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Thursday, August 23, 2007

Jefferson violated the Establishment Clause

The biggest reason for the big controversy over the Founders' policies concerning religion is, of course, originalism, the ridiculous principle that the courts' interpretations of the Constitution should be governed by the policies of the Founders or what is thought to be the policies of the Founders. Originalists with agendas concerning the establishment clause have portrayed the Founders as everything from a bunch of bible-pounding holy rolling fundies to a bunch of godless blasphemous atheists.

Among the Founders, Thomas Jefferson is the one who is most closely associated with the establishment clause, even though he was not present at the Constitutional Convention that adopted the clause. It is believed that his letter to the Danbury Baptists coined the term "separation of church and state." Yet the following story of his treaty with the Kaskaskia Indians shows that even Jefferson himself was not simon-pure in his support of his principle of separation of church and state.

In arguments about the Founders' policies, often there is not even agreement as to the objective facts. In the case of a treaty made with the Kaskaskia Indians, at least there is agreement as to the objective facts. Chris Rodda wrote on Talk to Action,
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During his presidency, Thomas Jefferson signed over forty treaties with various Indian nations. The treaty with the Kaskaskia is the only one that contained anything whatsoever having to do with religion. No other Indian treaty signed by Jefferson, including the others listed by Mansfield, contained any mention of religion.
The following is the third article from the 1803 treaty with the Kaskaskia.

And whereas the greater part of the said tribe have been baptized and received into the Catholic Church, to which they are much attached, the United States will give annually, for seven years, one hundred dollars toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature, and the United States will further give the sum of three hundred dollars, to assist the said tribe in the erection of a church.(1)

. . . . . The problem with using this provision as evidence that Jefferson approved of using government funds to promote religion . . . . is that it was in a treaty with a sovereign nation. Unless a treaty provision threatened the rights or interests of Americans, there was no constitutional reason not to allow it, even if that same provision would be unconstitutional in a law made by Congress.

However, the Constitution considers treaties to be laws and Congress has a hand in establishing treaties -- the Constitution defines treaties as part of the supreme law of the land and they must be approved by two-thirds of the Senators who are present. Article VI of the Constitution says,

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.

Article II, Section 2 says,

He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur;

And the Establishment Clause of the First Amendment says,

Congress shall make no law respecting an establishment of religion,

The quibblers are now going to argue that Congress does not actually "make" treaties but only advises the President about them and gives consent to them, but that is a nitpicking and hairsplitting argument. By the same token, it can be argued that Congress does not "make" laws in general but just "consents" to various bills and amendments to bills that are introduced by members of Congress. Also, members of Congress not only advise the President about treaties but have even participated in negotiating treaties with sovereign nations -- see this.

Rodda said,
Jefferson, who had a great deal of confidence in the ability of the American people to understand the Constitution, no doubt assumed that the people understood the treaty making process, and would not perceive these provisions as unconstitutional. In fact, in the first draft of his 1803 annual message, he described the Kaskaskia treaty in detail, including the provisions for the church and the priest. But, Secretary of State James Madison, when he read Jefferson's draft, wasn't quite so confident that the people would understand this. Madison advised Jefferson to limit his description of the treaty to the large land acquisition and omit the details of the religious provisions, which in the final speech became "other articles of their choice."

In other words, the Kaskaskia treaty's religious provisions were of such questionable constitutionality that Jefferson -- accepting the advice of Madison -- hypocritically decided to not mention them explicitly in his speech, even though the public in those days was probably not particularly uptight about establishment clause violations! Also, it seems odd that there is any historical record of the speech's first draft and Madison's advice -- it seems that they would have been secret.

Furthermore, not only did the treaty mention religion, but the treaty used federal funds to promote religion! What does Rodda think it takes to violate the establishment clause? If a mere one-minute statement about intelligent design in a public-school classroom is sufficient to violate the establishment clause, then what about this treaty?

Also, Rodda did not disagree with the following argument from Robert L. Cord's 1982 book Separation of Church and State: Historical Fact and Current Fiction:

Lest it be argued to the contrary, if Jefferson had thought the "Kaskaskia Priest-Church Treaty Provision" was unconstitutional, he could have followed other alternatives. An unspecified lump sum of money could have been put into the Kaskaskia treaty together with another provision for an annual unspecified stipend with which the Indians could have built their church and paid their priest. Such unspecified sums and annual stipends were not uncommon and were provided for in at least two other Indian treaties made during the Jefferson Administration -- one with the Wyandots and other tribes, proclaimed April 24, 1806, and another with the Cherokee nation, proclaimed May 23, 1807.

Rodda alleges errors in historical facts about other treaties but none of those alleged errors affect my above analysis of the Kaskaskia Indian treaty.

As Fatheaded Ed Brayton would say, Rodda's article is full of batshit wingnuttery. The fundies are correct about the Kaskaskia Indian treaty. This story of the Kaskaskia treaty helps show the folly of originalism. IMO, when we interpret the Constitution, we should consider the Founders' ideas but we should not blindly follow their ideas or what we think or wish are their ideas.

Rodda's article is discussed on Ed "it-is-obvious-that-everyone-agrees-with-me-so-why-do-I-need-a-policy-against-arbitrary-censorship-of-comments?" Brayton's blog.
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