Chapter 1: The First Amendment – A Grammatico-Historical Analysis
The Creator In The Classroom
From Everson to Edwards, A Legacy of Lunacy
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and to petition the government for a redress of grievances.”
As we examine the First Amendment, we shall limit our discussion to the portion of the first amendment up through the free exercise clause. If we were to diagram the sentence it would appear something like this:
Congress shall make law
respecting an establishment
prohibiting the exercise
(With apologies to the reader, the lines depicting a diagramed sentence cannot be added in HTML)
The Grammar of the Main Clause
Although court cases, controversies and scholarly journal articles abound, the First Amendment seems to become increasingly obscure with each stroke of the pen. One notes that the subject of the sentence is “Congress.” The predicate is “shall make.” The direct object is “law.” The direct object is modified by the adjective of privation, “no,” and by parallel participial phrases also acting adjectivally. In its simplest form then, the First Amendment forbids the Congress of the United States Congress from making certain kinds of laws. That is all it does. The specific laws which are prohibited are disclosed by the two participial phrases modifying the direct object, “laws.” Accordingly, congress may not make laws respecting an establishment of religion, and it may not make laws prohibiting the free exercise of religion.
It is often rumored that the church in the twelfth century was embroiled in a debate of how many angels could dance on the head of a pin. It is not difficult to imagine how it might have begun. The debate had originally been between Augustine (who believed angels to possess a corporeal body) and Dionysius and Areopagile (who believed angels to be incorporeal or spirit).[ref]Vol. 1, p. 285, The Encyclopedia of Religion, MacMillan Publishers, NY. 1987[/ref] There was biblical evidence for the corporeal, and the incorporeal. (Hebrews 1:7). Popular myth has it that this controversy extended for centuries, into the medieval or “scholastic” period. At some point, perhaps someone tried to quantify the debate of the corporeal (or incorporeal) nature of angels in terms of how many angels could dance on the head of the pin. At this point, the debate sank into an advanced state of myopia. The train had jumped the track, never to return.
Whether this legendary dispute ever actually occurred has been questioned by some historians.[ref]Some scholars maintain that the entire story is a myth that never actually was such a controversy in the medieval period e.g. F.C. Copleston, A History of Medieval Philosophy, Harper and Row, NY, 1972.[/ref] But the story is retold with metronomic regularity, and whether fact or fiction, well illustrates a point. All people, and particular academicians, are graced with myopia, and the uncanny ability to examine a sub-topic until the original question it was meant to illuminate has all but disappeared.. This process of myopic fixation is abundantly manifest today in controversies surrounding the First Amendment. Modern scholarship, like its academic precursors of the twelfth century, has become so caught up in a side-show of two adjectival clauses modifying the direct object that they have utterly forgotten the words of the First Amendment. Modern First Amendment scholarship has discarded the subject, the verb, and the direct object of the sentence. All that remains is a myopic analysis of the two adjectival phrases modifying the direct object. In their advanced state of myopia, these scholars would have us believe that these bare adjectival phrases commonly known as the “establishment clause” and the “free exercise clause” somehow convey propositional demands or prohibitions apart from a subject, verb, or direct object. They cannot. Meaningful thought requires sentences. Stripped of the subject, the verb and the direct object, participial adjectival phrases express no coherent thought whatsoever. It is as if the elite academicians of the day have revisited the controversy of how many angels can dance on the head of a pin.
To demonstrate the truth of this allegation, one need only survey the scholarly journal articles, hornbooks and other extant literature. This author was unable to find a single article seriously integrating these participial adjectival phrases into the sentence proper of the First Amendment. Nowak and Rotunda’s Hornbook on Constitutional Law is representative of the extant literature. It begins with a discussion of the establishment clause and the free exercise clause. Not a single sentence was found to be devoted to the actual sentence.[ref]Nowak, John E. and Rotunda, Ronald D., Constitutional Law Hornbook Series, West Publishing, St. Paul Minn. 1991. p. 1157[/ref]
Both the academy, and the practitioners of law have been bamboozled into focusing on two participial phrases which adjectivally modify the direct object at the expense of the sentence itself. This however does not make the debate a “scholarly” one any more than a debate of how many angels could dance on the head of a pin becomes a “scholarly” question simply because elite academicians participate in the debate. And these are the serious articles on the First Amendment. Other legal scholars are even further adrift–to the point that they minimize the significance of the text at all. See. e.g., Jesse Choper, Securing Religious Liberty, (The University of Chicago Press, 1985), pp. 1-6. Therefore, any serious discussion of the First Amendment must begin by addressing this deficiency in contemporary scholarship.
As we examine the debate on the floor of the Continental Congress at the time of the passage of the first amendment, we note a significant trend. Though the amendment was reworded many times and sent back and forth, there was one portion of the amendment that stayed remarkably constant. Consider the various revisions of the First Amendment that went through the house and senate:
CONGRESS SHALL MAKE NO LAW establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.
CONGRESS SHALL MAKE NO LAW establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.
CONGRESS SHALL NOT MAKE ANY LAW infringing the rights of conscience, or establishing any Religious Sect or Society.
CONGRESS SHALL MAKE NO LAW establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.
CONGRESS SHALL MAKE NO LAW establishing religion, or prohibiting the free exercise thereof.
CONGRESS SHALL MAKE NO LAW establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.
CONGRESS SHALL MAKE NO LAW respecting an establishment of religion, or prohibiting the free exercise thereof.[ref]Laycock, Douglas “Nonpreferential” Aid to Religion: A False Claim About Original Intent, 27 Wm. & Mary L. Rev. 875. Capitalization added for emphasis.[/ref]
All seven drafts had one distinct feature in common. They began with the words “Congress shall make no law,” save one draft which began with the equivalent “Congress shall not make any law.” The only matter in controversy was over the exact nature of the laws that Congress would be prohibited from making is reflected by the various adjectival phrases offered as modifying the word “laws”. For example, does the term “religion” mean the same thing as “Religious Sect or Society”, or are these terms in some way distinct? This is a legitimate question to be sure. But before contemplating what we don’t know, it would be instructive to firmly establish what we know for certain. And this much is known for certain: in every draft proposed by the framers of the Bill of Rights, they uniformly and consistently intended for the first amendment to perform one and only one function. In every case and without exception, the First Amendment was drafted and contemplated as an instrument that would prohibit the United States Congress from passing certain kinds of laws. It places no burden on the executive or judicial branches of government. Judges, school teachers, librarians, fireman or municipal garbage collectors, employees of the judicial and executive branches of government, were never considered “congressman making laws” under even the most unlikely or convoluted interpretation of the First Amendment for roughly one hundred and fifty years following its ratification.
The First Amendment and The States
The question naturally arises as to whether a state can make laws respecting an establishment of religion, or prohibiting the free exercise thereof. As originally written, the First Amendment only prohibited the United States congress from making such laws. It placed no prohibitions on state legislatures. This can be readily seen in that many states did in fact have laws addressing religious questions, even after the passage of the First Amendment. For example, the constitution of Delaware held:
Article 22. Every person, who shall be chosen a member of either house, or appointed to any office or place of trust. . . shall. . . make and subscribe the following declaration, to wit: I, ___________, do profess faith in God the Father, and in Jesus Christ, His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.[ref]Church of the Holy Trinity v. U.S.; 143 U.S. 457, 468-70 (1892).[/ref]
Similarly, the Pennsylvania constitution stated:
Frame of Government, Section 10. And each member [of the legislature] before he takes his seat, shall make and subscribe the following declaration, viz.: I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked, and I do acknowledge the scriptures of the Old and New Testament to be given by divine inspiration.[ref]The Constitutions of the Several Independent States of America, Published by Order of Congress, Boston, Norman & Bowen, 1785, p. 81.[/ref]
Had the signatories of the First Amendment thought that they were undermining these states rights, the First Amendment would surely never have been ratified.