Intent of Founding Fathers
Not to Banish Religion from Public View
When the Founding Fathers amended the Constitution they had written, the First Amendment was intended to protect and promote freedom of religion. Today, the "establishment clause" has become a legal tool to restrict religion.
Religious freedom is being threatened by judicial activism, or the idea that the Constitution is a living document that must be interpreted according to changing times, not the Founding Fathers' "original intent." The original intent cannot be discerned anyway, the thought goes.
Times were different 200 years ago. Legislators were not contemplating matters like the regulation of broadcast television or liability of careless driving on highways. So today's judges often face cases and dilemmas that the Constitution does not directly refer to.
But most advocates of the living document go a step farther. They tend to assume a kind of moral superiority to the founders, under the assumption of natural social progress. Because they know little about original intent, they choose to read their own values and desires into the Constitution.
"It is arrogant to pretend that from our vantage we can gauge accurately the intent of the framers on application of principle to specific, contemporary questions," declared Supreme Court Justice William J. Brennan in response to Attorney General Edwin Meese's plea for a return to original intent. "We current justices read the Constitution in the only way that we can; as 20th century Americans." History can help, he acknowledged, but "the ultimate question must be what do the words of the text mean in our time."
Robert Bork, President Reagan's nominee to replace retired Justice Lewis Powell, disagrees. "Original intent is the only legitimate basis for constitutional decision," he has written. Bork's strict interpretation will be the basis of the Senate's fight over his confirmation.
If we cannot discern the original intent of the Founding Fathers, why have a Constitution? Why not just let judges decide whatever they think is best for society? Why bother pretending that the Constitution means anything any longer? The Constitution is only a symbol under which judges can impose their preferences on society.
Practically, judges with this freestyle interpretation open a Pandora's box. Many legal disputes that ought to be decided at the local or state level or in Congress wind up in the courts—disputes about whether crosses can be placed in city parks and whether the Ten Commandments can be displayed in public places.
These cases could be avoided with a return to original intent. The First Amendment merely states: "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof."
Evidence for the Founding Fathers' original intent of the establishment clause is abundant and clear: to avoid favoring a particular denomination or establishing a state-sponsored church.
But the establishment clause has been turned upside down into a tool to restrict the free exercise of religion in public places and to oppose government support for religion of any kind. That kind of interpretation would surprise the Founding Fathers.
At the Constitutional Convention in 1787, Benjamin Franklin proposed prayer, explaining: "We have been assured, sir, in the Sacred Writings that except the Lord build the house, they labor in vain that build it. I also believe that, without His concurring aid, we shall succeed in this political building no better than the builders of Babel."
The Northwest Ordinance, approved by Congress in 1789, began with the declaration: "Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."
In his first inaugural address, President Washington contended: "We ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right, which Heaven itself has ordained."
After Washington's inauguration, the official proceedings were moved to a nearby church for worship and prayer.
While the Constitution was under consideration, Congress approved a chaplain, paid by the government.
All the early presidents, except Thomas Jefferson, issued national prayer proclamations, calling for the nation's citizens to turn to God.
Jefferson was on a committee appointed by the Continental Congress to design a national seal. He suggested a Bible story, the children of Israel in the wilderness, led by a cloud during the day and fire at night. Clearly the First Amendment was not designed to restrict religion in the public sphere.
Those who think that religion ought to be kept out of public places should propose a constitutional amendment, declaring: "Religion is dangerous to the public health and ought to be quarantined in the home and church." But based on the historical record, the Founding Fathers would vote no.
NFD Journal October 1987