The Ratification of the Constitution by David Barton

For 150 years following the ratification of the Constitution, States were considered the highest authority on any dispute involving the issues within the Bill of Rights. Only under unusual circumstances would a case involving those freedoms reach the federal courts. In fact, the Holy Trinity Court noted that federal courts rarely ruled on controversies involving religion. Therefore, since federal courts were less of an authority on these issues, they frequently cited State Supreme Court decisions as their authority as did the Court in Holy Trinity.

Only since the Court’s federalization of the States in the mid-twentieth century have State Supreme Courts been viewed as subordinate to the federal courts. It will be helpful to recall this when reviewing the following cases. Updegraph v. the Commonwealth, 1824 Supreme Court of Pennsylvania. This was the first case cited in Holy Trinity, and the facts of the case were described in the grand jury’s indictment: Abner Updegraph not having the fear of God before his eyes contriving and intending to scandalize and bring into disrepute and vilify the Christian religion and the scriptures of truth in the presence and hearing of several persons did unlawfully, wickedly and pre-meditatively, despitefully and blasphemously say :

“That the Holy Scriptures were a mere fable: that they were a contradiction, and that although they contained a number of good things, yet they contained a great many lies.” To the great dishonor of Almighty God and to the great scandal of the profession of the Christian religion. Updegraph, indicted under the State law against blasphemy, was found guilty by the jury; that verdict was appealed.

Since the central question revolved around the issue of blasphemy, the court needed to establish a legal definition of that word. It therefore turned to the writings of the foremost legal authority of the day: William Blackstone. Blackstone’s Commentaries on the Laws, introduced in 1766, became the law book of the Founding Fathers. 8 In fact, so strong was its influence in America that Thomas Jefferson once quipped that American lawyers used Blackstone’s with the same dedication and reverence that Muslims used the Koran. It was therefore logical that the court should turn to this source to establish the legal definition of “blasphemy”:

Blasphemy against the Almighty is denying His being or Providence or uttering contumelious insulting reproaches on our Savior Christ. It is punished at common law by fine and imprisonment, for Christianity is part of the laws of the land. By the legal definition, Updegraph had clearly violated the law. His attorney, however, argued that his conviction should be overturned for two reasons: Updegraph was a member of a debating association which convened weekly, and what he said had been uttered in the course of an argument on a religious question; that both the State and federal Constitution protected freedom of speech, and that if any State law against blasphemy did exist, the federal Constitution had done away with it; Christianity was no longer part of the law. Undoubtedly, defense arguments would differ little today.

Declaration of Belief by David Barton

No test is required. All men of equal capacity and integrity are equally eligible to offices I do not suppose an infidel, or any such person, will ever be chosen to any office unless the people themselves be of the same opinion. Supreme Court Justice James Iredell nominated to the Court by President Washington similarly explained: But it is objected that the people of America may perhaps choose representatives who have no religion at all, and that pagans and Mahometans may be admitted into offices. But it is never to be supposed that the people of America will trust their dearest rights to persons who have no religion at all, or a religion materially different from their own. Article VI simply reaffirmed the Founders’ belief that any provisos on religion should remain beyond federal jurisdiction. The Court’s initial abrogation of the original purpose of the Constitution’s religious test clause occurred in Torcaso v. Watkins 44 (1961) the Court’s first ever Article VI ruling. In that case, the Court used this federal constitutional provision to strike down Maryland’s 200 year-old State constitutional requirement that a candidate must declare a belief in God to hold office.

This utilization of Article VI obviously resulted in the breaking of new legal ground. As legal authorities observed: Not until 1961 was this “declaration of belief in God” invalidated. The Torcaso ruling reflected two major mistakes by the Court: one in jurisdiction and one in interpretation. The jurisdiction error was that the Article VI prohibition against religious tests applied only to the federal and not to the State governments. The interpretation error was that the Founding Fathers did not consider a requirement to believe in God to be a religious test.

As an example, consider the provisions of the 1796 Tennessee Constitution a document created with the help of Constitution signer William Blount 46: Article VIII, Section II. No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State. Article XI, Section IV. That no religious test shall ever be required as a qualification to any office or public trust under this State. Article VIII first requires a belief in God to hold office; then Article XI prohibits a religious test. Clearly, then, requiring a belief in God was not a religious test in their view. In fact, the Founders believed that any oath or affirmation including that of elected officials to uphold the Constitution presupposed a belief in God.

The Effect of the Coupling by David Barton

Today, the Court divides the religious clauses of the First Amendment into what it terms “The Establishment Clause” “Congress shall make no law respecting an establishment of religion” and “The Free Exercise Clause” “nor prohibiting the free-exercise thereof ”. It is very obvious that no portion of the phrase “separation of church and state” appears in either part of the First Amendment nor in any other part of the Constitution. It is not surprising, therefore, that the recent reliance by the Court on this non constitutional phrase has prompted complaints by many constitutional jurists.

For example, in Baer v. Kolmorgen, Judge Elbert Gallagher complained: Much has been written in recent years to “a wall of separation between Church and State”. It has received so much attention that one would almost think at times that it is to be found somewhere in our Constitution. Supreme Court Justice Potter Stewart similarly observed: I think that the Court’s task, in this as in all areas of constitutional adjudication, is not responsibly aided by the uncritical invocation of metaphors like the “wall of separation” a phrase nowhere to be found in the Constitution.

And Supreme Court Justice William Rehnquist, after describing this phrase as a “misleading metaphor,” then noted: But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The “wall of separation between Church and State” is a metaphor based on bad history a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.Regrettably, the public’s current understanding actually, misunderstanding of the religious provisos of the First Amendment has been shaped primarily by a phrase which does not even appear in the Constitution a phrase almost totally unknown in constitutional jurisprudence for well over a century-and-a-half before the 1947 Everson case.

Yet, while all must truthfully concede that the separation metaphor is not actually found in the Constitution, many today nevertheless argue that the phrase as applied today accurately captures the intent of the Framers that the concept of a complete separation (i.e., an enforced secularization of the public square) was practiced by them during the Founding Era. Is this assertion correct?

Southern Redemption by David Barton

They did not oppose emancipation. They were not “Ku-Klux” . . . They did not scourge, and hang, and shoot, and murder men for opinion’s sake. They did not organize the Louisiana white league or the South Carolina rifle clubs. They did not drench the South with the blood of inoffensive colored men. . . . The piece concluded with a simple question: Can the Democratic Party and all Democrats say as much?

A further indication that the Democrats were well known for their bloody atrocities against blacks is seen in an illustration from Harpers’ Weekly showing the major elements and influences of the Democratic Party. The illustration showed the various banners under which Democrats gathered, and those banners included the Stars and Bars carried by Confederate soldiers; the pro-slavery banner; the Ku Klux Klan banner; the New York Rioters banner; and finally the Democrats’ banner of repudiation. These were the various movements led by Democrats, and Americans in that day knew exactly what Democrats stood for.

By the 1880s, a movement called “Southern Redemption” had begun in earnest. Southern Redemption was a political movement to “redeem” the south from the Reconstruction Acts and civil rights laws passed by Republicans – laws and acts hat southern Democrats believed threatened their version of a southern society. So firmly were southern Democrats opposed to the constitutional amendments and civil rights laws imposed on them during Reconstruction that one southern newspaper declared:

It is safe to say that had the southern people known in 1865 what was in store for them, they would not have laid down their arms – and should not have laid them down.

Southern Redemption was the effort of southern Democrats to restore the South to the racial condition of white supremacy that had existed before the Civil War. The best way for the newly restored Democratic legislatures to “redeem” their State from what had occurred to them following the Civil War was to deprive black Americans of their political rights by the passage of State laws that restricted, removed, or even blatantly violated their civil rights 308 as well as through the prompt repeal of State reconstruction laws that had suppressed Klan violence. Rep. John Roy Lynch – who not only had helped pass the original federal civil rights laws but had also, witnessed their subsequent violation at the State level throughout the democrats congratulating themselves on their victory over African Americans period of Southern Redemption – accurately noted: The opposition to civil rights in the South . . . is confined almost exclusively to States under Democratic control.

The Removal of Federal Troops by David Barton

In 1884, John Roy Lynch became the first black American to preside over a national political convention – the Republican National Convention in Chicago. 296 While Lynch was the first black American to preside over a national political convention, he was not the last: U. S. Senator Edward Brooke presided over the 1968 Republican National Convention, and Rep. J. C. Watts presided over the 2000 Republican National Convention. 298 While three black Americans have presided over National Conventions for Republicans, to date Democrats have never had a black American preside over any of their National Democratic Conventions.

Following the removal of federal troops from the South after the agreement of 1876, federal troops could no longer protect African American rep. john r. lynch was the first African American to preside over a national political convention – the 1884 republican national convention in Chicago voting. Republicans therefore sought different means to preserve the rights of black Americans in the South. For example, they posted handbills reminding southern Democrats first of the federal laws protecting black voting rights and then warning of huge fines for violations.

The presidential election of that year was between Republican James A. Garfield and Northern Democrat Winfield Scott Hancock. Hancock had been a successful Union General during the Civil War, but after the War he was reassigned because of his leniency toward unreconstructed Democrats. It is because Hancock was a Democrat, a handbill not. The reasons given in that piece would today be considered as inflammatory language; at that time, however, the declarations were nothing more than reminders – that is, the facts recorded in that piece were already widely known by the voters of that day:

Why I Will not Vote the Democratic Ticket. I am opposed to the Democratic Party, and I will tell you why. Every State that seceded from the United States was a Democratic State. . . . Every man that shot Union soldiers was a Democrat. . . . Every man that loved slavery better than liberty was a Democrat.

The man that assassinated Abraham Lincoln was a Democrat. Every man that sympathized with the assassin – every man glad that the noblest President ever elected was assassinated – was a Democrat. . . .

Every man that wept over the corpse of slavery was a Democrat. Every man that cursed Lincoln because he issued the Proclamation of Emancipation – the grandest paper since the Declaration of Independence – every one of them was a Democrat. . . .

Soldiers! Every scar you have got on your heroic bodies was given you by a Democrat. Every scar, every arm that is lacking, every limb that is gone, every scar is a souvenir of a Democrat.

That handbill then contrasted the Republicans with the Democrats: 1880 voter handbill The Republicans have done some noble things – things that will be remembered as long as there is history. But there are some things they did not do. They did not use an army to force slavery into Kansas. . . . They were not “Knights of the Golden Circle.”

The Amendments by David Barton

The Klan shot down this white State Senator because he was Republican and was fighting for the rights of blacks in his State. Even republican U.S. Rep. Joseph H. Rainey though Dr. Winsmith was hit seven times in that hail of bullets, he survived the shooting and lived to testify before Congress about the attack made on him by the Klan. In 1868, the Klan in South Carolina issued a push-card about the size of a baseball card. 155 It pictured 63 “Radicals”; they were all Republicans. Of the 63 “Radicals” or Republicans in the South Carolina legislature, 50 were black and 13 white. On the back of the card, all the names of the Republicans were listed; evidently, if the Klan wanted to pay them a night visit – as they had to Senator Winsmith – with the help of this card, they would know exactly for who they were looking.

Although much progress had been made because of the 13th Amendment and the civil rights laws passed in Congress, Democrats in the South still found ways to ignore those laws. Although forced to acknowledge that slaves had become free, they denied former slaves the rights of citizenship in those States, therefore withholding from them the rights accorded to all other citizens in their State. Congress responded with the 14th Amendment a civil rights amendment to the Constitution declaring that former slaves were full citizens of the
State in which they lived and were therefore entitled to all the rights and privileges of any other citizen in that State. KKK card identifying republicans in the South Carolina legislature: 50 blacks and 13 whites when the 14th Amendment came to a vote, 94 percent of the Republicans in Congress voted for the passage of that civil rights Amendment; however, the records of Congress reveal that not one Democrat – either in the House or the Senate – voted for the 14th Amendment! 157 Three years after the Civil War, and Democrats from the North as well as the South were still refusing to recognize any rights of citizenship for black Americans!

Perhaps this lack of support for civil rights is not surprising considering the makeup of the national Democratic Party at that time. A handbill highlighting some of the distinguished notables at the 1868 Democratic National Convention held in New York City on July 4th of that year reveals that Democratic delegates to that Convention included:

Rebel Generals (25), Rebel Colonels (30), Rebel Majors (10), Rebel Captains and other Minor Rebel Officers (20), Rebel Governors (5), Rebel Congressmen (15), and therefore a total of Rebel Members (105). Nearly one-fifth of the members of the Democratic National Convention were leaders who had either militarily fought for or politically led the delegates to the 1868 democratic national convention the 1868 democratic national convention slaveholding nation in the South. The handbill also featured portraits of two prominent Rebel Generals who participated in that Convention.

One was Wade Hampton. Before the war, Hampton had been a Democratic U. S. Senator from South Carolina, but he vacated the Senate to join the new slaveholding nation formed by southern Democrats. In 1876, Hampton ran for the
Democratic governorship of South Carolina; one of his active allies in that election was a group called the “Red Shirts,” 159 which was essentially the Klan dressed in red shirts rather than white hoods. To help win Hampton’s governor’s race, they issued the following guidelines:

Every Democrat must feel honor bound to control the vote of at least one Negro by intimidation, purchase, keeping him away, or as each individual may determine how he may best accomplish it. We must attend every Radical i.e., Republican meeting that we hear of, whether they meet at night or in the daytime. Democrats must go in as large numbers as they can get together – and well-armed. Gen. Wade Hampton how democrats convinced black voters not to vote republican Leading newspapers of the day – such as Harper’s Weekly – included an illustration demonstrating how Democrats controlled votes in those elections. In fact, during a congressional hearing about whether southern blacks voted Democrat, the following exchange occurred:

Q. Were there many colored Democrats there?

A. Very few indeed; some barbers and a few men that worked in towns pretended to be Democrats.

Q. Do you know any colored men who were Democrats from instinct?

A. No sir; only from the instinct of self-preservation.