THE TRUE WALL OF SEPARATION

...This had a well-known and definite meaning for members of the founding generation.Itmeantanofficial,tax-supportedchurch, like the Church of England in Great Britain, where most of the settlements had originated, and similar official churches ("by law established") in the Americancolonies/statesattheeraoftherevolution...

...Increasingly numerous Baptists, Presbyterians, and others objected to supporting the official Congregational churches of New England and the Episcopal establishments in the Southern tier ofstatesfromMarylandtoGeorgia.Induecourse,most famously in Virginia, demands for more equal treatment succeeded, as ecclesiastical rights and privileges werebydegreesextendedtodissenters...

...The effect of the First Amendment,insum,wastoleavethereligiouspracticesof all the states exactly where it found them, and to ensurethattheycouldcontinuefollowingtheirdivergent paths under the new federated system...

...For reasons that have been noted, established churchesinthenewrepublicweresubjecttomounting pressures, mostly as a result of the growing Christian pluralism of the country...

...I have therefore undertaken on no occasion to prescribe the religious exercises suited to it...

...One was the passage in his second Inaugural Address, which stated: "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the general government...

...This essay concludes his special threepart series, "The Christian History of the Constitution," which in our February, March, and April issues has examined the eradication of religious values from Americanlifesinceourcountry'sfounding...

...The other is thatitiscategorically,anddemonstrably,inerror.Nor is its falsehood esoteric...

...Something the Danbury Baptists themselveswerealso,uncomfortably,awareof...

...endment,andthathis"wallofseparation"imagewasn'tcrafteduntil1802,some13yearsaftertherelevant constitutional language was voted by the Congress...

...Anyone with reasonable access to the historical data can spot the problem fairly quickly, as the record is replete with instances that show the establishment clause had no such meaning, andcouldnotconceivablyhavedoneso...

...might infringe the rightsofconscienceandestablishanationalreligion;to prevent these effects he presumed the amendment was intended...

...In the standard version of the story, the First Amendment religion clauses reflect the personal, separationist views of Madison,whohadfoughtfordisestablishmentinVirginia,thenassertedlycarriedthebattletothenational level when he proposed the Bill of Rights in Congress...

...How can such practices possibly be reconciled withtheassertionsofJusticeBlackandhisjudicialcolleagues about the wall of separation erected by the Founders?Andtheshort,unhappyanswertothatone is:Theycan'tbe.Infact,thegrandnarrativeoftheFirst Amendment repeated so often by the federal jurists andtheiralliesisanone-too-skillfulfabrication...

...T H ET R U EW A L LO FS E P A R A T I O N 3 0 T H E A M E R I C A N S P E C T A T O R A P R I L 2 0 0 7...

...Of course, the protections thus afforded to New Englandwerelikewiseprovidedtostateswithoutofficial churches--then-recently disestablished Virginia, latitudinarian/Quaker Pennsylvania, North Carolina, and other states with faith-based requirements for public office, and so on...

...From Madison's initial statements about forestalling any "national" religion, to the legislative commentspointingtheestablishmentclausespecificallyat Congress,totheassertionsofJeffersonlinkingthisprohibitionnotonlytotheFirstAmendmentbutalsotothe Tenth,theconsistentgoalwastoleavequestionsofreligious practice to the discretion of the states, exempt fromfederalinterference.Thetrue"wallofseparation," thatis,wasn'tbetweenallgovernmentsandreligion,but betweenthefederalgovernmentandthestates...

...Among the more felicitous, if ironic, examples: The self-same House of Representatives that, on September 24, 1789, approved the language of the establishment clause, the very next day voted a resolutionofprayerandThanksgiving...

...Madison had been a prime mover of the new ConstitutioninPhiladelphiain1787andintheVirginia ratifying convention that followed--activities that got him into political trouble when he then decided to run for Congress...

...TheseMadisondisclaimersareinjarringcontrast with the notion that the religion clauses of the Bill of Rights expressed his personal, separationist views (most explicitly stated many years thereafter...

...Allofthis,however,ispatentlyfalse,asmaybeseenby anyonewhobotherstocheckthelegislativerecord...

...Emphasisadded...

...At the era of the founding, nonetheless, the establishedchurchesofNewEnglandremained,whileinthe other jurisdictions there were widely divergent religious customs, ranging from faith-based requirements for public office in most of the states to relative toleration in others...

...Emphasisadded...

...This sweeping statement was and is remarkable for two reasons...

...Jefferson's message to the Danbury Baptists, in essence, was that religious matters were no business of the federal government...

...TO SEE THROUGH the historical sleight of hand that'sbeenpracticedinthesecases,it'sfirstnecessary to understand the oft-repeated mantra, "an establishment of religion...

...Jefferson initially sought to usethislettertoexplainwhyhe,aspresident,hadn'tissued Thanksgiving proclamations (the only one of the early presidents not to, though he had done so as governorofVirginia),butthisaspectwaseditedoutbefore he sent it...

...Jeffersonwouldspelloutthefurtherimplications of these comments in other carefully crafted statements on religious matters (apparently written with Madison's assistance...

...Inanutshell,ouringeniousjuristsandtheircivillibertarian allies have stood the First Amendment on its head...

...Henry and others made things so hot for him, however, that Madison finallyswitchedpositions,promisingthatifelectedhe wouldintroduceaBillofRightsinCongress...

...BY M. STANTON EVANS S 2 6 T H E A M E R I C A N S P E C T A T O R A P R I L 2 0 0 7 The True Wall of Separation strued than to axe-grinding academic theories as to howthenationshouldbegoverned...

...As set forth in the March issue of TAS ("The CustomoftheCountry"),virtuallyeverythingJusticeBlack held to have been outlawed by the First Amendment was routinely done, on a daily basis, by the very people whowrotethatamendmentandannexedittotheConstitution: Tax-supported churches, religious requirementsforpublicoffice,government-sponsoreddaysofprayer, chaplains for the military forces, and so on in endlesssequence...

...Far more likely, to the point of virtual certitude, would have been a concerted effort on their part to ensure that the established churchesoftheregionwereprotectedfromanypossibleinterferenceinthenewconsolidatedset-up...

...Andfurther:"Whetherthewordswerenecessaryor nothedidnotmeantosay,buttheyhadbeenrequiredby some of the state conventions, who seemed to entertain an opinion that...

...A P R I L 2 0 0 7 T H E A M E R I C A N S P E C T A T O R 2 7 The point is made, oddly enough, by the case of James Madison, the founder who along with Thomas JeffersonfiguresprominentlyintheSupremeCourt's imagined history of these doings...

...Asearliernotedinthesepages,aconspicuousfeature of these decisions is that they are based not only onsupposedreadingsoftheConstitution,butonapurported history of the nation's founding...

...Without entering that particularthickettoanydepth,weneedonlynotethatthe establishment clause has never prevented the federal Congress from engaging in acts of prayer (led by official chaplains)--a practice common at the era of the foundingandwithustothepresentday.Itfollowsthat the identical language can't possibly prevent the public schools of the several states from doing likewise, evenifitsstricturesare"applied"againstthem...

...CONSIDERING THE TREMENDOUS weight placed by the Supreme Court and various liberal scholars on the personal views of Madison about these issues, his comments when questioned on this language are of special interest...

...For purposes of this discussion, we may glide over certain anomalies in the court's position--that Jefferson wasn't a member of the constitutional convention,oroftheCongressthatdevisedtheFirstAmM .S T A N T O NE V A N S A P R I L 2 0 0 7 T H E A M E R I C A N S P E C T A T O R 2 9The effect of the First Amendment, in sum, was to leave the religious practices of all the states exactly where it found them...

...Again, resort to the historical record shows thisportrayalisfarfromtruthful...

...AS MAY BE OBSERVED throughout this sequence, a predominant theme was repeatedly sounded...

...As it happened, Jefferson first publicly used the "wall of separation" image in a letter to the Baptists of Danbury, Connecticut--a state which, a good decade afteradoptionoftheFirstAmendment,stillhadanofficial,establishedchurch,afactwellknownbothtoJefferson and to the Baptists...

...Byfarthemosteloquentauthorityonallofthis,in yet another ironic twist, was the Supreme Court's other great hero on religious matters--Madison's mentor and Virginia colleague, Jefferson...

...When the Livermore-Ames version went to conference with the Senate, still further tweaking would occur,producingthelanguageaswenowhaveit:"Congressshallmakenolawsrespectinganestablishmentof religion or prohibiting the free exercise thereof...

...A third is that they have less evident linkage to the Constitution allegedly being conModern liberal church-state jurisprudence turns the meaning of the First Amendment on its head, leading to more federal influence in state religious practices than ever before...

...Among the proposals he offered (number four on his original list) was this one on religious freedom: "The civil rights of none shall be abridgedonaccountofreligiousbelief,norshallanynationalreligionbeestablished...

...Rather than dwelling on these oddities, we can learn much about the subject simply by seeing what JeffersonactuallysaidaboutthemeaningoftheFirst Amendment...

...2 8 T H E A M E R I C A N S P E C T A T O R A P R I L 2 0 0 7 severing the supposed link between the First Amendmentandtheearlierdisestablishmentstrugglesof Virginia...

...As recent scholarship has shown, the letter was part of a more general effort to scotch the persistent rumor spread by his Federalist foes that he was an infidelandscoffer...

...Emphasisadded...

...Suchcustoms,beitnoted,existedbeforetheFirst AmendmentwasdraftedbythefederalCongress,continued during the period in which it was debated and ratified, and stayed on the books long after it was adopted...

...Certainly no power over religious discipline hasbeendelegatedtothegeneralgovernment...

...Itmust thusrestwiththestatesasfarasitcanbeinanyhuman authority...

...M. Stanton Evans is author of The Theme Is Freedom: Religion, Politics, and the American Tradition (Regnery, 1994...

...Significantly, two of the six conferees who came up with this proviso were from Connecticut--Roger Sherman from the House and Oliver Ellsworth from the Senate, bothearliermetwithintheseessays...

...Congress...

...Thesubjectareawherethesejudicialtrendshave arguably been most flagrant is the role of religion in the American social order...

...As is well known, it was Jefferson who coined the "wall of separation" metaphor that the courts have converted into a constitutional catchphrase, allegedly expressing the purpose of the establishment clause and capping the Jefferson-Madison struggle for radical separatism in Virginia...

...Add to this the even more important fact that Madison's language wasn't adopted anyway--a disjunction further T H ET R U EW A L LO FS E P A R A T I O N The confessional landscape of the country in the 1780s was thus extremely varied, and it was this diversity of practice and denominational fervor that brought the First Amendment into being...

...Such is the self-evident message of the legislative history,aswellasthefacialmeaningofthelanguage...

...Another is that, in many instances, they dictate a single top-down standard for the country, overriding state and local customs...

...Jefferson would make the identical point a few years later in a letter to a Presbyterian clergyman, asserting: "I consider the government of the UnitedStates as interdicted from meddling with religious institutions, their doctrines, disciplines, or exercises...

...But I have left them as the Constitution found them, underthedirectionordisciplineofstateorchurchauthorities acknowledged by the several religious societies...

...As previously noted, all three of the states just mentioned--New Hampshire, Massachusetts, and Connecticut--were jurisdictions that at the time had established churches, and would retain them for many years to follow...

...A main focus has been the public schools,whereprayer,Biblereading,anddisplayofthe Ten Commandments have all been banished, but the campaignextendstoothervenuesalso...

...Using provisos intended to protect the states from federal interference as a pretext for such interference,theyhaveestablishedasournationalreligious creedacultofsecularistirreligion...

...The subjects of these rulings have been many--Miranda warnings and other criminal justice measures, abortionondemand,busingofschoolchildrenforpurposes of racial balance, and a good deal else...

...According to the legislativetranscriptofthissession,Madisonsaid"heapprehendedthemeaningofthewordstobe,thatCongress shall not establish a religion and enforce the legal observation of it by law, nor compel men to worship Godinanymannercontrarytotheirconscience...

...GIVEN ALL THE ABOVE, the meaning of the establishment clause so drafted, and later ratified by the states, could hardly be much plainer: "Congress shall make no law respecting an establishment of religion...

...While the topics coveredareimmenselyvaried,thesecourtdecisionsgenerally speaking have certain things in common, beyond thepoliticalandsocialturmoiltheyengender...

...The confessional landscape of the country in the 1780s was thus extremely varied, and it was this diversity of practice and denominational fervor thatbroughttheFirstAmendmentintobeing.ThesecularistmumbojumbofantasizedbyBlackhadnobearingontheprocess...

...While the records don't go much beyond this, the persistent involvement with the establishment clause from start to finish by these New England members is more than a bit suggestive...

...Part III of a special three-part series, "The Christian History of the Constitution," which examines the eradication of religious values from American life since our country's founding...

...Congress, that is, couldn't legislate onthesubjectonewayortheother.Itcouldn'tsetupa nationalestablishedchurch,butitalsocouldn'tinter-fere with the established churches of New England...

...Fisher Ames, also of Massachusetts, then proposed that this be altered to "Congress shall make no law establishing religion," and this further change was likewisevoted...

...Such was the background for Madison's action in June 1789, when he arose on the floor of the House to fulfill his campaign pledge by offering a set of amendments to the Constitution--these mostly culled from state ratifying conventions that had voiced concern about such matters...

...One such is that, typically, the outcomes mandated by the jurists couldn't have been gained through legislative methods, which is why the cases wound up in the courtroom...

...and he thought it as well expressed as the natureoflanguagewouldadmit...

...Asthelegislativerecordshows,thereligionclauses adopted by the House were the handiwork mostly of NewEngland.Tobeginwith,SamuelLivermoreofNew Hampshire, backed by Elbridge Gerry of Massachusetts,proposedinplaceofMadison'swordingthephrases, "Congress shall make no law touching religion, or infringing the rights of conscience," which change was dulyvotedbytheHouse.(Thishadthevirtueofpointing the prohibition specifically at the federal government, without using the word "national," considered controversial...

...Madison had at the outset opposed the agitation for a Bill of Rights, on the reasonable, now forgotten,grounds that the new government was one of limited, enumerated powers, and that this was the best safeguard of the country's freedoms...

...One is that it has become, through incessantrepetition,albeitwithcertainmodifications, a bedrock precept of our jurisprudence...

...This results from the provision that no law shall be made respecting the establishment of religion, or the free exercise thereof,but also from that which reserves to the states the powers not delegated to the United States...

...Toallofthisthereisacoda,whichcanbehandled only briefly because of space constraints: The argument that, well yes, the First Amendment originally affected only the federal government, but its limits were later applied against the states by passage of the Fourteenth Amendment...

...That such as Livermore, Gerry, Ames, Sherman, andEllsworthwouldhavedoneanythingthatremotely threatened the standing religious order of New England may well be doubted...

...The establishmentinMassachusettslastingforanother40years...

...THE MOST FAMOUS VERSION of this doctrine was Black's opinion in the Everson case of 1947, proclaiming that the "establishment" clause meant neitherthefederalgovernmentnorthestates"canpass laws which aid one religion, aid all religions, or prefer onereligionoveranother....Notax,inanyamount,large orsmall,canbeleviedtosupportanyreligiousactivities orinstitutions,whatevertheymaybecalled,orwhateverformtheymayadopttoteachorpracticereligion...

...None of which had the slightest connection to the long list of don'ts dreamed up by Justice Black and inflicted on thenationbyhissuccessors...

...As the larger context shows, and "their legislature" makes explicit, the "wallofseparation"pertainedtothefederalCongress, and had no legal bearing whatever on the conduct of the states...

...Here, as is doubtless well known to the reader, the courts and their civil-libertarianallieshavewagedarelentlessbattletodrivethe words and symbols of traditional faith from the nation's discourse...

...In these diffident comments and the debate that followed, two key points were repeatedly made about Madison's sponsorship of this language: that he was proposing this and other amendments not because he personallythoughttheywereneeded,butbecauseothers thought so, and that he was responding to their wishes;andthattheobjectaimedforwastopreventthe new federal government from setting up a national church--which,giventhegreatreligiousdiversityofthe country,wouldhavebeenthecauseofangrydiscord...

...As he expressed it in the relevant passage, "I contemplate with sovereign reverence that act of the whole American people, which declared that their legislature should `make no law respectinganestablishmentofreligion,orprohibiting the free exercise thereof,' thus building a wall of separation between church and state...

...According to Justice Hugo Black and various of his brethren, the FoundingFatherssoughttoraiseanimpregnable"wall ofseparation"betweengovernmentandreligiousfaith whentheyadoptedtheFirstAmendment,statingthat "Congress shall make no law respecting an establishmentofreligion"--thusallegedlybanningprayerinthe schools,forbiddingBiblereading,andalltherestofthe now-familiarprohibitions...

...There was fierce opposition to the new arrangement in Virginia, mostly stirred up by Patrick Henry, based on two interrelated charges: that the newly created federal government would "swallow up" thestates,andthattheConstitutionhadnoBillofRights toguaranteethelibertiesofthestatesandpeople...