[Congressional Record Volume 145, Number 165 (Friday, November 19, 1999)]
[Extensions of Remarks]
[Pages E2506-E2508]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


             RESPONSE TO MR. EDWARDS' REMARKS ON H.R. 3073

                                 ______
                                 

                             HON. TOM DeLAY

                                of texas

                    in the house of representatives

                      Thursday, November 18, 1999

  Mr. DeLAY. Mr. Speaker, during our charitable choice debates on H.R. 
3073, The Father's Count Act of 1999, I listened with interest to Mr. 
Edwards express his reasons why he believes the Constitution and the 
Founding Fathers would have objected to this Body providing opportunity 
for all people--including those in the community of faith--to 
participate equally in government opportunities and services. Mr. 
Edwards set forth several historical inaccuracies and argued that they 
should be ``precedents'' to be followed by this Body. Nothing is more 
certain than that bad history leads to bad policy, and this is 
certainly true in the case of both the policy and the history set forth 
by Mr. Edwards.
  First of all, Mr. Edwards cited James Madison and Thomas Jefferson in 
support of his church-hostile proposals, and then he argued that these 
two had framed the Establishment Clause in the Bill of Rights. As 
historical records clearly prove, Mr. Edwards was wrong.
  Consider first the role of Thomas Jefferson. During the time that 
both the Constitution and the Bill of Rights and its religion clauses 
were written and approved, Thomas Jefferson was overseas. He did not 
arrive in America until after the completion of these documents.
  In fact, when a biography was written about President Jefferson, 
Jefferson sent a note to the author requesting that he change or delete 
one errant claim. Jefferson explained:

       One passage in the paper you enclosed me must be corrected. 
     It is the following, `And all say it was yourself more than 
     any other individual, that planned and established it,' i.e, 
     the Constitution. I was in Europe when the Constitution was 
     planned, and never saw it till after it was established.

  Jefferson properly disqualified himself as a constitutional authority 
since he was not in America when the Constitution was framed and never 
saw it until after it was finished. Furthermore, according to Mr. 
Jefferson, his total input on the Bill of Rights amounted to one 
letter. As Jefferson explained:

       I wrote [a single letter] strongly urging the want of 
     provision of the freedom of religion, freedom of the press, 
     trial by jury, habeas corpus, the substitution of militia for 
     a standing army, and an express reservation to the States of 
     all rights not specifically granted to the Union. . . . This 
     is all the hand I had in what related to the Constitution.

  Since Jefferson was neither one of the 55 individuals at the 
Convention who drafted the Constitution nor one of the 90 members of 
the First Congress who framed the Bill of Rights, how, then, can he be 
considered as an authoritative voice on either document, especially in 
preference to the 145 actual participants who did write that document? 
Evidently, Mr. Edwards chooses to ignore these important historical 
facts and he wrongly elevates Mr. Jefferson into a position which 
Jefferson himself properly refused to accept.
  Madison, too, similarly disqualified himself--although for different 
reasons. As he explained to a supporter:

       You give me a credit to which I have no claim in calling me 
     ``the writer of the Constitution of the United States.'' This 
     was not, like the fabled Goddess of Wisdom, the offspring of 
     a single brain. It ought to be regarded as the work of many 
     heads and many hands.

  Interestingly, Mr. Madison--while undeniable an important influence 
during the Constitutional Convention--was often out of step with the 
majority of the other delegates. This is proven by the fact that 40 of 
Mr. Madison's 71 proposals offered during the Convention were rejected 
by the other delegates. Additionally, the Constitution that Mr. Madison 
initially sought was far removed from the final document.
  And what was Mr. Madison's influence on the Bill of Rights and the 
religion clauses of the First Amendment? Significantly, when George 
Mason proposed at the Constitutional Convention that a Bill of Rights 
be added to the Constitution, it was opposed by Mr. Madison (and on 
this occasion, Mr. Madison's position prevailed). When the Constitution 
arrived in Virginia for ratification, the State proposed the addition 
of a Bill of Rights and Mr. Madison again opposed the motion. This 
time, however, he lost.
  Virginia insisted--like many other States--that a Bill of Rights be 
added; and the Virginia Convention--like many other State conventions--
proposed its own version for a Bill of Rights. The religious 
protections sent from Virginia to the United States Congress were 
written not by James Madison but by George Mason, Patrick Henry, and 
John Randolph.
  In Congress, Madison introduced his own proposal for a Bill of 
Rights, but very little of his original language on the religion 
clauses made it into the final wording. In fact, the records of 
Congress make clear that Fisher Ames and Elbridge Gerry of 
Massachusetts, John Vining of Delaware, Daniel Carroll and Charles 
Carroll of Maryland, Benjamin Huntington, Roger Sherman, and Oliver 
Ellsworth of Connecticut, William Paterson of New Jersey, and many 
others exerted a significant influence on the wording of the religion 
clauses.
  Why, then, did Mr. Edwards cite Mr. Madison--whose version was not 
accepted--and fail to cite those who did produce the final wording of 
the First Amendment? And furthermore, why did Mr. Edwards cite Thomas 
Jefferson instead of those who actually wrote the Constitution and the 
Bill of Rights? And why did Mr. Edwards fail to cite individuals like

[[Page E2507]]

George Washington, Alexander Hamilton, Benjamin Franklin, Roger 
Sherman, James Wilson, and so many other important men who drafted 
those documents? Very simply, it is because none of them made any 
statements which Mr. Edwards could possibly twist and misconstrue into 
a support for his position.
  Mr. Edwards does a disservice both to this Body and to the nation by 
singling out two Founders with whom he agrees and ignoring 144 others 
with whom he disagrees! This is not to say, however, that Mr. Madison 
and Mr. Jefferson were not significant and important Founding Fathers--
they clearly were. However, they were not the only two voices in 
America on religious issues--there were 144 other Founders who had 
direct impact on the Constitution and its religion clauses.
  I was further intrigued by another of Mr. Edwards comments. He 
declared--and I quote:

       I think it is time for this House to take a stand in saying 
     that we are not going to compromise the meaning of the 
     Establishment Clause--the first 10 words of the First 
     Amendment of the Bill of Rights--not out of disrespect to 
     religion but out of total reverence to religion.

The ten words alluded to by Mr. Edwards state--and I quote: ``Congress 
shall make no law respecting an establishment of religion or 
prohibiting the free-exercise thereof.''
  Mr. Edwards believes that to allow charitable-choice provisions--that 
to allow people of faith to participate equally with those of non-faith 
in government programs and services--would violate the First Amendment! 
Mr. Edwards evidently believes that the First Amendment requires that 
the government discriminate against faith. He clearly disagrees with 
the Supreme Court decision in Zorach v. Clauson which declared:

       When the State encourages religious instruction or 
     cooperates with religious authorities . . . it follows the 
     best of our traditions. For it then respects the religious 
     nature of our people and accommodates the public service to 
     their spiritual needs. To hold that it may not would be to 
     find in the Constitution a requirement that the government 
     show a callous indifference to religious groups. That would 
     be preferring those who believe in no religion over those who 
     do believe. . . .  We find no constitutional requirement 
     which makes it necessary for government to be hostile to 
     religion and to throw its weight against efforts to widen the 
     effective scope of religious influence. . . . We cannot read 
     into the Bill of Rights such a philosophy of hostility to 
     religion.

  Mr. Edwards' reading of the Establishment Clause of the First 
Amendment directly contradicts the interpretation of that Clause given 
by the Founding Fathers (including Mr. Edwards' two heroes, Mr. Madison 
and Mr. Jefferson). Furthermore, Mr. Edwards' reading is opposite of 
that rendered by legal experts and governmental bodies for a century-
and-a-half following the adoption of the Constitution's religion 
clauses.
  For example, in 1854, our own House Judiciary Committee conducted an 
investigation on what constituted ``an establishment of religion'' 
under the First Amendment. After a year of hearings and investigations, 
the House Judiciary Committee emphatically reported:

       What is `an establishment of religion'? It must have a 
     creed defining what a man must believe; it must have rites 
     and ordinances which believers must observe; it must have 
     ministers of defined qualifications to teach the doctrines 
     and administer the rites; it must have tests for the 
     submissive and penalties for the nonconformist. There never 
     was an established religion without all these.

In 1853, the Senate Judiciary Committee similarly reported:

       The [First Amendment] speaks of ``an establishment of 
     religion.'' What is meant by that expression? It refer[s] 
     without doubt to. . . . [1] endowment [of a religious group] 
     at the public expense in exclusion of or in preference to any 
     other, [2] giving to its members exclusive political rights, 
     and [3] compelling the attendance of those who rejected its 
     communion upon its worship or religious observances. These 
     three particulars constituted that union of church and state 
     of which our ancestors were so justly jealous, and against 
     which they so wisely and carefully provided. . . . They 
     intended by [the First] Amendment to prohibit `an 
     establishment of religion' such as the English church 
     presented, or anything like it. But they had no fear or 
     jealousy of religion itself, nor did they wish to see us an 
     irreligious people . . . they did not intend to spread over 
     all the public authorities and the whole public action of the 
     nation the dead and revolting spectacle of atheistic apathy.

  Further confirmation on what the word ``establishment'' meant in the 
First Amendment is provided by Justice Joseph Story, a legal expert 
appointed to the Supreme Court by President James Madison. Justice 
Story is titled the ``Father of American Jurisprudence,'' and in his 
famous Commentaries on the Constitution of the United States--a work 
which is still cited regularly in this Body--Justice Story explained:


       [A]t the time of the adoption of the Constitution and of 
     [the First]Amendment . . ., the general, if not the 
     universal, sentiment in America was that . . . [a]n attempt 
     to level all religions and to make it a matter of state 
     policy to hold all in utter indifference, would have created 
     universal disapprobation if not universal indignation. . . . 
     the real object of the [First] Amendment was . . . to prevent 
     any national ecclesiastical establishment which should give 
     to an hierarchy the exclusive patronage of the national 
     government.


  The historical sources agree: to have a First Amendment 
``establishment of religion'' there must be a single, national 
ecclesiastical group which has the exclusive support of the federal 
government; there must be a defined creed with specified rites and 
ordinances, and national ministers to teach those creeds; there must be 
exclusive political rights for the members of that religion; and the 
national government must be able to compel attendance and observance of 
those rites and impose penalties for those who do not conform. As the 
House Judiciary Committee properly noted in 1854, ``There never was an 
established religion without all these.''
  Those early legal experts reached their conclusions because of the 
Founders' succinct declarations made during the framing of the 
Constitution's religion clauses. For example, according to the 
Congressional Records, James Madison recommended that the First 
Amendment say: ``The civil rights of none shall be abridged on account 
of religious belief or worship, nor shall any national religion be 
established.''
  Subsequent discussions during the framing of the First Amendment 
confirm this goal of preventing the establishment of a national 
religion. For example, the Congressional Record for August 15, 1789, 
report:

       Mr. [Peter] Sylvester [of New York] . . . feared [the First 
     Amendment] might be thought to have a tendency to abolish 
     religion altogether. . . . [T]he State[s] . . . seemed to 
     entertain an opinion that . . . it enabled [Congress] to . . 
     . establish a national religion. . . . Mr. Madison thought if 
     the word ``national'' was inserted before religion . . . it 
     would point the amendment directly to the object it was 
     intended to prevent.

  The records are clear--the purpose of the First Amendment was to 
prevent the establishment of a national denomination by the federal 
Congress. The First Amendment was never intended to stifle public 
religious expressions, nor was it intended to prevent this Body from 
encouraging religion in general or even in assisting faith 
institutions. Only in recent years has the meaning of the First 
Amendment begun to change at the hands of activists like Mr. Edwards 
who are intolerant of the faith-community.
  In fact, Mr. Edwards' approbation of the many extremist groups 
supporting his position (he specifically lists the ACLU, the Baptist 
Joint Committee, and Americans United for Separation of Church and 
State) simple confirms the religion-hostile position he is advocating.
  Is there any group in America more responsible for the current 
hostility of the courts toward religion than the ACLU? And Mr. Edwards 
has their support!
  It was the ACLU which opposed a legislative bill in Arizona that 
permitted schools to post classic historical documents like George 
Washington's Farewell Address. Why did the ACLU oppose that measure? 
Because many official speeches made by our Founding Fathers contain 
religious references, and the ACLU felt that to expose students to such 
religious references in our history would violate the ``establishment 
clause'' of the First Amendment! And it was the ACLU which opposed the 
legislative effort in California to teach sexual abstinence to 
students. Why? Because the ACLU claimed that to expose children to this 
moral teaching would violate the ``establishment clause''! There are 
scores of other cases which reflect their radical, intolerant, anti-
religious agenda.
  Additionally, the faith-hostile agenda of other groups supporting Mr. 
Edwards (such as Americans United for Separation of Church and State, 
and the Baptist Joint Committee, etc.) is clearly documented through 
the legal action they take in courts and in legislatures. And Mr. 
Edwards is pleased to have their support!
  Another comment by Mr. Edwards which was of interest to me was his 
statement that--and I quote:

       The best way to have religious freedom and respect in 
     America is to build a firewall between government regulations 
     and religion. And that separation, that wall of separation 
     between church and State, has for 200 years worked 
     extraordinarily well.

  I wish that Mr. Edwards really believed his own statement! If he 
really thought there should be no government regulations imposed on the 
church, then he should aggressively pursue repealing the government tax 
regulations imposed on churches--government regulations which limit a 
minister's ability to voice his convictions from the pulpit for fear of 
running afoul of the IRS or some other government body or regulation. 
And, surely, if Mr.

[[Page E2508]]

Edwards wants to see churches free from government regulations, he 
should aggressively pursue exemptions for church bodies from government 
zoning regulations, from government fire regulations, from government 
health regulations, from government hiring regulations, from government 
social-service regulations, and from so many other government 
regulations which have resulted in literally hundreds of lawsuits 
brought by the government against churches.
  Unfortunately, Mr. Edwards' record proves that he does not believe in 
protecting the faith-community from government regulations--evidenced 
by his vote against the Religious Freedom Amendment. That Amendment was 
specifically designed (1) to free the community of faith from 
government intrusion into their religious expressions and (2) to 
protect voluntary citizen expressions of faith--including those of 
students. In opposing that Amendment--an Amendment which would have 
ended the government regulation of religious expression--Mr. Edwards 
amazingly declared--and I quote:


       In my opinion, th[is] Amendment is the worst and most 
     dangerous piece of legislation I have seen in my 15 years in 
     public office.


  Mr. Edwards actually feels that it is ``dangerous'' to end government 
regulation of public expressions of faith and to allow students to 
participate voluntarily in prayer!
  Another problem with Mr. Edwards' ``firewall'' quote is that it 
attaches the phrase ``separation of church and state'' to the 
requirements of the First Amendment. He claims that the ``separation of 
church and state'' phrase accurately reflects the intent of those who 
framed the First Amendment. Again, official records prove Mr. Edwards 
wrong.
  The entire debates surrounding the framing of the First Amendment are 
recorded in the Congressional Records from June 7 to September 25, 
1789. Over those months, ninety Founding Fathers in the first Congress 
debated and produced the First Amendment. And those records make one 
fact exceptionally clear: in months of recorded discussions over the 
First Amendment, not one of the ninety Founding Fathers who framed the 
Constitution's religion clauses ever mentioned the phrase ``separation 
of church and state''! It does seem that if this had been their intent, 
that at least one of them would of said something about it! None did.
  For this reason, legal scholars committed to historical and 
constitutional accuracy rather than an activist judicial political 
agenda have correctly drawn attention to the type of blunder committed 
by Mr. Edwards. In fact, one judge accurately commented: ``[So] much 
has been written in recent years .  .  . to `a wall of separation 
between church and State.' .  .  . that one would almost think at times 
that it is to be found somewhere in our Constitution.'' And Supreme 
Court Justice Potter Stewart similarly observed: ``[T]he metaphor [of] 
the `wall of separation' is a phrase nowhere to be found in the 
Constitution.'' And Chief-Justice William Rehnquist also noted: ``[T]he 
greatest injury of the `wall' notion is its mischievous diversion . . . 
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. . . . It should be frankly and explicitly abandoned.''
  It is indeed striking that in the century-and-a-half following the 
adoption of the Constitution, the ``separation of church and state'' 
rhetoric so heartily embraced by Mr. Edwards was invoked in federal 
courts less than a dozen times--and on those occasions, the phrase was 
interpreted to mean that (1) America would establish no national 
denomination and (2) the federal government would not limit public 
religious expressions or activities. However, in the last 50 years, the 
federal courts have cited the ``separation of church and state'' 
principle in over 3,000 cases in order to allow the federal government 
to regulate public religious bodies and expressions--in direct 
opposition to the original intent of the First Amendment!
  In summary, Mr. Edwards claims that ``separation of church and 
state'' was the goal of the First Amendment. It was not. Mr. Edwards 
also claims that Mr. Jefferson and Mr. Madison would support his view. 
They would not. However, even if they had, they were only two among the 
145 Founders who framed the Constitution and drafted the Bill of 
Rights. And unless Mr. Edwards can show that a majority of those 
framing the Constitution and First Amendment support his reading, then 
the views of two cannot be extrapolated to establish the intent of the 
entire body, especially when the great majority of those Founders--
according to their own writings and legislative acts--opposed what Mr. 
Edwards proposes.
  No Member of this Body should be part of obfuscating the clear, self-
evident wording of the Constutition, or misleading the American public 
by claiming the First Amendment says something it doesn't. We should 
stick with what the First Amendment actually says rather than what 
constitutional and historical revisionists like Mr. Edwards wish that 
it said.

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