The Constitutional Principle: Separation of Church and State
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Chief Justice Burger, I Would like You to Meet Mr. Madison

Before delivering his opinion in MARSH v. CHAMBERS, 463 U.S. 783 (1983), perhaps Chief Justice Burger should have been introduced to James Madison and his writings. The dialog below contrasts excerpts from Justice Burgers Opinion with excerpts from Madison's writings.

Researched and edited by Jim Allison


MARSH v. CHAMBERS, 463 U.S. 783 (1983)

CHIEF JUSTICE BURGER delivered the opinion of the Court.(1)

The question presented is whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment.

The Nebraska Legislature begins each of its sessions with a prayer offered by a chaplain who is chosen biennially by the Executive Board of the Legislative Council and paid out of public funds. Robert E. Palmer, a Presbyterian minister, has served as chaplain since 1965 at a salary of $319.75 per month for each month the legislature is in session.

Ernest Chambers is a member of the Nebraska Legislature and a taxpayer of Nebraska. Claiming that the Nebraska Legislature's chaplaincy practice violates the Establishment Clause of the First Amendment, he brought this action under 42 U.S.C. 1983, seeking to enjoin enforcement of the practice. After denying a motion to dismiss on the ground of legislative immunity, the District Court held that the Establishment Clause was not breached by the prayers, but was violated by paying the chaplain from public funds. It therefore enjoined the legislature from using public funds to pay the chaplain; it declined to enjoin the policy of beginning sessions with prayers.

The opening of sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country. From colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.(1)

JAMES MADISON(2) Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative.

CHIEF JUSTICE BURGER: Although prayers were not offered during the Constitutional Convention, the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer. Thus, on April 7, 1789, the Senate appointed a committee "to take under consideration the manner of electing Chaplains." On April 9, 1789, a similar committee was appointed by the House of Representatives. On April 25, 1789, the Senate elected its first chaplain, the House followed suit on May 1, 1789. A statute providing for the payment of these chaplains was enacted into law on September 22, 1789.

JAMES MADISON: I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principle with me; and it was not with my approbation, that the deviation from it took place in Cong. when they appointed Chaplains, to be paid from the Natl Treasury. It would have been a much better proof to their Constituents of their pious feeling if the members had contributed for the purpose, a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done, may be to apply to the Constitution the maxim of the law, de minimis non curat (3).

[HISTORICAL FACT]

{It should be noted that Mr. Madison was a member of said committee, making him a very qualified expert on the subject under discussion with Chief Justice Burger.}

APRIL 9, 1789--FIRST FEDERAL CONGRESS (Chaplains)

The Speaker laid before the House a letter from Oliver Ellsworth, Esquire, a member of the Senate, stating the appointment of a committee of that House to confer with a committee to be appointed on the part of this House, in preparing a system of rules to govern the two Houses in cases of conference, and to regulate the appointment of Chaplains, which was read. On motion, Ordered, That a committee of five be now appointed for the purposes expressed in the communication from the member of the Senate. The Members elected Mr. Boudinot, Mr. Sherman, Mr Tucker, Mr. Madison, and Mr. Bland. (Footnote: On April 15 this committee reported)(4)

CHIEF JUSTICE BURGER: Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.

[HISTORICAL FACT]

There had been a couple of times during the history of chaplains in Congress [in the Federal 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.

JAMES MADISON: The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation?

CHIEF JUSTICE BURGER: Standing alone, historical patterns cannot justify contemporary violations of constitutional guarantees, but there is far more here than simply historical patterns. In this context, historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress - their actions reveal their intent. An Act "passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, . . . is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)."

[HISTORICAL FACT]

Of the approx 66 members that made up the House of Representatives of the first session of the First Federal Congress, only 6 had attended any part of the Constitutional Convention in Philadelphia in 1787. Of the 22 members of the Senate, 8 had attended any part of the Constitutional Convention.

14 members out of approx 88 does not really qualify as *many.*

JAMES MADISON: As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political institutions, & as a source perhaps of some lights on the science of Government, the legitimate meaning of the instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be, not in the opinions of the body which planned and proposed the Constitution, but in the sense attached to it by the people in their respective state where it received all the authority which it possess.(5)

CHIEF JUSTICE BURGER: . It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a chaplain for each House and also voted to approve the draft of the First Amendment** for submission to the states, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable. In applying the First Amendment to the states through the Fourteenth Amendment, it would be incongruous to interpret that Clause as imposing more stringent First Amendment limits on the states than the draftsmen imposed on the Federal Government.

This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision of school transportation, beneficial grants for higher education, or tax exemptions for religious organizations.

[HISTORICAL FACT]

**The 1st amendment that the Congress that met from March to September 1789 passed concerned representation. The 3rd amendment that Congress passed is today's 1st amendment.

JAMES MADISON: The establishment of the chaplainship to Congress is a palpable violation of equal rights, as well as of Constitutional principles.

No State shall violate the equal rights of conscience, or the freedom of the press, or a trial by jury in criminal cases.(6)

CHIEF JUSTICE BURGER: We turn then to the question of whether any features of the Nebraska practice violate the Establishment Clause. Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination - Presbyterian - has been selected for 16 years.

JAMES MADISON: The tenets of the chaplains elected by the majority shut the door of worship against the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that his religious principles are obnoxious or that his sect is small, is to lift the evil at once and exhibit in its naked deformity the doctrine that religious truth is to be tested by numbers or that the major sects have a right to govern the minor.

CHIEF JUSTICE BURGER: Second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo-Christian tradition.

JAMES MADISON; If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that Public functionaries, as well as their Constituents should discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Cong wd suffice for the purpose! How just wd it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience! Why should the expense of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Gov.

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality!

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex: or to class it cum "maculis quas aut incuria fudit, aut humana parum cavit natura."

[HISTORICAL FACT]

"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 Matthew 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."(6) (CHURCH AND STATE IN THE UNITED STATES, Vol. I, page 456 by Anson Phelps Stokes)

JAMES MADISON; Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right principle, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro' the armies & navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion is not a nominal more than a real aid. If the spirit of armies be devout, the spirit out of the armies will never be Less so; and a failure of religious instruction &, exhortation from a voluntary source within or without, will rarely happen: if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous zeal. The armies of the Puritans had their appointed Chaplains; but without these there would have been no lack of public devotion in that devout age.

The case of navies with insulated crews may be less within the scope of these reflections. But it is not entirely so. The chance of a devout officer, might be of as much worth to religion, as the service of an ordinary chaplain. [were it admitted that religion has a real interest in the latter.] But we are always to keep in mind that it is safer to trust the consequences of a right principle, than reasonings in support of a bad one.

FOOTNOTES:

(1) Excerpts from MARSH v. CHAMBERS, 463 U.S. 783 (1983), Chief Justice Burger authoring the majority opinion.

(2) Excerpts from James Madison's Detached Memoranda, This document was discovered in 1946 among the papers of William Cabell Rives, a biographer of Madison. Scholars date these observations in Madison's hand sometime between 1817 and 1832. They offer glimpses of Madison's opinions on several topics and personalities. What is reproduced here is excerpts from that part of the "Memoranda" devoted to the subject of religious liberty. Specifically, in this case, the part pertaining to chaplains.The entire document was published by Elizabeth Fleet in the William and Mary Quarterly of October 1946. 3 W & M Quarterly 534, 558-560 (1946).

(3) Excerpt from Letter written to Edward Livingston by James Madison, July 10, 1822, Letters And Other Writings of James Madison In Four Volumes, Published by order of Congress Vol, III, J. B. Lippincott & Co. 1865, pp 273-275)

(4) Documentary History of the First Federal Congress of the United States of America, 4 March 1789-3 March 1791, Sponsored by The National Historical Publications and Records Commission and The George Washington University. Linda Grant De Pauw Charlene Bangs Bickford, LaVonne Siegel Hauptman, The John Hopkins University Press, Baltimore and London, ( ) Vol. III, House of Representatives Journal, p 17)

(5)Madison to Ritchie September 15, 1821, Reprinted in 9 Writings at 71, 72.

(6) Proposed amendment to the Constitution submitted to the House of Representatives by James Madison, June 8, 1789. This amendment was passed by at least a 2/3rds majority of the House of Representatives, but was defeated in the Senate.

For a further examination of Justice Rehnquist's historical disinformation, please see Gene Garman's article, "Justice William H. Rehnquist's Abuse of History".