by David J. Vaughan

The debate over the relationship of church and state in America hinges on the interpretation of the establishment clause of the First Amendment. That clause reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…..” There are two differing interpretive methodologies employed in the reading of the First Amendment, each of which yields a different interpretation of its meaning.
The first, known as intentionalism, posits that judges should confine themselves to enforcing values which are expressed, or clearly implicit, in the written Constitution. Judges should seek to implement the purposes or intentions of the framers. However, if the framers’ intent is unclear, then legislative bodies, not the court, should determine which values will be placed into law. The opposing methodology, non-interpretivism, claims that judges should go beyond the words and intentions of the framers; and that the Constitution is intentionally vague in order to allow for a broad interpretation. The non-interpretivist view leads naturally to a broad or separationist interpretation of the First Amendment. Accordingly, church and state (both federal and  state) should be completely independent and absolutely separate. Thus, government aid to religion, even if on a non-preferential basis, violates the First Amendment. Mr. Justice Black, writing for the United States Supreme Court, has expressed the broad view thus: “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…The First Amendment has erected a wall between church and state. That wall must be left high and impregnable. We could not approve the slightest breach”. (Everson, 330 U.S. 1 (1947), emphasis added.) On the other hand, intentionalism leads to a narrow or non-preferential interpretation of the establishment clause. The purpose of the First Amendment was to prevent Congress (the federal or national government) from establishing a national church or religion, thereby granting one church or denomination preferred statue. It guaranteed to the respective state governments, however, the prerogative of legislating on religious establishments and institutions as they saw fit.

Intentionalism, then, suggests that the First Amendment was not written in order to create a religiously neutral or “secular” state. The framers, many of whom were religious men, did not intend a moral separation between religion and government, but merely an institutional separation of church and state on the federal level. In other words, they did not design to isolate the government or society from religious influences. Most importantly, the express purpose of the First Amendment was the free expression of religion. It was not written as a constraint on religion, but as a constraint on the National Government. As James Madison said “There is no shadow of right in the general [Federal] government to intermeddle with religion….This subject is… perfectly free and unshackled. The government has no jurisdiction over it.” Thus, non-preferential aid to all religious would not violate the First Amendment.
The evidence for the intentionalist view of establishment clause is convincing. Firstly, the Constitution provides for a national government of strictly delegated powers. Those powers not expressly granted to the federal government are reserved to the states. This principle is known as the doctrine of Express Powers. Therefore, even without the First Amendment, the federal government cannot legislate on religion because the Constitution nowhere grants to it that power. Religious legislation then is reserved for the States. Indeed, in 1775 at the outbreak of the Revolution, nine of the 13 colonies had established churches. As Justice Hand wrote for the Court:

At the beginning of the Revolution established churches existed in nine of the colonies…The first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791. Maryland, Virginia, South Carolina, and Georgia all shared Anglicanism as the established religion common to those colonies. Congregationalism was the established religion in Massachusetts, New Hampshire, and Connecticut. New York, on the other hand, allowed for the establishment of Protestant religions. Only in Rhode Island and Virginia were all religious sects disestablished. But all of the States still retained the Christian religion as the foundation stone of their social, civil, and political institutions. Not even Rhode island and Virginia renounced Christianity, and both states continued to respect and acknowledge the Christian religion in their system of law.

Even where no church was officially “established”, Protestant Christianity was the recognized and legally preferred religion. As historian R.J. Rushdoony has noted; “there were religious requirements for citizenship and suffrage, religious oaths, laws prohibiting blasphemy, laws requiring a Trinitarian faith, or a firm belief in the infallibility of Scripture, and laws barring  unbelievers as witnesses in courts”. (The Nature of the American System, p.4) The legal historian and Rhodes scholar, Daniel Dreisbach, clarifies the role of the First Amendment vis-a-vis the states. “The First Amendment was a guarantee to the states which ensured that the state governments would be able to continue whatever church-state relationships existed in 1791. In short, Congress was foreclosed from interfering with existing state establishments of religion.” (Real Threat and Mere Shadow, p.78)
The first Congress, which framed the First Amendment, was a body of predominantly religious men who believed in Christianity. Fifty two (52) of the fifty five framers were members of a Christian church. As constitutional scholar John Eidsmoe has pointed out:

It is possible some of the delegates belonged to other churches and might have held deist convictions. But as a condition for church membership, most colonial churches required sworn adherence to strict doctrinal creeds, which included belief in the Bible as God’s revelation and trust in Jesus Christ as the Son of God. If the founding fathers held deist ideas while belonging to Christian churches it means they swore falsely in the presence of God. (Christianity and the Constitution, p.43)

These men would hardly have framed an amendment which they thought harmful to their religion. Moreover, the first Congress resolved to pay a chaplain with federal monies, to open their sessions with prayer; and resolved, only hours after the adoption of the First Amendment, to petition the President to issue a proclamation setting aside a day of public thanksgiving and prayer. The Northwest Ordinance, passed in 1787, also provided federal tax monies for religious education. The framers themselves, then, saw no problem with the federal government co-operating with the Christian religion. Even Thomas Jefferson, the famous (or should we say infamous) author of the “wall of separation” phrase, did not believe the First Amendment forbade government aid to religion. For example, in 1796 Congress enacted a law entitled “An Act Regulating the Grants of Land appropriated for Military Services and for the Society of the United Brethren, for Propagating the Gospel Among the Heathen” (emphasis added). This law provided federal monies for payment to Christian missionaries. Yet Thomas Jefferson signed it into law on three separate occasions! He also signed a treaty with the Kaskaskia Indians (1807) which provided money to build a Christian church and for other religious needs. These acts were part of a tradition, which began with Washington, of civilizing the Indians by teaching them Christianity. According to President John Quincy Adams (1828), the Indians were “considered savages, whom it was our policy and our duty to use our influence in converting to Christianity and in bringing within the pale of civilization.”

By 1896, Congress was appropriating annually over $500,000 in support of sectarian Indian education carried on by religious organizations. (See J.M. O’Neill, Religion and Education Under the Constitution) After the colonies declared independence from Great Britain, Jefferson and several other prominent Virginians were appointed to a committee to revise the laws of Virginia. The committee began work in 1776, but it was not until the October 1785 session of the Virginia Assembly that the Revisals were submitted as a whole. Bill #84, entitled “A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers”, forbade employment on Sunday, or the Sabbath, on pain of a fine. Bill #85 authorized the Virginia Assembly to “appoint days of public fasting and thanksgiving”. But the most surprising bill of all is #86, which is entitled, “A Bill Annulling Marriages Prohibited by the Levitical Law”. In effect, Jefferson here codified into civil law, chapters of the Old Testament book of Leviticus. A recommendation such as this would hardly have come from someone who believed that the First Amendment required a “secular” state.

Intentionalism and a nonpreferential interpretation of the establishment clause seems best to accord with the historical evidence. Joseph Story (1779-1845), Associate Justice of the United State Supreme Court, has ably summarized the chief intent of the First Amendment.
The real object of the First Amendment was not to countenance, much less to advance, Mahomedanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastic establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion which had been trampled upon almost from days of the Apostles to the present age…Probably at the time of the adoption of the Constitution, and of the first amendment to it… the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State, so far as was not incompatible with the previous rights of conscience and the freedom of religious worship. An attempt to level all religions and to make it a matter of state policy to hold all in utter indifference would have created universal disapprobation, if not universal indignation. (Commentaries on the Constitution of the United States, sec.1874,1877)
The establishment clause of the First Amendment, therefore, was not designed to create a secular state. Rather, the framers were religious men who desired the greatest possible freedom of religious expression in the public square. The federal government was forbidden from establishing a national church, yet the respective states could, and did, have established churches. The First Congress, as well as Thomas Jefferson himself, did not view the First Amendment as an “impregnable wall” separating Christianity from government. Christianity, at least as a moral code, was the nationally recognized religion; and as such, America was considered a Christian nation. That was the framer’s intent. David J. Vaughan (M.A. in Political Science) is a pastor and Associate Editor of the Metro Voice.

By Stephen McDowell

American constitutionalism has been a keystone in the establishment of civil liberty in recent history. It has been said that next to the Holy Bible, America’s Constitution is the most important document ever written for the benefit of mankind. Such a statement seems justified when you consider that since the United States Constitution went into effect about two hundred years ago, over 175 nations have adopted constitutions, most modeled on that of America. To the extent these nations have applied, both internally and externally, the governmental principles in that document is the extent to which they have experienced liberty, justice, and prosperity. The civil liberty the world has experienced in the past two centuries is largely due to the gradual expansion of American constitutionalism.

Christianity is the source of civil liberty and American constitutionalism.

Where did American constitutionalism and ideas of liberty and individual rights originate? Their development can be traced to the origins of British law, but are ultimately rooted in the Christian religion.

The foundation of American constitutionalism was an understanding by the American people of the Gospel and Biblical law. The founding father of American education, Noah Webster, understood the importance of imparting this truth to American youth. In the Preface to his History of the United States (first published in 1832) he wrote:

The brief exposition of the constitution of the United States, will unfold to young persons the principles of republican government; and it is the sincere desire of the writer that our citizens should early understand that the genuine source of correct republican principles is the Bible, particularly the New Testament or the Christian religion.1

The source of true liberty is the Christian religion. Webster expressed this idea before and after his conversion in 1808. In 1802 in “An Oration on the Anniversary of the Declaration of Independence”

Webster said:

If there is a possibility of founding a perfectly free government, and giving it permanent duration, it must be raised upon the pure maxims, and supported by the undecaying practice, of that religion, which breathes ”peace on earth, and good will to men.” That religion [Christianity] is perfectly republican . . . . it is calculated to humble the pride and allay the discontents of men. . . . It restrains the magistrate from oppression, and the subject from revolt . . . . it secures a perfect equality of rights, by enjoining a discharge of all social duties, and a strict subordination to law. The universal prevalence of that religion, in its true spirit, would banish tyranny from the earth.2

The primary reason civil liberty could be developed in America was because the people understood biblical law and lived according to the principles set forth in the law and the gospel. Their internal self-government and Christian character, and their understanding of important biblical concepts such as covenant and rule of law, allowed them to be able to develop external civil liberty and constitutionalism.

Alexis De Tocqueville observed in Democracy in America that “in America, religion is the road to knowledge, and the observance of the divine laws leads man to civil freedom.”3 The governmental philosophy of a nation is the product of the educational philosophy of a nation. Webster knew that in order for America to be free and prosper, the youth and adults of America must beeducated in governmental principles of liberty, which could only be found in the Christian religion. In 1829 he wrote to James Madison:

that the christian religion, in its purity, is the basis or rather the source of all genuine freedom in government.. . . I am persuaded that no civil government of a republican form can exist & be durable, in which the principles of that religion have not a controlling influence.4

In addition to an understanding of the Christian religion, Webster believed citizens should also be taught fundamental governmental principles and a knowledge of how free governments are structured and operate. Webster provided the first instruction for Americans in our federal constitutional form of government in his American Spelling Book of 1794, which contained a Federal catechism. This was America’s first civics book. American constitutionalism was not a product of human reason. Webster wrote how the American people rejected the ideas of the French Revolution because the Americans “believe the opinion, that man can be governed by his reason improved, without the usual aids of religion and law, to be not merely a chimera, but a dangerous doctrine, calculated to undermine the foundation of morals and all social confidence and security.”5 American constitutionalism was rooted in the absolutes of God’s law. True law is in accord with God’s law. William Blackstone, whose Commentaries of the Laws of England (1765) was a primary resource for those studying law in America until the 20th century, said that “no human laws are of any validity, if contrary to [the] law of nature [which is] dictated by God himself . . . [or to] the law of revelation [which is] to be found only in the holy Scriptures.”6 Early American commentators on law, such as Joseph Story and James Kent, would agree with Blackstone on the Christian source of true law.7 De Tocqueville wrote in 1835 that “there is no country in the whole world in which the Christian religion retains a greater influence over the souls of men than in America.”8 This influence effected every sphere of life, including law and government.

Attack against Christian foundation of law in America

In his Spirit of the Common Law, Roscoe Pound, who was President of Harvard Law School in the 1920s, revealed the nature of the changing view of law in America. Pound, who was not a Christian, did not directly attack the Christian foundation of law in the United States. In fact, he said that the old Christian legal foundation was good and produced many good results; but, he went on to say that this foundation was not good enough to bring us into the modern era. According to him, we needed a new law system, one founded on a different premise. Pound and others claimed that law was rooted in the best that society had to offer—in the consensus of the

society and what they deemed best for mankind—and as society grew and became better, the law would change with it. Evolving law and the sovereignty of the state replaced the absolutes of God’s law. Pound said “the state takes the place of Jehovah.”9 He sought to implement change through the law professors. Many in the judicial system began to embrace this evolving view of law. In the words of Charles Evans Hughes, Supreme Court Chief Justice from 1930 to 1941: “We are under a Constitution, but the Constitution is what the judges say it is.”10 The idea of evolutionary law, rooted in the will of man, has grown rapidly in recent decades. Many people today in America, and throughout the world, claim to be lovers of liberty and democratic government, yet through their attempts to remove every vestige of the Christian religion from our education, government, media, economy, and law are undermining the foundation of our liberty. ”Strange, indeed,” Webster proclaimed, “that the zealous advocates of a republican government, should wage an inveterate war against the only system of religious principles, compatible with rational freedom, and calculated to maintain a republican constitution!”11

Historical Development of Constitutionalism

Civil liberty is a product of the Bible in the hands of the people. The Bible is the law of liberty—personal, religious, and civil. Modern civil liberty has its roots in the Law of God given to Moses by God around 3500 years ago. Jesus Christ affirmed the law of God and especially emphasized the internal aspect of the law. Webster said that the Gospel contains “the genuine principles of civil life—the only principles which can perfect the work of civilization.”12 Civil documents of liberty in history have been a product, directly or indirectly, of biblical ideas. When one examines the history of the civil documents, as well as the ideas contained in them, their biblical and Christian foundations are apparent. These especially took root and grew in Britain. This was due to the unique impact that Christianity had in the history of that nation. Our civil liberties have been secured by some fundamental principles. One is the rule of law, where all men, including the rulers, are subject to the law of the land. Men are not a law unto themselves. Over the centuries written documents have emerged putting forth and developing this idea. Written law is important, but the source of that law is also important in securing liberty. As mentioned, the source of laws of liberty have been the law of God, revealed both in the laws of nature and in the Scriptures, His revealed will to mankind.

British Roots of Constitutionalism

American constitutionalism has its roots in British law. British law has its roots in Christianity. Christianity was introduced in Britain in the first century. As the Celts were converted they established decentralized churches, unlike those that developed in the Roman and Byzantine Empires. This was due in part to their being located on the outer edge of the Roman Empire where little power existed to control them.

Patrick’s Liber Ex Lege Moisi

By A.D. 150 the pastors of the Celtic Churches preached in the common language from interlinear Bible translations called glosses. The greatest of the pastors was Patrick who left England and went to evangelize Ireland in the first part of the fifth century. King Loehaire was converted and made Patrick his counselor, in which capacity he worked to introduce biblical law into the civil realm. Patrick wrote Liber Ex Lege Moisi (Book of the Law of Moses) which was applied by local chieftains or kings throughout Ireland. Liber was a compilation of laws from the Scriptures dealing with civil matters. It emphasized the rule of law and local self government.13

Alfred’s Code of Laws

Alfred the Great was the first king to unite all of England. He ruled from 871 to 899. Alfred instituted Christian reforms in many areas including establishing a government that served the people. Alfred was taught how to read by a Celtic Christian scholar known as Asser. He studied Patrick’s Liber and established the Ten Commandments as the basis of law and adopted many other patterns of government from the Hebrew Republic. The people in the nation organized themselves into units of tens, fifties, hundreds and thousands and had an elected assembly known as the “Witen.” These representatives were called a tithingman (over ten families), a vilman (over 50), a hundredman, and an earl. The earl’s territory which he oversaw was called a “shire,” and his assistant called the “shire-reef,” where we get our word ”Sheriff” today. The Witen also had an unelected House made up of the noblemen, but the king was elected; he was not a hereditary king. Their laws were established by their consent. Alfred’s uniform code of Laws (890) recognized “common law” and had provisions for individual rights, such as trial by jury and habeas corpus. Alfred’s code was derived from Mosaic law and Jesus’ golden rule. Noah Webster said “Alfred’s code is formed from the laws of Moses, and from those of his own predecessors. It beginswith the Ten Commandments.”14

Magna Charta (1215)

Anglo-Saxon law reached its height under King Alfred. It was in decline when William the Conqueror and the Normans invaded England in 1066. The Norman system of government removed the rights of the people. The kings abused the people, barons as well as commoners. Things worsened to the point under King John that the English barons drew up a contract that addressed the abuses and guaranteed the barons certain rights and privileges as contained in biblical law. King John, needing the help of the barons to raise money, reluctantly signed the Magna Charta in 1215. A Catholic clergyman, Stephen Langton, is likely the chief architect of the document. The Pope said it was illegal but the English Catholic Church, due to its Celtic origins, ignored the Pope and preserved the document and expounded it.

A foundation of American constitutionalism is having an established and known set of laws. “Magna Carta announced the rule of law.”15 It asserted the principle that rulers were subject to the law as well as the common people. Throughout history most people have lived under “rulers’ law” where the rulers, in many ways, were the law. There is no security for the liberty and rights of man in such a system. Magna Carta was a great step forward in changing this. It proclaimed the power of the king was limited. Initially, Magna Carta had little practical effect, especially for the commoners for it applied only to ”freemen”, but over time the principles asserted in that document began to take root and grow and were extended to all subjects. A process had begun that would eventually remove the power from the crown and place it in the hands of the people at large. Many Englishmen, including American colonists, appealed to the Magna Carta as a written source of their rights and liberties. “The American colonists . . .viewed Magna Carta as a written constitution limiting the power of government and securing to the individual the rights of trial by jury, the protection of the writ of habeas corpus, and the guarantee that no person could be deprived of life, liberty, or property without due process of law.”16

Some provisions in the Magna Carta that contributed to the advancement of individual rights and civil liberty include:

• Rule of law — the entire document reflects the idea that the rulers are subject to the fundamental law. Article 61 says that anything done contrary to the charter should be considered invalid, and a provision was even given for a committee to use armed force against the king if he attempted to violate the charter (this was never used and this provision was omitted from later reissues of the charter).

• Due process of law — “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed . . . except by the legal judgment of his peers or by the law of the land.” Article 39. (This idea is seen in Amendment 5 of the U.S. Constitution.)

• Trial by jury of peers —(see article 39)

• No taxation without representation — “No scutage or aid shall be imposed in our kingdom except by the common council of our kingdom. . .” Article 12. (John Adams and other Americans cited Magna Carta to support this principle.)

• Religious liberty — “. . . [T]he English church shall be free, and shall hold its rights entire and its liberties uninjured.” Article 1. (This applied to the church rather than the individual.) In the years that followed there were numerous reissues and confirmations of Magna Carta that helped to establish it as the fundamental law of the land. In addition, there were other documents issued over the centuries that built upon Magna Carta. This document came to be seen as a “higher law” similar to a constitution, which had greater force than ordinary laws.

Confirmatio Cartarum (1297)

Confirmatio Cartarum is one of the documents that confirmed the Magna Carta as a “higher law” by declaring any judgements contrary to Magna Carta were void. Confirmatio Cartarum recognized law as a sacred thing, in that the charters were sent to the churches to be kept and to be read twice a year to the people.17 This followed the biblical example where the Law of Moses was to be read to all the people every year. (Similarly, in 1776, the government of Massachusetts ordered that a copy of the Declaration of Independence be sent “to the Ministers of each parish, of every denomination, within this state” and ”that they severally be required to read the same to their respective congregations, as soon as divine Service is ended.”)18 Those who violated the charters were to be excommunicated.19 In addition to helping to establish the Magna Carta as the fundamental law of the land, Confirmatio Cartarum “established Parliament [which had been put into place in 1295] as a truly representative organ of government by providing in section 6 that the taxes must be raised by the common assent of the realm.”20

English Petition of Rights (1628)

The Petition of Right was “the first of those great constitutional documents since Magna Carta, which safeguard the liberties of the people by securing the supremacy of the law.”21 Abuses of power by King James I (1603-25) and King Charles I (1625-49) helped motivate Sir Edward Coke to lead the battle for individual liberties in the House of Commons. Charles agreed to the Petition of Rights in 1628, which strengthened many concepts of personal liberty, though it did little to stop Charles from governing in an arbitrary fashion. Ideas in this document include: Principles of due process and trial by jury upheld; Habeas corpus strengthened; Stopped quartering troops in private homes; No imprisonment without show of cause; Restriction of the King’s power to levy taxes without the consent of Parliament. The Abolition of the Star Chamber in 1641 by the English Parliament was an important step in protecting the rights of individuals by advancing the ideas of due process of law, writ of habeas corpus, and privilege against self-incrimination (which is embodied in the fifth amendment of the U.S. Constitution). This act helped establish in England “a system of justice administered by the courts instead of by the administrative agencies of the executive branch of the government.”22

English Bill of Rights (1689)

The English Bill of Rights reasserted and reenforced ideas that had been expressed before. It contained previously existing rights of the Parliament and people that had been violated by Charles II and James II, and which the newly proclaimed King William was required to observe. Lord Macaulay summarized the general significance of the document as follows: The Declaration of Right, though it made nothing law which had not been law before, contained the germ of the law which gave religious freedom to the Dissenter, of the law which secured the independence of the Judges, of the law which limited the duration of Parliaments, of the law which placed the liberty of the press under the protection of juries, of the law which prohibited the slave trade, of the law which abolished the sacramental test, of the law which relieved the Roman Catholics from civil disabilities, of the law which reformed the representative system, of every law which has been passed during more than a century and a half, of every good law which may hereafter, in the course of ages, be found necessary to promote the public weal, and to satisfy the demands of public opinion.23 The American Colonies were already applying these ideas better than England (see next section), but the Bill of Rights reenforced these principles and gave the colonists another document to appeal to when they resisted England during the revolution. In addition to those mentioned above, other ideas in the English Bill of Rights that came to be expressed in the early U.S. and state constitutions include: the right to bear arms, control of the army by the legislative branch, the prohibition of cruel and unusual punishments, the prohibition of excessive bail, freedom of elections, the right to petition the government, and the prohibition of suspension of laws without the consent of the representatives of the people.

Development of Constitutionalism in America

English law was brought to America by the early settlers; but Americans added to and modified English law such that they took a great forward step in the development of civil liberty. There were at least 86 constitution-like documents written in colonial America from the time of colonization until 1722, and there were 42 others written in England during America’s first century.24 These documents were laying foundational ideas upon which American constitutionalism was being built. They contain general principles, such as covenant, self-

government, virtue, and the biblical purpose of government, and also show the direct biblical foundation of American law, for example, acknowledging God, quoting Scripture in capital laws, and presenting biblical penalties for violation of the law (such as restitution and repeat offenders put to death). The spreading of Christianity was a primary motive for many of the early explorers and settlers of America—from Leif Erikson, who was sent by King Olaf around the year 1000 to proclaim Christianity to Greenland and Vinland,25 and Columbus, who believed the Lord inspired him to set sail,26 to the Pilgrims, Quakers, and Scotch-Irish Presbyterians. Twelve of the original 13 charters, upon which the original 13 colonies were established, specifically mention the propagation of the Gospel as a primary reason for their establishment. These charters also contain numerous rights and liberties. We will examine some of these charters and other important American documents that are sources of our liberties.

First Charter of Virginia (1606)

The First Charter of Virginia assured that the rights of Englishmen traveled with the colonists to North America. This view was unique to the English colonies of America, for other countries viewed their colonists as outside the legal system of the home country. The Virginia Charter of 1606 was the first of many colonial documents that stated the American settlers had the rights of English citizens.27 Patrick Henry mentioned this charter when he spoke of colonists’ right to have representatives levy taxes in his famous 1765 speech in the Virginia House of Burgesses. The third paragraph of the charter speaks of their desire to propagate the “Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government.”28 The first Virginia settlers brought English law with them, but it was not established all at once, nor in total. Joseph Story wrote: The common law of England is not to be taken, in all respects, to be that of America. Our ancestors brought with them its general principles, and claimed it as their birthright; but they brought with them and adopted only that portion which was applicable to their situations.29 The first written laws in America came out of a provision in the Second Virginia Charter for “Laws Divine, Morall, and Martiall, etc.” They were written between 1609 and 1612 by Sir Thomas Gates, Sir Thomas West (Lord Delaware), and Sir Thomas Dale. These laws “represented the first written manifestations of the common law in America.”30 The authors of these laws sought to honor God, with requirements for all to worship, for no ungodly speech, for no blasphemy of God’s name, for no words or acts against God’s holy word, to name only a few. Strict discipline was required for the survival of the colony, and consequently, freedoms were restricted. Many of these laws seem harsh today, but were in keeping with the laws then in effect in England.

Ordinances for Virginia (1618)

The Jamestown Colony was governed, in essence, by martial law for its early years. In 1618 the London Company appointed Sir George Yeardley as governor. Under the new charter or Ordinances for Virginia, he abolished various cruel laws and put into effect new laws, which among other things, called for a legislative assembly. Elections were held in the summer of 1619 and on July 30 the first legislative assembly in the American continent met in the church in Jamestown. The proceedings were opened in prayer by Rev. Richard Buck.31 The rights of

suffrage in Virginia were broader than in England, with even indentured servants possibly being able to vote for the legislators, called burgesses. The Virginia Charter was revoked in 1624 but the colonists held onto the right and desire to govern themselves. In the following years several assemblies convened to deal with various special matters, even though they had no authorization. In 1639 and 1641 the King gave royal consent to Governors Wyatt and Berkeley for a regular assembly of the people. Thus the right of the colonists to elect representatives for governing affairs in their colony became well established. Virginia served as a precedent for many other colonies, though some of them were taking their own steps to assure self-government.

Mayflower Compact (1620)

The Mayflower Compact is one of the most significant of the founding political documents in America. It was written by a small group of English separatists seeking religious and civil freedom, who were undertaking the planting of a colony “for the Glory of God, and Advancement of the Christian Faith.”32 The Compact contains principles of self-government and covenant, which are foundational to American constitutionalism. Andrew McLaughlin writes that “[b]ehind the compact lie the Puritan beliefs in the word of God as a higher law, the establishment of the higher law in written documents, and the formation of government by the consent of individuals.”33 The covenantal nature of American constitutionalism can be traced to these settlers, who on November 11, 1620, still on board the Mayflower, “Do . . . solemnly and mutually, in the Presence of God and one another, covenant and combine ourselves together in to a civil Body Politick.”34 This political document had its origin in the church covenant the Pilgrims had drawn up years earlier—their political philosophy was derived from their Puritan theology. This theology found in the Scriptures the right of men to associate and covenant to form a church and civil government and to choose their own officers to administer both religious and civil affairs. Each member of the congregation had a vote in the election of officers, and each congregation was considered as independent and autonomous of every other and not subject to the authority of any centralized church hierarchy.35 In 1623 the Pilgrims instituted trial by jury and private property rights. In 1636 they compiled “the first comprehensive body of law in North America,”36 which served as a model for future American codes of laws. These laws were based upon Scripture and English precedent. The Laws of the Pilgrims were later revised in 1658, 1671, and 1685, but they all were based upon the idea that the only true law was the law of God as revealed in the Bible. The preface to the 1671 Book of Laws states that “Laws . . . are so far good and wholesome, as by how much they are derived from, and agreeable to the ancient Platform of Gods Law.”37 The specific statutes reflected their biblical philosophy of life. They even quoted Scriptures to support many of their Capital Laws. A great Puritan exodus from England began about 10 years after the Pilgrims first settled in America. The Puritans came not just for religious freedom but to set up a Bible commonwealth.38 This was certainly reflected in their laws and constitutions. The magistrates relied on the Old Testament law, but to make civil laws more plain, Rev. Ward drafted the Massachusetts Body of Liberties in 1641. This combined biblical law and English common law (which was itself rooted in biblical truth).39 The early Puritan civil documents firmly established the basic premise of American civil society, that of the rule of established law, rather than the rule of capricious men.

Charter of Massachusetts Bay (1629)

The men who formed a company to settle in Massachusetts Bay had a goal “to found a state based upon the principles of the Bible and governed by the laws of God.”40 Before emigrating, they obtained an agreement that amounted to the transfer of governmental power from England to the colony. Charters for some of the later colonies followed this example and permitted the colonial governments to reside in the colonies. The Charter of Massachusetts Bay provided the colonists power to elect officers to govern themselves (representative government) and power to make their own laws that were not inconsistent with the laws of England (a degree of self-government). Under the provisions of the Charter, the General Court of Massachusetts would later (in 1646) assert that their colonial government was not subordinate to Parliament. Thus, the charter “provided at an early date the basis for the idea, often voiced by the colonial patriots at the time of the American Revolution, that the statutes of England were limited in their application to England and did not reach beyond the seas.”41 The charter reveals the Christian mission as the central motive of those behind colonization. In the charter, provisions were made for establishing laws, electing representatives, punishing offences, etc. ”whereby our said People, Inhabitants there, may be soe religiously, peaceablie, and civilly governed, as their good Life and orderlie Conversacon, maie wynn and incite the Natives of Country, to the Knowledg and Obedience of the onlie true God and Sauior of Mankinde, and the Christian Fayth, which in our Royall Intencon, and the Adventurers free Profession, is the principall Ende of this Plantacion.”42

The Charter of Maryland (1632)

The Charter of Maryland (1632) revealed the motive of Catholic proprietor Cecil Calvert, Lord Baltimore, in establishing the colony of Maryland — “being animated with a laudable, and pious Zeal for extending the Christian religion.”43 Lord Baltimore established a policy of religious toleration in 1634, which furnished a strong motive for many of the early settlers (both Protestant and Catholic), without which the colony would probably not have been planted. The right of religious freedom was established by law in the Act Concerning Religion (or the Toleration Act) of 1649. During its first century, Maryland was the scene of continued struggle over application of English laws in the colony. By 1732 it was firmly established that the English statutes of liberty did apply to the colonists in Maryland.

Fundamental Orders of Connecticut (1639)

In 1636 Rev. Thomas Hooker led about 100 members from his church in New Town, Massachusetts to settle along the Connecticut River. Not long after this, two other congregations from Massachusetts went to settle in Connecticut. Thus, covenant church communities adhering to the principle of self-government under God comprised the foundation of the Connecticut Colony. Religious and political differences with the Massachusetts leaders motivated them to emigrate. They were especially concerned with the almost unlimited power of the magistrates. Hooker wrote Winthrop that “the judges must have some rule to judge by or government would degenerate into tyranny and confusion.”44 Their experiences helped shape the writing in 1639 of the Fundamental Orders of Connecticut, the first written constitution in history that led to the formation of a new commonwealth. The content of the Fundamental Orders was greatly influenced by a sermon Hooker preached before the General Court on May 31, 1638, in which he maintained that “the foundation of authority is laid in the free consent of the people,” “that the

choice of public magistrates belongs unto the people by God’s own allowance,” and that “they who have power to appoint officers and magistrates have the right also to set the bounds and limitations of the power and place unto which they call them.”45 This constitution, which contained many biblical rights and ideas expressed politically, would have a great influence on American constitutionalism. Historian John Fiske wrote that “the government of the United States today is in lineal descent more nearly related to that of Connecticut than to that of any of the other thirteen colonies.”46

Adopted January 14, 1639, the Fundamental Orders began with the inhabitants covenanting together under God “to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess.”47 It gave the governor and magistrates “power to administer justice according to the Laws here established, and for want thereof according to the rule of the word of God.”48 The required oath of office ended with the elected official saying: “I . . . will further the execution of Justice according to the rule of Gods word; so helpe me God, in the name of the Lo: Jesus Christ.”49 Some of the principles in the document include the rule of law, poplar elections, representative government, freedom of speech, local self-government, and taxes levied only by representatives. Noah Webster used Connecticut’s Constitution as a model for a new federal constitution in his Sketches of American Policy. He said it was “the most perfect on earth” and provided a great example of the balance of power between local and state governments.50 Connecticut’s code of laws (1642 and following, see Blue Laws below) were a model for many other colonies. In 1662 Connecticut was granted a charter by Charles II which allowed much freedom in local matters, even up until the time of the revolution.

Massachusetts Body of Liberties (1641)

The Massachusetts Body of Liberties was probably the first real bill of rights and expresses the colonists’ claims to individual liberties. It was a precursor of the U.S. Bill of Rights and was a great step forward in civil liberty. The mixture of Puritan theology with English law shows the distinct trends of American constitutionalism. Here are contained the important American ideas that the fundamental law of the land should be written down and consented to by the citizens, that such a constitution expresses the limits on civil government, and that individual liberties should be written as a bill of rights. The election of representatives was also affirmed. Some of the rights and liberties contained in this document include: trial by jury, freedom of speech and assembly, religious freedom, no double jeopardy, and no self-incrimination. In addition, monopolies were forbidden, except for a short time in the case of inventions; cruel and inhuman punishment was forbidden; and cattle and goods were not to be taken without reasonable compensation. The biblical worldview of the colonists was evident in this document. The Scriptures were the source of the penal laws, civil liberties, and other ideas in the Body of Liberties. Section 1 states that no man’s life or property can be taken except by some express law that has been sufficiently published, “or in case of the defect of a law in any parteculer case by the word of god.”51 In section 94 where the capital laws are listed, specific scripture verses are given to support such laws. Section 95 is “A Declaration of the Liberties the Lord Jesus hath given to the Churches.” Many other ideas in the document come directly from the Scriptures, such as section 47: “No man shall be put to death without the testimony of two or three witnesses or that which is equivalent thereunto.”52 Other colonies would later follow the example of what Massachusetts did in the Body of Liberties. These would eventually have a great effect on the Bill of Rights of the U.S. Constitution.

Charter of Rhode Island (1663)

Religious liberty was part of the fundamental law of the colony of Rhode Island—the first such constitutional provision. (This was more than a legislative enactment, like in the Maryland Toleration Act). Religious liberty up until this time was more religious toleration. Establishment of true religious liberty was distinctly an American idea, and first became part of the fundamental law in Rhode Island. Roger Williams founded Rhode Island in 1636 when he was forced to flee Massachusetts due to conflicts with the Puritans. His extreme views concerning religious practices brought disfavor with the Puritan authorities in Massachusetts Bay and with the Pilgrims in the Plymouth Colony. After establishing Providence with some other individuals who for various reasons were out of favor with the Massachusetts authorities, they drew up a written covenant in 1636 that, among other things, said the authority of civil government should not extend to religious matters. The idea was that legislative powers should extend only to actions and not opinions. Over the years other like-minded settlers came to Rhode Island. In 1644 Williams obtained a patent for Rhode Island from the Long Parliament. In 1663, after the restoration of the English monarchy, the leaders in Rhode Island obtained a charter from King Charles II. Since this charter recognized the rights and form of self-government already in place, it remained in force through American independence, up until 1842 when a formal constitution replaced it. In addition to the guarantee of religious liberty, the Charter of Rhode Island contained provisions for the colony to make their own laws, provided that they were conformable to the laws of England, and to set up their own forms of government. The American ideas of self-government and religious liberty were further extended. Other colonies, such as Carolina and New Jersey, would copy the provision of religious liberty found in Rhode Island.

The charter mentioned their intentions of “godlie edifieing themselves, and one another, in the holie Christian ffaith and worshipp” and their desire for the “conversione of the poore ignorant Indian natives.”53 Their plan for conversion was to be through their examplary lifestyle, both personally and civilly—that the inhabitants “may be soe religiously, peaceably and civilly governed, as that, by theire good life and orderlie conversatione, they may win and invite the native Indians of the countrie to the knowledge and obedience of the onlie true God, and Saviour of mankinde.”54

“Blue Laws” of New Haven Colony (1656)

In 1655 Governor Eaton, as an “able, judicious and godly man,”55 was appointed to form a code of laws for the New Haven colony based upon the laws of the colony that had been developed over the years, aided by the laws of the colony of Massachusetts and other writings. The past laws had been passed on verbally and through hand-made copies. Five hundred copies of the new compilation were printed in England in 1656. These came to be known as “blue laws” because these first printed laws were enveloped in blue colored paper. The name “Blue Laws” was later applied to laws in many other colonies, and, after independence, various states, even in use up until recent times. Governor Eaton made “the sacred volume his guide, and has cited scripture in all cases upon which his laws were founded.”56 Upon reading these laws, it is obvious that the

Bible was the central source for what constituted lawful and unlawful behavior. Scripture is quoted for capital offences, and in cases of theft the biblical idea of restitution was applied. The incorrigible criminal was also addressed.57 The Blue Laws acknowledged “that the supreme power of making laws, and of repealing them, belong to God only, and that by him, this power is given to Jesus Christ, as Mediator, Math. 28:19. Joh. 5:22. And that the Laws for holinesse, and Righteousness, are already made, and given us in the scriptures.”58 This code of law formed the foundation of the civil government of the state and influenced laws throughout the United States.

Frame of Government of Pennsylvania (1682)

Pennsylvania was established in 1681 when Quaker William Penn was given a tract of land between New York and Maryland by the King of England in payment for a debt the Crown owed to William’s father, Admiral William Penn. Having experienced much persecution for his Christian beliefs, Penn asked for the land desiring to plant a colony “which should open its doors to every kindred” and be a refuge for men of all creeds. He wanted it to be a model state — “a holy experiment” — in which his ideals could be realized; an example of toleration and liberty on a grand scale. After Penn received the charter for Pennsylvania he wrote that “my God that has given it me through many , will, I believe bless and make it the seed of a nation.”59 Penn worked more than a year on formulating a constitution or Frame of Government for Pennsylvania, which was adopted in England on April 25, 1682. The Christian nature of this document is readily evident. The Preamble begins: When the great and wise God had made the world, of all his creatures, it pleased him to chuse man his Deputy to rule it: and to fit him for so great a charge and trust, he did not only qualify him with skill and power, but with integrity to use them justly.60 Penn then summarizes the purpose of law by quoting the Apostle Paul from Romans 13 and other of his epistles. He then writes of the divine nature of civil government:

This settles the divine right of government beyond exception, and that for two ends: first, to terrify evil doers: secondly, to cherish those that do well. . . . So that government seems to me a part of religion itself, a thing sacred in its institution and end. For, . . . it crushes the effects of evil, and is as such,. . . an emanation of the same Divine Power, that is both author and object of pure religion.61

The Frame of Government recognized the Lord’s Day (the Sabbath), biblical standards for marriage — “all marriages (not forbidden by the law of God, as to nearness of blood and affinity by marriage) shall be encouraged,”— and biblical qualifications for civil officials — “all . . . shall be such as possess faith in Jesus Christ.”62 All offenses against God were to be discouraged and punished, and many were listed. Religious freedom was granted to all persons “who confess and acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the world.”63 Besides direct recognition of Christianity, there were many civil rights and governmental ideas that were derived from the Bible. These included the rule of law, representative government, freedom of the individual, no arbitrary taxation, free and fair elections, trial by jury of peers, need for true witnesses, punishment of perjury, and restitution to the wronged party. Private property rights were also protected and ownership of land by all people was made easy. Ownership of land was a requirement to vote or hold office, but it was easy for anyone to acquire land, including indentured servants. Freeman were to own 100 acres of land and have 10 acres cultivated, but they could purchase the land at one penny an acre. Those who came as indentured servants, and had paid off their debt, were to own 50 acres, with 20 cultivated, to be able to vote and hold office. Inhabitants could even become freemen by paying “scot and lot” (a contribution paid by the subject according to his ability) to the government.64 Some people today have depicted the founders as non-egalitarians by restricting freemen to property owners, but they fail to point out how easy it was to acquire property in many of the colonies, such as in Pennsylvania. Many of these ideas existed in various degrees in other colonies but were greatly strengthened by William Penn. His preface states the importance of these for liberty and communicates his spirit in ideas of constitutionalism, which would be seen later in the U.S. Constitution and the Bill of Rights.65

Pennsylvania Charter of Privileges (1701)

Penn’s original Frame of Government was replaced in 1701 by the Charter of Privileges. This document has been described as “the most famous of all colonial constitutions,”66 and is a further assertion of constitutionalism where the liberties contained therein cannot be usurped by capricious legislation of a majority. This document required six-sevenths of the Assembly to change it. It contains many important rights and ideas such as: liberty of conscience (which Penn considered so important that he declared in section eight that it should remain inviolable forever), religious liberty, representative government, and due process. Section one contains qualifications of officers where “all Persons who also profess to believe in Jesus Christ, the Saviour of the World, shall be capable (notwithstanding their other Persuasions and Practices in Point of Conscience and Religion) to serve this Government in any Capacity, both legislatively and executively.”67

Resolutions of the Stamp Act Congress (1765)

Nine of the colonies were represented at this Congress which met to deal with the Stamp Act and the unjust attempt by Britain to impose taxes on the colonists without their consent. The Americans began to assert their rights as Englishmen and stand upon the various liberties that had become a part of English and American law. These were men of principle acting upon constitutional rights and duties. In resisting the Stamp Act, the colonists not only argued that it violated their rights as Englishmen, but it violated the higher laws of nature and of nature’s God. Samuel Adams said of the Stamp Act that it “is utterly void, and of no binding force upon us; for it is against our Rights as Men and our Privileges as Englishmen. An act made in defiance of the first principles of Justice. . . . There are certain Principles fixed unalterably in Nature.”68

Declaration and Resolves of the First Continental Congress (1774)

In September 1774 delegates from all of the colonies, except Georgia, met in Philadelphia to address the oppressive actions of England. For nearly a decade prior to this, the colonists had resisted various acts of Parliament which asserted the belief that England had the right to full powers of sovereignty in colonial matters. The colonists’ resistance was met by acts of retaliation. These conflicts helped to solidify colonial ideas of individual liberty. Many of these ideas are well expressed in the Declaration and Resolves of the First Continental Congress. Before taking up the important issues before them, the First Continental Congress passed a resolve asking the Rev. Mr. Duché to open the Congress in prayer, revealing their Christian character. The Journal of the Proceedings of Congress record the vote of thanks of Congress given to Mr. Duché “for performing divine service, and for the excellent prayer.” John Adams wrote to his wife Abigail of the great effect Rev. Duché’s prayer had upon the Congress.69 The Declaration and Resolves of the First Continental Congress was an important forerunner of the Declaration of Independence and the declarations of rights found in various state constitutions. It based the rights of the colonists on “the immutable laws of nature, the principles of the English constitutions, and the several charters or compacts.”70 The law of nature was thus adopted as one of the foundations of the rights of the colonists, and would be appealed to again in the other documents. James Otis, in his famous pamphlet “The Rights of the British Colonies Asserted and Proved,” had some years earlier shown the colonists’ understanding of the laws of nature: To say the Parliament is absolute and arbitrary is a contradiction. The Parliament cannot make 2 and 2, 5: Omnipotency cannot do it. The supreme power in a state . . . strictly speaking, belongs alone to God. Parliaments are in all cases to declare what is for the good of the whole; but it is not the declaration of Parliament that makes it so: There must be in every instance a higher authority, viz. God. Should an Act of Parliament be against any of His natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.71 This was certainly not a new idea. As we have seen, the colonists often appealed to God’s higher law as the source of the rights and liberties. Locke, Blackstone, and others also wrote of the laws of nature being the will of God as revealed in His creation and in the conscience of man, and the laws of nature’s God as being the will of God revealed in the Scriptures. Rights exerted in this document include: no taxation without representation, no standing armies or the quartering of troops without the consent of the colonial legislatures, no suspension of colonial legislatures or representative bodies, trial by jury, and right of petition.

Declaration of the Causes and Necessity of Taking up Arms (July 6, 1775)

Though fighting had already begun (on April 19, 1775 at Lexington), the Second Continental Congress expressed hope for reconciliation with Great Britain in the Declaration of the Causes and Necessity of Taking up Arms, but at the same time approved and justified the use of force against the British. This document lists various reasons why force was now necessary to defend themselves. It states numerous violations of their rights by British policy including being deprived of trial by jury, suspension of various legislatures, imposition of taxes without representation, and quartering soldiers in the colonists’ homes in times of peace. It lists one statute of parliament as a summary of all the abuses — that parliament can “of right make laws to bind us in all cases whatsoever.”72 This document was to be proclaimed by General George Washington when he assumed command of the Continental Army in Boston. They wanted the world to see that, “Our cause is just.” They gratefully acknowledged God’s Providence and his “Divine favour,” and declared they would exert the utmost energy of “those powers, which our beneficent Creator hath graciously bestowed upon us. . . ; being with one mind resolved to die freemen rather than to live slaves.” They ended the Declaration: With an humble confidence in the mercies of the supreme and impartial Judge and Ruler of the Universe, we most devoutly implore his divine goodness to protect us happily through this great conflict, to dispose our adversaries to reconciliation on reasonable terms, and thereby to relieve the empire from the calamities of civil war.73

Declaration of Independence (July 4, 1776)

Though fighting had begun in April 1775, most Americans were hesitant to declare independence. It was only after a series of events over many months that public opinion solidified in favor of such action. These events included: England sending troops to fight against the colonists; King George issuing a proclamation on August 23, 1775, declaring that the colonists were all traitors in rebellion; and the Parliament suspending trade with all of the colonies on December 22, 1775. After these events, no other action except independence seemed possible for the Americans to secure their liberties. In accordance with the instructions from the Virginia Convention of May 1776, Richard Henry Lee introduced in Congress on June 7 three resolutions which included a proposal for a declaration of independence. A committee of five was appointed on June 11 to prepare such a document, and included Thomas Jefferson who wrote the initial draft. After a few changes by the committee and Congress at large, the Declaration was approved. The first paragraph states its purpose and appeals to “the laws of nature and of nature’s God” as the source of the authority for their action. As stated earlier, this phrase meant the will of God as revealed in nature and in the Holy Scriptures. The second paragraph sets forth their political philosophy. This did not contain anything new, but merely built upon the ideas that had developed over the centuries, especially since the beginning of the American colonies. They acknowledged the Creator as the source of unalienable rights — not men nor government. They then present a biblical view of the purpose of civil government and the appropriate manner to go about correcting governments that are not fulfilling their biblical responsibilities. The listing of numerous grievances shows the principled response of the Americans in establishing the justice of their cause before a “candid world.” They concluded by “appealing to the Supreme Judge of the world” and ”with a firm reliance on the protection of DIVINE PROVIDENCE.” The addition of these two phrases by the entire Congress to Jefferson’s original draft make them even more significant, as it appears the Congress wanted to make plain to the world their Christian convictions.

State Constitutions

Even before independence, Virginia had approved a Bill of Rights (on June 12) and a constitution (on June 29). Both of these were a model for many other state constitutions and bills of rights that began to be passed after approval of the Declaration of Independence. The Virginia Bill of Rights, largely written by George Mason, was “one of the most important forerunners of the first ten amendments to the Constitution of the United States.”74 These various bills of rights reflected the Founder’s view that individual liberties should be embodied in the fundamental law of the land. The Virginia Bill of Rights (as those of other states) contained fundamental principles that were rooted in biblical truth and Christian civilization and had developed over centuries. It stated that no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental principles.75 One of these fundamental principles was freedom of religion — “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.” The Bill of Rights concludes by stating “that it is the mutual duty of all to practise Christian forbearance, love, and charity towards each other.”76

Within a few years of independence all the states except Connecticut and Rhode Island had adopted constitutions. Connecticut and Rhode Island were already operating under charters that allowed much self-government and so only slight modifications were necessary to reflect their independent status. All of the new constitutions of the states recognized certain fundamental rights of citizens. The Pennsylvania Declaration of Rights was similar to Virginia’s and acknowledged many inalienable rights including: frequent and free elections, trial by jury, right to confront accusers and present evidence of defense, privilege not to be compelled to testify against oneself, freedom of the press, liberty of conscience, freedom of speech and worship. The Constitution of Pennsylvania (August 16, 1776) recognized the biblical purpose of government to protect “the community . . . and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man.” It acknowledges “the goodness of the great Governor of the universe (who alone knows to what degree of earthly happiness mankind may attain, by perfecting the arts of government).”77 Delaware’s Constitution and Declaration of Rights (1776) was similar in protecting individual liberties, but like many other states restricted the guarantee of civil liberties to Christians. Section 3 of the Declaration of Rights states “that all persons professing the Christian religion ought forever to enjoy equal rights and privileges in this state.”78 Since nearly every American at this time identified themselves with the Christian religion this was not as restrictive as some may suppose today. Eight of the original 13 states favored one denomination above others and four had required general affirmations of faith in Protestant Christianity. The establishment of particular denominations would end by the 1830s, but the requirement of officials to adhere to Christian convictions would remain for some time. It could well be argued that even today the U.S. Constitution (as well as various state constitutions) only allows Christians in public office, for, among other reasons, elected officials must take an oath of office. Upon examination, this oath was clearly a Christian oath.79

All of the State Constitutions acknowledged God and protected numerous God-given rights. The Constitution of Maryland (1776) states: “it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty.” The oath of office included “a declaration of a belief in the Christian religion.”80 The Constitution of Massachusetts (1780) acknowledged “the goodness of the great Legislator of the universe . . . His providence. . . . and devoutly imploring His direction.” It declared: “It is the right as well as the duty of all men in society, publicly, and at stated seasons, to worship the SUPREME BEING, the great Creator and Preserver of the universe.” It also recognized that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality.”81 The unalienable right to worship God according to the dictates of conscience is contained in the Constitution of New Hampshire (1784). It also recognizes “morality and piety, rightly grounded on evangelical principles” as the “best and greatest security to government.”82

Northwest Ordinance (1787)

Initially passed by Congress on July 13, 1787 (and re-ratified under the U.S. Constitution of 1789), the Northwest Ordinance provided government for the territory northwest of the Ohio River and set requirements for the admission of new states into the union. It established the policy that the settlers of the territories should enjoy the same liberties as citizens of the states,

thus extending individual rights to new states. This was similar to the way that the Virginia Charter of 1606 extended English rights to the settlers. During the 180 years separating the two documents, many new unalienable rights and liberties had become firmly established in American society. In keeping with what had become a familiar feature of American law, the Northwest Ordinance contained a written bill of rights, the first such list by the federal government. This assured extension of the individual rights guaranteed in the states, and listed in the various bills of rights of the states, to new territories and states. The Ordinance required officials to take an oath of fidelity and of office, and promoted “extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected.” Article I provides for religious liberty, and Article II lists various individual rights including habeas corpus, trial by jury, proportionate representation, no cruel or unusual punishment, judgment of peers, and private property rights. Article III acknowledges the religious foundation of schools and government when it states: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Article VI prohibited slavery in the new territory and in any states that would be formed.83

United States Constitution (1789)

After independence, the states entered into a “league of friendship” with each other under the Articles of Confederation (agreed to by Congress in 1777 and approved by all the states in 1781). The weaknesses under the Articles were such that no permanent union of the states was likely. A lack of power for the central government, no executive, and no taxing powers limited the Congress from adequately handling problems faced during the war and in the early years after the Treaty of Peace (1783) with Britain. Most people recognized the weaknesses of the confederation, but many thought revising the Articles was sufficient. Others such as James Madison and Noah Webster knew more needed to be done.

Webster’s contribution to American constitutionalism

In the decade following America’s independence, Noah Webster sought to produce a strong union among the newly independent American states. He saw that education was a key means of accomplishing this and wrote three textbooks — Speller (1783), Grammar (1784), and Reader (1785) — that provided a content that was uniquely American, and also principles that were necessary to support the nation. His textbooks and educational reforms were intended to strengthen the unity among the American people, which would strengthen their external union. Webster saw his work to bring a standardization to the American English language as a means to unify the American people because he felt the union would be strong as the people spoke the same language. In his Sketches of American Policy (1785) he was one of the first (if not the first) to put in print a plan for a new national government. Webster believed his proposals contained “the first distinct proposal, made through the medium of the press, for a new constitution of the United States.”84 Webster promoted his ideas as he traveled throughout the colonies. He visited George Washington and left a copy of his booklet with him, who in turn showed it to James Madison. These men carried Webster’s ideas for a new form of national government with them when they participated in forming the United States Constitution during the summer of 1787. Webster had seen the weakness of the national government under the Articles of

Confederation when he attempted to secure copyright legislation to protect his textbooks. Though agreeing with Webster’s policy, the Congress was unable to enact copyright legislation under the provisions of the Articles and so Webster had to travel to all the states to promote copyright legislation laws.

Copyright legislation was just one of many of Webster’s ideas there were incorporated into the United States Constitution. Not only had Washington and Madison read his Sketches, but virtually every man who participated in the convention read it as well. Most of the principles Webster presented for creating a new government were put into the Constitution by the framers. His provisions included a surrender of a degree of state sovereignty to a stronger Congress, “a supreme power at the head of the union,” “all power is vested in the people,” equal representation of the states in Congress, and congressional power to regulate and impose duties on interstate commerce.85 Webster also proposed the abolition of slavery.86 Most of his ideas were not original. He was simply drawing from the best available sources and included many of the documents examined above, including the Declaration of Independence and various state constitutions (especially Connecticut’s). Washington, Hamilton and others had presented various ideas for a new government, yet Webster was the first to give an overall framework. Madison and others acknowledged Webster’s key role. New York State Chief Justice James Kent said Webster was “the first man who proposed the present government” of the United States.87

The document that was approved by the Constitutional Convention in September 1787 and sent to the states for ratification had both a Christian power and form— a Christian power because the source of the Founders ideas primarily came from the Bible. The brief summary of the development of ideas of liberty given above reveal this to be the case, plus this is affirmed by a direct examination of the source of their political ideas. A study was published in The American Political Science Review that listed the citations from about 15,000 political documents written by the Founders between 1760 and 1805. By far the most quoted source in these political documents was the Bible—34% of all citations. The great majority of the remaining sources were from writers with biblical ideas.88 In addition, almost ever one of the Founders were Christians who had a biblical worldview. Even the 2 or 3 non-professing Christians at the Convention had a biblical view of life. (Franklin is the most famous of these. His call for prayer at the Constitutional Convention reveals his belief in God’s active involvement in His creation.89) The form of the Constitution is Christian as well; that is, the framework of the document reflects a Christian view of man and government. These general ideas include representative government, the separation of powers, the rule of law, and the unique concept of federalism.90 The Preamble to the Constitution contains a good summary of the biblical purpose of civil government. The document directly acknowledges God in the requirement of an oath of office (Article 6), in recognizing the Christian Sabbath (Article 1, section 7, paragraph 2), and in dating itself “in the year of our Lord” (Article 7).91 The first ten amendments to the Constitution were ratified in 1791. The individual liberties secured in this Bill of Rights were developed out of Christian civilization and were derived from the Bible and a biblical understanding of unalienable rights. These ideas were not new, but, as we have seen, were developed over many centuries. To our Founders, the primary purpose of civil government is to protect the citizens’ God-given rights. Lack of a listing of these rights in the original Constitution caused many to oppose ratifying it. Many of those who voted to ratify it in various states did so only after being assured a Bill of Rights would be added.

During the summer of the Constitutional Convention Webster was living in Philadelphia and he had numerous discussions with many of the delegates. Near the close of the convention, Webster was asked by one of the delegates to write a paper in support of the new constitution as a means of encouraging ratification by the states. His 55 page essay — An Examination into the Leading Principles of the Federal Constitution Proposed by the Late Convention Held at Philadelphia92 — was completed in about a month, and then was printed and distributed widely. It played an important part in assuring the ratification of the new constitution. In Examination Webster compares the Constitution to “the promulgation of the Jewish laws at Mount Sinai.”93 He wrote the “the origin of the AMERICAN REPUBLIC is distinguished by peculiar circumstances. Other nations have been driven together by fear and necessity. . . . In the formation of our constitution the wisdom of all ages is collected—the legislators of antiquity are consulted, as well as the opinions and interests of the millions who are concerned. In short, it is an empire of reason.”94

As we have examined the development of ideas of liberty and constitutional principles, we have seen that the greatest “wisdom of the ages” affecting civil documents of liberty has arisen from the Christian religion and the precepts of the Bible. This is the primary source of American constitutionalism, and consequently, civil liberty throughout the world. Such an understanding must be transferred to all Americans in this and future generations if liberty is to be maintained. Noah Webster had a vision for educating all Americans, and posterity, in principles of liberty. His entire life was devoted to fulfilling this end. His Speller of 1794 had a Federal catechism and was the first text to educate Americans in the form of our government. His History of the United States taught fundamental governmental principles. His textbooks also contained writings of the best of American literature which he intended to inspire youth with “a love of virtue, patriotism, and religion.”95 His An American Dictionary of the English Language (1828) gave American Christian constitutional definitions.96 Webster not only sought to educate Americans in the source of our liberties, in constitutional principles, and in a knowledge of how our form of government works, but he, most importantly, sought to infuse into Americans the power or spirit necessary to support liberty. Both the power and form of free nations is rooted in Christianity. Webster wrote: “Men may devise and adopt new forms of government; they may amend old forms, repair breaches, and punish violators of the constitution; but there is, there can be, no effectual remedy, but obedience to the divine law.”97 As we obey God’s law and act upon the principles of Christianity, we shall see mankind advance, for, according to Webster, the gospel of the Savior contains “the genuine principles of civil life—the only principles which can perfect the work of civilization.”98

Notes

1. Noah Webster, History of the United States, New Haven: Durrie & Peck, 1833, p. v.

2. Noah Webster, “An Oration on the Anniversary of the Declaration of Independence,” New Haven, 1802, in

American Political Writing during the Founding Era, 1760-1805, vol, 2, Charles S. Hyneman and Donald S. Lutz, editors, Indianapolis: Liberty Press, 1983, p. 1227.

3. Alexis de Tocqueville, Democracy in America, edited by Richard D. Heffner, New York: The New American Library, 1956, p. 47.

4. Webster to James Madison, 16 October 1829, Madison Papers, Series 2, Library of Congress. Quoted in Defining Noah Webster, Mind and Morals in the Early Republic, by K. Alan Snyder, New York: University Press of America, 1990, p. 253.

5. Webster, Ten Letters to Dr. Joseph Priestly (New Haven: Read and Morse, 1800), p. 8. Quoted in Snyder, p. 191.

6. William Blackstone, Commentaries on the Laws of England (4 Vols. 1765-1769), St. George Tucker’s American Edition, pp. 41-42.

7. See Commentaries on the Constitution of the United States (1833) by Joseph Story and Commentaries on American Law (1826-1830) by James Kent.

8. Herbert W. Titus, God, Man, and Law: The Biblical Principles, Oak Brook, Il: Institute in Basic Life Principles, p. 19.

9. Roscoe Pound, The Spirit of the Common Law, New York: The Legal Classics Library. 10. Quoted in David Barton, Original Intent, Aledo, Tex: WallBuilder Press, 1996, p. 172.

11. Noah Webster, “An Oration on the Anniversary of the Declaration of Independence,” New Haven, 1802, in American Political Writing during the Founding Era, 1760-1805, vol, 2, p. 1227.

12. Noah Webster, Letter IX, Letters to a Young Gentleman Commencing His Education, New Haven: Howe & Spalding, 1823, p. 149.

13. For more on the Celtic Church and Patrick’s Liber see, Leslie Hardinge, The Celtic Church in Britain, London: Church Historical Society, 1973.

14. Noah Webster, Letter IX, Letters to a Young Gentleman Commencing His Education, p. 144.

15. Sources of Our Liberties, Richard L. Perry, editor, New York: American Bar Foundation, 1952, p. 1. 16. Ibid., p. 5.

17. See clause 3 of Confirmatio Cartarum, November 5, 1297, in Sources of Our Liberties, p. 30.

18. See America’s Providential History by Mark Beliles and Stephen McDowell, Charlottesville, Va.: Providence Foundation, 1989, pp. 145-146.

19. See clause 4 of Confirmatio Cartarum, in Sources of Our Liberties, p. 30. 20. Sources of Our Liberties, p. 25, 31. 21. Ibid., p. 62. 22. Ibid., p. 132. 23. Ibid., p. 244.

24. See Donald S. Lutz, “From Covenant to Constitution in American Political Thought,” Publius, Fall 1980, pp. 101-133.

25. See Edward Channing, A History of the United States, vol. 1, New York: The MacMillan Company, 1919, pp. 1 ff.

26. See Christopher Columbus’s Book of Prophecies, reproduction of the original manuscript with English translation by Kay Brigham, quincentenary edition, Barcelona, Spain: CLIE Publishers.

27. See The First Charter of Virginia, paragraph 15, in Sources of Our Liberties, p. 44. 28. Ibid., p. 40.

29. Sources of Our Liberties, p. 36.

30. Introduction, For the Colony in Virginea Britannia, Lawes Divine, Morall and Martiall, etc., compiled by William Strachey, edited by David H. Flaherty, the University Press of Virginia, Charlottesville, 1969, pp. ix.

31. See In God We Trust Tour Guide, by Stephen McDowell and Mark Beliles, Charlottesville, Va.: Providence Foundation, 1998, p. 124.

32. The Mayflower Compact, in Sources of Our Liberties, p. 60. 33. Sources of Our Liberties, p. 57.

34. The Mayflower Compact, in Sources of Our Liberties, p. 60. 35. Sources of Our Liberties, p. 57.

36. The Laws of the Pilgrims, A Facsimile Edition of The Book of the General Laws of the Inhabitants of the Jurisdiction of New Plimoth, 1672 & 1685, Wilmington, Del.: Pilgrim Society, 1977, p. xiv.

37. Ibid., p. 1.

38. See Builders of the Republic, vol. 8 of The Pageant of America, New Haven: Yale University Press, 1927, p. 8.

39. For the origins of common law see, Gary Amos, Defending the Declaration, Charlottesville, Va.: Providence Foundation, 1994.

40. Sources of Our Liberties, p. 77.

41. Ibid., p. 80.

42. Charter of Massachusetts Bay, in Sources of Our Liberties, p. 94.

43. The Charter of Maryland, June 20, 1632, in Sources of Our Liberties, p. 105. 44. Sources of Our Liberties, footnote 4, p. 105.

45. John Fiske, The Beginnings of New England, New York: Houghton, Mifflin and Co., 1898, p. 136. 46. Ibid., pp. 137, 140.

47. Fundamental Orders of Connecticut (spelling has been modernized), in Sources of Our Liberties, p. 120. 48. Ibid.

49. Ibid., p. 123.

50. Harlow Giles Unger, Noah Webster, The Life and Times of an American Patriot, New York: John Wiley & Sons, Inc, 1998, p.88.

51. Massachusetts Body of Liberties, in Sources of Our Liberties, p. 148. 52. Ibid., p. 153.

53. Charter of Rhode Island, in Sources of Our Liberties, p. 169. 54. Ibid., p. 173.

55. The Blue Laws of New Haven Colony, usually called Blue Laws of Connecticut . . ., By An Antiquarian, Hartford: printed by Case, Tiffany & Co., 1838, p. iii.

56. Ibid., p. v.

57. Ibid., see pp. 157 ff and 155-156. 58. Ibid., p. 145.

59. McDowell, In God We Trust Tour Guide, p. 79.

60. Frame of Government of Pennsylvania, in Sources of Our Liberties, p. 209. 61. Ibid., p. 210.

62. Ibid., pp. 216, 218, 220. 63. Ibid., p. 220. 64. Ibid., p. 217.

65. Sources of Our Liberties, p. xviii. 66. Ibid., p. 66.

67. Pennsylvania Charter of Privileges, in Sources of Our Liberties, p. 256.

68. Sources of Our Liberties, p. 28. See also The Rights of the Colonists by Samuel Adams, in Christian History of the Constitution, by Verna Hall, Foundation for American Christian Education, 1980, pp. 365-370.

69. See Journal of the Proceedings of Congress, 1774, a facsimile edition, Philadelphia: Library Company of

Philadelphia, 1974, pp. 24-25; and The Book of Abigail and John, Selected Letters of the Adams Family, 1762-1784, Cambridge, Ma.: Harvard University Press, 1975, p. 76.

70. Declaration and Resolves of the First Continental Congress, 1774, in Sources of Our Liberties, p. 287. 71. Sources of Our Liberties, pp. 264-265.

72. Declaration of the Causes and Necessity of Taking up Arms, in Sources of Our Liberties, p. 296. 73. Ibid., p. 299.

74. Sources of Our Liberties, p. 309.

75. Sec. 15, Bill of Rights, Constitution of Virginia, in Sources of Our Liberties, p. 312. 76. Ibid.

77. Constitution of Pennsylvania, Sources of Our Liberties, p. 328. 78. Sources of Our Liberties, p. 338.

79. For more on this see America’s Providential History; Daniel Dreisbach, Real Threat and Mere Shadow,

Westchester, Ill.: Crossway Books, 1987; B.F. Morris, Christian Life and Character of the Civil Institutions of the United States, Philadelphia: George W. Childs, 1864.

80. Sources of Our Liberties, pp. 349, 350. 81. Sources of Our Liberties, p. 373, 374. 82. Sources of Our Liberties, p. 382.

83. Northwest Ordinance, Sources of Our Liberties, pp. 395-396. 84. Letter of Webster, quoted in Unger, p. 83.

85. “Sketches of American Policy”, in Noah Webster: On Being American, Selected Writings, 1783-1828, Homer d. Babbidge, Jr., editor, New York: Frederick A. Praeger, 1967, p. 31.

86. Unger, p. 89. 87. Unger, p. 84.

88. Donald S. Lutz, “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought,” The American Political Science Review, Vol. 78, 1983, pp. 189-197.

89. See James Madison, Notes of the Debates in the Federal Convention of 1787, New York: W.W. Norton &

Co., 1987, pp. 209-210; and America’s Providential History, pp. 170-173.

90. For more see In God We Trust Tour Guide, pp. 37-48; and America’s Providential History, pp. 185-192. 91. See America’s Providential History, p. 179-180.

92. See Noah Webster: On Being American, Selected Writings, 1783-1828, p. 48. 93. Ibid., p. 50.

94. Ibid., pp. 50-51. 95. Unger, p. 60.

96. For more on Webster’s influence on early American see “Reforming America by Propagating a Christian

Philosophy of Education and Government, An Example from the Life of Noah Webster,” Stephen McDowell, The Journal of the Foundation for American Christian Education, Vol. 5, 1993, pp. 166-181.

97. Noah Webster, Value of the Bible and Excellence of the Christian Religion, 1834, republished by the Foundation for American Christian Education, p. 78.

98. Noah Webster, Letters to a Young Gentleman, p. 149.

In the Fall of 2007, Stephen McDowell participated in a panel discussion at Virginia Military Academy on the wall of separation of church and state.  The following served as the basis for his opening remarks.

Many Americans use Jefferson’s phrase, “a wall of separation between Church and State,” to describe what they believe the Constitution prescribes for the relationship of religion and civil government. Recent authors¹ have aptly pointed out how many today misapply or do not understand the “wall” metaphor — how it has been cut off from its historical meaning and made to communicate ideas contrary to Jefferson and the founders of America. The phrase “separation of church and state” has been repeated so often in an improper context that many incorrectly believe that our Constitution mandates a strict separation, meaning a restriction of religious influence upon civil government and the public square. Many present the framers of the Constitution and the Founders of America as irreligious men who were strict separationists, thus, giving us “a separation of church and state.”

The Founders certainly believed in a jurisdictional separation of church and state, where these two legitimate institutions had specific responsibilities and authority in their jurisdictions, and neither should encroach upon the other. But to the Founders both of these were under the same Higher Authority who prescribed His will for man and the human institutions of family, church, and state through the laws of nature and nature’s God.

Honest examination shows that  the founders were extremely religious men, who, not only had no qualms about letting their religious beliefs flow to civil matters, but considered, in the words of Washington, religion and morality the foundation of free governments. Even one of the least orthodox of the founders, Thomas Jefferson, mixed religion and civil matters in a way that would produce violent convulsions from modern separationists — writing laws punishing Sabbath breakers, granting the governor the authority to issue “days of public fasting and humiliation, or thanksgiving,” (including the punitive provision of a 50 pound fine on ministers failing to perform divine service on the appointed day), supporting the use of the Bible as a text in public schools, suggesting and approving the use of tax dollars to support missionaries.

A strict separationist view has produced many judicial rulings and actions of public and private figures that, while claimed as constitutional, would have been viewed as dangerous and subversive of liberty by those who gave us the Constitution. Some have been so ludicrous that almost everyone has reacted strongly, for example, the federal court ruling that it is unconstitutional for public school students to say “under God” in the Pledge of Allegiance. Strong reaction against the ruling came from many Democrats and Republicans, liberals and conservatives.

But others just as contrary to the views of the founders have passed with much less reaction, yet with the usual claim of their constitutionality, and accepted by many Americans as what our founders wanted. Thus, some things the courts have ruled as unconstitutional include: posting the Ten Commandments in schools (Stone v. Graham, 1980) and public buildings (Harvey v. Cobb County, 1993); having a prayer at a school graduation ceremony (Harris v. Joint School District, 1994); having a planter in the shape of a cross at a public cemetery (Warsaw v. Tehachapi, 1990); having a classroom library contain books which deal with Christianity, or for a teacher to be seen with a personal copy of the Bible at school (Roberts v. Madigan, 1990); displaying religious artwork in schools (Washegesic v. Bloomingdale Public Schools, 1993).

Even a cursory look at history shows many actions of the Founding Fathers, Jefferson included, would be considered unconstitutional by modern courts, and that the modern concept of separation of church and state has limited (if any) historical support. So then, why do so many people (citizens, judges, legislators, educators) not understand or misapply the “wall” metaphor (and similar ideas)?

There are various reasons for this. Certainly lack of knowledge or bad history is one chief reason. As Chief Justice Rehnguist wrote (dissenting in Wallace v. Jaffree, 1985):

The “wall of separation between church and State” is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.²

One fundamental reason, which also explains why those who have knowledge of the founders’ actions and thinking yet still embrace a strict separationist view claiming its constitutionality, is that America has been undergoing a change in the foundation of law and a change in the view of the nature and purpose of law. Modern rulings and actions reflect this philosophical change in law.

America’s founders generally had a Christian view of law, where law is rooted in the absolutes of a Supreme Creator who reveals His will (law) to man, while modern man generally has a humanistic or evolutionary view of law, seeing that it originates in man. This is evidenced not only in the legal and political arena, but in all areas of life. The differing views can be encapsulated by comparing the definition of immoral from the founding era with that of today.

Noah Webster, in his An American Dictionary of the English Language (1828), writes under his definition of immoral: “Every action is immoral which contravenes any divine precept, or which is contrary to the duties men owe to each other.” The standard for immoral action is “divine precept.” A modern Webster’s New World Dictionary defines immoral as “not in conformity with accepted principles of right and wrong behavior.”³ Thus, the consensus of man — not divine precept — determines right and wrong behavior.

In church-state discussions, the following fundamental idea is usually overlooked: Every nation is established upon some set of principles or presuppositions, which ultimately are rooted in the faith of the people. Thus all nations have a religious foundation. These presuppositions provide the source of law, the philosophy of government, the standard for moral and lawful behavior, as well as the foundation for building all of societal institutions.

A fundamental question for all nations to consider is, “who is the source of law of the society.” This is of primary importance because the source of law of a society is the god of that society. To whom a people look as the standard for lawful behavior is the ultimate source of truth for them. Hence, even those who are secular and say they believe in no god, still have a source of “truth” — a source for what is lawful or unlawful, moral or immoral, and their laws will reflect this. This source may be the consensus of society, which then is a belief that man is the ultimate source of law. With such a view, law (and truth) will change or evolve as the view of the majority (or a powerful minority) changes. In such a society, the fundamental rights of citizens, especially the minorities, will have no secure base.

American was founded as a Christian nation; that is, it was founded upon the principles of Christianity. The Bible was the source of law for the nation, as well as the foundation for all societal institutions. America was not an ecclesiastical state, where the church or a particular denomination governed or received preference (though a majority of the states had some form of establishment when the Constitution was ratified; the first amendment merely prohibited the national government from an establishment).

Our Constitution does not mandate a separation of Godly principles from government, but it does establish a jurisdictional separation of church and state. The founders believed that God created individuals and three divine institutions — family, church, and state (or civil government) — and that each of these had different purposes and responsibilities. All were under God’s jurisdiction, they were subject to His higher law (the laws of nature and nature’s God). The first amendment prohibited a national church, an ecclesiastical establishment, as there had been in Europe. It also was intended to keep civil government from usurping the authority of the individual, family, and church.

The greatest violation of the Founders view of jurisdictional authority has come, not from the church or Christian people usurping authority from the state, but from the state usurping authority from individuals, families, and the church. James Madison’s comment regarding a bill to subsidize Cod fishermen (1792) reveals the very limited view the founders had of the role of the national government in society.

If Congress can employ 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 appoint teachers in every state, county, and parish, and pay them out of their public treasury; they  may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads.⁴

The Founders spoke of America as a Christian nation numerous times. This was expressed by many leaders in church and state, by courts and legislatures, and all types of citizens. To them, America was a Christian nation, but this did not mean that Christianity was the established religion, or that every citizen was a Christian, or that the nation was without sin. This meant that the nation was founded upon Christian principles, where biblical truth and law was the standard for public life, law, and societal institutions.

The evidence of the Christian foundation is overwhelming and broad, and includes: 1) the motive and Christian influence in colonization; 2) the Christian foundation and source of our law; 3) the nature and content of specific laws; 4) Christian nature of societal institutions of family, education, economics, private organizations; 5) Christian thought and life of the founders; 6) the Christian power and form of our government; 7) testimony of public actions and words; 8 the central role of the Bible; 9) the fruit of obedience to the precepts of Christianity produced liberty, prosperity, and service.⁵

Some who have knowledge of this evidence concede that we were Christian at one time, but they say this does not matter today, for we no longer are Christian. We are pluralistic, comprised of people of many faiths. To them we must, therefore, act as if Christianity is just one of many religions, and it must be kept out of influencing public affairs, and people who are Christian should keep their faith private. It is true that Christianity has greatly diminished in its role in America, but are we to therefore act as if it is irrelevant to our public life? What would the Founders think concerning this?

First, our Constitution still presupposes a Biblical view of law and life — in the words of Adams only a Christian people can provide the power to support it. Any change to this must come in a constitutional manner, not through activist judges, spurred on by instruction of misguided law schools. As we debate what changes we wish to enact, Americans must understand that the source of our liberty, law, and prosperity was Christianity. If we remove the foundation, we will remove the source of what has made America great. People who are attempting to remove God from public life are removing that which produced the liberty they now have (which they are wrongly using to speak out and attack God). If God is completely removed, there will be no more liberty or justice for all. (Remember the communist nations of the twentieth century; and consider the growing hostility toward Christianity from western secular nations.) Pluralism is most possible in a Christian nation.

Second, a large majority of Americans still believe in God, that He created life, that the Ten Commandments should be on the walls of public buildings, and that children should be able to voluntarily pray in schools. A secular minority has been ruling over the majority views of Americans.

Third, all nations are built upon some religion, where law has as its source that which society considers as supreme. A religiously neutral state is a myth. We must choose which faith (source of law; standard for conduct, etc.) we want to have our nation built upon.

America’s foundation was Christian, but has been changing to a secular base, where man is god — man is his own source of law. Man determines for himself what is right and wrong, though more accurately for society at large, it is a few men, certain judges or lawmakers, who determine what is right and wrong. In the words of an early Twentieth Century Harvard Law School President, Roscoe Pound, under this new law system, “the state takes the place of Jehovah.”

The Founders believed, from Biblical and historical knowledge, that Christianity produces liberty. If Christian principles are removed from public and private life in America then liberty will diminish. The father of American Geography, Jedidiah Morse wrote: “To the kindly influence of Christianity we owe that degree of civil freedom, and political and social happiness which mankind now enjoys.”⁶ Noah Webster wrote in his U.S. history textbook “that the genuine source of correct republican principles is the Bible, particularly the New Testament or the Christian religion.”⁷ Signer of the Declaration, and father of American medicine, Benjamin Rush said, “Christianity is the only true and perfect religion, and that in proportion as mankind adopt its principles and obeys its precepts, they will be wise and happy.”⁸

If evolving law and the sovereignty of the state continues to replace the absolutes of God’s law in the American republic, “separation of church and state” will come to mean what it does in communist and secular nations — civil government will become the ultimate authority with the church and all other spheres of life under its domain and control.

End Notes

1. See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State, New York: New York University Press, 2002; Daniel L. Dreisbach, “‘Sowing Useful Truths and Principles’: The Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation’”, Journal of Church and State, Vol. 39, Summer 1997, pp. 455-501; Religion and Political Culture in Jefferson’s Virginia, Garrett Ward Sheldon and Daniel L. Dreisbach, editors, New York: Rowman & Littlefield Publishers, 2000; Robert L. Cord, Separation of Church and State,. New York: Lambeth Press, 1982; David Barton, Original Intent, Aledo, Tex.: WallBuilder Press, 1996.

2. Wallace v. Jaffree, 472 U.S. 38 (1985) at 92, 106-107 (Rehnquist, J., dissenting).

3. Noah Webster, An American Dictionary of the English Language, New York: S. Converse, 1828, definition of immoral. Webster’s New World Dictionary of the American Language, David B. Guralnik, editor, Nashville: The Southwestern Company, 1969, p. 373.

4. “On the Cod Fishery Bill, granting Bounties,” February 7, 1792, in The Debates of the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . , in Five Volumes,  by Jonathan Elliot, New York: Burt Franklin R, Vol. IV, p. 429.

5. See Stephen McDowell, America, a Christian Nation, Charlottesville: Providence Foundation, 2004.

6. Jedidiah Morse, Election Sermon given at Charleston, MA on April 25, 1799.

7. Noah Webster, History of the United States, New Haven: Durrie & Peck, 1833, p. v.

8.  Benjamin Rush, Essays, Literary, Moral and Philosophical, Philadelphia: printed by Thomas and William Bradford, 1806, p. 93.

Statism: the Golden Calf of the Modern World

By Stephen McDowell

Then the Lord spoke to Moses, “Go down at once, for your people, whom you brought up from the land of Egypt, have corrupted themselves. They have quickly turned aside from the way which I commanded them. They have made for themselves a molten calf, and have worshiped it, and have sacrificed to it, and said, ‘This is your god, O Israel, who brought you up from the land of Egypt!’” (Ex. 32:7-8)

Israel worshiped a golden calf. Many Christians in the world today, especially the western world, worship a golden calf as well. But this is not a physical golden calf. It is something more subtle, but just as destructive. It is the golden calf of socialism, the god of statism. This false god is one of the greatest threats to Christianity in the 21st Century.¹ In recent elections we have seen people tearing off their “gold rings” and clamoring for such a god. To those who worship this golden calf it seems to be a good god that will do good things for them. It promises them provision, security, comfort, and much more. Beware! This god will gradually consume you, your family, your business, and your freedom.

Consider one small action of this golden calf as reported in World Magazine, June 9, 2007:²

“Melissa  is finally home, but it took almost three months for the 16-year-old German to return. Along the way, she went halfway around the world, through a psychiatric ward, a children’s home, and foster care — all because her parents homeschool her.”

“Homeschooling is illegal in Germany. A Nazi-era prohibition, the ban grew out of Hitler’s worry that too much parental control would supersede the state’s influence.” Even so, about 400 German families homeschool. But they face “fines, imprisonment, and loss of custody of their children.”

Despite the risk, when disruptive classes made Melissa fall behind in math and Latin, her parents decided to tutor her at home. She took advanced courses in English and French and sang in the school choir at a community college, but the school she had been attending noticed her absence and alerted authorities.

The family skirted the police for months, even sending Melissa to Australia to avoid the state of Bavaria taking her into custody. But on Feb. 1, 15 police officers in multiple cars arrived at the Busekros home and took Melissa, then 15 years old. “It was like the Russian invasion of [Czechoslovakia] or Hungary,” said Melissa’s father, Hubert Busekros. In custody Melissa underwent a psychiatric evaluation that found she had “school phobia.” The state placed her in a clinic’s psychiatric wing for two weeks. She complained and said she preferred being homeschooled, but officials told her this was the result of “tyrannical” parents forcing her into it.

Melissa stayed briefly at a Catholic girls’ home and then she was placed by authorities with a foster family on Feb. 16. They treated her well, but Melissa wanted to go home. She knew when she turned 16 she would have more rights regarding where she lived. “So on her birthday, April 23, at 10 minutes past midnight, she left her foster family as they slept.” After writing a good-bye note, she slipped out the window, and trekked some 60 miles to her home.

The authorities continued to press their case against the Busekroses, but the family won a major court appeal on May 16 that returned Melissa to her parents’ custody. While this instance turned out happily for the family, this is usually not the case as German courts almost always rule against homeschooling families since, according to one activist who followed the case, “they don’t want parallel societies.”

Statist nations do not want and cannot afford to have parallel societies. All those who believe and act contrary to the statist philosophy will find themselves gradually restricted in their rights and freedoms. A society cannot serve two gods. It cannot have two sources of authority, law, and morality. One will ultimately prevail. Statism is the belief that the civil government (or man via civil government) is the ultimate authority in the earth and as such is the source of law and morality. The state defines what is right and wrong, what is lawful and unlawful, what is moral and immoral. The state becomes the de facto god of the society, or in the words of Roscoe Pound, President of Harvard Law School in the 1920s, “the state takes the place of Jehovah.”³

Jesus taught that we are to render to Caesar the things that are Caesar’s
and to God the things that are God’s.

In attempting to trap Jesus, the Pharisees sent their disciples to ask Him whether it was lawful to pay taxes to Caesar or not (see Matthew 22:15-21). Knowing their malice, Jesus responded by having them show a coin and asking them whose image was inscribed upon it. When they replied, “Caesar’s,” he said, “Then render to Caesar the things that are Caesar’s; and to God the things that are God’s.” Jesus was teaching an extremely important concept here — that of jurisdictional authority. Jesus used a coin with Caesar’s image upon it to illustrate that civil government does indeed have certain jurisdictional authority, such as in the area of taxation. However, Christ went on to pronounce that the state’s jurisdiction is limited when He said that we are to render “to God the things that are God’s.” The inference is that there is a sphere of life where civil government (i.e. Caesar) has no jurisdiction at all. That sphere is implied here as involving the soul and mind of men, being made, not in Caesar’s image, but in the image of God. Jesus was affirming that religious worship and opinions, and any endeavor relating to thoughts or speech, must remain completely free from government control.

This is the Biblical idea of the separation of church and state. It is not like the modern idea, which says we must remove God from public life. The principle of separation of church and state, the separation of school and state, and the separation of the press and speech from the control of the state, which are articulated in the First Amendment of the United States Constitution, are rooted in this historic political teaching of Christ. Before Christianity, the pagan world always included religion and education under the jurisdiction of the state. It was a radical political concept for Christ to declare that Caesar’s power should be limited and, therefore, was used against Jesus when He was convicted of treason and crucified under Roman law. Christ’s teaching has since changed the western world.

Caesar thought he was Lord, but Christians declared that “Jesus is Lord.” Caesar saw this declaration by early believers as a threat to the state and to his reign and, hence, persecuted and killed many Christians. The responsibilities of the state are to be distinguished from that of the individual, family, and church. Usurpation of authority occurs when one jurisdiction encroaches upon another jurisdiction. The result is tyranny. Usurpation is exercising authority or power that belongs to another. It is “the act of seizing or occupying and enjoying the property of another, without right.”

Rendering to Caesar the Things that Are God’s

Jesus taught that we are to render to Caesar the things that are Caesar’s and to God the things that are God’s, but today Christians throughout the world have been rendering to Caesar the things that are God’s. It is not surprising that secularists will do this because, since they have no god (but themselves), the state readily becomes their default god. It is surprising that Christians are worshiping this golden calf.

Does this mean they are worshiping the civil government? Do people have images of the Capitol in their house that they bow down to each day? Do they have Barak Obama bobble-heads on their coffee tables that they pray to each day? No, their idolatrous action is not so obvious.

The second commandment says, “you shall not make for yourself an idol” (Exodus 20:4-6). Habakkuk 2:18 says:  “What profit is the idol when its maker has carved it, or an image, a teacher of falsehood? For its maker trusts in his own handiwork when he  fashions speechless idols.” Isaiah described well the absurdity and futility of those who worship the very thing they create. In chapter 44, verses 9-19, Isaiah tells how a man planted and raised trees, then cut one down and burned part of it to warm himself and prepare his food. “But the rest of it he makes into a god, his graven image. He falls down before it and worships; he also prays to it and says, ‘Deliver me, for thou art my god’”(Isa. 44:17).

We would consider it stupid to worship the thing we create with our own hands. Modern western man wouldn’t think of making a golden calf, setting it up in his living room, and bowing down before it. What he does is much more subtle.

Humanists are sophisticated idol makers. They are like the guy who carves an idol and worships it — they trust in their own handiwork. They create their own laws, think up their own value systems, form their own governmental and educational systems, and worship them, trusting in them to be “god” (that which is right and true). They can do this, but it is not too smart, for if it is not based upon God’s truth, it will lead to ruin. Such idol worship produces bondage, not liberty.

Isaiah speaks of those who worship what they create, ending by asking, “Shall I fall down before a block of wood?” (Isaiah 44:19). Americans must ask themselves, “Shall we as a nation fall down before a block of wood?” “Shall we worship the creation of our own hand?” Shall we look to civil government to be our provider, our comforter, our savior, our god? Jeremiah warns that those who do “are altogether stupid and foolish” (Jer. 10:8).

While civil government is a divine institution with an important purpose, it is very limited in what it is suppose to do — it basically is to protect the life, liberty, and property of its citizens (Rom. 13:4; 1 Pet. 2:14). But we have made it like Babel, thinking the state (something of our own creation) will do much more than God says it is to do, where it takes on the role of God, the family, the church, and business. Many people look to the state to meet their needs from cradle to grave, to bring peace and utopia on earth, to help them in times of trouble, to solve all their problems, to care for them when they are sick, and to control and regulate all things. We as a nation have given over to the state many of the responsibilities that God says belong to individuals, the family, or the church.

The following charts give a brief comparison of the Biblical conception of society (and the role of civil government) with various man-made views of how societies should be governmentally structured.⁴

.  .  .  .

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Order Rendering to Caesar the Things that Are God’s and learn more, including:

What Are We Rendering to Caesar?

We have rendered to Caesar the things that are God’s in two primary ways:

Rebuilding the Tower of Babel

Statism: the Golden Calf of America

Statism in the World Today

“Christian Socialism” in Western Europe

Growing Socialism in America

Fruit of Socialism

What Can We Do?

End Notes

1. Other great threats to Christianity include materialism, animistic religions, and Islam. All three go hand-in-hand with statism. Materialism rests on the belief that the universe is comprised only of physical matter, that nature or the physical universe is all there is. Those with such a worldview think that man and material things are primary, and much of life involves acquiring material assets. If some people or nations are in poverty or have less than others, then transferring material wealth is the solution.

Spiritual or internal resources are not considered; thus, people tend to look outside themselves to those with material wealth and power to provide their needs, solve their problems, and help them in life. Adherence to this worldview promotes statism, since using the power of the state is an easy means of distributing material wealth. In addition, if there is nothing outside the physical universe there is no higher law or source of truth than man. Thus, man via the state is supreme.

Animism is the belief that the supernatural controls all areas of life, and that man has little control over what happens.
Characteristics of animism include fatalism, spiritism, and ancestor-worship. Hinduism, Buddhism, and most indigenous native religions are animistic. The animistic universe is unpredictable and chaotic, which is the nature of societies built upon this worldview. The social order is full of corruption, bribery and poverty. Civil government also tends to be corrupt, centralized, and strong-armed. (For more on materialism and animism see, Scott D. Allen and Darrow L. Miller, The Forest in the Seed, Phoenix: Disciple Nations Alliance, 2006).

Islam (which is animistic in many ways) is more of an external threat than an internal threat. Since its inception Islam has spread more by force, or by natural growth within Islamic families, than by internal conviction. It has historically been militant, using force to keep everyone under its domain obeying the rules, or advancing its reach by use of the sword. A strong government that preserves and advances the “truth” has been its ally.

2. “Melissa’s gumption,” Priya Abraham, World Magazine, June 9, 2007, p. 65.

3. Roscoe Pound, The
Spirit of the Common Law, in Stephen McDowell, Building Godly Nations, Charlottesville, Vir.: Providence

Foundation, 2004, p. 197.