American Minute with Bill Federer: Wording of the First Amendment & Who Twisted It

On March 15, 1984, the U.S. Senate voted down children praying in public schools.

President Ronald Reagan said:

“I am deeply disappointed that, although a majority of the Senate voted for it, the school prayer amendment fell short.”

On September 25, 1982, Reagan said:

“Unfortunately, in the last two decades we’ve experienced an onslaught of such twisted logic that if Alice were visiting America, she might think she’d never left Wonderland.

We’re told that it somehow violates the rights of others to permit students in school who desire to pray to do so.

Clearly this infringes on the freedom of those who choose to pray, the freedom taken for granted since the time of our Founding Fathers …”

He continued:

“To prevent those who believe in God from expressing their faith is an outrage …

The relentless drive to eliminate God from our schools … should be stopped.”

Reagan stated in a Radio Address, 1982:

“The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray.”

To understand the meaning of the First Amendment, it is necessary to know what preceded it and read the debates of those who proposed and passed it.

England had a Bill of Rights tracing all the way back to the Magna Carta in 1215.

When the Revolutionary War began, George Mason wrote a Virginia Declaration of Rights, which was adopted by the Virginia Assembly on June 12, 1776.

He wrote in it:

“That all men are by nature equally free and independent, and have certain inherent rights …

16) That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence;

and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.”

Mason has since been referred to as the “Father of the Bill of Rights.”

Mason’s Virginia’s Declaration of Rights influenced Jefferson, who wrote the Declaration of Independence a few weeks later.

Mason’s Declaration also influenced other state constitutional conventions which adopted a “Declaration” or “Bill of Rights”:

Maryland’s constitutional convention approved Constitution and Bill of Rights, August 14, 1776, which included:

“DECLARATION OF RIGHTS … 33) That, as 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; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion … under color of religion, any man … shall infringe the laws of morality …

yet the Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion …

35) That no other test … ought to be required, on admission to any office of trust … than such oath of support and fidelity to this State … and a declaration of a belief in the Christian religion …

FORM OF GOVERNMENT … 55) That every person, appointed to any office … shall … take the following oath; to wit :-

I, A. B., do swear, that I do not hold myself bound in allegiance to the King of Great Britain, and that I will be faithful, and bear true allegiance to the State of Maryland; and shall also subscribe a declaration of his belief in the Christian religion.”

Pennsylvania included a Bill of Rights with its Constitution, signed by Governor Benjamin Franklin, September 28, 1776:

“DECLARATION OF RIGHTS … 2) That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences … Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen …

And that no authority can … in any case interfere with … the right of conscience in the free exercise of religious worship …

FRAME OF GOVERNMENT … 10) And each member, before he takes his seat, shall make and subscribe the following declaration, viz:

I do believe in one God, the Creator and Governor of the Universe, the Rewarder of the Good and the Punisher of the Wicked.

And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine Inspiration.

And no further or other religious test shall ever hereafter be required.”

The State of North Carolina had a Bill of Rights in their Constitution, adopted December 18, 1776:

“DECLARATION OF RIGHTS … 19) That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences …

FORM OF GOVERNMENT … 32) That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office … within this State.”

Patrick Henry could have been a delegate to the Constitutional Convention, but skeptically refused, saying he “smelled a rat.”

George Mason did become a delegate to the Federal Constitutional Convention in 1787.

Mason proposed the that there be a Preface to the U.S. Constitution listing a Bill of Rights.

His suggestion was defeated and, as a result, he refused to sign the Constitution.

Mason with his pen and Patrick Henry with his oratory were considered “Anti-Federalists,” as they argued Virginia, the largest state, should not ratify the Federal Constitution as it did not have a Bill of Rights.

Henry stated at Virginia’s Ratifying Convention in June of 1788:

“You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.”

Henry continued:

“The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change in government.”

Henry then introduced 40 articles guaranteeing rights.

James Madison and the Federalists countered with a promise, that if Virginia delegates ratified the Constitution, the first item the new government would undertake would be to pass Amendments limiting Federal power.

This promise convinced Virginia’s delegates to ratify the Constitution on June 21, 1788, being the tenth state to do so.

Once the U.S. Congress was ratified, Virginia’s state legislature convened again in the fall of 1788.

There, Patrick Henry introduced a resolution to instruct Virginia delegates to call for a general convention of all the States to draw up a Bill of Rights with Amendments to the U.S. Constitution.

Henry nominated two anti-Federalists, Richard Henry Lee and William Grayson, to be Virginia’s first Senators.

Madison, who had wanted to be a Senator, then ran for Congress.

He pledged to voters during his campaign that he would indeed push for Amendments.

When the first Congress met, Madison did propose Amendments, but none of the ones Henry had authored.

Henry was disappointed, yet nevertheless satisfied that his and Mason’s efforts were successful in bringing about a Bill of Rights to keep the Federal Government from encroaching on citizens’ rights.

George Mason wrote a proposal for the wording of the First Amendment.

Kate Mason Rowland, in The Life of George Mason, NY: G.P. Putnam’s Sons, 1892, Vol I, p. 244), wrote:

“The bill of rights here given is from the original manuscript in the handwriting of George Mason.

‘Resolved, that the new constitution of government recommended by the late federal convention ought to be ratified when the following Declaration of Rights and Amendments shall be adopted …

… 20. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore

all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular religious sect, or society of Christians, ought to be favored or established by law, in preference to others.'”

Madison drew upon Mason’s proposed wording when he introduced the First Amendment in that first session of the U.S. Congress, June 8, 1789:

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”

The debates of the First Amendment are recorded in the Annals of Congress, beginning on August 15, 1789. (Gales and Seaton’s History, pps. 757-795)

The House Select Committee, made up of a member from each state, presented its report to a Committee of the whole Congress on proposed amendment.

Mr. Elias Boudinot of New Jersey was in the Chair.

The fourth proposition being under consideration, as follows: Article 1. Section 9. Between paragraphs two and three insert

“no religion shall be established by law, nor shall the equal rights of conscience be infringed.”

Mr. Peter Sylvester of New York had some doubts of the propriety of the mode of expression used in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee.

He feared it might be thought to have a tendency to abolish religion altogether.

Mr. John Vining of Delaware suggested the propriety of transposing the two members of the sentence.

Mr. Elbridge Gerry of Massachusetts said it would read better if it was, that

“no religious doctrine shall be established by law.”

Mr. Roger Sherman of Connecticut thought the amendment altogether unnecessary, inasmuch as Congress had no authority whatever delegated to them by the Constitution to make religious establishments;

he would, therefore, move to have it struck out.

Mr. Daniel Carroll of Maryland — As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand;

and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words.

He thought it would tend more towards conciliating the minds of the people to the Government than almost any other amendment he had heard proposed.

He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.

Mr. James Madison of Virginia said, he apprehended the meaning of the words to be, that

“Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”

Whether the words are necessary or not, he did not mean to say,

but they had been required by some of the State Conventions, who seemed to entertain an opinion that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the Constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience and establish a national religion;

to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.

Mr. Benjamin Huntington of Connecticut said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion.

He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it.

The ministers of their congregations to the eastward (states) were maintained by the contributions of those who belonged to their society; the expense of building meetinghouses was contributed in the same manner.

These things were regulated by by-laws.

If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers, or building of places of worship might be construed into a religious establishment.

By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it.

He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all.

Mr. Madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen.

He believed that the people feared one sect might obtain a preeminence, or two (Anglican & Congregational) combine together, and establish a religion to which they would compel others to conform.

He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent.

Mr. Samuel Livermore of New Hampshire was not satisfied with that amendment; but he did not wish them to dwell long on the subject.

He thought it would be better if it was altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.

Mr. Elbridge Gerry of Massachusetts did not like the term national, proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House.

It brought to his mind some observations that had taken place in the conventions at the time they were considering the present Constitution.

It had been insisted upon by those who were called anti-federalists, that this form of Government consolidated the Union; the honorable gentleman’s motion shows that he considers it in the same light.

Those who were called anti-federalists at that time complained that they had injustice done them by the title, because they were in favor of a Federal Government, and the others were in favor of a national one; the federalists were for ratifying the constitution as it stood, and the others not until amendments were made.

Mr. Madison withdrew his motion, but observed that the words “no national religion shall be established by law,” did not imply that the Government was a national one;

the question was then taken on Livermore’s motion, and passed in the affirmative, thirty-one for, and twenty against it.

The House agreed and accepted the first five words of this version.

On August 20, 1789, Fisher Ames of Massachusetts suggested:

“Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”

The House accepted this and sent it to the Senate.

On September 3, 1789, the Senate proposed several versions in succession:

“Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society.”

“Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.”

“Congress shall make no law establishing one religious society in preference to others, or to infringe on the rights of conscience.”

At the end of the day, September 3, 1789, the Senate accepted:

“Congress shall make no law establishing religion, or prohibiting the free exercise thereof.”

On September 9, 1789, the Senate agreed on the version:

“Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.”

A joint House and Senate committee gave the final wording, September 24, 1789:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The Amendment was a limit on the Federal Government only, as confirmed at North Carolina’s Ratifying Convention, July 30, 1788, by Governor Samuel Johnston:

“The people of Massachusetts and Connecticut are mostly Presbyterians …

In Rhode Island, the tenets of the Baptists, I believe, prevail.

In New York, they are divided very much; the most numerous are the Episcopalians and the Baptists.

In New Jersey, they are as much divided as we are.

In Pennsylvania, if any sect prevails more than others, it is that of the Quakers.

In Maryland, the Episcopalians are most numerous, though there are other sects.

In Virginia, there are many sects …

I hope, therefore, that gentlemen will see there is no cause of fear that any one religion shall be exclusively established.”

Supreme Court Justice Joseph Story, nominated by President James Madison, explained in his Commentaries on the Constitution of the United States, 1833:

“In some of the States, Episcopalians constituted the predominant sect; in other, Presbyterians; in others, Congregationalists; in others, Quakers …

The whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State Constitutions.”

Justice Joseph Story wrote in A Familiar Exposition of the Constitution of the United States, 1840:

“The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.”

Bouvier’s Law Dictionary (Philadelphia, J.B. Lippincott Co., 1889) gave the definition of “RELIGION”:

“‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof’ …

By establishment of religion is meant the setting up of state church, or at least conferring upon one church of special favors which are denied to others …

The Christian religion is, of course, recognized by the government, yet … the preservation of religious liberty is left to the States …

This provision and that relating to religious tests are limitations upon the power of the (Federal) Congress only.”

This all changed with Justice Hugo Black, whose Everson v. Board of Education decision in 1947, removed religion from under States’ jurisdiction and redefined Jefferson’s phrase “wall of separation between church and state.”

Black’s only judicial experience had been one year as a police court judge before being nominated to the Supreme Court by Franklin Roosevelt. He had been a Democrat Senator (and former KKK member) from Alabama.

As incredulous as it may seem, Justice Black had not read the above debates of the First Amendment till after he issued his Everson decision.

Professor Daniel L. Dreisbach of the Department of Justice, Law & Society at American University in Washington, D.C., wrote in Thomas Jefferson and the Wall of Separation between Church and State (New York University Press, 2002):

“Significantly, Hugo Black’s biographer reported that the justice did not peruse the proceedings of the First Congress, which debated the provision now known as the First Amendment until ‘after Everson was decided.'”

Dreisbach was citing Roger K. Newman’s book, Hugo Black: A Biography (NY: Pantheon Books, 1994, p. 365) which stated:

“After Everson was decided, he received a letter suggesting he read the Annals of Congress, the proceedings of the first Congress. “Get volume 1 and let’s see what was said,” Black scribbled on the letter.”

Many would consider it incomprehensible that the Justice who wrote the decision redefining the First Amendment never read beforehand the proceedings of the Congress that passed it.

Roger K. Newman’s book contains what other Justices thought of Hugo Black’s style:

“He essayed an almost exclusively legislative history. This befitted his background, but did not tell anywhere near the whole story. A constitutional amendment, not a statue, was being enacted.

But Black neglected the ratification process in the states, and when legislators vote on a proposal they cannot escape the enveloping atmosphere.

Black also ignored that, as well as the Amendment’s historical antecedents …

Black’s was an advocate’s history: he proved too much and ignored or swept away all doubtful evidence. Try as he did, he could not get advocacy out of him …

‘Hugo is trying to change the world and misreading history in the attempt, just making things up out of whole cloth,’ Justice Frankfurter told his clerk …

Black’s history was open to valid criticism …

Privately, Frankfurter ‘referred to Black in very personal terms,’ recalled television reporter Martin Agronsky … ‘(but) Black’s Klan connection was always in the back of his mind. He didn’t trust Black’ …

Justice Stanley Reed made a similar point in his kind way. ‘Black will put something in this opinion that he plans to pull out five opinions down the road,” he told a clerk, ‘so you better be very careful about the future implications of what you see in the things that he circulates.’

Much of the same thing came from Justice Bill Douglas … ‘You have to watch Hugo. He’s tricky.'”

President Reagan stated in a Q & A Session, October 13, 1983:

“The First Amendment has been twisted to the point that freedom of religion is in danger of becoming freedom from religion.”

Reagan said February 25, 1984:

“Sometimes I can’t help but feel the First Amendment is being turned on its head.”

Reagan told the Alabama Legislature, MARCH 15, 1982:

“To those who cite the First Amendment as reason for excluding God from more and more of our institutions and every-day life, may I just say:

The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny.”

Reagan told the Annual Convention of the National Religious Broadcasters, January 30, 1984:

“I was pleased last year to proclaim 1983 the Year of the Bible. But, you know, a group called the ACLU severely criticized me for doing that. Well, I wear their indictment like a badge of honor.”

Reagan stated on the National Day of Prayer, May 6, 1982:

“Well-meaning Americans in the name of freedom have taken freedom away. For the sake of religious tolerance, they’ve forbidden religious practice.”

Vice-President Pence stated at Liberty University’s commencement, May 11, 2019:

“Some of the loudest voices for tolerance today have little tolerance for traditional Christian beliefs.”

Reagan stated in a radio address, February 25, 1984:

“Former Supreme Court Justice Potter Stewart noted if religious exercises are held to be impermissible activity in schools, religion is placed at an artificial and state-created disadvantage.

Permission for such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit them is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism.”

Attorney General William Barr stated in an interview with Cardinal Timothy Dolan (Sirius XM; The Federalist; WND.com, 2/1/20):

“I feel today religion is being driven out of the marketplace of ideas and there’s a organized militant secular effort to drive religion out of our lives …

To me the problem today is not that religious people are trying to impose their views on nonreligious people, it’s the opposite — it’s that militant secularists are trying to impose their values on religious people and they’re not accommodating the freedom of religion of people of faith.”

Reagan stated at an Ecumenical Prayer Breakfast, August 23, 1984:

“The frustrating thing is that those who are attacking religion claim they are doing it in the name of tolerance and freedom and open-mindedness.

Question: Isn’t the real truth that they are intolerant of religion?”

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