Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Amendment I: De Facto Protestant Establishment  
 
 
"I agree to this Constitution, with all its faults, . . .  and believe further, that this is likely to be well administered for a course of years, and can only end in despotism, as other forms have done before it, when the people have become so corrupted as to need despotic government, being incapable of any other.. . .  It therefore astonishes me, sir, to find this system approaching so near to perfection as it does; and I think it will astonish our enemies, who are waiting with confidence to hear that our councils are confounded, like those of the builders of Babel" 1
 
 

Amendment I (cont’d):

The De Facto Protestant Establishment:

In Ephesians 6:4, the Apostle Paul wrote, "[F]athers, do not provoke your children to anger; but bring them up in the discipline and instruction of the Lord." (NASB). Since the majority of both the framers and the general population of the united States in the late 18th century were Bible-believing Protestants, it’s reasonable to assume that many, if not most, such Americans took this admonition to heart. In essence, it means that children should be educated in Christian discipline and morality. Did the framers and early congressmen assume that establishing secular schools and fulfilling Paul’s admonition simultaneously would be easy? — "The constitutional doctrines developed by the court under the free exercise and establishment clauses can best be understood as the product of the Court’s struggle to define appropriate relationships between religion and government within the context of a secular public culture that considers religion a predominantly private activity . . . ." 2 The supreme Court’s "struggle to define appropriate relationships between religion and government" goes directly to defining appropriate relationships between education and government. That’s because education of children is first a parental duty, and therefore a function of the parents’ religion. This is true for practically every religion. But even though education is crucially important, it is only one facet of the panorama of social features that would inevitably be affected if the general government failed to walk this tightrope between secular government and the Protestant belief system.

In a secular social compact, taxing and spending are limited by the purpose of the spending. Confiscatory taxation is allowed by the global covenant only for bloodshed police powers. Education doesn’t fall within the scope and purview of such powers. So confiscatory taxation to pay for education is inherently perpetration of bloodshed. So payments for education are necessarily voluntary and consensual if they are lawful. On these grounds alone, publicly funded education was a slip off of this tightrope into a misconceived net of de facto establishment of Protestantism. Publicly funding education is acting out an erroneous conception that the general government is a religious social compact, rather than a secular social compact. On other grounds also, the general government violated its professed secular religion by assuming that a curriculum existed that could teach this secular religion in public schools, to people of any faith, without exporting Protestantism into the curriculum. Such a curriculum did not exist then. To this day, it doesn’t exist. Even so, we should cut the congressmen of the First Congress some slack. Perhaps they were just victims of wishful thinking.

In the same way that Virginia ridded itself of its established religion in the late 18th and early 19th centuries, and in the same way that the united States committed itself in the 1st Amendment to avoiding the establishment of a government-religion, the other States generally eliminated their State churches. But "the elimination of state establishments did not lead to a separation of religion from public life. Nineteenth-century Americans understood the Constitution to require separation of church and state only at the institutional level. . . .  However, . . .  nineteenth-century Americans generally believed that Protestant values formed an important part of the foundation on which society was built.". 3 — As Bible-believing people, we agree that Biblical values form "an important part of the foundation on which society [is] built". But we also see a failing in their understanding of Scripture. Early 19th century American Christians failed to parse Scripture into what about it is secular, and what about it is not. The global covenant is secular because it applies to all people, regardless of who they are, where they come from, what language they speak, or what they believe. But the rest of the Biblical Covenants are local. They only apply to people who consent to participation in these local Covenants. — In many respects, the early 19th century American Christians were flying with serious engine trouble and an on-board fire, praying that somehow all this would get worked out.

Legal historian Mark De Wolfe Howe calls the period from after the ratification of the Constitution to the early 20th century the "de facto Protestant establishment". By legally abandoning establishment of government-funded, government-controlled churches and religions, the States were in effect declaring to all concerned that they intended to operate strictly under the secular religion. They made the same commitment in this regard that the general government made. But people generally failed to recognize that by making this transition, they were in effect trying to change from religious social compacts to secular social compacts. Secular social compacts by definition have an extremely limited scope of police powers, 4 which do not include the running of schools. The bulk of police powers belong to religious social compacts, including the running of schools. Even though the States de-established their respective State-religions, they continued to exercise police powers that are not lawful under a secular social compact. As De Wolfe Howe rightly indicates, public school "teachers [continued] leading prayers and scripture readings from the King James Bible in their lessons". "[L]egislative prayer [was] widespread among the states, Thanksgiving, Christmas, and Easter were officially recognized as holidays". "States enforced prohibitions on blasphemy, levied civil penalties on atheists, enforced the Christian Sabbath, and continued to visit civil disabilities upon the heads of non-protestants and nonbelievers." Late in the 19th century and early in the 20th, "Protestant fundamentalists rallied to invoke government authority to enforce temperance and antievolution laws". 5 Among these and other de facto establishment practices, the Protestant majority insisted on making Mormon polygamy illegal, even addressing this issue in the supreme Court (Reynolds v. United States, 1879).

Because the supreme Court claimed in Barron v. Baltimore (1833) that the Bill of Rights of the general government did not apply to the States, there were very few religion clause cases before the 1940s. Only one of them still stands at the beginning of the 21st century. The two Establishment Clause cases have been overruled, so we’ll ignore them. Reynolds v. United States (1879), a Free Exercise Clause case, still stands. In that case, the illegality of Mormon polygamy was affirmed. In other words, the Free Exercise of the Mormon religion was impeded by a decision of the supreme Court. The Court may have excused their decision by inventing some legalistic gobbledygook, but the ultimate fact is that the supreme Court decided to limit the Mormon’s practice of their religion because a majority of the supreme Court justices thought that aspect of their religion was revolting. That, in essence, is how the de facto establishment works. There is nothing in the global covenant that indicates that polygamy is a violation of prescribed human law. But the government officials deliberately ignored this fact and chose to arbitrarily impose the values of their religion – implementations of the local Covenants – on people who did not consent to such imposition. The Mormons were forced to acquiesce through duress. The general government perpetrated bloodshed on them.

"Because the de jure Anglican establishment of England exemplified for Americans the kind of establishment that was prohibited by the Constitution, the possibility that the more subtle alignments of religion and government under the de facto establishment were also constitutionally prohibited was never taken seriously." 6 Apparently the type of "establishment of religion" that most Americans – of the de facto establishment era – thought was illegal was this overt, generally applicable, and institutional variety. Americans generally obeyed this ban on the explicit breed of "establishment" without question. They did so by glorying in the fact that not only the general government, but also State governments had all adopted religion clauses like those in the Constitution’s 1st Amendment. But Protestant Americans also often exported practices, values, and language from their personal religions into the secular arena, often even imposing such values, practices, and language on people without the latter’s consent. From the perspective of supreme Court jurisprudence, this practice continued until the 1940s, when the 1st Amendment’s religion clauses were incorporated. The Free Exercise Clause was incorporated in Cantwell v. Connecticut (1940), and the Establishment Clause was incorporated in Everson v. Board of Education (1947).

When the supreme Court established that Mormon polygamy was illegal in Reynolds v. United States (1879), the Court entertained the possibility that it could make polygamy generally illegal, but make a special exemption for the Mormons. During these considerations, it created what’s now known as the belief-action doctrine. According to this doctrine, "government is without constitutional authority to punish a person for his or her religious beliefs but has full authority to regulate religiously motivated actions so long as it has a rational basis for doing so". 7 — It’s a truism that government has no "authority to punish a person for his or her . . .  beliefs". But finding a "rational basis" for regulating "religiously motivated actions" is an entirely different issue. Under the belief-action doctrine, if the government doesn’t like some aspect of your religion, it can arbitrarily claim to have a rational basis for "prohibiting the free exercise" of it. Finding a rationale is simple. Finding a majority on the Court to support the prohibition is the real issue. In short, the supreme Court refused to make an exemption for the Mormons, and claimed instead to have a "rational basis" for keeping polygamy illegal for everyone. An exemption would have violated the equal protection clause of the 14th Amendment, and it would have therefore been establishment of Mormon polygamy to some extent. — Under the global covenant, the belief-action doctrine is a nullity because no secular social compact has any authority to "regulate religiously motivated actions" because there is no rational basis for doing so. Such compacts have a rational basis for exercising police power only (1)when there is prior consent for such, and (2)in cases of bloodshed. In adhering to biblical standards of morality, Bible-believing Christians have a good reason to keep polygamy illegal within their religious social compacts. But polygamy is not bloodshed (even if it is stupid), and there is no Biblical grounds for making it illegal under a secular social compact.

Not only did the 1940s witness incorporation of the religion clauses; they also witnessed the at least temporary erosion of the belief-action doctrine. As indicated above, the belief-action doctrine essentially said this: You are free to believe whatever you want; but you are not free to exercise your religion in a way that offends the protagonists of the de facto Protestant establishment. In other words, under the laws of the general government, the free exercise clause was a nullity during the de facto Protestant establishment.

Conceptual recapitulation:

The period from the ratification of the 1st Amendment to the 1940s was a period of de facto establishment of Protestantism. No single sect or denomination was established, so this establishment was not like those in Europe. The Court correctly embraced the concept that the "freedom to believe" is "absolute". But supreme Court jurisprudence failed to rightly distinguish actions that genuinely violate lawfully established secular positive law from actions that do not. As Justice Jackson said, "Scores of sects flourish in this country by teaching what to me are queer notions. It is plain that there is wide variety in American religious taste.". 8 It’s not the job of the supreme Court to dictate "religious taste". But this is precisely what they did in Reynolds via their belief-action doctrine. The Court during this period failed to recognize something basic:

The chief wrong which false prophets do to their following is not financial [or an obvious delict]. . . .  The wrong of these things . . .  is not in the money the victims part with [or other physical damage they suffer indirectly] half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish. 9

Justice Douglas shared similar wisdom elsewhere in the same decision. He said that if specific

religious views . . .  are subject to a trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. 10

We’d do well to follow Justice Jackson’s conclusion in United States v. Ballard: "I would . . .  have done with this business of judicially examining other people’s faiths." 11 Such examinations are outside the lawful purview of globally prescribed human law.

Footnotes

1Speech by Benjamin Franklin at end of Constitutional Convention of 1787, aimed at encouraging delegates to unanimous approval. See 5 Elliot’s Debates 554, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​575&​itemLink=​r%3Fammem%2Fhlaw%3A@​field%28​DOCID​%2B@lit%28ed0051%29%29%230050002&​linkText=1; Tansill’s Documents 739; 2 Ferrand’s Records 641, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​002/​llfr002.db&​recNum=​646&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1 (Madison’s Notes, September 17, 1787); Principles of Confederacy, p. 11.

2The Oxford Companion to the Supreme Court of the United States, p. 717, "Religion", by Frederick Mark Gedicks.

3The Oxford Companion to the Supreme Court of the United States, pp. 717-718, "Religion", by Frederick Mark Gedicks.

4This is because they are secular, meaning that they apply to any people of any religion. Only human law that is applicable in an unbiased manner to all religions is lawful under a secular social compact.

5The Oxford Companion to the Supreme Court of the United States, pp. 717-718, "Religion", by Frederick Mark Gedicks.

6The Oxford Companion to the Supreme Court of the United States, pp. 717-718, "Religion", by Frederick Mark Gedicks.

7The Oxford Companion to the Supreme Court of the United States, p. 724, "Religion", by Frederick Mark Gedicks.

8United States v. Ballard (1944), Justice Jackson’s dissenting opinion.

9United States v. Ballard (1944), Justice Jackson’s dissenting opinion.

10United States v. Ballard (1944), Justice Douglas’s majority opinion.

11United States v. Ballard (1944), Justice Jackson’s dissenting opinion.

 
 
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