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Vail Valley Voices: About that Christian nation

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, uses letters in response to previous commentaries as a foil to help explain the place of religion in the U.S. Constitution. This is part 1. “You are entitled to your own opinions-but not your own facts.” (Author unknown)Jim Taylor, of Eagle, wrote two letters, the first was in response to part 4 of my prior commentary, which was titled “Founders weren’t Christian.” Please note that the Vail Daily chose the titles for each part, about which I had no problem. I found the titles to be rather engaging, plus they may have created more interest in the articles. Had Mr. Taylor read part 4 with greater care, he should have observed that I made no such statement nor did I discuss the religion of any of the signers of the Declaration or any persons in the first Congress. With respect to a few of the signers of the Constitution and Jefferson who was in France at the time, I did identify the following as deists: Jefferson, Washington, Madison, Monroe, J.Q. Adams, Jackson and John Adams as a Unitarian. I should have included Hamilton and Paine as deists also. Further, I never made a single statement that any of these men nor anyone else, did or did not believe in God. In part 1, I did make the following statement, which I stand by and nothing in either of Mr. Taylor’s letters proves me to be factually, historically or legally incorrect:”The Constitution is a godless secular document. And, this fact was not an oversight or mistake made by the participants at the Constitutional Convention nor was the total absence of any religious references in the final draft (save Article VI, Clause 3: “… and no religious test shall ever be required as a qualification to any office or public trust under the United States.”) submitted to the convention members by its author, Gouverneur Morris, an oversight or mistake.” This fact was common knowledge and accepted as such pretty much by anyone that read it. Whether everyone agreed with the absence of homage or references to God, Christianity or Jesus was and is irrelevant, as the Constitution was ratified as written, period. A few objected during the negotiations of the final document but their objections did not appear in the final document. More objected during the colonies’ ratification processes. But again, the Constitution was not changed and was ratified in its present form. This seems to be a absolute fact that the religious right of today cannot and will not accept, which is why we now have a large group of historical revisionists who have chosen to ignore the actual history and make up their own history not based on fact, but based on distortion and fabrication. This seems to be much more effective than trying to change the Constitution through the Amendment process. “Outraged Protestants attacked what they saw correctly as a godless Constitution. The ‘no religious test’ clause was perceived by many to be the gravest defect of the Constitution. … In New Hampshire the fear was of ‘a papist, a Mohomatan, a deist, yea an atheist at the helm of government.’ … Major Thomas Lusk, a delegate in Massachusetts, denounced Article 6 and shuddered ‘at the idea that Roman Catholics, Papists and pagans might be introduced into office, and that Popery and the Inquisition might be established in America.” (“The Godless Constitution” PP.32-33) Others expressed similar fears that Quakers, Negroes, beggars, or Jews, etc., would control the government, if the Constitution was not a “proper Christian” document, which at the time meant Protestant only. In spite of these objections and efforts to change the Constitution, it was ratified in its present state. So I say to you revisionists, accept it! Other than the fact that Mr. Taylor is incorrect about his number of deists, his statistics and his references to the state constitutions (first letter) and his cases cited in his second letter (except the Reynolds case) are irrelevant to the issues he raised: Are we a Christian nation and was the Constitution based upon “Christian principles.” I will discuss his reference to Article 1, Sec. 7, Para. 2, re: “Sundays excepted” briefly now, and later in a different context. Mr. Taylor refers to an 1853 Senate Judiciary Committee report which commented on the “Sundays excepted” provision about which he more or less takes a quote from P.111 of David Barton’s book “The Myth of Separation.” I have quoted this exactly as Barton wrote it. The last two sentences are Mr. Barton’s interpretation; they do not appear in the committee commentary. I have my doubts that any of the alleged Barton quote appears in the committee commentary as he quoted. “In the law, Sunday is a ‘dies non’ … The executive departments, the public establishments, are all closed on Sundays; on that day neither House of Congress sits.” “Here is a recognition by law, and by universal usage, not only of a Sabbath, but of the Christian Sabbath, in exclusion of the Jewish or Mohammedan Sabbath. …The recognition of the Christian Sabbath (by the Constitution) is complete and perfect.”Committee reports are not law. They are merely commentary. They are both wrong about the meaning of this article with respect to its meaning in the Constitution. Barton is also wrong, as he is most of the time. Please note that in Barton’s Chapter 5, fns. 99 & 102 (P.303), this last sentence came from a book by B.F. Morris: “The Christian Life and Character of the Civil Institutions of the United States.” One has no idea whatsoever of the context in which Morris made this statement.None of this commentary was a part of the committee report as one might believe after seeing in it Barton’s book or in Taylor’s letter. Also please note that Barton added the words in parentheses (“by the Constitution”). I am only addressing this minutia in such detail because these types of distortions and fabrications are prevalent in most of the so called “history” set forth in revisionist writings such as Barton’s writings from which substantially all of Mr. Taylor’s second letter was taken. Mr. Taylor first letter contains quotes or references to 10 state constitutions which contained some form of recognition of Christianity. Mr. Taylor failed to mention that even after the U.S. Constitution was ratified, 11 of the 13 states constitutions contained religious tests for public offices despite their approval of Article VI, clause 3 (no religious test for office, etc.). Only Virginia and New York did not. Today, I believe that no state contains any such requirement, thus making this issue irrelevant. In his second letter, Mr. Taylor refers to and/or quotes from six cases. These cases took place between 1799 and 1892, all long before the application to the states of the First Amendment religious clauses via the 14th Amendment. Four of the six cases concern state statutes only; five of the six make no mention whatsoever of the U.S. Constitution or the First Amendment. These five cases are also irrelevant. The only case that is relevant and that does apply is the Reynolds case. But Mr. Taylor and Barton have completely misread, misinterpreted, misquoted and distorted the facts, law and holding of this case, as I will explain later. This can also be seen by the fact that the Reynolds case is cited in practically every case that supports and upholds the principle of the “separation church and state” and that we are not a “Christian nation.” Mr. Taylor, as did his mentor, took selected portions from the cases cited in Mr. Barton’s book to advance their specious and fallacious claims. Barton uses dots when he is connecting sentences together from scattered paragraphs and pages indicating that something is missing. He and therefore Mr. Taylor left out numerous sentences and/or entire paragraphs or even pages, leaving the impression that these quotes are somehow connected in thought and context. Barton (and Taylor) also add language that did not exist in the original writings, thus distorting both the context and the meaning to advance their claims. In the Holy Trinity Church v. U.S. case, Mr. Taylor’s four quotes come from different paragraphs and from three different pages; three of the four quotes are not the complete statement. I will start with the Holy Trinity Church v. U.S. case (1892), because Barton states at P.47 of his book “This case provides a good starting point, for it cites several of the earlier cases.” From an analysis standpoint, the Holy Trinity Church case is divided into two parts. The analysis-law-decision and Justice Brewer’s extensive religious editorializing, which is not the law but rather his personal opinion. In legal terms, this is called “dicta.” Dicta has been defined numerous times, but all of the definitions are essentially the same. “Dicta is the part of a judicial opinion which is a judge’s editorializing and is not related to the specifics of the case at bar; extraneous material ….” And: “They are a judge’s expression of a point other than the precise issue involved in determining a case. Dicta are not considered to be binding precedent.””In the Supreme Court’s 1892 Holy Trinity Church vs. United States, Justice David Brewer wrote that ‘this is a Christian nation.’ Many Christians use this as evidence. However, Brewer wrote this in dicta, as a personal opinion only, and does not serve as a legal pronouncement. Later Brewer felt obliged to explain himself: “But in what sense can (the United States) be called a Christian nation? Not in the sense that Christianity is the established religion or the people are compelled in any manner to support it. On the contrary, the Constitution specifically provides that ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ Neither is it Christian in the sense that all its citizens are either in fact or in name Christians. On the contrary, all religions have free scope within its borders. Numbers of our people profess other religions, and many reject all.” (From “Early American Review”, Summer 1997, by Jim Walker.)


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