Topics: Government

Enumerated Powers

“The powers not delegated [i.e., enumerated] to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Tenth Amendment of the Constitution

Enumerated powers are the particular powers granted to Congress (those which are specifically listed) in the US Constitution. There are seventeen such enumerated powers.

Article I, Section 8 lists the first fifteen powers enumerated to, or permissible for the federal government. Articles II-VII add no additional powers but define how to apply the powers enumerated in Article I.

For example, Article II identifies the president as Commander-in-Chief over the military, but this is not a new power since the Preamble already authorized the federal government “to provide for the common defense.” Likewise, the president’s Article II authority to “make treaties” and “appoint ambassadors” is part of the Article I provision “to regulate commerce with foreign nations.”

The Thirteenth and the Fourteenth Amendments to the Constitution added two additional federal powers. (But the other twenty-five Amendments to the Constitution added no federal powers.) With these two additional federal powers, the total number of constitutionally-authorized federal jurisdictions, or enumerated powers, is seventeen.

The Enumerated Powers Listed in the Constitution

The enumerated powers permissible to the federal government are:

  1. To raise revenue to pay off debt, protect the nation, and fulfill the specific obligations established in the enumerated powers. (“To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States”)
  2. “Borrow money on the credit of the United States.”
  3. Protect the free-enterprise system and ensure free flow of commerce. (“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”)
  4. Establish immigration laws and processes. (“To establish an uniform rule of naturalization”)
  5. Establish the bankruptcy laws and processes. (“and uniform laws on the subject of bankruptcies throughout the United States”)
  6. Establish national currency, monitor its supply and value, and punish counterfeiters of that currency. (“To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures” and “provide for the punishment of counterfeiting the securities and current coin of the United States”)
  7. “Establish post offices and post roads.”
  8. Protect the private property (including the ideas, and the product of those ideas) of inventors, authors, and artists. (“To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”)
  9. If Congress so wishes, create and regulate federal courts. (“To constitute tribunals inferior to the Supreme Court”)
  10. To enforce international laws and prosecute offenses against it: “Define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”
  11. “Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
  12. To provide funding for and establish the size and operation of a national military. (“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces”)
  13. To call forth and train state militias for national needs. (“To provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress”)
  14. Oversee and manage all federal property, including Washington, DC, as well as bases, federal buildings, and so forth. (“To exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may by cession of particular States and the acceptance of Congress become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”)
  15. “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other owners vested by this Constitution in the government of the United States, or in any department or officer thereof.”
  16. To prevent slavery. (a power added by the Thirteenth Amendment)
  17. To prevent states from violating individual constitutional freedoms and inalienable rights secured to every individual in the federal Constitution. (a power added by the Fourteenth Amendment)

Some Founding Fathers on Enumerated Powers

“The powers delegated [that is, enumerated] by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former [i.e., federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.” James Madison1

“The state governments may be regarded as constituent and essential parts of the federal government; whilst the latter [i.e., the federal] is no wise essential to the operation or organization of the former [i.e., the states].” James Madison2

(Warning what would eventually occur if Congress used the General Welfare Clause of the Constitution to become involved in more than its specifically enumerated powers):

“If Congress can apply money indefinitely to the ‘general welfare,’ and are the sole and supreme judges of the ‘general welfare,’ they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, everything, from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the ‘general welfare’.” James Madison3

“I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people’ [quoting the Tenth Amendment]. To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” Thomas Jefferson4

“I am not a friend to a very energetic [activist] government. It is always oppressive.” Thomas Jefferson5

“What an augmentation [growth] of the field for jobbing, speculating, plundering, office-building, and office-hunting would be produced by an assumption of all the state powers into the hands of the [federal] government. The true theory of our Constitution is surely the wisest and best: that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the [federal] government be reduced to foreign concerns only.” Thomas Jefferson6

(The Founders did not list all the powers the state possessed, but rather listed the few that the federal government was allowed to perform; all other powers belonged to the states.)

“In forming a federal constitution, which ex vi termine, supposes state governments existing, and which is only to manage a few great national concerns, we often find it easier to enumerate particularly the powers to be delegated to the federal head than to enumerate particularly the individual rights to be reserved.” Richard Henry Lee7

“[The Tenth A]mendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution. Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred, is withheld, and belongs to the state authorities.” Supreme Court Justice Joseph Story8

“What is to become of constitutions of government if they are to rest not upon the plain [meaning] of their words but upon conjectural enlargements and restrictions to suit the temporary passions and interests of the day? Let us never forget that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now and forever. They are of no man’s private interpretation. They are ordained by the will of the people and can be changed only by the sovereign command of the people.” Supreme Court Justice Joseph Story9

Endnotes

1 James Madison, No. XLV, The Federalist on the New Constitution Written in the Year 1788 (Washington, DC: Jacob Gideon, 1818), 292.

2 Madison, No. XLV, The Federalist (1818), 290.

3 Madison, February 6, 1792, The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales and Seaton, 1849), 2nd Cong., 1st Sess., 388.

4 Thomas Jefferson, “Opinion against the constitutionality of a National Bank,” February 15, 1791, The Writings of Thomas Jefferson, ed. H. A. Washington (Washington, DC: Taylor & Maury, 1854), VII:556.

5 Jefferson to Madison, December 20, 1787, Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson, ed. Thomas Jefferson Randolph (Charlottesville: F. Carr & Co., 1829), II:276.

6 Jefferson to Gideon Granger, August 13, 1800, Memoir, Correspondence, and Miscellanies, ed. Randolph (1829) III:437.

7 [Richard Henry Lee], “Letter XVI,” January 20, 1788, An Additional Number of Letters from the Federal Farmer to the Republican (1788), 143.

8 Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), III:752.

9 Story, Commentaries on the Constitution (1833), III:754.

Ten Facts About George Washington

From the $1 Bill to the capital of America, George Washington’s name appears more often than probably any other name in American history. Being the most prominent Founding Father, everyone learns how Washington led the Continental Army against the British during the War for Independence and eventually became the first President of the United States. But there are plenty of stories and facts that are rarely taught in schools today. Watch the video and then read below about ten facts you probably do not know about George Washington.

1. George Washington did not chop down a cherry tree.

“I cannot tell a lie,” a young George Washington is reported to have said—but his biographers sure can! The famous story originates from the 5th edition of the popular biography The Life of Washington the Great by Mason Weems.1 Published in 1806, seven years after Washington’s death, there are no primary sources attesting to its truthfulness. All things considered, its late appearance and the complete lack of evidence has led most to consider it apocryphal.

2. He was most embarrassed about his lack of education and his bad teeth.

The most persistent enemy to Washington were not his political or military opponents, but his teeth. By the time he was sworn in as the first President of the United States he only had a single original tooth left.2 Over the course of his life he had a number of dentures made from a wide variety of materials.3 The dentures of the time were large, bulky, and burdensome which worked together to make Washington quite self-conscience about them leading him to be more introverted than perhaps he might have been.4

On top of this, George Washington did not have the same high level of education his older brothers received due to the death of their father when he was only eleven years old. This tragedy led Washington to become a surveyor (which incidentally provided the exact education he needed to accomplish the amazing things God had planned for him). When standing next to the genius level intellects of Jefferson, Adams, and others it was easy for Washington to feel at an embarrassing disadvantage to his more educated peers.5 That said, Washington was still incredibly intelligent on account of his extensive reading throughout his life in order to make up for his perceived lack of formal education.

3. He was nominated to be commander of the colonial army by John Adams.

“I do not think myself equal to the Command I am honored with.”6 It was with these words that the ever-humble George Washington accepted the unanimous appointment to command the soon-to-be-created Continental Army. The official vote happened on June 15, 1775, with John Adams credited as being the one who recommended and nominated Washington to the position.7 On the occasion, Adams wrote to his wife explaining how Congress elected the, “modest and virtuous, the amiable, generous and brave George Washington,” and solemnly proclaimed that, “the Liberties of America, depend upon him.”8

4. George Washington was described as being taller than the average man.

In an era when the average man stood at 5’7″, noted early biographer Jared Sparks clocked Washington in at an impressive 6’3″ tall.9 John Adams, later in life, wrote to fellow signer of the Declaration of Independence, Dr. Benjamin Rush, that Washington had, “a tall stature, like the Hebrew sovereign chosen because he was taller by the head than the other Jews.”10

A military observer repeatedly called attention to the vast stature of Washington, explaining, “it is not difficult to distinguish him from all others; his personal appearance is truly noble and majestic; being tall and well proportioned.”11 He continues to write that Washington, “is remarkably tall, full six feet, erect and well proportioned…This is the illustrious chief, whom a kind Providence has decreed as the instrument to conduct our country to peace and to Independence.”12 George Washington was a tall man with an even bigger purpose.

5. He encouraged his troops to go to church.

As General, Washington would issue orders throughout the army instructing them on daily operations. On June 23, 1777, he issued the following order:

“All chaplains are to perform divine service tomorrow, and on every other succeeding Sunday, with their respective brigades and regiments, when their situations will admit of it, and the commanding officers of the corps are to see that they attend. The Commander-in-Chief expects an exact compliance with this order, and that it be observed in future as an invariable rule of practice, and every neglect will not only be considered a breach of orders, but a disregard to decency, virtue, and religion.”13

Being a man of great piety and sincere religion himself, it is no surprise that Washington placed such an extraordinary emphasis on his soldiers’ corporate worship. In fact, when Washington believed the chaplains were not making regular church services a proper priority, he required all the chaplains to come to a meeting to address the issue and then report back to him.14

Washington’s devotion to Christ was so apparent in the camp that the Rev. Henry Muhlenberg, father of Major General John Peter Gabriel Muhlenberg, remarked:

“His Excellency General Washington rode around among his army yesterday and admonished each and every one to fear God, to put away the wickedness that has set in and become so general, and to practice the Christian virtues. From all appearances this gentleman does not belong to the so-called world of society, for he respects God’s Word, believes in the atonement through Christ, and bears himself in humility and gentleness. Therefore the Lord God has also singularly, yea, marvelously, preserved him form harm in the midst of countless perils, ambuscades [ambushes], fatigues, etc. and has hitherto graciously held him in His hand as a [chosen] vessel. II Chronicles 15:1-3.”15

6. He forbade his officers to swear.

Along the same lines as the previous fact, Washington focused on making the American military not only righteous but also respectable. To this end, on July 4, 1775, he issued the following order:

“The General most earnestly requires, and expects, a due observance of those articles of war, established for the government of the army, which forbid profane cursing, swearing and drunkenness. And in like manner requires and expects, of all officers, and soldiers, not engaged on actual duty, a punctual attendance on Divine Service, to implore the blessings of Heaven upon the means used for our safety and defense.”16

7. He was the only President elected unanimously.

After the ratification of the Constitution, the first order of business was to fill the newly created positions of government. The most important question was, “who will be our President?” For the Americans of 1789, that was apparently an easy answer. “George Washington of course!” With that resolution, Washington, “by no effort of his own, in a manner against his wishes, by the unanimous vote of a grateful country.”17 In the history of the United States, there has been only one other unanimous vote for President — Washington again for his second term.18

8. George Washington added “So help me God” to the Presidential Oath of Office.

Article II, Section 1, of the Constitution states that when the President is sworn into office, he is to say the following oath:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

With his hand laid upon the open Bible, Washington repeated the oath. He then sealed the oath by with a solemn, “so help me God,” and reverently bowed down and kissed the Bible.19 One eyewitness to the event recalled that, “it seemed, from the number of witnesses, to be a solemn appeal to Heaven and earth at once.”20

9. He was elected to be a vestryman at local churches.

In early American Episcopalian churches, vestrymen were, “a select number of principal persons of every parish, who choose parish officers and take care of its concerns.”21 This included making sure the poor, widows, and orphans were taken care of, and even extended to major decisions about the church as a whole.

George Washington was elected (perhaps his first election) to be a vestryman in two different parishes. In March of 1765, he was chosen in Fairfax Parish with 274 votes, and then four months later he was again chosen in Truro Parish with 259 votes.22 Washington was extremely active as a vestryman.23

On one occasion, Washington even went toe-to-toe with George Mason (fellow future delegate to the Constitution Convention) about relocating the church to a new site. After an impassioned speech by Mason which seemingly settled the question, Washington unassumingly rose and used a surveying map to show where the new site would be and how it would be better for each parishioner. This sudden recourse to sound reason and just sensibilities restored the council to their senses and they voted with Washington to move the church to the new site.24

10. George Washington was killed by his doctors.

This characterization might be a little uncharitable—the doctors were doing the best they could with the knowledge they had—but it doesn’t mean it’s not true. The old General fell sick after riding out on Mount Vernon during the cold rain. Soon, he was struggling to breathe. The following is taken from the journal of George Washington’s lifelong friend and physician, James Craik:

“The disease commenced with a violent ague, accompanied with some pain in the upper and fore part of throat, a sense of stricture in the same part, a cough, and a difficult rather than paint deglutition, which were soon succeeded by fever and a quick and laborious respiration. The necessity of blood-letting suggesting itself to the General, he procured a bleeder in the neighborhood, who took from his arm, in the night, twelve or fourteen ounces of blood.”25

Medical science at the time thought that a number of sicknesses were caused because of some issue with the person’s blood itself. To fix the disease, therefore, a common “solution” would be to bleed a patient out in order to get rid of the bad blood.

Once more doctors had been called to the scene, Craik continues:

“In the interim were employed two copious bleedings; a blister was applied to the part affected, two moderate doses of calomel were given, and an injection was administered, which operated on the lower intestines—but all without any perceptible advantage; the respiration becoming still more difficult and distressing.”26

Even more blood was taken, and now the doctors applied hot irons to his throat because they thought that an accumulation of blood in Washington’s throat was what caused the difficulty breathing. Calomel is a kind of mercury chloride, which, we now know to be quite toxic! This, along with the bleedings and the injections were a long way off from helping Washington recover. But the doctors weren’t done yet:

“Upon the arrival of the first of the consulting physicians, it was agreed… To try the result of another bleeding, when about thirty-two ounces of blood were drawn, without the smallest apparent alleviation of the disease… ten grains of calomel were given, succeeded by repeated doses of emetic tartar, amounting, in all, to five or six grains, with no other effect than a copious discharge of the bowels. The powers of life seemed now manifestly yielding to the force of the disorder. Blisters were applied to the extremities.”27

More blood-letting, more toxic calomel, more blisters. The biggest variation in this round of treatments is that they gave Washington another poisonous substance—emetic tartar. Altogether, it served only to give the dying President diarrhea.

Finally, Dr. Craik relates the end to his friend’s suffering:

“Speaking, which was painful from the beginning, now became almost impracticable; respiration grew more and more contracted and imperfect, till… when retaining the full possession of his intellect, he expired without a struggle.”28

A contemporary doctor estimated the total amount of blood drawn to be, “the enormous quantity of eighty-two ounces, or above two quarts and a half of blood in about thirteen hours.”29 The same doctor goes on to accurately explain that:

“Very few of the most robust young men in the world could survive such a loss of blood; but the body of an aged person must be so exhausted, and all his power so weakened by it as to make his death speedy and inevitable.”30

The average amount of blood in someone of Washington’s size and stature is around 210 ounces. If, as the doctor estimates, somewhere around 82 ounces were taken, then Washington lost nearly 40% of his blood. This amount is nearly tantamount to exsanguination (death by bleeding out), and when combined with the blisters, calomel, emetic tartars, and the various vapors, it appears to be the unfortunate conclusion that the doctors killed George Washington.31

Endnotes

1. Mason Locke Weems, The Life of Washington the Great (Augusta: George P. Randolph, 1806), 8-9.
2. “Washington Tooth Troubles,” Mount Vernon (accessed March 29, 2019).
3. “False Teeth,” Mount Vernon (accessed September 18, 2023).
4. “Washington Tooth Troubles,” Mount Vernon (accessed March 29, 2019).
5. “Education” Mount Vernon (accessed March 29, 2019).
6. June 16, 1775, Journal of the Proceedings of the Congress, Held at Philadelphia, May 10, 1775. 
7. John Adams autobiography, part 1, through 1776, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society.
8. John Adams to Abigail Adams, June 17, 1775, Adams Family Papers: An Electronic Archive, Massachusetts Historical Society.
9. Jared Sparks, The Life of George Washington (Boston: Ferdinand Andrews, 1839), 102n.
10. John Adams to Benjamin Rush, November 11, 1807, Founders Online (accessed March 29, 2019).
11. James Thacher, A Military Journal During the American Revolutionary War (Boston: Richardson and Lord, 1823), 37.
12. Thacher, Military Journal, 182-183.
13. George Washington, General Order, June 28, 1777, Records of the Revolutionary War (New York: Pudney & Russell, 1858), 330.
14. Washington, General Order, October 6, 1777, Records of the Revolutionary War, 345.
15. Henry M. Muhlenberg, The Journals of Henry Melchoir Muhlenberg (Philadelphia: The Muhlenberg Press, 1958), III:149, journal entry for May 7, 1778.
16. George Washington, General Orders, July 4, 1775, Library of Congress (accessed September 18, 2023).
17. Washington Irving, Life of George Washington (New York: G. P. Putman & Company, 1857), IV:516.
18. Annals of Congress (1873), 2nd Congress, 2nd Session,  874-875, February 13, 1793; Jared Sparks, The Life of George Washington (Boston: Ferdinand Andrews, 1839), 445.
19. Irving, Washington, IV:475.
20. “Philadelphia, May 8. Extract of a Letter from New York, May 3,” Gazette of the United States (May 9 to May 13, 1789).
21. Noah Webster, “Vestry-man,” American Dictionary of the English Language (1828).
22. Jared Sparks, The Life of George Washington (Boston: Ferdinand Andrews, 1839), 520.
23. “Churchwarden and Vestryman,” Mount Vernon (accessed April 1, 2019).
24. Sparks, Washington, 106.
25. James Craik, “From The Times, A Newspaper printed in Alexandria (Virginia), dated December, 1799,” The Medical Repository (New York: T. & J. Swords, 1805), III:311.
26. Craik, “From The Times” Medical Repository, III:311-312.
27. Craik, “From The Times” Medical Repository, III:312.
28. Craik, “From The Times” Medical Repository, III:312.
29. John Brickell, “Medical Treatment of General Washington,” Transactions of the College of Physicians of Philadelphia (Philadelphia: Printed for the College, 1903), 25:93.
30. Brickell, “Medical Treatment” College of Physicians of Philadelphia, 25:93.
31. For a more technical examination of the medical circumstances surrounding Washington’s death see, Dr. Wallenborn’s, “George Washington’s Terminal Illness: A Modern Medical Analysis of the Last Illness and Death of George Washington,” The Washington Papers (November 5, 1997).

 

* Originally posted: May 9, 2019

 

George Washington 1785 Letter

Below is an original letter in WallBuilders’ collection, from George Washington, dated February 1, 1785. This letter was written during a short period of retirement for Washington, following the War for Independence and before the Constitutional Convention. After resigning his military commission, he settled back in Mount Vernon following an almost continuance absence of eight years.

 

Mount Vernon 1st Feb. 1785

Gentleman,

You may think me very troublesome – and the reason I assign for being so (that I am of the opinion you can serve me better than any other) no good apology for the liberty I take.

My Miller (William Roberts) in now become such an intolerable serv, and when drunk so great a madman, that he never unwilling I am to part with an old servant (for he has been with me 15 years) I cannot with propriety on common justice to myself bear with him any longer.

I pray you once more, therefore, to engage & forward to me, a miller as seen as you may have it in your power; and whatever engagement you shall enter into on my behalf I will religiously fulfil. I do not stipulate for the wages at altho’ my Mill (being on an indifferent stream & not constant at work) can illy [sic] afford high wages.

My wishes to procure a servant who understands the manufacturing business perfectly – and who is sober and honest, that I may even at the expense of paying for it, have as little trouble as possible with him. If he understood the business of a Mill _____ and was obliged by his attitude to keep the Mill works in repair, so much the better. Whatever agreement you may enter into on my behalf, I pray you to have it reduced to writing, & specially declared, that there may be no misexception [sic] or disputes thereafter.

The House in which such Muller will live, is a very comfortable one, within 30 yards of the Mill (which works two pairs of stones one pair of them french Burns) – it has a small Kitchen convenient thereto and a good garden properly paled it. There is a Coopers shop within 50 yards of the Mill, with three Negro Coopers which will also be under the direction of the Miller. Whose allowance of meat, flour, & privileges of every kind, I would have ascertained, to prevent after claims. I do not object to the Mans having a family (a wife I could wish him to have) but if it was a small one, it would be preferable.

At any rate be so good as to let me hear from you, that I may know on what to depend, as it is no longer safe for me to entrust my business to the care of Willi’m Roberts. It only remains now for me to ask your sanguineness for this trouble & to assure you of the esteem with which I am

Gentm

Your friend & very Humble

G. Washington

Mess. Lewis’s

 

* Originally Published: July 23, 2018

Sermon – House of Representatives – 1864

Byron Sunderland was born in Shoreham on November 22, 1819. He served 45 years as Pastor of the First Presbyterian Church in Washington D.C. Sunderland spoke privately about Christian philosophy with Lincoln. He served as Chaplain of the U.S. Senate, and presided over the wedding of President Grover Cleveland at the White House. Notably, he preached in favor of abolition, at a time, and in a place, where it was dangerous to do so.

SERMON
ON THEPUBLIC WORSHIP OF GOD,
DELIVERED IN THEHALL OF THE HOUSE OF REPRESENTATIVES,
SUNDAY, JANUARY 31ST, 1864AND REPEATED, BY REQUEST, IN UNION HALL, NO. 481 NINTH STREET,
MONDAY, FEBRUARY 8TH, 1864,BY: REV. B. SUNDERLAND, D.D.
Pastor of First Presbyterian Church, and Chaplain U.S. Senate for Thirty-Eighth Congress.

PUBLISHED BY REQUEST.

WASHINGTON, D.C.
CHRONICLE PRINT.
1864.

Washington,  D.C. Feb. 4, 1864.
REV’D BYRON SUNDERLAND, D.D.,
Chaplain U. S. Senate:
DEAR SIR:  Realizing the great value of the truths enunciated in the sermon delivered by you in the House of Representatives of the United States last Sabbath morning, “on the duty of maintaining the public worship of God,” knowing its most gratifying reception by the immense audience convened on that occasion, and feeling that others will be profited by hearing it, we invite you to repeat it at Hall No. 481 Ninth street, at a time agreeable to yourself, and also that you furnish a copy for publication.
With sentiments of high regard, we remain
Yours, very truly,
HENRY A. BREWSTER, New York.                                               WILLIAM BEBB, Ohio.
JUDSON S. BROWN, Massachusetts.                                             HANNIBAL HAMLIN, Maine.
LEONARD S. FARWELL, Wisconsin                                              SCHUYLER COLFAX, Indiana.
THADEUS STEVENS, Pennsylvania.                                             SOLOMON FOOT, Vermont.
AUGUSTIN CHESTER, Illinois                                                        D. CLARKE, New Hampshire.
JAMES M. EDMUNDS, Michigan.                                                  J. A. BROWN, Rhode Island.
B. B. FRENCH, Washington, D. C.                                                  W. C. DODGE, Minnesota.
A. F. WILLIAMS, Connecticut.                                                        J. CONNESS, California.
A. M. SCOTT, Iowa.                                                                           A. CARTER WILDER, Kansas.
N. B. SMITHERS, Delaware.                                                            R. G. GREENE, Virginia.
J. D. MERRILL, Missouri.                                                 HANISON REED, Florida.
J. W. NESMITH, Oregon.                                                                   J. D. DOTY, Utah.
J. F. SHARETTS, Maryland.                                                             J. CLAY SMITH, Kentucky.

WASHINGTON, D. C., Feb. 5, 1864.

TO MESSRS. BREWSTER, BEBB, BROWN, HAMLIN, FARWELL, and others:

GENTLEMEN:  Your note of the 4th inst. Is received, inviting me to repeat the discourse “on the duty of maintaining the public worship of God,” delivered in the House of Representatives January 31, 1864.  I cheerfully comply with the request, and designate Monday evening, the 8th inst., as the time.It is with thanksgiving to God that I find such sentiments endorsed by you, as the representatives of the great Christian community throughout the United States.  With trembling I think of the stern and fearful time in which we live, and of the stupendous contest for the supremacy of the law and of the perpetuity of the Union in which the nation is engaged.

I feel sure we all desire the triumph of our Government over the rebellion, because we believe it will be a victory for righteousness in the earth.

We must have Jehovah for our Captain by conforming to his requirements, and especially maintaining the public ordinances of his worship.
With sincere regards,
B. SUNDERLAND.
SERMON.
ISAIAH 66:23
“And it shall come to pass that from one new moon to another, and from one Sabbath to another, shall all flesh come to worship before me, says the Lord.”
This is a marvelous prediction.  What a day for the world, when the worship of God from month to month, and from week to week, shall be universal!

The worship of God implies the highest acts of which a rational creature is capable.  It demands all the powers of body and soul.  To conceive and feel all that it implies, and to give suitable outward expression to its thoughts and emotions, by the posture of the body, by the voice, by the various faculties of manifestation, presupposes a character of the noblest culture.

The worship of God may be solitary, as of the individual alone – domestic, as in the family – social, as in the small companies of friends – or public, as in the great and open congregation.

In any case however, to be real it must be spiritual, whatever may be the outward act by which it is expressed – “God is a spirit, and they that worship him must worship him in spirit and in truth.”

And what does this mean but that homage which is due to God as the Father of spirits, and the Supreme King?  In acts of worship, we render to God an acknowledgment of his right to rule over us – of the supreme authority of his law, and the righteousness of his kingdom and dominion, in opposition to all other pretended authority whatsoever.  For such an act, the whole being of the man is requisite – body, soul, mind, reason, sense, memory, hope, imagination, and the loftiest thoughts of human faith.  And as to spirituality, what is it but the life of justice and truth and virtue?  Can anything be more spiritual than these?  If I pay my honest debt, I hold the essence of that deed is as purely spiritual as the act of the loftiest adoration – both are proper upon occasion, and both befit the highest development of our nature.

Each form of worship of God has its appropriate characteristics, and requires in its observance the outward expression suited to its nature.  As I intend, in this discourse to speak chiefly of public worship, I will remark, in passing, that the general usage of the evangelical world has assigned three grand parts to the service of God in the great congregation: prayer – reading and expounding the Holy Scriptures – and praise in singing, with instruments of music; the first two generally conducted by the minister – the last by a choir, or the whole assembly.  Each of these parts is held to be of paramount importance, both from their intrinsic fitness and from the long experience of the affections of human nature.  Wherever an assembly meets for the public worship of God on the Sabbath, ample provision should be made, if practicable, for the full performance of each of these parts, so that nothing may be wanting to the great object.

In a congregation like this, meeting in a place like this, we have all the material or physical requisites, if properly employed, to make the public worship of God what it ought to be, so far as it depends upon such conditions.  If there is a failure, in any degree or in any sense, to make the service all it should be, we must attribute it to ourselves.  The Hall itself is sufficient – the attendants here are diligent, courteous and faithful – ministers are provided – the Sabbath day comes round – the word of God lies open before us – the people assemble – and the service begins.  That there may be given to public worship its greatest impressiveness, I take leave to mention that some general order should be observed, by all in the congregation, through the different parts of the service.  For example, in the reading of the Scriptures and preaching, let all sit with fixed attention upon what is uttered by the minister – not listless, or perhaps asleep – not distracted by idle curiosities – not whispering, or moving about or leaving the assembly, unless by imperative necessity.  Custom has stamped all these things as exceedingly vulgar and low-bred, besides being irreverent and insulting to God.

In time of singing, let all stand up, and devoutly join in the hymn of praise by the voice, or in silent meditation.  In time of prayer, let all kneel or bow the head forward, attesting by their attitude their sense of the solemnity of the act – and let there be no unnecessary noise or confusion, as is often the case in the time of daily prayer in these chambers – talking, rattling of papers, sitting in the seat, perhaps reading or writing, and in many ways showing that indifference to the act of prayer to God, which is positively shameful.  And while on this point, I wish every member of Congress were here today, that I might ask it of these kind gentlemen, such of them as have fallen into this habit – for I rejoice to say that many should be exempted – nay, I would not insinuate that to be a member of Congress is to be prima facie an unchristian man – every man innocent till proved guilty, is the maxim of law to which they, with us, are entitled; and indeed I know some among them to be as noble Christian gentlemen as are to be found in the land – and far, far be it from me to inveigh against men whose lives illustrate the clear virtues and sublime sympathies of our divine religion; who rejoice when it flourishes, and lament when it declines, and who would go to every length of rational sacrifice to promote its extension in the earth – no, not such do I intend – but such rather as profess no such adherence to its cause, and certainly exhibit none to be spoken of – but that I might ask it of them to reform in this particular.

I allude to this subject, not in a spirit of bitterness or personal complaint at all; for I have this to say, that in all my personal intercourse with members of Congress, and with the officers and employees of the Capitol, I have never received anything but kindness and respect, and I should be sorry to have aggrieved any of them, by alluding to these things now – but I do feel a solicitude for the honor of God, and that men should pay that homage to Him which is due to the Father of us all.  It is true that many times members are absent from the daily prayers = for which I have heard various reasons alleged – some detained by necessary business – some by providential dispensations – some from want of inclination toward this duty – and some from a positive dislike of the sentiments these gentlemen from this public Sabbath service, many, it is true, worshipping in the churches of the city, but the majority, I fear elsewhere, leaving the assembly here to be largely made up, from week to week, of strangers from all parts of the land, and of the great sojourning public who have no other stated place of worship.

It naturally follows from these very circumstances, that there is no certain reliance to be placed upon any one or any number of persons, for that most important and yet most difficult part of public worship, the praise of God in the singing of sacred hymns.  All that can be expected is the voluntary service of those who may be disposed to aid in the singing for the time being, upon a mere voluntary impulse.  Congress manifesting so great an indifference to the whole matter, not only by the absence of the greater portion of the members, but also by the decided opposition of the majority to making any provision for such services, it must continue to be a matter of regret that the ordinary resort in such cases to voluntary contributions is not practicable, and consequently if divine service is held here on the Sabbath, it must be subject to the inconvenience, the deficiency and the depression, which I have here pointed out.

It is true, a man may say, what right have you to lecture me on this or any other subject?  I reply, by the right of free speech, which God has given me – and when I have given my lecture, in respectful terms, there my responsibility ends, and his begins.  If Congress may not choose to receive what they regard as a chaplain’s lecture, that is their business, not mine.  This rule applies universally.  If you read a lecture to me, I cannot deny you the right – but my own judgment must decide whether it is of any value, and whether or not I will heed it; and I act in this, under a responsibility for which I am accountable, and one day must account to the Judge of all.  So I am the more earnest to develop the whole matter before us, as far as it lies in my power.

Now I undertake to say that there is an erroneous and most vicious public sentiment abroad, not only here among the public functionaries of the Government, but everywhere throughout the country, upon the whole question of the public worship of God.  Does it ever occur to men, that God has required these public ordinances of religion to be observed unto Him, and has foretold the advent of a day when all flesh shall come and worship before Him?  Does it ever occur to men to feel that one is just as much bound by these requirements as another?  Does it ever occur to them to think, that one man, as a member of the religious community, has just as much to think, that one man, as a member of the religious community, has just as much interest at stake in the maintenance of these ordinances of Heaven as another?  And yet this is really so.

I have truly no more interest in the matter than you have; and you have truly no more interest in the matter than that officer of the Government, high or low, who appropriates the Sabbath day of God to pleasure excursions, and forsakes the public worship of the Almighty, that he may pay court to some foreign minister, or find means for his own private and personal recreation.  I say I have no more interest in the matter than we all have in common – for if these ordinances of God are wantonly ignored and willfully neglected – if the great light that shines in them shall finally be extinguished, and the darkness and degradation of vice, precursor of destruction, shall succeed to it – and if finally, the whole structure of society, undermined and s=disintegrated, shall tumble into ruin, I shall have no more to lose than my neighbor, in the common catastrophe!  What I lose, he will lose – we shall all be alike despoiled.

Now the whole community may be divided in respect to this matter of public worship, into three classes: 1st, those who attend upon it with some just sense of its true nature and importance; 2d, those who go to the sacred assembly from grossly inadequate, if not wholly improper motives; 3d, those who stay away altogether.  Of the first class I have nothing to say, but that it is comparatively small – alas!  To small, I fear, for the leavening of the whole lump.  Of the second class I have this to say, that I wonder at them.  I am thankful to my Maker that whatever may have been, or may now be my faults, I never had the disposition or desire to attend public worship for the simple sake of seeing or being seen – of making a display – of ogling the assembly – and in short for any and every purpose, but the single one which is alone pertinent and proper, the devout and reverent waiting upon the Majesty of earth and heaven.  I never had any sympathy with that spirit which can sport and trifle in the place and time of prayer, – I never could comprehend that levity which mocks at the most sacred things, and turns the very sanctuary of Jehovah into a theatre of laughter and of jeers.  Of the third class I testify, in the name of religion, that they are moral delinquents by habit and inclination, and in their example before the nation and the world, they support the grand foundation principle of a practical atheism, and to this extent they are corrupters of society and the enemies of mankind.  I take my stand on the decrees of God’s word, and boldly declare that any man, who habitually neglects the worship of God, is a traitor not only to the high government and law of God, but also to the security and welfare of human society itself.

Said the devout Witherspoon, one of the signers of the Declaration, and one of the noblest spirits of the Revolution, a Christian and a clergyman of those brave and heroic times – “He is the truest friend to American liberty who is the most sincere and active in promoting true and undefiled religion, and who sets himself with the greatest firmness to bear down profanity and immorality of every kind.  Whoever is an avowed enemy to God, I scruple not to call him an enemy to his country.  It is your duty in this important and critical season to exert yourselves, everyone in his proper sphere, to stem the tide of prevailing vice, to promote the knowledge of God, the observance of his name and worship, and obedience to his laws.  Your duty to God, to your country, to your families, and to yourselves, is the same.  True religion is nothing else but an inward temper and an outward conduct suited to your state and circumstances, in the Providence, at any time.  And as peace with God and conformity to Him add to the sweetness of creature comforts, while we possess them, so in times of difficulty and trial it is the man of piety and inward principle that we may expect to find the uncorrupted patriot, the useful citizen, and the invincible soldier.”

In affixing his name to the Declaration of Independence, this man rose in that illustrious assembly, and gave utterance to these words: “Mr. President, that noble instrument on your table, which insures immortality to its author, should be subscribed this very morning, by every pen in the House.  He who will not respond to its accents, and strain every nerve to carry into effect its provisions, is unworthy the name of freeman.  Although these grey hairs may descend into the sepulcher, I would infinitely rather they should descend thither by the hand of the executioner than desert at this crisis the sacred cause of my country.”  The words ran through the body like electric fire.  Every man arose and affixed his name to that immortal document.  He spoke then the best and highest word of the nation.  He was the mouthpiece of a people standing on the religion of the Bible.

Every nation under heaven has had its religion, and will have to the end of time.  Our own nation has never recognized, in form or principle, any system but that of Christianity, the highest outward expression of which is known in the public service of divine worship maintained among us, especially on the Sabbath day.  And of all places in the land, none should be more important, none more command the sympathy and awaken the interest of the whole people, than the public worship of God in the Capital of the nation.

The historical facts connected with this subject are fraught with the deepest importance, and are entitled to the most serious consideration.  To go no further back than the adoption of the Federal Constitution, and confining ourselves also simply in this statement to the proceedings had in relation to the chaplains of Congress, we call to mind first, the fact that the Constitution of 1789 forbids Congress to make “law respecting an establishment of religion, or prohibiting the free exercise thereof” – and further says, “no religious test shall ever be required as a qualification for any office or public trust in the United States.”  This secures two things – the freedom of religion, and the equality of religious sects.  But it does not dispense with the divine obligations of the public worship of God.  So our fathers believed, and so they acted.  The first Congress under the Constitution elected two chaplains, and this practice is continued to the present day.  The law of 1789, and of 1816, regulating this subject, and fixing an annual salary which has never exceeded $750, was passed in pursuance of the conviction not only of the constitutionality, but of the eminent propriety and religious obligation of the service to which the chaplains of Congress were appointed.

And while speaking of salary for the chaplain service in this country, permit me to notice the contrast presented by the State establishment of the Church of England.  The statistics were furnished me by a friend who has thoroughly examined this whole subject.  From tables prepared by him, it appears that the tithing system of Great Britain for the support of the Church, opens an abyss absolutely appalling.  One single fact illustrates the truth of this assertion.  The amount of annual salary paid to some twenty four individuals in the highest orders of the clergy, aggregates nearly $1,000,000 – the highest single salary reaching over $78,000, and the lowest exceeding $20,000!  What then must be the cost of the entire ecclesiastical establishment?

Now, in comparison with this, what is done by our Government for the support of Christianity?  Until the present war, which has of course increased the expense of the chaplaincy, still however, leaving it as a system very defective, the little that was attempted by the Government of the United States can be reported in few words.  I find from a small volume published in 1856, entitled “Government Chaplains,” by Dr. L. D. Johnson, and containing much interesting and curious information, that there were at that date thirty chaplains in the Army, twenty-four in the Navy, and two in Congress, besides a number of post-chaplains and teachers among the Indians.  The whole expense annually to the Government of supporting this body of men did not exceed a quarter of a million of dollars.  I venture to assert that no nation ever existed on earth that maintained the popular religion at so cheap a rate.  Think of it again.

To say nothing of the army or navy, Congress has two chaplains, and gives them each $750 per annum for their services in daily attendance.  I do not for one ask an increase.  I am not pleading for money so much as for the moral effect of the observance, in Congress, of the public ordinances of Divine worship.  But there is no provision of law regulating or even requiring the public Sabbath service in which we are now engaged, and there never has been from the beginning, so far as I am instructed.  It seems to stand alone upon custom.  It has been the unvarying usage for the chaplains of Congress to hold one public service in the Capitol on the Sabbath.  It is evident that Washington, Franklin, Madison, Ellsworth, Sherman and their illustrious compeers, approved of the custom, and that ever since that day, the greatest, the best, and the purest men in the nation have given it countenance and support.  Yet there have been times when questions of the propriety of such services have arisen – times when a portion of the people have petitioned Congress for the abolition of the whole system of the chaplaincy, and consequently of the public religious services which chaplains perform – and times when the system of Government chaplains, and of the Christian ministry itself has met, in the Houses of Congress and out of them, a storm of ridicule, contempt and denunciation.

On the 5th of September, 1774 the American Congress was in session.  There was a doubt in the minds of many about the propriety of opening the daily deliberations with prayer, the reason assigned being the great diversity of opinion and religious belief.  Then rose the venerable puritan, Samuel Adams, with his long white locks hanging over his shoulders, and spoke as follows:  “It does not become men professing to be Christians, convened for solemn deliberation in the hour of their extremity, to say there is so wide a difference in their religious belief that they cannot as one man bow the knee in prayer to the Almighty, whose aid they hope to obtain.  Independent as I am, and an enemy to all Prelacy as I am known to be, I move that the Rev. Dr. Duche, of the Episcopal church, be invited to address the Throne of grace in prayer.”  Dr. Duche complied, and offered prayer, first in the form of his church, and then in extemporaneous supplication, until all hearts were moved, and the whole assembly were bathed in tears.  In the Convention which formed the present Constitution, another scene occurred, no less remarkable and impressive, when the venerable Franklin proposed, in words of profound solemnity never to be forgotten, the introduction of prayer to the Father of Light for that wisdom which was then wanting to harmonize the conflicting elements, and establish the conditions of the nation’s welfare.

Many are the thrilling facts in our country’s history which demonstrate the necessity of public religious services, conducted by the Christian ministry, to the well-being of the Government and the highest prosperity of the whole people.  And now I remark, by the way, that a volume has recently been issued, entitled “The Christian Life and Character of the Civil Institutions of the United States,” by the Rev. B. F. Morris, which is the only book of the kind in existence, and which I find to be a perfect treasury of the Christianity of the nation, as embodied in its public monuments, and attested by its public men – a book which ought to become the Manual of the people, and find a place in every library, and be in the possession of every man, woman and child in the nation, and the close companion of all, whether in public or private life.  I trust that book will be thoroughly studied by the present generation of Americans, for it has all the interest of a romance, with all the solidity of science, and all the sanctity of religion.  Go to that book, if you would see what the great and good men of the nation, from the beginning until now, have thought of the propriety and absolute necessity of the services of the Christian ministry, and of the observance of the public worship of God in our national affairs, and in the high places of the country.

I am mainly indebted to it for the impulse which originated this very discourse – for I saw it in manuscript, and have copiously drawn from it, as from a fountain deep and rare, for all the great words I have quoted, or am about to quote from our illustrious ancestors.  Need I say that its loyalty is one of its grandest features; that the very heart of a deep, genuine, glorious devotion to God and the Country and the Constitution, throbs through every page of it.  It could not be otherwise, for it is the sum of the great Christian monuments of the fathers who under God built up our nation – laid its foundation, and reared its mighty structure.  Oh had the degenerate sons of now dishonored sires in the rebellious States heeded these great lessons, instead of those of their false and lying prophets of a more recent time, how great a ruin they might have averted from their heads!

By the expressed conviction and resolute conduct of the great men of the first age of the Republic, the objections of the ignorant, the profane, the unbelieving, against the Christian religion and its devoted ministers were in a measure silenced.  But when at length, in after years, the institution of the Sabbath seemed to be peculiarly and openly endangered by the public example of the Government in the universal running of the mails, the Christian mind of the nation became alarmed, and the Christian ministry lifted up a decided protest, and made their voice heard in the halls of Congress upon that question.  This awakened a powerful opposition from the lax and dissolute men of every description, and kindled again into open conflagration the smoldering embers of the popular prejudice against the ministers and services of religion.  The debates in Congress of that period attest a severe conflict, in which at last however, the friends and advocates of immorality were virtually discomfited, and the cause of Christianity obtained a substantial triumph.  Thus the question of religion, especially as connected with the appointment of chaplains to Congress, and the public worship of God in the Capitol, was left undisturbed for a considerable period.  Meantime, however, a series of causes were operating to bring on the conflict in a fiercer form of political partisanship and bitter animadversion.

It must be confessed that the scramble for the office of chaplain to Congress, by many applicants, and by some perhaps not the best qualified for its responsibilities and duties, had been a growing evil, and was becoming an open scandal to the country.  Besides this, measures had been proposed in Congress affecting the question of slavery, and the repeal of a compact of long standing, which moved the whole nation to its very foundation.  It was an occasion when large portions of the Christian ministry felt justified in bearing an open testimony on the question at issue.  Earnest and stirring memorials, signed by large bodies of the clergy, were sent to Congress, and this aroused the indignation of Senators and Representatives of the dominant political party, against whose public policy the petitions of the memorialists were directed.  Sad is the chapter of the proceedings and debates in regard to the Christian ministry generally, and especially in regard to the election of chaplains, and their services in the 33d Congress.  The very election of a chaplain was characterized as “a farce.”  Votes were given for a female to be the chaplain of the House.  One speaker alludes to the election, as the election of “an humble chaplain.”  Another speaker said, “The candidates are multiplying, and those whose names are now before us are getting uneasy.

I am anxious to have the matter settled, so that the rejected applicants may apply for some other office if they do not get this!”  An article appeared in one of the daily papers of the city to this effect:  “We are altogether opposed to having chaplains to Congress.  We hope the last of them have been elected.  It is pretty well understood that those paid for prayers are to be made brief – cut off short, in order to avoid boring Congress.  Short as they are, they are bores.”  In the Senate, the opposition to the action of a portion of the Christian clergy, and especially to the ministers of New England, took a wider scope.  Senators held them up as deserving the grave censure of that body – as not knowing what they were talking about – as bringing our holy religion into disrepute – as agitators, transforming the lamb to the tiger and the lion.

Meanwhile, memorials came up from the profane and infidel in various quarters of the land for the total abolishment of the office of chaplain.  The reasons set forth for this were that the continuance of the office was in violation of the Constitution – that it imposed unjust taxation – that it was a virtual establishment of the union of church and state – and that it was subversive of the genius and spirit of American institutions.  All these points were fully answered in the reports of the Committees of the two Houses of Congress upon that whole subject, during that ever memorable period.  The Christian sentiment and deliberate sense of the people and of their representatives again prevailed, and the office of the chaplain and the public worship of God in this Capitol of the nation survived together!  But there are objections still, no doubt, lurking in the popular mind and heart, if not openly expressed, against the whole system of the Chaplaincy, and especially against the public worship of God in this high place, which I propose now to consider.

1.  It is unconstitutional.  The voice and practice of the fathers refute this charge.  The Constitution does not forbid the creation of the office of chaplain, with a salary by law of Congress; nor does it forbid the appropriation of money to support a decent observance of the public worship of God in this Capitol.  Congress appropriates thousands of dollars in other ways, not half so much calculated, in my opinion, to promote the public welfare and virtue of the people; and they have a right, under the Constitution, if they so choose, not only to employ a chaplain or chaplains to conduct daily prayers, and the services of public worship here on the Sabbath, but also to devote money from the public treasury to provide a choir, to purchase an organ, and to do all other acts and things necessary to the fullest perfection of divine service.  It will not do for any man to undertake to convince me that all this is unconstitutional.

It is a scandal on the Constitution – a reproach to the memory of our fathers – an insult to religion, and impiety toward God.  The catholic evangelical church of Christ of this day, in all denominations, will not tolerate such a sentiment – such a satire on the great organic law of a free and Christian people.  The Constitution is not at war with the law of God in this particular; and if it were conclusively shown to be, I should go for the higher law of God, and go for conforming the Constitution to that higher law.  We have had enough of sneering at this higher law of God in the land for the last fifteen years.  This is one of the iniquities that has brought at last the thunders of His judgment upon us.

2.  But this would be forming and establishing a union of church and state.  Not by any means.  I am as much opposed to such a union as any man, and would contend as strongly against it.  When our fathers, by the Constitution, deprived Congress of the power to establish religion by law, they did not intend to make us an infidel nation, nor our Government an impious and God-forsaken iniquity.  They meant not to divorce religion wholly from the existence and life of the Republic, but only to prevent the union of any Church establishment with the State, in such a way as to bind the conscience and burden the coffers of the people with either the creed or the taxes of any ecclesiastical institution.  Nobody finds fault with the employment of Government physicians and surgeons, and yet there is just as much reason on this ground for the complaint of a union of Therapeutics with the State.

What is meant by a State church is such as exists in England, where immense sums are appropriated, and large prerogatives exclusively granted to a single church establishment, at the expense of all others, and this in perpetuity.  No such policy has existed under our Constitution, and I trust it never may.  But it is a very different thing for Congress to provide for the public recognition and worship of God in their own halls, leaving all men free to act upon their conscience as to their attendance upon the same, responsible alone to God, for the manner in which these obligations are discharged.

3.  It is no place for religious services.  Ah, and whose opinion is this?  Jesus Christ instructs us, that the day has gone by, when the worship of God shall be confined to any one locality exclusive of another – when men shall worship the Father neither alone at Jerusalem nor in the mountains of Samaria, but everywhere, where men shall worship Him in the spirit.  The temple, the synagogue, the academy, the market-place, the forum, the theatre, the aeropagus, as well as the Christian sanctuary, have all been used for this high purpose.  Nay, the deserts and caves, and fastnesses of the mountains, the vast solitudes of nature, the wide forest, the open sea, under the broad sky in the light of day, in the shadow of midnight, the camp, the caravansary, the hospital, the asylum, the cottage, the seminary, the halls of justice, and the very jails and penitentiaries have been made the temples of the public worship of the Almighty.  And now will it do to say that here in the high conclave of the nation, there is no place for the pure, spiritual, public worship of the one only living and true God?

It is the thought of the infidel – it is the word of the profane!  I am well aware of the opinion of multitudes in this land in regard to the whole subject of Christianity, its ordinances, its laws, its requirements, it ministry, and especially in regard to those who represent it as chaplains, whether here or in the army or the navy.  I know they look with contempt upon the whole arrangement.  They treat the whole matter as though it were but the cant of superstition, or the bigotry of ignorance.  They look upon chaplains as beggars, and upon God as a myth, and upon his worship as a mummery.  They think it superbly magnanimous even to tolerate all this.  They think and feel and act as if Christianity had no right to be here in the world, and its ministers ought to be apologizing to every man they meet, for the fault of pursuing their profession.  But those who have such ideas are not the wise and virtuous of the land.  They are the impious and corrupt, the very dregs and refuse of human society.  They want no restraint on their lusts and passions.

They would hear no reproof of their vices.  They desire full scope for their briberies, their dishonesties, their peculations, their foul and pestilent iniquities.  Such men would no doubt be glad to see God himself dethroned, his law abolished, his government destroyed, and every vestige of his authority swept away, in order that they might run unimpeded and unquestioned into every excess of riot.  Why, I hear it on every hand, day by day, whispered in our dwellings, at the street corners, and everywhere, that there is an amount of corruption going on among us, through men connected with the Government, in all its branches, political, pecuniary, personal, official, and in every way, enough to sink the nation by the weight of its own enormities.  I hear it said on every side, that the same is true socially with the population of the city, in their resorts of amusement and in their dens of infamy.  Now if this be so, would it not be the most natural thing in the world for such a multitude to desire the public monuments of religion to be everywhere destroyed, that they may have full license to run their course of unscrupulous and lawless conduct, without molestation and without restraint.

And now I undertake to say to all such that I ask no leave of them to be following my profession as a minister of Christ.  I shall never beg of any such the privilege of staying in the world to preach the Gospel, and to join in the public worship of Almighty God.  I shall never go creeping and crawling before any man, in my clerical capacity.  If I am not treated as I ought to be, I have the instructions of my Great Master how to proceed.  I will shake the dust off my feet for a witness against them, and leaving them to settle the account with God in the day of final reckoning, I will go elsewhere, as Providence may guide my way.  It is not for any minister of Christ to be whining and puling among his fellow men, as though he were but half a man himself.  Someone remarked to me the other day that a member of Congress had said “he thought it a great privilege that we were allowed the use of this chamber for public worship at all” – and I say if that is the sense of the American Congress, I for one will leave them, the moment it is ascertained, to do their own preaching and praying, and to follow out their own devices in their own way.

I will not waste my breath upon any class of men who, in this age and country, feel like that.  The man who repudiates the Christian religion, and shows his contempt for all it enjoins, and for all who represent and serve it, does not reflect that it is the parent of all the highest social, intellectual, civil and moral good in the land – that it has fostered into greatness all the resources, industries, prosperities, honors and dignities of the nation – that it has adorned our civilization with its rarest ornaments – that it has given to woman her true place in the scale of life – that it has multiplied all the charities and magnanimities of human nature – and he may well be told, in the sententious language of Dr. Franklin, who on one occasion wrote, with a quiet satire only equaled by the truth of the sentence he penned, “For among us it is not necessary , as among the Hottentots, that a youth to be raised into the company of men, should prove his manhood by beating his mother!”  I think so, too.  Take Christianity from this land today – suspend the public worship of God everywhere – eliminate every radix and vestige of the Christian element from among the people, and what would you have left but a mass of fools and knaves, and a general scoundrelism swallowing itself up on all sides!  Therefore I say, stand your ground, to all men who would be true to God, the gospel, and their country.

I do not come here to ask any favor for myself, and I again assert that every man, high or low, black or white, has an equal interest and a common obligation for the maintenance of the public worship of God in this Capitol.  As a single member of the religious community, I do feel an intense interest in the support of the public recognition of God in this high place of the nation; and though I might never preach here again, it would be my prayer that some messenger of the great truth of Revelation might always stand here to uphold the mighty doctrine, and to flash its light and proclaim its summons over all the nation.

4.  But the office of chaplain is liable to abuse, both in the manner of seeking it and in the character of its incumbents.  I know it is alleged, and with some foundation of truth, I fear, that unworthy men have disgraced the profession, not only here but in the army and navy.  But the true remedy is purgation, not the destruction of the office.  Would you abolish Congress, because some members of Congress disgrace their station?  I deplore as deeply as any man the delinquencies of men assuming the sacred office, only to make it the means of pandering to their own selfishness or corruption.  I denounce it here, and I denounce it everywhere.  But let us not tear down the house over our heads because some thief or robber has stolen into it, to rifle it of its contents.

5.  But the services of chaplains are a bore to Congress.  Ah! Then so much the worse for  Congress.  I am glad no record shows, so far as I have seen, that any member of Congress said such a thing as that.  It was said by some scribbler for a newspaper.  It comes with an ill grace from a class of individuals who get their living by filling the issues of the daily press with garbage.  Do not take me to be criticizing that mighty power in the land without discrimination.  When I consider the gigantic influence of this wonder of modern civilization, I am struck with awe at the constancy, the rapidity, and the ubiquity of its operations.  It has more than realized all the fabled actors of antiquity.  The hundred-handed Briareus, the hundred-eyed Argus, the thousand gifts of Apollo, the strength of Hercules, the wisdom of Minerva, the laughter of Momus are all its own – yea, and it has also the secrets of the fatal box of Pandora – and the prolific growth and foliage of all times and climes, and latitudes and seasons, until its leaves fall daily thicker than the leaves of all the forests – to bless or blight the nations.  It is a mighty power for good or evil.  Many great and good men are endeavoring to direct its energies – to them let us give all praise – but in the hands of the evil and the venal, who can calculate the mischief it has power to work!

6.  But ministers are too apt to meddle with politics.  If they would only preach the gospel, and let politics alone, they might be tolerated.  Now I admit that there is a danger here, and that some fall into it – that is to say, ministers may fail in their great mission of preaching the gospel to the world, either by suppressing its great cardinal elements, and foisting in their place some truth, or error, as the case may be, which does not belong to the place they would assign to it; or they may so preach the gospel, in their style of handling it, as to render nugatory its legitimate influence and effect.  All this is to be carefully avoided.  But whoever undertakes to say that the gospel is not in itself essentially a system that takes hold upon the question of right and wrong everywhere in the nature, relations, society, intercourse and business of men, knows nothing of its principles or of its design.  I know there has been an attempt to divorce the gospel from politics, and politics from the gospel; and I hold it to be one of the most stupendous practical errors, follies, heresies, and crimes of the age.  The gospel is the most radical force of a moral and spiritual kind ever introduced into this world.

It is God’s plough-share, driven afield by the great cattle of his Providence, through the wilderness of human wrong and outrage for the last two thousand years; and wherever it comes, it is destined to tear up the prescription of ages of iniquity, the great systems of false religion and false philosophy, the infidelity, the tyranny, the oppression, the vice and rooted corruptions of mankind, and hurl them headlong from its mighty furrows.  If it encounters a vulgar and vitiated system of politics, it will no more spare that than anything else that tends to the destruction and ruin of mankind.  The gospel was designed to attack all false opinions and sentiments, all immoral customs and practices, all despotic and cruel principles, and every enemy of the virtue, the true culture, the Christian progress, and the spiritual elevation of mankind; and woe be to that professed minister of Christ who fails through any fear or favor of man, to declare the whole counsel of God, who abates one jot from the Revelation of divine wisdom.  It is the duty of the minister to proclaim Christ and him crucified, the only and all-sufficient Savior of the world, and all the cognate and kindred doctrines of grace; but around this central doctrine of the cross, this article of justification by faith, every human interest and relationship come thronging; and he must apply this truth, rightly dividing the word – a workman that needs not to be ashamed.

The truth is, and we may all know it, a pure Christianity is the only sufficient and proper conservator of the duties, the obligations, and immunities of mankind – the only lasting and adequate security of republican constitutional liberty.  This is the testimony of all the wisdom and greatness of the ages that are past:

“Government has an everlasting foundation in the unchangeable will of God,” said Otis.  “May we ever be a people favored of God,” said Warren.  “If it was ever granted to mortals to trace the designs of Providence, we may cry out, not unto us, but unto thy name be the praise,” said Samuel Adams.  “There is one thing more I wish I could give them, and that is the Christian religion,” said Patrick Henry.  “Let us play the men for God and the cities of our God,” said John Hancock.  “Science, liberty, and religion are the choicest blessings of humanity,” said John Adams.  “Righteousness exalts a nation,” testified Robert Treat Paine.  “The hand of Heaven seems to have directed every occurrence,” said Elbridge Gerry.  “I believe in the divine mission of our Savior,” said Thornton.  “I believe in the Christian religion,” said Hopkins.  “Let us be hopeful and trusting, for the Lord reigns,” said William Ellery.  “A life-long devotion to his country and his God.” Is the eulogy of Roger Sherman.  “

A professing Christian of eminent virtue,” was the substance of the testimony of the biographers of Huntingdon, of Williams, of Wolcott, of Livingston and Stockton.  Of Witherspoon, the historian says, “If the pulpit of America had given only this one man to the Revolution, it would deserve to be held in everlasting remembrance.”  “The worship of God is a duty,” said Benjamin Franklin. “I tremble for my country, when I reflect that God is just,” said Jefferson.  “The duty we owe to God can be directed only by reason and conviction, not by force and violence,” said George Mason.  “Religion is the solid basis of good morals,” said Governor Morris.  Of Pinckney it is certified, “He had practical faith in the divinity of the Bible, and its essential need to republican government” – of Benjamin Rush, that “he was one of the greatest and best of Christians.”  Fisher Ames, John Hart, James Smith, and Robert Morris were all believers in the gospel of Christ; and some of them were as eminent in His church as in the councils of the nation.  Hamilton, that great genius of the Revolution, says, “The law of nature, dictated by God himself, is of course superior to any other.  No human laws are of any validity, if contrary to this.”  “Grateful to Almighty God for the blessings which, through Jesus Christ, our Lord, he has bestowed upon my beloved country,” said the venerable Charles Carroll of Carrollton.

Thompson, Wythe, Wilson, Chase, the two Lees, were all pre-eminent Christians.  Every one of their illustrious associates and successors might be quoted as witnesses of the same great faith.  John Jay, Boudinot, Madison, Monroe, Ellsworth, Drayton, Greene, Knox, Wm. Livingston, Trumbull, Washington and Lafayette, Marshall, the Randolph’s, the Adams, Jackson, Clay, and Webster – all these have left an imperishable record of their conviction that it is as true now as in the remotest antiquity, that, using the language of Plutarch, “a city might as well be built in the air, without any earth to stand upon, as a commonwealth or a kingdom be constituted or preserved without religion!”  Need I say then, how deeply the American people, but especially the rulers, lawgivers, judges, and military and civil functionaries of our country, ought to feel the necessity and obligation of cleaving to this public recognition of Almighty God, and the great foundation principles of the Christian faith, in such a day as this?  Now the earthquake of popular excitement is heaving in every quarter.  Now the hurricane of popular opinion is sweeping fiercely and wildly across the naked heart of the nation.  Now grim-visaged war rolls his dun clouds, reddened with the blood of our bravest and best, over all the sky.  Now we are in the most momentous year of these great travail pangs – a year in which it is to be determined whether the nation, with the sword in one hand, and reeling under the weight of staggering blows from a giant rebellion, uplifted by the awful energies of the universal convulsion, can with the other steadily hold her great and sovereign birthright, and by the deliberate and unrestricted suffrage of a free people, advance to the high seat of Government a citizen for their President!  Oh when I look at these things, I say God help us.  Let the nation cling to the Christian religion.

It would be easy to show, as has been done over and over again, how the public worship of God tends directly to work those effects in the opinions, habits and spirit of the people which contribute to the public security and prosperity; and how, on the other hand, the neglect of these great ordinance s conspires to the demoralization of communities, until they are ground to powder beneath the upper and nether millstones of God’s providence.  But I shall not enter into this argument now.  It is sufficient to assert that no people can retain the principles of religion apart from its public monuments, ordinances, and commemorations.  God has foretold therefore, that his worship shall be universal; and that in the high places of every nation there shall be the celebration of his praise.  And therefore let me ask you whether it is a matter of individual and national concern for the people of the United States to maintain or not the public worship of Almighty God in these chambers of their Capitol?  Shall the great hope of man and the great light of salvation here be permitted to go out from the highest public altar of the country – the temple of law and justice – the edifice consecrated to the noblest earthly work of man?  No, no, sai I- a thousand times, no!  I would not have this capitol polluted and disgraced by any company of brawling politicians, demagogues and conspirators, who under the sacred forms of legislative office, in the proud parade of senatorial robes – bearing the insignia of representatives of a mighty people, use such a place as this to hatch their infernal plots, and to perfect the finesse or the chicanery of their corrupt and mischievous designs.

Nay, rather I would have every man who enters these halls feel at once the grand old air of an upright and majestic manhood – feel that he stands in a temple – not like that at Jerusalem, which smoked with the holocausts of a thousand victims but a place where God’s homage is paramount, and man’s dignity the next in value to the Infinite; both uniting to give these halls a sanctity more than the veneration of the Amphictyon Council – more than the Hebrew Sanhedrin – more than the Court of Aeropagus, or the Delphic Oracles – more than the Roman Senate- more than the Saxon Witenagemot – more than the House of Deputies of France – more than the Parliament of England.  And so long as the starry banner, the previous ensign of the Republic floats over the capitol, in token of the convention of the nation’s lawgivers, and so long as the statue of Liberty, now exalted over us by the wonderful skill and cunning handiwork of man, shall look down upon this grand panorama and proscenium of the metropolis, so long, even to the last running sand of expiring time, would I have this public structure devoted to the public worship of God – its pillars the emblems of his truth, its adornments the symbols of his favor, its chambers, halls and corridors filled with the rolling songs of praise, and echoing to the swell of voices uplifted in the wonder, the gratitude, the awe, and the adoration of His worship.

Yea, and when that glorious hour shall strike the full accomplishment of his great prediction, and from moon to moon, and from Sabbath to Sabbath, all nations shall come before the Jehovah of the whole earth, and there shall be one matchless and continuous anthem of worship, reverberating from hill to hill, and from land to land, and from shore to shore, as the sun performs his circuit in the heavens, and all the ministers of God, becoming the mouth of the millions of earth’s people, shall utter their successive testimony to the truth of the great salvation, and from all the renowned cities of the globe shall break, and echo, and respond, in the soul-thrilling accents of apocalyptic tongues, the last great announcement of the emancipated world, the kingdoms of the earth have become the kingdoms of our God, and when the great heart of human nature no longer driven by the sins and sorrows of the time, but redressed and full of living joy, shall beat with the mighty fervor of unutterable enthusiasm, and when from every summit of nature, and every tower of man, shall peal forth the solemn knoll of God’s great bells of time, calling mankind to worship – Oh, then would I have the capitol of my country stand high and strong, with all the heart of the nation gathered about it, God’s favor shining upon it, millions of prayers centered in it, and the voice of its worship going up to the Supreme Ruler of the Universe in a volume the clearest, the grandest, and the most earnest of all the voices that shall salute the ear of Heaven from the manifold languages of the whole earth!  This is an emulation worthy to be fostered, and may the Lord Jehovah hasten it in his time! Amen.
END.

A God-Given Inalienable Right

One of the first rights to be protected in early America was the right of conscience – the right to believe differently on issues of religious faith. As John Quincy Adams explained, this right was a product of Christianity:

Jesus Christ. . . . came to teach and not to compel. His law was a Law of Liberty. He left the human mind and human action free. 1

Early American legal writer Stephen Cowell (1800-1872) agreed:

Nonconformity, dissent, free inquiry, individual conviction, mental independence, are forever consecrated by the religion of the New Testament. 2

President Franklin D. Roosevelt likewise declared:

We want to do it the voluntary way – and most human beings in all the world want to do it the voluntary way. We do not want to have the way imposed. . . . That would not follow in the footsteps of Christ. 3

The Scriptures teach that there will be differences of conscience (cf. 1 Corinthians 8) and that if an individual “wounds a weak conscience of another, you have sinned against Christ” (v. 12). We are therefore instructed to respect the differing rights of conscience (v. 13). (See also I Corinthians 10:27-29.) Extending toleration for the rights of conscience is urged throughout the New Testament. (See also Romans 14:3, 15:7, Ephesians 4:2, Colossians 3:13, etc.)

Leaders who knew the Scriptures therefore protected those rights. For example, in 1640, the Rev. Roger Williams established Providence, penning its governing document declaring:

We agree, as formerly hath been the liberties of the town, so still, to hold forth liberty of conscience. 4

Similar protections also appear in the 1649 Maryland “Toleration Act,” 5 the 1663 Charter for Rhode Island, 6 the 1664 Charter for Jersey, 7 the 1665 Charter for Carolina, 8 the 1669 Constitutions of Carolina, 9 the 1676 Charter for West Jersey, 10 the 1701 Charter for Delaware, 11 and the 1682 Frame of Government for Pennsylvania. 12 John Quincy Adams affirmed that: “The transcendent and overruling principle of the first settlers of New England was conscience.” 13

Then when America separated from Great Britain in 1776 and the states created their very first state constitutions, they openly acknowledged Christianity and jointly secured religious toleration, non-coercion, and the rights of conscience. For example, the 1776 constitution of Virginia declared:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. 14

Similar clauses appeared in the constitutions of New Jersey (1776), 15 North Carolina (1776), 16 Pennsylvania (1776), 17 New York (1777), 18 Vermont (1777), 19 South Carolina (1778), 20 Massachusetts (1780), 21 New Hampshire (1784), 22 etc. Today, the safeguard for the rights of conscience pioneered by Christian leaders is a regular feature of state constitutions. 23

The Founding Fathers were outspoken about the importance of this God-given inalienable right. For example, signer of the Constitution William Livingston declared:

Consciences of men are not the objects of human legislation. . . . [H]ow beautiful appears our [expansive] constitution in disclaiming all jurisdiction over the souls of men, and securing (by a never-to-be-repealed section) the voluntary, unchecked, moral suasion of every individual. 24

And John Jay, the original Chief Justice of the U. S. Supreme Court, similarly rejoiced that:

Security under our constitution is given to the rights of conscience and private judgment. They are by nature subject to no control but that of Deity, and in that free situation they are now left. 25

President Thomas Jefferson likewise declared that the First Amendment was an “expression of the supreme will of the nation in behalf of the rights of conscience.” 26

But President Obama disagrees with what for four centuries in American history has formerly been an inalienable right. He has specifically singled out and attacked the rights of religious and moral conscience, seeking to coerce dissenters into accepting his own beliefs. While Biblical teachings result in protection for differences of opinion on religious issues, secularists demand conformity of belief and practice to their own secular standards; they are especially intolerant of any differences that stem from Biblical faith.

While the President has targeted the Catholic Church for its religious beliefs, his attacks on religious conscience were ongoing, beginning shortly after he first took office when he first announced his plans to repeal religious conscience protection for medical workers. (We have posted on our website a piece showing the extreme and consistent hostility of this President against Biblical faith and values. As proven by his own actions and words, he is the most anti-Biblical president in American history.)

1 John Quincy Adams, A Discourse on Education Delivered at Braintree, Thursday, October 24th, 1839 (Boston: Perkins & Marvin, 1840), 17-18.

2 Stephen Colwell, Politics for American Christians: A World upon our Example as a Nation, our Labour, our Trade, Elections, Education, and Congressional Legislation (Philadelphia: Lippincott, Grambo & Co. 1852), 82.

3 “Franklin D. Roosevelt, “Christmas Greeting to the Nation,” American Presidency Project, December 24, 1940, https://www.presidency.ucsb.edu/node/209414.

4 “Plantation Agreement at Providence,” The Avalon Project, August 27 – September 6, 1640, https://avalon.law.yale.edu/17th_century/ri01.asp.

5 William MacDonald, Select Charters and Other Documents Illustrative of American History 1606-1775 (New York: MacMillan Company, 1899), 104-106.

6 “Plantation Agreement at Providence August 27 – September 6, 1640,” The Federal and State Constitutions, Colonial Charters and Other Organic Laws, ed. Francis Newton Thorpe (Washington: Government Printing Office, 1909), VI:3211; “Charter of Rhode Island and Providence Plantations,” The Avalon Project, July 15, 1663, https://avalon.law.yale.edu/17th_century/ri01.asp.

7 “The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey,” The Avalon Project, 1664, https://avalon.law.yale.edu/17th_century/nj05.asp.

8 “Charter of Carolina,” The Avalon Project, June 30, 1665, https://avalon.law.yale.edu/17th_century/nc03.asp.

9 “Fundamental Constitution of Carolina,” The Avalon Project, March 1, 1669, https://avalon.law.yale.edu/17th_century/nc05.asp.

10 “The Charter or Fundamental Laws of West New Jersey,” The Avalon Project, 1676, https://avalon.law.yale.edu/17th_century/nj05.asp.

11 “Charter of Delaware,“ The Avalon Project, 1701, https://avalon.law.yale.edu/18th_century/de01.asp.

12 “ Frame of Government of Pennsylvania,“ The Avalon Project, May 5, 1682, https://avalon.law.yale.edu/17th_century/pa04.asp.

13 John Quincy Adams, A Discourse on Education Delivered at Braintree, Thursday, October 24th, 1839 (Boston: Perkins & Marvin, 1840), 28.

14 “Constitution of Virginia: Bill of Rights,” The American’s Guide: Comprising the Declaration of Independence; the Articles of Confederation; the Constitution of the United States, and the Constitutions of the Several States Composing the Union (Philadelphia: Hogan & Thompson, 1845), 180.

15 “Constitution of New Jersey,” The Avalon Project, 1776, https://avalon.law.yale.edu/18th_century/nj15.asp.

16 Constitutions of the Several Independent States of America (Boston: Norman & Bowen, 1785), 132.

17 Constitutions of the Several Independent States of America (Boston: Norman & Bowen, 1785), 77.

18 “The Constitution of New York,” The Avalon Project, April 20, 1777, https://avalon.law.yale.edu/18th_century/ny01.asp 1777.

19 The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, 3d. Francis Newton Thorpe (Washington: Government Printing Office, 1909), VI:3740.

20 Constitutions of the Several Independent States of America, (Boston: Norman & Bowen, 1785), 152-154.

21 Constitutions of the Several Independent States of America (Boston: Norman & Bowen, 1785), 6.

22 Constitutions of the Several Independent States of America (Boston: Norman & Bowen, 1785), 3-4.

23 “State Policies in Brief: Refusing to Provide Health Services,” Guttmacher Institute, March 1, 2012, https://www.guttmacher.org/statecenter/spibs/spib_RPHS.pdf.

24 Benjamin F. Morris, Christian Life and Character of the Civil Institutions of the United States, Developed in the Official and Historical Annals of the Republic (Philadelphia: George W. Childs, 1864), 163-164.

25 Benjamin F. Morris, Christian Life and Character of the Civil Institutions of the United States, Developed in the Official and Historical Annals of the Republic (Philadelphia: George W. Childs, 1864), 152.

26 Thomas Jefferson to Messrs. Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A Committee of the Danbury Baptist Association, in the State of Connecticut, January 1, 1802 Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington D.C.: Thomas Jefferson Memorial Association, 1904), XVI:281-282.

Religious Freedom Sunday

religious-freedom-sunday-1January 16, 1786, was the day that the Virginia Assembly adopted the Act for Establishing Religious Freedom, finally ending the official state-established church in Virginia. It provided that (1) all individuals would be free from any punishment for not conforming to state-established religious mandates, and (2) one’s religious affiliation would no longer affect the civil privileges he could enjoy 1. In short, in Virginia it legally secured religious toleration and protection for the right of religious conscience.

The Virginia Act, drafted by Thomas Jefferson in 1777, originally failed to pass when brought before the State Assembly in religious-freedom-sunday-21779 2. James Madison later reintroduced the measure, and it was finally enacted in 1786. Jefferson considered it one of his three greatest achievements, ranking it along with penning the Declaration of Independence and establishing the University of Virginia.

This act was reflective of the attitude that had developed across much of America toward securing full religious liberty for all — an attitude later embodied in the federal Bill of Rights’ 1st Amendment to the Constitution.

Each year, in commemoration of religious freedom (one of the most important of our freedoms), the President proclaims January 16th to be Religious Freedom Day 3. Religious Freedom Sunday is commemorated the Sunday before Religious Freedom Day, and this year, Religious Freedom Sunday falls on January 11th.

Gateways to Better Education have teamed up to provide ways for Christians and churches to celebrate this important day and to participate in encouraging the free exercise of religion. But don’t stop with just celebrating Religious Freedom Day at your church, make sure the schools in your area also recognize this special holiday. (Gateways to Better Education has a guidebook to help you enlighten those in the education system about this important day.)

Happy Religious Freedom Sunday!

Endnotes

1 https://www.virginiamemory.com/docs/ReligiousFree.pdf
2 https://www.virginiamemory.com/online_classroom/shaping_the_constitution/doc/religious_freedom
3 https://religiousfreedomday.com/. See, for example, proclamations by George H.W. Bush in 1992 (https://www.presidency.ucsb.edu/node/268664); William Clinton in 1996 (https://www.presidency.ucsb.edu/node/222064); George W. Bush in 2003 (https://www.presidency.ucsb.edu/node/212361); and Barack Obama in 2011 (https://www.presidency.ucsb.edu/node/289040).

Statement on the Supreme Court Decision

The Supreme Court decision in Obergefell v. Hodges that established homosexual marriage as national policy is unambiguously wrong on at least three crucial levels: Moral, Constitutional, and Structural.

On the Moral Level

The Court’s decision violates the moral standards specifically enumerated in our founding documents. The Declaration of Independence sets forth the fundamental principles and values of American government, and the Constitution provides the specifics of how government will operate within those principles. As the U. S. Supreme Court has correctly acknowledged:

The latter [Constitution] is but the body and the letter of which the former [Declaration of Independence] is the thought and the spirit, and it is always safe to read the letter of the Constitution in the spirit of the Declaration of Independence. 1

The Declaration first officially acknowledges a Divine Creator and then declares that America will operate under the general values set forth in “the laws of nature and of nature’s God.”  The framers of our documents called this the Moral Law, and in the Western World it became known as the Common Law. This was directly incorporated into the American legal system while the colonies were still part of England. 2

Following independence, the Common Law was then reincorporated into the legal system of all the new states to ensure its uninterrupted operation. 3 And under the federal Constitution, its continued use was acknowledged by means of the Seventh Amendment in the Bill of Rights.

Numerous Founding Fathers and legal authorities, including the U. S. Supreme Court, affirmed that the Constitution is based on the Common Law, 4 which incorporated God’s will as expressed through “the laws of nature and of nature’s God.” 5

Those constitutional moral standards placed the definition of marriage outside the scope of government. As acknowledged in a 1913 case:

Marriage was not originated by human law. When God created Eve, she was a wife to Adam; they then and there occupied the status of husband to wife and wife to husband. . . . It would be sacrilegious to apply the designation “a civil contract” to such a marriage. It is that and more – a status ordained by God. 6

Because marriage “was not originated by human law,” then civil government had no authority to redefine it. The Supreme Court’s decision on marriage repudiates the fixed moral standards established by our founding documents and specifically incorporated into the Constitution.

On the Constitutional Level

The Constitution establishes both federalism and a limited American government by first enumerating only seventeen areas in which the federal government is authorized to operate, 7 and then by explicitly declaring that everything else is to be determined exclusively by the People and the States (the Ninth and Tenth Amendments).

Thomas Jefferson thus described the overall scope of federal powers by explaining that “the States can best govern our home concerns and the general [federal] government our foreign ones.” 8 He warned that “taking from the States the moral rule of their citizens and subordinating it to the general authority [federal government] . . . . would . . . break up the foundations of the Union.” 9 The issue of marriage is clearly a “domestic” and not a “foreign” issue, and one that directly pertains to the State’s “moral rule of their citizens.” But the Supreme Court rejected these limits on its jurisdiction, and America now experiences what Jefferson feared:

[W]hen all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another. 10

By taking control of issues specifically delegated to the States, the Court has disregarded explicit constitutional limitations and directly attacked constitutional federalism.

On the Structural Level

The Constitution stipulates that “The United States shall guarantee to every State in this Union a republican form of government” (Article IV, Section 4). A republican form of government is one in which the people elect leaders to make public policy, with those leaders being directly accountable to the people. More than thirty States, by their republican form of government, had established a definition of marriage for their State. The Supreme Court decision directly abridges the constitutional mandate to secure to every state a republican form of government.

To believe that the Judiciary is an independent and neutral arbiter without a political agenda is ludicrous. As Thomas Jefferson long ago observed:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. 11

Judges definitely do have political views and personal agendas; they therefore were given no authority to make public policy. The perils from their doing were too great. As Jefferson affirmed, the judges’ “power [is] the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.” 12 He therefore warned:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal. 13The Constitution, on this hypothesis, is a mere thing of wax in the hands of the Judiciary which they may twist and shape into any form they please. 14

The Supreme Court’s decision is a direct assault on the republican form of government that the Constitution requires be guaranteed to every State.

The Road Ahead

The Supreme Courts decree on marriage will become a club to bludgeon the sincerely-held rights of religious conscience, especially of those in the several dozen States who, through their republican form of government, had enacted public policies that conformed to both the Moral Law and the traditional Common Law.

While the Supreme Court decision paid lip service to the rights of religious people to disagree with its marriage decision, history shows that not only does this acknowledgment mean little but also that it will be openly disregarded and ignored, particularly at the local level. After all, there are numerous Supreme Court decisions currently on the books – including unanimous Court decisions – protecting the rights of religious expression in public, including for students. Yet such faith expressions continue to be relentlessly attacked by school and city officials at the local and city levels. (See www.religioushostility.org for thousands of such recent examples.)

Even before this decision was handed down, numerous States were already punishing dissenting people of faith, levying heavy fines on them or closing their businesses – not because those individuals attacked gay marriage but rather because they refused to personally participate in its rites. These governmental actions were initiated by complaints of homosexuals filed with civil rights commissions – and all of this was already occurring without a Supreme Court decision on which they could rely. Now that such a decision does exist, expect a tsunami of additional complaints to be filed against Christian business owners, and both the frequency and the intensity of the penalties to be increased.

This is the time to display stand-alone courage on the issue of marriage as well as the judicial activism of the Court – now is the time to stand up and be counted, regardless of whether anyone else stands with you. It is the time for individuals to broadly voice support for traditional marriage (which will likely cause you to be verbally berated or attacked by its opponents) as well as for the rights of religious conscience of dissenters (which will cause you to be charged with defending bigots and haters). Good people can no longer be silent and allow themselves to be intimidated by the mean-spirited attacks that occur when you begin to speak out on this issue.

It will soon become obvious that this decision opened a Pandora’s Box that will initiate a series of policy changes affecting everything from hiring practices to college athletics, from non-profit tax-exempt status to professional licensing standards. So the battle is not over; it is literally just beginning. We have a duty to let our voice be heard.

Strikingly, duty was the character trait of Jesus. He loved us because it was the right thing to do; He went to the cross because it was the right thing to do; He forgave us because it was the right thing to do. It was His duty. Our Founders repeatedly praised that character trait, and noted the numerous spiritual blessings that came from its performance:

The man who is conscientiously doing his duty will ever be protected by that Righteous and All-Powerful Being, and when he has finished his work, he will receive an ample reward.15Samuel Adams, signer of the declaration

All that the best men can do is to persevere in doing their duty . . . and leave the consequences to Him who made it their duty, being neither elated by success (however great) nor discouraged by disappointment (however frequent and mortifying). 16 John Jay, original chief justice of the u. s. supreme court, author of the federalist papers

The sum of the whole is that the blessing of God is only to be looked for by those who are not wanting in the discharge of their own duty. 17 John Witherspoon, Signer of the Declaration

People of faith need to regain the concept of duty, and we would do well to adopt the motto that characterized the efforts of Founding Father John Quincy Adams: “Duty is ours, results are God’s.” 18 Now is the time for people of faith to be silent no more.

Endnotes

1Gulf, Colorado and Santa Fe Railway Company v. Ellis, 165 U. S. 150, 160 (1897).

2 Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), Vol. I, pp. 1-2, “Of Law and Government;” Henry Campbell Black, A Law Dictionary Containing Definition of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (St. Paul: West Publishing Co., 1910), pp. 226-227, s.v. “common law;” John Bouvier, Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union (Philadelphia: J.B. Lippincott, 1892), Vol. I, pp. 348-349; Alexander M. Burrill, A Law Dictionary and Glossary (New York: Baker, Voorhis & Co., 1867), Vol. I, pp. 324-326.

3 Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1795), Vol. I, pp. 1-2, “Of Law and Government;” Henry Campbell Black, A Law Dictionary Containing Definition of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern (St. Paul: West Publishing Co., 1910), pp. 227-227, s.v. “common law;” John Bouvier, Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union (Philadelphia: J.B. Lippincott, 1892), Vol. I, pp. 348-349; Alexander M. Burrill, A Law Dictionary and Glossary (New York: Baker, Voorhis & Co., 1867), Vol. I, pp. 324-326.

4 See, for example, U.S. v. Coolidge, 1 Gall. 488 (1813); U.S. v. Wonson, 1 Gall. 5 (1812). Robinson v. Campbell, 16 U.S. 3 Wheat. 212 (1818). Alexander M. Burrill, A Law Dictionary and Glossary (New York: Baker, Voorhis & Co., 1871),  I:324-326; “The Formation and Amendment of State Constitutions,” Thomas M. Cooley, A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union (Boston: Little, Brown, and Company, 1871), 21-25. “common law,” Theron Metcalf & Jonathan Perkins, Digest of the Decisions of the Courts of Common Law and Admiralty in the United States (Boston: Charles C. Little and James Brown, 1860), I:532. John Bouvier, Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union (Philadelphia: J.B. Lippincott, 1892), I:348-349.

5 See, for example, Alexander M. Burrill, A Law Dictionary and Glossary (New York: Baker, Voorhis & Co., 1867), Vol. I, p. 325; A. J. Dallas, Reports of Cases Ruled and Adjudged in the Several Courts of the United States and of Pennsylvania Held at the Seat of the Federal Government (Philadelphia: J. Ormrod, 1799), Vol. III, p. 139, Talbot, Appellant, versus Janson, Appellee, et al. which says: “But the abstract right of individuals to withdraw from the society of which they are members, is recognized by an uncommon coincidence of opinion – by every writer, ancient and modern; by the civilian, as well as by the common-law layer; by the philosopher, as well as the poet: It is the law of nature, and of nature’s god, pointing to ‘the wide world before us, where to chuse our place of rest, and providence our guide’.” Giles Jacob, A New Law Dictionary (New York: Frederick C. Brightly, 1905), s.v. “Common Law” which says: “The common law is grounded upon the general customs of the realm; and includes in it the Law of Nature, the Law of God, and the Principles and Maxims of the Law: It is founded upon Reasons; and is said to be perfection of reason, acquired by long study, observation and experience, and refined by learned men in all ages.” Giles Jacob & T. E. Tomlins, The Law-Dictionary: Explaining the Rise, Progress, and Present State of the English Law (Philadelphia: Fry and Kammerer, 1811), Vol. IV, p. 89, s.v. “law” which says: “The law of nature is that which God at mans’ creation infused into him, for his preservation and direction; and this is lex eterna and may not be changed: and no laws shall be made or kept, that are expressly against the Law of god, written in his Scripture; as to forbid what he commandeth, & c. 2 Shep. Abr. 356.” William Nicholson, American Edition of the British Encyclopedia or Dictionary of Arts and Sciences (Philadelphia: Mitchell, Ames, and White, 1821), Vol. VII, s.v. “Law” which says “But this large division may be reduced to the common division; and all is founded on the law of nature and reason, and the revealed law of God, as all other laws ought to be.” Joseph Story, Commentaries on the Constitution of the United States (Boston: Hillard, Gray, and Company, 1833), Vol. III, p. 724, § 1867. Testimony of Distinguished Laymen to the Value of the Sacred Scriptures (New York: American Bible Society, 1854), pp. 51-53, Justice John McLean, November 4, 1852. See also Samuel W. Bailey, Homage of Eminent Persons to the Book (New York, 1869), p. 54, Joseph  Hornblower, chief justice of New Jersey. Updegraph v. The Commonwealth, 11 S. & R. 394, 399 (Sup. Ct. Pa. 1824); Richmond v. Moore, 107 Ill. 429, 1883 WL 10319 (Ill.), 47 Am.Rep. 445 (Ill. 1883); State v. Mockus, 14 ALR 871, 874 (Maine Sup. Jud. Ct., 1921); Cason v. Baskin, 20 So.2d 243, 247 (Fla. 1944) (en banc); Stollenwerck v. State, 77 So. 52, 54 (Ala. Ct. App. 1917) (Brown, P. J. concurring); Gillooley v. Vaughn, 110 So. 653, 655 (Fla. 1926), citing Theisen v. McDavid, 16 So. 321, 323 (Fla. 1894); Rogers v. State, 4 S.E.2d 918, 919 (Ga. Ct. App. 1939); Brimhall v. Van Campen, 8 Minn. 1 (1858); City of Ames v. Gerbracht, 189 N.W. 729, 733 (Iowa 1922); Ruiz v. Clancy, 157 So. 737, 738 (La. Ct. App. 1934), citing Caldwell v. Henmen, 5 Rob. 20; Beaty v. McGoldrick, 121 N.Y.S.2d 431, 432 (N.Y. Sup. Ct. 1953); Ex parte Mei, 192 A. 80, 82 (N.J. 1937); State v. Donaldson, 99 P. 447, 449 (Utah 1909); De Rinzie v. People, 138 P. 1009, 1010 (Colo. 1913); Addison v. State, 116 So. 629 (Fla. 1928); State v. Gould, 46 S.W.2d 886, 889-890 (Mo. 1932); Doll v. Bender, 47 S.E. 293, 300 (W.Va. 1904) (Dent, J. concurring); and many others. See also, Joseph Story, A Discourse Pronounced upon the Inauguration of the Author, as Dane Professor of Law in Harvard University, on the Twenty-Fifth Day of August, 1829 (Boston: Hilliard, Gray, Little, and Wilkins, 1829), pp. 20-21. John Adams, The Works of John Adams, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1851), Vol. III, p. 439, “On Private Revenge,” originally published in the Boston Gazette, September 5, 1763. James Wilson, The Works of the Honourable James Wilson, Bird Wilson, editor (Philadelphia: Lorenzo Press, 1804), Vol. I, p. 104, “Of the General Principles of Law and Obligation.” Church of the Holy Trinity v. United States, 143 U.S. 457, 470-471 (1892); Shover v. State, 10 Ark. 259, 263 (1850); People v. Ruggles, 8 Johns 225 (1811). Reports of the Proceedings and Debates of the Convention of 1821, assembled for the purpose of amending the Constitution of the State of New York, Nathaniel H. Carter and William L. Stone, reporters (Albany: E. and E. Hosford, 1821), p. 576, October 31, 1821. Charles B. Galloway, Christianity and the American Commonwealth (Nashville: Publishing House Methodist Episcopal Church, 1898), pp. 170-171. Lindenmuller v. The People, 33 Barb 548, 560-564, 567 (Sup. Ct. NY 1861); Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (Sup.Ct.Fla. 1941). And many others.

6Grigsby v. Reib, 153 S.W. 1124, 1129-30 (Tex.Sup.Ct. 1913).

7 Article I, Section 8 lists fifteen powers permissible to the federal government; two additional federal powers are added through constitutional amendments, thus bringing the total number of constitutionally-authorized federal jurisdictions to seventeen.

8 Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 374, to Judge William Johnson on June 12, 1823.

9 Thomas Jefferson, Memoir, Correspondence, and Miscellanies, From the Papers of Thomas Jefferson, Thomas Jefferson Randolph, editor (Boston: Gray and Bowen, 1830), Vol. IV, p. 374, to Judge William Johnson on June 12, 1823.

10 Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 332, to Charles Hammond on August 18, 1821.

11 Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 277, to William Charles Jarvis on September 28, 1820.

12 Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 277, to William Charles Jarvis on September 28, 1820.

13 Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 277, to William Charles Jarvis on September 28, 1820.

14 Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 215, to Judge Spencer Roane on September 6, 1819.

15 Samuel Adams, The Writings of Samuel Adams, Harry Alonzo Cushing, editor (New York: G. P. Putnam’s Sons, 1907), Vol. III, to Mrs. Adams on January 29, 1777.

16 John Jay, The Life of John Jay: With Selections from His Correspondence and Miscellaneous Papers, William Jay, editor (New York: J & J Harper, 1833), Vol. II, p. 174, to the Reverend Richard Price on September 27, 1785.

17 John Witherspoon, Dominion of Providence Over the Passions of Men. A Sermon Preached at Princeton on the 17th of May, 1776. Being the General Fast Appointed by the Congress Through the United Colonies (Philadelphia: 1777), p. 32.

18 Elbridge S. Brooks, Historic Americans: Sketches of the Lives and Characters of Certain Famous Americans (New York: Thomas Y. Crowell & Company, 1899), p. 209.

Was George Washington a Christian?

This is a question often asked today, and it arises from the efforts of those who seek to impeach Washington’s character by portraying him as irreligious. Interestingly, Washington’s own contemporaries did not question his Christianity but were thoroughly convinced of his devout faith–a fact made evident in the first-ever compilation of the The Writings of George Washington, published in the 1830s.

That compilation of Washington’s writings was prepared and published by Jared Sparks (1789-1866), a noted writer and historian. Sparks’ herculean historical productions included not only the writings of George Washington (12 volumes) but also Benjamin Franklin (10 volumes) and Constitution signer Gouverneur Morris (3 volumes). Additionally, Sparks compiled the Library of American Biography (25 volumes), The Diplomatic Correspondence of the American Revolution (12 volumes), and the Correspondence of the American Revolution (4 volumes). In all, Sparks was responsible for some 100 historical volumes. Additionally, Sparks was America’s first professor of history–other than ecclesiastical history–to teach at the college level in the United States, and he was later chosen president of Harvard.

Jared Sparks’ decision to compile George Washington’s works is described by The Dictionary of American Biography. It details that Sparks began . . .

. . . what was destined to be his greatest life work, the publication of the writings of George Washington. [Supreme Court] Justice Bushrod Washington, [the nephew of George Washington, the executor of the Washington estate, and] the owner of the Washington manuscripts, was won over by an offer to share the profits, through the friendly mediation of Chief Justice [of the Supreme Court, John] Marshall [who from 1804-1807 had written a popular five volume biography of George Washington], who also consented to take an equal share, twenty-five per cent, with the owner. In January 1827, Sparks found himself alone at Mount Vernon with the manuscripts. An examination of them extending over three months showed that years would be required for the undertaking; and with the owner’s consent, Sparks carried off the entire collection, eight large boxes, picking up on the way to Boston a box of diplomatic correspondence from the Department of State, and the [General Horatio] Gates manuscripts from the New York Historical Society. Not content with these, he searched or caused to be searched public and private archives for material, questioned survivors of the Revolution, visited and mapped historic sites. In 1830, for instance, he followed [Benedict] Arnold’s [1775] route to Quebec. The first of the twelve volumes of The Writings of George Washington to be published (vol. II) appeared in 1834 and the last (vol. I, containing the biography) in 1837.

In Volume XII of these writings, Jared Sparks delved into the religious character of George Washington, and included numerous letters written by the friends, associates, and family of Washington which testified of his religious character. Based on that extensive evidence, Sparks concluded:

To say that he [George Washington] was not a Christian would be to impeach his sincerity and honesty. Of all men in the world, Washington was certainly the last whom any one would charge with dissimulation or indirectness [hypocrisies and evasiveness]; and if he was so scrupulous in avoiding even a shadow of these faults in every known act of his life, [regardless of] however unimportant, is it likely, is it credible, that in a matter of the highest and most serious importance [his religious faith, that] he should practice through a long series of years a deliberate deception upon his friends and the public? It is neither credible nor possible.

One of the letters Sparks used to arrive at his conclusion was from Nelly Custis-Lewis. While Nelly technically was the granddaughter of the Washingtons, in reality she was much more.

When Martha [Custis] married George, she was a widow and brought two young children (John and Martha–also called Patsy) from her first marriage into her marriage with George. The two were carefully raised by George and Martha, later married, and each had children of their own. Unfortunately, tragedy struck, and both John and Patsy died early (by 1781). John left behind his widow and four young children ranging in age from infancy to six years old.

At the time, Washington was still deeply involved in guiding the American Revolution and tried unsuccessfully to convince Martha’s brother to raise the children. The young widow of John was unable to raise all four, so George and Martha adopted the two younger children: Nelly Parke Custis and George Washington Parke Custis, both of whom already were living at Mount Vernon.

Nelly lived with the Washingtons for twenty years, from the time of her birth in 1779 until 1799, the year of her marriage and of George Washington’s untimely death. She called George and Martha her “beloved parents whom I loved with so much devotion, to whose unceasing tenderness I was indebted for every good I possessed.”

Nelly was ten years old when Washington was called to the Presidency, and she grew to maturity during his two terms. During that time, she traveled with Washington and walked amidst the great foreign and domestic names of the day. On Washington’s retirement, she returned with the family to Mount Vernon. Nelly was energetic, spry, and lively, and was the joy of George Washington’s life. She served as a gracious hostess and entertained the frequent guests to Mount Vernon who visited the former President.

On Washington’s birthday in 1799, Nelly married Washington’s private secretary, Lawrence Lewis. They spent several months on an extended honeymoon, visiting friends and family across the country. On their return to Mount Vernon, she was pregnant and late that year gave birth to a daughter. A short few weeks later, on December 14, General Washington was taken seriously ill and died.

Clearly, Nelly was someone who knew the private and public life of her “father” very well. Therefore, Jared Sparks, in searching for information on Washington’s religious habits, dispatched a letter to Nelly, asking if she knew for sure whether George Washington indeed was a Christian. Within a week, she had replied to Sparks, and Sparks included her letter in Volume XII of Washington’s writings in the lengthy section on Washington’s religious habits. Of that specific letter, Jared Sparks explained:

I shall here insert a letter on this subject, written to me by a lady who lived twenty years in Washington’s family and who was his adopted daughter, and the granddaughter of Mrs. Washington. The testimony it affords, and the hints it contains respecting the domestic habits of Washington, are interesting and valuable.”

Woodlawn, 26 February, 1833.

Sir,

I received your favor of the 20th instant last evening, and hasten to give you the information, which you desire.

Truro [Episcopal] Parish is the one in which Mount Vernon, Pohick Church [the church where George Washington served as a vestryman], and Woodlawn [the home of Nelly and Lawrence Lewis] are situated. Fairfax Parish is now Alexandria. Before the Federal District was ceded to Congress, Alexandria was in Fairfax County. General Washington had a pew in Pohick Church, and one in Christ Church at Alexandria. He was very instrumental in establishing Pohick Church, and I believe subscribed [supported and contributed to] largely. His pew was near the pulpit. I have a perfect recollection of being there, before his election to the presidency, with him and my grandmother. It was a beautiful church, and had a large, respectable, and wealthy congregation, who were regular attendants.

He attended the church at Alexandria when the weather and roads permitted a ride of ten miles [a one-way journey of 2-3 hours by horse or carriage]. In New York and Philadelphia he never omitted attendance at church in the morning, unless detained by indisposition [sickness]. The afternoon was spent in his own room at home; the evening with his family, and without company. Sometimes an old and intimate friend called to see us for an hour or two; but visiting and visitors were prohibited for that day [Sunday]. No one in church attended to the services with more reverential respect. My grandmother, who was eminently pious, never deviated from her early habits. She always knelt. The General, as was then the custom, stood during the devotional parts of the service. On communion Sundays, he left the church with me, after the blessing, and returned home, and we sent the carriage back for my grandmother.

It was his custom to retire to his library at nine or ten o’clock where he remained an hour before he went to his chamber. He always rose before the sun and remained in his library until called to breakfast. I never witnessed his private devotions. I never inquired about them. I should have thought it the greatest heresy to doubt his firm belief in Christianity. His life, his writings, prove that he was a Christian. He was not one of those who act or pray, “that they may be seen of men” [Matthew 6:5]. He communed with his God in secret [Matthew 6:6].

My mother [Eleanor Calvert-Lewis] resided two years at Mount Vernon after her marriage [in 1774] with John Parke Custis, the only son of Mrs. Washington. I have heard her say that General Washington always received the sacrament with my grandmother before the revolution. When my aunt, Miss Custis [Martha’s daughter] died suddenly at Mount Vernon, before they could realize the event [before they understood she was dead], he [General Washington] knelt by her and prayed most fervently, most affectingly, for her recovery. Of this I was assured by Judge [Bushrod] Washington’s mother and other witnesses.

He was a silent, thoughtful man. He spoke little generally; never of himself. I never heard him relate a single act of his life during the war. I have often seen him perfectly abstracted, his lips moving, but no sound was perceptible. I have sometimes made him laugh most heartily from sympathy with my joyous and extravagant spirits. I was, probably, one of the last persons on earth to whom he would have addressed serious conversation, particularly when he knew that I had the most perfect model of female excellence [Martha Washington] ever with me as my monitress, who acted the part of a tender and devoted parent, loving me as only a mother can love, and never extenuating [tolerating] or approving in me what she disapproved of others. She never omitted her private devotions, or her public duties; and she and her husband were so perfectly united and happy that he must have been a Christian. She had no doubts, no fears for him. After forty years of devoted affection and uninterrupted happiness, she resigned him without a murmur into the arms of his Savior and his God, with the assured hope of his eternal felicity [happiness in Heaven]. Is it necessary that any one should certify, “General Washington avowed himself to me a believer in Christianity?” As well may we question his patriotism, his heroic, disinterested devotion to his country. His mottos were, “Deeds, not Words”; and, “For God and my Country.”

With sentiments of esteem,

I am, Nelly Custis-Lewis

George Washington’s adopted daughter, having spent twenty years of her life in his presence, declared that one might as well question Washington’s patriotism as question his Christianity. Certainly, no one questions his patriotism; so is it not rather ridiculous to question his Christianity? George Washington was a devout Episcopalian; and although as an Episcopalian he would not be classified as an outspoken and extrovert “evangelical” Founder as were Founding Fathers like Benjamin Rush, Roger Sherman, and Thomas McKean, nevertheless, being an Episcopalian makes George Washington no less of a Christian. Yet for the current revisionists who have made it their goal to assert that America was founded as a secular nation by secular individuals and that the only hope for America’s longevity rests in her continued secularism, George Washington’s faith must be sacrificed on the altar of their secularist agenda.

For much more on George Washington and the evidences of his strong faith, examine the following sources:

  • George Washington, The Writings of George Washington, Jared Sparks, editor (Boston: Ferdinand Andrews, Publisher, 1838), Vol. XII, pp. 399-411.
  • George Washington, The Religious Opinions of Washington, E. C. M’Guire, editor (New York: Harper & Brothers, 1836).
  • William Johnson, George Washington The Christian (1917).
  • William Jackson Johnstone, How Washington Prayed (New York: The Abingdon Press, 1932).
  • The Messages and Papers of the Presidents, James D. Richardson, editor (Published by the Authority of Congress, 1899), Vol. I, pp. 51-57 (1789), 64 (1789), 213-224 (1796), etc.
  • George Washington, Address of George Washington, President of the United States, Late Commander in Chief of the American Army, to the People of the United States, Preparatory to his Declination (Baltimore: George & Henry S. Keatinge, 1796), pp. 22-23.
  • George Washington, The Maxims of Washington (New York: D. Appleton and Co., 1855).

* Originally Posted: Dec. 31, 2016.

Affidavit in Support of the Ten Commandments

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

 

SARAH DOE and THOMAS DOE, on behalf of themselves and their minor child, JAN DOE Plaintiffs,

v

Civil Action No. 99-508 HARLAN COUNTY SCHOOL DISTRICT; DON MUSSELMAN, in his official capacity

as Superintendent of the Harlan Country School District, Defendents.

Upon being duly sworn by the undersigned officer empowered to administer and attest to oaths, the Affiant, David Barton, testifies as follows:

  1. I am a recognized authority in American history, particularly concerning the Colonial, Revolutionary, and Federal Eras.
  2. I personally own a vast collection of thousands of documents of American history predating 1812, including handwritten works of the signers of the Declaration and the Constitution.
  3. As a result of my expertise, I work as a consultant to national history textbook publishers and have been appointed by the State Boards of Education in States such as California and Texas to help write the American history and government standards for students in those States. Additionally, I consult with Governors and State Boards of Education in several other States and have testified in numerous State Legislatures on American history.
  4. I am the recipient of several national and international awards, including the George Washington Honor Medal, the Daughters of the American Revolution Medal of Honor, Who’s Who in America (1997, 1999), Who’s Who in the World (1996, 1999), Who’s Who in American Education (1996, 1997), International Who’s Who of Professionals (1996), Two Thousand Notable American Men Hall of Fame (1995), Who’s Who in the South and Southwest (1995, 1999), Who’s Who Among Outstanding Americans (1994), Outstanding Young Men in America (1990), and numerous other awards.
  5. I have also written and published numbers of books and articles on American history and its related issues. (Original Intent, 1996; Bulletproof George Washington, 1990; Ethics: An Early American Handbook, 1999; Lives of the Signers of the Declaration of Independence, 1995, and many others).
  6. I offer the following opinion regarding whether the Ten Commandments are a historical document in America’s civil and judicial history based upon my expertise and study in the areas of American history and the forces and ideas that formed the basis for our system of laws and government.

INTRODUCTION

  1. Opponents to the public display of the Ten Commandments offer several grounds for their objections, including that “there is no ‘standard version’ of the Ten Commandments”;1 that “there is not agreement on exactly what constitutes the Ten Commandments”;2 and that “the Ten Commandments are not a ‘secular’ moral code that everyone can agree on”3 and therefore are not appropriate to be included in a display of documents that have helped shape America’s history. In fact, these groups warn that “if the Decalog [sic] was publicly displayed” it “could create religious friction, leading to feelings of anger and of marginalization” and that “these emotions are precisely the root causes of the Columbine High School tragedy.”4
  2. The Decalogue addresses what were long considered to be man’s vertical and horizontal duties. Noah Webster, the man personally responsible for Art. I, Sec. 8, ¶ 8, of the U. S. Constitution, explained two centuries ago:

The duties of men are summarily comprised in the Ten Commandments, consisting of two tables; one comprehending the duties which we owe immediately to God— the other, the duties we owe to our fellow men.5

  1. Modern critics, while conceding “six or five Commandments are moral and ethical rules governing behavior,”6 also point out that because the remaining “four of the Ten Commandments are specifically religious in nature,”7 that this fact alone should disqualify their display. They assert that only one of the two “tablets” of the Ten Commandments is appropriate for public display.8
  2. In an effort to substantiate this position historically, critics often point to the Rhode Island Colony under Roger Williams and its lack of civil laws on the first four commandments to “prove” that American society was traditionally governed without the first “tablet.”9 However, they fail to mention that the Rhode Island Colony was the only one of the thirteen colonies that did not have civil laws derived from the first four divine laws10—the so-called first “tablet.” Significantly, every other early American colony incorporated the entire Decalogue into its own civil code of laws.
  3. This affidavit will demonstrate that, historically speaking, neither courts nor civil officers were confused or distracted by the so-called “various versions” of the Decalogue and that each of the Ten Commandments became deeply embedded in both American law and jurisprudence. This affidavit will establish that a contemporary display of the Ten Commandments is the display of a legal and historical document that dramatically impacted American law and culture with a force similar only to that of the Declaration of Independence, the Constitution, and the Bill of Rights.

THE INCORPORATION OF DIVINE LAW INTO AMERICAN COLONIAL LAW

  1. The Ten Commandments are a smaller part of the larger body of divine law recognized and early incorporated into America’s civil documents. For example, the Fundamental Orders of Connecticut—established in 1638-39 as the first written constitution in America and considered as the direct predecessor of the U. S. Constitution11—declared that the Governor and his council of six elected officials would “have power to administer justice according to the laws here established; and for want thereof according to the rule of the word of God.”12
  2. Also in 1638, the Rhode Island government adopted “all those perfect and most absolute laws of His, given us in His holy word of truth, to be guided and judged thereby. Exod. 24. 3, 4; 2 Chron. II. 3; 2 Kings. II. 17.”13
  3. The following year, 1639, the New Haven Colony adopted its “Fundamental Articles” for the governance of that Colony, and when the question was placed before the colonists:

Whether the Scriptures do hold forth a perfect rule for the direction and government of all men in all dut[ies] which they are to perform to God and men as well in the government of families and commonwealths as in matters of the church, this was assented unto by all, no man dissenting as was expressed by holding up of hands.14

  1. In 1672, Connecticut revised its laws and reaffirmed its civil adherence to the laws established in the Scriptures, declaring:

The serious consideration of the necessity of the establishment of wholesome laws for the regulating of each body politic hath inclined us mainly in obedience unto Jehovah the Great Lawgiver, Who hath been pleased to set down a Divine platform not only of the moral but also of judicial laws suitable for the people of Israel; as . .. laws and constitutions suiting our State.15

  1. Significantly, those same legal codes delineated their capital laws in a separate section, and following each capital law was given the Bible verse on which that law was based16 because:

No man’s life shall be taken away . . . unless it be by the virtue or equity of some express law of the country warranting the same, established by a general court and sufficiently published, or in case of the defect of a law, in any particular case, by the Word of God.17 (emphasis added)

  1. There are other similar examples, but it is a matter of historical fact that the early colonies adopted the greater body of divine laws as the overall basis of their civil laws. Subsequent to the adoption of that general standard, however, the specifics of the Decalogue were then incorporated into the civil statutes.

WHICH ARE THE TEN COMMANDMENTS?

  1. In order to avoid the alleged misunderstanding that critics claim accompanies the reading of the Decalogue, for the purposes of this affidavit, these Commandments as listed in the Bible in Exodus 20:3-17 and Deuteronomy 5:7-21 (and in a shortened version in Exodus 34:14-28) will be summarized as:

Have no other gods.

Have no idols.

Honor God’s name.

Honor the Sabbath day.

Honor your parents.

Do not murder.

Do not commit adultery.

Do not steal.

Do not perjure yourself.

Do not covet.

  1. The following sections will fully demonstrate that each of these commandments was individually encoded in the civil laws, and consequently became a part of the common law of the various colonies.

HOW THE TEN COMMANDMENTS ARE EXPRESSED IN CIVIL LAW IN AMERICAN HISTORY

Have no other gods.

  1. This first commandment of the Decalogue is incorporated into the very first written code of laws enacted in America, those of the Virginia Colony. In 1610, in a law enacted by the Colony leaders, it was declared:

[S]ince we owe our highest and supreme duty, our greatest and all our allegiance to Him from whom all power and authority is derived, and flows as from the first and only fountain, and being especially soldiers impressed in this sacred cause, we must alone expect our success from Him who is only the blesser of all good attempts, the King of kings, the Commander of commanders, and Lord of hosts, I do strictly command and charge all Captains and Officers of what quality or nature soever, whether commanders in the field, or in town or towns, forts or fortresses, to have a care that the Almighty God be duly and daily served, and that they call upon their people to hear sermons, as that also they diligently frequent morning and evening prayer themselves by their own example and daily life and duties herein, encouraging others thereunto.18

  1. A subsequent 1641 Massachusetts legal code also incorporated the thrust of this command of the Decalogue into its statutes. Significantly, the very first law in that State code was based on the very first command of the Decalogue, declaring:
  2. If any man after legal conviction shall have or worship any other god but the Lord God, he shall be put to death. Deut. 13.6, 10, Deut. 17.2, 6, Ex. 22.20.19
  3. The 1642 Connecticut law code also made this command of the Decalogue its first civil law, declaring:
  4. If any man after legal conviction shall have or worship any other god but the Lord God, he shall be put to death (Duet. 13.6 and 17.2, Ex. 22.20).20
  5. There are numerous other examples affirming that the first commandment of the Decalogue indeed formed an historical part of American civil law.

Have no idols.

  1. Typical of the civil laws prohibiting idolatry was a 1680 New Hampshire idolatry law that declared:

Idolatry. It is enacted by ye Assembly and ye authority thereof, yet if any person having had the knowledge of the true God openly and manifestly have or worship any other god but the Lord God, he shall be put to death. Ex. 22.20, Deut. 13.6 and 10.21

  1. Additional examples from colonial codes demonstrate that the second commandment also was historically a part of American civil law.

Honor God’s name.

  1. Civil laws enacted to observe this commandment were divided into two categories: laws prohibiting blasphemy and laws prohibiting swearing and profanity. Noah Webster, an American legislator and judge, affirms that both of these categories of laws were derived from the third commandment of the Decalogue:

When in obedience to the third commandment of the Decalogue you would avoid profane swearing, you are to remember that this alone is not a full compliance with the prohibition which [also] comprehends all irreverent words or actions and whatever tends to cast contempt on the Supreme Being or on His word and ordinances [i.e., blasphemy].22

  1. Reflecting the civil enactment of these two categories embodying the third commandment, a 1610 Virginia law declared:
  2. That no man speak impiously or maliciously against the holy and blessed Trinity or any of the three persons . . . upon pain of death. 3. That no man blaspheme God’s holy name upon the pain of death.23
  3. A 1639 law of Connecticut similarly declared:

If any person shall blaspheme the name of God the Father, Son, or Holy Ghost, with direct, express, presumptuous or high-handed blasphemy, or shall curse in the like manner, he shall be put to death. Lev. 24.15, 16.24

  1. Similar laws can be found in Massachusetts in 1641,25 Connecticut in 1642,26 New Hampshire in 1680,27 Pennsylvania in 1682,28 1700,29 and 1741,30 South Carolina in 1695,31 North Carolina in 1741,32 etc. Additionally, prominent Framers also enforced the Decalogue’s third command.
  2. For example, Commander-in-Chief George Washington issued numerous military orders during the American Revolution that first prohibited swearing and then ordered an attendance on Divine worship, thus relating the prohibition against profanity to a religious duty. Typical of these orders, on July 4, 1775, Washington declared:

The General most earnestly requires and expects a due observance of those articles of war established for the government of the army which forbid profane cursing, swearing, and drunkenness; and in like manner requires and expects of all officers and soldiers not engaged on actual duty, a punctual attendance on Divine Service to implore the blessings of Heaven upon the means used for our safety and defense.33

  1. Washington began issuing such orders to his troops as early as 1756 during the French and Indian War,34 and continued the practice throughout the American Revolution, issuing similar orders in 1776,35 1777,36 1778,37 etc.
  2. This civil prohibition against blasphemy and profanity drawn from the Decalogue continued well beyond the Founding Era. It subsequently appeared in the 1784 laws in Connecticut,38 the 1791 laws of New Hampshire,39 the 1791 laws of Vermont,40 the 1792 laws of Virginia,41 the 1794 laws of Pennsylvania,42 the 1821 laws of Maine,43 the 1834 laws of Tennessee,44 the 1835 laws of Massachusetts,45 the 1836 laws of New York,46 etc.
  3. Judge Zephaniah Swift, author in 1796 of the first legal text published in America, explained why civil authorities enforced the Decalogue prohibition against blasphemy and profane swearing:

Crimes of this description are not punishable by the civil arm merely because they are against religion. Bold and presumptuous must he be who would attempt to wrest the thunder of heaven from the hand of God and direct the bolts of vengeance where to fall. The Supreme Deity is capable of maintaining the dignity of His moral government and avenging the violations of His holy laws. His omniscient mind estimates every act by the standard of perfect truth and His impartial justice inflicts punishments that are accurately proportioned to the crimes. But shortsighted mortals cannot search the heart and punish according to the intent. They can only judge by overt acts and punish them as they respect the peace and happiness of civil society. This is the rule to estimate all crimes against civil law and is the standard of all human punishments. It is on this ground only that civil tribunals are authorized to punish offences against religion.47

  1. In 1824, the Supreme Court of Pennsylvania (in a decision subsequently invoked authoritatively and endorsed by the U. S. Supreme Court48) reaffirmed that the civil laws against blasphemy were derived from divine law:

The true principles of natural religion are part of the common law; the essential principles of revealed religion are part of the common law; so that a person vilifying, subverting or ridiculing them may be prosecuted at common law.49

The court then noted that its State’s laws against blasphemy had been drawn up by James Wilson, a signer of the Constitution and original Justice on the U. S. Supreme Court:

The late Judge Wilson, of the Supreme Court of the United States, Professor of Law in the College in Philadelphia, was appointed in 1791, unanimously by the House of Representatives of this State to “revise and digest the laws of this commonwealth. . . . ” He had just risen from his seat in the Convention which formed the Constitution of the United States, and of this State; and it is well known that for our present form of government we are greatly indebted to his exertions and influence. With his fresh recollection of both constitutions, in his course of Lectures (3d vol. of his works, 112), he states that profaneness and blasphemy are offences punishable by fine and imprisonment, and that Christianity is part of the common law. It is vain to object that the law is obsolete; this is not so; it has seldom been called into operation because this, like some other offences, has been rare. It has been retained in our recollection of laws now in force, made by the direction of the legislature, and it has not been a dead letter.50

  1. The Decalogue’s influence on profanity and blasphemy laws was reaffirmed by subsequent courts, such as the 1921 Supreme Court of Maine,51 the 1944 Supreme Court of Florida,52 and others.53
  2. Many additional sources may be cited, but it is clear that the civil laws against both profanity and blasphemy—many of which are still in force today—were originally derived from the divine law and the Ten Commandments. These examples unquestionably demonstrate that the third commandment of the Decalogue was an historical part of American civil law and jurisprudence.

Honor the Sabbath day.

  1. The civil laws enacted to uphold this injunction are legion and are far too numerous for any exhaustive listing to be included in this brief affidavit. While a representative sampling will be presented below, there are three points that clearly establish the effect of the fourth commandment of the Decalogue on American law.
  2. First is the inclusion in the U. S. Constitution of the recognition of the Sabbath in Art. I, Sec. 7, ¶ 2, stipulating that the President has 10 days to sign a law, “Sundays excepted.” The “Sundays excepted” clause had previously appeared in the individual State constitutions of that day, and therefore, when incorporated into the U. S. Constitution, carried the same meaning that had been established by traditional usage in the States. That meaning was then imparted into the constitutions of the various States admitted into the Union subsequent to the adoption of the federal Constitution. The historical understanding of this clause was summarized in 1912 by the Supreme Court of Missouri which, expounding on the meaning of this provision in its own State constitution and in the U. S. Constitution, declared:

It is provided that if the Governor does not return a bill within 10 days (Sundays excepted), it shall become a law without his signature. Although it may be said that this provision leaves it optional with the Governor whether he will consider bills or not on Sunday, yet, regard being had to the circumstances under which it was inserted, can any impartial mind deny that it contains a recognition of the Lord’s Day as a day exempted by law from all worldly pursuits? The framers of the Constitution, then, recognized Sunday as a day to be observed, acting themselves under a law which exacted a compulsive observance of it. If a compulsive observance of the Lord’s Day as a day of rest had been deemed inconsistent with the principles contained in the Constitution, can anything be clearer than, as the matter was so plainly and palpably before the Convention, a specific condemnation of the Sunday law would have been engrafted upon it? So far from it, Sunday was recognized as a day of rest.54

  1. The second point establishing the impact of the fourth commandment of the Decalogue on American law is seen in the civil process clauses of the early State legal codes which forbade legal action on the Sabbath. For example, an 1830 New York law declared:

Civil process cannot, by statute, be executed on Sunday, and a service of such process on Sunday is utterly void and subjects the officer to damages.55

  1. Similar laws may be found in Pennsylvania in 168256 and 1705,57 Vermont in 1787,58 Connecticut in 1796,59 New Jersey in 1798,60 etc.
  2. The third point establishing the long-standing effect of the fourth commandment on American law and jurisprudence is demonstrated by the fact that Sabbath laws remain constitutional today,61 and many communities still practice and enforce those laws.
  3. Examples of the early implementation of this fourth commandment into civil law are seen in the Virginia laws of 1610,62 the New Haven laws of 1653,63 the New Hampshire laws of 1680,64 the Pennsylvania laws of 168265 and 1705,66 the South Carolina laws of 1712,67 the North Carolina laws of 1741,68 the Connecticut laws of 1751,69 etc.
  4. In 1775, and throughout the American Revolution, Commander-in-Chief George Washington issued military orders directing that the Sabbath be observed. His order of May 2, 1778, at Valley Forge was typical:

The Commander in Chief directs that divine service be performed every Sunday at 11 o’clock in those brigades to which there are chaplains; those which have none to attend the places of worship nearest to them. It is expected that officers of all ranks will by their attendance set an example to their men.70

Washington issued numerous similar orders throughout the Revolution.71

  1. In the Federal Era and well beyond, states continued to enact and reenact Sabbath laws. In fact, the States went to impressive lengths to uphold the Sabbath. For example, in 1787, Vermont enacted a ten-part law to preserve the Sabbath;72 in 1791, Massachusetts enacted an eleven-part law;73 in 1792, Virginia enacted an extensive eight part law74—a law written by Thomas Jefferson and sponsored by James Madison;75 in 1798, New Jersey enacted a twenty-one-part law;76 in 1799, New Hampshire enacted a fourteen-part law;77 in 1821, Maine enacted a thirteen-part law;78 etc.79
  2. These Sabbath laws—and scores of others like them—were nothing less than the enactment of the fourth commandment in the Decalogue. In fact, in 1967, the Supreme Court of Pennsylvania provided a thorough historical exegesis of those laws and concluded:

“Remember the Sabbath day to keep it holy; six days shalt thou labor and do all thy work; but the seventh day is the Sabbath of the Lord thy God. In it thou shalt not do any work.” This divine pronouncement became part of the Common Law inherited by the thirteen American colonies and by the sovereign States of the American union.80

  1. In 1950, the Supreme Court of Mississippi had similarly declared:

The Sunday laws have a divine origin. Blackstone (Cooley’s) Par. 42, page 36. After the six days of creation, the Creator Himself rested on the Seventh. Genesis, Chapter 2, verses 2 and 3. Thus, the Sabbath was instituted, as a day of rest. The original example was later confirmed as a commandment when the law was handed down from Mt. Sinai: “Remember the Sabbath day, to keep it holy.”1

  1. Similar declarations may be found in the courts of numerous other States, including New York,82 Alabama,83 Florida, Oregon, and Kentucky,84 Georgia,85 Minnesota,86 etc.
  2. However, before any of these contemporary courts had acknowledged that the Sabbath laws were derived from the Decalogue, John Jay, the original Chief Justice of the U. S. Supreme Court, had confirmed that the source of civil Sabbath laws were the divine commands. As he explained:

There were several divine, positive ordinances . . . of universal obligation, as the Sabbath.87

  1. There are numerous other examples demonstrating that the fourth commandment of the Decalogue played an important historical role in American civil law.
  2. While contemporary critics argue that the first four commands of the Decalogue were inconsequential in our history or that they should not be publicly displayed today, the facts prove that they exerted a substantial influence on American law and jurisprudence. In fact, the 1922 Iowa Supreme Court rejected the assertion that only one side of the Decalogue was important to American law, declaring:

The observance of Sunday is one of our established customs. It has come down to us from the same Decalogue that prohibited murder, adultery, perjury, and theft. It is more ancient than our common law or our form of government. It is recognized by Constitutions and legislative enactments, both State and federal. On this day Legislatures adjourn, courts cease to function, business is suspended, and nationwide our citizens cease from labor.88

  1. Whether individuals today agree with those early laws based on the first four commandments in the Decalogue in no manner lessens their historical impact.

Honor your parents.

  1. This fifth command begins the so-called second “tablet” of the Decalogue—the section addressing “civil” behavior that even critics acknowledge to be appropriate for public display.89 This portion of the Decalogue formed the basis of many of our current criminal laws and modern courts are not reticent to acknowledge and enforce these commandments. As the Supreme Court of Indiana declared in 1974:

Virtually all criminal laws are in one way or another the progeny of Judeo-Christian ethics. We have no intention to overrule the Ten Commandments.90

  1. Yet the mandates of the Decalogue currently embodied in our criminal laws are no less religiously-based than were the first four commandments. For example, a 1642 Connecticut law addressing the fifth commandment specifically cited both the Decalogue and additional Bible verses as the basis for its civil laws related to honoring parents:

If any child or children above sixteen years old, and of sufficient understanding shall curse or smite their normal father or mother, he or they shall be put to death; unless it can be sufficiently testified that the parents have been very unchristianly negligent in the education of such children, or so provoke them by extreme and cruel correction that they have been forced thereunto to preserve themselves from death [or] maiming. Ex. 21:17, Lev. 20, Ex. 20:15.91

This law also appears in other State codes as well.92

  1. Even three centuries after these early legal codes, this commandment was still influencing civil laws—as confirmed in 1934 by a Louisiana appeals court that cited the fifth commandment of the Decalogue as the basis of civil policy between parents and children:

“ ‘Honor thy father and thy mother,’ is as much a command of the municipal law as it is a part of the Decalogue, regarded as holy by every Christian people. ‘A child,’ says the code, ‘whatever be his age, owes honor and respect to his father and mother.’ ”93

  1. Other courts have made similar declarations,94 all confirming that the fifth commandment of the Decalogue was an historical part of American civil law and jurisprudence.

Do not murder.

  1. The next several commands form much of the heart of our criminal laws, and, as noted by Noah Webster, one of the first founders to call for the Constitutional Convention, the divine law is the original source of several of those criminal laws:

The opinion that human reason left without the constant control of Divine laws and commands will . . . give duration to a popular government is as chimerical as the most extravagant ideas that enter the head of a maniac. . . . Where will you find any code of laws among civilized men in which the commands and prohibitions are not founded on Christian principles? I need not specify the prohibition of murder, robbery, theft, [and] trespass.95

  1. The early civil laws against murder substantiate the influence of the Decalogue and divine laws on American criminal laws. For example, a 1641 Massachusetts law declared:
  2. Ex. 21.12, Numb. 35.13, 14, 30, 31. If any person commit any willful murder, which is manslaughter committed upon premeditated malice, hatred, or cruelty, not in a man’s necessary and just defense nor by mere casualty against his will, he shall be put to death.
  3. Numb. 25.20, 21. Lev. 24.17. If any person slayeth another suddenly in his anger or cruelty of passion, he shall be put to death.
  4. Ex. 21.14. If any person shall slay another through guile, either by poisoning or other such devilish practice, he shall be put to death.96
  5. Perhaps the point is too obvious to belabor, but similar provisions can be found in the Connecticut laws of 1642,97 the New Hampshire laws of 1680,98 etc.
  6. Courts, too, have been very candid in tracing civil murder laws back to the Decalogue. For example, a 1932 Kentucky appeals court declared:

The rights of society as well as those of appellant are involved and are also to be protected, and to that end all forms of governments following the promulgation of Moses at Mt. Sinai has required of each and every one of its citizens that “Thou shalt not murder.” If that law is violated, the one guilty of it has no right to demand more than a fair trial, and if, as a result thereof, the severest punishment for the crime is visited upon him, he has no one to blame but himself.99

  1. Even the “severest punishment for the crime” is traced back to divine laws. As first Chief Justice John Jay explained:

There were several divine, positive ordinances . . . of universal obligation, as . . . the particular punishment for murder.100

  1. There certainly exist more than sufficient cases101 with declarations similar to that made by the Kentucky court above to demonstrate that the sixth commandment of the Decalogue exerted substantial force on American civil law and jurisprudence.

Do not commit adultery.

  1. Directly citing the Decalogue, a 1641 Massachusetts law declared:

If any person committeth adultery with a married or espoused wife, the adulterer and adulteresses shall surely be put to death. Ex. 20.14.102

  1. Other States had similar laws, such as Connecticut in 1642,103 Rhode Island in 1647,104 New Hampshire in 1680,105 Pennsylvania in 1705,106 etc. In fact, in 1787, nearly a century-and-a-half after the earliest colonial laws, Vermont enacted an adultery law, declaring that it was based on divine law:

Whereas the violation of the marriage covenant is contrary to the command of God and destructive to the peace of families: be it therefore enacted by the general assembly of the State of Vermont that if any man be found in bed with another man’s wife, or woman with another’s husband, . . . &c.107

  1. Subsequent civil laws on adultery passed in other States used the same basis for their own laws.108
  2. Two-and-a-half centuries later, courts were still using divine laws and the Decalogue as the basis for the enforcement of their own State statutes on the subject. For example, in 1898, the highest criminal court in Texas declared that its State laws on adultery were derived from the Decalogue:

The accused would insist upon the defense that the female consented. The state would reply that she could not consent. Why? Because the law prohibits, with a penalty, the completed act. “Thou shalt not commit adultery” is our law as well as the law of the Bible.109

  1. Half-a-century later in 1955, the Washington Supreme Court declared that the Decalogue was the basis of its State laws against adultery:

Adultery, whether promiscuous or not, violates one of the Ten Commandments and the statutes of this State.110

  1. Other courts made similar declarations.111 These and numerous additional examples demonstrate that the seventh commandment of the Decalogue was an historical part of American civil law and jurisprudence.

Do not steal.

  1. The laws regarding theft that indicate their reliance on divine law and the Decalogue are far too numerous even to begin listing. Perhaps the simplest summation is given by Chancellor James Kent, who is considered, along with Justice Joseph Story, as one of the two “Fathers of American Jurisprudence.” In his classic 1826 Commentaries on American Law, Kent confirmed that the prohibitions against theft were found in divine law:

To overturn justice by plundering others tended to destroy civil society, to violate the law of nature, and the institutions of Heaven.112

  1. Subsequent to James Kent, numerous other legal sources have reaffirmed the divine origin of the prohibition against theft. For example, in 1951, the Louisiana Supreme Court acknowledged the Decalogue as the basis for the unchanging civil laws against theft:

In the Ten Commandments, the basic law of all Christian countries, is found the admonition “Thou shalt not steal.”113

  1. In 1940, the Supreme Court of California had made a similar acknowledgment:

Defendant did not acknowledge the dominance of a fundamental precept of honesty and fair dealing enjoined by the Decalogue and supported by prevailing moral concepts. “Thou shalt not steal” applies with equal force and propriety to the industrialist of a complex civilization as to the simple herdsman of ancient Israel.114

  1. Significantly, other courts acknowledged the same, including the Utah Supreme Court,115 the Colorado Supreme Court,116 the Florida Supreme Court,117 the Missouri Supreme Court,118 etc.
  2. However, the eighth commandment of the Decalogue provided the foundation for civil laws other than just those against theft. For example, in 1904, an Appeals Court in West Virginia cited the eighth commandment of the Decalogue as the basis for laws protecting the integrity of elections:

[T]here are some people who at least profess to believe that elections, being human institutions, are governed solely by human inclinations, and are not subject to the supervision or control of that moral code of ethics promulgated by God through the greatest of all human law-givers from Sinai’s hoary summit. This, however, is a great and grievous error, for the eighth commandment, “Thou shalt not steal,” forbids not only larceny as defined in the Criminal Code, but also the unjust deprivation of every person’s civil, religious, political, and personal rights of life, liberty, reputation, and property—even though done under the sanction of legal procedure.119

  1. And in 1914, a federal court acknowledged that the Constitution’s “takings clause” was an embodiment of the Decalogue’s eighth commandment:

Bared to nakedness, the facts show that the Rochester Company simply coveted and desired its neighbor’s property, and to make this covetous purpose effective it seeks to violate, not only the act of congress, which says, “But this shall not be construed as requiring any such common carrier to give the use of its tracks or terminal facilities to another carrier engaged in like business,” but that constitutional provision which in effect but restates another of the Decalogue when it provides, “Nor shall private property be taken for public use without just compensation.”120

  1. There are numerous other examples demonstrating that the eighth commandment of the Decalogue was an historical part of American civil law and jurisprudence.

Do not perjure yourself.

  1. A 1642 Connecticut law against perjury acknowledged its basis to be in divine law, declaring:

If any man rise up by false witness, wittingly and of purpose, to take away any man’s life, he shall be put to death. Deut. 19:16, 18, 19.121

  1. Similar laws on perjury declaring their basis to be in divine law and the Decalogue may be found in Massachusetts in 1641,122 Rhode Island in 1647,123 New Hampshire in 1680,124 Connecticut in 1808,125 etc.
  2. Courts were also open in acknowledging their indebtedness to the Decalogue for the civil perjury laws. For example, 1924, the Oregon Supreme Court declared:

No official is above the law. “Thou shalt not bear false witness” is a command of the Decalogue, and that forbidden act is denounced by statute as a felony.126

  1. And in 1988, the Supreme Court of Mississippi, citing the Decalogue, reproached a prosecutor for introducing accusations during cross-examination of a defendant for which the prosecutor had no evidence:

When the State or any party states or suggests the existence of certain damaging facts and offers no proof whatever to substantiate the allegations, a golden opportunity is afforded the opposing counsel in closing argument to appeal to the Ninth Commandment. “Thou shalt not bear false witness . . . ” Exodus 20:16.127

  1. Numerous other courts have cited the Decalogue as the source of the laws on perjury, including courts in Missouri,128 California,129 Florida,130 etc. These and many other examples demonstrate that the ninth commandment of the Decalogue was incorporated into American civil law and jurisprudence.

Do not covet.

  1. This tenth commandment in the Decalogue actually forms the basis for many of the prohibitions found in the other commandments. That is, a violation of this commandment frequently precedes a violation of the other commandments. As William Penn, the framer of the original laws of Pennsylvania, declared:

[H]e that covets can no more be a moral man than he that steals since he does so in his mind. Nor can he be one that robs his neighbor of his credit, or that craftily undermines him of his trade or office.131

  1. John Adams, one of only two individuals who signed the Bill of Rights, also acknowledged the importance of this commandment, declaring:

The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet” and “Thou shalt not steal” were not commandments of Heaven, they must be made inviolable precepts in every society before it can be civilized or made free.132

  1. Many courts have also acknowledged the importance of this provision of the Decalogue. For example, in 1895, the California Supreme Court cited this prohibition as the basis of civil laws against defamation.133 In 1904, the Court of Appeals in West Virginia cited it as the basis of laws preventing election fraud.134 In 1958, a Florida appeals court cited it as the basis of laws targeting white-collar crime.135 And in 1951, the Oregon Supreme Court cited this Decalogue prohibition as the basis of civil laws against modern forms of cattle rustling.136 There are numerous other examples that all affirm that the tenth commandment of the Decalogue did indeed form an historical part of American civil law and jurisprudence.

OPINIONS OF THE FRAMERS OF OUR GOVERNMENT

  1. The Colonial, Revolutionary, and Federalist Era laws, as well as contemporary court decisions,137 provide two authoritative voices establishing that the Decalogue formed the historical basis for civil laws and jurisprudence in America. As a third authoritative voice, the Framers themselves endorsed those commandments, both specifically and generally.
  2. In addition to the approbation already given throughout this affidavit by John Adams, John Jay, Noah Webster, et. al, there are many other specific declarations, including that of William Findley, a soldier in the Revolution and a U. S. Congressman, who declared:

[I]t pleased God to deliver on Mount Sinai a compendium of His holy law and to write it with His own hand on durable tables of stone. This law, which is commonly called the Ten  Commandments or Decalogue, . . . is immutable and universally obligatory. . . . [and] was incorporated in the judicial law.138

  1. Additionally, John Quincy Adams, who bore arms during the Revolution, served under four Presidents and became a President, and who was nominated (but declined) a position on the U. S. Supreme Court under President Madison, similarly declared:

The law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes . . . of universal application—laws essential to the existence of men in society, and most of which have been enacted by every nation which ever professed any code of laws. . . . Vain, indeed, would be the search among the writings of profane antiquity . . . to find so broad, so complete and so solid a basis for morality as this Decalogue lays down.139

  1. However, in addition to their specific references to the Decalogue, the Framers also used other terms to describe that code of laws—terms such as the “moral law.” For example, John Witherspoon, President of Princeton and signer of the Declaration, declared:

[T]he Ten Commandments . . . are the sum of the moral law.140

  1. Thomas Jefferson agreed, declaring that “the moral law” is that law “to which man has been subjected by his creator.”141
  2. The Framers also used a third descriptive term synonymous with the Decalogue and the moral law: the natural law. As Chief Justice John Jay, an author of the Federalist Papers, explained:

The moral, or natural law, was given by the sovereign of the universe to all mankind.142

  1. The Framers’ understanding of natural law must not be confused with the secular view of natural law embraced in Europe at that time. The American view of natural law was not secular—a fact made exceptionally clear by Justice James Wilson, a signer of the Constitution and the father of the first organized legal training in America. As Wilson explained:

As promulgated by reason and the moral sense, it has been called natural; as promulgated by the Holy Scriptures, it has been called revealed law. As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations. But it should always be remembered that this law, natural or revealed, made for men or for nations, flows from the same divine source; it is the law of God. . . . What we do, indeed, must be founded on what He has done; and the deficiencies of our laws must be supplied by the perfections of His. Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law as discovered by reason and moral sense forms an essential part of both.143 The moral precepts delivered in the sacred oracles form part of the law of nature, are of the same origin and of the same obligation, operating universally and perpetually.144

  1. Notice additional evidence that the Framers considered “natural law” as a synonym for divine law:

In the supposed state of nature, all men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator.145 Samuel Adams, Father of the American Revolution, Signer of the Declaration

[T]he laws of nature . . . of course presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.146 John Quincy Adams

The law of nature, “which, being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this.”147 Alexander Hamilton, Signer of the Constitution

The “law of nature” is a rule of conduct arising out of the natural relations of human beings established by the Creator and existing prior to any positive precept. . . . [These] have been established by the Creator, and are, with a peculiar felicity of expression, denominated in Scripture, “ordinances of heaven.”148 Noah Webster,Judge and Legislator

The law of nature being coeval with mankind, and dictated by God Himself, is of course superior to and the foundation of all other laws. . . . No human laws are of any validity if they are contrary to it; and such of them as are of any validity, derive all their force and all their authority, mediately or immediately, from their original.149 William Findley, Revolutionary Soldier, Member of Congress

[The] law established by the Creator, which has existed from the beginning, extends over the whole globe, is everywhere and at all times binding upon mankind. . . . [This] is the law of God by which He makes His way known to man and is paramount to all human control.150 Rufus King, Signer of the Constitution, Framer of the Bill of Rights

God . . . is the promulgator as well as the author of natural law.151 James Wilson, Signer of the Declaration and the Constitution, Original Justice on the U. Supreme Court

The transcendent excellence and boundless power of the Supreme Deity . . . [has] impressed upon them those general and immutable laws that will regulate their operation through the endless ages of eternity. . . . These general laws . . . are denominated the laws of nature.152 Zephaniah Swift, Author of America’s First Legal Text

  1. The Framers clearly considered that the natural law and the moral law, of which the Decalogue was a major component, provided the basis for our civil laws and jurisprudence.
  2. However, even if it should be argued that the Decalogue is nothing more than the embodiment of a religious rather than a secular code, even this, in the views of the Framers, would be insufficient grounds for its exclusion from the public arena. For example, Justice William Paterson, a signer of the Constitution placed on the Supreme Court by President George Washington, declared:

Religion and morality . . . [are] necessary to good government, good order, and good laws.153

  1. Justice Joseph Story, later appointed to the Supreme Court by President James Madison, similarly declared:

I verily believe Christianity necessary to the support of civil society.154 One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. . . . There never has been a period in which the Common Law did not recognize Christianity as lying its foundations.155 (emphasis added)

  1. John Adams, an accomplished attorney and an author of a commentary on the Constitution of the United States, similarly declared:

The study and practice of law . . . does not dissolve the obligations of morality or religion.156

  1. Dewitt Clinton, the Framer who introduced the 12th Amendment, also declared:

The laws which regulate our conduct are the laws of man and the laws of God. . . .The sanctions of the Divine law . . . cover the whole area of human action.157

  1. Perhaps the best reflection of the collective belief of the Framers that religion was not to be excluded from civil society is enactment of the Northwest Ordinance, one of the four organic laws of the United States.158 That law, passed in 1789 by the same Congress that framed the Bill of Rights, declared:

Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.159

  1. This federal law declares that “religion, morality, and knowledge” are necessary for “good government.” Expounding on the reasoning behind this belief, signer of the Declaration John Witherspoon, who served on over 100 committees while in Congress, declared:

[T]o promote true religion is the best and most effectual way of making a virtuous and regular people. Love to God and love to man is the substance of religion; when these prevail, civil laws will have little to do.160

  1. However, the Decalogue clearly is more than just a religious code. It—in its entirety—provides the base for much of America’s common law. As the Supreme Court of North Carolina declared in 1917:

Our laws are founded upon the Decalogue, not that every case can be exactly decided according to what is there enjoined, but we can never safely depart from this short, but great, declaration of moral principles, without founding the law upon the sand instead of upon the eternal rock of justice and equity.161

  1. In 1950, the Florida Supreme Court similarly declared:

A people unschooled about the sovereignty of God, the Ten Commandments, and the ethics of Jesus, could never have evolved the Bill of Rights, the Declaration of Independence, and the Constitution. There is not one solitary fundamental principle of our democratic policy that did not stem directly from the basic moral concepts as embodied in the Decalogue.162

CIVIL DISPLAYS

  1. Significantly, Americans seem to recognize the important contributions made to our society by the Decalogue. Consequently, there is a centuries old American propensity to honor both the Ten Commandments and Moses, the deliverer of the Decalogue.
  2. For example, in 1776 immediately following America’s separation from Great Britain, Thomas Jefferson and Benjamin Franklin were placed on a committee to design a seal for the new United States.163 Both of them separately proposed featuring Moses prominently in the symbol of the new nation. Franklin proposed “Moses lifting his wand and dividing the Red Sea”164 while Jefferson proposed “the children of Israel in the wilderness, led by a cloud by day and a pillar of fire by night.”165
  3. A further indication of this American proclivity to honor Moses, the deliverer of the Ten Commandments, is seen in the U. S. Capitol. Adorning the top of the walls around the House Chamber are the side-view profile reliefs of 23 great lawgivers, including Hammurabi, Justinian, John Locke, Thomas Jefferson, William Blackstone, Hugo Grotius, George Mason, and 16 others. Significantly, there is only one relief of the 23 that is full faced rather than in profile, and that one relief is placed where it looks directly down onto the House Speaker’s rostrum, symbolically overseeing the proceedings of the lawmakers. That relief is of Moses.
  4. Not only Moses but also depictions of the Ten Commandments adorn several of the more important government buildings in the nation’s capitol. For example, every visitor that enters the National Archives to view the original Constitution and Declaration of Independence (and other official documents of American government) must first pass by the Ten Commandments embedded in the entryway to the Archives. Additionally, in the U. S. Supreme Court are displayed two depictions of the Ten Commandments. One is on the entry into the Chamber, where, engraved on the lower half of the two large oak doors, are the Ten Commandments. The other display of the commandments is in the Chamber itself on a marble frieze carved above the Justices’ heads. As Chief Justice Warren Burger noted in Lynch v. Donnelly:

The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with the Ten Commandments.166

  1. Other prominent buildings where large displays of the Ten Commandments may be viewed include the Texas State Capitol, the chambers of the Pennsylvania Supreme Court, and scores of other legislatures, courthouses, and public buildings across America. In fact, the Ten Commandments are more easily found in America’s government buildings than in her religious buildings, thus demonstrating the understanding by generations of Americans from coast to coast that the Ten Commandments formed the basis of America’s civil laws.

SUMMARY

  1. Historical evidence, drawn from civil law codes, judicial decisions, and declarations of great American lawgivers, affirms and reaffirms that the entire Decalogue has made a seminal contribution to the early common law and still continues today to make a significant contribution to the modern common law.
  2. The fact that some may not agree with all of the commandments of the Decalogue does not mean it should be prohibited from display any more than does the fact that not everyone agrees with all of the protections in the Bill of Rights requires that the Bill of Rights should not be displayed—or that because not everyone agrees with what the American flag represents requires the flag should not be displayed. Even though some may wish that the American ensign was the Stars & Bars rather than the Stars & Stripes, the reality is otherwise—and the reality is also that all ten of the commandments in the Decalogue had a unique, distinct, and significant impact on both American law and jurisprudence.
  3. To prohibit the display of the Decalogue simply because the first four commandments are more religious in nature than are the other six is like permitting the display of George Washington’s “Farewell Address” or Patrick Henry’s “Liberty or Death” speech or the “Mayflower Compact” only if each document is displayed without its religious portions. In a display of any of the aforementioned works, it is not the advocation of religion that is occurring but rather the recognition of a significant historical contribution made to America that also happens to include religion.
  4. Aside from the Declaration, the Constitution, and the Bill of Rights, it is difficult to argue that there is any single work that has had a greater or more far-reaching impact on four centuries of American life, law, and culture than the Decalogue. For this reason alone, the Decalogue merits display.

Footnotes

1 Americans United Statement in Response to the Family Research Council’s “Hang Ten” Campaign (November 4, 1999). Americans United for Separation of Church and State ; B. A. Robinson (July 1999). Posting of the Decalogue (Ten Commandments) in U. S. Courtrooms, Public Schools, Government Offices, etc. Religious Tolerance.org.

2 Marc D. Stern, The Ten Commandments: Innocent Display or Weapon in a Religious War? (January 1999). American Jewish Congress; the articles cited supra note 1.

3 Americans United, supra note 1.

4 B. A. Robinson, Religious Tolerance, supra note 1.

5 Noah Webster, Letters to a Young Gentleman Commencing His Education: To Which is Subjoined A Brief History of the United States (New Haven: S. Converse, 1823), 7; Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects (New York: Webster & Clark, 1843), 296.

6 B. A. Robinson, Religious Tolerance, supra note 1.

7 Americans United, supra note 1.

8 B. A. Robinson, Religious Tolerance, supra note 1.

9 Isaac Kramnick and Laurence Moore, The Godless Constitution (New York: W. W. Norton & Company, 1996), 58-60 and passim.

10 Alvin W. Johnson, Sunday Legislation, XXIII Ky.L.J. 131, n 1 (1934-1935).

11 John Fiske, The Beginnings of New England (Boston: Houghton, Mifflin and Company, 1898), 127-128.

12 Select Charters and Other Documents Illustrative of American History, 1606-1775, William MacDonald, editor (New York: The Macmillan Company, 1899), 61, “Fundamental Orders of Connecticut” (1638-1639).

13 Colonial Origins, 163, “Government of Pocasset” (Rhode Island, 1638).

14 Select Charters, 68, “Fundamental Articles of New Haven” (1639).

15 Colonial Origins of the American Constitution: A Documentary History, Donald S. Lutz, editor (Indianapolis: Liberty Fund, 1998),  250, “Preface to the General Laws and Liberties of Connecticut Colony” (1672).

16 The Code of 1650, Being a Compilation of the Earliest Laws and Orders of the General Court of Connecticut: Also, the Constitution, or Civil Compact, Entered into and Adopted by the Towns of Windsor, Hartford, and Wethersfield in 1638-9. To Which is Added Some Extracts from the Laws and Judicial Proceedings of New-Haven Colony Commonly Called Blue Laws (Hartford: Silas Andrus, 1825), pp. 28-29, “Capital Laws”; see also Select Charters, 87-88, “Massachusetts Body Of Liberties” (1641), “Capital Laws”; Colonial Origins, pp. 102-103, “The Laws and Liberties of Massachusetts” (1647), “Capital Laws.”

17 The Code of 1650, 19; Select Charters, 73-74, “Massachusetts Body Of Liberties” (1641); Colonial Origins, 71, “The Massachusetts Body of Liberties, 1641.”

18 Colonial Origins, 315-316, “Articles, Laws, and Orders, Divine, Politic and Martial for the Colony of Virginia” (1610-1611).

19 Colonial Origins, 83, “Massachusetts Body Of Liberties” (1641).

20 Colonial Origins, 229, “Capital Laws of Connecticut” (1642); The Code of 1650, 28.

21 Colonial Origins, 6, “General Laws and Liberties of New Hampshire” (1680).

22 Noah Webster, Letters to a Young Gentleman, 8; Noah Webster, A Collection of Papers, 296.

23 Colonial Origins, 316, “Articles, Laws, and Orders, Divine, Politic and Martial for the Colony of Virginia” (1610-1611).

24 The Code of 1650, 28-29.

25 Select Charters, 87, “Massachusetts Body Of Liberties” (1641).

26 Colonial Origins, 230, “Capital Laws of Connecticut” (1642).

27 Colonial Origins, 6, “General Laws and Liberties of New Hampshire” (1680).

28 Colonial Origins, 289, “An Act for Freedom of Conscience” (Pennsylvania, 1682).

29 An Abridgement of the Laws of Pennsylvania, Collinson Read, editor (Philadelphia: 1801), p. 32; see also Laws of the Commonwealth of Pennsylvania, from the Fourteenth Day of October, One Thousand Seven Hundred, to the Twentieth Day of March, One Thousand Eight Hundred and Ten (Philadelphia: John Bioren, 1810), 7, “An Act for the Prevention of Vice and Immorality, and of Unlawful Gaming, and to Restrain Disorderly Sports and Dissipation, Passed April 22, 1794.”

30 Laws of the Commonwealth of Pennsylvania (1810), I:7, “An Act to Prevent the Grievous Sins of Cursing and Swearing within this Province and Territories.”

31 Alphabetical Digest of the Public Statute of South Carolina, Joseph Brevard, editor (Charleston: John Hoff, 1814), I:87-88, “Blasphemy-Profaneness” (1695).

32 A Manual of The Laws of North Carolina, Arranged Under Distinct Heads, In Alphabetical Order, John Haywood, editor (Raleigh: J. Gales, 1814), 264, “Vice and Immorality” (1741).

33 George Washington, The Writings of George Washington, John C. Fitzpatrick, editor (Washington: U. S. Government Printing Office, 1931), Vol. III, 309, General Orders, Head-Quarters, Cambridge, July 4, 1775.

34 George Washington, The Writings of George Washington, Jared Sparks, editor (Boston: Ferdinand Andrews, 1836), II:167, n, from his “Orderly Book,” an undated order issued between June 25 and August 4, 1756.

35 Washington, Writings (1932), V:367, General Orders, Head-Quarters, New York, August 3, 1776.

36 Washington, Writings (1933), VIII:152-53, General Orders, Head-Quarters, Middle-Brook, May 31, 1777.

37 Washington, Writings (1936), XIII:118-19, General Orders, Head-Quarters, Fredericksburg, October 21, 1778.

38 The Public Statute Laws of the State of Connecticut, Book I (Hartford: Hudson and Goodwin, 1808), pp. 295-296, “An Act for the Punishment of divers Capital and other Felonies.”

39 The Laws of the State of New Hampshire, the Constitution of the State of New Hampshire, and the Constitution of the United States, with its Proposed Amendments (Portsmouth: John Melcher, 1797), pp. 280-281, “An Act for the Punishment of Profane Cursing and Swearing,” passed February 6, 1791, and pp. 286-287, a separate act passed February 10, 1791; see also Constitution and Laws of the State of New-Hampshire; Together with the Constitution of the United States (Dover: Samuel Bragg, 1805), p. 277, “An Act for the Punishment of Certain Crimes not Capital,” passed February 16, 1791.

40 Statutes of the State of Vermont (Bennington: Anthony Haswell, 1791), p. 51, “An Act for the Punishment of Drunkenness, Gaming, and Profane Swearing,” passed February 28, 1787, and p. 75, “An Act for the Punishment of Divers Capital and other Felonies,” passed March 8, 1787.

41 A Digest of the Laws of Virginia, which are of a Permanent Character and General Operation, Joseph Tate, editor (Richmond: Shepherd and Pollard, 1823) pp. 453-454; see also, The Revised Code of the Laws of Virginia: Being A Collection of all such Acts of the General Assembly, of a Public and Permanent Nature as are now in Force (Richmond: Thomas Ritchie, 1819), Vol. I, pp. 554-556, “An Act for the Effectual Suppression of Vice, and Punishing the Disturbers of Religious Worship and Sabbath Breakers.”

42 An Abridgment of the Laws of Pennsylvania (1801), p. 380, Act of April 22, 1794.

43 Jeremiah Perley, The Maine Justice; Containing the Laws Relative to the Powers and Duties of Justices of the Peace (Hallowell: Goodale, Glazier, & Co., 1823), pp. 7, 236; see also Laws of the State of Maine (Hallowell: Goodale, Glazier & Co., 1822), pp. 66-67, “An Act Against Blasphemy and Profane Cursing and Swearing,” passed February 24, 1821.

44 James Coffield Mitchell, The Tennessee Justice’s Manual and Civil Officer’s Guide (Nashville: J. C. Mitchell and C. C. Norvell, 1834), p. 428, “ Breaking the Sabbath.”

45 The Revised Statutes of the Commonwealth of Massachusetts, Passed November 4, 1835 (Boston: Dutton & Wentworth, 1836), p. 185, “Title VII: Of Towns and Town Officers,” Section 76.

46 George C. Edwards, Treatise of the Powers and Duties of the Justices of the Peace and the Town Officers in the State of New York (Ithaca: Mack, Andrus, & Woodruff, 1836), pp. 379-380, “Of Profane Cursing and Swearing,” Rev. Stat. 673, Art. 6.

47 Zephaniah Swift, A System of the Laws of the State of Connecticut (Windham: John Byrne, 1796), Vol. II, p. 320.

48 Church of the Holy Trinity v. U. S., 143 U. S. 457, 470-471 (1892).

49 Updegraph v. Commonwealth, 11 Serg. & Rawle 393, 401 (Penn. 1824).

50 Updegraph v. Commonwealth, 11 Serg. & Rawle 393, 403 (Penn. 1824).

51 State v. Mockus, 14 ALR 871, 874 (Maine Sup. Jud. Ct., 1921).

52 Cason v. Baskin, 20 So.2d 243, 247 (Fla. 1944) (en banc).

53 Jaqueth v. Town of Guilford School District, 189 A.2d 558, 563 (Vt. 1963), (Shangraw, J. dissenting).

54 State v. Chicago, B. & Q. R. Co., 143 S.W. 785, 803 (Mo. 1912).

55 Edwards, Justices of the Peace . . . in the State of New York, p. 38, “General Rules Applicable to a Summons, Warrant of Attachment,” Rev. Stat. 675.

56 Colonial Origins, p. 281, “Charter of Liberties and Frame of Government of the Province of Pennsylvania in America” (1682).

57 Laws of the Commonwealth of Pennsylvania (1810), Vol. I, p. 25, “An Act to Restrain People from Labor on the First Day of the Week,” passed October 14, 1705.

58 Statutes of the State of Vermont (1791), p. 157, “An Act for the Due Observation of the Sabbath,” passed March 9, 1787.

59 Swift, A System of the Laws, Vol. II, p. 326, “Of Crimes Against Religion.”

60 Laws of the State of New Jersey, Revised and Published Under the Authority of the Legislature, William Paterson, editor (New Brunswick: Abraham Blauvelt, 1800), pp. 329-330, “An Act for Suppressing Vice and Immorality,” passed March 16, 1798.

61 McGowan v. Maryland, 366 U.S. 420 (1961).

62 Colonial Origins, pp. 316-317, “Articles, Laws, and Orders, Divine, Politic and Martial for the Colony of Virginia” (1610-1611).

63 Charles J. Hoadly, Records of the Colony or Jurisdiction of New Haven, From May, 1653, to the Union, Together With the New Haven Code of 1656 (Lockwood and Company, 1858), p. 605.

64 Colonial Origins, pp. 10-11, “General Laws and Liberties of New Hampshire” (1680).

65 Colonial Origins, p. 288, “An Act for Freedom of Conscience” (Pennsylvania, 1682).

66 Laws of the Commonwealth of Pennsylvania, (1810), Vol. I, p. 25-26, “An Act to Restrain People from Labor on the First Day of the Week,” passed October 4,1705; see also Abridgement of the Laws of Pennsylvania (1801), p. 362.

67 Alphabetical Digest of the Public Statute Law of South Carolina (1814), Vol. II, pp. 272-275, “Title 160: Sunday.”

68 A Manual of The Laws of North Carolina (1814), p. 264, “Vice and Immorality” (1741).

69 The Public Statute Laws of the State of Connecticut (Hartford: Hudson and Goodwin, 1808), Vol. I, pp. 577-578, “An Act for the Due Observation of the Sabbath, or Lord’s Day”; see also Swift, A System of the Laws, Vol. II, pp. 325-326.

70 Washington, Writings (1934), Vol. XI, p. 342, General Orders, Head-Quarters, Valley Forge, Saturday, May 2, 1778.

71 Washington, Writings (1931), Vol. III, p. 402-403, General Orders, Cambridge, August 5, 1775; Vol. VII, p. 407, General Orders, Head-Quarters, Morristown, April 12, 1777; Vol. VIII, p. 77, General Orders, Head-Quarters, Morristown, May 17, 1777; Vol. VIII, p. 114, General Orders, Head-Quarters, Morristown, May 24, 1777; Vol. VIII, p. 153, General Orders, Head-Quarters, Middle Brook, May 31, 1777; Vol. VIII, p. 308, General Orders, Head-Quarters, Middle Brook, June 28, 1777; Vol. IX, p. 275, General Orders, Head-Quarters, Pennybecker’s Mills, September 27, 1777; Vol. IX, p. 329, General Orders, Head-Quarters, Perkiomy, October 7, 1777; etc.

72 Statutes of the State of Vermont (1791), pp. 155-157, “An Act for the Due Observation of the Sabbath,” passed March 9, 1787.

73 The Revised Statutes of the Commonwealth of Massachusetts, Passed November 4, 1835 (1836), pp. 385-386, “Of the Observance of the Lord’s Day and the Prevention and Punishment of Immorality.”

74 The Revised Code of the Laws of Virginia (1819), Vol. I, pp. 554-556, “An Act for the Effectual Suppression of Vice, and Punishing the Disturbers of Religious Worship, and Sabbath Breakers,” passed December 26, 1792; see also A Digest of the Laws of Virginia (1823), pp. 453-454.

75 James Madison, The Papers of James Madison, Robert A. Rutland, editor (Chicago: University of Chicago Press, 1973), Vol. VIII, pp. 391-396, “Bills for a Revised State Code of Laws,” and Thomas Jefferson, The Papers of Thomas Jefferson, Julian P. Boyd, editor (Princeton: Princeton University Press, 1950), Vol. II, p. 322, “The Revisal of the Laws, 1776-1786.”

76 Laws of the State of New Jersey (1800), pp. 329-333, “An Act for Suppressing Vice and Immorality,” passed March 16, 1798.

77 Constitution and Laws of the State of New Hampshire (1805), pp. 290-293, “An Act for the Better Observation of the Lord’s Day, and for Repealing All the Laws Heretofore Made for that Purpose,” passed December 24, 1799.

78 Laws of the State of Maine (1822), pp. 67-71, “An Act Providing for the Due Observation of the Lord’s Day.”

79 See, for example, William Waller Hening, The Virginia Justice, Comprising the Office and Authority of the Justice of the Peace in the Commonwealth of Virginia (Richmond: Shepherd & Pollard, 1825), p. 612, “Sabbath Breakers”; see also Coffield, The Tennessee Justices’ Manual (1834), pp. 427-428; see also Edwards, Justices of the Peace . . . in the State of New York (1836), pp. 386-387; etc.

80 Bertera’s Hopewell Foodland, Inc. v. Masters, 236 A.2d 197, 200-201 (Pa. 1967).

81 Paramount-Richards Theatres v. City of Hattiesburg, 49 So.2d 574, 577 (Miss. 1950).

82 People v. Rubenstein, 182 N.Y.S.2d 548, 550 (N.Y. Ct. Sp. Sess. 1959).

83 Stollenwerck v. State, 77 So. 52, 54 (Ala. Ct. App. 1917) (Brown, P. J. concurring).

84 Gillooley v. Vaughn, 110 So. 653, 655 (Fla. 1926), citing Theisen v. McDavid, 16 So. 321, 323 (Fla. 1894), citing cases in Oregon and Kentucky.

85 Rogers v. State, 4 S.E.2d 918, 919 (Ga. Ct. App. 1939).

86 Brimhall v. Van Campen, 8 Minn. 1 (1858), cited in Kentucky Law Journal, Vol. XXIII, 1934-1935, Alvin W. Johnson, “Sunday Legislation,” p. 140.

87 John Jay, The Correspondence and Public Papers of John Jay, Henry P. Johnston, editor (New York: G. P. Putnam’s Sons, 1893), Vol. IV, pp. 403, to John Murray Jr., on April 15, 1818.

88 City of Ames v. Gerbracht, 189 N.W. 729, 733 (Iowa 1922).

89 B. A. Robinson, Religious Tolerance, supra note 1.

90 Sumpter v. State, 261 Ind. 471, 306 N.E.2d 95, 101 (Ind. 1974); see also State v. Schultz, 582 N.W.2d 113, 117 (Wis. Ct. App. 1998).

91 The Code of 1650, p. 29; see also Colonial Origins, p. 230, “Capital Laws of Connecticut” (1642).

92 See, for example, Colonial Origins, p. 7, “General Laws and Liberties of New Hampshire” (1680); and p. 103, “The Laws and Liberties of Massachusetts” (1647); etc.

93 Ruiz v. Clancy, 157 So. 737, 738 (La. Ct. App. 1934), citing Caldwell v. Henmen, 5 Rob. 20.

94 See, for example, Pierce v. Yerkovich, 363 N.Y.S.2d 403, 414 (N.Y. Fam. Ct. 1974); see also Mileski v. Locker, 178 N.Y.S.2d 911, 916 (N.Y. Sup. Ct. 1958); see also Beaty v. McGoldrick, 121 N.Y.S.2d 431, 432 (N.Y. Sup. Ct. 1953).

95 Noah Webster, Letters of Noah Webster, Harry R. Warfel, editor (New York: Library Publishers, 1953), pp. 453-454, to David McClure on October 25, 1836.

96 Select Charters, pp. 87-88, “Massachusetts Body Of Liberties” (1641); see also Colonial Origins, pp. 83-84, “Massachusetts Body Of Liberties” (1641).

97 Colonial Origins, p. 230, “Capital Laws of Connecticut” (1642).

98 Constitution and Laws of the State of New-Hampshire; Together with the Constitution of the United States (Dover: Samuel Bragg, 1805), p. 267; see also Colonial Origins, p. 7, “General Laws and Liberties of New Hampshire” (1680).

99 Young v. Commonwealth, 53 S.W. 963, 966 (Ky. Ct. App. 1932).

100 John Jay, Correspondence, Vol. IV, pp. 403-404, to John Murray Jr., on April 15, 1818.

101 See, for example, Matter of Storar, 434 N.Y.S.2d 46, 48 (N.Y. App. Div. 1980) (Cardamone, J. dissenting); see also Ex parte Mei, 192 A. 80, 82 (N.J. 1937); etc.

102 Colonial Origins, p. 84, “Massachusetts Body Of Liberties” (1641).

103 The Code of 1650, pp. 28-29; see also Colonial Origins, p. 230, “Capital Laws of Connecticut” (1642).

104 Colonial Origins, pp. 189-190, “Acts and Orders of 1647” (Rhode Island).

105 Colonial Origins, pp. 8-9, “General Laws and Liberties of New Hampshire” (1680).

106 Laws of the Commonwealth of Pennsylvania (1810), Vol. I, pp. 25-27, “An Act Against Adultery and Fornication,” passed in 1705.

107 Statutes of the State of Vermont (1791), pp. 16-17, “An Act Against Adultery, Polygamy, and Fornication,” passed March 8, 1787.

108 See, for example, Swift, A System of the Laws, Vol. II, pp. 327-328; see also Constitution and Laws of the State of New Hampshire (1805), pp. 278-279, “An Act for the Punishment of Lewdness, Adultery, and Polygamy”; see also Perley, The Maine Justice (1823), p. 6; etc.

109 Hardin v. State, 46 S.W. 803, 808 (Tex. Crim. App. 1898).

110 Schreifels v. Schreifels, 287 P.2d 1001, 1005 (Wash. 1955).

111 See, for example, Barbour v. Barbour, 330 P.2d 1093, 1098 (Mont. 1958); see also Petition of Smith, 71 F.Supp. 968, 972 (D.N.J. 1947); see also S.B. v. S.J.B., 609 A.2d 124, 125 (N.J. Super. Ct. Ch. Div. 1992); etc.

112 James Kent, Commentaries on American Law (New York: O. Halsted, 1826), Vol. I, p. 7.

113 Succession of Onorato, 51 So.2d 804, 810 (La. 1951).

114 Hollywood Motion Picture Equipment Co. v. Furer, 105 P.2d 299, 301 (Cal. 1940).

115 State v. Donaldson, 99 P. 447, 449 (Utah 1909).

116 De Rinzie v. People, 138 P. 1009, 1010 (Colo. 1913).

117 Addison v. State, 116 So. 629 (Fla. 1928) and Anderson v. Maddox, 65 So.2d 299, 301-302 (Fla. 1953).

118  State v. Gould, 46 S.W.2d 886, 889-890 (Mo. 1932).

119 Doll v. Bender, 47 S.E. 293, 300 (W.Va. 1904) (Dent, J. concurring).

120 Pennsylvania Co. v. United States, 214 F. 445, 455 (W.D.Pa. 1914).

121 The Code of 1650, pp. 28-29; see also Colonial Origins, p. 230, “Capital Laws of Connecticut” (1642).

122 Colonial Origins, p. 84, “Massachusetts Body Of Liberties” (1641); see also, Select Charters, p. 88.

123 Colonial Origins, pp. 190-191, “Acts and Orders of 1647,” (Rhode Island).

124 Colonial Origins, p. 7, “General Laws and Liberties of New Hampshire” (1680).

125 The Public Statute Laws of the State of Connecticut (Hartford: Hudson and Goodwin, 1808), p. 295, “An Act for the Punishment of Divers Capital and Other Felonies.”

126 Watts v. Gerking, 228 P. 135, 141 (Or. 1924).

127 Hosford v. State, 525 So.2d 789, 799 (Miss. 1988).

128 L——— v. N———, 326 S.W.2d 751, 755-756 (Mo. Ct. App. 1959).

129 People v. Rosen, 20 Cal.App.2d 445, 448-449, 66 P.2d 1208 (1937).

130 Pullum v. Johnson, 647 So.2d 254, 256 (Fla. Dist. Ct. App. 1994).

131 William Penn, Fruits of Solitude, In Reflections and Maxims Relating To The Conduct of Human Life (London: James Phillips, 1790), p. 132.

132 John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1851), Vol. VI, p. 9, “A Defense of the Constitutions of Government of the United States of America.”

133 Weinstock, Lubin & Co. v. Marks, 42 P. 142, 145 (Cal. 1895).

134 Doll v. Bender, 47 S.E. 293, 300-01 (W.Va. 1904) (Dent, J. concurring).

135 Chisman v. Moylan, 105 So.2d 186, 189 (Fla. Dist. Ct. App. 1958).

136 Swift & Co. v. Peterson, 233 P.2d 216, 231 (Or. 1951).

137 A search of court decisions just from 1880 to 1975 records that the Decalogue was cited authoritatively and approvingly in well over five hundred cases.

138 William Findley, Observations on “The Two Sons of Oil” (Pittsburgh: Patterson & Hopkins, 1812), pp. 22-23, 36.

139 John Quincy Adams, Letters of John Quincy Adams, to His Son, on the Bible and Its Teachings (Auburn: James M. Alden, 1850), pp. 61, 70-71.

140 John Witherspoon, The Works of John Witherspoon (Edinburgh: J. Ogle, 1815), Vol. IV, p. 95, “Seasonable Advice to Young Persons,” February 21, 1762.

141 Thomas Jefferson, The Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington, D. C.: The Thomas Jefferson Memorial Association, 1903), Vol. III, p. 228, from his “Opinion on the Question whether the United States have a Right to Renounce their Treaties with France or to Hold them Suspended till the Government of that Country shall be Established,” on April 28, 1793.

142 John Jay, The Correspondence and Public Papers of John Jay, Henry P. Johnston, editor (New York: G. P. Putnam’s Sons, 1893), Vol. IV, p. 403, letter to John Murray Jr. on April 15, 1818.

143 James Wilson, The Works of the Honorable James Wilson, Bird Wilson, editor (Philadelphia: Lorenzo Press, 1804), Vol. I, pp. 104-106, “Of the General Principles of Law and Obligation.”

144 Wilson, Works, p. 138, “Of the Laws of Nature.”

145 Samuel Adams, The Writings of Samuel Adams, Harry Alonzo Cushing, editor (New York: G. P. Putnam’s Sons, 1908), Vol. IV, p. 356, To the Legislature of Massachusetts on January 17, 1794.

146 John Quincy Adams, The Jubilee of the Constitution (New York: Samuel Colman, 1839), pp. 13-14.

147 Alexander Hamilton, The Papers of Alexander Hamilton, 1768-1778, Harold C. Syrett, editor (New York: Columbia University Press, 1961), Vol. I, p. 87, from “The Farmer Refuted,” February 23, 1775, quoting from Blackstone.

148 Noah Webster, An American Dictionary of the English Language (New York: S. Converse, 1828), s.v. “law,” definitions #3 and #6.

149 Findley, Observations on “The Two Sons of Oil,” pp. 33-34.

150 Rufus King, The Life and Correspondence of Rufus King, Charles R. King, editor (New York: G. P. Putnam’s Sons, 1900), Vol. VI, p. 276, to C. Gore on February 17, 1820.

151 Wilson, Works, Vol. I, p. 64, “Of the General Principles of Law and Obligation.”

152 Swift, A System of the Laws, Vol. I, pp. 6-7.

153 William Paterson, United States Oracle (Portsmouth, NH), May 24, 1800; see also The Documentary History of the Supreme Court of the United States, 1789-1800, Maeva Marcus, editor (New York: Columbia University Press, 1990), Vol. III, p. 436.

154 Joseph Story, Life and Letters of Joseph Story, William W. Story, editor (Boston: Charles C. Little, and James Brown, 1851), Vol. I, p. 92, in a letter on March 24, 1801.

155 Story, Life and Letters, Vol. II, p. 8.

156 John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1850), Vol. II, p. 31, from his diary entry for Sunday, August 22, 1756.

157 William W. Campbell, The Life and Writings of De Witt Clinton (New York: Baker and Scribner, 1849), pp. 305, 307.

158 United States Code Annotated (St. Paul: West Publishing Co., 1987), “The Organic Laws of the United States of America,” p. 1. This work lists America’s four fundamental laws as the Articles of Confederation, the Declaration of Independence, the Constitution, and the Northwest Ordinance.

159 The Constitutions of the United States of America With the Latest Amendments (New York: Evert Duyckinck, 1813), p. 375, “An Ordinance of the Territory of the United States Northwest of the River Ohio,” Article III.

160 John Witherspoon, The Works of John Witherspoon (Edinburgh: J. Ogle, 1815), Vol. VII, pp. 118-119, Lecture XIV, “Jurisprudence.”

161 Commissioners of Johnston County v. Lacy, 93 S.E. 482, 487 (N.C. 1917).

162 State v. City of Tampa, 48 So.2d 78, 79 (Fla. 1950).

163 B. J. Cigrand, Story of the Great Seal of the United States (Chicago: Cameron, Amberg & Co, 1892), pp. 103-147.

164 John Adams, Letters of John Adams Addressed to His Wife, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1841), Vol. I, p. 152, letter to Abigail Adams on August 14, 1776.

165 Adams, Letters, Vol. I, p. 152, letter to Abigail Adams on August 14, 1776.

166 166 Lynch v. Donnelly, 465 U. S. 668, 677 (1984).

A Tale of Two Constitutions

(First published in the October 2004 issue of The American Legion magazine)

The subject of constitutional interpretation may seem like a topic best fitted for an ivory-tower debate, but it actually has a very real and dramatic impact on daily life (as will be demonstrated shortly). In recent years, two competing viewpoints have emerged.

Probably the first exposure most citizens had to the two views came during the 2000 presidential debates. When asked what type of judges should be placed on the bench, candidate Bush responded: “I believe that the judges ought not to take the place of the legislative branch of government . . . and that they ought to look at the Constitution as sacred. . . . I don’t believe in liberal, activist judges; I believe in strict constructionists.”1 Candidate Gore countered, “The Constitution ought to be interpreted as a document that grows.”2 Gore later stated, “I believe the Constitution is a living and breathing document. . . . We have interpreted our founding charter over the years, and found deeper meanings in it in light of the subsequent experience in American life.”3 So, the two choices are . . . follow original intent, or construct a living constitution.

Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation. Instead, we should live under a constitution that is alive and vibrant, reflecting today’s values and beliefs.

Such rhetoric makes a living constitution sound appealing, but it is actually a complete misportrayal of the difference between the two philosophies. In reality, both accommodate an evolving society; in fact, under the strict construction (or originalist) viewpoint, Article V of the Constitution requires that the Constitution be a living document. The real difference between the two approaches is not whether the Constitution should evolve,
but rather how those changes should occur – and whoshould make them.

Under the living constitution approach, history and precedent are largely irrelevant; instead, unelected judges create policy to reflect modern needs through the constitution they themselves write. As explained by Chief Justice Charles Evans Hughes:

We are under a constitution, but the constitution is what the judges say it is.4

Ironically, under this modern approach, judicial policy-makers are regularly out of step with modern society. For example, although 80 percent of the nation currently opposes flag desecration, living constitution judges have ruled that the people are wrong on this issue and that the flag cannot be protected. Similarly, 90 percent of citizens in the federal Ninth Circuit supported keeping “under God” in the Pledge of Allegiance, but their living constitution judges pronounced them wrong.

Equally striking is the number of recent occasions in which living constitution judges have overturned statewide votes wherein the People clearly expressed their will (e.g., striking down votes in New York and Washington that banned physician-assisted suicides; in Arkansas and Washington that enacted term limits; in Missouri that rejected a tax increase; etc.).

Each of these popular votes would be valid under original intent because in that approach, the People — not unelected judges — determine their policies and values. And whenever the People want a change, they do not rely on a judge to make it; instead, they update their Constitution to reflect their views — as they have done on over two-dozen occasions. Samuel Adams pointed out the strength of this approach:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution — according to the mode prescribed therein [Article V] – has already undergone such amendments in several parts of it as from experience has been judged necessary.5(emphasis added)

This unique American guiding principle made its appearance in the Declaration of Independence as “the consent of the governed.” The State constitutions penned after the Declaration reiterated this precept — as, for example, in Massachusetts in 1780:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority — whether Legislative, Executive, or Judicial — are their substitutes and agents and are at all times accountable to them.6

The same axiom was then established in the Constitution through the three-word phrase that begins its text: “We The People.”

Today’s living document proponents decry this approach as majoritarianism – the so-called “tyranny of the majority.” Perhaps, but what is the alternative? Minoritarism? That a small group should be able to annul the will of the People and enforce its own desires upon the masses? Such an option is unacceptable under original intent. As explained by George Washington:

The fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.7

Thomas Jefferson agreed:

The will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.8

Does this original principle therefore mean that minorities are to be disregarded or trodden upon? Of course not. As Jefferson further explained:

Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable — the minority possess their equal rights which equal law must protect.9

While the minority is not to prevail, with its constitutional guarantee of “free speech,” it does have the “equal right” to attempt to persuade the majority to its point of view. The minority does have equal rights, but equal right is not the same as equal power; the minority is never the equivalent of the majority and should never exercise control over it.

Living constitution judges, however, view the majority as inherently wicked and depraved — always seeking deliberately to violate the rights of the minority with only judges standing between the minority and total annihilation. Therefore, under this anti-majoritarian view, the greater the public support for a position, the more likely a living constitution judge is to strike it down.

Yet American history has proven that the best protector of minority rights is not the courts but rather the People. For example, former slaves received their constitutional rights not from the courts but by the majority consent of non-slaves; women were similarly accorded the constitutional right to vote not by the courts but by the majority approval of men; the constitutional rights accorded to the poor by the abolition of the poll tax came at the majority approval of those who were not poor; and the constitutional right allowing eighteen-year-olds to vote was given by the majority approval of voters not eighteen-years-old.

Additionally, all of the constitutional protections for individuals and minorities established in the original Bill of Rights (e.g., speech, religion, petition, assembly, bearing of arms, etc.) were also enacted by majority consent. In other words, all minority rights in the Constitution have in all cases been established by majority consent.

In fact, the courts have a very poor record of protecting minority rights. Although living constitution proponents love to point to the 1954 Brown v. Board of Education decision that ended segregation as proof that the courts protects minority rights, they conveniently forget to tell the rest of the story. In 1875, Congress — by majority vote — banned racial segregation, but in 1882, the unelected Supreme Court struck down that anti-segregation law; in 1896, the Supreme Court reaffirmed its pro-segregation position; but in 1954, the Court finally reversed itself and struck down segregation – eighty years after “We The People” had abolished segregation.

It is not surprising that judges are fallible, for as Jefferson pointed out:

Our judges are as honest as other men, and not more so. They have — with others — the same passions for party, for power, and the privilege of their corps. . . . And their power the more dangerous as they are in office for life and not responsible — as the other functionaries are — to the elective control.10

Certainly, the majority will sometimes err, but as Jefferson observed, “its errors are honest, solitary, and short-lived” and can be remedied by “elective control.” However, the errors created by judicial decisions are more severe and long-lasting.

While living document enthusiasts disparage strict constructionists as being narrow or restrictive, Justice Antonin Scalia counters:

Don’t think the originalist interpretation constrains you. To the contrary, my [originalist] Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy: pass a law. The death penalty? Pass a law. That’s flexibility. 11

Scalia points out that it is just the opposite with living constitution judges:

They want the whole country to do it their way, from coast to coast. They want to drive one issue after another off the stage of political debate. 12

In short, then, the living constitution approach empowers an unaccountable elite to make decisions on behalf of the People; original intent empowers the People themselves.

Endnotes

1 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
2 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
3 PBS.org, “Online News Hour: Al Gore,” March 14, 2000.
4 Charles Evans Hughes, speech at Elmira on May 3, 1907, The Autobiographical Notes of Charles Evans Hughes, eds. David J. Danelski and Joseph S. Tulchin (Cambridge: Harvard University Press, 1973), 144.
5 Samuel Adams to the Legislature of Massachusetts, January 19, 1796, The Writings of Samuel Adams, ed. Harry Alonzo Cushing (New York: G. P. Putnam’s Sons, 1904), IV:388.
6 A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), 9, Part I, Article V.
7 George Washington, “Sixth Annual Address,” November 19, 1794, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:164.
8 Thomas Jefferson, “Response to the Citizens of Albermarle,” February 12, 1790, The Papers of Thomas Jefferson, ed. Julian P. Boyd (NJ: Princeton University Press, 1961), XVI:179.
9 Thomas Jefferson, “First Inaugural Address,” March 11, 1801, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:322.
10 Thomas Jefferson to William Charles Jarvis, September 28, 1820, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington D. C.: Thomas Jefferson Memorial Association, 1904), XV:277.
11 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.
12 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.