Categories: Articles

Judges: Should they be Elected or Appointed?

Some states have recently considered proposals that would abolish the election of State judges and replace it with a system of appointed judges who would face periodic retention elections. While supporters of this plan argue that retention elections will keep judges accountable to the voters, it is irrefutable that this plan will give judges a level of insulation from the public they have never before experienced and make them more unaccountable than ever before. The folly of this proposal is made clear both by history as well as the lessons of other States that have adopted such a plan.

From a historical perspective, the Founders of our country held succinct opinions on this issue. For example, two centuries ago when the colonists declared themselves independent from Great Britain and had opportunity to create their own governments, they promptly incorporated into America new and important judicial principles – of which the 1780 Massachusetts Constitution was typical in declaring:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority – whether Legislative, Executive, or Judicial – are their substitutes and agents and are at all times accountable to them. [1] (emphasis added)

The Framers feared tyranny from the judiciary more than from the other two branches, so they placed deliberate limitations on the judiciary. As a result, the Federalist Papers reported that under their plan, “the Judiciary is beyond comparison the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.” [2]

As part of that plan, the Framers took care to ensure that judges were accountable to the people at all times. Although federal judges were appointed and did not face election, the Founders made certain that federal judges would be easily removable from office through impeachment, a procedure that today is widely misunderstood and rarely used. While the current belief is that a judge may be removed only for the commission of a criminal offense or the violation of a statutory law, [3] it was not this way at the beginning. As Alexander Hamilton explained, “the practice of impeachments was a bridle” [4] — a way to keep judges accountable to the people. And what did the Framers believe were impeachable offenses? According to Justice Joseph Story, a “Father of American Jurisprudence”:

The offences to which the power of impeachment has been and is ordinarily applied. . . . are what are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests. [5]

Under the Framers, impeachment occurred whenever a judge attempted to carry a personal agenda through the court; but today impeachment has become what Justice Story warned that it should never be: a power “so weak and torpid as to be capable of lulling offenders into a general security and indifference.” [6] The federal judiciary, because it now enjoys a level of insulation from the people that the Framers never intended and to which they today would vehemently object, is unafraid to reshape American culture and policy to mirror its own political whims and personal values.

Judges given increased levels of protection from the public feel freer to advance personal agendas, often manifesting the view expressed by Supreme Court Justice Benjamin Cardozo who declared that:

I take judge-made law as one of the existing realities of life. [7]

Americans should not have to fear “judge-made laws” as a reality of life. We elect our legislators to make our laws, and those states that elect judges elect them to apply those laws. If these states reject a system of accountable judges, they undoubtedly will face the same arrogance now so evident on the federal level – as when Supreme Court Chief-Justice Charles Evans Hughes declared:

We are under a Constitution, but the Constitution is what the judges say it is. [8]

Since the proclivity to reshape culture and values is so frequently displayed by unaccountable judges, why would a state want to adopt such a system? In fact, why would anyone even propose a system to give additional insulation to judges? Because – proponents answer – for judges to campaign to win the votes of citizens makes the judiciary a “political” branch and weakens the so-called “independence” of the judiciary. Yet, as Thomas Jefferson wisely observed:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass. [9]

And is anyone really so naivé as to believe that the current appointed “independent” federal judiciary has not become a political branch? As Jefferson had warned:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . [A]nd their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. [10]

Contrary to what is asserted by the proponents of appointed judges and retention elections, for judges to campaign and win voter support actually prevents the judiciary from becoming a political branch because citizens can then insist that judges confine themselves to their constitutional roles rather than implement their own political agendas.

Another benefit of the direct elections of judges is the competition that occurs between candidates. In contested races, judicial candidates make public the beliefs of their opponents, thus allowing citizens the opportunity to make informed decisions about those whom they want to sit on the bench. On the other hand, if an individual is appointed rather than elected, his personal beliefs might remain unknown to the public until they manifest themselves in harmful judicial decisions. Furthermore, these appointed judges would have at least four uninterrupted, unrestrained years before they would face voters for the first time in a retention election – and even at that time, there would be no opponent to remind voters of egregious decisions.

Those proposing retention elections are not improving State government. Instead, they are violating one of its most sacred principles: they are removing power from the people — something to which Thomas Jefferson strenuously objected:

The exemption of the judges from that [from election] is quite dangerous enough. I know no safe depository of the ultimate powers of the society but the people themselves; and if we think them [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it [control] from them, but to inform their discretion by education. [11]

Jefferson further declared:

[I]t is necessary to introduce the people into every department of government. . . . Were I called upon to decide whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the laws is more important than the making of them. [12]

Understanding that “the execution of the laws is more important than the making of them,” many of our earliest statesmen supported the election of State judges. For example, Noah Webster, himself a judge and the man responsible for Article 1, Section 8, 8 of the U. S. Constitution, declared:

[M]en elected to office should be able men, men of talents equal to their stations, men of mature age, experience and judgment; men of firmness and impartiality. This is particularly true with regard to men who constitute tribunals of justice – the main bulwark of our rights. [13]

In addition to these historical lessons, recent experiences demonstrate that in States with an appointed judiciary, judges are quite comfortable in exerting political influence rather than simply upholding and applying State laws.

For example, in the 2002 election, the appointed New Jersey Supreme Court reviewed the State law declaring that a candidate’s name may be replaced on the ballot only if the “vacancy shall occur not later than the 51st day before the general election” and somehow decided that the 35th day before the election fulfilled the same legal requirements as the 51st day before the election. (Recall that the Democrat candidate was lagging far behind his Republican opponent in the polls; the Democrats convinced the unelected judges to place a more viable candidate on the ballot – in violation of the State law – and Democrats therefore won a U. S. Senate seat they were destined to lose.)

And who can forget the appointed Florida Supreme Court in the 2000 presidential election? Even though State law declared that all election vote tallies were to be submitted to the Secretary of State’s office by 5 PM on the 7th day following the election, and that results turned in past that time were to be ignored, those judges ruled that 5 PM on the 7th day really meant 5 PM on the 19th day, and that the word “ignored” really meant just the opposite – that the Secretary of State must accept all results, even those that did not comply with the law.

Judges facing regular elections would not have rendered decisions that ignored such clear legislative language (not to mention basic math or the common meaning of words). Elected judges know that if they make such agenda-driven decisions, they will face a plethora of opponents in their next race who will remind voters of their demonstrated contempt for State law.

Arrogant, elitist proposals that judges should be protected from citizens in this day of rampant judicial political agendas is unthinkable in our free society. History is too instructive on the necessity of direct judicial accountability for its lessons to be ignored today. And while judicial accountability through the use of impeachment on the federal level appears to be a thing of the past, judicial accountability through the direct election of State judges should not be.

Footnotes

[1] A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), 9, Massachusetts, 1780, Part I, Article V.

[2] Alexander Hamilton, Federalist #78, Alexander Hamilton, John Jay, James Madison, The Federalist on the New Constitution (Philadelphia: Benjamin Warner, 1818), 419-420; Hamilton, Federalist #73, The Federalist (1818), 398.

[3] See, for example, Irving Brant, Impeachment: Trials & Errors (New York: Alfred Knopf, 1972); Warren S. Grimes, who argues that impeachment is a relic of the past and should be abandoned in his “Hundred-Ton-Gun Control: Preserving Impeachment as the Exclusive Removal Mechanism for Federal Judges,” UCLA Law Review (June 1991), 1254; U.S. v. Carol Bayless, 95 Cr. 533 (S.D. NY, 1996); the joint statement issued by current and former chief-judges of the United States Court of Appeals for the Second Circuit in response to widespread calls from several public officials for the impeachment of federal judge Frank Baer, Jr., March 28, 1996; Fort Worth Star Telegram, April 14, 1996, C-5, “Judicial Independence” by David Broder, writer for The Washington Post.

[4] Alexander Hamilton, Federalist #65, The Federalist (1818), 353.

[5] Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray and Company, 1833), II:233-234, § 762.

[6] Story, Commentaries (1833) II:218, § 745.

[7] Benjamin Cardozo, The Nature of the Judicial Process (New Haven: Yale University Press, 1921), 10.

[8] Charles Evans Hughes, speech at Elmira on May 3, 1907, The Autobiographical Notes of Charles Evans Hughes, eds. David J. Danelski & Joseph S. Tulchin (Cambridge: Harvard University Press, 1973), 144.

[9] Thomas Jefferson to Judge Spencer Roane, September 6, 1819, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington, D. C.: The Thomas Jefferson Memorial Association, 1904), XV:213 214.

[10] Jefferson to William Charles Jarvis, September 28, 1820, Writings, ed. Bergh (1904), XV:277.

[11] Jefferson to William Charles Jarvis, September 28, 1820, Writings, ed. Bergh (1904), XV:278.

[12] Jefferson to M. L’Abbe Arnoud, July 19, 1789, Writings, ed. Bergh (1904), VII:422-423.

[13] Noah Webster, A Collection of Papers on Political, Literary, and Moral Subjects (New York: Webster & Clark, 1843), 303, Chapter XV.

A Tale of Two Constitutions

(First published in the October 2004 issue of The American Legion magazine)

The subject of constitutional interpretation may seem like a topic best fitted for an ivory-tower debate, but it actually has a very real and dramatic impact on daily life (as will be demonstrated shortly). In recent years, two competing viewpoints have emerged.

Probably the first exposure most citizens had to the two views came during the 2000 presidential debates. When asked what type of judges should be placed on the bench, candidate Bush responded: “I believe that the judges ought not to take the place of the legislative branch of government . . . and that they ought to look at the Constitution as sacred. . . . I don’t believe in liberal, activist judges; I believe in strict constructionists.”1 Candidate Gore countered, “The Constitution ought to be interpreted as a document that grows.”2 Gore later stated, “I believe the Constitution is a living and breathing document. . . . We have interpreted our founding charter over the years, and found deeper meanings in it in light of the subsequent experience in American life.”3 So, the two choices are . . . follow original intent, or construct a living constitution.

Proponents of a living constitution believe that we should not be bound by what dead white guys wrote two centuries ago when slavery was legal, women could not vote, and horses were the fastest means of transportation. Instead, we should live under a constitution that is alive and vibrant, reflecting today’s values and beliefs.

Such rhetoric makes a living constitution sound appealing, but it is actually a complete misportrayal of the difference between the two philosophies. In reality, both accommodate an evolving society; in fact, under the strict construction (or originalist) viewpoint, Article V of the Constitution requires that the Constitution be a living document. The real difference between the two approaches is not whether the Constitution should evolve,
but rather how those changes should occur – and whoshould make them.

Under the living constitution approach, history and precedent are largely irrelevant; instead, unelected judges create policy to reflect modern needs through the constitution they themselves write. As explained by Chief Justice Charles Evans Hughes:

We are under a constitution, but the constitution is what the judges say it is.4

Ironically, under this modern approach, judicial policy-makers are regularly out of step with modern society. For example, although 80 percent of the nation currently opposes flag desecration, living constitution judges have ruled that the people are wrong on this issue and that the flag cannot be protected. Similarly, 90 percent of citizens in the federal Ninth Circuit supported keeping “under God” in the Pledge of Allegiance, but their living constitution judges pronounced them wrong.

Equally striking is the number of recent occasions in which living constitution judges have overturned statewide votes wherein the People clearly expressed their will (e.g., striking down votes in New York and Washington that banned physician-assisted suicides; in Arkansas and Washington that enacted term limits; in Missouri that rejected a tax increase; etc.).

Each of these popular votes would be valid under original intent because in that approach, the People — not unelected judges — determine their policies and values. And whenever the People want a change, they do not rely on a judge to make it; instead, they update their Constitution to reflect their views — as they have done on over two-dozen occasions. Samuel Adams pointed out the strength of this approach:

[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government and to reform, alter, or totally change the same when their protection, safety, prosperity, and happiness require it. And the federal Constitution — according to the mode prescribed therein [Article V] – has already undergone such amendments in several parts of it as from experience has been judged necessary.5(emphasis added)

This unique American guiding principle made its appearance in the Declaration of Independence as “the consent of the governed.” The State constitutions penned after the Declaration reiterated this precept — as, for example, in Massachusetts in 1780:

All power residing originally in the people and being derived from them, the several magistrates and officers of government vested with authority — whether Legislative, Executive, or Judicial — are their substitutes and agents and are at all times accountable to them.6

The same axiom was then established in the Constitution through the three-word phrase that begins its text: “We The People.”

Today’s living document proponents decry this approach as majoritarianism – the so-called “tyranny of the majority.” Perhaps, but what is the alternative? Minoritarism? That a small group should be able to annul the will of the People and enforce its own desires upon the masses? Such an option is unacceptable under original intent. As explained by George Washington:

The fundamental principle of our Constitution . . . enjoins [requires] that the will of the majority shall prevail.7

Thomas Jefferson agreed:

The will of the majority [is] the natural law of every society [and] is the only sure guardian of the rights of man. Perhaps even this may sometimes err. But its errors are honest, solitary and short-lived.8

Does this original principle therefore mean that minorities are to be disregarded or trodden upon? Of course not. As Jefferson further explained:

Though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable — the minority possess their equal rights which equal law must protect.9

While the minority is not to prevail, with its constitutional guarantee of “free speech,” it does have the “equal right” to attempt to persuade the majority to its point of view. The minority does have equal rights, but equal right is not the same as equal power; the minority is never the equivalent of the majority and should never exercise control over it.

Living constitution judges, however, view the majority as inherently wicked and depraved — always seeking deliberately to violate the rights of the minority with only judges standing between the minority and total annihilation. Therefore, under this anti-majoritarian view, the greater the public support for a position, the more likely a living constitution judge is to strike it down.

Yet American history has proven that the best protector of minority rights is not the courts but rather the People. For example, former slaves received their constitutional rights not from the courts but by the majority consent of non-slaves; women were similarly accorded the constitutional right to vote not by the courts but by the majority approval of men; the constitutional rights accorded to the poor by the abolition of the poll tax came at the majority approval of those who were not poor; and the constitutional right allowing eighteen-year-olds to vote was given by the majority approval of voters not eighteen-years-old.

Additionally, all of the constitutional protections for individuals and minorities established in the original Bill of Rights (e.g., speech, religion, petition, assembly, bearing of arms, etc.) were also enacted by majority consent. In other words, all minority rights in the Constitution have in all cases been established by majority consent.

In fact, the courts have a very poor record of protecting minority rights. Although living constitution proponents love to point to the 1954 Brown v. Board of Education decision that ended segregation as proof that the courts protects minority rights, they conveniently forget to tell the rest of the story. In 1875, Congress — by majority vote — banned racial segregation, but in 1882, the unelected Supreme Court struck down that anti-segregation law; in 1896, the Supreme Court reaffirmed its pro-segregation position; but in 1954, the Court finally reversed itself and struck down segregation – eighty years after “We The People” had abolished segregation.

It is not surprising that judges are fallible, for as Jefferson pointed out:

Our judges are as honest as other men, and not more so. They have — with others — the same passions for party, for power, and the privilege of their corps. . . . And their power the more dangerous as they are in office for life and not responsible — as the other functionaries are — to the elective control.10

Certainly, the majority will sometimes err, but as Jefferson observed, “its errors are honest, solitary, and short-lived” and can be remedied by “elective control.” However, the errors created by judicial decisions are more severe and long-lasting.

While living document enthusiasts disparage strict constructionists as being narrow or restrictive, Justice Antonin Scalia counters:

Don’t think the originalist interpretation constrains you. To the contrary, my [originalist] Constitution is a very flexible Constitution. You want a right to abortion? Create it the way all rights are created in a democracy: pass a law. The death penalty? Pass a law. That’s flexibility. 11

Scalia points out that it is just the opposite with living constitution judges:

They want the whole country to do it their way, from coast to coast. They want to drive one issue after another off the stage of political debate. 12

In short, then, the living constitution approach empowers an unaccountable elite to make decisions on behalf of the People; original intent empowers the People themselves.

Endnotes

1 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
2 Commission on Presidential Debates, “October 3, 2000 Debate Transcript,” https://www.debates.org/index.php?page=october-3-2000-transcript.
3 PBS.org, “Online News Hour: Al Gore,” March 14, 2000.
4 Charles Evans Hughes, speech at Elmira on May 3, 1907, The Autobiographical Notes of Charles Evans Hughes, eds. David J. Danelski and Joseph S. Tulchin (Cambridge: Harvard University Press, 1973), 144.
5 Samuel Adams to the Legislature of Massachusetts, January 19, 1796, The Writings of Samuel Adams, ed. Harry Alonzo Cushing (New York: G. P. Putnam’s Sons, 1904), IV:388.
6 A Constitution or Frame of Government Agreed Upon by the Delegates of the People of the State of Massachusetts-Bay (Boston: Benjamin Edes & Sons, 1780), 9, Part I, Article V.
7 George Washington, “Sixth Annual Address,” November 19, 1794, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:164.
8 Thomas Jefferson, “Response to the Citizens of Albermarle,” February 12, 1790, The Papers of Thomas Jefferson, ed. Julian P. Boyd (NJ: Princeton University Press, 1961), XVI:179.
9 Thomas Jefferson, “First Inaugural Address,” March 11, 1801, A Compilation of the Messages and Papers of the Presidents, 1789-1897, ed. James D. Richardson (Published by Authority of Congress, 1899), I:322.
10 Thomas Jefferson to William Charles Jarvis, September 28, 1820, Writings of Thomas Jefferson, ed. Albert Ellery Bergh (Washington D. C.: Thomas Jefferson Memorial Association, 1904), XV:277.
11 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.
12 “Justice Scalia speaks on constitutional interpretation,” Princeton, February 24, 2001, https://www.princeton.edu/news/2001/02/24/justice-scalia-speaks-constitutional-interpretation.

* This article concerns a historical issue and may not have updated information.

Election 2004: A Moral Mandate?

Most observers were surprised by the scope of President Bush’s winning margin as well as the reasons for that margin. Few expected Bush to:

  • receive more popular votes (60.5 million) than any previous president, and almost 6 million more than Ronald Reagan received in his 1984 landslide victory;
  • become the first incumbent since FDR in 1936 to increase his own vote and the size of his majority in both the House and Senate;
  • be the first president in 16 years to win more than 50% of the popular vote.

Even those who expected President Bush to win did not expect “moral issues” to rank first among reasons for voting. Who could have imagined that moral issues would outdistance taxes, the economy, Iraq, terrorism, education, or health care?

Numerous indicators affirm that the election results were directly affected by voters’ views on basic Biblical issues. Before examining some of those significant indicators, consider the overall demographics of the election.

General 2004 Voter Demographics

118 million votes were cast in the election, up nearly 12% from the 105 million cast in 2000.

Evangelical Voters: 23% (27.1 million) of all votes cast were by evangelicals. Bush received 78% (21.2 million) of those evangelical votes, representing an amazing 35% of his total of 60.5 million votes. (In 2000, evangelicals cast 15 million votes (15% of the total) and Bush received 71 percent of those votes, representing 21 percent of his 50.5 million total votes.)

Undoubtedly, one of the reasons that moral issues ranked so high in this year’s election was the 80% increase in the number of evangelical voters from the 2000 election. (In 2000, 15 million evangelicals voted; in 2004, nearly 12 million more evangelicals voted – a total of 27.1 million). This surge was one of the factors in reelecting Bush and in increasing Republican gains in both the U. S. House and Senate.

Women Voters: The “gender gap” (first measured in the 1980 election) favors Democrats, but in this election the gap was narrowed to only 7%. Among married women, Bush received 54% of the vote to Kerry’s 45%, but Kerry won 62% of the votes of unmarried women.

Jewish Voters: Jewish voters continue to remain a loyal Democratic constituency, although President Bush expanded his support from 19% in 2000 to 25% in this election.

Catholic Voters: Catholics have been a strong Democratic constituency, but in this election, 52% of the 31 million Catholic voters supported President Bush, resulting in 3.3 million more Catholic voters for Bush than in 2000 (up from his 45% in 2000).

Hispanic Voters: Hispanics, another traditional Democratic block, accounted for 12% of the total vote with 7 million voters (1 million more than in 2000); President Bush won 44% of the Hispanic vote – the largest share for a Republican since recording began in 1972, and up from the 35% he received in 2000.

African American Voters: African Americans continue to be the Democrats’ most faithful constituency in recent elections, but President Bush increased his share of the black vote from 8% in 2000 to 11% in this election.

Urban Voters: Urban areas tend to be the most strongly-Democratic geographic regions of the nation (i.e., the blue areas on the map); yet in this election, urban support for Democrats fell from 71% in 2000 to 60%, prompting Democratic observers to lament that the blue areas on the map are becoming less blue.

Youth Voters: There were 4.6 million more youth voters (ages 18-29) in this election than in 2000. (18.4% of youth voted this year, compared with 16.4% in 2000). Youth supported Kerry by a margin of 54 to 44, but the divide was not nearly as great as predicted. The expected gains from “Rock the Vote,” “Vote for Change,” and the “Vote or Die” efforts of MTV and secular entertainment artists were largely offset by the “Redeem the Vote” efforts of Third Day and nearly three dozen other Christian bands.

General Trends: Bush did poorly among single women, the young, and those who rarely attend church, but he made considerable gains in most other areas. And while half of Kerry’s vote came from Hispanics, African Americans, and single women, Bush made gains in two of those three groups compared to his 2000 election numbers.

A Religious Divide Among Voters

Even though most election analyses examined the vote according to traditional demographics (i.e., by ethnic group, gender, age, etc.), it is probably more accurate to analyze this year’s vote according to the religious practice of voters. In fact, numerous polls leading up to the election indicated that the best predictor of how an individual would vote in this election was frequency of church attendance.

This divide first became apparent in 2000, when those who attended religious services more than once a week supported Bush by a margin of nearly 2-1 and those who never attended religious services supported Gore by the same margin. With an eye to the 2004 election, Washington Post writer Thomas Edsall reported: “Pollsters are finding that one of the best ways to discover whether a voter holds liberal or conservative value stands is to ask: How often do you go to church? Those who go often tend to be Republican, those who go rarely or not at all tend to be Democratic.”

The recent election numbers affirm that the same religious-practice divide of 2000 was again present in 2004, and that it extended across ethnic, gender, and age lines. In this election, 61% of Bush’s vote came from people from all faiths who attend services weekly (this group comprised 41% of the electorate); conversely, Kerry received the support of 62% of Americans who never attend worship (accounting for 14% of the electorate); and among occasional church goers, voters were split almost evenly between Republicans and Democrats. Among Catholics who attended Mass on a weekly basis, 56% voted for Bush, but among Catholics who did not attend Mass regularly, Kerry won. (Protestants reflected the same trend.) Ultimately, Bush received 52% of the Catholic vote, prompting AP writer Richard Ostling to observe, “The majority of Catholics preferred an anti-abortion Methodist incumbent to one of their own – underscoring that today’s religious divide cuts across denominational lines.” (The exception to this trend is among African Americans, who tend to be active church goers but who vote almost exclusively Democratic.)

State Marriage Initiatives

The most obvious indicator that Biblical issues directly affected the election results was visible in the results of the state marriage initiatives. Many liberal Democratic leaders early acknowledged that this issue might be a determining factor in this election – evidenced by their vigorous efforts to keep the marriage issue off state ballots. In state after state, if Democrats failed to kill the measure in the state legislature they turned to courts to have the issue removed from the ballot.

Democratic fears about this issue were confirmed in Missouri three months before the November election. Even though the marriage issue was placed on the primary rather than the general ballot – and despite the fact that pro-marriage advocates were outspent by a margin of 40-1 – the measure passed with 71% support amidst record voter turnout! Matt Franck of the St. Louis Post Dispatch accurately concluded, “values appeared to beat dollars at the ballot box.” (By the way, the report of this massive victory was relegated to page A-16 of the New York Times.)

If the Missouri results disturbed liberal Democrats and marriage opponents, the subsequent efforts in Ohio were even more distressing. After all, citizens there had only nine weeks to gather 323,000 signatures to place the issue on the ballot; yet at the end of those nine weeks, 557,000 signatures had been submitted – and 54,500 new voters registered to vote so they could express their political voice in support of traditional marriage.

When election night arrived, marriage proposals in 11 states had survived all legal attempts to remove the issue from the ballot, and almost 20 million Americans in those states voted on the marriage issue. Not only did the measure pass in all 11 states by an overall margin of 2-1, but support ranged from a low of 57% support in Oregon (still an impressive number) to an almost unimaginable 86% support in Mississippi. (Interestingly, the marriage measures also passed by wide margins in blue states won by Kerry, and 8 of the 11 states included a ban on civil unions as well as on same-sex marriages.)

Immediately after the results were announced, legal challenges were filed in 6 states to overturn the statewide elections on marriage. (Even if the state courts eventually uphold the election results, the votes could still be overturned by federal courts – which is why the Federal Marriage Amendment is being so vigorously pursued in Congress.) Support for marriage was also a defining issue in several U. S. Senate races – including that of Senate Minority Leader Tom Daschle, who was defeated by John Thune (the first time in 52 years that a Senate party leader has lost a re-election bid).

(The interesting counter-trend to the national pro-marriage movement was seen in Massachusetts, where all incumbent state legislators who had advocated same-sex marriage or unions were reelected.)

Clearly, the marriage issue was a powerful influence in state and federal elections; was it also influential in the presidential election? Undoubtedly. Although the mainstream media failed to report on the more than 40 major speeches that President Bush delivered on the marriage issue, voters still learned of those speeches and spoke loudly on Election Day. As Tony Perkins, head of the Family Research Council, noted: “At weddings they used to say, ‘Speak now or forever hold your peace.’ This shows that the people, when given the opportunity, speak very clearly.”

The Pro-Life Vote

In this election, 13% of all voters said they voted for pro-abortion candidates, but 25% of voters said they voted for pro-life candidates, obviously resulting in a distinct advantage for pro-life candidates.

Evidences of pro-life victories in this election are readily available. For example, the Susan B. Anthony List (an organization that endorses only pro-life candidates) placed almost $5 million into pro-life races, and Emily’s List (an organization that only endorses pro-abortion candidates) placed almost $45 million into pro-abortion races. Yet despite being outspent by more than 8-1, 80% of the candidates endorsed by Susan B. Anthony won, compared to only 39% of the candidates endorsed by Emily’s List. In fact, Susan B. Anthony candidates defeated six candidates backed by Emily’s List; 15 backed by Planned Parenthood; five by NARAL (the National Abortion Rights Action League); 11 by NOW’s PAC; and 11 by the pro-abortion Women’s Candidate Fund. (By the way, the 2002 and 2004 elections have added 19 new members to the U. S. Senate: 15 Republicans and four Democrats; all 15 Republicans are pro-life, but none of the Democrats are. The U. S. Senate has become significantly more pro-life over the last two elections.)

The pro-life as well as the marriage issue helped President Bush make significant gains in the Hispanic community. Bush ran ads on abortion and homosexual marriage in Spanish-language media and received the largest numbers of Hispanic votes ever received by a Republican president. One Hispanic voter seemed to sum up the feeling of many when he explained, “I voted for Bush based on his moral stance. Bush is pro-life, I’m pro-life. He believes marriage should be between a man and a woman, and so do I.”

(One amazing and almost inexplicable aspect of this election was the fact that 26% of those who oppose all abortions voted for Kerry – who opposes no abortions.)

The African American Vote

While the percentage increase of African Americans voting for President Bush appeared relatively small, the gain was actually much greater than it appears. While Bush received 8% support of the 10.8 million black voters in 2000 (that is, 864,000 votes), in this election he received the support of 11% of 13.2 million black voters (that is, 1.45 million votes – nearly a 70% increase in the actual number of individual African Americans voting for President Bush).

As suggested by columnist Gregory Kane of the Baltimore Sun, the cause for much of the African American increase in support for President Bush was his pro-life and pro-traditional marriage position. Just days after the election, Kane explained:

The first inkling I had that Sen. John Kerry would lose Tuesday’s election came exactly a week before, when I participated in a telephone conference call that the Massachusetts senator had with about 350 black clergy. After former President Bill Clinton introduced him, Kerry told the group that the issue of gay marriage was a red herring. “I ask you not to be diverted from the real issue in this case,” as if blowing off the moral issue that would eventually cost him the election weren’t enough, we have to look at what else was wrong with the picture: when you’re telling clergy folks that things many Christians regard as sins don’t matter, you might not want an admitted philanderer to be the guy introducing you. Earlier in the campaign, Kerry shared a stage with the Rev. Jesse Jackson, another fella not yet bitten by the monogamy bug, who [also] said moral issues in campaign 2004 were a diversion.

While overall African American support for Bush was at 11%, it was much higher in many battleground states, such as Ohio and Pennsylvania where African American support for Bush reached 16%.

The New Faces Elected

The voters’ support for life, faith, and traditional family produced an outstanding body of freshmen House and Senate members. Consider first the U. S. Senate results: nine new freshman Senators, seven of whom are pro-life (all the Republicans).

Following the election, veteran Senator Jon Kyl (R-AZ) observed, “In terms of the Republicans, with the exception of Don Nickles, every one of them is more conservative than the person they replaced.” The voting records as recorded by the American Conservative Union (ACU) confirm the truth of Kyl’s statement:

  • South Dakota: John Thune (former House Member; ACU: 92%) will replace Tom Daschle (ACU: 22%).
  • South Carolina: Jim DeMint (current House Member; ACU: 100%) will replace Fritz Hollings (ACU: 15%).
  • North Carolina: Richard Burr (current House Member; ACU: 96%) will replace John Edwards (ACU: 30%).
  • Louisiana: David Vitter (current House Member; ACU: 100%) will replace John Breaux (ACU: 42%).
  • Florida: Mel Martinez (a pro-life, pro-traditional marriage Secretary of HUD under President Bush) will replace Bob Graham (ACU: 20%).
  • Georgia: Johnny Isakson (current House Member; ACU: 96%) will replace Zell Miller (ACU: 47%)
  • Oklahoma: Tom Coburn (former House member; ACU: 97%) will replace retiring Don Nickles (ACU rating: 100%). (This is the seat in which Kyl correctly acknowledged that there would be little change.)

The new Republican Senators are not just conservative votes but rather are committed leaders. As freshman Tom Coburn expressed it:

I believe we have a deficit of moral courage in the United States Congress. We have many learned individuals who know what is right but have not the courage to stand against the moral corruption that is now attempting to undermine our republic. I believe we have lost sight of the moorings of the Constitution in that it was founded upon the principles of a Creator and that we have inalienable rights given by that Creator. We need leaders who are unashamed of their faith and understand its importance in the maintenance of a free society.

On the Democratic side, the two new freshmen Senators – Barack Obama (IL) and Ken Salazar (CO) – are both pro-abortion and both oppose marriage protection.

In the House, there are 39 new members: 23 freshman Republicans, 14 freshmen Democrats, and two undecided (two House races in Louisiana will have runoffs in December). Like the Senate, the Democratic House Members tend to be pro-abortion and the Republicans pro-life, including new pro-life and pro-family advocates Geoff Davis (KY), Bobby Jindal (LA), Patrick McHenry (NC), Virginia Foxx (NC), Jeff Fortenberry (NE), Ted Poe (TX), Kenny Marchant (TX), Louie Gohmert (TX), Michael McCaul (TX), Cathy McMorris (WA), Mike Sodrel (IN), Mike Fitzpatrick (PA), Bob Inglis (SC), Dave Reichert (WA), and many others. (Additionally, the House’s strongest pro-choice Republican was replaced by a much more conservative Member.)

Clearly, candidates embracing Biblical moral values did very well in this election as voters showed their preference for such leaders.

The Specter Response

The day following the election, when even the secular media was acknowledging a moral mandate from the election, pro-abortion Republican Senator Arlen Specterv(likely the next chairman of the Senate Judiciary Committee) appeared to issue a thinly veiled warning to the President to not send conservative pro-life judicial nominees before his committee.

Senate offices were immediately inundated with thousands of calls, asking Senators to deny Specter the committee chairmanship. That unorchestrated, spontaneous, and rapid response was in itself a major victory, demonstrating that citizens intend to remain engaged in the culture war on the policy side as well as the election side. This unexpected response from citizens has already had a profound effect inside the Senate.

As a result, Sen. Specter is rapidly backtracking. It is likely that he will publicly pledge not to oppose any of the President’s nominees, and as a result his fellow Senators may permit him to become chairman. Such a result ensures that the message delivered so clearly by citizens in the election will be paid attention to after the election.

(Interestingly, the new Senate Minority Leader for the Democrats is Sen. Harry Reid of Nevada. Reid’s pro-life record is not particularly strong, but he is one of the strongest pro-life Democratic Senators. Ironically, over the last three sessions of Congress, Reid has actually had a better pro-life voting record than Specter!)

Three Post Election Reactions

There have been three distinct visible reactions (not responses) to the election results from various groups of Democratic leaders and activists. The first reaction is reminiscent of the reaction of Democrats against Republicans 144 years ago.

The election of 1860 was characterized by a cultural divide over slavery. The upstart Republicans (having been founded only six years earlier, in 1854) had issued platforms setting forth bold declarations of equality and civil rights for all African-Americans and, condemning slavery, the Fugitive Slave Law, and the Dred Scott decision. The Democrat platforms, however, strongly defended slavery and supported both the Fugitive Slave Law and the Dred Scott decision.

When Americans in that election handed the presidency, the House, and the Senate to Republicans, it was obvious to Democrats what was about to happen: the anti-slavery and pro-civil rights positions of the Republicans were about to become reality. What was the response? Southern Democrats seceded – they left Congress and took their states with them, forming a new nation that described itself as the “slave-holding” Confederate States of America – a nation led by a Democrat U. S. Senator as its president and a Democrat U. S. Representative as its vice-president. (By the way, the fear of Democrats in that election came true: Republicans not only passed a constitutional amendment abolishing slavery while still fighting the Civil War but they also passed two dozen civil rights laws in only a decade, one of which banned all segregation; but the Supreme Court – being as out of touch with the wishes of that generation as it is with today’s – struck down that desegregation law.)

Now, a century-and-a-half later in 2004, with it being obvious to Democrats that Republicans intend to protect marriage, innocent human life, and reign in an activist judiciary, Democratic leaders such as Lawrence O’Donnell, Bob Beckel, and Geraldine Ferraro (as well as many rank-and-file Democrats) are once again making noise about secession. The proposed map they are circulating on the internet demonstrates their understanding of the cultural divide in this election: they propose that the 19 blue states won by Kerry join with Canada to form the “United States of Canada,” and that the remaining 31 red states be named “Jesusland.”

However, not all Democrats are seeking to secede; some are simply seeking psychotherapy. In fact, so many have sought help that mental health professionals have developed a new category for the disorder. According to Rob Gordon of the American Health Association, “We’re calling it ‘post-election selection trauma’.” What are the symptoms of this disorder? “They include feelings of extreme anger, despair, hopelessness, powerlessness, a failure to function behaviorally, a sense of disillusionment, of not wanting to vote anymore.” Gordon warns: “There are definitely people depressed by John Kerry’s loss, and this can easily lead to suicides like the one we saw up in New York this weekend.”

The third apparent post-election reaction is a deliberate attempt to reshape long-held definitions of established words, or doing what the dictionary describes as “new-speak” (the “deliberately ambiguous and contradictory language used to mislead and manipulate the public,” based on the term invented in the famous novel 1984). In other words, many liberals, understanding that they lost the election largely because of traditional moral values, are attempting to redefine the scope and universally understood meaning of those words. For example, the Rev. Robert Edgar, general secretary of the National Council of Churches, laments: “The religious right has successfully gotten out there shaping personal piety issues – civil unions, abortion – as almost the total content of ‘moral values.’ And yet . . . God doesn’t want 45 million Americans without health care.”

Supporters of same-sex marriage are now asserting that it is “moral” to extend partnership rights to two men or two women who have “committed” themselves to each other, and pro-abortion advocates are now claiming that it is “moral” for a poor mother to have an abortion rather than bear a child she might not want. Since the election, the Left has begun chanting about “morals” and “values,” but giving those words their own new meanings.

Another frequently mentioned “moral value” involves taking care of the poor. As the Rev. Stephen Bouman explains, “One thing Jesus was absolutely clear about was helping the poor.” While it is true that the Bible does have much to say about helping the poor, it is also true that the Bible clearly prioritizes certain issues. Consider the fact that God took over 600 laws and reduced them into His “Top Ten” commandments. The protection of innocent life does make God’s Top Ten (#6), and the protection of the sanctity of marriage also makes God’s Top Ten (#7); however, taking care of the poor does not make God’s Top Ten, and to elevate that issue above what God has elevated is to usurp His authority and that of His Word.

Additionally, when George W. Bush, then Texas Governor first implemented faith-based programs in Texas, CBS News traveled to Fredericksburg, Texas, and reported that the same amount of welfare money that previously had taken care of 4 recipients in the government system was now taking care of hundreds of recipients in the faith-based welfare system. Therefore, it is apparent that the ability to better help the poor is dramatically increased by the implementation of faith-based
programs – something that most Democrats vehemently oppose and most Republicans strongly support.

Statistical indicators in the election – as well as the reactions and rhetoric of those who lost – clearly confirm that “moral issues” were a definitive and major influence in the outcome of this election. So was there a moral mandate delivered by voters on election night 2004? Many indicators would suggest that the answer may be, “Yes.”

* This article concerns a historical issue and may not have updated information.

Taking On The Critics

As an example of the kind of misportrayals and mischaracterizations that David Barton is subjected to by critics, we have provided the following excerpt from an article written by Barry Hankins, an associate director of Baylor University’s JM Dawson Institute of Church-State Studies. Hankins’ article was entitled Separation Of Church And State Is Not Just For Liberals, and is typical of works by secularism advocates in that while it purports to discuss the “history” of church-state separation, it fails to use historical sources but instead overwhelmingly relies on works from current sources rather than primary or original sources. (David Barton’s response is provided below the article excerpt.)

Separation Of Church And State Is Not Just For Liberals excerpt:

Close observers of this phenomenon will know that arguably the most prolific and effective proponent of the antiseparationist view is David Barton, the former math teacher and high school principal who founded Wall Builders, headquartered in Aledo, Texas. Barton barnstorms the country with high tech slide-show presentations purporting to prove that the founders intended to establish a nation that gave preference to Christianity. He has written the aptly titled The Myth of Separation. In all his books, tapes, and public addresses, Barton relies heavily on selected quotations from America’s founders.

Recently Robert Alley, professor emeritus at Richmond University and an expert on James Madison, questioned a Barton quote attributed to Madison. When Alley’s research revealed that Madison had probably never uttered the remark in question, Barton retracted it. In an astounding move, Barton also issued a published retraction of 11 other quotes, listing 10 as questionable and two, including the Madison quote, as false.[7] However, the flap does not seem to have slowed Barton’s juggernaut.

David Barton’s response:

August 30, 2003
Barry Hankins
J. M. Dawson Institute
Baylor University
Waco, TX 76798

Mr. Hankins:

I recently was given an article you had authored, “Separation of Church and State is not Just for Liberals.” The copy I received was undated; perhaps it is an older article; nevertheless, since I was a subject of your pen (and since you never took the time to consult me either to confirm or deny what you alleged about me), I thought I would present you with a few facts concerning the misrepresentations you made about me on page 1 of that article:

1. To my knowledge, the only time I have acknowledged or read anything that Robert Alley has written was his attack on me for speaking at Gov. George Allen’s Inauguration in January 1994. It may come as a complete surprise to you to learn that I neither read nor follow anything Robert Alley may or may not say about me, nor have I read any article by him about Madison or his writings.

2. Since I do not read Alley’s materials nor do I concern myself with his writings, he clearly had no influence on our publication of the “Questionable Quotes” list. Consider: we listed over a dozen questionable quotes but Alley apparently mentioned only the Madison quote; and you assert that was the reason we issued our much more extensive list? Ridiculous! In fact, to our knowledge, my article about the uncertainty of the Madison quote predated his; we did not change our position in response to anything he wrote; rather, I publicly announced that I would no longer use the Madison quote (and others) not because it was inaccurate but rather because I had determined to raise the scholarship of the debate from an academic level to the higher level of legal documentation known as “best evidence” – a level of documentation that most of those in your camp have yet to embrace.

(For example, In Search of Christian America, written by three PhDs from your viewpoint, purports to search the Founding Era (1760-1805) for evidences of official acknowledgments of Christianity and concludes that there is a lack of such evidence. However, of the hundreds of sources cited to reach that conclusion, some 80 percent were taken from sources published after 1950 – more than a century-and-a-half after the period they purport to investigate! Such disparate and dissimilar sources would be unacceptable in a court of law.)

3. Alley can neither claim that Madison “never” uttered the “quote in question” about the Ten Commandments nor that it was “false.” As you yourself know, Madison’s “Detached Memoranda” (surely one of your favorite documents) was not “discovered” until 1946. More Madison letters previously unknown are found regularly, often in the estates of recently deceased individuals who held private collections or inherited family heirlooms received directly from Madison’s hand. Furthermore, much of what is known about Madison and his diverse and often changing viewpoints frequently comes from Madison’s contemporaries rather than from his own writings.

For example, more of Madison’s succinct statements against slavery are available through his personal interviews with Harriet Martineau (published in the early 1800s) than from his own writings. Alley can no more claim that the Madison quote does not exist than I can claim that it does. However, I can show that the Madison “quote in question” has been in circulation for generations, and I can document it (as I did) to non-modern works and works by credentialed historians. Quite simply, neither I nor Alley can say whether or not the Madison quote is false; however, I simply decided that I would no longer quote academics, historians, or doctorates of history to establish what the Founders said (as you regularly do) but instead I would cite only primary source documentation that meets a legal standard of evidence. (I continue to challenge your side to meet the same standard.)

4. Your claim that “The flap does not seem to have slowed Barton’s juggernaut” is baseless and irrelevant simply because there was no flap other than what you attempted to concoct. Furthermore, the specific work you so recklessly demean (The Myth of Separation) provided over 750 footnoted citations. Therefore, for us to drop a dozen quotes from that work represented a trivially small percentage and no historical conclusion was changed.

For example, rather than continuing to use the uncertain James Madison quote on the Ten Commandments, I replaced it with irrefutably-documented statements by other Founders on the same subject – such as the Ten Commandments quote by John Adams (by the way, Adams – unlike Madison – actually signed the Bill of Rights and is an equally competent legal authority on the subject). As a result of my decision to elevate the level of documentation, we replaced The Myth of Separation with Original Intent – a work with over 1,400 footnotes (rather than the 750 in Myth), and a work that not only meets legal standards of scrutiny but that also arrives at the identical historical conclusions reached in The Myth of Separation.

5. On the other hand, I notice that in books from those of your perspective, few footnotes are presented. For example, in The Godless Constitution – an allegedly “scholarly” university text written by two prominent PhDs – no footnotes are provided. As they openly concede, “we have dispensed with the usual scholarly apparatus of footnotes.” While a work such as this with no footnotes is probably acceptable to you simply because of its conclusions, it would not pass legal muster for best evidence; yet my work which does pass the standards of legal scrutiny is completely unacceptable to you. Ironically you frequently embrace and laud the types of works that fail to meet the legal standard of “best evidence” while attacking and demeaning the ones that do.

I recognize that there can be honest differences of opinions between well-intentioned individuals; and I whole-heartedly support your right to free speech — including your right to make uninformed statements, present incomplete and inaccurate information, and offer complete mischaracterizations and misportrayals — as you have done in the part of your article addressing me. Regrettably, the section of your article about me neither meets the standards of basic journalism (where an individual attacked in an article is called and asked to respond to charges) nor of academic scholarship (where footnotes and documentation are provided).

In your defense, I did note that you provided one footnote to document my “false” quotes; however, the source of that documentation was actually an attack piece written against me by one of your closest allies — not quite an unbiased objective source! However, objective truth was probably never the goal of your article.

An old lawyers’ adage admonishes: “When you have the facts on your side, argue the facts. When you have the law on your side, argue the law. When neither is on your side, change the subject and question the motives of the opposition.” You seem to have chosen the latter course of action.

David Barton

[For more information on this issue please see “Unconfirmed Quotations”]

The Bible, Slavery, and America’s Founders

America’s Founding Fathers are seen by some people today as unjust and hypocrites, for while they talked of liberty and equality, they at the same time were enslaving hundreds of thousands of Africans. Some allege that the Founders bear most of the blame for the evils of slavery. Consequently, many today have little respect for the Founders and turn their ear from listening to anything they may have to say. And, in their view, to speak of America as founded as a Christian nation is unthinkable (for how could a Christian nation tolerate slavery?).

It is certainly true that during most of America’s history most blacks have not had the same opportunities and protections as whites. From the time of colonization until the Civil War most Africans in America (especially those living in the South) were enslaved, and the 100 years following emancipation were marked with segregation and racism. Only in the last 30 years has there been closer to equal opportunities, though we still need continued advancement in equality among the races and race relations. But is the charge against the Founders justified? Are they to bear most of the blame for the evils of slavery? Can we speak of America as founded as a Christian nation, while at it’s founding it allowed slavery?

Understanding the answer to these questions is important for the future of liberty in America and advancement of racial equality. The secular view of history taught in government schools today does not provide an adequate answer. We must view these important concerns from a Biblical and providential perspective.

America’s Founders were predominantly Christians and had a Biblical worldview. If that was so, some say, how could they allow slavery, for isn’t slavery sin? As the Bible reveals to man what is sin, we need to examine what it has to say about slavery.

The Bible and Slavery The Bible teaches that slavery, in one form or another (including spiritual, mental, and physical), is always the fruit of disobedience to God and His law/word. (This is not to say that the enslavement of any one person, or group of people, is due to their sin, for many have been enslaved unjustly, like Joseph and numerous Christians throughout history.) Personal and civil liberty is the result of applying the truth of the Scriptures. As a person or nation more fully applies the principles of Christianity, there will be increasing freedom in every realm of life. Sanctification for a person, or nation, is a gradual process. The fruit of changed thinking and action, which comes from rooting sin out of our lives, may take time to see. This certainly applies historically in removing slavery from the Christian world.

Slavery is a product of the fall of man and has existed in the world since that time. Slavery was not a part of God’s original created order, and as God’s created order has gradually been re-established since the time of Christ, slavery has gradually been eliminated. Christian nations (those based upon Biblical principles) have led the way in the abolition of slavery. America was at the forefront of this fight. After independence, great steps were taken down the path of ending slavery – probably more than had been done by any other nation up until that time in history (though certainly more could have been done). Many who had settled in America had already been moving toward these ends. Unfortunately, the generations following the Founders did not continue to move forward in a united fashion. A great conflict was the outcome of this failure.

When God gave the law to Moses, slavery was a part of the world, and so the law of God recognized slavery. But this does not mean that slavery was God’s original intention. The law of Moses was given to fallen man. Some of the ordinances deal with things not intended for the original creation order, such as slavery and divorce. These will be eliminated completely only when sin is eliminated from the earth. God’s laws concerning slavery provided parameters for treatment of slaves, which were for the benefit of all involved. God desires all men and nations to be liberated. This begins internally and will be manifested externally to the extent internal change occurs. The Biblical slave laws reflect God’s redemptive desire, for men and nations.

Types of Slavery Permitted by the Bible

The Mosaic law permitted some types of slavery. These include:

  1. Voluntary servitude by the sons of Israel (indentured servants) Those who needed assistance, could not pay their debts, or needed protection from another were allowed under Biblical law to become indentured servants (see Ex. 21:2-6; Deut. 15:12-18). They were dependent on their master instead of the state. This was a way to aid the poor and give them an opportunity to get back on their feet. It was not to be a permanent subsidy. Many early settlers to America came as indentured servants. These servants were well treated and when released, given generous pay.
  2. Voluntary permanent slaves If indentured servants so chose, they could remain a slave (Ex. 21:2-6; Deut.. 15:16-17). Their ear was pierced to indicate this permanent subjection. The law recognized that some people want the security of enslavement. Today, there are some people who would rather be dependent upon government to provide their needs (and with that provision accepting their commands) than do what is necessary to live free from its provision and direction. Some even act in a manner that puts them in jail, desiring the care and provision they get more than personal freedom.
  3. Thief or criminal making restitution A thief who could not, or did not, make restitution was sold as a slave: “If a man steals . . . he shall surely make restitution; if he owns nothing, then he shall be sold for his theft” (Ex. 22:1,3). The servitude ceased when enough work was done to pay for the amount due in restitution.
  4. Pagans could be permanent slaves Leviticus 25:44-46 states: As for your male and female slaves whom you may have – you may acquire male and female slaves from the pagan nations that are around you. Then, too, it is out of the sons of the sojourners who live as aliens among you that you may gain acquisition, and out of their families who are with you, whom they will have produced in your land; they also may become your possession. You may even bequeath them to your sons after you, to receive as a possession; you can use them as permanent slaves. But in respect to your countrymen [brother], the sons of Israel, you shall not rule with severity over one another. In the Sabbath year all Hebrew debtors/slaves were released from their debts.. This was not so for foreigners (Deut. 15:3). Theologian R.J. Rushdoony writes, “since unbelievers are by nature slaves, they could be held as life-long slaves” 1 without piercing the ear to indicate their voluntary servitude (Lev. 25:44-46). This passage in Leviticus says that pagans could be permanent slaves and could be bequeathed to the children of the Hebrews. However, there are Biblical laws concerning slaves that are given for their protection and eventual redemption. Slaves could become part of the covenant and part of the family, even receiving an inheritance. Under the new covenant, a way was made to set slaves free internally, which should then be following by external preparation enabling those who were slaves to live at liberty, being self-governed under God.

Involuntary Servitude is Not Biblical

Exodus 21:16 says: “He who kidnaps a man, whether he sells him or he is found in his possession, shall surely be put to death.” Deuteronomy 24:7 states: “If a man is caught kidnapping any of his countrymen of the sons of Israel, and he deals with him violently, or sells him, then that thief shall die; so you shall purge the evil from among you.”

Kidnapping and enforced slavery are forbidden and punishable by death. This was true for any man (Ex. 21:16), as well as for the Israelites (Deut. 24:7). This was stealing a man’s freedom. While aspects of slavery are Biblical (for punishment and restitution for theft, or for those who prefer the security of becoming a permanent bondservant), the Bible strictly forbids involuntary servitude.

Any slave that ran away from his master (thus expressing his desire for freedom) was to be welcomed by the Israelites, not mistreated, and not returned. Deuteronomy 23:15-16 states:

You shall not hand over to his master a slave who has escaped from his master to you. He shall live with you in your midst, in the place which he shall choose in one of your towns where it pleases him; you shall not mistreat him. This implied slaves must be treated justly, plus they had a degree of liberty. Other slave laws confirm this. In addition, such action was a fulfillment of the law of love in both the Old and New Testaments. The law of God declares: “. . . you shall love your neighbor as yourself” (Lev. 19:17-18). Leviticus 19:33-34 clearly reveals that this applies to strangers and aliens as well: “The stranger, . . . you shall not do him wrong.. . . . you shall love him as yourself.”

It was forbidden to take the life or liberty of any other man. Rushdoony writes:

Thus, the only kind of slavery permitted is voluntary slavery, as Deuteronomy 23:15,16 makes very clear. Biblical law permits voluntary slavery because it recognizes that some people are not able to maintain a position of independence. To attach themselves voluntarily to a capable man and to serve him, protected by law, is thus a legitimate way of life, although a lesser one. The master then assumes the role of the benefactor, the bestower of welfare, rather that the state, and the slave is protected by the law of the state. A runaway slave thus cannot be restored to his master: he is free to go. The exception is the thief or criminal who is working out his restitution. The Code of Hammurabi decreed death for men who harbored a runaway slave; the Biblical law provided for the freedom of the slave. 2 Rushdoony also says that the selling of slaves was forbidden. Since Israelites were voluntary slaves, and since not even a foreign slave could be compelled to return to his master (Deut. 23:15, 16), slavery was on a different basis under the law than in non-Biblical cultures. The slave was a member of the household, with rights therein. A slave-market could not exist in Israel. The slave who was working out a restitution for theft had no incentive to escape, for to do so would make him an incorrigible criminal and liable to death. 3

When slaves (indentured servants) were acquired under the law, it was their labor that was purchased, not their person, and the price took into account the year of freedom (Lev. 25:44-55; Ex. 21:2; Deut. 15:12-13).

Laws related to slaves There are a number of laws in the Bible related to slavery. They include:

  1. Hebrew slaves (indentured servants) were freed after 6 years. If you buy a Hebrew slave, he shall serve for six years; but on the seventh he shall go out as a free man without payment (Ex. 21:2). If your kinsman, a Hebrew man or woman, is sold to you, then he shall serve you six years, but in the seventh year you shall set him free. And when you set him free, you shall not send him away empty-handed (Deut. 15:12-13). Hebrew slaves were to be set free after six years. If the man was married when he came, his wife was to go with him (Ex. 21:3). This law did not apply to non-Hebrew slaves (see point 4 under “Types of slavery permitted by the Bible” above), though, as mentioned, any slave showing a desire for freedom was to be safely harbored if they ran away. In violation of this law, many Christian slaves in America were not given the option of freedom after six years (and many escaped slaves were forcefully returned). To comply with the spirit and law of the Old and New Testament, non-Christian slaves should have been introduced by their master to Christianity, equipped to live in liberty, and then given the opportunity to choose to live free. Christianity would have prepared them to live in freedom.
  2. Freed slaves were released with liberal pay. When these slaves were set free they were not to be sent away empty handed. They were to be furnished liberally from the flocks, threshing floor, and wine vat (Deut. 15:12-15).
  3. Slaves were to be responsible. We have mentioned that some people prefer the security of enslavement to the uncertainty of living free. People who live free have certain responsibilities they must maintain. They cannot have the fruit of freedom without the responsibilities of freedom. It is within this context that the following law can be understood: “If he [a Hebrew slave] comes alone, he shall go out alone; if he is the husband of a wife, then his wife shall go out with him. If his master gives him a wife, and she bears him sons or daughters, the wife and her children shall belong to her master, and he shall go out alone.” (Ex. 21:3-4)
  4. Rushdoony comments: “The bondservant, however, could not have the best of both worlds, the world of freedom and the world of servitude. A wife meant responsibility: to marry, a man had to have a dowry as evidence of his ability to head a household. A man could not gain the benefit of freedom, a wife, and at the same time gain the benefit of security under a master.” 4 Marrying as a slave required no responsibility of provision or need of a dowry. He gained the benefits of marriage without the responsibilities associated with it. Rushdoony continues: “If he married while a bondservant, or a slave, he knew that in so doing he was abandoning either freedom or his family. He either remained permanently a slave with his family and had his ear pierced as a sign of subordination (like a woman), or he left his family. If he walked out and left his family, he could, if he earned enough, redeem his family from bondage. The law here is humane and also unsentimental. It recognizes that some people are by nature slaves and will always be so. It both requires that they be dealt with in a godly manner and also that the slave recognize his position and accept it with grace. Socialism, on the contrary, tries to give the slave all the advantages of his security together with the benefits of freedom, and, in the process, destroys both the free and the enslaved.” 5
  5. Runaway slaves were to go free. As mentioned earlier, Deuteronomy 23:15-16 says that a runaway slave was to go free. He was to be welcomed to live in any of the towns of Israel he chose. The Israelites were not to mistreat him. Rushdoony says that, “Since the slave was, except where debt and theft were concerned, a slave by nature and by choice, a fugitive slave went free, and the return of such fugitives was forbidden (Deut. 23:15,16).” This aspect of Biblical law was violated by American slavery and the United States Constitution (see Art. IV, Sec. 2, Par. 3). “Christians cannot become slaves voluntarily; they are not to become the slaves of men (1 Cor. 7:23), nor ‘entangled again with the yoke of bondage’ (Gal. 5:1).”6 Those who became Christians while slaves were to become free if they could (1 Cor. 7:21). If they could not, they were to exemplify the character of Christ (Eph. 6:5-9; Col. 4:1; 1 Tim. 6:1-2). Eventually, Christianity would overthrow slavery, not so much by denouncing it, but by promoting the equality of man under God, and teaching the principles of liberty and the brotherhood of mankind under Christ. It would be the responsibility of Christians, especially those who found themselves in a place of owning slaves (for example, many Christian Americans in the past inherited slaves) to teach such ideas, and then act accordingly. Many Christians in early America did just this. Phyllis Wheatley was introduced to Christianity by her masters, educated, and given her freedom. Many American Christians, in both North and South, at the time of the Civil War did much to educate slaves Biblically. Stonewall Jackson, who never owned slaves himself and was against slavery, conducted many classes in his church to educate slaves.
  6. Excessive punishment of slaves was forbidden. A slave could be punished by striking with a rod (Ex. 21:20-21), but if the punishment was excessive, the slave was to be given his freedom (Ex. 21:26-27; Lev. 24:17). This included knocking out the tooth or damaging the eye. This applied to indentured servants as well as other slaves. Since the owner would lose his investment in such a situation, there was a financial incentive for just treatment. Just treatment of slaves was required of the masters. Paul writes: “Masters, grant to your slaves justice and fairness, knowing that you too have a Master in heaven.” (Col. 4:1)
  7. Slaves could be brought into the covenant. Slaves could be circumcised (brought into the covenant) and then eat of the Passover meal (Ex. 12:43-44; Gen. 17:12-13). Slaves could also eat of holy things (Lev. 22:10-11).
  8. Slaves had some rights and position in the home and could share in the inheritance. (See Gen. 24:2 and Prov. 17:2.)
  9. Slaves were to rest on the Sabbath like everyone else. The Fourth Commandment applied to all (Ex. 20:8-11).

Female slave laws were for their protection. Exodus 21:4-11 gives some laws about female slaves, which served for their protection. These Hebrew female slaves were without family to assist them in their need or to help to provide security for them. These slaves laws were a way to protect them from abuse not faced by males and to keep them from being turned out into the street, where much harm could come to them.

Examination of the Biblical view of slavery enables us to more effectively address the assertion that slavery was America’s original sin. In light of the Scriptures we cannot say that slavery, in a broad and general sense, is sin. But this brief look at the Biblical slave laws does reveal how fallen man’s example of slavery has violated God’s laws, and America’s form of slavery in particular violated various aspects of the law, as well as the general spirit of liberty instituted by Christ.

The Christian foundation and environment of America caused most people to seek to view life from a Biblical perspective. Concerning slavery, they would ask “Is it Biblical?” While most of the Founders saw it was God’s desire to eliminate the institution, others attempted to justify it. At the time of the Civil War some people justified Southern slavery by appealing to the Bible. However, through this brief review of the Old Testament slave laws we have seen that American slavery violated some of these laws, not to mention the spirit of liberty instituted by the coming of Christ.

Slavery and the New Testament When Paul wrote how slaves and masters were to act (Eph. 6:5-9; Col. 4:1; 1 Tim. 6:1-2; Col. 3:22-25; Titus 2:9-10), he was not endorsing involuntary slavery or the Roman slave system. He was addressing the attitudes, actions, and matters of the heart of those Christians who found themselves in slavery or as slave owners. This encompassed many people, for half the population of Rome and a large proportion of the Roman Empire were slaves. Many people were converted to Christianity while slaves or slave owners, and many Christians were enslaved.

It is in this context that we can better understand the example of Paul, Onesimus, and Philemon. Onesimus, a slave of Philemon who apparently stole some money from his master and ran away, encountered Paul in Rome and became a Christian. Paul sent him back to his master carrying the letter to Philemon. Author of the famous Bible Handbook, Henry Halley writes:

The Bible gives no hint as to how the master received his returning slave. But there is a tradition that says his master did receive him, and took Paul’s veiled hint and gave the slave his liberty. That is the way the Gospel works. Christ in the heart of the slave made the slave recognize the social usages of his day, and go back to his master determined to be a good slave and live out his natural life as a slave. Christ in the heart of the master made the master recognize the slave as a Christian brother and give him his liberty. There is a tradition that Onesimus afterward became a bishop of Berea. 7

The Mosaic slave laws and the writings of Paul benefited and protected the slaves as best as possible in their situation. God’s desire for any who are enslaved is freedom (Luke 4:18; Gal. 5:1). Those who are set free in Christ then need to be prepared to walk in liberty. Pagan nations had a much different outlook toward slaves, believing slaves had no rights or privileges. Because of the restrictions and humane aspect of the Mosaic laws on slavery, it never existed on a large scale in Israel, and did not exhibit the cruelties seen in Egypt, Greece, Rome, Assyria and other nations.

Sinful man will always live in some form of bondage and slavery, as a slave to the state, to a lord or noble, or to other men. As a step in man’s freedom, God’s laws of slavery provided the best situation for those who find themselves in bondage. God’s ultimate desire is that all walk in the liberty of the gospel both internally and externally.

As the gospel principles of liberty have spread throughout history in all the nations, man has put aside the institution of overt slavery. However, since sinful man tends to live in bondage, different forms of slavery have replaced the more obvious system of past centuries. The state has assumed the role of master for many, providing aid and assistance, and with it more and more control, to those unable to provide for themselves. The only solution to slavery is the liberty of the gospel.

Brief History of Slavery Slavery has existed throughout the world since after the fall of man. Egypt and other ancient empires enslaved multitudes. Greece and Rome had many slaves, taken from nations they conquered. Slavery was a part of almost every culture. While some Christian nations had taken steps to end slavery, it was still an established part of most of the world when America began to be settled.

Many of the early settlers came to America as indentured servants, indebted to others for a brief period of time to pay for their passage. England at this time recognized the forced labor of the apprentice, the hired servant, convicts, and indentured servants. Some of these laborers were subject to whippings and other forms of punishment. These forms of servitude were limited in duration and “transmitted no claim to the servant’s children.” 8

According to Hugh Thomas in The Slave Trade, about 11,328,000 Africans were transported to the new world between 1440 and 1870. Of these about 4 million went to Brazil, 2.5 million to Spanish colonies, 2 million to the British West Indies, 1.6 million to the French West Indies, and 500,000 went to what became the United States of America. 9

A Dutch ship, seeking to unload its human cargo, brought the first slaves to Virginia in 1619. Over the next century a small number of slaves were brought to America. In 1700 there were not more than 20 to 30 thousand black slaves in all the colonies. There were some people who spoke against slavery (e.g. the Quakers and Mennonites) 10 and some political efforts to check slavery (as in laws of Massachusetts and Rhode Island), but these had little large scale effect. The colonies’ laws recognized and protected slave property. Efforts were made to restrict the slave trade in several colonies, but the British government overruled such efforts and the trade went on down to the Revolution.

When independence was declared from England, the legal status of slavery was firmly established in the colonies, though there were plenty of voices speaking out against it, and with independence those voices would increase.

America’s Founders and Slavery

Some people suggest today that all early Americans must have been despicable to allow such an evil as slavery. They say early America should be judged as evil and sinful, and anything they have to say should be discounted. But if we were to judge modern America by this same standard, it would be far more wicked – we are not merely enslaving people, but we are murdering tens of millions of innocent unborn children through abortion. These people claim that they would not have allowed slavery if they were alive then. They would speak out and take any measures necessary. But where is their outcry and action to end slavery in the Sudan today? (And slavery there is much worse than that in early America.)

Some say we should not listen to the Founders of America because they owned slaves, or at least allowed slavery to exist in the society. However, if we were to cut ourselves off from the history of nations that had slavery in the past we would have to have nothing to do with any people because almost every society has had slavery, including African Americans, for many African societies sold slaves to the Europeans; and up to ten percent of blacks in America owned slaves.

The Founders Believed Slavery Was Fundamentally Wrong

The overwhelming majority of early Americans and most of America’s leaders did not own slaves. Some did own slaves, which were often inherited (like George Washington at age eleven), but many of these people set them free after independence. Most Founders believed that slavery was wrong and that it should be abolished. William Livingston, signer of the Constitution and Governor of New Jersey, wrote to an anti-slavery society in New York (John Jay, the first Chief Justice of the U.S. Supreme Court and President of the Continental Congress, was President of this society):

I would most ardently wish to become a member of it [the anti-slavery society] and . . . I can safely promise them that neither my tongue, nor my pen, nor purse shall be wanting to promote the abolition of what to me appears so inconsistent with humanity and Christianity. . . . May the great and the equal Father of the human race, who has expressly declared His abhorrence of oppression, and that He is no respecter of persons, succeed a design so laudably calculated to undo the heavy burdens, to let the oppressed go free, and to break every yoke. 11

John Quincy Adams, who worked tirelessly for years to end slavery, spoke of the anti-slavery views of the southern Founders, including Jefferson who owned slaves:

The inconsistency of the institution of domestic slavery with the principles of the Declaration of Independence was seen and lamented by all the southern patriots of the Revolution; by no one with deeper and more unalterable conviction than by the author of the Declaration himself. No charge of insincerity or hypocrisy can be fairly laid to their charge. Never from their lips was heard one syllable of attempt to justify the institution of slavery. They universally considered it as a reproach fastened upon them by the unnatural step-mother country and they saw that before the principles of the Declaration of Independence, slavery, in common with every other mode of oppression, was destined sooner or later to be banished from the earth. Such was the undoubting conviction of Jefferson to his dying day. In the Memoir of His Life, written at the age of seventy-seven, he gave to his countrymen the solemn and emphatic warning that the day was not distant when they must hear and adopt the general emancipation of their slaves. “Nothing is more certainly written,” said he, “in the book of fate, than that these people are to be free.” 12

The Founding Fathers believed that blacks had the same God-given inalienable rights as any other peoples. James Otis of Massachusetts said in 1764 that “The colonists are by the law of nature freeborn, as indeed all men are, white or black.” 13

There had always been free blacks in America who owned property, voted, and had the same rights as other citizens. 14 Most of the men who gave us the Declaration and the Constitution wanted to see slavery abolished. For example, George Washington wrote in a letter to Robert Morris:

I can only say that there is not a man living who wishes more sincerely than I do to see a plan adopted for the abolition of it [slavery]. 15

Charles Carroll, Signer of Declaration from Maryland, wrote:

Why keep alive the question of slavery? It is admitted by all to be a great evil. 16

Benjamin Rush, Signer from Pennsylvania, stated:

Domestic slavery is repugnant to the principles of Christianity. . . . It is rebellion against the authority of a common Father. It is a practical denial of the extent and efficacy of the death of a common Savior. It is an usurpation of the prerogative of the great Sovereign of the universe who has solemnly claimed an exclusive property in the souls of men. 17

Father of American education, and contributor to the ideas in the Constitution, Noah Webster wrote:

Justice and humanity require it [the end of slavery] – Christianity commands it. Let every benevolent . . . pray for the glorious period when the last slave who fights for freedom shall be restored to the possession of that inestimable right. 18

Quotes from John Adams reveal his strong anti-slavery views:

Every measure of prudence, therefore, ought to be assumed for the eventual total extirpation of slavery from the United States. . . . I have, through my whole life, held the practice of slavery in . . . abhorrence. 19 My opinion against it [slavery] has always been known. . . . [N]ever in my life did I own a slave. 20

When Benjamin Franklin served as President of the Pennsylvania Society of Promoting the Abolition of Slavery he declared:

“Slavery is . . . an atrocious debasement of human nature.” 21

Thomas Jefferson’s original draft of the Declaration included a strong denunciation of slavery, declaring the king’s perpetuation of the slave trade and his vetoing of colonial anti-slavery measures as one reason the colonists were declaring their independence:

He [King George III] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemisphere. . . . Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce. 22

Prior to independence, anti-slavery measures by the colonists were thwarted by the British government. Franklin wrote in 1773:

A disposition to abolish slavery prevails in North America, that many of Pennsylvanians have set their slaves at liberty, and that even the Virginia Assembly have petitioned the King for permission to make a law for preventing the importation of more into that colony. This request, however, will probably not be granted as their former laws of that kind have always been repealed. 23

The Founders took action against slavery

The founders did not just believe slavery was an evil that needed to be abolished, and they did not just speak against it, but they acted on their beliefs. During the Revolutionary War black slaves who fought won their freedom in every state except South Carolina and Georgia. 24

Many of the founders started and served in anti-slavery societies. Franklin and Rush founded the first such society in America in 1774. John Jay was president of a similar society in New York. Other Founding Fathers serving in anti-slavery societies included: William Livingston (Constitution signer), James Madison, Richard Bassett, James Monroe, Bushrod Washington, Charles Carroll, William Few, John Marshall, Richard Stockton, Zephaniah Swift, and many more. 25

As the Founders worked to free themselves from enslavement to Britain, based upon laws of God and nature, they also spoke against slavery and took steps to stop it. Abolition grew as principled resistance to the tyranny of England grew, since both were based upon the same ideas. This worked itself out on a personal as well as policy level, as seen in the following incident in the life of William Whipple, signer of the Declaration of Independence from New Hampshire. Dwight writes:

When General Whipple set out to join the army, he took with him for his waiting servant, a colored man named Prince, one whom he had imported from Africa many years before. He was a slave whom his master highly valued. As he advanced on his journey, he said to Prince, “If we should be called into an engagement with the enemy, I expect you will behave like a man of courage, and fight like a brave soldier for your country.” Prince feelingly replied, “Sir, I have no inducement to fight, I have no country while I am a slave. If I had my freedom, I would endeavor to defend it to the last drop of my blood.” This reply of Prince produced the effect on his master’s heart which Prince desired. The general declared him free on the spot. 26

The Founders opposed slavery based upon the principle of the equality of all men. Throughout history many slaves have revolted but it was believed (even by those enslaved) that some people had the right to enslave others. The American slave protests were the first in history based on principles of God-endowed liberty for all. It was not the secularists who spoke out against slavery but the ministers and Christian statesmen.

Before independence, some states had tried to restrict slavery in different ways (e.g. Virginia had voted to end the slave trade in 1773), but the English government had not allowed it. Following independence and victory in the war, the rule of the mother country was removed, leaving freedom for each state to deal with the slavery problem. Within about 20 years of the 1783 Treaty of Peace with Britain, the northern states abolished slavery: Pennsylvania and Massachusetts in 1780; Connecticut and Rhode Island in 1784; New Hampshire in 1792; Vermont in 1793; New York in 1799; and New Jersey in 1804.

The Northwest Ordinance (1787, 1789), which governed the admission of new states into the union from the then northwest territories, forbid slavery. Thus, Ohio, Indiana, Illinois, Michigan, Wisconsin, and Iowa all prohibited slavery. This first federal act dealing with slavery was authored by Rufus King (signer of the Constitution) and signed into law by President George Washington.

Although no Southern state abolished slavery, there was much anti-slavery sentiment. Many anti-slavery societies were started, especially in the upper South. Many Southern states considered proposals abolishing slavery, for example, the Virginia legislature in 1778 and 1796. When none passed, many, like Washington, set their slaves free, making provision for their well being. Following independence, “Virginia changed her laws to make it easier for individuals to emancipate slaves,” 27 though over time the laws became more restrictive in Virginia.

While most states were moving toward freedom for slaves, the deep South (Georgia, South Carolina, North Carolina) was largely pro-slavery. Yet, even so, the Southern courts before around 1840 generally took the position that slavery violated the natural rights of blacks. For example, the Mississippi Supreme Court ruled in 1818:

Slavery is condemned by reason and the laws of nature. It exists and can only exist, through municipal regulations, and in matters of doubt,…courts must lean in favorem vitae et libertatis [in favor of life and liberty]. 28

The same court ruled in 1820 that the slave “is still a human being, and possesses all those rights, of which he is not deprived by the positive provisions of the law.” 29

Free blacks were citizens and voted in most Northern states and Virginia, North Carolina, and South Carolina. In Baltimore prior to 1800, more blacks voted than whites; but in 1801 and 1809, Maryland began to restrict black voting and in 1835 North Carolina prohibited it. Other states made similar restrictions, but a number of Northern states allowed blacks to vote and hold office. In Massachusetts this right was given nearly a decade before the American Revolution and was never taken away, either before or after the Civil War.

Slavery and the Constitution

The issue of slavery was considered at the Constitutional Convention. Though most delegates were opposed to slavery, they compromised on the issue when the representatives from Georgia and South Carolina threatened to walk out. The delegates realized slavery would continue in these states with or without the union. They saw a strong union of all the colonies was the best means of securing their liberty (which was by no means guaranteed to survive). They did not agree to abolish slavery as some wanted to do, but they did take the forward step of giving the Congress the power to end the slave trade after 20 years. 30No nation in Europe or elsewhere had agreed to such political action.

Even so, many warned of the dangers of allowing this evil to continue. George Mason of Virginia told the delegates:

Every master of slaves is born a petty tyrant. They bring the judgement of heaven upon a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities. 31

Jefferson had written some time before this:

The whole commerce between master and slave is a perpetual exercise of the most boisterous passions, the most unremitting despotism on the one part, and degrading submissions on the other. . . . And with what execration should the statesman be loaded, who permitting one half the citizens thus to trample on the rights of the other. . . . And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep forever. 32

Constitutional Convention Delegate, Luther Martin, stated:

[I]t ought to be considered that national crimes can only be and frequently are punished in this world by national punishments; and that the continuance of the slave-trade, and thus giving it a national sanction and encouragement, ought to be considered as justly exposing us to the displeasure and vengeance of Him who is equally Lord of all and who views with equal eye the poor African slave and his American master. 33

Some today misinterpret the Constitutional provision of counting the slaves as three-fifths for purposes of representation as pro-slavery or black dehumanization. But it was a political compromise between the north and the south.. The three-fifths provision applied only to slaves and not free blacks, who voted and had the same rights as whites (and in some southern states this meant being able to own slaves). While the Southern states wanted to count the slaves in their population to determine the number of congressmen from their states, slavery opponents pushed to keep the Southern states from having more representatives, and hence more power in congress.

The Constitution did provide that runaway slaves would be returned to their owners (We saw previously that returning runaway slaves is contrary to Biblical slave laws, unless these slaves were making restitution for a crime.) but the words slave and slavery were carefully avoided. “Many of the framers did not want to blemish the Constitution with that shameful term.” The initial language of this clause was “legally held to service or labor,” but this was deleted when it was objected that legally seemed to favor “the idea that slavery was legal in a moral view.” 34

While the Constitution did provide some protection for slavery, this document is not pro-slavery. It embraced the situation of all 13 states at that time, the Founders leaving most of the power to deal with this social evil in the hands of each state. Most saw that the principles of liberty contained in the Declaration could not support slavery and would eventually overthrow it.

As delegate to the Constitutional Convention, Luther Martin put it:

Slavery is inconsistent with the genius of republicanism, and has a tendency to destroy those principles on which it is supported, as it lessens the sense of the equal rights of mankind, and habituates us to tyranny and oppression.35

We have seen that after independence the American Founders actually took steps to end slavery. Some could have done more, but as a whole they probably did more than any group of national leaders up until that time in history to deal with the evil of slavery. They took steps toward liberty for the enslaved and believed that the gradual march of liberty would continue, ultimately resulting in the complete death of slavery. The ideas they infused in the foundational civil documents upon which America was founded – such as Creator endowed rights and the equality of all men before the law – eventually prevailed and slavery was abolished. But not without great difficulty because the generations that followed failed to carry out the gradual abolition of slavery in America.

The View of Slavery Changes

Most of America’s Founders thought slavery would gradually be abolished. Roger Sherman said that “the abolition of slavery seemed to be going on in the U.S. and that the good sense of the several states would probably by degrees complete it.” 36 But it was not. Why?

  1. Succeeding generations did not have the character and worldview necessary to complete the task started by the Founders. Eternal vigilance is the price of liberty. Each generation must take up the cause of liberty, which is the cause of God, and fight the battle. While the majority view of the Founders was that American slavery was a social evil that needed to be abolished, many in later generations attempted to justify slavery, often appealing to the Scriptures (though, I believe, in error at many points, as mentioned earlier).
  2. American slavery was not in alignment with Biblical slave laws and God’s desire for liberty for all mankind. This inconsistency produced an institution that proved too difficult to gradually and peacefully abolish. Some Founders (like Henry and Jefferson) could not see how a peaceful resolution was possible and gave the “necessary evil” argument. Henry said: “As much as I deplore slavery, I see that prudence forbids its abolition.” 37 Jefferson was opposed to slavery yet he thought that once the slaves gained freedom, a peaceful coexistence of whites and blacks would be very difficult to maintain. Jefferson predicted that if the slaves were freed and lived in America, “Deep-rooted prejudices entertained by the whites’ ten thousand recollections, by the blacks, of the injuries they have sustained; new provocations; the real distinctions which nature has made and many other circumstances, will divide us into parties, and produce convulsions which will probably never end but in the extermination of the one or the other race.” 38 This is why many worked (especially many from Virginia, like James Monroe and James Madison) to set up a country in Africa (Liberia) where the freed slaves could live. Some at this time did not see integration as possible, and apart from the power of God, history has shown it is not possible, as there have been and are many ethnic wars. The church must lead the way in race relations, showing all believers are brothers in Christ, and all men have a common Creator.
  3. The invention of the cotton gin, which revived the economic benefit of slavery, also contributed to a shift in the thinking of many Americans. At the time of independence and the constitutional period most people viewed slavery as an evil that should and would be abolished. But by the 1830s, many people, including some Southern ministers, began to justify it. Some, like Calhoun, even said it was a positive thing. Others justified it by promoting the inequality of the races. Stephen Douglas argued that the Declaration only applied to whites, but Lincoln rejected that argument and sought to bring the nation back to the principles of the Declaration. In the end these principles prevailed.

The Civil War

It is not the intent of this article to examine the War between the States. 39 The causes behind the war were many. Certainly slavery was a part of the cause (and for a small number of wealthy and influential Southern slave owners, it was probably primary), but slavery was not the central issue for all people in the South. Most Southerners did not own slaves and most of those who did had only a small number. 40

States rights and perceived unconstitutional taxes were also motivations for secession. There were many abolitionists in the North, both Christian and non-Christian, who pushed for the war, seeing it as a means to end slavery. Though slavery was not initially the reason Lincoln sent troops into the South, he did come to believe that God wanted him to emancipate the slaves.

In all the complexities and tragedy of the war, God was at work fulfilling His providential purposes. Due to the sin of man, to his inability to deal with slavery in a Christian manner, and to other factors, a war erupted. Both good and bad in the root causes, produced good and bad fruit in the outcome of the war. 41

Though America’s Founders failed to accomplish all of their desires and wishes in dealing with the issue of slavery, the principles of equality and God-given rights they established in the American constitutional republic set into motion events leading to the end of slavery in the United States and throughout the world. That America was founded upon such Biblical principles is what made her a Christian nation, not that there was no sin in the Founders. It is because of the Christian foundations that America has become the most free, just, and prosperous nation in history. The Godly principles infused in her laws, institutions, and families have had immense impact in overthrowing tyranny, oppression, and slavery throughout the world.

Stephen McDowell, Author

Stephen McDowell is president of the Providence Foundation, a Christian educational organization whose mission is to spread liberty, justice, and prosperity among the nations by instructing individuals in a Biblical worldview.

Endnotes

1 R.J. Rushdoony, Institutes of Biblical Law, vol.1, p. 137.
2 Rushdoony, p. 286.
3 Rushdoony, pp. 485-486.
4 Rushdoony, p. 251.
5 Rushdoony, p. 251.
6 Rushdoony, p. 137.
7 Henry H. Halley, Halley’s Bible Handbook (Grand Rapids: Zondervan, 1965), p. 645.
8 Albert Bushnell Hart, The American Nation: A History (New York: Harper & Brothers, 1906), vol. 16, Slavery and Abolition, 1831-1841, p. 50.
9 “History of slavery is wide-ranging saga”, book review by Gregory Kane of The Slave Trade by Hugh Thomas (Simon and Schuster), in The Daily Progress, Charlottesville, Va., December 7, 1997.
10 The earliest known official protest against slavery in America was the Resolutions of Germantown, Pennsylvania Mennonites, February 18, 1688. See Documents of American History, Henry Steele Commager, editor (New York: F.S. Crofts & Co., 1944), 37-38.
11 William Livingston, The Papers of William Livingston, Carl E. Prince, editor (New Brunswick: Rutgers University Press, 1988), Vol. V, p. 255, to the New York Manumission Society on June 26, 1786. In “The Founding Fathers and Slavery” by David Barton, unpublished paper, p. 5.
12 John Quincy Adams, An Oration Delivered Before the Inhabitants of the Town of Newburyport, at Their Request, on the Sixty-First Anniversary of the Declaration of Independence, July 4th, 1837 (Newburyport: Charles Whipple, 1837), p. 50.
13 Rights of the Colonies, in Bernard Bailyn, ed., Pamphlets of the American Revolution (Cambridge: Harvard University Press, 1965), p. 439. In “Was the American Founding Unjust? The Case of Slavery,” by Thomas G. West, Principles, a quarterly review of The Claremont Institute, Spring/Summer 1992, p. 1.
14 Hart, p. 53.
15 Letter to Robert Morris, April 12, 1786, in George Washington: A Collection, ed. W.B. Allen (Indianapolis: Liberty Fund, 1988), p. 319.
16 Kate Mason Rowland, Life and Correspondence of Charles Carroll of Carrollton (New York & London: G.P. Putnam’s Sons, 1898), Vol. II, p. 321, to Robert Goodloe Harper, April 23, 1820. In Barton, p. 3.
17 Benjamin Rush, Minutes of the Proceedings of a Convention of Delegates from the Abolition Societies Established in Different Parts of the United States Assembled at Philadelphia (Philadelphia: Zachariah Poulson, 1794), p. 24.. In Barton, p. 4.
18 Noah Webster, Effect of Slavery on Morals and Industry (Hartford: Hudson and Goodwin, 1793), p. 48. In Barton, p. 4.
19 Adams to Robert J. Evans, June 8, 1819, in Adrienne Koch and William Peden, eds., Selected Writings of John and John Quincy Adams (New York: Knopf, 1946), p. 209. In West, p. 2.
20 John Adams, The Works of John Adams, Second President of the United States, Charles Francis Adams, ed. (Boston: Little, Brown, and Co., 1854), Vol. IX, pp. 92-93, to George Churchman and Jacob Lindley on January 24, 1801. In Barton, p. 3.
21 “An Address to the Public from the Pennsylvania Society for Promoting the Abolition of Slavery” (1789), in Franklin, Writings (New York: Library of America, 1987), p. 1154. In West, p. 2.
22 The Life and Selected Writings of Thomas Jefferson, Adrienne Koch and William Peden, eds. (New York: Random House, 1944), p. 25.
23 Benjamin Franklin, The Works of Benjamin Franklin, Jared Sparks, ed. (Boston: Tappan, Whittemore, and Mason, 1839), Vol. VIII, p. 42, to the Rev. Dean Woodward on April 10, 1773.
24 Benjamin Quarles, The Negro and the American Revolution (Chapel Hill: University of North Carolina Press, 1961), chaps. 4-6. In West, p. 2.
25 Barton, p. 5.
26 N. Dwight, The Lives of the Signers of the Declaration of Independence (New York: A.S. Barnes & Burr, 1860), p. 11.
27 West, p. 4.
28 Harry v. Decker & Hopkins (1818), in West, p. 4.
29 Mississippi v. Jones (1820), in West, p. 4.
30 Congress banned the exportation of slaves from any state in 1794, and in 1808 banned the importation of slaves. The individual states had passed similar legislation prior to 1808 as well. However, several Southern states continued to actively import and export slaves after their state ban went into effect.
31 Mark Beliles and Stephen McDowell, America’s Providential History (Charlottesville, Va.: Providence Foundation, 1991), p. 227.
32 Thomas Jefferson, Notes on the State of Virginia (Trenton: Wilson & Blackwell, 1803), Query XVIII, pp. 221-222.
33 Luther Martin, The Genuine Information Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General Convention Lately Held at Philadelphia (Philadelphia: Eleazor Oswald, 1788), p. 57. In Barton, p. 4.
34 West, p. 5. See Max Farrand, ed. The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937), vol. 2, p. 417 (remarks on August 25), and pp. 601 (report of Committee of Style), 628 (Sept. 15). See also Madison’s Notes of Debates in the Federal Convention of 1787, August 25.
35 Luther Martin, Genuine Information (1788), in Herbert J. Storing, ed., The Complete Anti-Federalist (Chicago: University of Chicago Press, 1981), vol. 2, p. 62. In West, p. 6..
36 Remarks at the Constitutional Convention, August 22, Farrand, vol. 2, pp.. 369-72. In West, pp. 7-8.
37 Henry to Robert Pleasants, Jan. 18, 1773, in Philip B. Kurland and Ralph Lerner, eds. The Founders’ Constitution (Chicago: University of Chicago Press, 1987), vol. 1, p. 517; Elliot, Debates, vol. 3, p. 590. In West, p. 6. Henry also pointed out that convenience contributed to the continuation of slavery. He said: “Is it not surprising that at a time when the rights of humanity are defined with precision in a country above all others fond of liberty ‹ that, in such an age, and in such a country, we find men, professing a religion the most humane and gentle, adopting a principle as repugnant to humanity as it is inconsistent with the Bible and destructive to liberty? Believe me, I honor the Quakers for their noble efforts to abolish slavery. Every thinking, honest man regrets it in speculation, yet how few in practice from conscientious motives. Would any man believe that I am master of slaves of my own purchase? I am drawn along by the general inconvenience of living without them. I will not, I cannot justify it. For however culpable my conduct, I will so far pay my devoir to virtue as to won the excellence and rectitude of her precepts, and to lament my own non-conformity to them.” In John Hancock, Essays on the Elective Franchise; or, Who Has the Right to Vote (Philadelphia: Merrihew & Son, 1865), pp. 31-32.
38 Jefferson’s Notes, Query XIV, p. 188.
39 See America’s Providential History, chapter 16 for more on a providential view of the war.
40 See Hart, pp. 67 ff. Hart records that in 1860 only about 5% of the white population made a substantial profit of slave-keeping (a direct profit; many others benefited from the commerce associated with slavery). About 2% of this number (0.1% of the total white population) were large plantation owners who exerted much political influence. Some people have pointed out that only 3% of Southerners owned slaves. While this is technically true in some measure, it is misleading. The 3% reflects ownership by the head of the household and does not include all its inhabitants. Taking this into account, at the time of the Civil War about 19% of the population lived in households with slaves; and this was 19% of total population which included a large number of slaves. When you consider that in 6 Southern states (Alabama, Georgia, Florida, Louisiana, Mississippi, South Carolina), there were almost as many or more slaves than whites, this 19% figure actually represents 35%-45% of the white population (in those states) having a direct relation to a home that had slaves.
41 See America’s Providential History, chapter 16 for some positive and negative effects of the war.

Churches And Elections – What Is The Law?

Liberty Legal Institute

Kelly
J Shackelford
Chief Counsel
903 East 18th St., Suite 230
Plano, Texas 75074
972.423.8889 Fax: 972.423.8899
[email protected]

CHURCHES AND ELECTIONS-
WHAT IS THE LAW?

Many churches and pastors feel called by scriptureto “equip the saints” to represent Christ in all areas of our society, including the voting booth. Pastors should thus be supported in their goal of helping their members be good stewards in representing Christ in their civic duties. This is especially important in light of the fact that only 1 out of every 4 Christians in America is voting.

Unfortunately, many churches and pastors have been given false information in an attempt to scare them from acting as a pastor and impacting their culture for Christ. The law is actually very supportive of pastors and churches in fulfilling their mission to equip their saints. Even as a non-profit corporation, there is very little a church may not do.

CHURCHES MAY NOT:

1. Endorse or oppose a particular candidate.

2. Contribute to or raise $ for a candidate (including free use of church list)

CHURCHES MAY (among other activities):

1.  Register their members as voters

2. Pass out Voter’s Guides

3. Invite all candidates in a race to speak (O.K. if only one shows up)

4. Speak Directly about specific issues and legislation (abortion, marriage, etc.)

Individually, a pastor can do whatever he feels led to do-endorse, support a member’s campaign, etc. There are no limitations. The few limitations above that exist are only for the Church entity and only if the Church is a non-profit corporation.

Pastors should not be intimidated from acting as pastors, calling their people to vote and giving them info so they can best represent Christ in the voting booth.

Liberty Legal Institute (now First Liberty) is the state legal group in Texas associated with Focus on the Family. It protects churches and religious freedoms free of charge. At the time of this article, H.R. 235, the “Houses of Worship Free Speech Restoration Act,” is currently pending in Congress. This bill would amend the IRS Code of 1986 to restore the ability of churches and other houses of worship to freely participate in political campaigns.

James Madison and Religion in Public

In recent days, Michael Newdow – infamous for his successful initiation of the ruling striking down “under God” in the Pledge of Allegiance – has broadened his efforts and has filed suit against the use of chaplains in the U. S. House and Senate. In his public appearances defending this newest pursuit, Newdow cites James Madison’s quotes from his “Detached Memoranda” as his authority in opposing chaplains. Did Madison actually oppose chaplains in Congress? Yes, and no.

Madison’s religious views and activities are numerous, as are his writings on religion. They are at times self-contradictory, and his statements about religion are such that opposing positions can each invoke Madison as its authority. An understanding of Madison’s religious views is complicated by the fact that his early actions were at direct variance with his later opinions. Consider six examples of his early actions.

First, Madison was publicly outspoken about his personal Christian beliefs and convictions. For example, he encouraged his friend, William Bradford (who served as Attorney General under President Washington), to make sure of his own spiritual salvation:

[A] watchful eye must be kept on ourselves lest, while we are building ideal monuments of renown and bliss here, we neglect to have our names enrolled in the Annals of Heaven.1

Madison even desired that all public officials – including Bradford – would declare openly and publicly their Christian beliefs and testimony:

I have sometimes thought there could not be a stronger testimony in favor of religion or against temporal enjoyments, even the most rational and manly, than for men who occupy the most honorable and gainful departments and [who] are rising in reputation and wealth, publicly to declare their unsatisfactoriness by becoming fervent advocates in the cause of Christ; and I wish you may give in your evidence in this way.2

Second, Madison was a member of the committee that authored the 1776 Virginia Bill of Rights and approved of its clause declaring that:

It is the mutual duty of all to practice Christian forbearance, love, and charity toward each other3

Third, Madison’s proposed wording for the First Amendment demonstrates that he opposed only the establishment of a federal denomination, not public religious activities. His proposal declared:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established. 4

(Madison reemphasized that position throughout the debates. 5 Fourth, in 1789, Madison served on the Congressional committee which authorized, approved, and selected paid Congressional chaplains. 6

Fifth, in 1812, President Madison signed a federal bill which economically aided a Bible Society in its goal of the mass distribution of the Bible. 7

Sixth, throughout his Presidency (1809-1816), Madison endorsed public and official religious expressions by issuing several proclamations for national days of prayer, fasting, and thanksgiving.8

These were the early actions of Madison. In later life Madison retreated from many of these positions, even declaring in his “Detached Memoranda” his belief that having paid chaplains and issuing presidential prayer proclamations were unconstitutional. Recent Courts have made a point of citing Madison’s “Detached Memoranda” in arguing against public religious expressions. 9

Significantly, the “Detached Memoranda” was “discovered” in 1946 in the papers of Madison biographer William Cabell Rives and was first published more than a century after Madison’s death by Elizabeth Fleet in the October 1946 William & Mary Quarterly. In that work, Madison expressed his opposition to many of his own earlier beliefs and practices and set forth a new set of beliefs formerly unknown even to his closest friends. Since Madison never made public or shared with his peers his sentiments found in the “Detached Memoranda,” and since his own public actions were at direct variance with this later writing, it is difficult to argue that it reflects the Founders’ intent toward religion.

There were fifty-five individuals directly involved in framing the Constitution at the Constitutional Convention, and an additional ninety in the first federal Congress that framed the First Amendment and Bill of Rights. Allowing for the overlap of nineteen individuals who were both at the Constitutional Convention and a part of the first Congress, 10 there were one hundred and twenty-six individual participants in the framing of the Constitution and the Bill of Rights. The records of the Constitutional Convention demonstrate that James Madison was often out of step with these Founders. The other delegates rejected Madison’s Virginia plan in preference for Roger Sherman’s Connecticut plan and voted down 40 of Madison’s 71 proposals (60 percent). 11 Nevertheless, today Madison is cited as if he is the only authority among the Founding Fathers and the only expert on the First Amendment and the Bill of Rights.

Was Madison responsible for the First Amendment and the Bill of Rights? Definitely not. In fact, during the Constitutional Convention, it was Virginian George Mason that advocated that a Bill of Rights be added to the Constitution, 12 but the other Virginians at the Convention – including James Madison – opposed any Bill of Rights and their position prevailed. 13Consequently, George Mason, Elbridge Gerry, Edmund Randolph, and others at the Convention refused to sign the new Constitution because of their fear of insufficiently bridled federal power. 14

Mason and the others returned to their home States to lobby against the ratification of the Constitution until a Bill of Rights was added. As a result of their voices (and numerous others who agreed with them), the ratification of the Constitution almost failed in Virginia, 15 Massachusetts, 16 New Hampshire, 17 and New York. 18 Rhode Island flatly refused to ratify it, 19 and North Carolina refused to do so until limitations were placed upon the federal government. 20 Although the Constitution was eventually ratified, a clear message had been delivered: there was strong sentiment demanding the inclusion of a Bill of Rights.

When the Constitution was considered for ratification, the reports from June 2 through June 25, 1788, make clear that in Virginia, Patrick Henry, George Mason, and Edmund Randolph led the fight for the Bill of Rights, again over James Madison’s opposition. 21 Henry’s passionate speeches of June 5 and June 7 resulted in Virginia’s motion that a Bill of Rights be added to the federal Constitution; and on June 25, the Virginia Convention selected George Mason to chair a committee to prepare a proposed Bill of Rights, 22 with Patrick Henry and John Randolph as members. 23 Mason incorporated Henry’s arguments as the basis of Virginia’s proposal on religious liberty. 24

Although Madison had opposed a Bill of Rights, he understood the grim political reality that without one, it was unlikely the new Constitution would receive widespread public acceptance. 25 Consequently, he withdrew his opposition, and in the federal House of Representatives he introduced his own versions of the amendments offered by his State.

Very little of Madison’s proposed religious wording made it into the final version of the First Amendment; and even a cursory examination of the Annals of Congress surrounding the formation of that Amendment quickly reveals the influence of Fisher Ames and Elbridge Gerry of Massachusetts, Samuel Livermore of New Hampshire, John Vining of Delaware, Daniel Carroll and Charles Carroll of Maryland, Benjamin Huntington, Roger Sherman, and Oliver Ellsworth of Connecticut, William Paterson of New Jersey, and others on that Amendment. 26

The failure to rely on Founders other than Madison seems to imply that no other Founders were qualified to address First Amendment issues or that there exists no pertinent recorded statements from the other Founders. Both implications are wrong: numerous Founders played pivotal roles; and thousands of their writings do exist.

However, if critics of public religious expression believe that only a Virginian may speak for the nation on the issue of religion (they usually cite either Madison or Jefferson), then why not George Mason, the “Father of the Bill of Rights”? Or Richard Henry Lee who not only framed Virginia’s proposals but who also was a Member of the first federal Congress where he helped frame the Bill of Rights? Or why not George Washington? Perhaps the reason that these other Virginians are ignored (as are most of the other Framers) is because both their words and actions unequivocally contradict the image portrayed by the one-sided picture of Madison given by those who cite only his “Detached Memoranda.”

George Washington provides a succinct illustration. During his inauguration, Washington took the oath as prescribed by the Constitution but added several religious components to that official ceremony. Before taking his oath of office, he summoned a Bible on which to take the oath, added the words “So help me God!” to the end of the oath, then leaned over and kissed the Bible. 27 His “Inaugural Address” was filled with numerous religious references, 28 and following that address, he and the Congress “proceeded to St. Paul’s Chapel, where Divine service was performed.” 29

Only weeks later, Washington signed his first major federal bill 30 – the Northwest Ordinance, drafted concurrently with the creation of the First Amendment. 31 That act stipulated that for a territory to become a State, the “schools and the means of education” in that territory must encourage the “religion, morality, and knowledge” that was “necessary to good government and the happiness of mankind.” 32 Conforming to this requirement, numerous subsequent State constitutions included that clause, 33 and it still appears in State constitutions today. 34 Furthermore, that law is listed in the current federal code, along with the Constitution, the Declaration, and the Articles of Confederation, as one of America’s four “organic” or foundational laws. 35

Finally, in his “Farewell Address,” Washington reminded the nation:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness. . . . The mere politician, equally with the pious man, ought to respect and to cherish them. 36

Washington – indisputably a constitutional expert – declared that religion and morality were inseparable from government, and that no true patriot, whether politician or clergyman, would attempt to weaken the relationship between government and the influence of religion and morality.

Or why not cite the actions of the entire body of Founding Fathers? For example, in 1800, when Washington, D. C., became the national capital and the President moved into the White House and Congress into the Capitol, Congress approved the use of the Capitol building as a church building for Christian worship services. 37 In fact, Christian worship services on Sunday were also started at the Treasury Building and at the War Office. 38

John Quincy Adams, a U. S. Senator, made frequent references to these services. Typical of his almost weekly entries are these:

[R]eligious service is usually performed on Sundays at the Treasury office and at the Capitol. I went both forenoon and afternoon to the Treasury. October 23, 1803. 39

Attended public service at the Capitol, where Mr. Ratoon, an Episcopalian clergyman from Baltimore, preached a sermon. October 30, 1803. 40
The Rev. Mannasseh Cutler, a U. S. Congressman (as well as a chaplain in the Revolution and a physician and scientist) similarly recorded in 1804:

December 23, Sunday. Attended worship at the Treasury. Mr. [James] Laurie [pastor of the Presbyterian Church] alone [preached]. Sacrament [communion]. Full assembly. Three tables; service very solemn; nearly four hours. Cold day. 41

By 1867, the church in the Capitol had become the largest church in Washington, and the largest Protestant church in America. 42

There are numerous other public religious activities by the Founding Fathers that might be cited, and Madison participated and facilitated many of them. Yet Madison later privately renounced his own practices, thus distancing himself from his own beliefs and practices as well as those of the other Founders. Therefore, to use Madison’s “Detached Memoranda” as authoritative is a flagrant abuse of historical records, choosing a long unknown ex post facto document in preference to those concurrent with the framing and implementation of the First Amendment.

Newdow’s use of James Madison is typical of most revisionists: it gives only the part of the story with which he agrees and omits the part with which he disagrees. If Newdow wants to take the position that the “Founding Fathers” (plural) opposed the use of chaplains, then he must provide evidence from more than one Founder; he must show that the majority of the Founders opposed chaplains – something that he cannot do.

Endnotes

1 Letter of Madison to William Bradford (November 9, 1772), in 1 James Madison, The Letters and Other Writings of James Madison 5-6 (New York: R. Worthington 1884).

2 Letter of Madison to William Bradford (September 25, 1773), in 1 James Madison, The Papers of James Madison 66 (William T. Hutchinson ed., Illinois: University of Chicago Press 1962).

3 The Proceedings of the Convention of Delegates, Held at the Capitol in the City of Williamsburg, in the Colony of Virginia, on Monday the 6th of May, 1776, 103 (Williamsburg: Alexander Purdie 1776) (Madison on the Committee on May 16, 1776; the “Declaration of Rights” passed June 12, 1776).

4 The Debates and Proceedings in the Congress of the United States 451, 1st Cong., 1st Sess. (Washington, D. C.: Gales & Seaton 1834) (June 8, 1789).

5Debates and Proceedings 758-759 (1834 ed.) (August 15, 1789).

6 Debates and Proceedings 109 (1834 ed.) (April 9, 1789).

7 Debates and Proceedings in the Congress of the United States 1325, 12th Cong., 2nd Sess. (Washington: Gales & Seaton 1853) (“An Act for the relief of the Bible Society of Philadelphia. Be it enacted, &c., That the duties arising and due to the United States upon certain stereotype plates, imported during the last year into the port of Philadelphia, on board the ship Brilliant, by the Bible Society of Philadelphia, for the purpose of printing editions of the Holy Bible, be and the same are hereby remitted, on behalf of the United States, to the said society: and any bond or security given for the securing of the payment of the said duties shall be cancelled. Approved February 2, 1813.”)

8 James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897, 513 (Published by Authority of Congress 1899) (July 9, 1812), 532-533 (July 23, 1813), 558 (November 16, 1814), and 560-561 (March 4, 1815).

9 See, for example, Lee v. Weisman, 505 U.S. 577, 617 (1992); Marsh v. Chambers, 463 U.S. 783, 791 (1983); ACLU v. Capitol Square Review, 243 F.3d 289 (6th Cir. 2001); Sherman v. Cmty. Consol. Dist. 21, 980 F.2d 437 (7th Cir. 1992); American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir. 1787), and others.

10 Ten members of the Constitutional Convention also served in the first federal Senate (William Few, Richard Bassett, George Read, Pierce Butler, William Paterson, Robert Morris, Oliver Ellsworth, William Samuel Johnson, Caleb Strong, and John Langdon) and nine members of the Convention served in the first federal House (Abraham Baldwin, James Madison, Hugh Williamson, Daniel Carroll, George Clymer, Thomas Fitzsimons, Roger Sherman, Elbridge Gerry, and Nicholas Gilman).

11 Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution 208-209 (Lawrence, Kansas, 1985), compiled from The Records of the Federal Convention of 1787 (Max Farrand, ed., New Haven: Yale University Press, 1911), Vol. I, 216, 373, and Vol. II, 45, 306, 324-325, 345, 440, 500, and 617.

12 James Madison,The Papers of James Madison 1566 (Henry D. Gilpin, ed., Washington: Langress and O’Sullivan, 1840) (Wednesday, September 12, 1787); see also 2 Bancroft’s History of the Formation of the Constitution 209-210 (New York: D. Appleton and Company, 1882), and 2 Farrand’s Records of The Federal Convention 588 (September 12, 1787) and 637 (September 15, 1787).

13 Debates in the Several State Conventions on the Adoption of the Federal Constitution 306 (Jonathan Elliot, ed., Washington, 1836) (September 12, 1787).

14 Dictionary of American Biography, s.v., “George Mason,” “Edmund Randolph,” “Elbridge Gerry.”

15 Elliot’s Debates, Vol. III, 652-655, Virginia Ratification Debates, June 25, 1788.

16 Elliot’s Debates, Vol. II, 176-181, Massachusetts Ratification Debates, February 6, 1788.

17 A History of the New Hampshire Convention (Boston: Cupples & Hurd, 1888), 41-43, June 21, 1788.

18 Elliot’s Debates, Vol. II, 413, New York Ratification Debates, July 26, 1788.

19 Collections of the Rhode Island Historical Society (Providence: Knowles and Vose, 1843), Vol. V, 320-321, March 24, 1788.

20 Elliot’s Debates, Vol. IV, 242-251, North Carolina Ratification Debates, August 1-2, 1788.

21 Elliot’s Debates, Vol. III, 616-622, James Madison, Virginia Ratification Debates, June 24, 1788.

22 Life of George Mason, Vol. I, 244.

23 Elliot’s Debates, Vol. III, 655-656, Virginia Ratification Debates, June 25, 1788.

24 Patrick Henry, Life, Correspondence and Speeches, William Wirt Henry (New York: Charles Scribner’s Sons, 1891), Vol. I, 430-431; see also Rowland, Life
of GeorgeMason, Vol. I, 244; see also Elliot’s Debates, Vol. III, 659, Virginia Ratification Debates, June 27, 1788.

25 Debates and Proceedings 448-450 (1st Cong., 1st Sess) (June 8, 1789); see also Wallace v. Jaffree, 472 U. S. 38, 93-99 (1985) (Rehnquist, J., dissenting).

26 Debates and Proceedings 440-948 (1st Cong., 1st Sess.) (June 8- September 24, 1789, for the records chronicling the debates surrounding the framing of the First Amendment).

27 Life of George Washington 475 (New York: G. P. Putnam & Co., 1857); Mrs. C. M Kirkland Memoirs of Washington 438 (New York: D. Appleton & Company, 1870); Charles Carleton Coffin, Building the Nation 26 (New York: Harper & Brothers Publishers, 1882); etc.

28 Richardson, Messages and Papers 51-54 (April 30, 1789).

29 Annals of Congress 29 (April 30, 1789).

30 Acts Passed at a Congress of the United States of America Begun and Held at the City of New-York, on Wednesday the Fourth of March, in the Year 1789, 104 (Hartford: Hudson & Goodwin, 1791) (August 7, 1789).

31 Debates and Proceedings 685 (1st Cong., 1st Sess.) (July 21, 1789, passage by the House), and 1 Debates and Proceedings 57 (August 4, 1789, passage by the Senate).

32 Constitutions (1813) 364 (“An Ordinance of the Territory of the United States Northwest of the River Ohio,” Article III).

33 For example, State constitutions across the decades reflecting this requirement include the 1803 Ohio Constitution Constitutions (1813), 334, Ohio, 1802, Article 8, Section 3); the 1817 Mississippi Constitution The Constitutions of All the United States According to the Latest Amendments (Lexington, KY: Thomas T. Skillman, 1817), 389, Mississippi, 1817, Article 9, Section 16); the 1858 Kansas Constitution (House of Representatives, Mis. Doc. No. 44, 35th Cong., 2nd Sess., February 2, 1859, 3-4, Article 1, Section 7, of the Kansas Constitution); the 1875 Nebraska Constitution (M. B. C. True, A Manual of the History and Civil Government of the State of Nebraska (Omaha: Gibson, Miller, & Richardson, 1885), 34, Nebraska, 1875, Article 1, Section 4); etc.

34 The Constitution of North Carolina 42 (Raleigh: Rufus L. Edmisten, Secretary of State, 1989) (Article 9, Section 1); Constitution of the State of Nebraska 1-2 (Lincoln: Allen J. Beermann, Secretary of State, 1992) (Article 1, Section 4); Page’s Ohio Revised Code Annotated 24 (Cincinnati: Anderson Publishing Co., 1994) (Article 1, Section 7).

35 United States Code Annotated 1 (St. Paul: West Publishing Co., 1987) (“The Organic Laws of the United States of America”).

36 George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination 22-23 (Baltimore: George and Henry S. Keatinge, 1796).

37 Debates and Proceedings 797 (6th Cong., 2nd Sess.) (December 4, 1800).

38 John Quincy Adams, Memoirs of John Quincy Adams 265 (Charles Francis Adams ed., Philadelphia: J. B. Lippincott & Co. 1874) (October 23, 1803).

39 John Quincy Adams, Memoirs 265(October 23, 1803).

40 John Quincy Adams, Memoirs 268 (October 30, 1803).

41 William Parker Cutler & Julia Perkins Cutler, Life, Journals, and Correspondence of Rev. Manasseh Cutler, LL.D. 174 (Cincinnati: Robert Clarke & Co. 1888).

42 James Hutson, Chief of the Manuscript Division of the Library of Congress, Religion and the Founding of the American Republic 91 (Washington, D. C.: Library of Congress 1998).

Impeachment of Federal Judges

The Founders’ intent for impeachment was to protect the fundamental principle of “the consent of the governed.” The Constitution carries no title but “We the People,” and impeachment removes from office those officials who ignore that standard. (Recall that the Constitution does not guarantee a federal judge his position for life, but only for the duration of “good behavior.” Art. III, Sec. 1)

For this reason impeachment was used whenever judges disregarded public interests, affronted the will of the people, or introduced arbitrary power by seizing the role of policy-maker. Previous generations used this tool far more frequently than today’s generation; and because the grounds for impeachment were deliberately kept broad, articles of impeachment have described everything from drunkenness and profanity to judicial high-handedness and bribery as reasons for removal from the bench. (Sixty-one federal judges or Supreme Court Justices have been investigated for impeachment, of whom thirteen have been impeached and seven convicted.)

Today’s judiciary, not having experienced any serious threat of impeachment as judges in earlier generations, repeatedly flaunts its contempt for the will of the people. It recently has overturned direct elections in Washington, New York, California, Arkansas, Texas, Missouri, etc., simply because it preferred a different outcome. This is not to suggest that the results of all citizen elections are final and infallible, for it is the duty of the Court to protect the Constitution. However, the above elections violated at most the judiciary’s ideological leanings rather than any manifest provision of the Constitution (e.g., English as a State’s official language, ending government assistance for illegal immigrants, enacting term-limits, prohibiting physician-assisted suicides).

Examples of Judicial Abuses

While most are aware of the 9th Circuit’s recent decision that saying “under God” in the Pledge of Allegiance threatens our American form of government, there are numerous additional examples, some staggeringly unbelievable. For example, in Jane Doe v. Santa Fe, a federal judge ruled that graduation prayers must not include any mention of “Jesus” or other “specific deities” and that any student offering such a prayer would face immediate arrest and up to six months in jail. The judge threatened “violators” by saying they would wish they “had died as a child” once his court finished with them.

In a Texas county where conservatives narrowly won multiple seats in an election, a federal judge reversed that outcome by arbitrarily throwing out the 800 votes cast by U.S. military personnel, saying they had no right to vote in local elections.

A federal judge in Nashville reviews the verdict of any jury in Tennessee that awards the death penalty. This judge has openly declared his personal opposition to the death penalty and has set aside every jury decision on this issue, despite the Constitution’s explicit language to the contrary. The judge even allows nine years to pass, on average, before overturning the jury’s sentence, thus disregarding the Constitution’s guarantee to a speedy trial.

After citizens in a statewide election voted down a proposed tax-increase in Missouri, a federal judge, in direct violation of Article I of the Constitution, unilaterally set aside the election results and instead decreed that the tax be levied in order to finance his own personal plan for education in the State. Interestingly, this judge’s plan (which funded the “Taj Majal” of public education) proved to be a dismal failure – at the continuing economic expense of the entire State.

There are many other examples; today’s judiciary is now so arrogant that the Supreme Court’s own Justices have described it as “a super board of education for every school district in the nation,” as amateur psychologists on a “psycho-journey,” and as “a national theology board.”

The Supreme Court versus Congress

Even though the Constitution gave the lawmaking powers to the Congress, courts have become the predominant policy making body in the nation. In fact, on public tours of the Supreme Court, one often hears the ridiculous claim that “this is the building from which all the laws in the land emanate.” The Supreme Court, fully believing its own propaganda, regularly strikes down or rewrites the laws of Congress to conform to its own predilections and edicts.

For example, in 1993, Congress passed the Religious Freedom Restoration Act (RFRA) to correct an earlier Supreme Court decision that weakened a long-standing First Amendment protection for religious groups. That Congressional act reinstituted protection declaring that a government entity must not interfere with a religious body unless it had “a compelling state interest” for doing so. When a Catholic church in Boerne, Texas, sought to accommodate its burgeoning membership but was denied a building permit to expand its facilities, the church invoked relief under RFRA, claiming the city had no “compelling state interest” in denying the church expansion. The Court ruled otherwise, striking down Congress’ attempt to protect religious bodies from government intrusion. While most decried this decision for weakening the rights of religious bodies, there was a far greater question at stake.

Congress invoked Section 5 of the Fourteenth Amendment of the Constitution in passing RFRA to protect religious freedoms from further governmental encroachment. Yet even though the Congress had acted on the power explicitly given it in the Constitution, the Court struck down the law, refusing to be corrected by Congress and warning that Congress should not attempt to correct a Court ruling. Significantly, Congress cited the Constitution as its authority for passing RFRA, but the Court did not cite the Constitution as its authority for striking RFRA down. The Court instead pointed to its own previous decisions, thus elevating its rulings higher than the Constitution itself. As it explained, “Any suggestion that Congress has a substantive, non-remedial power under the Fourteenth Amendment is not supported by our case law.” The Court then rebuked Congress, warning that its judicial edicts must be treated “with the respect due them.” In short, we the Court demand that you the Congress adhere to our opinions regardless of what the Constitution says.

Obviously, the Supreme Court considers both itself and its decisions supreme over Congress. However, the Constitution disagrees – it deliberately empowers Congress with greater power. For example, the Constitution gives Congress the authority to set the salaries for judges, determine the size of the Judiciary, establish the scope of the Judiciary’s jurisdiction and the types of cases which come before it. Furthermore, judges cannot serve without the approval of Congress, and Congress may remove judges with whom it is dissatisfied. These are just some of the “constitutional arms” for Congress’ “powers of self-defense” (Federalist 73, Alexander Hamilton).

The Constitution clearly places many of the operations of the Judiciary under the oversight of Congress – a power not granted reciprocally to the Judiciary. This is made clear in the Federalist Papers (described by James Madison as “the most authentic exposition of the heart of the federal Constitution”), which confirm that subjugating the Judiciary to Congress was deliberate and intentional. Federalist #51 declares:

The legislative authority necessarily predominates.

Federalist #78 then proclaims:

The Judiciary is beyond comparison the weakest of the three departments of power.

Furthermore, Federalist #49 declares that Congress – not the Court – is “the confidential guardians of [the people’s] rights and liberties.” Why? Because the Legislature – not the unelected judiciary – is closest to the people and most responsive to them. In fact, the Court’s own history proves that it is not a proficient guardian of the people’s rights. For example, after the Civil War, Congress passed civil rights laws forbidding segregation, but the Court struck down these laws and instead instituted “separate but equal” in Plessey v. Ferguson. (While the Court eventually ended this racial segregation in Brown v. Board of Education, that decision was merely the Court’s reversal of its own segregation standard previously established in Plessey.)

Moreover, had it been up to the Court, slavery would have never ended: in 1857, the Court declared it unconstitutional for the other branches to end slavery or to free slaves. Fortunately, Congress ignored that decision by declaring freedom for slaves in 1862 and President Lincoln also ignored that decision by issuing the “Emancipation Proclamation” in 1863. All substantive progress in civil rights after the Civil War was accomplished only after Congress used Article III, Section 2 of the Constitution to remove Reconstruction issues from the Court’s reach. Indeed, history demonstrates that the Court is less than a faithful guardian of the people’s rights, violating the people’s liberties as often as it protects them. As Thomas Jefferson pointed out:

Our judges are as honest as other men and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control.

Today, the Court claims that it is the only body capable of interpreting the Constitution – that Congress is incapable of determining constitutionality. However, the Founding Fathers vehemently disagreed. For example, James Madison declared:

[T]he meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.

Constitutional Convention delegate Luther Martin similarly attested:

A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature.

The Founders consistently opposed the Court being the final word on constitutionality. For example, Thomas Jefferson declared:

[T]o consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. . . . The Constitution has erected no such single tribunal.

He further explained that if the Court was left unchecked:

The Constitution . . . [would be] a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.

Allowing the Court to enlarge its own sphere of power beyond what the Constitution authorizes, permitting the Court to usurp the powers of Congress, and tolerating the Courts’ disregard of constitutional separation of powers moves America ever further from being a representative republic and ever closer toward the oligarchy against which Jefferson warned. The Court must be resisted in these attempts.

Impeachment: The Founders’ Solution

As noted earlier, judges in previous generations who usurped powers from Congress or the people faced impeachment. But today’s critics claim that the use of impeachment would either make the judiciary a “political” branch (as if it were not already a political branch) or that it would violate the “independence of the judiciary.” Yet, as Thomas Jefferson so accurately cautioned,

It should be remembered as an axiom of eternal truth in politics that whatever power . . . is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass.

No judge should ever be so independent that he is unaccountable to the Congress, and thereby the people. As Justice James Iredell (placed on the Court by President George Washington) so clearly explained:

Every government requires it [impeachment]. Every man ought to be amenable for his conduct.

Iredell further noted that some officials will behave themselves only under “the very terror of punishment” that impeachment provides. Recent events suggest he was right.

In 1996, six members of the Supreme Court voted to overturn the Colorado election forbidding special (rather than just equal) rights for homosexuals. Following that flagrant display of contempt for the will of Colorado voters, there was a national call for the impeachment of those six Justices. After this clamor for their removal, those same six Justices suddenly became ardent defenders of the people’s elections and in a subsequent decision unexpectedly and unanimously chastised a lower court that had overturned a statewide election in Arizona. (Interestingly, Thomas Jefferson on multiple occasions called impeachment a “scarecrow” – something used to frighten predators – and the threat of impeachment certainly had that effect on the Supreme Court.)

Similarly, after a federal judge overturned a binding referendum by the voters of California (“Proposition 209”), national leaders called for the impeachment of that judge. Later, the 9th Circuit ordered the results of the election reinstated and criticized that judge for ignoring the will of the people. Yet, this same 9th Circuit Court had itself shortly before overturned at least three similar elections. Why the flip-flop? The “scarecrow” had been forcefully raised by Congress to make judges accountable for their decisions by returning to the original constitutional uses of impeachment.

It is true that impeachment is a cumbersome process, and achieving a conviction is difficult. However, on most occasions, just the threat of impeachment produces results. In fact, there are several examples of federal judges correcting their own decisions after hearing Congressional calls for their impeachment; and an actual impeachment sends an even more powerful message to all other wayward leaning judges.

Although Congress is ultimately responsible for the discipline of judges, far too many of our Congressmen (like far too many of our citizens) have no understanding of the proper use of impeachment. However, a wise political axiom declares that “Congress sees the light when it feels the heat,” and this is especially true on this issue. As citizens, we need to educate ourselves on the proper use of judicial impeachment, and then we need to educate our Representatives, reminding them of the need for judicial reform and alerting them to those judges showing a pattern of abuse. The time for encouraging judicial accountability is once again ripe. This is a golden opportunity for citizens to weigh in and make a difference.

Copyright © 2002 David Barton, WallBuilders

(An excellent tool for educating yourself and your Congressional representative is the book Restraining Judicial Activisim . This work documents both the Founders writings on this issue and how impeachment was used in America in previous generations. Get a copy for yourself and an extra copy for your Representative and Senators!)

 

* This article concerns a historical issue and may not have updated information.

Solving the Pledge of Allegiance Controversy

The recent court ruling that saying “under God” in the Pledge of Allegiance threatens our American form of government came as a shock to millions of Americans. Even the cynical “nothing-can-surprise-us” national media raised its collective eyebrow at the decision.

Given the popularity of the Pledge, the reaction to that ruling was not surprising. For example, Members from both the House (mostly the Republicans) and Senate walked outside their chambers, faced the Supreme Court, and recited the Pledge – with a particularly loud emphasis on the “offensive” phrase. And for days following the decision, I was inundated with radio interviewers seeking the background of the case and its repercussions for the future. Even judges called, offering suggestions of how to deal with their renegade brethren. Congressmen also called, seeking help in drafting legislation to strip power from the courts as well as to begin impeachment proceedings against the offending judges.

This decision was described by White House and congressional leaders with adjectives such as “outrageous,” “ridiculous,” “stupid,” “asinine,” “twisted,” etc. However, it was not, as many might believe, far and away the single worst decision rendered by courts in recent years; it was just the one we all heard about. This decision, for example, was no less egregious than when the federal judge in Texas warned students that if they used the word “Jesus” in a prayer, a federal marshal would arrest them and give them six months in jail. Nor was this decision less despicable than when a federal judge in Alabama ordered undercover monitors into the classrooms to report to him if students engaged in illegal and forbidden religious conduct – such as praying over their lunches at school. No, these unpublicized decisions were just as unsavory as the recent one by the 9th Circuit.

Nonetheless, millions of Americans, now made aware of this absurd decision, are properly asking whether it will be overturned. Yet the more important question is how this decision came to be made in the first place.

The nation received its first public glimpse into what lay behind this decision during the second presidential debate in St. Louis in 2000. Al Gore promised that if he were elected President, he would continue the practice of his predecessor and place judges on the courts who believed that the Constitution was a living document. George Bush, on the other hand, pledged that his judicial nominees would be strict constructionists.

  • A strict constructionist interprets the Constitution as it is written, not as he or she wished it had been written. Thus, the Constitution’s guarantee of the “free exercise of religion” would protect the right to use “under God” in the Pledge of Allegiance.
  • A judge who believes in a “living constitution” believes that what the Supreme Court says about an issue is more important than what the Constitution says about the same issue. These judges agree with the philosophy set forth by former Supreme Court Chief Justice Charles Evan Hughes that, “We are under a Constitution, but the Constitution is what the judges say it is.”

The decision of the three judges in the Pledge case revealed that only one of the three was a strict constructionist – and unfortunately he was outvoted by the two “living constitution” judges. Significantly, those two did not use the Constitution to strike down the Pledge but instead cited three recent tests erected by the Supreme Court to replace the express language of the Constitution.

The first test was established in 1971 when the Court decided that the language of the religion clauses in the Constitution would be replaced with what it called its “Lemon Test.” Under this test, unless a public religious activity had a primarily secular purpose, that religious activity would be unconstitutional. In 1984, the Court established its second test, the “Endorsement Test,” declaring that if it appeared that the government was permitting a public religious activity, then the activity would be unconstitutional because someone might think that the government was “endorsing” religion. Then, in 1992, the Court added its third test, the “Psychological Coercion Test.” Under this test, if a single individual (such as the atheist in California who objected to the Pledge) is uncomfortable in the presence of a public religious public activity, then the Court will make that activity stop.

The two judges who ruled against the Pledge cited each of these three Tests rather than the Constitution. They struck down the Pledge because it failed the “Lemon Test,” the “Endorsement Test,” and the “Psychological-Coercion Test.”

While most Americans are completely unaware of these two judicial philosophies, those in Washington are not. In fact, it is the Senate’s clear understanding of these two philosophies that has caused one of the biggest unreported battles this session.

President Bush, true to his promise, has nominated 103 “strict constructionists” to fill federal judgeships. The Senate leadership, however, has refused to confirm his judges slated for the Court of Appeals. The Senate understands that if “strict constructionists” were placed on the courts, then the judicially-enacted national policies against school and graduation prayers, against the protection of innocent life, against traditional morality, etc. would be threatened. In fact, many of President Bush’s judicial nominees have gone more than a year without Senate action while it took President Clinton an average of only 77 days for the Senate to get his “living constitution” judicial nominees confirmed. Therefore, even though the Senate voted a 99-0 condemnation of the Pledge decision, for many Senators this vote was largely disingenuous since more that half the Senate (nearly all the Democrats) is actively engaged in keeping judges off the courts who would uphold the Pledge.

Yet, despite the Senate’s direct complicity in the Pledge decision, the Senate is not to blame for this travesty; Christians are. Why? Because of their widespread refusal to vote. There are 60 million evangelicals in America, and in the last election only 15 million voted (and 24 million of those 60 million evangelicals are not even registered to vote)! In that same election, five Senators lost who, if still in office, would have provided a majority of Senators that would confirm President Bush’s judicial nominees. However, those five Senators lost by a collective total of 100,000 votes in those five States – and 45 million evangelicals did not even vote in that election!

If Christians had voted for God-fearing Senators last election, not only would we have a different type of judge moving into the federal judiciary but fifty-three measures now languishing in the Senate would now be law. Those measures include a ban on human cloning, a ban on partial-birth abortions, a ban on “aborting” children after they are born (called the “Infants Born-Alive Protection Act”), a reversal of the discrimination against marriage, protection for faith-based programs, and many other measures. The President wants to sign these bills; the House has already passed them; but the Senate leadership refuses even to hold hearings on them.

President James A. Garfield (an ordained minister of the Gospel) foresaw a century ago where we are today:

Now, more than ever before, the people are responsible for the character of their Congress. If that body be ignorant, reckless, and corrupt, it is because the people tolerate ignorance, recklessness, and corruption. If that body be intelligent, brave, and pure, it is because the people demand these high qualities to represent them in the national legislature. If the next centennial does not find us a great nation, it will be because those who represent the enterprise, the culture, and the morality of the nation do not aid in controlling the political forces.

Understanding the importance of Christian involvement in elections, and its impact on the entire nation, Rev. Charles Finney (a leader in the 19th century’s Second and Third Great Awakenings) warned:

The Church must take right ground in regard to politics. . . . The time has come that Christians must vote for honest men and take consistent ground in politics. . . . God cannot sustain this free and blessed country which we love and pray for unless the Church will take right ground. Politics are a part of a religion in such a country as this, and Christians must do their duty to the country as a part of their duty to God. . . . God will bless or curse this nation according to the course Christians take in politics.

If we want to see less Pledge of Allegiance type rulings, then its time that Christians get out and vote. Thirty-three States have Senate elections this November, and in many of those States there are solid, evangelical, God-fearing Christians running for the Senate. In fact, many of those now running for the U. S. Senate have been in the U. S. House passing the good bills, but now want to move to the Senate where they can help break the logjam.

As the November elections draw near, heed the words of the Rev. Matthias Burnet, who in 1803 properly warned:

Ye whose high prerogative it is to . . . invest with office and authority or to withhold them and in whose power it is to save or destroy your country, consider well the important trust . . . which God . . . has put into your hands. To God and posterity you are accountable for them. . . . Let not your children have reason to curse you for giving up those rights and prostrating those institutions which your fathers delivered to you.

Houses of Worship Free Speech Restoration Act

Congressman Walter Jones from North Carolina’s 3rd District has introduced H.R. 235, the “Houses of Worship  Free Speech Restoration Act.” This bill would amend the IRS Code of 1986 to restore the ability of churches and other houses of worship to freely participate in political campaigns.

According to Congressman Jones:

“In 1954, then-Senator Lyndon B. Johnson offered an amendment to a revenue bill that would permanently extend the stranglehold of the Internal Revenue Service (IRS) into our nation’s churches, synagogues and mosques. Since that time, the IRS has turned the 501(c)(3) code-section on its head in an attempt to punish pastors, priests and rabbis for nothing more than communicating the principles of faith during an election period. If passed, the Houses of Worship Political Speech Protection Act would restore the rights of all religious organizations to determine for themselves what they can and cannot teach from their pulpits, or communicate to their congregation and the public without fear that their tax status may be in jeopardy. It is time to restore freedom to our Nation’s pulpits.”

houses-of-worship-free-speech-restoration-actTo contact your Representative or Senator: From a constitutional perspective, it is unconscionable that the current policy penalizing the free speech of religious institutions has remained intact and unchallenged for this long. The government has long recognized that institutions of faith and houses of worship have provided vital services to our communities and our nation. In fact, our public policy has been to honor the valuable contributions of these organizations with an exemption from taxes both for the organizations themselves and for the individuals and groups who support them. Regrettably, because of a simple appropriations rider in 1954, our public policy changed to recognizing the valuable contributions of houses of worship only if they gave up their constitutional right to free speech. (What an amazing exchange: we will honor your charitable contributions but only if you will give up your constitutional rights!) This obviously represents bad public policy and unjustly muzzles thousands of churches across America by preventing them from exercising their fundamental right to free speech. Free speech is most valuable when it is exercised during the elections of our government leaders.

  1. If you do not know your U. S. Congressman, go to https://www.house.gov/representatives/find-your-representative and type in yo ur zip code to learn the name of your Representative.
  2. Call the U.S. Capitol at (202) 224-3121. When the Capitol switchboard operator answers, ask for your Senator or Representative by name. When that office answers, ask to speak to your Congressman or Senator. If he is available, he will speak with you; if he is unavailable, simply tell his staff your thoughts on H.R. 235 and how you would like him to vote.
  3. If you wish to write and communicate the same message, the address is:

Name of your Representative

U.S. House of Representatives

Washington, DC, 20515

 

Name of your Senator

U.S. Senate

Washington, DC, 20510

(To access information (bill text, sponsors, status, etc.) and track the progress of the “Houses of Worship Free Speech Restoration Act,” go to https://clerk.house.gov/Votes and type in “HR 235” to see how your Congressman voted on a similar bill on October 2, 2002, click here. WallBuilders offers The Role of Pastors and Christians in Civil Government, which documents  the historic role people of faith played in our government.)

** This is historic information and not applicable to current pieces of legislation. **