Separation of Church and State: Responding to the Religious Right
Tom Peters

Introduction

In this section we respond to some of the most important/most frequently repeated arguments used by leaders of the religious right to "prove" that the Constitution does not require the separation of church and state.

As you will see, most of these arguments collapse under close scrutiny, either on the basis of logical flaws, or because they are in conflict with the evidence. While a few of these arguments have merit, they are invariably misused by accomodationists to prove points that are not at issue, or else they omit important information that puts the argument in a different light. A few of these arguments are complicated; we will explain these in detail before responding to them.

The phrase "separation of church and state" is not in the Constitution

 Absolutely true, and absolutely irrelevant. As noted earlier, separationists take this language from Thomas Jefferson's 1802 letter to the Danbury Baptists in which he argued that the Constitution created a "wall of separation between church and state." But, as noted above, separationists have never taken the phrase as anything more than a handy (if historically significant) summary of the intent of the religion clauses of the First Amendment. Separationist scholar Leo Pfeffer, for example, notes:

"No magic attaches to a particular verbalization of an underlying concept. The concept at issue here is more accurately expressed in Madison's phrase 'separation between Religion and Government,' or in the popular maxim that 'religion is a private matter.'" (Church, State, and Freedom, pp. 118-119).

Second, accommodationists don't apply this argument consistently. Pfeffer, for example, observes that:

(T)he phrase "Bill of Rights" has become a convenient term to designate the freedoms guaranteed in the first ten amendments; yet it would be the height of captiousness to argue that the phrase does not appear in the Constitution. Similarly, the right to a fair trail is generally accepted to be a constitutional principle; yet the term "fair trial" is not found in the Constitution. To bring the point even closer to home, who would deny that "religious liberty" is a constitutional principle? Yet that phrase too is not in the Constitution. The universal acceptance which all these terms, including "separation of church and state," have received in America would seem to confirm rather than disparage their reality as basic American democratic principles (pp. 118).

Jefferson's "separation of church and state" letter was hastily written and does not accurately represent Jefferson's view of church and state

 On the contrary, Jefferson saw his letter to the Danbury Baptists as an important opportunity to clarify his policies concerning church and state and, hence, crafted the letter carefully. Indeed, Jefferson was so concerned about the wording of his letter that he sent a working draft to at least two people, Gideon Granger, his Postmaster General, and Levi Lincoln, his Attorney General. According to historian Dumas Malone (Jefferson the President: First Term, 1801-1805, p. 109), Granger wanted nothing in the letter changed. Lincoln, on the other hand, thought it would be prudent to eliminate the part of the letter in which Jefferson emphasized his opposition to proclaiming days of fasting and thanksgiving, on the grounds that this might cost him political support in the eastern states, which had long-established traditions of government proclamations of thanksgiving. Accordingly, Jefferson omitted this portion of the letter.

For the full text of Jefferson's letter to Lincoln, click here. For the full text of Jefferson's letter to the Danbury Baptists, click here.

Thomas Jefferson actually said that the wall of separation between Church and State is "one-directional."

 This claim, frequently encountered on the internet and widely circulated by the religious right, serves as an excellent example of the lengths to which accomodationists will go to challenge the plain meaning of Jefferson's words. No one knows where this claim originated, but it was popularized by religious right author and anti-separationist activist David Barton in the first version of his hour-long videotape "America's Godly Heritage" (a second version omits this claim; see Rob Boston, "Sects, Lies, and Videotape," Church and State, April 1993). Additionally, Barton uses the "one-directional" language, without directly attributing it to Jefferson, in his 1989 book, The Myth of Separation, p. 42. Indeed, the claim was so widely accepted in religious right circles that it was repeated by the head of the Colorado branch of the Christian Coalition before the 1992 Colorado state Republican Party convention ("Sects, Lies, and Videotape," Church and State, April 1993).

Barton's claim is that Jefferson makes the following statement about his "wall" metaphor in his letter to the Danbury Baptists:

That wall is a one directional wall. It keeps the government from running the church but it makes sure that Christian principles will always stay in government."

Needless to say, Barton's claim is pure fantasy. Jefferson made no such statement, either in the Danbury Baptist letter or in any of his other writings. No professional accommodationist scholar gives Barton's claim the slightest credence. Still, the story continues to circulate, and has now become so widely disseminated among religious right activists that it has all but assumed the status of a religious "urban legend."

Barton's "one directional" wall story is only one of the many ways that the religious right attempts to discredit Jefferson's staunch separationism. For a more complete explanation of Jefferson's beliefs, look here.

Jefferson's Danbury letter was written mearly to assure Connecticut Baptists that the Constitution did not permit the establishment of a national denomination

 In recent years some accommodationists have attempted to discount the significance of Jefferson's Danbury letter by arguing that the "wall of separation" metaphor was intended only to assure Baptists that the Constitution would prohibit Congress from establishing Congregationalism as the national religion. On this line the "wall" metaphor is to be read as an endorsement of non-preferentialism, as opposed to a reference to the general absence of federal power over religion.

We don't know who first made this argument, but it was popularized by anti-separation activist David Barton in his 1992 book, The Myth of Separation. On page 41 of Myth he argues as follows:

True to form, Barton's assertion contradicts virtually everything we know about the Danbury letter. First, there is no evidence that the Danbury Baptists wrote to Jefferson because of a rumor that "a particular denomination was soon to be declared a national denomination." Barton does not evidence this claim, and the argument is implausible on it's face: the First Amendment had been in effect for about a decade, and it was universally understood that Congress had no ability to declare a national religion (see Thomas Curry, The First Freedoms, ch. eight; Leonard Levy, The Establishment Clause, chs. 4-5). It is difficult to believe, in other words, that any group of well informed citizens--let alone Baptists, who were generally knowledgeable on issues of religious freedom--would have taken such a preposterous rumor seriously.

Second, a good deal of Jefferson's correspondence with religious groups during his presidency is extant, and nowhere in this correspondence do we find Jefferson addressing rumors of a national religious establishment. If a national establishment was the context of the Danbury letter, the Danbury Baptists were, so far as we can tell, alone in that concern.

Third, and more important, a copy of the Danbury Baptist's letter to Jefferson survives, and it utterly contradicts Barton's reading. The letter does not mention a national establishment; rather, the letter is concerned with the lack of religious liberty Baptists enjoyed in the state of Connecticut. The Baptist complaint was that the Connecticut state constitution did not prohibit the state from legislating about religious matters. As a consequence, they argued, "...what religious privileges we [Baptists] enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements as are inconsistent with the rights of freemen."

The "degrading acknowledgements" referenced here refers to a system of religious taxation that forced many Connecticut Baptists to support the established Congregationalist church. According to church/state scholar Derek Davis, Connecticut law allowed the Baptists to rout their religious taxes to their own churches, but this involved locating and filling out an exemption certificate, and many Connecticut communities either made it difficult to obtain the certificates, or refused to approve the exemptions once submitted (see, "What Jefferson's Metaphor Really Means," Liberty, Jan/Feb, 1997, p. 13). Beyond this, the Baptists found the law unjust and discriminatory in that it favored Congregationalism over other denominations. According to Davis, the Connecticut Baptists began a petition campaign in 1800 to put pressure on the state legislature to rescind the tax. The letter to Jefferson appears to have been a part of that campaign:

In the third paragraph of the letter the Baptists observe that Jefferson "is not the national legislator" and that "the national government cannot destroy the laws of each state," further indicating that the concern of the Danbury Baptists was the state's Congregationalist establishment. Their hope, apparently, was that Jefferson might use both his own moral influence as a beloved founder and the bully pulpit of his office to convince the Connecticut legislature to rescind the establishment:

Ironically, in his 1996 book, Original Intent, Barton rejects his 1992 interpretation of the Danbury letter. Nowhere in the book does he reference any rumor about a national establishment. Rather, Barton now argues the Baptists first wrote Jefferson to express their concern that the First Amendment might be interpreted to allow Congress to regulate religious expression! This view, over course, is absurd, and we refute it below.

In summary, there is no evidence that the context of the Danbury letter was a rumor of a national establishment. On the contrary, the concern of the Danbury Baptists was religious oppression in the state of Connecticut. Jefferson used the letter as an opportunity to express his own views that the First Amendment created a "wall of separation between church and state." This was no mere assurance that Congress could not establish a national religion. It was a response to the very thesis of the Baptists' letter: that religious rights are by nature inalienable. The Baptists wanted that view to prevail in Connecticut. Jefferson's metaphor assured them that this was already true on the national level, and that the federal government had no right to legislate on religious matters in any way.

Jefferson's Danbury letter was written mearly to address the Danbury Baptists' fears that the First Amendment might be misinterpreted

In his 1996 book, Original Intent, David Barton advances a remarkable theory about Jefferson's Danbury letter. According to Barton, the Danbury Baptists originally wrote to Jefferson about their "grave concern over the entire concept of the First Amendment," in particular, that the Amendment might allow the federal government to regulate religious expression.

Here is the relevant passage from Barton's book:

As is the case with his 1992 explanation of the Danbury letter, this argument is completely contrary to the facts. The Danbury Baptists were concerned with religious discrimination in the state of Connecticut; their letter to Jefferson does not reference the First Amendment or the federal Constitution in any way. Moreover, Barton knows the letter does not refer to the First Amendment; the ellipses in his quotation from the letter, above, omit exactly those words that would indicate to the reader that the constitution referenced here is the Connecticut state Constitution, and not the federal Constitution. Here is the section of the letter Barton quotes, with the omitted parts restored in italics:

Clearly, the constitution described here is the constitution of the state of Connecticut. Unlike the Connecticut constitution, the federal Constitution was not "ancient," was not adopted at the time of the revolution, didn't allow religion to be "the first object of legislation," did not subject Baptists (or any other denomination) to "degrading acknowledgments" as a condition of receiving religious privileges, and contained procedural safeguards that prevented government from assuming religious powers (the First and Tenth Amendments). Barton omits the italicized words knowing full well that if he included them in his quotation many readers would recognize that something is amiss with his account of the Baptists' letter.

Why does Barton argue that the Danbury Baptists wrote to Jefferson out of a concern about the potential misinterpretation of the First Amendment? Briefly, the argument serves as a foil for his belief that the First Amendment prohibits only preferential establishments of religion. Barton's argument is that the Danbury Baptists were concerned that, if the national government was allowed to limit religious expression, it would do so preferentially, thereby creating a preferential establishment of religion. Accordingly, Barton reads Jefferson's reply to the letter is nothing more than an endorsement of non-preferentialism:

Once again, Barton's argument is at variance with the facts. The Baptists' concern was not about free exercise; it was about Connecticut's religious establishment, which taxed Baptists for the maintenance of Congregationalist churches unless they submitted to the "degrading" practice of obtaining exemption certificates which routed their tax money to their own congregations (see Derek Davis, "What Jefferson's Metaphor Really Means," Liberty, January/February, 1997, pp. 12-18). Baptists were free to worship in the state of Connecticut; their concerns were with establishment and its attendent effects. Additionally, Jefferson's reply to the Baptists is not specific to the issue of free exercise. On the contrary, the only mention of free exercise in the Danbury letter is in conjunction with the establishment clause, which together are held to erect the "wall of separation between church and state." Finally, if Barton is correct that Jefferson believed that the effect of the First Amendment is to prohibit government from "limit[ing], restrict[ing], regulat[ing], or interfer[ing] with public religious practices," then the Amendment prohibits all religious laws, not just preferential ones. Barton's evidence, in other words, even if it were true, would not lead to the conclusion he wants to reach.

Barton's 1996 account of the Baptists' letter is simply the latest in his long line of attempts to minimize the significance of Jefferson's "wall of separation" metaphor. It's a sad commentary on the state of accommodationist scholarship that one of the leading spokesmen for that cause is so willing to play fast and loose with the facts. Barton's mistakes are not of the sort that one can ascribe to honest scholarship. They are the product of a mind that is either incapable of seeing the truth, or presenting the truth with integrity.

Jefferson's letter to Benjamin Rush shows that Jefferson was a non-preferentialist

In his 1996 book Original Intent, Barton argues that Jefferson believed that the First Amendment prohibited only preferential establishments of religion. Part of the proof he adduces for this claim is a letter Jefferson wrote to Dr. Benjamin Rush on Sept. 23, 1800. Here is the relevant passage from Barton's book:

There is little to commend this argument. In particular, we note that Barton's conclusion is illogical; one cannot conclude from Jefferson's opposition to preferential establishment that he believed the effect of the First Amendment was limited to preferential establishment. This would be the same as arguing that, because Jefferson believed that the free speech clause prohibited the Sedition act of 1798, the free speech clause was limited to sedition! In fact, Jefferson indicated on numerous occasions that he believed the First Amendment was a total prohibition on the power of government to aid or hinder religion:

In justice, too, to our excellent Constitution, it ought to be observed, that it has not placed our religious rights under the power of any public functionary. The power, therefore, was wanting, not less than the will, to injure these rights (Letter to the Society of the Methodist Episcopal Church at Pittsburg, Dec. 9, 1808).

Thomas Jefferson supported Bible reading in school; this is proven by his service as the first president of the Washington D. C. public schools, which used the Bible and Watt's Hymns as textbooks for reading

Research by Jim Allison

On page 130 in his The Myth of Separation, David Barton makes the following claim:

Barton's reference for Jefferson's service on the Washington D. C. school board is J. O. Wilson, "Eighty Years of Public Schools of Washington," in the Records of the Columbia Historical Society, vol. 1, 1897, pp. 122-127. Barton's quotation from Jefferson is taken from Herbert Lockyear, The Last Words of Saints and Sinners, 1969.

Apparently, Barton wants us to conclude that, since Jefferson was president of the board for a school system that used the Bible for reading instruction, he must have approved of using the Bible in this manner. In fact, some readers of this web site have claimed in their e-mail correspondence with us that Jefferson requested the Bible to be used for reading instruction. But nothing in Barton's source supports either of these claims. In fact, Barton's source suggests that someone other than Jefferson was responsible for introducing the Bible into the schools, and that this policy was adopted after Jefferson had left Washington for retirement in Virginia. Here are the facts:

On September 19, 1805, toward the end of Jefferson's first term as President of the United States, the board of trustees of the Washington D. C. public schools adopted its first plan for public education for the city. Given its resemblance to a similar plan proposed several years earlier by Jefferson for the state of Virginia, Wilson (Barton's source) suggests that it is likely that "he [Jefferson] himself was the chief author of the...plan." The plan called for the establishment of two public schools in which:

As you can see, there is nothing in this plan that mentions religious education or the use of the Bible in reading instruction. Nor, we might add, was the Bible mentioned in any of Jefferson's plans for public education in the state of Virginia, either before or after his presidency (check out an extract from Leonard Levy's book Jefferson and Civil Liberties: The Darker Side for documentation on this point). There is nothing, absolutely nothing, in Barton's source that connects Jefferson to the practice of Bible reading. So how did the Bible come to be used in the Washington public schools? Remarkably, Barton's own source provides an answer to that question.

In 1812 the board of trustees established a school that used a curriculum developed by the British educator Joseph Landcaster, who's system of education was becoming increasingly popular in the United States. Wilson describes Landcaster as an "enthusiastic but somewhat visionary schoolmaster, who adopted an inexpensive method of educating, especially the masses of the poor. The curriculum of his schools included reading, writing, arithmetic, and the Bible." In an 1813 report to the board of trustees, Henry Ould, the principle of the Landcasterian school, related the progress his students had made in reading and spelling:

In other words, the first mention of the use of the Bible and a Christian hymnal in the Washington public schools is in connection with a curriculum adopted in 1812, three years after Jefferson has left Washington and the school board for retirement in Virginia. Contrary to Barton's implied claim, Jefferson was not president of the school board when the Bible was being used for instruction. Barton simply omits information he doesn't want his readers to know, and so allows them to draw an conclusion that his own source refutes. Barton, we conclude, is either sloppy or dishonest in his use of evidence. Either alternative should cause the reader to question the soundness of Barton's scholarship.

So what about Barton's quote from Herbert Lockyear's The Last Words of Saints and Sinners? We tracked down the book and discovered that it had no footnotes that direct the reader back to either Jefferson's own writings, or to secondary accounts of Jefferson's life; the quote, in other words, is untraceable. Moreover, we've never seen this quote referenced in any scholarly work on Jefferson's attitude toward religion, or in any account of Jefferson's death (the context of Lockyear's book). If Jefferson uttered these words, it has apparently escaped the notice of most historians.

We have simply never encountered a legitimate scholar that reports an unfootnoted quotation from a secondary source writing some 140 years after the fact as the truth, especially when that quotation seems not to be known to other scholars. If Barton wants us to accept this quote as authentic, he should be able to indicate to where it can be found in Jefferson's works, or else point us to a secondary source that provides the relevant documentation. Barton does neither. It's hard to resist the conclusion that this quote was fabricated by Lockyear, and that Barton reports it knowing full well that there are questions as to its authenticity. [Barton now admits this quotation is fabricated]

Finally, we draw your attention to a last, nagging inaccuracy in Barton's passage. While it's true that Jefferson was elected president of the Washington public school board in 1805, Wilson (Barton's source) goes on to note that Jefferson was "prevented from ever discharging its duties by others of paramount concern." Once again, Barton misreports his source; he leaves out information that indicates that Jefferson was not as involved in the work of the school board as the title "president" suggests. There is no good reason for Barton to omit this information unless, of course, he wants to mislead his readers.

Federal officials take their oaths upon a Bible, and use the words "so help me God."

 When Presidents and other federal officials take their oaths of office, they often place their hand on a Bible and conclude their oaths with the words "so help me God." Some accommodationists see these practices as evidence that the founders never intended separation of church and state. But this conclusion doesn't follow: the Constitution doesn't require Presidents or other federal officials to place their hand on the Bible or say the words "so help me God." Quite the contrary, those sections of the Constitution that deal with oaths of office are completely secular in content and, as such, constitute evidence that the framers intended separation.

The Presidential oath of office is described in Article II, section 1 of the Constitution:

Nothing in this section requires that the oath of office be taken on the Bible. Neither do the words "so help me God" appear in the oath. While Presidents often include this phrase in their inauguration ceremonies, the words are customary; they are not required by the Constitution and have no legal significance.

Additionally, we note that the words required by the Constitution are described as an "Oath or Affirmation," and that the President is allowed to simply affirm his faithfulness to the Constitution. The word "affirmation" was inserted in this section precisely to allow Presidents to avoid swearing oaths to God as a condition of taking office. This provision seems particularly intended for Quakers (who had religious objections to taking oaths), but it is worded broadly enough to encompass any person who objects to taking an oath, including non-theists.

At the time of the Constitution several states allowed Quakers to escape taking an oath as a condition of assuming elected office. The 1780 Constitution of the state of Massachusetts, for example, provided that:

Conversely, the 1776 Delaware and 1777 Vermont constitutions did not restrict affirmations to Quakers. Like the Federal Constitution, these states allowed any citizen otherwise qualified for public office to affirm loyalty to a state, if conscientiously scrupulous of taking an oath. Still, the federal Constitution went far beyond the practices of even these states by prohibiting religious tests for public office (see below).

Finally, we note that even the "oath" form of the words prescribed by Article II, section 1 is secular in content. Unlike the oaths required in some states, the federal Constitution does not specify to whom the President "swears." God is not mentioned; it is almost as if the framers purposely worded the oath to allow the President decide for himself who, if anything, is being sworn to.

Oathtaking is not rocket science. If the framers wanted Presidents to invoke God when taking the oath of office they could have worded the oath to accomplish that objective. Instead, the constitutional oath of office contains no reference to God, need not be administered on the Bible, and need not even be considered an oath. Contrary to the accommodationist argument, Article II, section 1 is evidence that the framers intended the federal government to be secular in its operation.

Oaths of office for other federal and state officials are described in Article VI of the Constitution:

Joseph Story, an early Justice of the Supreme Court and the author of the first detailed commentary on the United States Constitution, comments on the oath or affirmation clause of the Constitution as follows:

In other words, the Constitution guarantees all federal and state officials the right to avoid taking oaths of office. Further, the Constitution guarantees that there will be no religious tests for federal office. In the words of Joseph Story, the effect of these provisions is to "cut off for ever every pretense of any alliance between church and state in the national government." Additionally, these clauses moved the Constitution well beyond contemporary state constitutions in terms of their provisions for religious freedom.

Presidents and other federal officials may swear on the Bible and say the words "so help me God," but this does not make the Constitution any less secular. The Constitution requires nothing of federal officers in the way of religion. The framers saw no need to refer to God in the oath of office, and explicitly provided an alternative to the oath that guaranteed secularity.

The Northwest Ordinance proves that the First Amendment did not separate church and state

Research for this section by Jim Allison/writing by Tom Peters

The Northwest Ordinance is perhaps the most frequently cited accommodationist "proof" that the Constitution did not separate church and state. Given it's importance to the accommodationist position, our discussion of the Ordinance will be fairly detailed.

The accomodationist argument

Background:

The Northwest Ordinance was first enacted by Congress in 1787, when the nation was still operating under the Articles of Confederation. The purpose of the Ordinance was to create a temporary government for the Northwest Territory (a huge swath of land that extended from the great lakes to the Ohio river valley), and to establish a procedure by which territories could apply for admission into the Union. The Ordinance was reenacted with very minor changes in 1789, after the passage of the Constitution.

The argument:

Accommodationist make at least two claims about the Northwest Ordinance: (1) the Ordinance in some way violates the separationist reading of the First Amendment, and (2) the reenactment of the Ordinance in 1789 can be read as a sort of commentary on the First Amendment.

As to (1), accommodationists argue that the first sentence of Article III of the Northwest Ordinance violates the separationist understanding of the First Amendment. The sentence reads as follows:

Accommodationists note that the wording of Article III seems to link the encouragement of education to the promotion of religion. One accommodationist, David Barton, for example, goes so far as to suggest that Article III "required religion to be included in schools" (The Myth of Separation, p. 39). Less extreme accommodationists would claim merely that the wording of Article III indicates that the authors of the Ordinance were comfortable with "promoting religion, morality and knowledge in public education" (John Baker, "The Establishment Clause as Intended...," in Eugene W. Hickok, Jr., The Bill of Rights: Original Meaning and Current Understanding, p. 49). Additionally, the language of the Article seems to link religion to "good government," which can be read as supportive of the accommodationist position.

As to (2), accommodationists note that the Northwest Ordinance was reenacted by the same Congress that finalized the text of the First Amendment. Accordingly, accommodationists argue that the Ordinance indicates that the First Amendment was not intended by Congress to rule out a close connection between government and religion. David Barton, the accommodationist quoted above, for example, notes that,

and then later argues:

The Separationist Response

While the accommodationist argument looks plausible on its face, a little digging suggests that it self-destructs on the historical and legal data. Not only does the Northwest Ordinance not violate the separationist understanding of the First Amendment (or otherwise support accommodationist claims), the first sentence of Article III was placed in the Ordinance under the most suspicious of circumstances.

First examine the history of the first sentence of Article III of the Northwest Ordinance.

Then consider the following arguments:

The Northwest Ordinance:

Finally, we note that:

The accommodationist argument omits evidence that the Ordinance's framers had no desire to aid religion.

The Supreme Court has declared that the United States is a Christian nation

Research and writing by Susan Batte

David Barton (The Myth of Separation, pp. 47-51) and others of the Religious right claim that the Supreme Court determined that the United States was a Christian nation in the 1892 case, Church of the Holy Trinity v. United States, 143 U.S. 226 (1892). Unfortunately, their thesis and the analysis of the case that accompanies it amounts to little more than a manipulation of the language of the opinion to distort the actual meaning of the case, its relevant facts and its stated rule of law.

The facts of Holy Trinity concerned the application of an Act of Congress titled "An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the Unites States, its Territories and the District of Columbia." Holy Trinity Church, a church located in the city of New York, contracted with a minister in England to perform services as rector and pastor at its church. At issue in the case was whether or not the church's action violated the Act which prohibited "any person, company, partnership, or corporation ... to assist or encourage the importation or migration of any alien ... under contract or agreement ... to perform labor or service of any kind in the United States."

The holding of Holy Trinity was based on an interpretation of the purpose of the Act. The Court concluded that the purpose of the Act was to prohibit the importation of foreign unskilled persons to perform manual labor and manual services. A christian minister, the Court reasoned, is a "toiler of the brain," not a manual laborer; Holy Trinity Church, therefore, was found not to have violated the Act when it secured a contract for the holy man's employment.

The rationale in Holy Trinity contains several different parts. First the court discusses how it came up with the idea that the purpose of the Act was to slow down or stop the importation of cheap, unskilled manual laborers which might compete with American unskilled laborers for jobs. The Court says the title of the Act implies its meaning, that only the importation of "laborers" will be restricted. The Court then turns to the legislative history, debates, and comments of the Congressmen involved in drafting the Act to conclude that the Act was designed to regulate the domestic unskilled, labor market.

Justice Brewer then writes in the opinion that "beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people." Several pages later, after presenting a religious history of America, he follows up with the statement: "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." Barton splices together these two quotes and cites Holy Trinity as establishing America as a Christian Nation.

To understand whether this last part of the Court's rationale establishes anything at all, it is necessary to first understand that an opinion written by the Supreme Court contains several different parts. The holding of the case establishes the rule of law as decided on by the court and as it relates specifically to the facts of the case. The rationale of the case contains the different reasons why the Court decided a case the way that it did. Contained within these reasons can be comments by the Court which do not have any bearing on the specific rule of law and are not binding on future cases with similar facts. These non-essential comments are called dictum, and unlike the holding of the case, dictum carries no precedential value. The essential comments, or the holding, becomes precedent which can then be applied to subsequent cases with similar facts.

In the case of Holy Trinity the essential comments made by the Court concern the scope of an immigration law. The rule was that the Act did not prohibit foreign "toilers" of the brain from accepting employment in this country. The foreign-born professional worker, doctor, lawyer, businessman, or clergyman, would be able to use the rule in Holy Trinity and the rationale regarding the purpose of the Act to support his claim for employment in America. Consider the "absurd" result if a doctor from Russia at the turn of the century were to state that he could be hired by an American hospital because Holy Trinity stood for the proposition that "this is a Christian nation." It would not make sense for such a person to cite the dictum concerning America's religiosity as a reason for allowing him access to the American job market.

Whether or not America was a Christian Nation was not even at issue in Holy Trinity. The actual dispute or controversy the Court had to decide had nothing at all to do with religion. The parties in Holy Trinity did not question whether the Immigration Act's purpose was "for or against religion" generally or specifically. So when Brewer begins his religious history lesson with, "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people," he refers to no particular statute, no particular actor. He has moved outside the actual facts of this case and the statute at issue to address the vague application of general principles to law in general. His statements, therefore, create no rule of law, and provide no useful precedent for future legal disputes. As any basic Legal Research textbook will confirm, the legal researcher will not find precedent in such language, but must look for "the [legal] rules stated by courts [which] are tied to specific fact situations" (The Fundamentals of Legal Research, 1994, Jacobstein et al, page 6).

Brewer's comments about religion are not tied to any of the facts as presented in Holy Trinity. The Holy Trinity Church did not allege in the facts of its case that the purpose of the Act was to discriminate against a particular religion nor that it was designed to prevent the members of their church from the free exercise of their religion. Since none of the facts suggested that the clergyman was being kept out of the country for the purpose of discriminating against religion or prohibiting religious exercise, the dictum by Brewer addresses no controversy and crafts no rule of law to be applied to other cases as precedent.

Holy Trinity's legacy includes a number of Supreme Court cases which cite the opinion as support for either statutory construction based on legislative intent or the use of immigration policy to exclude or include immigrants. Only on three occasions does the Holy Trinity christian nation dictum make an appearance in a Supreme Court case.

In the 1931 case of U.S. v. Macintosh, an ordained baptist minister was denied naturalization because he was unwilling to take an oath to bear arms in defense of the country unless he believed the war necessitating the defense to be morally justified. As in Holy Trinity, the legal rule established by this case had nothing to do with the christian nation quote. Instead, the applicant was denied citizenship based on a reading of the naturalization statute which required the oath.

However, in Macintosh dictum, Justice Sutherland writes, "We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God." Sutherland then states that as a nation we must assume that obedience to our laws is "not inconsistent with the will of God;" therefore, a foreign-born person refusing to follow the naturalization statute to the letter would be denied citizenship.

There are a couple interesting notes about Macintosh. First, in Holy Trinity, Brewer uses the phrase "we are a christian nation" to allow a foreign-born minister access to this country. In Macintosh, it is used to keep a foreign-born ordained minister out. Second, a different result would most likely have occurred had this case arisen after World War II when the court overturned the Macintosh line of cases (Girouard, 1946).

The other two cases which cite Holy Trinity's christian nation dictum are Marsh v. Chambers (1982), and Lynch v. Donnelly (1983). Brennan writes dissents in both cases and uses the Brewer verbiage to criticize the majority's use of history to support legislative prayer and a government sponsored creche. In the creche case, (Lynch), Brennan writes, "By insisting that such a distinctively sectarian message is merely an unobjectionable part of our 'religious heritage,' the Court takes a long step backwards to the days when Justice Brewer could arrogantly declare for the Court that 'this is a Christian nation.' Those days, I had thought, were forever put behind us ...."

Depictions of Moses and the 10 Commandments are featured prominently in the Supreme Court Building; this proves that the founders had no intention of separating Church and State

Research by Jim Allison. Writing by Tom Peters. 

One of the strangest arguments we've encountered in our conversations with accommodationists has to do with the several depictions of Moses and the 10 Commandments contained in the artistic embellishment of the Supreme Court building. Briefly, some accommodationists argue that these depictions prove that (1) no one believed in separation before 1935 (when the Supreme Court building was completed), and/or (2) that American law is based on the 10 Commandments. We beg to disagree. Not only are these depictions irrelevant to the separation debate, many of the claims made by accommodationists about these depictions are either misleading or inaccurate.

We begin by observing that this is not a mainstream accommodationist argument. We've never seen this argument made, for example, in books and articles by professional accommodationist scholars. Rather, we've encountered this argument only in debates with non-academic, religious, accommodationists. We note this because we want to emphasize that not all accommodationists think alike. In contrast to professional scholars, non-academic accommodationism tend to gravitate toward the more extreme forms of accommodationism, and often take positions that academic accommodationists wouldn't touch with a ten-foot pole. This argument happens to be one of them. Keep that in mind as we respond to this argument.

Our first response is to note that the primary factual premise of the argument is untrue: Moses and the 10 Commandments are not prominently featured in the Supreme Court building. Rather, most of the artistic embellishment in the building involves symbolic and allegorical representations of such legal themes as justice, authority, fairness and the like. Most of these representations involve human figures representing the civilizations of Greece and Rome (the building itself was designed to invoke the feeling of the classical Greek temple). If quantity is the measure of importance, the architecture of the Supreme Court favors the classical over the Mosaic tradition of law. Moreover, where Moses and the 10 Commandments are depicted, they are never given positions of exclusive prominence, as we would expect if the intention of the architecture was to establish a connection between the Bible and American law. Rather, the architecture depicts Moses as one of many important lawgivers, and the 10 Commandments as one of many important events in legal history (click here for a more detailed discussion of the subordinate placement of Moses and the 10 Commandments in the architectural fabric of the Supreme Court building).

A second premise of the argument is that, if belief in separation was widespread in 1935, depictions of Moses and the 10 Commandments would never have been allowed in the building. But this doesn't follow; the Supreme Court has never held that public buildings cannot contain depictions of the 10 Commandments. The Court's rulings proscribe only those depictions that are intended to convey government endorsement of the Commandments (Stone v. Graham, 1980). Additionally, the Court has allowed the inclusion of religious symbols in public displays so long as those symbols are part of a larger work that serves a secular purpose (Lynch v. Donnelly, 1991). No one thinks that the art of the Supreme Court building is intended as an endorsement of the 10 Commandments, and there is no question that the overall effect of this art is secular. Hence, the depictions of Moses and the 10 Commandments in the Court building would pass muster even under today's more stringent establishment clause jurisprudence.

Nor would separationists object to the notion that Judaism and Christianity have contributed to American law. Of course they have. America inherited it's common law from Britain, and British common law was certainly influenced by Christianity. It makes perfect sense, in other words, for the art of the Supreme Court building to contain depictions of Moses as an important and relevant lawgiver. But this is a far cry from proving that American law is founded on the 10 Commandments. On the contrary, while our common law comes from Britain, our fundamental statue law is the Constitution, and the Constitution fairly repudiates the first two Commandments (worship only the LORD, do not make graven images), and doesn't even mention the other eight. We can accept, in other words, that the art of the Supreme Court is intended to implicate the Bible as an important background for our law, without leaping to the wholly unwarranted conclusion that the 10 Commandments have some immediate relationship to the Constitution.

Finally, we note that the architecture of the Supreme Court building is irrelevant to the separation debate. The building was designed by architects and sculptors, not lawyers and legal scholars, and the Supreme Court building committee deferred to the architects in their choice of artistic embellishment. Accordingly, one can't read the architecture of the building as if it were intended as some sort of commentary on American law. Moreover, we know why the building was designed as it was; they artists involved in the project submitted detailed explanations of their art to the Supreme Court building committee, and these explanations say nothing about the 10 Commandments as a source of American law. Remarkably, when accommodationists interpret the art of the Supreme Court building, they simply ignore these explanations (click here for a look for our critique of one popular accommodationist commentary on the art of the Supreme Court).

In summary, this argument fails on both a factual and logical level. If anything, the fact that artistic depictions of Moses and the 10 Commandments appear in the Supreme Court building, and that separationists have never challenged these depictions proves that separationism does not have the pernicious effects claimed by accommodationists.

The Constitution is based on the Bible. This is proven by the frequency with which the founding fathers quote the Bible in their political writings

Research by Jim Allison and Tom Peters.

In the first version of his videotape, America's Godly Heritage, David Barton makes reference to two University of Houston researchers who studied the most frequently cited authors in the writings of the founding fathers. According to Barton, these researchers concluded that 94% of all the citations found in these writings were either to the Bible, or to authors who based their conclusions on the Bible. This, he concludes, demonstrates the profound influence of the Bible on the Constitution.

While Barton doesn't name the researchers in his videotape, he refers to them in his recent book, Original Intent. Barton's reference is to The Origins of American Constitutionalism (hereafter, Origins), a 1988 book by political scientist Donald Lutz. On pages 136-149 of Origins, Lutz summarizes the results of a 1984 paper in which he and colleague Charles Hyneman analyze some 15,000 items of American political commentary published between 1760 and 1805 ("The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought," The American Political Science Review, 78 (1984), pp. 189-197; hereafter, Relative Influence). The purpose of the paper was to determine the sources that most influenced the development of American political thought during our nation's founding period.

Does Lutz's and Hyneman's research support Barton's conclusions about the Bible and the Constitution? In some ways, the answer is "yes." In particular, Lutz and Hyneman demonstrate that the Bible was the most frequently quoted source between 1760 and 1805, and he concludes that future research on the development of American political thought should include increased attention to "biblical and common law sources" (Relative Influence, p. 190). It is perfectly reasonable that Barton would use this evidence to support his argument, and we have no quarrel with that aspect of Barton's case.

But this isn't all that Lutz concludes. Lutz also devotes a full section of his article to political writings about the Constitution, and these data largely refute Barton's conclusions. Needless to say, Barton doesn't report these data, despite their relevance to his argument. Additionally, Barton attributes to Lutz and Hyneman conclusions they do not reach about the importance of the Bible during the founding period. Accordingly, Barton's treatment of Lutz's data is both selective and dishonest.

Let's begin with Barton's 94% figure. In the videotape, Barton breaks it down as follows: 34% of the founder's quotations were taken directly from the Bible, and 60% were from authors that base their conclusions on the Bible. The 34% figure, at least, is accurate; this corresponds exactly to Lutz's and Hyneman's conclusions with respect to the total percentage of citations between 1760 and 1805. But where does the 60% figure come from? Not from the paper; Lutz and Hyneman provide no category of citations that even remotely corresponds to "authors that base their conclusions on the Bible." Rather, the 60% figure is manufactured by Barton himself on the basis of his own reading of other authors that scored highly in Lutz and Hyneman's survey, people like Montesquieu, Blackstone, and Locke. You would not know this from the videotape, which reports the 60% figure as if it were the conclusions of Lutz and Hyneman themselves. [Note: there are a number of problems with this 60% figure. In particular, Barton overstates the degree to which these authors used the Bible in reaching their own conclusions. We'll do an article on this issue at a later time.]

Beyond this, what exactly does this 94% figure prove? Barton wants us to think that because the founders quoted at length from the Bible, or people that quoted the Bible, the Constitution must somehow embody Biblical law, be "based" on the Bible, or otherwise have the Bible in mind. But this doesn't follow; the fact that the Bible was frequently quoted is not the same thing as saying it was quoted for the purpose of creating a legal code or the Constitution. Indeed, Lutz's and Hyneman's data suggest that the Bible was for the most part irrelevant to the Constitution, and that what connections there were between the Bible and the Constitution are not of the type that support Barton's claims.

First, Barton does not report the most relevant evidence from Lutz's article: in addition to their general citation count from 1760 to 1805, Lutz and Hyneman compile a count specific to political debate on the Constitution between the years 1787 and 1788 (the years corresponding to the drafting and ratification of the Constitution). According to Lutz, this sample "comes close to exhausting" the literature written on the Constitution during this period (Relative Influence, p. 194). If the founders believed that the Bible was truly relevant to the Constitution, Biblical citations should appear in abundance in this sample, but, they don't. On the contrary, Biblical citations are virtually nonexistent in this sample. According to Lutz, federalist (i.e., pro-Constitution) writers never quoted the Bible in their political writings between 1787 and 1788. Conversely, anti-federalist writers quoted the Bible only 9% of the time. According to Lutz:

Additionally, Barton omits Lutz's breakdown of sources for his 34% figure. Three fourths of the Biblical citations in Lutz's 1760 to 1805 sample come, not from secular sources, but from reprinted sermons (one of the most popular types of political writing during these years). Conversely, the Bible accounts for only 9% of all citations in secular literature, about equal to the number of citations from classical authors (Origins, p. 140). Hence, were it not for the political activity of religious clergy, the Bible would be tied for fourth place among source citations during 1760 and 1805.

Interestingly, Barton's reference to Lutz's work in Original Intent is not to Lutz's article, but to Origins, Lutz's later book. Lutz's book reports his 1984 data in abbreviated form, and does not refer to his citation count for the years 1787 to 1788, or the conclusions he draws from that count. A reader that simply follows Barton's citations, in other words, would be ignorant of this data. At the same time, no reader of Lutz book would likely come away with the feeling that the Constitution was written with the Bible particularly in mind. As Lutz documents, by the time of the Constitution, American political theory was a rich tapestry of ideas drawn from many different sources; the Bible and colonial covenant theology were simply two of many influences that played in the minds of the American founders.

In the end, Lutz's work is far more supportive of separation than of accomodationism. Did the founder's quote the Bible in their political writings? Of course they did, and there is nothing remarkable about that fact. Lutz's data suggest that, whatever the cultural influence of the Bible, it did not play much of a role in the construction of the Constitution. On the contrary, the Constitution is a secular document concerned with the nuts and bolts issues of how to create a workable nation in a land of economic, cultural, and religious diversity. It simply did not touch on matters relevant to the Bible.

Montesquieu based his theory of separation of powers on Isaiah 33:22 and Jeremiah 17:9

 Barron Charles Louis Joseph de Secondat Montesquieu was a nobleman who wrote extensively about political theory. In his famous work The Spirit of the Laws, Montesquieu became the first to articulate in a detailed way the doctrine of separation of powers (i.e., the theory that liberty is best protected when government distributes executive, legislative, and judicial power among three branches of government, so that no one branch can control all three). By all accounts America's founding fathers were deeply influenced by Montesquieu; citations to Montesquieu pop up with great frequency in the political discourse of revolutionary America, and his work was a major justification for the structure of the American Constitution.

In his book America's God and Country (p. 453), William Federer claims that Montesquieu based his theory of divided powers on two Biblical passages: Isaiah 33:22, and Jeremiah 17:19. The Isaiah passage reads as follows:

The Jeremiah passage reads:

According to Federer, the Jeremiah passage provides the motive for separated powers; since the heart is wicked, it's best to divide powers to minimize the amount of power that any one individual person can possess. The Isaiah passage, on the other hand, provided Montesquieu with the structure for a divided government. Federer references these verses to page 457 of Anne Cohler's 1989 translation of The Spirit of the Laws. These same verses are also referred to by David Barton in his work The Myth of Separation, pp. 195-196. Unlike Federer, however, Barton does not explicitly claim that Montesquieu based his work on these verses, and does not provide relevant citations to Montesquieu's text.

The problem with Federer's argument is that it is not true. Montesquieu develops his argument for separation of powers in Book XI of The Spirit of the Laws, and nowhere in this book does he reference Isaiah, Jeremiah, or any other book of the Bible. On the contrary, Montesquieu's examples in this section are all drawn from contemporary European and pre-Christian Roman and Germanic history. Nor can we find references to Isaiah and Jeremiah elsewhere in the book. While Montesquieu does occasionally reference the Bible in The Spirit of the Laws, these references are mostly to the Pentateuch, and are never to the prophetic books of the Old Testament.

It is difficult to argue that Montesquieu based his theory of divided powers on Isaiah and Jeremiah when he doesn't quote from these books, and when he bases his examples on other sources. We conclude that Federer has either misunderstood Montesquieu, is simply repeating someone else's inaccurate argument, or is intentionally misleading his readers.

But what of Federer's reference to page 457 of Cohler's translation of The Spirit of the Laws? We've located a copy of this work, and this page turns out to be nothing more than the title page for the fifth section of Cohler's translation; it has no text except the words "Part 5." We will charitably assume that the reference is a misprint, but sloppy editing on Federer's part does little to convince us that he knows what he's talking about with respect to Montesquieu. Additionally, Cohler's work contains an detailed appendix in which she indexes all the sources Montesquieu used in writing The Spirit of the Laws, and while we find several references to various books of the Bible, there are no references to Isaiah and Jeremiah. Far from proving his argument, Cohler's translation is further proof that Federer's claim is incorrect..

For what it's worth, we don't think Federer is the originator of the myth that Montesquieu derived his theory from the Bible. Barton's The Myth of Separation predates Federer, and Barton makes essentially the same argument (albeit without footnotes). The idea was probably circulating long before either Federer or Barton wrote their books. But it makes no difference. It is a myth. There is absolutely no reason to believe that Montesquieu derived his ideas from the Bible. The myth should be put to rest before it does any more disservice.

As a general matter, the Constitution embodies the principles of Christianity and the 10 Commandments

In our discussions with accommodationists we have often encountered the claim that the Constitution is based on Christianity and the 10 Commandments. Most of the time this claim has been asserted to us without evidence, but when arguments are presented they typically boil down to the following: (1) the Constitution embodies Christian thought and morality, (2) the "Sundays excepted" clause of Article I, section 7 establishes the Christian Sabbath, and (3) the Constitution is dated "in the Year of our Lord, one thousand seven hundred and Eighty seven." In fact, none of these arguments comes close to proving a Christian background for the Constitution.

Contrary to the claims of many accommodationists, virtually nothing in the Constitution references Christian thought and morality. The only explicit mention of religion is the article VI declaration that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Otherwise, the Constitution is wholly concerned with the secular issues of defining federal power, and distributing that power among the various branches of government. Quite against the practice of state constitutions, the federal Constitution does not quote or refer to the Bible, does not set up any religion above another, does not refer to God, and does not raise or rule upon religious questions. It is a remarkably secular document for its day and age.

Our e-mail correspondents have occasionally argued that that the structure of our federal government is derived from the Bible; this claim rests on little more than wishful thinking. The most important features of our federal government include (1) a separation of powers among three branches of government, (2) a bicameral legislature, (3) different modes of representation in each chamber of the legislature, (4) a limited executive, (5) and independent judiciary, and (6) a complex system of checks and balances. No model of government found in the Bible corresponds to this outline. Ancient Israel was governed first by Judges and then by Kings; in neither system was there separation of powers (i.e., the executive acted as both lawmaker and judge), nor was there any clear distinction between secular and religious law. Nowhere in the Old Testament do we find anything like a bicameral legislature, or an independent judiciary. Conversely,the New Testament does not contain a model of government; it simply does not function as a political document in the same way as, eg., the Q'uran does in Islam.

Some accommodationists claim that founders derived the principle of separation of powers from Isaiah 33:22, "For the LORD is our judge, the LORD is our lawgiver, the LORD is our King; he will save us." Apart from the fact that there is no evidence that this verse was ever referred to by the founders in this context, this argument fails on it's own assumptions: the Constitution sets up an elected executive, not a King, and the tenor of the verse is anti separation-of-powers; it says that all three branches are properly united in one person, the LORD. That the founders would read this verse and derive from it a mandate for divided powers is neither logical nor plausible.

Nor is there any relationship between the Constitution and the 10 Commandments. The Constitution fairly repudiates the first two commandments (i.e., it leaves us free to worship other Gods than the LORD, and to make graven images), and is silent on commandments three through ten. Laws against blasphemy, Sabbath breaking, dishonoring parents, murder, adultery, stealing, false witness, and coveting are left entirely to the states.

The secular ethos of the Constitution extends even to the taking of the oath of office. Quite against the practices of the states, the oath of office described in Article II section 2 of the Constitution is completely secular; it is described as an "oath or affirmation," contains no religious references, and need not be taken on the Bible. The practice of saying "so help me God" is not required by the Constitution; it is a voluntary practice initiated by later presidents.

The absence of Christian thought and morality in the Constitution is a powerful evidence that the founders did not intend to create a Christian nation. Indeed, a popular early criticism of the Constitution is that it allowed non-Christians to serve in federal offices, and did nothing to promote Christianity (see Isaac Kramnick and R. Laurence Moore, The Godless Constitution, ch. 2). If the founders wanted to favor Christianity or Judeo- Christian morality, they failed utterly in that task. This should make us suspect that the Constitution was never intended to set up Christianity as a preferred religion in the first place.

Article I, section 7 of the Constitution provides that "If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it..." Some accommodationists argue that the words "Sundays excepted" are a legal recognition of the Christian Sabbath and, hence, are evidence that the founders did not intend strict separation of church and state. While it's reasonable to assume that the Christian Sabbath is in view here, accommodationists are wrong in claiming that the clause "recognizes" a Sabbath or declares a day of rest. On the contrary, we suggest that the most likely interpretation of the clause is separationist: a mechanism to shield the President from the effects of Sunday laws in the several states.

Sadly, the historical record provides us little information about the original intent of the "Sundays excepted" clause. The clause appears without comment in the records of the Constitutional Convention on August 15, 1787 as an amendment to a proposed draft of the Constitution (see below). Early legal authorities are silent on the clause, up to and including Joseph Story's famed Commentaries on the Constitution (1833). While Story quotes the exact language of Article I, Section 7 in his work, he does not discuss the meaning and purpose of "Sundays excepted". Therefore, any attempt by modern scholars to explain this clause's function or purpose based on the framers' intent alone will necessarily rely on speculation.

One thing that seems certain is that the "Sundays excepted" clause was subordinate in the minds of the framers to the more important issue of how many days the President would have to veto bills before they automatically became law. On August 6, 1787 the Constitutional Convention approved language that gave the President the right to veto legislation passed by Congress, subject to Congressional override. This language gave the President seven days to exercise his veto power from the time a bill reached his desk:

 

Article VI, Sect. 13. Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not he returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law.

For whatever reason, the seven day limit did not sit well with the Convention. Nine days later, on August 15, the Convention revisited the issue and amended the proposed Constitution as follows:

"Ten days (Sundays excepted)" instead of "seven" were allowed the President for returning with his objections, N. H. [New Hampshire] & Mass [Massachusetts] only voting agst it.

The "Sundays excepted" clause, in other words, appears to have been part of a larger effort to give the President additional time to veto Congressional legislation.

The records of the Convention shed no additional light on the "Sundays excepted" clause. No debate on the August 15 amendment is recorded. We do not know who proposed the ten day limit, or whether the same person who proposed the limit also proposed the "Sundays excepted" clause. We do not know why the delegates representing New Hampshire and Massachusetts objected to the amendment. Nor, for that matter, do we know who proposed the original seven day limit or why seven days was first chosen. All we know is that the "Sundays excepted" clause was passed along with language that gave the President three more working days to veto legislation. As we suggest below, the intent of the language was apparently to increase the power of the President in relation to Congress. Nothing suggests that Sunday was excepted forreligious or spiritual reasons. If delegates to the Convention had justified the clause on religious grounds their comments most likely would have ended up in the record; after all, such reasoning would have been unique to a Convention that otherwise took great pains to eliminate all evidence of religion from the Constitution.

Contrary to the argument of some accommodationists, the "Sundays excepted" clause is inexplicable as an attempt to recognize a Sabbath or establish a day of rest. Most states had Sunday laws at the time of the Constitution, and these laws were quite clear about (1) equating Sunday with the Sabbath, and (2) prohibiting non-essential activities on Sunday. The "Sundays excepted" clause does neither of these things. The text of the clause excepts "Sunday," not the "Sabbath;" it does not reference the Sabbath in any way or take any position on what day the Sabbath should be kept. Similarly, the "Sundays excepted" clause applies only to the President, and does nothing but exempt Sunday from the 10 days he has to veto legislation before they become law. It does not prohibit him from vetoing legislation or performing any otherduty of his office on Sunday. The clause is completely unlike the Sabbath laws in the states; it falls utterly short of establishing a Sabbath.

The framers were intimately familiar with state practices regarding Sundays; if they wanted to pay homage to the Sabbath they would have copied state Sunday law on the federal level, made provisions for shutting down portions of the federal government on Sundays, or explained the "Sundays excepted" clause in religious terms. The Convention did none of these things. Instead, the founders chose language that would distance the Constitution from both the practices of the states and the constitutions of those European countries with church/state unions. This approach would be expected if the founders wanted to ensure that the Constitution would not be read as an endorsement of any one religion or religion in particular.

The plain language of the phrase "Sundays excepted" lends itself to simple and plausible explanation for its inclusion in the Presidential veto power clause: it allowed the President to make full use of the ten days he had to veto Congressional legislation. Ten days, with Sundays excepted, gave the President two work weeks within which to sign or veto a Bill. If the ten day count began on Thursday or Friday, the President would have 12 days to veto legislation (with two Sundays excepted). If the count began on any other day, the President would have 11 days (with one Sunday excepted).

The advantage of having two weeks within which to exercise the veto power is evident. Above all, excepting Sundays allowed the President to exercise his veto power in spite of various Sunday laws that were in place in most of the states.

Many states, for example, prohibited traveling on Sundays, and Presidents were not immune to prosecutions for violation of such laws. In fact, the Columbian Centinel of December 1789 reported that just such a fate befell President George Washington when he decided to travel through Massachusetts on a Sunday.

If the President was outside of the Capitol when Congress handed over a Bill to the Executive office, then granting him ten days with Sundays excepted to exercise the veto power would have given him plenty of time to travel to the seat of government, communicate with proponents and opponents of a Bill, and veto orsign the Bill, as he chose.

This interpretation of Sundays excepted seems logical in comparison with the earlier draft of Article I, Section 7 which allowed for only 7 days within which the President could exercise the veto power. In this earlier draft, Sundays were not excepted, so it does not appear that the drafters were particularly concerned with the "Sabbath keepers." But allowing the President so little time to exercise the veto power could have created situations ripe for political maneuvering.

This veto power is a qualified power, established by the Constitution, and limited only by time, not by subsequent laws passed by Congress or decisions handed down by the high court. In addition, the veto power is, itself, a limiting power, acting as a check on the power and authority of Congress. With a 7 day veto power, Congress could have had the opportunity of handing down a Bill at a time when the President was out of the Capitol, and when communication and travel time would have been slowed or blocked by obstacles such as State prohibitions against traveling or conducting business on Sundays. With 10 full working days, Congress would not have had that same opportunity.

An alternative explanation of the "Sundays excepted" clause is that it served to ensure that a strict Sunday-keeping President would not be forced to veto legislation on the Christian Sabbath in violation of his or her religious beliefs. This argument seems reasonable at first glance, but a closer look suggests it is implausible, for at least two reasons:

First, the argument seems to violate the predominate accommodationist understanding of the Constitution. Most accommodationists argue that the framers intended to bar only preferential aid to religion, i.e., aid that singled out a single religion or religions for special treatment. But the "Sundays excepted" clause protects only Sunday keepers; it would not protect, for example, an Orthodox Jew, a Saturday-keeping Christian, or a Friday-keeping Muslim. Hence, non-preferentialists who want the "Sundays excepted" clause to count as a public endorsement of the Sabbath cannot make that argument without undercutting thehistorical probability of their own position.

Critically, we note that the framers were very much aware that the Constitution did not bar non-Christians from becoming President (see, eg., Isaac Kramnick and R. Laurence Moore, The Godless Constitution, ch. 2, for a review of relevant evidence). Hence, non-preferentialists can't get around this argument by arguing that the framers would have expanded the clause to include Saturdays or Fridays if they thought that it was possible that a Saturday or Friday keeper would be elected President:

As to a religious test, had the article which excludes it provided none but what had been in the states heretofore, I would not have objected to it. It would secure religion. Religious liberty ought to be provided for. I acquiesce with the gentleman, who spoke, on this point, my sentiments better than I could have done myself. For my part, in reviewing the qualifications necessary for a President, I did not suppose that the pope could occupy the President's chair. But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it. There is disqualification, I believe, in every state in the Union -- it ought to he so in this system (Mr. Lancaster, Delegate to the North Carolina Constitutional Convention, Wednesday, July 30, 1788, The Debates of the Several State Conventions, Jonathan Elliott, J B Lippincott Company 1888, page 215)

Second, there is no evidence that the framers has any particular concern for protecting Presidents from doing work on the Sabbath. The "Sundays excepted" clause applies only to vetoes. It does not protect the President from having to make Commander-in-Chief decisions, signing reprieves, pardons, or treaties, appointing ambassadors and other public officials, or convening Congress on a Sunday. Commander-in-Chief decisions, in particular, are likely to impinge on the Sabbath; it is paradoxical that the framers would overlook such an obvious problem area for strict Sunday-keepers while at the same time building in Sabbath protection for vetoing legislation.

In summary, the "Sundays excepted" clause provides little support for the argument that the Constitution embodies or legislates Christianity. The clause does not legislate or recognize a Sabbath and, in fact, seems to protect the President from the operation of Sunday laws in the several states. Finally, the accommodationists interpretation of the clause seems to work against the majority accommodationist position (non- preferentialism), and doesn't seem to account for why the clause applies only to the President's veto power.

© 1996

Essays on related topics...

Separation of Church and State
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Overview of Church and State Separation Debate Tom Peters
The Case Against School Vouchers Tom Peters
The Case Against Government Sponsored Prayer Tom Peters
The Basics of Separation of Church and State Tom Peters
What the Founders Believed About Separation of Church and State Tom Peters
Separation of Church and State: Responding to the Religious Right Tom Peters
Misquoting by the Religious Right on Church-State Separation Tom Peters
Religion and Politics, not Church and State Kenneth Cauthen
The Founders Didn't Want The USA To Be A Christian Republic Steve Kangas [off site]


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