Original Intent: The Courts, the Constitution, and Religion Read online

  Original Intent: The Courts, the Constitution, and Religion

  Copyright © 1996, 2000, 2008, 2011 by David Barton

  5th Edition, 2nd Printing, February 2011

  All Rights Reserved. No part of this book may be reproduced in any manner whatsoever without written permission of the publisher, except in the case of brief quotations in articles and reviews.

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  Library of Congress Cataloging-in-Publication Data

  342.73

  Barton, David.

  Original intent: the courts, the constitution, and religion.

  Aledo, TX: WallBuilder Press

  561 p; 21 cm.

  Endnotes, list of cases cited, bibliography, and index included.

  ISBN-13: 978-1-932225-26-6 (Paperback edition)

  ISBN-13: 978-0-925279-75-0 (Hardback edition)

  1. United States – Constitutional history 2. Church and state – United States 3. United States – Constitutional law – Interpretation and construction I. Title

  Printed in the United States of America

  Table of Contents

  Title Page

  Copyright Page

  Foreword

  Editor’s Notes

  Acknowledgments

  1 – Religion and the Courts

  2 – Religion and the Constitution

  3 – The Misleading Metaphor

  4 – The Judicial Evidence

  5 – The Historical Evidence

  6 – The Religious Nature of the Founding Fathers

  7 – Safeguarding Original Intent

  8 – Rewriting Original Intent

  9 – Ignoring Original Intent

  10 – The Court’s Selective Use of History

  11 – Establishing the American Philosophy of Government

  12 – A Changing Standard – Toward a New Constitution?

  13 – A Constitution in a State of Flux

  14 – Identifying the Spirit of the Constitution

  15 – Maintaining Constitutional Integrity..

  16 – Revisionism: A Willing Accomplice

  17 – Religion and Morality: The Indispensable Supports

  18 – Returning to Original Intent

  Appendix A – The Declaration of Independence

  Appendix B – The Constitution of the United States

  Appendix C – Biographical Sketches of Select Individuals Referenced in Original Intent

  Appendix D – Endnotes

  Appendix E – List of Cases Cited

  Appendix F – Bibliography

  Foreword

  Our Constitution operates on long-standing principles which were recognized and incorporated into our government over two hundred years ago; each constitutional provision reflects a specific philosophy implemented to avoid a specific problem. Therefore, grasping the purpose for any clause of the Constitution is possible only through a proper historical understanding of the debates and the conclusions reached two hundred years ago.

  For example, when adjudging the permissible in the realm of public religious expressions, courts revert to what they perceive to be the intent of those who, in 1789, drafted the religion clauses of the Constitution. Likewise, the perception of historical intent similarly affects the debates on gun control and the Second Amendment, States’ Rights and the Tenth Amendment, abortion and the Ninth and Fourteenth Amendments, flag-burning and the First Amendment; etc. Therefore, if our understanding of historical facts and constitutional intent becomes confused or mistaken, the resulting policies may be not only ill-founded but may actually create the very abuses that the Founders originally intended to avoid.

  Because the portrayal of history so affects current policy, some groups have found it advantageous to their political agenda to distort historical facts intentionally. Those particularly adept at this are termed “revisionists.” (A thorough discussion of revisionism is presented in Chapter 16.) Not all dissemination of incorrect information, however, is deliberately intended to misinform; in many cases, it is the result of individuals innocently repeating what others have mistakenly reported.

  In fact, there is an unhealthy tendency in many current books on the Founders – a tendency confirmed in their concluding bibliographies – to cite predominately contemporary “authorities” speaking about the Founders rather than citing the Founders’ own words. Such evidence is termed “hearsay” and would never stand up in a court of law. Original Intent, however, has pursued the practice of “best evidence”: it lets the Founders speak for themselves in accordance with the legal rules of evidence.

  Furthermore, not only does Original Intent document the original intent on a number of constitutional issues debated today, it also documents how this essential information is often ignored under today’s standard of “political correctness.” Indicative of this deletion of information, the following questions are raised – and answered – in this book.

  Although there were fifty-five Founders who drafted the Constitution, and ninety more who drafted the Bill of Rights, why does the current Court invoke only Thomas Jefferson and James Madison as its spokesmen? Are there no constitutional authorities among the other one-hundred-forty-plus who framed those documents? Or, is it possible that their words would directly contradict the current Court’s conclusions?

  Since Jefferson has over sixty volumes of written works and Madison has over twenty, why does the Court continually invoke only one or two select sentences from these exhaustive works? Is it perhaps that the rest of the statements made by Madison and Jefferson reveal the Court’s intentional misportrayal of their intent?

  Since several signers of the Constitution were also Justices on the U. S. Supreme Court, why does the current Court avoid citing the declarations of those Justices on today’s issues? Is it perhaps that the concise rulings of those who so clearly understood constitutional intent would contradict and thus embarrass the Court for its current positions?

  Not only are these questions answered in this book but the answers are established from the expansive writings of scores of Founders, not just inferred by narrow references from only a select few.

  As more and more of the primary-source information documenting the views of the Founders has been publicized, it clearly has contradicted what the courts and some “scholars” have claimed. In fact, those individuals, to protect their own views and to diffuse growing criticism against them, have characterized the irrefutable historical facts which confront them as nothing more than “revisionism.” Ironically, it is quite the contrary; for by reverting to primary-source historical documents, the true historical and legal revisionism which has occurred over recent generations is now being systematically exposed and rebutted.

  Original Intent will provide hundreds of the Founders’ direct declarations on many of the constitutional issues which America continues to face today. Their words, their conclusions, and especially their intent is clear; their wisdom is still applicable for today. Since these clear views may be new to many Americans, this work has been heavily footnoted, and the reader is strongly encouraged to investigate the sources cited in order to confirm the accuracy of the conclusions which have been reached.

  Editor’s Notes

  The editors have utilized several helpful procedures and included seven
beneficial appendices (discussed below) to augment the usefulness of this book.

  1. Notes on Spelling

  Prior to 1800, there was virtually no uniform standard for spelling in America. Consequently, the same word could be spelled several ways. (In fact, one colonial Governor allegedly spelled his own name six different ways! ) Notice the spellings (words misspelled by today’s standards are underlined) appearing in the Pilgrims’ “Mayflower Compact” of 1620:

  We whose names are underwriten, the loyall subjects of our dread soveraigne Lord King James, by the grace of God, of Great Britaine, Franc, & Ireland king, defender of the faith, &c., haveing undertaken, for the glorie of God, and advancemente of the Christian faith, and honour of our king & countrie, a voyage to plant the first colonie in the Northerne parts of Virginia, doe by these presents solemnly & mutualy in the presence of God, and one of another, covenant &combine our selves togeather into a civill body politick …

  In an effort to improve readability and flow, we have modernized all spellings in the historical quotes used throughout this work. This, however, will not change any meanings. By referring to the sources in the footnotes, the reader will be able to examine the original spelling should he/she so desire.

  2. Notes on Capitalization and Punctuation

  Similarly distracting is the early use of capitals and commas. For an example of the copious use of commas, refer to the previous example; to see the excessive use of capitals, notice this excerpt from a 1749 letter written by signer of the Declaration Robert Treat Paine (underlined words would not be capitalized today):

  I Believe the Bible to be the written word of God & to Contain in it the whole Rule of Faith & manners; I consent to the Assemblys Shorter Chatachism as being Agreable to the Reveal’d Will of God & to contain in it the Doctrines that are According to Godliness. I have for some time had a desire to attend upon the Lords Supper and to Come to that divine Institution of a Dying Redeemer, And I trust I’m now convinced that it is my Duty Openly to profess him least he be ashamed to own me An Other day; I humbly therefore desire that you would receive me into your Communion & Fellowship, & I beg your Prayers for me that Grace may be carried on in my soul to Perfection, & that I may live answerable to the Profession I now make which (God Assisting) I purpose to be the main End of all my Actions.

  In a further effort to improve readability, the modern rules of capitalization and punctuation have been followed in the quotes throughout this book.

  3. The Definition of a “Founding Father”

  For the purpose of this work, a “Founding Father” is one who exerted significant influence in, provided prominent leadership for, or had a substantial impact upon the birth, development, and establishment of America as an independent, self-governing nation. While a more complete identification of a “Founding Father” appears at the beginning of Chapter 6, some two-hundred-fifty or so individuals fit within this category, including the fifty-six signers of the Declaration of Independence, the fourteen Presidents of Congress during the Revolution, the two-dozen or so prominent Generals who secured independence, the fifty-five delegates to the federal Constitutional Convention, the earliest State Governors largely responsible for the ratification and adoption of the Constitution, the ninety members of the first Congress who framed the Bill of Rights, the first members of the U. S. Supreme Court who helped set the judiciary on its feet, and the earliest members of the Executive department who helped establish that branch.

  4. The Usage of the Words “Court” and “Constitution”

  “Court” (capital “C”) refers to the Supreme Court of the United States, whereas “court” (lower-case “c”) indicates a State Supreme Court or any other court, whether federal or State. Similarly, “Courts” specifically refers to the decisions of collective U. S. Supreme Courts and “courts” refers to the judiciary in general, represented by jurisdictions from the lowest level local courts through the Supreme Court of the United States. Likewise, “Constitution” (capital “C”) refers to the Constitution of the United States whereas “constitution” (lower-case “c”) refers to a State constitution.

  5. The Various Appendixes

  APPENDIXES “A” AND “B”: at the end of this book contain the Declaration of Independence and the Constitution of the United States. The reader is encouraged to read these two documents in their entirety and then refer to the appropriate sections as they are referred to or quoted in this book.

  APPENDIX “C”: provides a brief biographical sketch of select individuals referenced in this book (nearly 300 biographies appear in this appendix). This section will be beneficial for most readers. Although most will recognize George Washington, Alexander Hamilton, James Madison, and Benjamin Franklin as signers of the Constitution, most have never heard of Abraham Baldwin, Rufus King, William Livingston, John Langdon, Roger Sherman, or the others who signed that document. Similarly, most will recognize John Hancock, Thomas Jefferson, John Adams, and Samuel Adams as signers of the Declaration of Independence, but few can identify the other fifty-two who signed America’s birth certificate. In the overall scheme, while these other Founders are no less important, authors of history texts over the past two generations have inexplicably chosen to ignore these Founders. Therefore, if you come across a name in this book and don’t recognize it, refer to this appendix to receive a quick historical “snapshot” of the life and accomplishments of that individual.

  NOTE: The information for these nearly 300 biographical pieces is compiled from a number of sources, including the Dictionary of American Biography (22 volumes), Appleton’s Cyclopedia of American Biography (6 volumes), The Biographical Directory of the American Congress 1774-1927, The Biographical Directory of the United States Congress 1774-1989, The Signers of the Declaration of Independence (1823, 9 volumes), Encyclopedia Britannica (1911 edition, 32 volumes), World Book Encyclopedia (1960 edition, 20 volumes), Webster’s American Biographies, as well as numerous other individual biographies. Occasionally, there is discrepancy between these works as to the date or year of a specific occurrence; therefore, the years given within each sketch are those on which most seem to agree. When necessary, the various historical societies and State archivists were also consulted for confirmation of facts and figures.

  NOTE: There are a very few individuals mentioned in this book who were so historically obscure that no listing on that individual will appear in this appendix (for example, Benjamin Franklin wrote a letter to a “Dean Woodward” of whom little is known). However, very few will fall into this category.

  APPENDIX “D”: contains the endnotes – over 1,500 citations! This quantity is provided in hope that the reader will avail him/herself of the opportunity to confirm both the context and the content of the quotes profusely provided throughout this work.

  APPENDIX “E”: contains a complete citation list of the legal cases referenced in this book so that not only attorneys and others in the legal profession but also every citizen can locate these cases for their own examination.

  APPENDIX “F”: contains the complete bibliographic listing of the works cited in this book – over 400 different sources. The bibliography section is subdivided into the categories of “books,” “legal works,” “documents,” and “periodicals.”

  APPENDIX “G”: is the index and will provide the page number where major names, cases, themes, issues, etc., are cited throughout this work. It provides an excellent quick locator for the reader.

  Acknowledgments

  In recent years, corporate jargon has undergone an amazing metamorphosis as books documenting the hallmarks of successful enterprises have popularized words like “teamwork” and “partnership.” Despite their current vernacular popularity, such concepts are not new.

  Three thousand years ago, Solomon, perhaps the wisest sage of that or any era, had already discovered these truths (see, for example, Proverbs 11:14; 15:22; 20:18B; 24:6; etc.). Then, a thousand years later, the learned scholar Paul specifically emphasized the teamwork pri
nciple with his illustration of the human body (see I Corinthians 12): although composed of many distinct members, each contributes an invaluable role and is part of the whole.

  Original Intent affirms the wisdom both of this current age and of past millennia. While only my name appears on the cover as author, it would be inaccurate to conclude that this work was solely my product. It is the result of over two years of laborious work by numerous invaluable individuals.

  The scope of their contributions encompasses extensive research in both rare and contemporary works, in both court cases and other legal writings, in biographical research, in data entry and typing (this work has gone through over thirty complete iterations in the past two years alone), in checking and comparing the accuracy of the entered data against the originals, in editing both for textual flow and grammar, in technical support for hardware and software, etc. This seemingly simple book is actually the result of a partnership of many able and dedicated individuals; while each has exhibited different strengths and functions, when coupled together they have formed – to use Paul’s phraseology – a very adequate “body.”

  The individual “members” of that “body” have included – in random order – Bill Suggs, Leah Watson, Cheryl Barton, Brian Stone, Tom Smiley, Grady Barton, Mark Haynes, Sandy Grady, Knox Ross, Kit Marshall, Lynn Fowler, Rose Barton, Melissa Mullens, Fred McNabb, Barbara Smiley, Cindy Pettay, Liz McClendon, Bob Lewis, Kandi Hogan, Damaris Barton, Scarlett McClendon, Joni Gingles, Vicki Carter, Kristy Stedman, Nathan Lehman, Katie Schonhoff, Sarah Freeman, Jared Seaman, and others. In addition to these staff workers, there has been the invaluable assistance of numerous historical societies – both federal and State, public and private, as well as those focusing on single individuals (e.g., the Noah Webster home in Hartford) as well as on collective groups (e.g., Independence Hall and the National Historical Park in Philadelphia).