Topics: Constitution

The Federalist Papers

Defending the US Constitution

On October 27, 1787 a New York newspaper published the very first article that would come to be known as the Federalist Papers.

The Delegates to the Constitutional Convention signed the United States Constitution on September 17, 17871 and then sent it to the thirteen states for ratification.

During this ratification process, the states would review the proposed Constitution and either approve or reject it. A favorable vote by nine of the states would be required for the Constitution to go into effect.2

Some states gave their blessings quickly, while some, like New York, had a more difficult time with this process before casting a narrow vote in favor of the document.3 New York’s ratification convention stretched well over a month in the summer of 1788.4

In October of 1787, before the debates even started in that state, four New York newspapers began publishing articles in support of the Constitution.5 The essays appeared anonymously under the name “Publius” in these newspapers. They explained various parts of the Constitution and encouraged its adoption.

The popular essays continued through May 1788, by which time a total of 85 articles had been published.6 They were first released as The Federalist in a bound volume in January 1788,7 before all the essays had even been completed.

These essays were influential not only in the New York ratification debates, but appeared in newspapers in other states as well. It was later discovered that James Madison, John Jay, and Alexander Hamilton were the authors of what became popularly embraced as the Federalist Papers.8

James Madison described this collection as “the most authentic exposition of the text of the federal Constitution as understood by the body which prepared and the authority which accepted it.”9 Courts across America’s history have relied on the Federalist Papers for explanations of the original intent of the US Constitution.

The Federalist Papers can provide context, insight, and authority to the Constitution in an era when Americans’ desperately lack Constitutional knowledge.10 Make it a part of your study of the Constitution for a deeper insight into what this important document means to our nation!

Endnotes

1 “The Constitution: How Did it Happen?” National Archives, accessed October 25, 2024.
2 “Elliot’s Debates,” Library of Congress, accessed October 25, 2024.
3 James Caldwell, “Ratification Dates and Votes,” April 23, 2024, U.S. Constitution.net.
4 “Introductory Note: New York Ratifying Convention, [17 June–26 July 1788],” National Archives: Founders Online.
5 “Federalist 1 (1787),” National Constitution Center, accessed October 25, 2024.
6 “Federalist Papers: Primary Documents in American History,” Library of Congress, accessed October 25, 2024.
7 “Printings and Reprintings of The Federalist,” 2003, Center for the Study of the American Constitution.
8 “About the Authors,” Library of Congress, accessed October 25, 2024.
9 James Madison to Thomas Jefferson, February 8, 1825, Letters and Other Writings of James Madison (Philadelphia: J. P. Lippincott Co., 1867), III:481.
10 See information about this lack of Constitutional knowledge in WallBuilders’ Constitution Hub.

Enumerated Powers

“The powers not delegated [i.e., enumerated] to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Tenth Amendment of the Constitution

Enumerated powers are the particular powers granted to Congress (those which are specifically listed) in the US Constitution. There are seventeen such enumerated powers.

Article I, Section 8 lists the first fifteen powers enumerated to, or permissible for the federal government. Articles II-VII add no additional powers but define how to apply the powers enumerated in Article I.

For example, Article II identifies the president as Commander-in-Chief over the military, but this is not a new power since the Preamble already authorized the federal government “to provide for the common defense.” Likewise, the president’s Article II authority to “make treaties” and “appoint ambassadors” is part of the Article I provision “to regulate commerce with foreign nations.”

The Thirteenth and the Fourteenth Amendments to the Constitution added two additional federal powers. (But the other twenty-five Amendments to the Constitution added no federal powers.) With these two additional federal powers, the total number of constitutionally-authorized federal jurisdictions, or enumerated powers, is seventeen.

The Enumerated Powers Listed in the Constitution

The enumerated powers permissible to the federal government are:

  1. To raise revenue to pay off debt, protect the nation, and fulfill the specific obligations established in the enumerated powers. (“To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States”)
  2. “Borrow money on the credit of the United States.”
  3. Protect the free-enterprise system and ensure free flow of commerce. (“To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”)
  4. Establish immigration laws and processes. (“To establish an uniform rule of naturalization”)
  5. Establish the bankruptcy laws and processes. (“and uniform laws on the subject of bankruptcies throughout the United States”)
  6. Establish national currency, monitor its supply and value, and punish counterfeiters of that currency. (“To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures” and “provide for the punishment of counterfeiting the securities and current coin of the United States”)
  7. “Establish post offices and post roads.”
  8. Protect the private property (including the ideas, and the product of those ideas) of inventors, authors, and artists. (“To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”)
  9. If Congress so wishes, create and regulate federal courts. (“To constitute tribunals inferior to the Supreme Court”)
  10. To enforce international laws and prosecute offenses against it: “Define and punish piracies and felonies committed on the high seas, and offences against the law of nations.”
  11. “Declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.”
  12. To provide funding for and establish the size and operation of a national military. (“To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces”)
  13. To call forth and train state militias for national needs. (“To provide for calling forth the militia to execute the laws of the union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress”)
  14. Oversee and manage all federal property, including Washington, DC, as well as bases, federal buildings, and so forth. (“To exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may by cession of particular States and the acceptance of Congress become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings”)
  15. “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other owners vested by this Constitution in the government of the United States, or in any department or officer thereof.”
  16. To prevent slavery. (a power added by the Thirteenth Amendment)
  17. To prevent states from violating individual constitutional freedoms and inalienable rights secured to every individual in the federal Constitution. (a power added by the Fourteenth Amendment)

Some Founding Fathers on Enumerated Powers

“The powers delegated [that is, enumerated] by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former [i.e., federal powers] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several states will extend to all the objects which in the ordinary course of affairs concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state. The operations of the federal government will be most extensive and important in times of war and danger; those of the state governments in times of peace and security.” James Madison1

“The state governments may be regarded as constituent and essential parts of the federal government; whilst the latter [i.e., the federal] is no wise essential to the operation or organization of the former [i.e., the states].” James Madison2

(Warning what would eventually occur if Congress used the General Welfare Clause of the Constitution to become involved in more than its specifically enumerated powers):

“If Congress can apply money indefinitely to the ‘general welfare,’ and are the sole and supreme judges of the ‘general welfare,’ they may take the care of religion into their own hands; they may establish teachers in every state, county, and parish, and pay them out of the public treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, everything, from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the ‘general welfare’.” James Madison3

“I consider the foundation of the Constitution as laid on this ground that ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people’ [quoting the Tenth Amendment]. To take a single step beyond the boundaries thus specially drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” Thomas Jefferson4

“I am not a friend to a very energetic [activist] government. It is always oppressive.” Thomas Jefferson5

“What an augmentation [growth] of the field for jobbing, speculating, plundering, office-building, and office-hunting would be produced by an assumption of all the state powers into the hands of the [federal] government. The true theory of our Constitution is surely the wisest and best: that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the [federal] government be reduced to foreign concerns only.” Thomas Jefferson6

(The Founders did not list all the powers the state possessed, but rather listed the few that the federal government was allowed to perform; all other powers belonged to the states.)

“In forming a federal constitution, which ex vi termine, supposes state governments existing, and which is only to manage a few great national concerns, we often find it easier to enumerate particularly the powers to be delegated to the federal head than to enumerate particularly the individual rights to be reserved.” Richard Henry Lee7

“[The Tenth A]mendment is a mere affirmation of what, upon any just reasoning, is a necessary rule of interpreting the Constitution. Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred, is withheld, and belongs to the state authorities.” Supreme Court Justice Joseph Story8

“What is to become of constitutions of government if they are to rest not upon the plain [meaning] of their words but upon conjectural enlargements and restrictions to suit the temporary passions and interests of the day? Let us never forget that our constitutions of government are solemn instruments, addressed to the common sense of the people and designed to fix and perpetuate their rights and their liberties. They are not to be frittered away to please the demagogues of the day. They are not to be violated to gratify the ambition of political leaders. They are to speak in the same voice now and forever. They are of no man’s private interpretation. They are ordained by the will of the people and can be changed only by the sovereign command of the people.” Supreme Court Justice Joseph Story9

Endnotes

1 James Madison, No. XLV, The Federalist on the New Constitution Written in the Year 1788 (Washington, DC: Jacob Gideon, 1818), 292.

2 Madison, No. XLV, The Federalist (1818), 290.

3 Madison, February 6, 1792, The Debates and Proceedings in the Congress of the United States (Washington, DC: Gales and Seaton, 1849), 2nd Cong., 1st Sess., 388.

4 Thomas Jefferson, “Opinion against the constitutionality of a National Bank,” February 15, 1791, The Writings of Thomas Jefferson, ed. H. A. Washington (Washington, DC: Taylor & Maury, 1854), VII:556.

5 Jefferson to Madison, December 20, 1787, Memoir, Correspondence, and Miscellanies from the Papers of Thomas Jefferson, ed. Thomas Jefferson Randolph (Charlottesville: F. Carr & Co., 1829), II:276.

6 Jefferson to Gideon Granger, August 13, 1800, Memoir, Correspondence, and Miscellanies, ed. Randolph (1829) III:437.

7 [Richard Henry Lee], “Letter XVI,” January 20, 1788, An Additional Number of Letters from the Federal Farmer to the Republican (1788), 143.

8 Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), III:752.

9 Story, Commentaries on the Constitution (1833), III:754.

FAQ: Inalienable Rights

Claimed in the Declaration of Independence as “unalienable rights,” inalienable rights are those that are not under the purview of the government – those rights that are inherent to each person.1 They are also sometimes referred to as natural rights, because they could only be granted by God. America’s Founding Fathers emphasized inalienable rights throughout their writings since they were considered most valuable and to be closely guarded.

Liberties dearer to you than your lives, “which God gave to you and which no inferior power has a right to take away.” JOHN DICKINSON “Penman of the Revolution”2

The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature by the hand of the Divinity itself; and can never be erased or obscured by mortal power. ALEXANDER HAMILTON3

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. VIRGINIA DECLARATION OF RIGHTS (1776)4

Some of the inalienable rights the Founders specifically mentioned included:5

  • Life
  • Liberty
  • Private Property
  • Conscience (specifically relating to worshipping God)
  • Self-Preservation or “Personal Security”
  • Happiness
  • Private Judgment or “Self-Direction”
  • Association
  • Right to Necessary Things (air, water, earth)

Additional Resources

Biblical Christianity: The Origin of the Right of Conscience

A God-Given Inalienable Right

The Founders on the Second Amendment

The Founders Bible

The Second Amendment

Endnotes

1 Noah Webster, “inalienable,” An American Dictionary of the English Language (New York: S. Converse, 1828). Today there is a question of whether the correct term is “inalienable” (as now used in contemporary English) or “unalienable” (as it originally appeared in the Declaration). As seen in this definition by Noah Webster (a soldier in the American War for Independence, and a judge and legislator afterwards), “unalienable” is a synonym for “inalienable.”

2 John Dickinson, letter to the Society of Fort St. David’s, 1768, Letters from a Farmer in Pennsylvania, ed. R. T. H. Halsey (New York: The Outlook Company, 1903), xlii.

3Alexander Hamilton, “The Farmer Refuted,” February 5, 1775,” The Works of Alexander Hamilton, ed. John C. Hamilton (New York: John F. Trow, 1850), II:80.

4 The Virginia Declaration of Rights, adopted unanimously June 12, 1776, Virginia Convention of Delegates, drafted by George Mason, The Avalon Project, Yale Law School, accessed December 4, 2023, https://avalon.law.yale.edu/18th_century/virginia.asp.

5. See, for example: Samuel Adams, “The Rights of The Colonists, A List of Violations of Rights and a Letter of Correspondence, Adopted by the Town of Boston, November 20, 1772,” The Life and Public Service of Samuel Adams, ed. William V. Wells (Boston: Little, Brown and Company, 1865), I:502. Samuel Adams, An Oration Delivered at the State House, in Philadelphia, to a Very Numerous Audience; on Thursday the 1st of August, 1776 (London: J. Johnson, 1776), 4. The Massachusetts Constitution 1780, drafted by John Adams, “A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.” James Madison, “Property,” from the National Gazette, March 29, 1792, The Writings of James Madison, ed. Gaillard Hunt (New York: G. P. Putnam’s Sons, 1906), VI:101-102. James Wilson, “Of Crimes Against the Right of Individuals to Personal Safety,” The Works of the Honourable James Wilson, ed. Bird Wilson (Philadelphia: Lorenzo Press, 1804), III:84-85. John Witherspoon, Lectures on Moral Philosophy; Lecture X, “Of Politics,” The Works of John Witherspoon (Edinburgh: Ogle & Aikman, 1805), VII:77-78.

Sermon – House of Representatives – 1854

This sermon was preached by James H. Thornwell in the House of Representatives chamber in 1854.

sermon-house-of-representatives-1854

Judgements, A Call to Repentance
A SERMON

PREACHED BY APPOINTMENT OF THE LEGISLATURE
IN THE
HALL OF HOUSE OF REPRESENTATIVES

BY

JAMES H. THORNWELL, D.D.,
PRESIDENT OF SOUTH CAROLINA COLLEGE

 

SATURDAY, DEC. 9, 1854

COLUMBIA, SC.:
R.W. GIBBES & CO., STATE PRINTERS
1854.

THOUGH a minister of God should, on all occasions, magnify his office, and not be afraid of the faces of men, whether kings, princes, or people, yet, while cherishing the profound conviction that the protection of the Almighty is a defenced city, and an iron pillar and brazen walls against the whole land, I confess that a feeling of deep solicitude oppresses me in undertaking this service to-day. These are no ordinary circumstances under which we are convened—this no ordi­nary congregation which I am called to address. The august image of the Commonwealth rises before me. By her trusted agents and chosen representatives, South Caro­lina, in her organic capacity—as a distinct political com­munity; in the person of our honoured Chief Magistrate, in the two Houses of the Legislature and the venerable Judges of the land—presents herself, in humility and mourning, before the footstool of Him who standeth in the congregation of the mighty and judgeth among the gods. A Sovereign State prostrate before a Sovereign God. This is the spectacle which we behold to-day. And is it strange that 1 should tremble in being called to declare the word of the Lord to such an audience? I do tremble—not for myself; not for my own name, or character, or fame; God forbid that such unworthy considerations should enter here. My only appre­hension is that I may give a wrong touch to the ark of God; that I may fail to speak those words in season, which, taking advantage of the interest naturally awakened by the scene, may contribute to guide the confused emotions, and vague and indefinite impressions it suggests, into the channels of salutary thought. It is a great occasion, and I am deeply sensible that nothing but Divine wisdom can fit me to discharge the duty it imposes. The guidance of that wisdom I humbly and fervently implore; and your prayers, I trust, will be joined with mine, that these rare and imposing solemnities may not pass away like an empty pageant, the mockery of a pompous hypocrisy. It is at all times solemn to appear before God; it is almost awful to do so with pro­testations of extraordinary penitence—professions of extra-ordinary reverence. Above all things, He requireth truth in the inward parts; and if we would not insult him to-day, and forfeit all the blessings which we hope to gain, let us see to it that our hearts are in unison with the language and worship of our lips.

There is a circumstance, trifling in itself—a coincidence perhaps not worthy of notice, which yet may be mentioned, as by that mysterious sympathy on which our emotions so much depend, it has inspired me with something of confi­dence and hope, and thrown an additional interest around the services of the day. When I received the notice of this appointment, and reflected that its fulfillment was to take place upon the anniversary of. the day on which I first be­held the light of the sun, I could not but regard it as an omen of good. It seemed a sign that God had called me to this work. There is certainly no enterprise in which I could embark with a less divided heart, than that of presenting the Commonwealth, which I love next to God himself and His own Divine cause, an offering upon His altar. Every­thing which indicates a growing regard for the kingdom of Jesus Christ on the part of this State I hail with joy, as I am assured that God will never leave nor forsake the people that are steadfast in His covenant; and if there were but one prayer that I were at liberty to offer for the land of my birth, for the home of my children, for the resting-place of my fathers, that prayer would be that her people might be all righteous, fearing the Lord. That would include everything. With God for us, it would matter little who or what was against us. That I may contribute some small degree to this blessed consummation, I have selected for the occa­sion the words contained in the 26th chapter of Isaiah, 9th verse:

“For when thy judgments are in the earth, the inhabitants of the world will learn righteousness.”

The judgments to which the prophet refers are those visitations of Providence which are evidently expressive of the Divine displeasure, and because they are universally regarded as the penal inflictions of a Judge or Ruler, they have received the appellation of the text. The conviction is a part of our nature, and no sophistry can eradicate it, that the sufferings to which sentient beings are exposed are either directly or remotely the consequences of sin. It is not so much any abstract views of the Divine benevolence or refined deductions from the phenomena of the case, as the spontaneous suggestion of conscience; the immediate promptings of our sense of good and ill desert, which impel us to recognize, in rude traces, at least, even in the present life, a moral dispensation in which death is the wages of sin. We cannot, without atheism, deny, that, as the connection be­tween the finite and the infinite is that of personal will, all the events which constitute the course of nature or the his­tory of the world are the appointments of God. There are no powers, whether physical or otherwise, but those which~ are ordained of Him. Secondary causes or general laws are only expressions for that uniformity and order which He originally established and constantly maintains. Motion, action, change, are all from Him. Not a sparrow falls to the ground without His will. When, therefore, adversity overtakes us, our troubles do not spring from the dust, nor our afflictions from chance. Is there evil in the city, and bath not the Lord done it? God being a person like ourselves, we judge of the purpose or design of Divine dispensa­tions from the obvious tendency. We reason from the analogy of our own natures, and transfer to Him something like the motives which would influence us in visiting those who are subject to our jurisdiction with similar distresses. We tremble at His anger, and dread His justice. Conscience reminds us that we are guilty, and consequently worthy of death; and hence those representations of afflictive providences, which resolve them into God’s displeasure on account of sin, are the very voice of nature. They cannot be set aside without setting aside the belief in Providence, or setting aside design and purpose as characteristic of a personal God. We feel these judgments to be just, and we see that they have a natural tendency to stigmatize transgression and to preserve the innocent, by a salutary fear, in their integrity.

So strong is the impression of the moral connection between suffering guilt, that unreflecting minds are apt to make the degree of suffering the exponent of the measure of guilt. They look upon extraordinary judgments as proofs of extraordinary sins. It was this feeling which our Saviour designed to rebuke when he was told of the Galileans, whose blood Pilate had mingled with their sacrifices; Think ye, said he, that these were sinners above all the other Galileans? I tell you nay, but except ye repent, ye shall all likewise perish. Or those eighteen upon whom the tower of Siloam fell and slew them; think ye that they were sinners above all the men that dwelt in Jerusalem? I tell you, nay, but except ye repent, ye shall all likewise perish.

The doctrine is this: That sin is the cause of all suffering and pain. None would ever be visited with any species of calamity unless they were guilty. But, as the present state is only moral government begun and not completed, and as other ends among the guilty may be answered by affliction as well as those of punishment, we can never infer the degree of guilt from the degree of suffering though the general fact may be universally concluded. Is a people visited with pesti­lence, famine, or war? We may infer with absolute cer­tainty that there is sin among them. These scourges could, under no circumstances, be inflicted upon the innocent. Not a tear can fall, nor a sigh be heaved where sin has not entered. But we cannot infer that they are more guilty than their neighbors. It may be, on the contrary, that they are less offensive to God, and that these judgments are designed to awaken them to a general sense of sin, and to bring them to repentance. God has purposes of mercy towards them and makes bare His arm that wrath may be subservient to love. All that we can conclude with absolute certainty is the necessity of repentance. Judgments are a call, a loud and solemn call, to the inhabitants of the world to learn righteousness, and are addressed to others as well as the victims themselves. Except ye, the spectators of those woes, except ye repent, ye shall all likewise perish. The great lesson, and it is a lesson to all alike, is that there is sin and that God hates it, but how much sin there is, and how aggravated, it is presumption to conclude.

The Legislature of this State, therefore, has wisely attributed those severe dispensations which have wrapped so many families in mourning, and carried desolation to so many hearths, to the penal visitation of God. Though the product of natural causes and secondary agents, they ultimately proceed from Him, and proceed from Him distinctly as a moral Ruler, a just and righteous Judge. The benevo­lent design may be inferred from the effect already produced. We are beginning, I trust, to learn the righteousness, to practice the repentance which He exacts at our hands.

The first step has been taken—we have heard God’s voice—we have trembled at the rebukes of His providence, and we have publicly confessed that our mourning and woe are the sad desert of our sins. It is a source of heartfelt satisfaction that the State has not been stupid nor insensible— that she has not shut her eyes to the prime cause of these dispensations—that she has seen and kissed the rod in the hands of the Almighty. She has bowed before that sove­reign Ruler whose favor is life, whose frown is death—she has resorted to no carnal expedients, to no mere prudential policy~ as the means of averting future calamities—she has not consulted diviners or physicians—she has gone directly to Him whose prerogative it is to kill and to make alive—she has spread her cause before His throne, and in humility and penitence has implored Him to put up the sword into its scabbard, to let it rest and be still.

The next step is a genuine repentance—a hearty confession and a sincere renunciation of the sins which have pro­voked the displeasure of God. The reason of these calami­ties must be removed—the cause must cease to operate, if we expect the effects to terminate. As the judgments themselves do not specify the sins, and as our Saviour has taught us that it is sin in general, as much as any special sins in particular, that provoke peculiar calamities, the only safe course for us is to go into the depths of our hearts, and bring out and destroy all the forms of iniquity that lurk there. We should spare none. Every man, and, every family, should mourn apart; the family of the house of David apart, and their wives apart; the family of the house of Nathan apart, and their wives apart; the family of the house of Levi apart, and their wives apart; the family of Shimei apart, and their wives apart; all the families that remain, every family apart, and their wives apart. Repentance must be­gin in every man’s own soul, and the first care which the solemnities of this day imposes upon every one of you, is to see to it, that his own heart is right with God. Nothing will or can be done effectually, unless it is done in the spirit of personal and individual repentance. Your sins may have contributed to provoke these judgments of the Almighty. You are a citizen of the commonwealth—a member of her legislative councils. Are you, or are you not, an enemy to God by wicked works? Have you kissed the Son—have you been redeemed by the blood of the cross? Depend upon it, that the personal character of those who are placed in authority, have much to do, from the very nature of moral government, with the prosperity of the State. The rulers are the representatives of the land, and in God’s word no more tremendous judgment is threatened against any people than the sending among them of ignorant, debauched and wicked counsellors. Manasseh’s sins drenched Jerusalem in blood, and Ahab’s idolatry made the heavens as brass and the earth as iron. No man can say to what extent his own personal transgressions enter as an ingredient into that cup of trembling which God administers to guilty nations. The best servant of the State, is the faithful servant of God; and you would do more to-day, my brethren, for the prosperity and glory of this great Commonwealth which we love, by consecrating each man himself upon the altar of religion, than by all your eloquence, prudence and skill. Verily, there is a God that judgeth in the earth, and He does visit a people for the sins and iniquities of their rulers. Virtue is power, and vice is weakness, and every corrupt Senator, every debauched councellor, every wicked man, is like a. crumbling stone in the foundation of an edifice. They weaken infallibly—they mazy destroy. In your official rela­tion to the State, therefore, it is a matter of the last impor­tance that you should all be friends of God. Imagination can hardly conceive the strength and beauty and glory of that Commonwealth in which the people should all be righteous—in which no rivalry should be found but the rivalry of excellence—no selfishness, ambition or partizan zeal—no dema­gogues nor placemen. Butler’s imagination was even roused to something like fervour and eloquence when he undertook to depict the effects of the universal prevalence of virtue among any people or in any kingdom; and inspiration itself never rises to higher, or breathers in sweeter strains, than when it dwells upon the consequences of the universal diffusion of holiness; and what is especially to be observed, these effects are attributed to the character and influence of the Ruler. It is when righteousness shall be the girdle of his loins, and faithfulness the girdle of his reins, that the wolf also shall dwell with the lamb, and the leopard shall lie down with the kid, and the calf and the young lion and the fatling together, and a little child shall lead them; and the cow and the bear shall feed, their young ones shall lie down together, and the lion shall eat straw like the ox, and the sucking child shall play on the hold of the asp, and the weaned child shall put his hand on the cockatrice’s den. They shall not hurt nor destroy in all my holy mountain, for the earth shall be full of the knowledge of the Lord as the waters cover the sea. There is a natural and necessary tendency in holiness to bring about this delightful state of things—a corresponding tendency in sin to prevent it. Society is the moral union of moral agents, and the strength of their union is the perfection of the moral ties which connect them. All sin is, therefore, essentially weakness and misery—all virtue essentially power and happiness. To make a great people, you must make a pure people, and every man must begin with himself. To the extent of his depravity, he is an element of weakness in the State; and if all were corrupt and reprobate, there would be speedy anarchy and dissolution. Righteousness exalteth a nation, but sin is a reproach to any people.

Bowed as you are before God this day, my brethren, and charged with solemn duties to the Commonwealth, let me beseech you to seek that fitness for your task which can be found only in the favour and friendship of Heaven. See to it that your sins do not interpose a veil between God and the land. You stand in high places; make them as pure and holy as they are high, and you will find that God has never said to the seed of Jacob, seek ye my face in vain. Sow to yourselves in righteousness; reap in mercy; break up your fallow ground, for it is time to seek the Lord, till He come and rain righteousness upon you. His repentings will be kindled together, He will not execute the fierceness of His anger.

But next to this inquiry into our own State, the judgments of God should direct our attention to those forms of iniquity which most extensively prevail in the land. And, although, we cannot say with absolute confidence that these are the specific offences for which the sword has been drawn from the scabbard, it is enough to know that they are sins, and. sins which will inevitably be punished, unless a timely repen­tance intervene. When God’s judgments are abroad in the land, they put us upon general inquiry. They proclaim the fact of sin, and that sin we are to search -out and expel wherever we find it, whether in our own hearts, or in the customs and usages of the people.

We should ask, then, to-day, whether there are any sins that pre-eminently attach to the people of our State; or if not peculiar to us, which have a wide-spread and controlling influence.
That there are any which are peculiar to us, I am not pre­pared to say; but the people of this Confederacy are certainly distinguished, to an extent unknown in other countries, ex­cept, perhaps, Great Britain, by profaneness and intemperance. These deserve to be called national sins. A stranger might infer from the tone of popular conversation; from the ex­clamations of excited individuals; from the clamors of-anger and passion, that we acknowledge the Almighty for no other purpose than that we might have a name to swear by, or a convenient expletive to fill up the chasms of discourse. Pro­faneness, that I may repeat what I have elsewhere said, is a slim, the enormity of which the imagination cannot conceive; because no thought can compass the infinite excellencies of Him, whose prerogative it is to be, who sits upon the circle of the earth, amid the inhabitants thereof are as grasshoppers, who stretcheth out the heavens as a curtain, and spreadeth them out as a tent to dwell in. That a punny creature of the dust, born today and gone to-morrow, should have the audacity to pur contempt upon that glorious name which Seraphs adore with rapture, is enough to astonish the heavens and convulse the earth. Yea, still more astonishing is that miracle of patience which endures the monsters, when one word would arm all nature against them; make the ground treacherous beneath them, heaven terrible above them; and hell ready to meet them at their coming. The magnitude of sin cannot be exaggerated. It is enough to make the blood curdle to think of the name of God bandied about as the bauble and plaything of fools, to point a jest, to season obscenity, and to garnish a tale.

This offence cannot go unpunished. If there be a God, He must vindicate His own majesty and glory. There must be a period when all shall tremble before Him, when every knee shall bow and every heart shall do reverence. The sword of justice cannot always be sheathed, nor the arm of vengeance slumber, and who shall say that the pestilence which has been walking amongst us, and slaying its thousands upon the right hand and the left, has not received its commission on account of the abounding profaneness of the land? Who shall deny that the deep has been evoked in storm and deluge to proclaim the name of the Lord as terrible and glorious? In the sight of angels there can be no greater sin than that of profaneness. They know something of what God is. They fear that dreadful name, and their imaginations, lofty and expanded as they are, cannot measure the height and depth of that iniquity which can make light of so tremendous a being. It is the very spirit and core of all evil—the quintessence of ungodliness.

In its influence upon society, hardly less disastrous are the ravages of intemperance; and what makes the case so alarm­ing, the moral sensibilities of the people are hardly alive to the real character of drunkenness as at once a sin and crime. The associations which are thrown around it, and the cir­cumstances under which the thoughtless and unsuspecting are betrayed into it, conceal its real features, and screen it from that moral indignation which, when seen in its true light, every unsophisticated heart must visit upon it. In one aspect, the predominance of the animal over the rational, it is a conspiracy against the law of a refined civilization. This feature of it Aristotle long ago pointed out, and in this aspect, it is confessedly the parent of vulgarity and coarse­ness, and presents the strongest obstacle to the moral eleva­tion of the people which society has to encounter. Refine­ment proceeds upon a principle which drunkenness directly contradicts, and, as it is the end of civilization to develope and carry out this principle, the drunkard stands in the way, a monument of degradation and of barbarism.

In another aspect, it is a crime whose name is legion. It is a sin, as an ancient Bishop has beautifully observed, against the whole man and the whole law, against both tables of the one and both parts of the other~ It prostrates the body, palsies its muscles, and exhausts its energies. It invades the soul, and undertakes to suppress those very principles of reason and conscience on which the dignity and excellence of man depend. It is an effort to extirpate our moral and rational nature, to root out the very elements of responsi­bility, and to make man worse than the tiger or the bear. They were made to obey their impulses; we to follow rea­son and law; and when we have expunged reason and law, we have reversed our natures, and left it a prey to impulses wilder and fiercer than any which rule the beasts that perish. When I look at the subject in this light; when I see that what drunkenness does is really to extinguish for the moment those very properties of our being which link us with the angels and with God, I am utterly astonished at that ob­tuseness of moral sentiment which hesitates to brand it as a crime of the deepest dye. The drunkard is not the object of peculiar sympathy or compassion. He is as truly crimi­nal, though it may be not in the same degree, as the robber or the assassin. And this sin never will be put down until it is placed ~n the footing of other crimes, and visited accor­ding to the demands of justice. These truths may seem harsh, but they challenge scrutiny, and on a. day like this, we should forego all prejudices and customary modes of thought, and endeavor to look upon this crying evil in the light in which God regards it. Let us not extenuate or, excuse. Let us confess our own. sins and the gins of our people, and humbly implore that this prolific fountain of disease, suffering, and death may be closed. Be not deceived; neither fornicators, nor idolaters, nor adulterers, nor effemi­nate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God. The man who loves an appetite more than the improvement of his spiritual nature, who, for the sake of what is not so excellent as a mess of pottage, will sell the birthright of his moral dignity, does he not deserve to die? Is he not essentially low, and would not the thought be monstrous that such a spirit should be found among the children of light? I speak as unto wise men: judge ye what I say.

The sins which have been mentioned, amid which confess­edly prevail to a melancholy extent through the length and breadth of the land, though they call for humiliation and repentance here, are, perhaps, not so appropriate to this occasion, as those which spring from the tendencies and workings of our forms and principles of government. Bear with me in briefly stating what seems to me to be a species of idolatry which cannot fail to bring down upon us, sooner or later, the righteous judgments of God. I allude to what may be called the deification of the people. They are fre­quently represented as the source of all political power and rights; the very fountain head of sovereignty. It is their will which makes law; it is their will which unmakes it. A supremacy is ascribed to that will which he who reads the Bible and recognizes a God that has dominion over the children of men, must feel to be shocking. They are realIy treated as a species of Deity upon the earth. Now this whole representation is not only. inconsistent with religion, it is equally inconsistent with the philosophy upon which our popular institutions are founded. The government of this country does not proceed upon the maxim that the will of the people is the will of God, and its arrangements have not been made with a reference to the end, that their will may be simply ascertained. This legislature is not a con­gregation of deputies, or ministerial agents, and you have, and know that you have, higher functions to perform than merely to inquire what do the people think. I do not under­rate their opinions; they must always enter as an element in sober and wise deliberation; but what I maintain is, that the true and legitimate end of government is not to accom­plish their will, but to do and enforce what reason, conscience, and truth pronounce to be right. To the eternal law of right reason, which is the law of God, all are equally subject, and forms of government are only devices and expedients to reach the dictates of that law and apply it to the countless exigencies of social and individual life. The State is a Di­vine ordinance, a social institute, founded on the principle of justice, and it has great moral purposes to subserve, in rela­tion to which the constitution of its government may be pronounced good or bad. The will of the people should be done only when the people will what is right, and then pri­marily not because they will it, but because it is right. Great deference should be paid to their opinions, because general consent is a presumption of reason and truth.

The peculiarity of a representative system is that it gov­erns through deliberative assemblies. Their excellence is in the circumstance that they are deliberative, which affords a reasonable security that truth and justice may prevail. So far from bring mere exponents of public sentiment, their highest merit is that they are a check upon popular power— a barrier reared against the tide of passion, to beat back its waves, until reason can be fairly heard. There is no mis­apprehension more dangerous than that which confounds representative government with the essential principle of a pure democracy. It is not a contrivance to adapt the exer­cise of supreme power on the part of the people to extensive territory or abundant population, to meet the physical im­pediments which in large States, must obviously exist to the collection of their citizens in one vast assembly. It is not because the people cannot meet, but because they ought not to meet, that the representative council in modern times is preferred to the ancient convocations in the forum or mar­ket place. It is to be prized, because it affords facilities and removes hinderances in the discovery of truth; but the supreme power is truth, and not man; God, not the creature.

Now whatever representations diminish the authority of the Divine law as the supreme rule, and make the State the creature and organ of popular will, as if an absolute sove­reignty were vested in that, are equally repugnant to reli­gion and the true conception of our government. An abso­lute democracy is the worst of all governments, because it is judicially cursed as treason against God, and is given over to the blindness of impulse and passion. I am afraid that in this matter we have trodden upon the verge of error—we have forgotten that the State is ordained of God, and that our relations to each other are those of mutual consultation and advice, while all are absolutely subject to Him.

In proportion as we lose the true conception of the State, we fall short of realizing in ourselves that perfection of developement and happiness which it was instituted to achieve. Hence, it is not unusual that as extremes meet, those who in theory clothe the people with the prerogatives of God, practically degrade them below the level of intellectual exist­ence. When we cease to regard the State as a great instru­ment of moral education, it is not surprising that the educa­tion itself should be disregarded, and these Gods be left to demonstrate that after all, they are but men.

Let it be once conceded that government is but an organ of the popular will, the business of the statesman is very simple—it is only to find out what the people wish; and as all courts are attractive by the patronage they bestow, we may expect to see a system in operation, whose only tendency is to secure personal popularity. The ambition of Legislators and Senators will be directed to the gaining of popular favour, and whatever arts promise to be most successful, will be held to be legitimate, as they are the customs and usages of the Court, whose seal of approbation is desired. The consequences must be disastrous to all the parties concerned. There will and must be corruption and bribery. There will and must be unbecoming condescensions. The aspirants for distinction, however they may abhor these practices, and reproach themselves in stooping to them, feel compelled to resort to them as the conditions of success, and it will always happen that where the people are deified in theory, they will be degraded and corrupted in practice. Men will be pro­moted, not according to their wisdom and worth; not accord­ing to their ability to answer the ends of time State in elicit­ing the voice of reason and of truth, and securing the reign of universal justice—they will be promoted according to their pliancy in pandering to popular tastes. The demagogue will supplant the statesman—the representative be replaced with a tool.

These untoward tendencies should be checked in their very beginning and the most effectual method of doing so, is that each and every educated man should feel the responsibility upon him of contributing to the moral and intellectual improvement of the masses around him. We are all brethren, and as members of the same commonwealth should aim at the culture of the whole community. No man liveth to himself; no man dieth to himself. Let every one who is blessed with influence, position, and power, use these advantages in bringing all classes to that point of moral elevation in which the ballot box becomes the exponent of worth, and office the badge of merit. What a blessed consummation! We may never see it realized, but we may see it approximated. That approximation must be made by the influence of the rich upon the poor, the intelligent upon the ignorant. Each man may do much, and it would be a glorious result of this day’s services, if each should resolve that what he can do, whether much or little, shall be honestly and faithfully done among his own constituents.

I shall mention but one other instance of sin which, on this day, calls for humiliation and correction. It may be a consequence of those which have just been. insisted on; it is the deplorable extent to which our laws, especially in the punishment of crime, are prevented from being executed. It is a lesson which pervades the Bible, that States and communities may be dealt with as guilty of the crimes which they refuse or neglect to punish. The sixth of the seven precepts of Noah, which enjoins generally government and obedience, insists particularly upon time punishment of malefactors, as an indispensable condition of national prosperity and honour. When that species of transgression, which it is the proper office of the civil arm to rebuke, is permitted to escape with impunity, the land is defiled. The magistrate is not at liberty to bear the sword in vain-he must be a terror to evil doers, as well as a praise to them that do well. It is to be deplored, however, that while the moral sense of the community is properly shocked at the enormous wickedness of condemning the just, and dealing with him according to the deserts of iniquity, there is no such disgust at the equally revolting spectacle of treating the guilty with the impunity which is due only to innocence. A man may vio­late the law by crimes which cry to heaven for vengeance, and after the first ebullition of resentment has subsided, a sickly and mawkish benevolence interposes to arrest the pro­gress of justice; a feeling of pity and of childish tenderness to the person of the criminal prevents any adequate expres­sion, and, in many instances, any expression at all, of indig­nation and horror at the crime. In such cases the commu­nity assumes the guilt. It is regarded by God as endorsing the transgression, and in the righteous retributions of His providence, may, sooner or later, expect to reap the conse­quences in the judgments of His hand. There is no princi­ple which is more plainly stated, more clearly illustrated, more frequently exemplified in the sacred Scriptures, than that the punishment of malefactors is a duty. It is not dis­cretionary; not a thing of expediency or policy; it is a duty. God exacts and demands it, and no State or community can disregard this high and solemn obligation, without taking the place, in the sight of God, of time criminal it protects and favours. If it refuses, for example, to shed the blood of the murderer, the blood of the murdered will be visited upon its head.

There are two ways in which communities are punished for unpunished crimes. The first is by diffusing the contagion of the sin. The restraining influences of Divine grace and of human law are equally withheld, and the crimes which have been permitted to escape with impunity become multi­plied. God permits numbers to fall into them. The moral ties of the social fabric become loosened, and general insecu­rity is the fatal result. Other societies look upon them as wanting in dignity of moral sentiment. They are contemplated abroad in the light of the crimes they permit; they allow abominations among them; and this is regarded, and very justly regarded, as sufficient proof that they feel no strong resentment against them. From the necessary opera­tion of moral causes, the standard of character must become extremely low among any people who have no public and national expressions of displeasure against crime, or who, having them in form, a dead letter upon the statute-book, fail to make them real and effective in practice. It loses its position among surrounding States; forfeits the favour of God; contains time elements of weakness, which are insepar­able from a low standard of morals; the land is defiled, and will soon be prepared to spue out its inhabitants under the curse of God.

There are, besides, specific and positive judgments which the great Disposer of events has in store for the people that despise justice. The pestilence and earthquake, the cater­pillar and palmer worm, the heaven as brass and the earth as iron, war, blood and famine—these are but samples of the scourges which God has employed in former times, which He is employing now, and which He may employ hereafter to teach the nations of the earth; that it is righteousness alone which can exalt them, and that sin is a reproach to any people.

On this day, my brethren, have we not reason to appre­hend that our land mourns on account of unpunished crime? Does not the voice of innocent blood cry to us from the ground? Is not violence increasing in our borders? Is it not a fatal symptom, at once the cause and the effect of evil—a pregnant sign of the increasing insecurity of life, that secret weapons can be carried without branding their posses­sors as sons of Belial? No people has reached the highest stage of refinement until the authority of law and public opinion exactly coincide; and whenever this result is se­cured, private protection becomes unnecessary and gratuitous insult impossible. Let time law have its way; visit blood with blood; seize the murderer at the very horns of the altar, and let him not escape; and that process of deterioration, which begins in unpunished crime, will speedily be checked, and every honest man will be ashamed to be found with an implement of death about his person. It would brand him as a murderer at heart. This shocking practice of carrying concealed weapons ought, in some way, to be rebuked. It is a stain upon us. The first step is certainly to make human life secure, by never suffering it to be taken with impunity. But how bribed and corrupt juries are to be dealt with, except by the gradual progress of truth, civilization and religion, is a problem which I am incompetent to solve. It is something to know and confess the evil, and if we can do no more, we can this day cleanse our own skirts by taking shame and confusion to ourselves on account of the abounding iniquity. The repentance of the rulers may prevail on God to change the hearts of the ruled. Our earnest prayer that we and our land may be delivered from blood-guiltiness, may be heard in a blessing upon the whole Commonwealth.

My brethren, my task is done. I have endeavored to deal faithfully in showing the house of Judah their transgression, and Israel their sin. The consequences of this day will reach forward to eternity. If we have, indeed, humbled ourselves before the Lord, and repented of our own sins and the sins of our people, the same mercy which spared Nineveh and restored Manasseh to his country and his throne, will be full of blessings to us. If we can truly say of the Lord that He is our refuge and our fortress, He will surely deliver us from the snare of the fowler and from the noisome pestilence. We shall not he afraid for the terror by night, nor for the arrow that flieth by day, nor for the pestilence that walketh in darkness, nor for the destruction that wasteth at noonday. It is he that giveth salvation unto kings—who delivereth David his servant from the hurtful sword. Now, in the name of this Commonwealth, the common mother of us all, let us offer up our fervent and united supplications, that ours may be that happy people whose God is the Lord. O Lord, though our iniquities testify against us, do Thou it for thy name’s sake; for our backslidings are many; we have sinned against thee. Oh, the hope of Israel, the saviour thereof in time of trouble, why shouldst thou be a stranger in the land, and as a wayfaring man that turneth aside to tarry for a night? Why shouldst Thou be as a man astonished, as a mighty man that cannot save? Yet Thou, O Lord, art in the midst of us, and we are called by Thy name; leave us not.

First US Congress Meets

On March 4, 1789, the first United States Congress under the Constitution met in New York City! It wasn’t until April 1st, when a quorum was reached that Congress began. (Pictured here is Federal Hall, their meeting place.) This Congress was very important in our nation’s history!

First, it passed the necessary legislation to implement the governing system established under the Constitution. This included: establishing federal courts; starting the Departments of State, War, Treasury; setting compensation for government officials (which was only about $6 a day); and more.

Original Bill of Rights

Second, this Congress passed what would become the Bill of Rights. James Madison, determined to address the shortcomings in the Constitution, presented 19 potential amendments drawn from mainly the various state constitutions. The House of Representatives passed 17 and the Senate 12; ten of these amendments would finally be ratified by the states to become the Bill of Rights.

Members of the first Congress were well-known individuals at the time. Many were signers of the Declaration and others had signed the Constitution. Some of the members who signed these founding documents include: Abraham Baldwin, Charles Carroll, William Floyd, Elbridge Gerry, William Samuel Johnson, Rufus King, John Langdon, James Madison, Robert Morris, George Read, and Roger Sherman.

One of the lesser known members of this Congress is Frederick Augustus Muhlenberg who was the first Speaker of the House. He was an ordained minister from New York City who had left the city when the British invaded it during the War for Independence. Muhlenberg began his political career in the Continental Congress, served in the Pennsylvania state house, and was president of the state’s ratification convention in 1787 (four dozen ministers were involved in their state’s Constitution ratification debates). His signature appears on the original Bill of Rights document as passed by Congress.

Take time to study some of the events and people involved with this historic first US Congress!

Is the Declaration Racist?

On July 4, 1776 a group of Americans approved a document declaring the United States of America free from English rule. This document was the Declaration of Independence, the nation’s birth certificate. The Declaration is currently being attacked as a racist document. Is this true?

Thomas Jefferson, the author of this document, laid out the reasons the American colonies were declaring themselves independent. One of the grievances he included in his original draft of the Declaration said:

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 to restrain this execrable commerce.

This grievance was not included the final copy of the Declaration because of the objection of two states, but its inclusion by Thomas Jefferson shows how serious the issue of slavery was taken by our Founding Fathers.

For many generations the Declaration of Independence was recognized as being a document that brought “freedom to the slave [and] liberty to the captives” (John Quincy Adams). For example, Abraham Lincoln spoke about the importance of the Declaration as an equality document:

In their [the Founders] enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded and imbruted by its fellows. They grasped not the whole race of man then living, but they reached forward and seized upon the farthest posterity…[I]f you have been taught doctrines conflicting with the great landmarks of the Declaration of Independence…if you have been inclined to believe that all men are not created equal in those inalienable rights enumerated by our chart of liberty, let me entreat you to…come back to the truths that are in the Declaration of Independence.

(To learn more about the views of our nation’s Founders and heroes relating to the Declaration of Independence, see this WallBuilders video!)

In honor of the lasting truths set forth in the Declaration of Independence, let’s celebrate Independence Day in a way that was recommended by John Adams:

It ought to be commemorated, as the day of deliverance, by solemn acts of devotion to God Almighty.

Constitution Hub

Constitution Day

September 17th might not be as recognized as July 4th but it is equally as important. On that day in 1787, thirty-nine men signed the final draft of newly framed Constitution and sent it to the states for it to be ratified. It took nearly an entire year of heated debate in the pages of newspapers and on the floor of the individual ratification conventions, but ultimately, on June 21, 1788, the Constitution was accepted as the governing document and the supreme law of the land. With the unanimous election of George Washington and his inauguration as president on April 30, 1789, America began a new chapter in her history and the history of the world.

To honor this day, Congress voted in 1952 to formally designate September 17th as Constitution Day, and in 2004 an amendment further instructed that:

“The civil and educational authorities of States, counties, cities, and towns are urged to make plans for the proper observance of Constitution Day and Citizenship Day and for the complete instruction of citizens in their responsibilities and opportunities as citizens of the United States” (emphasis added).1

Furthermore, the law stipulates that any educational institution which receives Federal funds must, “hold an educational program on the United States Constitution on September 17.”2

Some History

This law, however, is hardly a new idea. From the beginning of America’s history, the Founding Fathers realized that the citizens must study the Constitution and its principles. For instance, George Washington explained that it was necessary to ensure, “the education of our youth in the science of government,” reflecting that:

“In a republic what species of knowledge can be equally important and what duty more pressing on its legislature than to patronize a plan for communicating it to those who are to be the future guardians of the liberties of the country?”3

Furthermore, Samuel Adams wrote to John Adams laying out the absolute need for a nation educated in their rights and responsibilities:

“Let the divines and philosophers, statesmen and patriots, unite their endeavors to renovate the age, by impression the minds of men with the importance of educating their little boys and girls; of inculcating in the minds of youth the fear and love of the Deity and universal philanthropy, and, in subordination to these great principles, the love of their country; instructing them in the art of self-government, without which they never can act a wise part in the government of societies, great or small.”4

James Madison, a key delegate to the Convention in addition to authoring part of the Federalist Papers, likewise remarked that:

“It is universally admitted that a well-instructed people alone can be permanently a free people.”5

Even in the generation following the Founding Fathers, leaders continued to rise up and staunchly defend the Constitution. Daniel Webster became perhaps the most well-known of this second generation of Americans and a respected constitutional scholar himself. In a 4th of July speech he reminded the listeners that,

“The American Constitution is the purchase of American valor.…The Constitution is the great memorial of the deeds of our ancestors.”6

Going on, Webster famously admonished the people to continually stand watch that the rights protected in the Constitution were never infringed upon or lost:

“We live under the only government that ever existed which was framed by the unrestrained and deliberate consultations of the people. Miracles do not cluster. That which has happened but once in six thousand years cannot be expected to happen often. Such a government, once gone, might leave a void, to be filled, for ages, with revolution and tumult, riot and despotism.”7

Constitutional Ignorance

However, a brief survey of American students and citizens today reveal a stunning lack of constitutional literacy.

  • 86% of Americans can’t name the Right of Petition
  • 61% don’t know of the Right to Assemble8
  • 27% believe students should get punished by teachers or administrators for posting political opinions they don’t agree with on social media
  • 46% of Americans think institutions should disinvite speakers who might offend listeners
  • 12% of Americans think the Constitution specifically ensures the right to own a pet9

But perhaps the most shocking and revealing statistic is that some 57% of American have never read the Constitution!10

If Americans don’t know what the Constitution says then how can they defend it? Thomas Jefferson warned that, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”11

In past generations even visitors from Europe recognized that the American political system relied upon a well-educated, civics-oriented population. In Alexis de Tocqueville’s famous 1835 account of his travels in the early republic, Democracy in America, he spoke about how, when asking any American about politics:

You will see the cloud that envelops his intellect suddenly dissipate: his language becomes clear, clean, and precise, like his thought. He will teach you what his rights are and what means he will use to exercise them; he will know according to what usages the political world conducts itself. You will perceive that the rules of administration are known to him and that he has made himself familiar with the mechanisms of the laws.…In the United States, the sum of men’s education is directed toward politics.12

How things have changed! Now over half the nation has never read the Constitution. If Tocqueville were to ask the same question today there is no doubt his answer would be dramatically different.

As a closing thought, George Washington explained to his nephew and soon to Justice on the Supreme Court Bushrod Washington:

“The power under the Constitution will always be with the people.”13

But if the people are unaware of their power then the door remains open to despots and tyrants who would usurp that power for themselves.

Helpful Resources

To help people learn more about the Constitution we have collected numerous resources from early legal commentaries to recent school curriculum. While September 17th is Constitution Day, knowing the Constitution and method of limited government it outlines is an everyday responsibility. Our prayer is that these resources will help you learn about the amazing system our Founding Fathers gave to us!

Early Sources:

Additional WallBuilders Resources:

Recommended Secondary Sources:

Curriculum and Teacher Resources:

Endnotes

1 See, Pub. L. 105–225, Aug. 12, 1998, 112 Stat. 1255; Pub. L. 108–447, div. J, title I, §111(c)(1), Dec. 8, 2004, 118 Stat. 3344, https://www.govinfo.gov/content/pkg/USCODE-2006-title36/pdf/USCODE-2006-title36-subtitleI-partA-chap1-sec106.pdf.

2 See, Pub. L. 108–447, div. J, title I, §111, Dec. 8, 2004, 118 Stat. 3344, https://www.govinfo.gov/content/pkg/USCODE-2006-title36/pdf/USCODE-2006-title36-subtitleI-partA-chap1-sec106.pdf.

3 George Washington, “Eight Annal Message of George Washington,” The Avalon Project (December 7, 1796), https://avalon.law.yale.edu/18th_century/washs08.asp.

4 John Adams, The Works of John Adams Vol. 6 (Boston: Charles C. Little and James Brown, 1851), 414.

5 James Madison, “Second Annual Message,” The Miller Center (December 5, 1810), https://millercenter.org/the-presidency/presidential-speeches/december-5-1810-second-annual-message.

6 Daniel Webster, Newly Discovered Fourth of July Oration (Boston: A. Williams & Co., 1882), 10.

7 Daniel Webster, Newly Discovered Fourth of July Oration (Boston: A. Williams & Co., 1882), 14.

8 “State of the First Amendment Survey,” Freedom Forum Institute (2023), https://survey.freedomforum.org/.

9 “We the people? 12% of Americans believe the Constitution guarantees ‘the right to own a pet,’” The Washington Times (September 16, 2015), https://www.washingtontimes.com/news/2015/sep/16/12-americans-says-bill-rights-includes-right-own-p/.

10 Thomas Jipping, “More Americans Need to Actually Read the Constitution,” Heritage Foundation (November 1, 2019), https://www.heritage.org/the-constitution/commentary/more-americans-need-actually-read-the-constitution.

11Thomas Jefferson, “To Charles Yancey,” Founders Archive (January 6, 1816), https://founders.archives.gov/documents/Jefferson/03-09-02-0209.

12 Alexis de Tocqueville, Democracy in America (Chicago: University of Chicago Press, 2000), 1.2.9 or 291-292.

13 George Washington, “To Bushrod Washington,” Founders Archive (November 9, 1787), https://founders.archives.gov/documents/Washington/04-05-02-0388.

The State of Judicial Selections: The Missouri Plan and How it Fails

Introduction

Since much public policy is now created by the judiciary, the federal judicial system in America receives increasingly more attention from politicos, pundits, and reporters. Federal judicial appointments are often closely watched, as are cases at the US Supreme Court. Yet despite the attention, the original intent of the judiciary is not well understood today. And ironically, although 90 percent of all cases are heard at the state rather than the federal level,[i] the role and operation of the state judicial system is almost completely overlooked. With so much resting on state courts, how those judges are selected is undeniably important. Texas has recently become a center of attention for this issue.

Texas currently selects its judges by a vote of citizens through popular elections, but some want this to change. Due to the rise of Democratic voters in the larger urban areas of the state (such as Dallas and Houston), some Republican-leaning groups are urging a move away from allowing the people to choose their judges. Instead they urge the adoption of what has become known as the “Missouri Plan” (also known as “Merit Selection” or “Assisted Selection”), which eliminates contested judicial elections. However, as will be documented below, this so-called “Merit Selection” is based on subjective personal opinions rather than any objective standard of measurement. Instead of advancing well-prepared constitutional judges to seats, the “Missouri Plan” consolidates power into the hands of an unelected and unaccountable group of administrators, making the state judiciary more partisan and polarized.

Before examining the results of Merit Selection in other states, how does the plan work? While there is some difference in the way various states employ this system, the overarching details are similar. A small group of undemocratically appointed commissioners of supposed elite legal “experts” choose a tiny handful of nominees for a particular judgeship. The governor then picks one of those privately-selected nominees to become judge, and that largely ends the process.

But who are these “experts” that choose a state’s judges for the people of that state? In some states, the members of that small nominating commission are appointed by the governor, but usually the private state bar, legal associations, the legislature, the governor, and sometimes sitting judges split the choice of commissioners. Nearly 75% of the board members end up being lawyers,[ii] which has become such a problem that some states have passed laws limiting the number of attorneys that may be appointed. Texas is now being urged to accept this system as a replacement for having voters choose the judges who will rule over them.

Texas, The Nation, And Various Other Methods

A prominent group arguing for this shift is Texans for Lawsuit Reform (TLR), an organization that has achieved many good things in the past, including major substantive tort reform. On its website, TLR explains why Texans should no longer be allowed to choose their judges:

Texas is one of only a few states that elects its judges.[1] Because there are often so many judges on the ballot and because these are often lower-profile election contests, many Texans simply don’t have enough knowledge about the candidates for judicial office to make informed decisions. Many voters cast their votes for judges based on party affiliation or name recognition, since they have no knowledge of the relative merits of the candidates. Historically, this has led to groups of long-serving, competent, experienced judges being swept out of office based on nothing other than partisan affiliation.[iii] (emphasis added)

Their aim is to prevent larger blue cities from electing an increasing number of Democrat judges rather than Republican ones by moving Texas away from democratically contested elections. But before examining whether adopting the Missouri Plan (or any of its derivatives) would be good for Texas, it is worthwhile to review the six different types of state judicial selection systems currently in use.

Nonpartisan Elections:

Used by 15 states, this is the most popular method. These are contested races in which judicial candidates do not formally identify with any official party—Democrat, Republican, or otherwise. This is done in hopes of encouraging voters to look deeper into the candidates’ actual record on issues and past a simple party designation. (The first non-partisan judicial election took place in 1873.[iv])

The Missouri Plan (Assisted Appointment, Merit System)

The second most popular system is the Missouri Plan, with a total of 14 states employing it at the State Supreme Court level. Begun in Missouri in 1940, it expanded rapidly, but since 1994 states have stopped adopting it, opting instead to retain their older systems.[v]

Gubernatorial Appointment

Also known as the federal model, the governor makes judicial appointments that then go before the legislative branch for confirmation. This method is currently used by 10 states, especially in the New England area. Originally, every new state that entered the Union after 1789 adopted the federal model but by the mid-to-late-1800s, most had moved to popular elections. In fact, since 1847, Hawaii has been the only state to enter the Union and select the federal model; the rest have opted for some form of citizen elections.[vi]

Partisan Elections

In 1832, Mississippi first moved away from the federal model and adopted partisan elections. New York followed suit in 1846, and then most of the rest of the nation.[vii] By the time the Civil War was fully underway, 70 percent of the states used contested partisan judicial elections,[viii] but some have since chosen other elections.

Hybrid

California, Maryland, and New Mexico use a hybrid system that merges the Missouri Plan with elements of the federal model—notably legislative confirmation. This retains at least a portion of the original constitutional checks and balances, but like the full-blown Missouri Plan, it often utilizes methods that keep the process of choosing judges excluded from the public.

Legislative Appointment

Used only in Virginia and South Carolina, this is the least common system. The legislature selects judges in a manner similar to the way Senators were chosen for the US Senate prior to the addition of the 17th Amendment to the Constitution in 1913, and has the option of reappointing those judges once their initial term has been completed.[ix] 

The Philosophy Behind the Missouri Plan

With the push to adopt the Missouri Plan/Merit Selection in Texas, it is important to examine whether it justifies abandoning longstanding citizen voting traditions. Supporters offer two primary reasons for adopting a new system.

The first argument was presented above by Texans for Lawsuit Reform (TLR): “Texans simply don’t have enough knowledge” to make “informed decisions.”[x] This premise leads them to conclude that an unelected body of supposed experts (on whom TLR hopes to have substantial influence) is more likely to choose the type of judges TLR would prefer to have on the bench. 

In one regard, TLR is absolutely right that an educated citizenry is vital for a healthy and vigorous political life. As Thomas Jefferson affirmed, “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.”[xi]

Signer of the Declaration Samuel Huntington agreed, declaring:

While the great body of freeholders are acquainted with the duties which they owe to their God, to themselves, and to men, they will remain free. But if ignorance and depravity should prevail, they will inevitably lead to slavery and ruin.[xii]

But if the problem TLR is trying to solve is citizen ignorance, the solution is citizen education, not reducing their rights and increasing an already over-bloated and unaccountable government bureaucracy. Informing citizens may not be the shortest or easiest route to their objectives, but it is undoubtedly the best for preserving political freedom.

The second argument for the Missouri Plan is that Merit Selection will stop corruption. Supporters allege that judicial corruption occurs because elections not only invite special interest money but they make judges too accountable to the people. As one group explained, “justices should be freed from wondering if their rulings will affect their job security.”[xiii] Proponents believe that if both money and the people are removed from the process, there will be less corruption.

Of course, this argument ignores the fact that the appointing commissioners also have their own vested interests and personal opinions as to how things should go in the judiciary, and they will select candidates accordingly. And if the concern is that special interest groups are “buying off” judges through donations, giving more political power to an unelected body is not the solution. There is no direct accountability for that body, their biases are not transparent, and recourse is difficult if not impossible to achieve, which increases rather than reduces opportunities for political malfeasance.

At its base, the Missouri Plan violates three core constitutional principles originally set forth by the Framers of our documents.

Three Fundamental Constitutional Principles the Missouri Plan Violates

1. Accountability

The first question that should always be asked with any political decision is, “How does this measure affect our liberty? —does it increase or reduce the rights and power of the citizenry?” If any part of the government is made less accountable, that proposal will be destructive of constitutional integrity.

Revolutionary patriot and signer of the Declaration Elbridge Gerry affirmed, “The origin of all power is in the people, and they have an incontestable right to check the creatures of their own creation.”[xiv] Whenever the people lose their ability to hold governmental bodies accountable for the execution of their public trust, it is a fundamental infringement on the rights of the people.

Defenders of the Missouri Plan claim their system does provide methods of recourse for the people, but even a cursory glance shows that the committee selection process is perhaps the least accountable system of all. The logic is so backward that one of the groups actively promoting this plan strangely argues that it is good “because concentrating power in one decision maker promotes greater accountability”[xv]

The lessons of history are clear and its voices of experience unanimous: whenever power becomes more concentrated, it generates increased autonomy, decreased accountability, and diminished freedom.

2. Preserving Constitutional Checks and Balances

Proponents of the Missouri Plan claim that citizen accountability over the judiciary is retained through judicial retention elections. (A retention election is one in which only the name of the sitting judge is on the ballot. A citizen simply votes yes or no for that judge, and if enough citizens vote no, then that judge is removed and the commission will select someone else to be judge.)

Not surprisingly, under this system the incumbent is reelected more than 99 percent of the time.[xvi] The reason for this is simple: in a contested election there is an opponent to point out and publicize what the incumbent has done wrong; without this, citizens rarely know that a wrong has occurred. (By the way, if citizens are too uneducated to make the initial selection of a good judge, why do proponents believe they will make a wiser choice in a retention election?)

Despite claims to the contrary, Merit Selection is not a neutral system that chooses the best judges. To the contrary, it can be even more partisan and polarizing than popular elections. As an example, in Missouri from 1995 to 2008, Democrats received just over half of the general election vote, but of judges selected by the Merit System who made political contributions, 87 percent of them donated to the Democrat party.[xvii] Clearly, judges chosen by Merit Selection accurately reflects the beliefs of those who chose them, not the beliefs of the voters in the state they are to judge.

3. Maintaining Judicial Oversight

America’s concern with having judges not directly accountable to the people can be traced back to well before the American War for Independence. For example, in 1765, after years of living under British appointed judges, Founding Fathers like Samuel Adams began advocating for increased judicial accountability.[xviii] Consequently, when the Declaration of Independence was penned, four of its 27 grievances addressed judicial abuses, specifically lamenting that the King had “made judges dependent on his will alone for the tenure of their office and the amount and payment of their salaries.” This was Britain’s version of a “Merit Selection” system.

The Constitution sought to correct this by greatly limiting the power of the Judicial Branch. As Federalist 78 affirmed, the judiciary in America:

has no influence over either the sword or the purse—no direction either of the strength or of the wealth of the society—and can take no active resolution whatever. It may truly be said to have neither force nor will.… [T]he 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.[xix] (emphasis added)

Jefferson explained why the Judiciary should never be independent from the people:

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.[xx]

In fact, he specifically argued that if the people were to be left out of any branch, it definitely should not be the judiciary:

We think, in America, that it 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 them.[xxi]

Because the impact from an unaccountable judiciary can be so substantial, it was intentionally designed to be what the Federalist Papers had called “the weakest branch.” At the federal level, judges were to be kept in check by the threat of impeachment, and unlike today, that was not an empty threat during the Founding Era. A number of judges were impeached and removed due to improper judicial behavior, including offenses such as rudeness to witnesses, profanity in the courtroom, judicial high-handedness, and judicial activism.[xxii]

Joseph Hopper Nicholas (who served in the federal Congress under Presidents John Adams and Thomas Jefferson) led several of the judicial removal efforts. When some objected that the judiciary should be more independent, he warned:

Give them [judges] the powers and the independence now contended for and.…your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure.…If all this be true—if this doctrine be established in the extent which is now contended for—the Constitution is not worth the time we are now spending on it. It is—as it has been called by its enemies—mere parchment, for these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.[xxiii]

Massachusetts understood this, and its state constitution made the point that all three branches—including the judiciary—were to be accountable to the people. (Ratified in 1780, the Massachusetts constitution is still in use today, making it the only active constitution in the world older than the US Constitution.) Written by notables such as John Adams, John Hancock, Sam Adams, and others, it declared:

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. [xxiv] (emphasis added)

Today an “independent judiciary” (meaning one unaccountable to the people or any other branch) has become the standard advanced by anti-constitutional Progressive groups such as Open Society (Soros funded), the Brennan Center for Justice, and the Equal Justice Initiative. Groups like these join TLR in their claim that the American people can’t be trusted to choose the right judge through regular elections and therefore a Merit Selection system such as the Missouri Plan is needed. (These groups fully understand that it is easier for them to influence or take over a small appointing commission than the full electorate of a state.) 

Conclusion

In summary, the primary arguments for “Merit Selection” are: (1) the people lack the capacity to “appoint for themselves judges and officers” (Deuteronomy 16:18), and (2) elections, which make judges accountable, cause judges to become too political. The Founding Fathers believed the opposite on both points.

Concerning the first, Thomas Jefferson pointed out that if voters are ill-informed, the remedy certainly is not to reduce their involvement with the judiciary:

When the Legislative or Executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that 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 from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.[xxv]

Concerning the second point (that judges should not be directly accountability to the people), signer of the Constitution John Dickinson queried “what innumerable acts of injustice may be committed—and how fatally may the principles of liberty be sapped—by a succession of judges utterly independent of the people?”[xxvi] Abraham Lincoln likewise affirmed that if judges are given the final word without accountability to the people, then “the people will have ceased to be their own rulers, having…resigned their government into the hands of that eminent tribunal.”[xxvii]

If America is to remain a strong constitutional republic, we must protect the safeguards established by our forefathers to disperse power and authority. The safest repository was and always will be the citizens—and if the citizens lack proper knowledge, the correct solution is citizen education, not a return to the same authoritarian practices the British once employed against our colonial ancestors.

Thomas Jefferson reminded us of the fundamental principle of American government that should guide our considerations in the question of whether a system such as the Missouri Plan is worthy:

[T]he will of the majority—the natural law of every society—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. Let us then, my dear friends, forever bow down to the general reason of the society. We are safe with that, even in its deviations, for it soon returns again to the right way.[xxviii]

The American experiment rests upon the basic premise that we would rather suffer from the ignorant errors of the people than the deliberate machinations of a political elite. To voluntarily surrender the rights of the people for fear they might vote for the wrong party is to betray both today’s citizens as well as the great historical sacrifices made in order for Americans to make their own political choices.

The creation of a body of unelected bureaucrats deciding who will be the people’s judges weakens liberty, politicizes courts, and reduces accountability. In Texas (as well as the rest of America), the Missouri Plan/Merit Selection should be rejected. ▀

Endnotes

[1] To the contrary, 21 states use the direct election of judges (both partisan and non-partisan), far more states than use any of the other five systems.

[i] Anisha Singh, “State or Federal Court,” Center for American Progress (August 8, 2016), here.

[ii] Douglas Keith, Judicial Nominating Commissions (New York: Brennen Center for Justice, 2019), 1, here.

[iii] “Courts and Judges,” Texans for Lawsuit Reform (accessed December 9, 2019), here.

[iv] Larry Berkson, “Judicial Selection in the United States: A Special Report,” American Judicial Society (April 2010), here.

[v] John Kowal, “Judicial Selection for the 21st Century,” The Brennan Center for Justice (June 6, 2016), here.

[vi] “Nonpartisan Election of Judges,” Ballotpedia (accessed December 17, 2019), here

[vii] Laura Zaccari, “Judicial Elections: Recent Developments, Historical Perspective, and Continued Viability,” Richmond Journal of Law and the Public Interest (Summer 2004), 139, here.

[viii] “Nonpartisan Election of Judges,” Ballotpedia (accessed December 17, 2019), here

[ix] Laura Zaccari, “Judicial Elections: Recent Developments, Historical Perspective, and Continued Viability,” Richmond Journal of Law and the Public Interest (Summer 2004), 143, here.

[x] “Courts and Judges,” Texans for Lawsuit Reform (accessed December 9, 2019), here.

[xi] Thomas Jefferson, “To Charles Yancey, January 6, 1816,” Writings of Thomas Jefferson, Albert Bergh, editor (Washington, DC: Thomas Jefferson Memorial Assoc., 1904), 14.384.

[xii] Jonathan Elliot, editor. Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington, DC: Printed for the Editor, 1836), 2.200, see Samuel Huntington, January 9, 1788.

[xiii] Alicia Bannon, Choosing State Judges: A Plan for Reform (New York: Brennan Center for Justice, 2018), 1, here.

[xiv] Elbridge Gerry, “Observations On the New Constitution, and on the Federal and State Conventions, By a Columbian Patriot,” Pamphlets on the Constitution of the United States (Brooklyn: 1888), 6, here.

[xv] Alicia Bannon, Choosing State Judges: A Plan for Reform (New York: Brennan Center for Justice, 2018), 9, here.

[xvi] Deborah O’Malley, “Defense of the Elected Judiciary,” The Heritage Foundation (September 9, 2010), here.

[xvii] Brian Fitzpatrick, “Politics of Merit Selection,” Missouri Law Review Volume 74 Issue 3 (Summer 2009), 698, here.

[xviii] See, Samuel Adams, “Instructions of the Town of Boston to its Representatives in the General Court. September 1765,” The Writings of Samuel Adams (New York: G. P. Putnam’s Sons, 1904), 1.9; Samuel Adams, “The House of Representatives of Massachusetts to Dennys De Berdt. January 12, 1768,” The Writings of Samuel Adams (New York: G. P. Putnam’s Sons, 1904), 144; Samuel Adams, “The House of Representatives of Massachusetts to the Marquis of Rockingham. January 22, 1768,” The Writings of Samuel Adams (New York: G. P. Putnam’s Sons, 1904), 172; “Samuel Adams to Joseph Warren, Dec. 9, 1772,” The Warren-Adams Correspondence (Boston: The Massachusetts Historical Society, 1915), 1.14-15.

[xix]  James Madison, John Jay & Alexander Hamilton, The Federalist (Philadelphia: Benjamin Warner, 1818), pp. 419-420.

[xx] Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D.C.: The Thomas Jefferson Memorial Association, 1904), Vol. XV, pp. 213-214, to Judge Spencer Roane on September 6, 1819.

[xxi] Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D.C.: The Thomas Jefferson Memorial Association, 1904), Vol. VII, pp. 422-423, to M. L’Abbe Arnoud on July 19, 1789.

[xxii] Debates and Proceedings, Fifth Congress, First Session, July 8, 1797, 499-502; Debates and Proceedings, Seventh Congress, Second Session, March 3, 1803, 645 (Congress voted not to print the actual articles of impeachment against Pickering; See Debates and Proceedings, Eight Congress, First Session, March 24, 1804, 298); Register of the Debates in Congress, Twenty0First Congress, First Session, April 26, 1830, 383, and May 4, 1830, 411-413.

[xxiii] The Debates and Proceedings in the Congress of the United States (Washington: Gales & Seaton, 1851), Seventh Congress, 1st Session, pp. 823-824, February 27, 1802.

[xxiv] 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), p. 9, Massachusetts, 1780, Part I, Article V.

[xxv] The Writings of Thomas Jefferson, Andrew A. Lipscomb, editor (Washington, DC: The Thomas Jefferson Memorial Association, 1904), Vol. XV, p. 278, to William Charles Jarvis, September 28, 1820.

[xxvi] John Dickinson, Letters from a Farmer in Pennsylvania, to the Inhabitants of the British Colonies (New York: The Outlook Company, 1903), p. 92, Letter IX.

[xxvii] The Works of Abraham Lincoln, John H. Clifford, editor (New York: The University Society Inc., 1908), Vol. V, pp. 142-143, “First Inaugural Address,” March 4, 1861.

[xxviii] Thomas Jefferson, “II. The Response, 12 February 1790,” Founders Online (accessed December 11, 2019), here.

The United States of . . . Not America

by David Barton

Here’s a simple question: “What is America’s first-protected, most-important, and longest-cherished politically-protected right?” The answer? The rights of religious conscience. But the Supreme Court of Washington State just became another [1] in the line of recent courts [2] who know nothing of, or don’t care about this inalienable right.

The early colonists arriving in America came largely seeking this right. In Europe, the governments consistently told them how to practice their faith, and punished them if they did not do what the government wanted; [3] but the religious-minded colonists believed that no one but God could tell them how to practice their faith.

The Pilgrims journeyed to America in 1620 to escape the hounding government persecution in England, [4] as did 20,000 Puritans in the 1630s. [5] In 1632, government-persecuted Catholics fled to America; [6] in 1654, persecuted Jews from Portugal; [7] in 1680, persecuted Quakers arrived here, [8] as did persecuted Anabaptists from Germany in 1683, [9] up to 400,000 persecuted Protestants from France in 1685; [10] and so forth. These settlers, having been punished for exercising their rights of religious conscience, promptly enshrined these rights in their own governing documents, including Rhode Island in 1640, [11] Maryland in 1649, [12] Jersey in 1664, [13] Carolina in 1665, [14] Pennsylvania in 1682, [15] and so forth. [16] As John Quincy Adams affirmed, “The transcendent and overruling principle of the first settlers of New England was conscience.” [17]

In 1776 when America separated from Great Britain, the rights of religious conscience were once again promptly preserved in the new state constitutions [18] and then in the federal Constitution. According to the Founding Fathers, this was one of the most important rights they protected:

“No provision in our Constitution ought to be dearer to man than that which protects the rights of conscience.” [19] “[O]ur rulers can have no authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted.” [20] “It is inconsistent with the spirit of our laws and Constitution to force tender consciences.” [21] Thomas Jefferson

“Government is instituted to protect property of every sort. . . . Conscience is the most sacred of all property.” [22] James Madison, Signer of the Constitution

“[T]he rights of conscience and private judgment. . . . are by nature subject to no control but that of Deity, and in that free situation they are now left.” [23] John Jay, an Author of the Federalist Papers and original Chief Justice of the U. S. Supreme Court

“Consciences of men are not the objects of human legislation . . . The state [does not] have any concern in the matter. For in what manner doth it affect society . . . in what outward form we think it best to pay our adoration to God?” [24] William Livingston, signer of the U. S. Constitution

Based on this long tradition, today . . .

Conscientious objectors are not forced to fight in wars; [25]

Jehovah’s Witnesses are not required to say the Pledge of Allegiance in public schools; [26]

The Amish are not required to complete the standard twelve years of education; [27]

Christian Scientists are not forced to have their children vaccinated or undergo medical procedures often required by state laws; [28]

Seventh-Day Adventists cannot be penalized for refusing to work on Saturday; [29]

And there are many additional examples.

It was because the rights of religious conscience were so important that they were specifically protected in the constitutions of the individual states—such as that of Washington, which declares:

Absolute freedom of conscience in all matters of religious sentiment, belief, and worship shall be guaranteed to every individual; and no one shall be molested or disturbed in person or property on account of religion . . . [30]

But despite the clarity of this clause, we now get word that the Washington Supreme Court has ruled that Baronelle Stutzman, a devout and pious Christian florist . . .

was bound by state law to use her artistic talents to design floral arrangements to celebrate what she viewed as an immoral event: a gay wedding. The pretext for overriding the florist’s rights to free speech and religious liberty was Washington’s so-called “public accommodations law,” which required the owner, Barronelle Stutzman, to provide goods and services to customers “regardless” of their sexual orientation. [31]

Several things are wrong with this decision.

First, Baronelle has been economically-fined and governmentally-coerced to use her talents and skills in a way that violates her sincerely-held religious beliefs.

Second, the explicit wording of the Washington State constitution has been completely ignored by the Washington State Supreme Court. In essence, a Washington state court has deemed the Washington state constitution to be unconstitutional, just because they don’t want to uphold its provisions.

Third, the court elevated a state law (their “public accommodations law”) above the state constitution; but constitutions always trump statutory laws—always.

Fourth, John Adams described us as “a government of laws and not of men,” [32] but decisions like this make us just the opposite: the personal predilections of judges are now routinely placed above constitutional provisions duly enacted by the people.

Two centuries ago, Thomas Jefferson rejoiced that “the comparison of our governments with those of Europe is like a comparison of heaven and hell,” [33] but this happy distinction is now disappearing. Because of this ruling (and dozens more like it in recent years), America is becoming more and more like the tyrannical governments of Europe that millions of early colonists fled in order to be free from the government persecution of their inalienable rights of religious conscience.

Endnotes

[1] “Washington court rules against florist in gay wedding case,” Fox News, February 16, 2017 (at: https://www.foxnews.com/us/2017/02/16/washington-court-rules-against-florist-in-gay-wedding-case.html); David French, “Washington’s Supreme Court Imposes Its Progressive Faith on a Christian Florist,” National Review, February 16, 2017 (at: https://www.nationalreview.com/article/444989/washington-supreme-court-christian-florist-religious-freedom-gay-discrimination-case).

[2] See, for example, Warren Richey, “How the push for gay rights is reshaping religious liberty in America,” The Christian Science Monitor, July 11, 2016 (at: https://www.csmonitor.com/USA/Justice/2016/0711/How-the-push-for-gay-rights-is-reshaping-religious-liberty-in-America); Liz Fields, “Judge Orders Colorado Bakery to Cater for Same-Sex Weddings,” ABCNews, December 7, 2013 (at: https://abcnews.go.com/US/judge-orders-colorado-bakery-cater-sex-weddings/story?id=21136505);  Ted Olsen, “N.M. Supreme Court: Photographers Can’t Refuse Gay Weddings,” Christianity Today, August 22, 2013 (at:
https://www.christianitytoday.com/gleanings/2013/august/nm-supreme-court-photographers-cant-refuse-gay-weddings.html).

[3] See, for example, “Religion and the Founding of the American Republic,” Library of Congress
(at: https://www.loc.gov/exhibits/religion/rel01.html); George Bancroft, History of the United States (Boston: Charles C. Little and James Brown, 1848), Vol. I, p. 275; Samuel Macpherson Janney, The Life of William Penn: With Selections form His Correspondence and Autobiography (Philadelphia: Lippincott, Grambo & Co., 1852), pp. 52-56.

[4] “About the Pilgrims: Religion,” Pilgrim Hall Museum (at: https://www.pilgrimhallmuseum.org/ap_religion.htm) (accessed on February 20, 2017).

[5] Lynn Betlock, “New England’s Great Migration,” GreatMigration.org, 2003 (at: https://www.greatmigration.org/new_englands_great_migration.html).

[6] “The Charter of Maryland, June 20, 1632,” Archives of Maryland Online (at: https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000549/html/am549–3.html) (accessed on February 20, 2017).

[7] David Grubin, “The Jewish Americans: Introduction,” PBS (at: https://www.pbs.org/jewishamericans/jewish_life/) (accessed on February 20, 2017).

[8] Religion and the Founding of the American Republic, “Americas as a Religious Refuge: The Seventeenth Century, Part 2,” Library of Congress (at: https://loc.gov/exhibits/religion/rel01-2.html) (accessed on February 20, 2017).

[9] “Timeline: Amish in America,” PBS (at: https://www.pbs.org/wgbh/americanexperience/features/timeline/amish/) (accessed on February 20, 2017).

[10] Religion and the Founding of the American Republic, “Americas as a Religious Refuge: The Seventeenth Century, Part 2,” Library of Congress (at: https://loc.gov/exhibits/religion/rel01-2.html) (accessed on February 20, 2017).

[11] “Plantation Agreement at Providence: August 27-September 6, 1640,” The Avalon Project (at: https://avalon.law.yale.edu/17th_century/ri01.asp).

[12] William MacDonald, Select Charters and Other Documents Illustrative of American History 1606-1775 (New York: MacMillan Company, 1899), p. 104-106 (at: https://books.google.com/books?id=1C0PAAAAYAAJ&pg=PA104#v=onepage&q&f=false).

[13] “The Concession and Agreement of the Lords Proprietors of the Province of New Caesarea, or New Jersey, 1664,” The Avalon Project (at: https://avalon.law.yale.edu/17th_century/nj02.asp).

[14] “Charter of Carolina; June 30, 1665,” The Avalon Project (at: https://avalon.law.yale.edu/17th_century/nc04.asp).

[15] “Frame of Government of Pennsylvania, May 5, 1682,” The Avalon Project (at: https://avalon.law.yale.edu/17th_century/pa04.asp).

[16] See, for example, The Federal and State Constitutions, Colonial Charters and Other Organic Laws, Francis Newton Thorpe, editor (Washington: Government Printing Office, 1909), Vol. VI, p. 3211, “Charter of Rhode Island and Providence Plantations-1663;” “The Charter or Fundamental Laws of West New Jersey, 1676,” The Avalon Project (at: https://avalon.law.yale.edu/17th_century/nj05.asp); “Charter of Delaware, 1701,” The Avalon Project (at: https://avalon.law.yale.edu/18th_century/de01.asp).

[17] John Quincy Adams, A Discourse on Education. Delivered at Braintree, Thursday, Oct. 24, 1839 (Boston: Perkins & Marvin, 1640), p. 28 (at: https://books.google.com/books?id=vu1RAAAAcAAJ&pg=PA28#v=onepage&q&f=false).

[18] See these many state constitutions. Virginia, 1776: The American’s Guide: Comprising the Declaration of Independence; the Articles of Confederation; the Constitution of the United States, and the Constitutions of the Several States Composing the Union (Philadelphia: Hogan & Thompson, 1845), p. 180; New Jersey, 1776: “The Constitution of 1776,” The State of New Jersey (at: https://www.state.nj.us/njfacts/njdoc10a.htm); Delaware, 1776: Constitutions of the Several Independent States of America, (Boston: Norman & Bowen, 1785), p. 91; North Carolina, 1776: Constitutions of the Several Independent States of America, (1785), p. 132; Pennsylvania, 1776: Constitutions of the Several Independent States of America, (1785), p. 77; South Carolina, 1778: Constitutions of the Several Independent States of America, (1785), pp. 152-154; Massachusetts, 1780: Constitutions of the Several Independent States of America, (1785), p. 6; New Hampshire, 1784: Constitutions of the Several Independent States of America, (1785), pp. 3-4; Vermont, 1777: The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, Francis Newton Thorpe, editor (Washington: Government Printing Office, 1909), Vol. VI, p. 3740.

[19] Thomas Jefferson, The Writings of Thomas Jefferson, H. A. Washington, editor (New York: Ricker, Thorne & Co., 1854), Vol. VIII, p. 147, to the Society of the Methodist Episcopal Church at New London, Connecticut, February 4, 1809 (at: https://books.google.com/books?id=aiI7AQAAMAAJ&pg=PA147#v=onepage&q&f=false).

[20] Thomas Jefferson, The Writings of Thomas Jefferson, H. A. Washington, editor (New York: Ricker, Thorne & Co., 1854), Vol. VIII, p. 400, “Notes on Virginia: Query XVII” (at: https://books.google.com/books?id=wyYWAAAAYAAJ&pg=PA400#v=onepage&q&f=false).

[21] Thomas Jefferson, The Writings of Thomas Jefferson, Paul Leicester Ford, editor (New York: G. P. Putnam’s Sons, 1893), Vol. II, p. 430, “Proclamation Concerning Paroles,” January 19, 1781 (at: https://books.google.com/books?id=BGYSAAAAYAAJ&pg=PA430#v=onepage&q&f=false).

[22] James Madison, The Writings of James Madison, Gaillard Hunt, editor (New York: G. P. Putnam’s Sons, 1906), Vol. VI, p. 102, “Property,” originally published in The National Gazette, March 29, 1792 (at: https://books.google.com/books?id=zn5DAQAAIAAJ&pg=PA102#v=onepage&q&f=false). 

[23] William Jay, The Life of John Jay (New York: J. & J. Harper, 1833), Vol. I, p. 82 (at: https://books.google.com/books?id=S_c5AAAAcAAJ&pg=PA82#v=onepage&q&f=false).

[24] H. Niles, Principles and Acts of the Revolution in America (Baltimore: William Ogden Niles, 1822), pp. 306-307, “Remarks on liberty of conscience, ascribed to his excellency William Livingston, governor of New Jersey, 1778” (at: https://books.google.com/books?id=l2UFAAAAQAAJ&pg=PA306&#v=onepage&q&f=false).

[25] “Conscientious Objection and Alternative Service,” Selective Service System (at: https://www.sss.gov/consobj) (accessed on February 20, 2017).

[26] West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

[27] Wisconsin v. Yoder, 406 U.S. 205 (1972).

[28] See, for example, “Vaccination Exemptions,” The College of Physicians of Philadelphia (at: https://www.historyofvaccines.org/content/articles/vaccination-exemptions) (accessed on February 21, 2017).

[29] See, for example, “U.S. Law Allowing Adventists to Miss Work on Sabbath Turns 50,” Adventist Review, July 16, 2014 (at: https://www.adventistreview.org/church-news/u.s.-law-allowing-adventists-to-miss-work-on-sabbath-turns-50).

[30] Constitution of the State of Washington, Amendment 34 (passed 1958).

[31] David French, “Washington’s Supreme Court Imposes Its Progressive Faith on a Christian Florist,” National Review, February 16, 2017 (at: https://www.nationalreview.com/article/444989/washington-supreme-court-christian-florist-religious-freedom-gay-discrimination-case).

[32] John Adams, The Works of John Adams, Charles Francis Adams, editor (Boston: Charles C. Little and James Brown, 1851), Vol. IV, p. 404, “A Defence of the Constitutions of Government of the United States of America,” 1778 (at: https://books.google.com/books?id=a2QSAAAAYAAJ&pg=PA404#v=onepage&q&f=false).

[33] Thomas Jefferson, The Writings of Thomas Jefferson, H. A. Washington, editor (New York: John C. Riker, 1853), Vol. II, p. 249, to Joseph Jones on August 14, 1787 (at: https://books.google.com/books?id=azY7AQAAMAAJ&pg=PA249#v=onepage&q&f=false).

Franklin’s Appeal for Prayer at the Constitutional Convention

The Constitutional Convention

Although authorized by the Congress of the Confederation, the Constitutional Convention of 1787 was nevertheless cloaked with secrecy and confidentiality. The official papers of the Convention sat in the Department of State, untouched, until 1818. Yet in retrospect, the gathering reveals both the men and the issues they faced during the founding era. Through analysis of both the Philadelphia debates and the various ratification conventions, we realize the concerns and needs of a developing nation.

Men of means and education pursued a limited, federal government capable of providing political and economic stability in a land of diverse sectional interests. The fight for freedom had been experiential; much of the struggle for structure and unity would be theoretical. The doctrines of scholars would meet with the practical necessities of an emerging nation, resulting in a balanced blend of pragmatism and principle, the Constitution of the United States of America.

However, one of the most controversial issues, State’s representation, could have nullified the entire process. Tempers flared and interests clashed as the delegates sought their respective goals. It was within this quagmire of divisiveness that the elder statesman, Benjamin Franklin, offered his famous appeal for harmony and conciliation, an appeal for God’s intervention.

His solicitation seems almost out of character with our current understanding of the man. Wasn’t he a deist, believing in the clockmaker God who stepped back to watch the hands of time move toward eternity? Could God govern in the affairs of men, or nations, from such a distance? Perhaps Franklin’s appeal for prayer was out of despair and desperation; perhaps he was senile as some suggest; or perhaps we have misunderstood Franklin’s deism, misreading the man in the coonskin cap.

William Steele’s Account

Confusion still surrounds Franklin’s efforts, however. The primary source of this confusion appears to be a letter from William Steele to his son, Jonathan. Written in September 1825, the letter contained William’s recollection of a conversation with General Jonathan Dayton. (Dayton was a member of the Constitutional Convention and afterwards Speaker of the House of Representatives). This account also found its way into at least one national periodical, the National Intelligencer, and other sources as well. As Steele tells it, Dayton offered this account of Franklin’s words:

We have arrived, Mr. President . . . at a very momentous and interesting crisis in our deliberations. Hitherto our views have been as harmonious, and our progress as great as could reasonably have been expected. But now an unlooked for and formidable obstacle is thrown in our way, which threatens to arrest our course, and, if not skillfully removed, to render all our fond hopes of a constitution abortive.

It is, however, to be feared that the members of this Convention are not in a temper, at this moment, to approach the subject in which we differ, in this spirit. I would, therefore, propose, Mr. President, that, without proceeding further in this business at this time, the Convention shall adjourn for three days, in order to let the present ferment pass off, and to afford time for a more full, free, and dispassionate investigation of the subject; and I would earnestly recommend to the members of this Convention, that they spend the time of this recess, not in associating with their own party, and devising new arguments to fortify themselves in their old opinions, but that they mix with members of opposite sentiments, lend a patient ear to their reasonings, and candidly allow them all the weight to which they may be entitled; and when we assemble again, I hope it will be with a determination to form a constitution, if not such an one as we can individually, and in all respects, approve, yet the best, which, under existing circumstances, can be obtained.

(Here the countenance of Washington brightened, and a cheering ray seemed to break in upon the gloom which had recently covered our political horizon.) The doctor continued:

Before I sit down, Mr. President, I will suggest another matter; and I am really surprised that it has not been proposed by some other member at an earlier period of our deliberations. I will suggest, Mr. President, that propriety of nominating and appointing, before we separate, a chaplain to this Convention, whose duty it shall be uniformly to assemble with us, and introduce the business of each day by and address to the Creator of the universe, and the Governor of all nations, beseeching Him to preside in our council, enlighten our minds with a portion of heavenly wisdom, influence our hearts with a love of truth and justice, and crown our labors with complete and abundant success!

The doctor sat down, and never did I [General Dayton] behold a countenance at once so dignified and delighted as was that of Washington, at the close of the address! Nor were the members of the Convention, generally less affected. The words of the venerable Franklin fell upon our ears with a weight and authority, even greater than we may suppose an oracle to have had in a Roman Senate! A silent admiration superseded, for a moment, the expression of that assent and approbation which was strongly marked on almost every countenance.

The Recess

According to Steele, Dayton then recalled Alexander Hamilton’s protest and sarcastic refusal to accept “foreign aid.” And then he continued:

Washington fixed his eye upon the speaker [Hamilton], with a mixture of surprise and indignation, while he uttered this impertinent and impious speech, and then looked around to ascertain in what manner it affected others. They did not leave him a moment to doubt; no one deigned to reply, or take the smallest notice of the speaker, but the motion for appointing a chaplain was instantly seconded and carried; whether under the silent disapprobation of Mr. H___, or his solitary negative, I do not recollect. The motion for an adjournment was then put and carried unanimously, and the Convention adjourned accordingly.

The three days of recess were spent in the manner advised by Doctor Franklin. The opposite parties mixed with each other, and a free and frank interchange of sentiments took place. On the fourth day we assembled again, and if great additional light had not been thrown on the subject, every unfriendly feeling had been expelled; and a spirit of conciliation had been cultivated, which promised, at least, a calm and dispassionate reconsideration of the subject [state’s representation].

William Steele closed the letter confident he had “faithfully stated the facts” motivated by a desire to “perpetuate the facts.” From this source, and others, one might easily draw the conclusion that Franklin’s efforts brought a harmonious reconciliation to the Convention.

James Madison’s Letter

James Madison, however, in a letter to Jared Sparks on April 8, 1831, referred to this account as “erroneously given, with every semblance of authenticity.” And then in another letter to Thomas S. Grimke (January 6, 1834), Madison went further in his clarification concerning the “proposition of Doctor Franklin in favor of a religious service in the Federal Convention.” He said:

The proposition was received and treated with the respect due to it; but the lapse of time which had preceded, with consternations growing out of it, had the effect of limiting what was done, to a reference of the proposition to a highly respectable Committee.

He then continued:

That the communication [Steele’s account of Dayton’s testimony] was erroneous is certain; whether from misapprehension or misrecollection, uncertain.

Journal of the Constitutional Convention

Madison’s Journal originally contained a summary of Franklin’s words. However, in a later revision, he inserted the speech as written in Franklin’s own handwriting. It is the authoritative source concerning the Convention.

Mr. President

The small progress we have made after 4 or five weeks close attendance & continual reasonings with each other,”our different sentiments on almost every question, several of the last producing as many noes and ays, is methinks a melancholy proof of the imperfection of the Human Understanding. We indeed seem to feel our own want of political wisdom, some we have been running about in search of it. We have gone back to ancient history for models of Government, and examined the different forms of those Republics which having been formed with the seeds of their own dissolution now no longer exist. And we have viewed Modern States all round Europe, but find none of their Constitutions suitable to our circumstances.

In this situation of this Assembly, groping as it were in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, Sir, that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? In the beginning of the Contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the divine protection. ”Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a Superintending providence in our favor. To that kind providence we owe this happy opportunity of consulting in peace on the means of establishing our future national felicity. And have we now forgotten that powerful friend? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth- that God governs in the affairs of men. And if a sparrow cannot fall to the ground without his notice, is it probable that an empire can rise without his aid? We have been assured, Sir, in the sacred writings, that “except the Lord build the House they labour in vain that build it.” I firmly believe this; and I also believe that without his concurring aid we shall succeed in this political building no better than the Builders of Babel: We shall be divided by our little partial local interests; our projects will be confounded, and we ourselves shall become a reproach and byword down to future ages. And what is worse, mankind may hereafter from this unfortunate instance, despair of establishing Governments be Human Wisdom and leave it to chance, war and conquest.

I therefore beg leave to move, that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the Clergy of the City be requested to officiate in that service.

Mr. Sherman (from Connecticut) seconded the motion.

Mr. Hamilton and several others expressed their apprehensions that however proper such a resolution might have been at the beginning of the convention, it might at this late day, 1, bring on it some disagreeable animadversions [criticisms], and 2, lead the public to believe that the embarrassments and dissensions within the Convention, had suggested this measure. It was answered by [Dr. Franklin], Mr. Sherman and others, that the past omission of a duty could not justify a further omission, that the rejection of such a proposition would expose the Convention to more unpleasant animadversions than the adoption of it: and that the alarm out of doors that might be excited for the state of things within, would at least be as likely to good as ill.

Mr. Williamson, observed that the true cause of the omission could not be mistaken. The Convention had no funds.

Mr. Randolph proposed in order to give a favorable aspect to the measure, that a sermon be preached at the request of the convention on the 4th of July, the anniversary of Independence; and thenceforward prayers be used in the Convention every morning. Dr. Franklin seconded this motion. After several unsuccessful attempts for silently postponing the matter by adjourning was at length carried, without any vote on the motion.

Franklin’s Account

But the final word in this discussion comes from Franklin’s own pen. In John Bigelow’s, The Works of Benjamin Franklin, a footnote (pg. 378) referring to Franklin’s speech states:

To the original draft of this speech there is the following note appended in the handwriting of Dr. Franklin: “The convention, except three or four persons, thought prayer unnecessary.” [This same notation is given as a footnote on page 452 of Max Farrand’s Records of the Federal Convention.]

Bigelow continues by saying “the time which had elapsed without prayers in the convention, sufficiently explains the failures of Franklin’s motions.”

Analysis of the Accounts

The response to Franklin’s motion should not be viewed as an atheistic or deistic expression from the delegates. In their view, prayer was an official ceremony. It required ordained clergy to “officiate,” (as Franklin noted) and the funds to pay them (as Williamson observed). It was not as simple as asking “Brother George” to ask God’s blessings on their deliberations. This was not the general approach to religion during this time in history. Orthodox formality was the preferable style and manner, at least in official settings. For example, when Rev. Duche offered the first prayer in the Continental Congress, he appeared “with his clerk and in his pontificals, and read several prayers in the established form.” Granted, he also unexpectedly “struck out into an extemporary prayer,” but the point is made: religious formality was the order of the day.

Those orders were followed a few days later at the Reformed Calvinist Lutheran Church. In response to Franklin’s appeal, Virginia’s Mr. Randolph offered a counter proposal. He recommended that a “sermon be preached at the request of the convention on the 4th of July, the anniversary of Independence, & thence forward prayers be used in ye Convention every morning.” One report has Washington leading most of the Convention delegates to the church, where James Campbell preached a sermon trusting in the wisdom of the delegates to establish a “free and vigorous government.”

As it turns out, after the Convention, and nine days after the first Constitutional Congress convened with a quorum (April 9, 1789), they implemented Franklin’s recommendation. Two chaplains of different denominations were appointed, one to the House and one to the Senate, with a salary of $500 each. This practice continues today, posing no threat to the First Amendment. How could it? The men who authorized the chaplains wrote the Amendment.

Conclusion

The real strength of Franklin’s motion, from the conservative viewpoint, is as an example of his supposed “deism,” which is a far cry from what some would make it out to be. Franklin obviously felt that God governed in the affairs of men, not exactly the general understanding of today’s deism. But many people attempt to anachronously impose today’s definition upon Franklin, Jefferson, and others, implying they had nothing whatsoever to do with religion. This is usually done to support a broad, separationist approach to religion and government, which is inconsistent with the words and deeds of those who created America’s political system.

Franklin, as well as all of the Framers of the Constitution, realized the value of religion in society. And they realized the value of prayer in the weightier matters of politics. As it turns out, Dr. Franklin was not senile at all; he was simply asking for divine assistance in what proved to be the formation of our American system. Perhaps there were no “official” prayers during the Convention, but denying that the delegates wanted God’s blessing and direction, now that would be senility.

Summary

  • An 1825 letter gave an erroneous account of Franklin’s appeal.
  • Various periodicals circulated the story, assuming it to be correct.
  • Numerous others have presented the inaccurate details.
  • Madison’s 1831 letter called the account erroneous.
  • Madison’s 1834 letter clarified:

The proposition was received and treated with the respect due to it; but the lapse of time which had preceded, with consternations growing out of it, had the effect of limiting what was done, to a reference of the proposition to a highly respectable Committee.

  • Franklin drafted his appeal, and Madison included the written speech in his revised Journal.
  • Franklin offers the final say on the matter:

The convention, except three or four persons, thought prayer unnecessary.

  • However, Virginia’s Mr. Randolph offered a counter proposal: a July Fourth Sermon at the Convention’s request, followed by morning prayers. Washington led most of the delegates to hear the sermon and enjoy the festivities.
  • Although they did not bring in Chaplains, the first Congress instituted a Chaplaincy program that exists to this day.