Original Intent and the First Amendment
By Tayra Antolick

On our way home from my spring break trip to Colonial Williamsburg, Virginia, my husband, Charlie, and I heard a radio talk show host announce that the Florida legislature passed a bill allowing prayer in schools, and that the ACLU was going to contest it, stating that it is unconstitutional. The ACLU will most likely use the famous "separation of church and state" private statement from Mr. Thomas Jefferson as one of its supports, and court cases based on it. 

I have often thought, "Is not Mr. Jefferson's private statement in a letter considered hearsay, and isn't hearsay prohibited?" I turned to my trusty Criminal Law textbook and found that hearsay is acceptable in two cases: one, if the witness is unavailable at trial through no fault of the government and, two, the statement was made in a situation wherein it appears reliable. Surely, Thomas Jefferson's statements are reliable concerning government at the birth of our nation. Surely he could not have possibly been at the framing of the Constitution because he was busy in Europe as ambassador. All the input he had in the framing of the Constitution was a letter from France calling for the Bill of Rights. So the question remains, is hearsay from Mr. Jefferson the best if we are to use hearsay at all? 

I would think that if they are going to use hearsay, they should use not just a reliable source, but the most reliable source. I acquired some information on this from "The Truth About Thomas Jefferson and the First Amendment" by David Barton. I was persuaded that Mr. Jefferson is not the primary nor exclusive authority when it comes to the 1st Amendment. He was not present at its writing. The phrase "separation of church and state" was written eleven years after the writing of the First Amendment. He was not one of the fifty-five participants at the Constitutional Convention, nor one of the ninety Congressmen who framed the First Amendment. This phrase used by the ACLU, as well as judges and politicians, was a private statement written in a letter to the Danbury Baptist Association of Connecticut in 1802. Having just visited Colonial Williamsburg, and being exposed to the attitude of the Anglican Church towards Baptists in those days, [and any other dissenting religion for that matter], it became clear to me why Mr. Jefferson would find it necessary to write this, attempting to calm the fears of a non-Anglican congregation that the Church of England may be established as the State Church by this new government, as it was in England. 

Were there other superior sources of hearsay that would support the ACLU's interpretation of that famous phrase? If we're are going to use hearsay, I say we use the best. Consider George Washington, who, as President of the United States, called for and had oversight in the formation of the Bill of Rights in 1791. In his Farewell Address, he said, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great pillars... The mere politician, equally with the pious man, ought to respect and cherish them... Let it simply be asked, 'Where is the security for property, for reputation, for life, if the sense of religious obligation desert?'... And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds... reasons and experience both forbid us to expect that national morality can prevail in exclusion of religious principle." 

Consider Governor Morris of Pennsylvania, who was the most active member of the Constitutional Convention, speaking 173 times on the floor, and the man who physically wrote the Constitution. He never used the phrase "separation of church and state." Rather, he wrote, "Religion is the only solid basis of good morals, therefore, education should teach the precepts of religion, and the duties of man towards God." 

Consider Mr. Fisher Ames of Massachusetts, who provided the wording for the First Amendment passed by the House of Representatives. He would certainly know the intent of that amendment, yet he never used the phrase "separation of church and state." Rather, he called for the Bible always to remain the primary textbook in America's classroom: "Why... should not the Bible regain the place it once held as a school book? Its morals are pure, its examples captivating and noble. The reverence for the sacred book that is thus early impressed lasts long; and, probably, if not impressed in infancy, never takes firm hold of the mind." 

The Congressional Records from June 7 to September 25, 1789, contain the complete discussions of the Founding Fathers surrounding their formation of the First Amendment. Not only do both the Constitution and the First Amendment lack the phrase "separation of church and state", not even the official discussions surrounding their creation use the phrase. 

A journalist found out my views and asked me, "Out of 'morbid curiosity' perhaps, why should you want to mix something as Holy and spiritual as religion/spirituality with something as down and dirty as gutter politics? Seems a sacrilege to me." You must understand, I'm not the one doing the mixing. Government is. When I exercise my right to communicate my religious views and someone gets offended, that offense does not give government a compelling interest to prohibit my right of such expression. If Congress passes a law that prohibits that right, it just violated, rather than upheld, the separation of church and state. In allowing that religious expression, it upholds and secures the exercise of that right for me as well as the offended party. The First Amendment states that Congress is the one prohibited from establishing any religion as the State Religion, like the Church of England was to the colonies. It is the subject of the sentence and the verb refers only to it. The whole First Amendment has nothing to do with keeping religion out of politics. It has everything to do with keeping politics out of religion. Since no law can be passed which abrogates the Constitution, it would seem it also applies to all subsequent political subdivisions. When a political entity begins to regulate what someone may do or say, and where they may do it or say it, it has encroached on liberty. Only people can be religious; not nonprofit organizations, not literature, not songs, not political entities, not any non-human entity. People carry that freedom and responsibility with them wherever they go, whether to the school, the office, the county commissioners' meeting, or the White House. Hopefully, those convictions would be interfused and synthesized with every fiber of the person's existence. 

It is historically accurate to state that the founding fathers supported the Anglican [Christian] faith, the colonies used the English language, and they followed the common law system of government. You can't accept two out of three. You must accept all three. Congress, nor any other political subdivision, cannot prohibit any religion from being expressed anywhere the carrier of that religion chooses to express it. 

Since government, especially the courts, has taken the liberty to quote inferior hearsay to make law, then I challenge the legal qualification of that hearsay in light of hearsay from superior sources. In the light of George Washington's, Governor Morris' and Fisher Ames' most public statements, Thomas Jefferson's private hearsay on the First Amendment dims. To my knowledge, none of the gentlemen whom I've quoted ever used that phrase and its current meaning in any public or private, written or verbal communication. Since government has chosen to encroach this freedom through political means, now it is obligated to use the same means to restore it. Once it restores it, it should get out of it. 

Early American history does not record a dilemma or conflict with the expression of religion within education and government. The House of Burgesses in Williamsburg was disbanded by Governor Dunnemoore because the House declared a day of prayer and fasting for the colony in Boston. He disbanded the House not because of the substance of the declaration, but because of the act of the declaration. Governor Dunnemoore was not challenging the validity of the expression of fasting and prayer. He viewed the declaration as a challenge to his authority. Since he was the Head of State and Head of the Church, he was the only one authorized by the Crown to declare such a day, not the House of Burgesses. The House saw in this event that the Head of State should not be the Head of the Church, because this union would encroach their liberty to express their desire for a day of fasting and prayer. 

The Burgesses of 1775 became the founding fathers of 1776. If they saw no conflict with the expression of religion within their political context, what authority do we have to impose it on them today? It has only been recently that this phenomenon has occurred. I see no conflict between what these men publicly said and what they wrote in the First Amendment. On the contrary, they all express in no uncertain terms the embracing of religion as a dire necessity for the survival of posterity and the nation. It is a sad day when the legislative and judicial systems of some states strike Judeo-Christian engravings from their walls. It is like extracting a gene from an embryo: it only creates a mutant. 

The ACLU has no superior hearsay to support their view. Their argument, and for that matter, any judicial holding or legislative statute, state or federal, claiming that it is unconstitutional to allow prayer, communication or even teaching of the Bible by any person who wishes to do so, has no legal, historical or logical basis. To my knowledge, the United States Congress has not declared any religion as the State Church. And, by restoring prayer in schools, the Florida legislature has in actuality restored the separation of church and state, because it has reversed the previous legislation prohibiting the free exercise of religion. To prohibit the free exercise thereof is the violation of the "separation of church and state" argument. To allow it actually upholds it. The First Amendment is now intact in Florida. For this I commend our Florida legislature. 

If you are going to use hearsay, use the best. If there is none, then concede. Mr. Jefferson's private letter cannot be held to supersede the standing of George Washington's, Governor Morris', or Mr. Fisher Ames' very public declarations of their intent and attitudes toward religion and the Bible in the educational and political arenas of this country. 

I do pray that the lawyers representing the State's position would use these important historical facts to establish the superior hearsay of these three men over Mr. Jefferson's, thus establishing proper legal precedence and initiating a moral renaissance in this country. 

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Last Modified October 22, 2001