomas Jefferson - obviously a founder - written in 1802 that spoke of this "wall" between church and state. On that he overturned the understanding of a century and a half. These days we no longer hear that the court ruled in favor of the township but we hear over and over again about this wall.
Since so many judicial rulings of relevance have been based on this "wall," we should look a little deeper at what Jefferson actually said.
I will be quoting that snippet from a side letter of Jefferson upon which our constitutional law has been based for the last half century. But some background. A Baptist community in Danbury Connecticut had written a letter to Jefferson in 1802 congratulating him on his successful election to president. As part of his response Jefferson celebrated that the American people had passed the first amendment and that that amendment gave the protection to the Baptists that they desired. That is, the amendment protected the church from the state. Here is the snippet.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, 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 free exercise thereof," thus building a wall of separation between Church & State.
That Hugo Black misinterpreted this passage is apparently well known in some circles.
Ironically, Jefferson intended for his letter to the Danbury Baptists to reassure them that the new federal government would not endanger the free expression of their religion. This is widely known. But what is not well known is that Jefferson did not actually coin the phrase "separation of church and state." (The Marketing of Evil by David Kupelian, p 56, 2005).
So now we have another mystery. Who was Jefferson quoting and what did that person mean? The answer is that they were words from a sermon written by Roger Williams, a prominent Baptist.
That sermon, rendered by Roger Williams (the founder of the Rhode Island Plantation colony, and a Baptist), depicted the church as a garden, the world as a wilderness, and the wall as a device of the Creator's invention that protected the garden from being overrun by the wilderness. Williams explained that, from time to time, for the
purpose of disciplining sin in the church, "it hath pleased" the Almighty to break down the wall. Thomas Jefferson, ever the politician, knew when he communicated with the Baptists that "The Garden And The Wilderness" was well known and widely read nearly two generations later. He appealed to them in the terms of their own great man's idiom. (Jim Henderson, letter to the editor, *Whistleblower* magazine, December 2003, 43.)
So now we have it. In a sermon the Baptist had envisioned a "wall" separating church and state and being a device of God. Most importantly, the purpose of that wall was to protect the church from the state. It was not, as Hugo Black would have it, to protect the state from the church. Justice Black turned this meaning on its head.
And of course, this letter of Jefferson, is hardly the criterion to be used to determine the meaning of the first amendment. Supreme court Justice Rehnquist explains:
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history expressly freighted with Jefferson's misleading metaphor for nearly forty years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and
ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written fourteen years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment ( 1985 Wallace v. Jaffree Rehnquist).
And in the same opinion he wrote:
"The metaphor of a 'wall of separation' is bad history and worse law. It has made a positive chaos out of court rulings. It should be frankly and explicitly abandoned. (Rehnquist, dissenting opinion, Wallace v. Jaffree)
Jefferson was a sharp observer and thoughtful man. He wrote that incidental letter in 1802. By 1825 he wrote some words that apply particularly well to Judge Black:
This member of the Government [the judiciary] was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is ... by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." (Letter from Thomas Jefferson to Edward Livingston, 1825.)
I wonder if there is one question left. Why would a judge of the Supreme Court insert a new principle into an opinion that overtly contradicted the conclusion of that opinion? And why express it so vehemently?
Mark Levin, a long-time scholar of constitutional law makes this remark:
Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920's, when the Klan was deeply resentful of the growing influence of Catholicism in the United States. (Men in Black by Mark R. Levin p 43, 2005)
Roger K. Newman wrote a biography of Black in 1994. He explains that Black had desired the result, that though the township had won the case and been allowed to pay for the buses, still the school system would lose out.
His goal, he remarked at the time, was to make it a pyrrhic victory and he quoted King Pyrrhus, "one more victory and I am undone". (Roger K. Newman, Hugo Black, A Biography, 1994)
Black succeeded.
And we have one more voice. Black's son has written the book "My Father" and explained that his father shared the Klan's dislike of the Catholic Church:
The Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanshard's books exposing the power abuse in the Catholic Church. He thought the Pope and the bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and did not return enough of it. (Hugo Black Jr, "My Father," p 104, 1975.)
Christine O'Donnell was right.
From Blavatsky Net
Ewing Township in New Jersey had been using the public bus system to get the school children to school. The township had been reimbursing the parents of the children to pay for the bus trips. But of course, some of those children were sent to Catholic parochial schools and were taught religious teachings on premises. Mr. Everson objected, the case reached the Supreme Court and became known as Everson v. Board of Education.
For a century and a half this first amendment stood as intended. In fact it was hardly referenced. The federal government passed no laws establishing a national religion.
The court ruled in favor of the Township - they could continue to reimburse even Catholic parents without violating the constitution. However the majority opinion was written by Justice Hugo Black. Black indeed wrote for the majority but he slipped into the opinion a view of his own that was entirely contradictory to the ruling of the court. Yes - inconsistency in the same ruling. He added the new principle:
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.
This was a new and previously unknown legal principle.
So if the specific words of the constitution were completely clear, if the intents of those drafting the first amendment were totally clear, if this clause had been clear for a century and a half, on what basis did Black introduce a new dictum?
The answer is that he found some incidental words written by Thomas Jefferson - obviously a founder - written in 1802 that spoke of this "wall" between church and state. On that he overturned the understanding of a century and a half. These days we no longer hear that the court ruled in favor of the township but we hear over and over again about this wall.
Since so many judicial rulings of relevance have been based on this "wall," we should look a little deeper at what Jefferson actually said.
I will be quoting that snippet from a side letter of Jefferson upon which our constitutional law has been based for the last half century. But some background. A Baptist community in Danbury Connecticut had written a letter to Jefferson in 1802 congratulating him on his successful election to president. As part of his response Jefferson celebrated that the American people had passed the first amendment and that that amendment gave the protection to the Baptists that they desired. That is, the amendment protected the church from the state. Here is the snippet.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, 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 free exercise thereof," thus building a wall of separation between Church & State.
That Hugo Black misinterpreted this passage is apparently well known in some circles.
Ironically, Jefferson intended for his letter to the Danbury Baptists to reassure them that the new federal government would not endanger the free expression of their religion. This is widely known. But what is not well known is that Jefferson did not actually coin the phrase "separation of church and state." (The Marketing of Evil by David Kupelian, p 56, 2005).
So now we have another mystery. Who was Jefferson quoting and what did that person mean? The answer is that they were words from a sermon written by Roger Williams, a prominent Baptist.
That sermon, rendered by Roger Williams (the founder of the Rhode Island Plantation colony, and a Baptist), depicted the church as a garden, the world as a wilderness, and the wall as a device of the Creator's invention that protected the garden from being overrun by the wilderness. Williams explained that, from time to time, for the
purpose of disciplining sin in the church, "it hath pleased" the Almighty to break down the wall. Thomas Jefferson, ever the politician, knew when he communicated with the Baptists that "The Garden And The Wilderness" was well known and widely read nearly two generations later. He appealed to them in the terms of their own great man's idiom. (Jim Henderson, letter to the editor, *Whistleblower* magazine, December 2003, 43.)
So now we have it. In a sermon the Baptist had envisioned a "wall" separating church and state and being a device of God. Most importantly, the purpose of that wall was to protect the church from the state. It was not, as Hugo Black would have it, to protect the state from the church. Justice Black turned this meaning on its head.
And of course, this letter of Jefferson, is hardly the criterion to be used to determine the meaning of the first amendment. Supreme court Justice Rehnquist explains:
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history expressly freighted with Jefferson's misleading metaphor for nearly forty years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and
ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written fourteen years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment ( 1985 Wallace v. Jaffree Rehnquist).
And in the same opinion he wrote:
"The metaphor of a 'wall of separation' is bad history and worse law. It has made a positive chaos out of court rulings. It should be frankly and explicitly abandoned. (Rehnquist, dissenting opinion, Wallace v. Jaffree)
Jefferson was a sharp observer and thoughtful man. He wrote that incidental letter in 1802. By 1825 he wrote some words that apply particularly well to Judge Black:
This member of the Government [the judiciary] was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is ... by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt." (Letter from Thomas Jefferson to Edward Livingston, 1825.)
I wonder if there is one question left. Why would a judge of the Supreme Court insert a new principle into an opinion that overtly contradicted the conclusion of that opinion? And why express it so vehemently?
Mark Levin, a long-time scholar of constitutional law makes this remark:
Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920's, when the Klan was deeply resentful of the growing influence of Catholicism in the United States. (Men in Black by Mark R. Levin p 43, 2005)
Roger K. Newman wrote a biography of Black in 1994. He explains that Black had desired the result, that though the township had won the case and been allowed to pay for the buses, still the school system would lose out.
His goal, he remarked at the time, was to make it a pyrrhic victory and he quoted King Pyrrhus, "one more victory and I am undone". (Roger K. Newman, Hugo Black, A Biography, 1994)
Black succeeded.
And we have one more voice. Black's son has written the book "My Father" and explained that his father shared the Klan's dislike of the Catholic Church:
The Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanshard's books exposing the power abuse in the Catholic Church. He thought the Pope and the bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and did not return enough of it. (Hugo Black Jr, "My Father," p 104, 1975.)
Christine O'Donnell was right.
O'Donnell questions separation of church, state
Oct 19 10:58 AM US/Eastern
By BEN EVANS
Associated Press Writer
WILMINGTON, Del. (AP) - Republican Senate nominee Christine O'Donnell of Delaware on Tuesday questioned whether the U.S. Constitution calls for a separation of church and state, appearing to disagree or not know that the First Amendment bars the government from establishing religion.
The exchange came in a debate before an audience of legal scholars and law students at Widener University Law School, as O'Donnell criticized Democratic nominee Chris Coons' position that teaching creationism in public school would violate the First Amendment by promoting religious doctrine.
Coons said private and parochial schools are free to teach creationism but that "religious doctrine doesn't belong in our public schools."
"Where in the Constitution is the separation of church and state?" O'Donnell asked him.
When Coons responded that the First Amendment bars Congress from making laws respecting the establishment of religion, O'Donnell asked: "You're telling me that's in the First Amendment?"
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