Whether one agrees or disagrees with the logic behind "applying the First Amendment to the states through the Fourteenth Amendment," one thing remains clear. The Cantwell Court unequivocally held that the application of the First Amendment by the states via the Fourteenth Amendment was specifically and exclusively directed to the legislatures of the states, having "rendered the legislatures of the states as incompetent as Congress to enact such laws," and that the First Amendment was a "constitutional inhibition of legislation on the subject of religion." Because the Fourteenth Amendment imposed certain restrictions on state governments, the incorporation facilitated by the Fourteenth Amendment was a vertical incorporation, imposing federal laws downward onto state governments. Thus, the first case to ever apply the First Amendment to the States in 1940 interpreted it as was a vertical spillover from Federal to state government. A prohibition limiting the Federal government from making certain kinds of laws now acted as a prohibition on state government as well, thereby prohibiting state legislatures from making a "law respecting an establishment of religion, or prohibiting the free exercise thereof." Nowhere did this "application of the First Amendment to the states" restrict other state employees such as fireman, school teachers or municipal garbage workers from religious activity. It was specifically and exclusively directed to the legislative branch of the states. It was a prohibition against making certain kinds of laws.
Hugo Black, the light that failed.
Within the United States Constitution, there is a vertical separation between the Federal Government and the State governments. There is also a horizontal separation of powers between branches of government at the same level. Distinct lines are drawn between the executive, legislative and judicial branches of government. Congressmen are part of the legislative branch. Soldiers, school teachers, public librarians, police men, NASA engineers and municipal garbage workers are part of the executive branch of state or Federal government. They are not congressmen, and they have no law making power. It will be remembered that the First Amendment places restrictions on the legislative branch of the United States. Cantwell applied these limitations to the legislative branches of state and local government. The vertical "incorporation" of the First Amendment in Cantwell was no different than the vertical incorporation of other criminal procedure amendments as discussed above. It applied the limits found in the Bill of Rights downward toward the states. For almost a hundred years following the passage of the Fourteenth Amendment, not even the most liberal or convoluted interpretation of the Fourteenth Amendment had ever suggested a theory of "horizontal incorporation" that blurred the distinctions between the legislative, executive and judicial branches. Nor would such a doctrine ever become known in the application of any portion of the Bill of Rights other than the First Amendment. In a determined attempt to secularize America, the Supreme Court would somehow determine that a restriction prohibiting Congress making certain kinds of laws could somehow act as a restriction on school teachers, fireman or even municipal garbage workers.
When finally announced, this extraordinary doctrine would not even pretend to be supported by any constitutional text such as the Fourteenth Amendment. It would simply be announced by judicial decree, perpetrated by exegetical sophism, sustained by obfuscation and prevarication, and defended by an academy willing to admire the invisible clothes of the emperor if only they might secure tenure and the respect and admiration of their peers. It would finally become entrenched into the fabric of American culture by a left wing media.
This revolution in legal thinking took place in 1947 through the analytic powers of Supreme Court Justice Hugo Black. His qualifications to serve on the High Court were a marvel in themselves. Prior to his appointment to the United States Supreme Court, Senator Hugo Black's juridicial experience was limited to County Solicitor in Alabama and Police Court Judge.
In addition to his modest background in jurisprudence, Black holds the distinction of being the only member of the United States Supreme Court ever known to have held membership in the Ku Klux Klan.
In what is unquestionably the most far reaching Supreme Court decision of the twentieth century, Black announced that the words "Congress shall make no law" were no longer the subject, verb and direct object of the First Amendment.
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . Neither a state nor Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion was intended to erect 'a wall of separation between Church and State.' "
Everson v. Board of Education, 330 U.S. 1, 15-16 (1947)
The first amazing revelation was that "Congress" now equals "state [and] Federal Government." The incorporation debate surrounding the Fourteenth Amendment at least gives one some rational for imposing the restrictions of the First Amendment on state legislatures. In Cantwell, the incorporation theory moved downward from the United States Congress to the State Legislatures. One stares vacuously into the corpus of juridical proceedings of this country, however, to find precedent for equating "Congress" to the judicial and executive branches of state or federal government. Quite the contrary, a long line of cases in Constitutional law have affirmed the doctrine of separation of powers, wherein Congress, the Judicial and the Executive branches have consistently been held separate and distinct branches of government. See e.g., Youngstown Sheet and Tube Co. v. Sewyer 343 U.S. 579 (1952). The Constitution itself is so clear on the matter of separation of powers that proof of this assertion hardly needs to be demonstrated. Nevertheless, in a Supreme Court decree, Hugo Black announced that the prohibitions specifically limited to the "Congress" by the First Amendment should suddenly extend to the whole of "government," executive and judicial as well as legislative. A constitutional limitation on the powers of the United States Congress making certain kinds of laws now serves as a restriction on all government employees, including librarians, school bus drivers, federal judges, police and fire personnel, and municipal garbage collectors!
As egregious as such an unprecedented interpretation of the word "Congress" might be, it would have, in and of itself, done little to undermine the Constitution. Article I, Section I of the Constitution provides: "All legislative Powers herein granted shall be vested in a Congress of the United States." According to this constitutional provision, neither the executive nor judicial branches never had the power to make any laws. Reinterpreting the First Amendment to say "Neither state nor Federal government shall make any laws respecting an establishment of religion, or prohibiting the free exercise thereof" would have done little violence to the meaning of the First Amendment. Non-legislative branches of government, judges, school teachers, fireman and municipal garbage collectors were already barred from passing laws by Article 1, Section 1 of the Constitution. But in addition to replacing the subject of the First Amendment, Ku Klux Klasman Hugo Black went on to freely substitute new terms for the verb and the direct object of the First Amendment.
In place of the verb "shall make" (referring to the making of laws) was substituted three new verbs: "aid," "prefer" and "participate." And in place of the direct object "law", (as in "Congress shall make no law"), were substituted the terms "religion" and "affairs of any religious organizations." It should not require a linguistic scholar to realize that the statement "Congress shall make no law" is radically different than effectively saying "Government (executive and judicial as well as legislative branches) shall not participate in religion or the affairs of any religious organizations." Prohibitions which were originally imposed exclusively upon the legislative branch of government by the First Amendment are mysteriously imposed upon all government employees within the executive and judicial branches as well as the legislative branch. And the prohibition against "making laws" respecting an establishment of religion was somehow transformed into a prohibition against "participat[ion]" in religion or the affairs of any religious organizations."
If this exegetical sophism were not enough, Hugo Black then makes reciprocal the prohibition by adding the term "vice versa."
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. . . Neither a state nor Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."
Everson, supra. Reciprocal statements are a bit tricky, and little or no scholarship seems to have been invested in analyzing the meaning or impact of this enigmatic phrase. Nevertheless, if Black's words "and vice versa" are to be taken at face value, they basically mean that the First Amendment has not only been expanded as a prohibition on all of "government", it is also a prohibition against "religious organizations or groups. . . participat[ing] in the affairs of. . . government." Although no subsequent Supreme Court decisions actually appeal the term "vice versa" as precedent, the linguistic implications of this phrase have been progressively realized and implemented by Supreme Court decisions of the last fifty years.
This has become the sorry remains of the First Amendment. A constitutional amendment which originally held the exclusive function of prohibiting Congress from making certain kinds of laws now not only prohibits all three branches of government at federal, state and local level from "participating" in religious activity, it is also held to prohibit private citizens under the aegis of a religious organization from participating in the affairs of government! Many American's naively believe that Supreme Court decisions are the product of deep legal reasoning and scholarly thought. Indeed, some are. However, many of the most important Supreme Court decisions are not predicated on legal analysis or scholarship, but on the power of judicial Decree. Hugo Black's philosophy of the law is probably best expressed by Vice President Aaron Burr, who held that "law is that which is boldly asserted and plausibly maintained."
The "Separation of Church and State"
If Hugo Black's terpsichorean tap-dance around the text of the First Amendment were not enough, Black then offers a pithy little aphorism as a heuristic through which the First Amendment can be interpreted by future generations in accord with the fascist dictates of Black and his fellow frauds and charlatans who have come to disgrace the High Court with such manifestly dishonest reasoning.
"In the words of Jefferson, the clause against establishment of religion was intended to erect 'a wall of separation between Church and State.' "
Everson, supra. These words of Thomas Jefferson have become part of the lingua franca of modern day 'separationists.' As one engages the average American in a conversation about the First Amendment, one quickly realizes that most Americans believe these words are in fact the actual words of the First Amendment. As the dissenting opinion sarcastically observed in Baer v. Kolmorgen, "Much has been written in recent years concerning Thomas Jefferson's reference in 1802 to a 'wall of separation between church and State.'. . . Jefferson's figure of speech has received so much attention that one would almost think at times it is to be found somewhere in our Constitution."
Contrary to the heuristic given the First Amendment by Supreme Court Justice Hugo Black in Everson, the fact is that the meaning of Jefferson's letter is consistent with the language of the First Amendment, not the meaning alleged in the incoherent ramblings of Hugo Black. The Danbury Baptist Association of Connecticut had been concerned that the First Amendment constituted a governmental grant of rights. It is axiomatic that if the government and not God were to grant these rights, the government could take them away. Accordingly, it was possible to construe the First Amendment as portending the establishment of a national religion. A letter expressing these concerns was sent to Thomas Jefferson. Jefferson responded with a letter on January 1, 1802 which included the famous phrase "separation between Church and State." The text of this letter is recorded below in its entirety.
To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. My duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as the are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
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 the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.(Sent January 1, 1802)
First, one notes in The Danbury Letter that freedom of religion is a "natural right." It was simply affirmed by legislative decree. It was not a grant of the First Amendment.
Secondly, one recalls that, in the Declaration of Independence, Jefferson had already established his belief that natural rights were an endowment of the "Creator." Without a Creator, there is no transcendent guarantee of natural rights, nor any means of identifying those natural rights. It is therefore peculiar indeed that this letter by Jefferson should form the ideological basis for prohibiting the "Balanced Treatment of Creation Science and Evolutionary Science."
Thirdly, Jefferson specifically quotes the First Amendment, which is a limitation on Congress from making certain types of laws. By using the term "legislature," Jefferson clearly indicates that he understood the reference to Congress in the First Amendment to mean Congress, not "Government" as would be later suggested by Ku Klux Klasman Hugo Black.
Fourthly, Jefferson understood the First Amendment to be an "expression of the supreme will of the nation in behalf of the rights of conscience." The "rights of conscience" do not a basis for removing the Creator from the classroom, but rather, for ensuring that no student is forced to learn religious doctrines, such as evolution that violate the conscience of the student, or of his parents of a minor child.
Fifthly, in The Danbury Letter Jefferson offers both prayer, and again acknowledges the Creator! Strange indeed that such a document should form the basis for excising a study of scientific and mathematical principles relation to His creation from classrooms. As his inauguration had been March 4, 1801, and the Danbury Letter was sent January 1, 1802, both his promise of prayer, and is reliance on the creator for protection and blessing were done from the Office of the President.
It is therefore somewhat ironic that this short, simple, and benign letter should form the basis for removing the Creator from the classroom in the mind's of modern day 'separationists.'
Finally, the "wall of separation" in Jefferson's letter is clearly, from the context, a wall that prohibits the legislature from encroaching on the rights of conscience by passing laws respecting an establishment of religion, or prohibiting the free exercise thereof.
The pedigree of the quote is even more ironic. It is Thomas Jefferson paraphrasing a Baptist minister who was paraphrasing the words of Jesus in the New Testament. In writing to the Baptists of Danbury Connecticut, Jefferson borrowed words that were familiar to them, coming from the leading Baptist figure in America of the time, Roger Williams.
"When they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself. . . . And that there fore if He will eer please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world."
As the phrase was used by Williams, the wall or hedge was God's protection of his people from the wilderness (encroaching secularism) of the world. But a close examination of Scripture clarifies from where Williams had drawn this quote.
And he began to speak unto them by parables. A certain man planted a vineyard, and set a hedge about it, and digged a place for the winefat, and built a tower, and let it out to husbandmen, and went into a far country. And at the season he sent to the husbandmen a servant, that he might receive from the husbandmen of the fruit of the vineyard. And they caught him, and beat him, and sent him away empty. And again he sent unto them another servant; and at him they cast stones, and wounded him in the head, and sent him away shamefully handled. And again he sent another; and him they killed, and many others; beating some and killing some. Having yet therefore one son, his wellbeloved, he sent him also last unto them, saying, They will reverence my son. But those husbandmen said among themselves, This is the heir; come, let us kill him, and the inheritance shall be ours. And they took him, and killed him, and cast him out of the vineyard. What shall therefore the lord of the vineyard do? he will come and destroy the husbandmen, and will give the vineyard over unto others.
Originally in the Gospel of St. Mark, it is a statement that God had put a protective hedge or wall around the nation of Israel, fostering an environment wherein they might respond the Christ when he revealed himself. Yet they rejected Him, and were destroyed as a nation.
In stony New England where Roger Williams preached, it is common to see stone fences or walls partitioning off farmland and property. Accordingly, Williams first equates the terms "hedge" and "wall." The word "hedge" draws his readers to the biblical text, and the word "wall" culturally relates the parable to the rocky New England topology. In the tender new nation being built on the American continent, the meaning of Williams' allusion to this parable is obvious. Men of various Christian faiths had fled to America to enjoy the freedom of their religion. In the parable, God had placed a providential hedge of protection around the nation of Israel, protecting them from paganism and fostering an environment conducive for them to receive the Messiah when He revealed Himself. The biblical allusion that Williams was therefore making was that God had placed a "hedge or wall" of His providential protection around a new nation in order to protect the Christian pilgrims who had come to this land, and to foster an environment conducive for the nurturing of the Christian faith. Jefferson's allusion to Williams' sermon was a particular application of this hedge or wall. Baptists could not be forced to become Puritans or Congregationalists nor to embrace the doctrines of these or any other sects which were contrary to the doctrine and practice of the Baptist faith. The wall spoken of by Jefferson was the protection afforded by the First Amendment which placed matters of religious faith and practice beyond the reach of the federal legislature. Moreover, by appealing to natural law, the wall could never be torn down even if the First Amendment were repealed! These were natural rights that the First Amendment wasn't granting, but simply recognizing. But in Everson, the wall suddenly ceases to be a vehicle for fostering an environment conducive to the Christian faith. It has become an instrument inimical to any public practice of the Christian faith. The environment has become one of hostility.
Nevertheless, any honest examination of Jefferson's letter would have to conclude that it does not lend even the smallest vestige of support to Hugo Black's new horizontal incorporation theory, wherein "Congress" now means "government," (state and federal, executive, judicial and legislative) and prohibitions against Congress are now spread to the executive and judicial branches as well. Neither does Jefferson's letter lend any support to the doctrine of "separation of church and state" as alleged by Black in Everson.
It is significant to note that the Everson Court quoted not a single precedent supporting its new doctrine of a secular America, nor their new hermeneutic of "separation of church and state." Against this, one can't help but compare this with the High Court's decision in Church of the Holy Trinity v. U.S., 143 U.S. 457, 458 (1892). There, the Court clearly distinguishes between sectarianism and Christianity, affirming that although no particular sect is to be favored over another,
"Christianity, general Christianity, is, and always has been, a part of the common law. . . not Christianity with an established church. . . but Christianity with liberty of conscience to all men." And in The People v. Ruggles, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: 'The people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice. . . . We are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines of impostors.' And in the famous case of Vidal v. Girard's Executioners, this Court. . . observed: 'It is also said, and truly, that the Christian religion is a part of the common law. . . ." These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation."
The last phrase is telling. In demonstrating the truth of its assertion that America was a Christian nation, not only did the Court quote directly from eighteen sources, it made reference or allusion to over forty others. Even after all these, it then made allusion to "many other matters which might be noticed [which] add a volume of unofficial declarations to the mass of organic utterances." In effect then, the Court was saying: "we could go on, but we think that sixty some odd citations are enough to demonstrate the truth of our assertion that this is a Christian nation."
The contextual misuse of Jefferson's letter by the Everson Court was unknown in the history of The Republic up to this time. The first time Jefferson's letter was quoted had been in Reynolds v. U.S., 98 U.S. 145 (1878). The Reynolds Court of 1878 paid far more attention to the context than the Everson Court of 1947.
Accordingly, at the first session of the first Congress the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his god; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and 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 the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
Reynolds at 164. Not counting its opening salutation of 23 words, the text of Jefferson's letter had a total of 233 words. The Reynolds Court quoted one hundred thirty four words, or fully of the substantive text of Jefferson's letter. The Everson Court quoted eight words in support of its novel doctrine. The Reynolds Court, having examined the context of the letter, interpreted it specifically and exclusively as a limitation on congressional legislative power, consistent with the actual wording of the First Amendment itself. "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order." Reynolds, supra. Nothing in the Reynolds decision indicated that there was some mystical extension of the First Amendment to the executive and judicial branches of government. Perhaps even more amazing is the question of why Jefferson's letter has received so much attention in the first place. Jefferson was instrumental in the drafting of the Declaration of Independence, not the First Amendment. Jefferson was living in France when the words of the First Amendment were debated and ratified. Therefore, even if Jefferson's letter were to mean exactly what the left wing radicals want them to mean (and an honest reading of its context shows that it doesn't), the use of Jefferson's letter as a huerstic in interpreting the First Amendment borders on incoherency.
This quote by Jefferson would not be resurrected again until the Landmark Everson decision. When it finally did reappear, three amazing things had taken place. 1. It quoted only eight words of Jefferson's letter rather than one hundred thirty four. 2. It totally ignored and misconstrued the context of the letter, so rewriting our nation's history. 3. Unlike Church of the Holy Trinity which cited over 68 precedents in support of its decision, the Everson court did not cite a single case supporting its new doctrine.
