RELIGIOUS ROOTS OF FREEDOM: THE RECORD CONTRADICTS THE BIAS

As the renewed debate over prayer in the public schools suggests, the cultural conflict of the modern era finds vivid and enduring focus in the legal dispute about the place of religion in the civic order. Here the battle is overt, relentless and pervasive - with traditional belief and custom retreating before a secularist onslaught in our courts and other public institutions.

During the past three decades, the U.S. Supreme Court has handed down a series of rulings that decree a "wall of separation" between affairs of state and the precepts of religion. In the most controverted of these cases, in 1962, the court said an officially sponsored prayer recited in the New York public schools was an abridgement of our freedoms. This prayer read, in its entirety: "Almighty God, we acknowledge our dependence on thee, and we beg thy blessing upon us, our parents, our teachers, and our country." In the court's opinion, this supplication triggered the First Amendment ban against an "establishment of religion," logic that was later extended to reading the Bible and reciting the Lord's Prayer in the classroom.

In adopting the First Amendment, according to the court, the Founders meant to sever all connection between religious faith and government, requiring that religion be a purely private matter. As Justice Hugo Black put it in an oft-quoted statement: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another ... No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

This doctrine has been affirmed and amplified in many rulings since. In support of it, Black and his successors (most recently Justice David Souter) have offered a reading of our history that supposedly shows the intentions of the people who devised the First Amendment. In a nutshell, this tells us that the Founders chiefly responsible for the Constitution's religion clauses were Madison and Jefferson; that they held views intensely hostile toward any governmental backing for religion; and that the amendment was a triumph for their separationist position.

Of Whole Cloth

The First Amendment depicted by Justice Black and other liberal jurists is, unfortunately, a fabrication. The Supreme Court's alleged history is a prime example of picking and choosing elements from the past to suit the ideological fashions of the present. if we consult the history of the nation's founding, we find that the court and its supporters have misstated the material facts about the issue in every possible fashion.

To begin with, state papers, legal arrangements, and political comments of the founding generation show that American culture in that period was suffused with religious doctrine. The point is made by the very concept of an "establishment of religion." This term had a definite meaning in England and the colonies that is critical to understanding the debate about the First Amendment. It signified an official church that occupied a privileged position with the state, was vested with certain powers denied to others, and was supported from the public treasury. Such was the Church of England in Great Britain, and such also were numerous churches in the colonies at the beginning of our revolution.

The States' Churches

In 1775, no fewer than nine colonies had such arrangements. Massachusetts, Connecticut and New Hampshire had systems of local church establishment in favor of the Congregationalists. In the South, from Maryland on down, the establishments were Episcopal. In New York, there was a system of locally support Protestant clergy. Because of growing religious diversity within the states, pressure mounted to disestablish these official churches. In particular, increasingly numerous Baptists and Presbyterians made headway against the Anglican position, which was further weakened by the identification of many Episcopal ministers with the English.

Even so, at the time of the Constitutional Convention, the three New England states still had their Congregational establishments. In other states, there remained a network of official sanctions for religious belief, principally the requirement that one profess a certain kind of Christian doctrine to hold public office or enjoy other legal privilege. With local variations, these generally tended in the same direction, and they make instructive reading alongside the statements of Justices Black and Souter about the supposed history of our institutions.

In South Carolina, for example, the Constitution of 1778 said that "the Christian Protestant religion shall be deemed ... the established religion of the state." It further said that no religious society could be considered a church unless it agreed "that there is one eternal God and a future state of rewards and punishment; that the Christian religion is the true religion; that the Holy Scriptures of the Old and New Testaments are of divine inspiration." South Carolina also asserted that "no person who denies the evidence of a Supreme Being shall hold any office under this Constitution."

Similar statements can be gleaned from other state enactments of the period. The Maryland Constitution of 1776 decreed, for instance, "a general and equal tax for the support of the Christian religion." New Jersey that year expressed its idea of toleration by saying that "no Protestant inhabitant of this colony shall be denied the enjoyment of any civil right." Massachusetts, in 1789, authorized a special levy to support "public Protestant teachers of piety, religion and morality" -- a formula adopted verbatim by New Hampshire.

Official support for religious faith and state religious requirements for public office persisted well after adoption of the First Amendment. The established church of Massachusetts was not abolished until 1833. In New Hampshire, the requirement that one had to be Protestant to serve in the legislature was continued until 1877. In New Jersey, Roman Catholics were not permitted to hold office until 1844. In Maryland, the stipulation that one had to be a Christian lasted until 1826. As late as 1835, one had to be a Protestant to take office in North Carolina; until 1868, the requirement was that one had to be a Christian; thereafter that one had to profess a belief in God.

Crumbling Wall

Such was the body of doctrine and official practice that surrounded the First Amendment -- immediately predating it, adopted while it was being discussed and voted on and enduring long after it was on the books. The resulting picture is very different from any notion of America as a country run by secularists and Deists. Nor does it look very much like a country in which the government powers were intent on crating a "wall of separation" between church and state, denying official support to the precepts of religion.

AGainst that backdrop, the meaning of the establishment clause should be crystal clear: "Congress shall make no law respecting an establishment of religion." The agency prohibited from acting is the national legislature; what it is prevented from doing is passing any law "respecting" an establishment of religion. In other words, Congress was forbidden to legislate at all concerning church establishment -- either for or against. It was prevented from setting up a national established church; equally to the point, it was prevented from interfering with the established churches in the states.

Though this history is blurred or ignored, it is no secret, and its general features are sometimes acknowledged by liberal spokesmen. it may be conceded, for example, that the First Amendment was intended to be a prohibition against the federal government. But that guarantee was supposedly broadened by the 14th Amendment, which "applied" the Bill of Rights against the states. Thus what was once prohibited only to the federal government is now also prohibited to the states.

Here we meet the Orwellian concept of "applying" a protection of the states as a weapon against them -- using the First Amendment to achieve the very thing it was intended to prevent. The legitimacy of this reversal has been convincingly challenged by constitutional scholars. But for present purposes, let us simply assume the First Amendment restrictions on Congress were "applied" against the states. What then? What did this prohibit?

One thing we know for sure is that it did not prohibit officially sponsored prayer. We we have seen, Congress itself engaged in officially sponsored, tax-supported prayer, complete with paid official chaplains, from the very outset -- and continues to do so to this day. Indeed, in one of the greatest ironies of this historical record, we see the practice closely linked with passage of the First Amendment -- supplying a refutation of the court's position that is as definitive as could be wished.

The language that had been debated off and on throughout the summer and then hammered out in conference finally passed the House of Representatives on Sept. 24, 1789. On the very next day, the self-same House of Representatives passed a resolution calling for a day of national prayer and thanksgiving.

Madison and Jefferson

Madison in his subsequent writings took doctrinaire position is on church-state separation, and liberals say these should be read into the First Amendment. This, however, gets the matter topsy-turvy. Clearly, if the Congress that passed the First Amendment, and the states that ratified it, didn't agree with Madison's more stringent private notions, as they surely didn't then these were not enacted. It is the common understanding of relevant parties, not the ideas of a single individual, especially those expressed in other settings, that defines the purpose of a law or constitutional proviso.

Furthermore, the court's obsession with the individual views of Madison is highly suspect. it contrasts strangely with judicial treatment of his disclaimers in the House debate, and of his opinions on other constitutional matters. Madison held strict-constructionists views on the extent of federal power, arguing that the Constitution reserved undelegated authority to the states. These views of Madison are dismissed entirely by the court. Thus we get a curious inversion: Madison becomes the court's authority on the First Amendment, even though the notions he later voiced about this subject were not endorsed by others involved in its adoption. On the other hand, he isn't cited on the residual powers of the states, even though his statements on this topic were fully endorsed by other supporters of the Constitution and relied on by the people who voted its approval. It is hard to find a thread of consistency in this -- beyond the obvious one of serving liberal ideology.

As peculiar as the court's selective use of Madison is its resort to Jefferson. The anomaly here is that Jefferson was not a member of the Constitutional Convention, or of the Congress that considered the Bill of Rights, or of the Virginia ratifying convention. But he had strongly separationist views (up to a point) and had worked with Madison for disestablishment and religious freedom in Virginia. For the court, this proves the First Amendment embodied Jefferson's statement in 1802, in a letter to the Baptists of Connecticut, about a "wall of separation."

Again we pass over the Lewis Carroll logic -- in this case deducing the intent of an amendment adopted in 1789 from a letter written 13 years later by a person who had no official role in its adoption. Rather than dwelling on this oddity, we shall simply go to the record and see what Jefferson actually said about the First Amendment and its religion clauses. In his second inaugural address, for example, he said:

"In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of the general government. I have therefore undertaken on no occasion to prescribe the religious exercises suited to it. But I have left them as the Constitution found them, under the direction or discipline of state or church authorities acknowledged by the several religious societies."

Jefferson made the same point a few years later to a Presbyterian clergyman, who inquired about his attitude toward Thanksgiving proclamations.

"I consider the government of the United States as interdicted from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results from the provision that no law shall be made respecting the establishment of religion or the free exercise thereof, but also from that which reserves to the United States. Certainly no power over religious discipline has been delegated to the general government. it must thus rest with the states as far as it can be in any human authority."

The irresistible conclusion is that there was no wall of separation between religious affirmation and civil government in the several states, not could the First Amendment, with or without the 18th Amendment, have been intended to create one. The wall of separation, instead, was between the federal government and the states and was meant to make sure the central authority didn't meddle with the customs of local jurisdictions.

As a matter of constitutional law, the court's position in these religion cases is an intellectual shambles - results-oriented jurisprudence at its most flagrant. An even greater scandal is the extent to which the Justices have rewritten the official record to support a preconceived conclusion: a performance worthy of regimes in which history is tailored to the interests of the ruling powers. In point of fact, America's constitutional settlement -- up to and including the First Amendment -- was the work of people who believed in God, and who expressed their faith as a matter of course in public prayer and other governmental practice.

M. Stanton Evans is the director of the National Journalism Center in Washington, D.C. He also has served as managing editor of Human Events, associate editor of National Review and editor of the Indianapolis News. He is the author of seven books. This article is adapted from his book, "The Theme Is Freedom: Religion, Politics, and the American Tradition" (Regnery 1994) and also was published in the Jan. 23 issue of National Review.