The Constitutional Principle: Separation of Church and State
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Original Intent? Introduction

What intent, whose intent?

Researched, written and edited by Jim Allison


There are a number of points that need to be considered in regard to the issue of the original intentions of the framers of the Constitution and the Bill of Rights.

  1. No letter or any other document thus far found defines a single sentence of any one of the amendments that comprise the Bill of Rights. However, there are letters where the writer comments on the ambiguity of the language and or words chosen. This is something that those advocating "original intent" never mention.

  2. There were two basic reasons for amendments.

    1. There were some who had a genuine fear that future lawmakers might use some of the Constitutional language such as that found in the necessary and proper clause to get around the fact that Congress was not given any power regarding matters of religion.

    2. The primary reason, in the thinking of the Madison and many other Federalists was political. Since the anti- feds were using the lack of a Bill of Rights as a excuse to try and defeat ratification of the Constitution, or in failing to do that, to force a second constitutional convention, where they planned on wrecking havoc on the powers given the central government especially in areas such as commerce and taxation, as well as other areas; Madison decided to steal their thunder by promising to offer amendments in the First Federal Congress.

  3. Evidence that the anti-feds were only using the lack of a Bill of Rights for political reasons (trying to gain the opportunity at a second convention to gut the powers given the central government) is provided by the fact that, once in Congress, the anti-feds tried everything they could to block and defeat amendments.

  4. Based on comments in several of the letters, we know that the debates that actually took place lasted for several days, yet if we read what the surviving historical record contains, we can read it over in about 15 minutes. That fact points out that the vast majority of the various debates were never recorded.

  5. It must be kept in mind that there is no historical record of any of the debates of the Committee of Eleven [which Madison chaired] which took Madison's original proposed amendments and fashioned them into the actual proposed amendments presented to the full House of Representations for debate, approval or rejection.

  6. There is no historical record of the debates of the Joint House-Senate Committee (of which Madison was a member) which actually framed the religious clauses we have today.

  7. The debates the historical records do give us concerned proposed language that was REJECTED.

  8. The letters that follow are not all that exist. There are about 150 letters contained in Creating The Bill of Rights: The Documentary Record from the First Federal Congress) The editors state they provided only a cross section as well and that the letters they did not include said pretty much same things as those they did include.). The letters that follow do give a pretty fair cross section of the letters that have survived and are known to scholars.

  9. In the letters that follow, you will find comments supportive of the idea of amendments, indifferent to the idea of amendments, against the idea of amendments, even one or two ridiculing the idea of amendments or Madison for introducing them. You will find letters commenting on the fact that the anti-feds went from demanding amendments during ratification of the Constitution to trying to block amendments at every turn. What you will not find is any unified common intention or thought concerning amendments, and as mentioned previously, you will not find any letters defining any of the language of any of the amendments. You will find at least one letter commenting on how hard it is to get a group of people to agree on anything. [See James Madison to Edmund Pendleton, August 21, 1789,]

To save space I will note that, unless otherwise noted, all of the following letters can be found in:

Creating the Bill of Rights: The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, The John Hopkins University Press, Baltimore & London, (1991), pp 217- 300.

The primary source cite follows each letter or excerpt.

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15:41 MODERN CONSTITUTIONAL LAW

Neither the Supreme Court nor legal scholars should be very dogmatic in asserting the intent of the Framers on any aspect of constitutional law. For one reason, the ratifying conventions are reported in such meagerness as to throw very little light on the intentions of these persons who were primarily responsible for the adoption of the provisions. A long study into the intention of the persons responsible for the First Amendment should encourage caution and humility in asserting what they meant in anything other than the broadest perspectives.(13) Again, after monumental research into the intent of those responsible for the Fourteenth Amendment, as requested by the Supreme Court, the court could but observe: "Although these sources cast some light, it is not enough to resolve the problem with which we are faced.

At best, they are inconclusive . . . ."(14) So, indeed, will be most attempts to psychoanalyze "the Framers." The Constitution will always operate on many matters on which the Founding Fathers could have had no intent.

FOOTNOTES:

(13) Antieau, Downey and Roberts, Freedom from Federal Establishment, (Chicago, 1965).

(14) Brown v Board of Education United States (1925) 276 US 394, (1954) 347 US 483, 98 L Ed 873, 878, 74 S Ct 686, 38 AIR2d 1180, SUPP op 349 US 294, 99 L Ed 1083, 75 S Ct 753.

Source: Modern Constitutional Law, The States and the Federal Government, Volume II, by Chester J. Antieau, Lawyers Cooperative Publishing, Rochester, New York (1969) pp 716

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RELIGION

An Overview

Madison's original proposal for a bill of rights provision concerning religion read: ''The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.'' The language was altered in the House to read: ''Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.'' In the Senate, the section adopted read: ''Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .'' It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ''respecting '' phraseology. Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear, but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

Source: http://caselaw.findlaw.com/data/constitution/amendment01/01.html

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Congress itself was concerned with other subjects during the first part of its session. On May 4, Madison made an announcement (in the midst of a lengthy debate on import and tonnage duties) of his intention "to bring on the subject of amendments to the constitution" on May 25. Madison may have been stimulated to act when he did in order to counter the movement for a Second Convention, which was embodied in the application from the Virginia Legislature for such a Convention, which was introduced by Congressman Bland the very next day, as well as a similar application from New York on May 6. Madison was able to secure the filing of both applications (rather than reference to the Committee of the Whole). When Madison actually introduced his proposed amendments on June 8, that effectively ended any chance the applications for a Second Convention might otherwise have had.

Source: The Bill Of Rights: A Documentary History, Vol. II, Bernard Schwartz, Chelsea House Publishers, in association with McGraw Hill Book Company, N.Y. Toronto, London, Sydney (1971) pp 1006.

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Opposition came not so much from the Federalists, even though most of them saw no need for a Bill of Rights (and as a result was at best only lukewarm towards debating such), but rather from the more extreme anti- federalists, who wanted no palliative that would head of calling of a second convention. William Grayson of Virginia was convinced that the drive for amendments was a plot "to break the spirit of the anti-federalists party by divisions."

Source: The First Federal Congress 1789-1791, By Margaret C. S. Christman, Published by the Smithsonian Institution Press, (1889) pp 132.

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Please continue to Part II


 
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