Sometimes in the course of human events, it becomes necessary to muddle through the confusion and reveal the basic premise of an object. Such is the case with the First Amendment of the U. S. Bill of Rights, and more specifically, the establishment clause. The First Amendment has fallen under a barrage of hyperbole surrounding what it means and what it doesn’t mean. So-called experts in the field of interpretation have managed, over the years, to drape a veil of confusion and distortion over the First Amendment. This confusion and distortion can easily be corrected by simply recalling our basic elementary language structure and giving an exegetical analysis of the First Amendment, and more specifically, the portion that has become known as the establishment clause.
I don’t want to come off as being condescending, as that is not my intention here. My intention is simply to impart common sense basics of the English language to an issue that has been run amok by those who would have the First Amendment make prohibitions it simply does not make. To begin this analysis, I believe it is essential to first examine the verbiage in the context in which it was written. That is to say, words mean things and sometimes, over the course of time, those meanings change. An example of this would be the word “gay”. A few decades ago, if someone said a man was gay, it meant he was a happy go lucky character. A young reader today would give the sentence a much different meaning. Therefore, it becomes necessary to examine the words of the First Amendment in the context of the time in which they were used. For that, I will use my 1844 Webster’s, Walker pronunciation dictionary as it is the nearest I have of the time of the writing of the Bill of Rights.
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.
Our study begins with the word Congress, which is used here as a proper noun and is the subject of the sentence. My dictionary gives eight definitions for congress, but certainly the applicable one here is this; the legislature of the United States, comprising the Senate and the House of Representatives or Assembly. James Madison gave a corresponding definition in his notes from the Constitutional convention where he stated, “The Supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, and the other the Senate, who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned.”
This is further established by the Constitution itself, in Article I, Section I, which states, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Therefore, it is worth noting here that the subject is the Congress, not the Executive or Judicial branches of government, as the Congress has the explicit right to “make” law. So, with what we know so far, a corrected and expanded translation of the First Amendment might read, “The Congress of the United States of America shall make no law respecting …”
The words shall make is a combined verb to the direct object, no law. Shall is an auxiliary verb used in formal speech which means; (a) to express futurity in the first person, and determination, compulsion, obligation or necessity in the second and third person. In prevailing usage, shall and will are used interchangeably. When combined with the negative direct object, no, this becomes a prohibition of the object, which in this case, the object is the adjective law. As the object receives the action of the verb, “No law shall be made by the Congress of the United States respecting …”
The next words in our phrase, respecting an establishment, are combined as a gerund phrase, meaning it is a verbal noun. We find several such gerund phrases throughout this passage. A gerund word or phrase has all the uses of the noun but retains certain characteristics of the verb, such as, in this case, the ability to take an object or an adverbial modifier. The word “respecting” is used here in the future passive participle and would be defined here as; with respect to. Our next word, “establishment”, is of utmost importance in our phrase. It too has several meanings, but unlike what we saw earlier in the word “Congress”, we find more than one applicable meaning; (1) to order, appoint (officials, laws, etc.) or ordain permanently, (2) to confirm or ratify, and (3) to make a state institution of (a church). Isn’t it interesting that in 1844, Webster had such foresight to delineate this meaning of the word? It is also well worth noting here that directly following the word “establish”, Webster has felt it necessary for the entry of “established church”, which he defines as, “a church officially recognized by the government and supported as a national institution; specifically the Church of England”.
This sets up the prepositional phrase, of religion. Here again we find multiple definitions, but the applicable definition here is; any specific system of belief, worship, conduct, etc., often involving a code of ethics and a philosophy such as the Christian religion or the Buddhist religion.
Now we come to the first in a series of coordinating conjunctions with the word or. This coordinating conjunction simply means there are more stipulations to follow. We have also reached a point where I can remove a good bit of redundancy and keep with Shakespeare’s theory that “Brevity is the soul of wit”.
Our first two coordinating conjunctions are followed by gerund phrases. The first is prohibiting the free exercise thereof;. This is pretty self explanatory, but we must examine what is meant by the words, “free exercise”. “Free” is defined simply as being at liberty. The Webster definition which applies to “exercise” is an act of Divine worship. This concludes what has become known as the Establishment Clause. A corrected and expanded translation of what we have should look something like this;
There shall be no law made by the Congress of the United States of America which has the effect of giving official recognition of a Church as a national institution, or forbidding [citizens] the liberty to worship.
This is a very far cry from how we see the first portion of the First Amendment interpreted today, so how did the First Amendment come to mean something entirely different? It would take volumes to explain the plethora of ways in which the courts have subverted the meaning of the First Amendment. I could go into a lengthy dissertation about how, beginning in 1925 with the Gitlow v. New York case, the Fourteenth Amendment has become inextricably tied to the First Amendment and gives the federal court jurisdiction over the states, municipalities and school boards, but if that was indeed the intention of the Fourteenth Amendment, why is it not also inextricably tied to the Second Amendment? Why are municipalities allowed to deny the right to keep and bear arms? In short because applying the Fourteenth Amendment to the Second Amendment does not fit the agenda of activist judges, thereby leaving a tendency of selective application of their own subverted ruling.
If the Supreme Court of Alabama chooses to display a monument of the Ten Commandments, has the Congress of the United States established into law, an official recognition of a religion? No. If the school board in Podunk, OK decides it wants to have the school choir sing traditional Christmas carols, has the Congress of the United States established into law, an official recognition of a religion? No. If the town of Gatorville, FL wants to display a crèche at Christmas or a menorah during Hanukah, has the Congress of the United States established into law, an official recognition of a religion? No.
Specifically, the courts have used the new meaning of the First Amendment to secularize America and drive it away from Christianity. This was clearly not the intent of the Founders. There is endless documentation proving this point, but here I will use an excerpt from David Barton’s wonderful book, Original Intent, where Barton states, “The Founders, however, not only chose not to establish federally any particular denomination of Christianity, they further never intended the First Amendment to promote a pluralism of other religions. As Justice Story explained in his commentaries, “The real object of the First Amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christians.” So who is to blame for the current subversion of the law and how do we return the establishment clause to its original meaning?
In 1833, in the case of Barron v. Baltimore, the Supreme Court emphasized that the Bill of Rights do not apply to the states. In fact, between 1791 and 1889, fewer than 12 First Amendment cases went before the court. This was due to the prevailing view among judges that the Bill of Rights does not apply to state actions.
The case can certainly be made that the current climate of misinterpretation of the establishment clause lay squarely on the shoulders of Justice Hugo Black, the former Klan member, New Deal activist and outspoken anti-Catholic, who first introduced Jefferson’s “wall of separation “ into law in the 1947 Everson v. Board of Education. Judicial activists over a half century later continue to misconstrue Jefferson’s metaphor.
I don’t want to stray too far from the subject, but a few words on Jefferson’s metaphor in his letter to the Danbury Baptists are appropriate here. Jefferson interpreted the First Amendment as prohibiting Congress from establishing religion; thus it prohibited him as president from designating days of thanksgiving or prayer. But the amendment did not separate religion and civil government. As president, Jefferson attended religious services in the Capitol, and he used rhetoric with religious content in official utterances. Moreover, the First Amendment did not prohibit the states from legislating with respect to religion. As governor of Virginia, Jefferson had issued religious proclamations. In summary, the “wall” of the letter served primarily to separate state and nation in matters pertaining to religion, rather than to separate ecclesiastical and all governmental authorities.
Jefferson’s letter to the Danbury Baptists first came into print publicly in Henry A. Washington’s edition of Jefferson’s works (1853; reprinted 1868 and 1871), and later in other editions of his writings. The phrase “wall of separation” first made its way into constitutional discourse when Chief Justice Morrison R. Waite quoted the text in which it appeared in Reynolds v. United States (1879). Waite drew on Jefferson’s letter to distinguish between the government’s powers to reach actions as opposed to opinions in a case involving the Mormon practice of polygamy. Waite placed no emphasis on the metaphor, but he declared that the Danbury letter “may be accepted almost as an authoritative declaration of the scope and effect of the [first] amendment thus secured”. The metaphor did not reappear in the halls of the Supreme Court for the next seven decades until Justice Black saw a way to use it to further his own anti-Christian agenda.
I will not attempt to lead the reader into what action I think should be taken to put the establishment clause back to its original meaning. Others have done a far superior job in outlining such strategies than I can possibly do in the limited space here, but I will point you in the right direction. A wonderful course of action is outlined in Martyn Babitz book, The Illusion of Freedom.
My purpose here was a simple one. I am by no means, a language scholar, but I believe with my limited skills and understanding of the English language, I have provided a somewhat closer corrected translation of the establishment clause, as it was intended by the Founders, than what is being used in our courts today. If I, a simple man with limited resources but a desire for truth and understanding can figure this out, why can’t those learned people with whom we entrust our freedom?
Monty Rainey is a District Manager in the self storage industry since 1996 currently overseeing 21 stores in the Austin & San Antonio, TX area. He is also a leadership coach and public speaker. For a free consultation, please contact Monty at 830-743-2139 or visit his website at http://www.montyrainey.com .
- The Myth of Separation of Church and State (socyberty.com)