Lincoln’s Assault on the Constitution

Another day and there is another story of Christmas being taken away from a community over a false claim of “separation of Church and State”. It is a common story: a close knit community that has celebrated Christmas for years suddenly loses or changes the event because someone complains that it is government forcing religion on the population.

Not like that hasn’t been done before.

In 1863, Abraham Lincoln declared a holiday proclaiming, in part, “… It has seemed to me fit and proper that they should be solemnly, reverently and gratefully acknowledged as with one heart and one voice by the whole American People. I do therefore invite my fellow citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next, as a day of Thanksgiving and Praise to our beneficent Father who dwelleth in the Heavens.”

That holiday is Thanksgiving.

It gets remembered and celebrated every year across the country. In 2010, President Barack Obama said “As we stand at the close of one year and look to the promise of the next, we lift up our hearts in gratitude to God for our many blessings, for one another, and for our Nation.” (He omitted this line in subsequent declarations in 2011 and 2012, however).

By contrast, this declaration making Christmas a national holiday pales by comparison:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the following days, to wit: The first day of January, commonly called New Year’s day, the fourth day of July, the twenty-fifth day of December, commonly called Christmas day, and any day appointed or recommended by the President of the United States as a day of public fast or thanksgiving, shall be holidays within the District of Columbia, and shall, for all purposes of presenting for payment or acceptance of the maturity and protest, and giving notice of the dishonor of bills of exchange, bank checks and promissory notes or other negotiable or commercial paper, be treated and considered as is the first day of the week, commonly called Sunday, and all notes, drafts, checks, or other commercial or negotiable paper falling due or maturing on either of said holidays shall be deemed as having matured on the day previous.

As the so-called “war on Christmas” heats up for 2013 and the complaints come in of children singing about Jesus, of religious displays on court house lawns, of the word “Christmas” attached to a “holiday” tree, let us remember that the Constitution does NOT mention or use the word “SEPARATION” in regards to government or religion.

There is NO such thing as “separation of Church and State”.

It is the Establishment Clause most cited in the Constitution by those attempting to remove Christmas from the public. This is the establishment clause, also known as the First Amendment:

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 the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Courts have continually established that the use of the word “Christmas”, the practice of declaring a holiday named “Christmas”, or the public celebration of the same using trees, Nativities, or other symbols common to the season does NOT constitute the establishment of a religion by the government.

Did Lincoln assault the Constitution with his declaration of Thanksgiving?

Do all Americans spit in the eye of church-versus-state separatists by celebrating Thanksgiving?

Does making a Christmas tree a “holiday tree” really correct anything — especially since the word holiday really means HOLY day?

6 thoughts on “Lincoln’s Assault on the Constitution

  • November 23, 2013 at 10:50 am

    To enjoy Christmas, one need not attack the Constitution. Separation of church and state is a bedrock principle of our Constitution, much like the principles of separation of powers and checks and balances. In the first place, the Supreme Court has thoughtfully, authoritatively, and repeatedly decided as much; it is long since established law. In the second place, the Court is right. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) according that government limited, enumerated powers, (3) saying nothing to connect that government to god(s) or religion, (4) saying nothing to give that government power over matters of god(s) or religion, and (5), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day (by which governments generally were grounded in some appeal to god(s)), the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which affirmatively constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who mistakenly supposed it was there and, upon learning of their error, reckon they’ve solved a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). Indeed, he understood the original Constitution–without the First Amendment–to separate religion and government. He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

    The Constitution, including particularly the First Amendment, embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.

  • November 23, 2013 at 11:59 am

    We agree completely with your commentary, Doug. But the mention of Christmas by a government institution, the inclusion of Christmas in things like public school, etc. does not constitute the establishment of religion by the government. It really is that simple.

  • November 23, 2013 at 1:44 pm

    It is important to distinguish between “individual” and “government” speech about religion. The constitutional principle of separation of church and state does not purge religion from the public square–far from it. Indeed, the First Amendment’s “free exercise” clause assures that each individual is free to exercise and express his or her religious views–publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion. As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment’s constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. (Students also are free to exercise and express their religious views–in a time, manner, and place that does not interfere with school programs and activities.) If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.

  • November 23, 2013 at 6:09 pm

    So was Lincoln acting without the “constraints of government” when establishing Thanksgiving?

    We believe the Constitution is pretty literal in these cases. It specifically says CONGRESS shall pass no law. It doesn’t say Christmas can’t be part of the public discourse when tied to any government run institution — any more than any other religion.

    The war on Christmas is not really a war on Christmas. It is a war on religion and Christmas is merely the vehicle for it.

    The references to God and even Christianity is well documented throughout history, even the divergent thoughts and debates within Christianity are a part of both our culture and historical record.

    We see no reason for that to stop now.

  • November 23, 2013 at 7:07 pm

    As it happens, Madison discussed religious proclamations in his Detached Memoranda. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s early actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

    In any event, the very fact that evidence and arguments can be advanced in support of both sides of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that–decisively, authoritatively, and, in the most important respects, unanimously. In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

  • November 23, 2013 at 8:09 pm

    Case law both ways is deep in quantity and debate. I agree it is not always clear cut. However, the fact that the courts and threat of litigation are used as a means of removing God, Christmas, references to religion, etc from public institutions that are not budgeted to defend against such means that the whole process of upholding the Constitution is skirted and one group’s belief is imposed by default (faithlessness is still a belief).

    This is hardly justice and serves only to fan the flames of absurdity in the discussion (hence the phrase “war on Christmas”).

    A more strict interpretation of the Constitution would go far in simply recognizing that a school doesn’t in fact represent the government and can never impose anything in the way of religious endorsement. Clearing the way especially for things like voluntary service opportunities — or public concerts — where people have a clear choice to NOT participate — would go a long way to end this seasonal discord that comes about every year and the injustice that being unable to fight lawsuits seems to bring about.

    God, as Lincoln invoked His name, is not a dirty word. Schools should be able to utter it or anything associated with it, such as Christmas.

    The Supreme Court has upheld that notion many times as well.

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