|The Constitutional Principle: Separation of Church and State|
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Though the religious right uses the concept of original intent to try to prove that the Founders did not intend separation of church and state, or at best only intended some type of minor "soft" separation, almost all of the Founders' actions are consistent with the notion of strict separationism. One of the few exceptions to this notion involves the origin and regulation of Chaplains in Congress. This article looks at some of the events that highlight the history of Chaplains in Congress.
The tradition to open the Continental Congress with prayers started before there was a Declaration of Independence, Constitution or Bill of Rights. In short, the practice was perfectly legal in the beginning of our government's history.
The two men who were most responsible for having the Continental Congress open with a prayer were Samuel Adams and Thomas Cushing. Both men were from Massachusetts, a state which produced a number of politicians who were eager to play a constant role in the battles of religious freedom. Sometimes this role was positive for religious freedom, and sometimes, these men from Massachusetts as well as other New England states specifically resisted separation of church and state. Massachusetts was the last state to officially end the establishment of religion by prohibiting it in its constitution and laws which did not occur until 1833. In the writings of John Adams we are told that it was actually Cushing who made one of the initial motions for prayer in the Continental Congress. That John Jay and John Rutledge were opposed to this motion because of the religious diversity that existed among the members of Congress. That they felt that there could be no one prayer that would satisfy all present.
Samuel Adams spoke up saying that he was no bigot and could hear the prayer of any man of piety and virtue and who was also a friend of his country. He then nominated Duche.
The following morning the Rev. Mr. Duche' did in fact deliver the morning prayer and as part of his work he read the 35th psalm, which made it somewhat a political/religious event. Considering the nature of the business at hand and the reason the men had assembled (the making of a revolution), his choice not surprising.
Thus the tradition was born. "On July 9, 1776, Duche' was elected Chaplain of Congress, but he served only a short time." (Church and State in the United States, Vol I page 450, by Anson Phelps Stokes). See The Political Move That Backfired
"After his resignation two Chaplains, one Episcopalian and one Presbyterian were chosen to succeed him." (Church And State in The United States Vol I page 450, by Anson Phelps Stokes )
During this same period of time the "tradition" of issuing proclamations for days of fasting, prayer and Thanksgiving was also begun. It is again important to note that the "proclamations" and Chaplains were begun before we were a nation, and that at least in the case of the proclamations it frequently served a political object far more than it did a religious purpose. (See The Political Move That Backfired) In the early days at least, a proclamation was almost always offered at times when it was felt that a unifying act was needed to hold together the people of the young nation and accomplish a political goal. The first of these proclamations was made on November 1, 1777 not only to give thanks, but also to aid the war effort. The Congress chose 18th of December 1777 for this proclamation, a date that used to be referred to as the home harvest time.
Later, papers in the handwriting of John Witherspoon set aside November 28, 1782 as a day of Thanksgiving - to support the successes of the American armies in the Revolution.
The religious right and other sources claim that prayer opened each day of the Constitutional Convention as well. These claims are false. In fact, the issue of prayer was only brought up once during the entire Convention. On June 28, 1787 Benjamin Franklin proposed that the day be started with prayer. There was a short debate concerning the matter, and the members voiced many apprehensions: the late date for starting such a practice, the image it might project, the fact that the most predominate sect in Pennsylvania was the Quakers, and their practices were "different" from other sects, it might give forth the image that the convention was in trouble, the convention had no funds to pay anyone to conduct such services, etc. The members of the convention did not vote on Franklin's proposal that day, the matter was dropped and never mentioned again. None of the sessions of the Convention were started with prayer. Therefore any references to prayers starting the day at the Constitutional Convention are false, and this includes any references to taking formal days off to attend church as a group, etc. Individual members may have attended church regularly or at various times during the convention, but it was not as part of any type of formal meetings.)
James Madison was a member of the committee of the First Congress which planned the Chaplaincy system in 1789, even though he claims that he opposed such a system at that time. (See Chief Justice Burger. I Would Like You to Meet Mr. Madison. ) In his recently published Detached Memoranda, (the manuscript was discovered in 1946 and published in 1950. See Excerpts from Madison's Detached Memoranda.) Madison definitely came out against the system. He asked whether the fact that the Chaplains were paid by "the nation" did not involve the principle of establishment forbidden by the Bill of Rights, and also whether, since some groups like Catholics and Quakers could scarcely be elected to the office, the provision of chaplains by a majority vote were not a palpable violation of civil rights and unfair to minorities." (Church and State in the United States Vol I page 456, by Anson Phelps Stokes) (Those same points are the same points that are important today, in regards to vouchers, some forms of prayer in schools, etc and religious displays on government property.)
The first congress under the Constitution picked up the tradition of opening with morning prayers (we all know how hard it is to stop something once Congress had begun it, look at the various forms of taxes that never end), and on April 7, 1789 Congress appointed the aforementioned committee to devise a method of electing and paying chaplains.
It was determined that two chaplains of different denominations would be selected and their pay would be 500.00 per annum.
The early Congressional Chaplaincies, although held generally by worthy men, did not seem to be uniformly successful. For instance, the Rev. Ashbel Green, a Congressional chaplain for eight years beginning in 1792 complained of the thin attendance of members of Congress at prayers. He attributed the usual absence of two-thirds to the prevalence of freethinking. Similarly, President Dwight of Yale, speaking in 1813, referred to the fact that the Congressional Chaplaincy was not always treated with respect. He said that a short time before Mathew Lyon, a free-lance Congressman from the west known for his radical views and pugnacious disposition, and Thomas Paine, the Deist, each received three votes for Chaplain of Congress (Church And State in The United States, Vol I page 456 by Anson Phelps Stokes).
There had been a couple of times during the history of chaplains in Congress when they were suspended, or local ministers filled in on a rotating basis because the election process for said chaplains was marred by the playing of politics.
Thus we have the basic history of Chaplains in Congress, and the Military as well for that matter. Does the fact that they exist "prove" that the founders never meant a complete separation of church and state? No, it does not.
Does the making of proclamations for days of fasting, prayer, and thanksgiving "prove" that separation was never meant? No, it does not.
Both began and were well established as "traditions" of the government before there was a Constitution or Bill of Rights. That they were continued after both documents did come into being, and did become the law of the land is an incongruency that should not exist yet does.
Just as we were a country with a Bill of Rights dedicated to individual rights, while women and non-propertied men frequently did not have the same rights as others, while we had slavery, while courts and laws of the land defended and protected slavery, There was an intent on the part of many of the Founders to eliminate slavery, but it was impossible at the time to do so. It would take another 70 to 80 years to do that, and the battle still goes on today to achieve full and total equal rights for all women and minorities in this nation.
Not all Presidents issued proclamations, Jefferson didn't, Jackson didn't, and Madison issued what he called suggestion type proclamations. It is questionable whether any such proclamations issued by any President was really "law" and was enforceable as such.
Total and complete separation of church and state did not take place immediately, it has been a process, just as full equal rights has been a process. Congress does not determine the constitutionality of laws, and on more than one occasion in our country's history has even passed laws that have later been found unconstitutional, just as Presidents have taken actions that would have failed the constitutional test.
Are Congressional Chaplains unconstitutional? Yes, probably so, especially as long as tax money is used to pay them. Will it ever be changed? Probably not, at least not anytime soon, the Supreme court has said it is now a tradition. Someone should remind them that slavery was also a tradition, one that was a few thousand years old, yet men had the courage to end it. It being a tradition is a cop-out. At the very least, these men should be paid by members of Congress out of their own pockets, after all, the Chaplains perform for their benefit. That would pretty much solve the Constitutional issues.
It must be remembered that at the time this grand experiment was undertaken the marriage of state and church had been in effect in every nation for roughly over 1400 years. The idea of separating the two, requiring each to make it on its own was a new idea, one that was fearful to many, one that many could not even imagine. To them it was alien. The results are, that for 60 or so years after the Constitution and Bill of Rights, people in power, meaning Presidents, Congressmen, judges, etc on occasion did things that were incongruent with the Constitution and Bill of Rights. What is really amazing is that such occurrences were, in truth, so rare. The trend, even during the early 19th century, when in many respects we did have a de facto unconstitutional established Protestant version of Christianity, was still more and more towards the total separation of church and state that was written into our Constitution and Bill of Rights. The process was begun in 1789, grew slowly at times during the early 19th century, picked up speed in the latter part of that century, and really began to speed along in this century till we are where we are today.
In a perfect world there would be no incongruencies, but we don't live in a perfect world. Men are human and sometimes do things that give mixed signals. The total picture, even with the few mixed signals there are, clearly indicates a complete separation of church and state was needed and intended to have true religious freedom.
As Madison summed it up a couple years before he died in a letter to Jasper Adams in September 1833:
"I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them will be best guarded against by an entire abstinence of the government from interference in any way whatsoever, beyond the necessity of preserving public order & protecting each sect against trespasses on its legal rights by others." (James Madison in a letter to Jasper Adams, September 1833)
No it isn't always easy to find that line of separation, but that line does exist. Chaplains in Congress, paid for by tax dollars, as well as proclamations of thanksgiving do sit on that line, and at times cross that line.