Stephen Mansfield's "Ten Tortured Words" -- A Book Review (Part 2)
Chris Rodda printable version print page     Bookmark and Share
Sun Aug 19, 2007 at 08:34:50 PM EST
For those who missed the first part of this review, it can be found here.

Chapter 2 of Mansfield's Ten Tortured Words, entitled "Of Cheese, Walls, and Churches," focuses on Thomas Jefferson -- his letter to the Danbury Baptists, his actions as a legislator in Virginia, and his actions as president. In this chapter, Mansfield, like his fellow Christian nationalist history revisionists, sets out to prove that Jefferson's own actions contradict his "wall of separation" metaphor, using as evidence of this alleged contradiction the same distortions and lies found in all the other revisionist history books. Claims that Mansfield did "extensive historical and legal research," as the "Book Description" on the Amazon page for Ten Tortured Words asserts, are ludicrous given Mansfield's nearly verbatim copying of particular lies from other revisionist books.

Mansfield's predictable premise in Chapter 2 is that Jefferson's deism was just a phase he went through, and that even during those years when he was the least religious, "he did work for Christianity's moral impact on society." According to Mansfield, Jefferson's "more deistic phase" spanned from the 1770s, when he was working on the laws of Virginia, through his presidency. For now, however, I'm going to skip over the part of the chapter about the laws of Virginia and get right to the far more popular lies about Jefferson's actions as president.

Mansfield's section on Jefferson's actions as president begins:

It was also this more deistic phase of his life that Jefferson encouraged religion while he served as president. This is hard to reconcile with his stated intention to leave religion to the states and deny any religious influence to the federal government. It is no less true for being inconsistent, though, and it does confirm again that Jefferson never envisioned a completely secular state, even during the years of religious skepticism.

In 1803, Jefferson recommended to Congress the passage of a treaty that provided a stipend of $100 annually to support a Catholic Priest in ministering to the Kaskaskia Indians. Similar treaties were enacted with his endorsement for the Wyandot Indians and other tribes in 1806 and the Cherokee in 1807. ...

The Kaskaskia treaty story -- no religious right American history book would be complete without some version of this one. Mansfield chooses the Barton/Federer/Eidsmoe version rather than the more obscure Cord/Dreisbach version, the significance of which will be explained after a brief explanation of the facts about this treaty.

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 Kaskaskia treaty is used by different religious right authors in different ways. For those attempting to prove that Jefferson was a devout Christian, it is evidence that he wanted to promote Christianity to the Indians. Much more often, however, as in Mansfield's book, it is used as evidence that Jefferson approved of using government funds to promote religion.

The problem with using the provision as evidence that Jefferson was trying to promote Christianity to the Indians is that the Kaskaskia were already Catholic, and had been for some time. Article 3 of the treaty even begins by stating that "the greater part of the said tribe have been baptized and received into the Catholic Church." The support of a priest and help building a church were provisions that the Kaskaskia asked for, not things the government recommended or pushed on them.

The problem with using this provision as evidence that Jefferson approved of using government funds to promote religion, as Mansfield does, 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. This was made very clear in a lengthy 1796 debate in the House of Representatives on the treaty making power, sparked by the unpopular Jay Treaty with Great Britain. A complete explanation and excerpts of this debate appear in my book, but are far too long to include here.

Almost every version of the Kaskaskia story contains the second claim found in Mansfield's version, that Jefferson signed two other Indian treaties that contained provisions for Christian ministers -- one with the Wyandots in 1806, and one with the Cherokees in 1807. This lie usually comes in the form of an implication. The statement that the Kaskaskia treaty contained a provision for a priest is immediately followed by a phrase such as "two similar treaties were enacted during Jefferson's administration," implying, of course, that the similarity was a provision for a priest. Mansfield even ups this a notch by wording it to make it appear that there might have been even more than two other treaties.

These other two treaties first became part of the Kaskaskia story in Robert L. Cord's 1982 book Separation of Church and State: Historical Fact and Current Fiction. Cord, however, did not lie about these treaties. This is a case of the Liars for Jesus misquoting one of their own to create a better lie. While Cord's book does contain its share of lies, this isn't one of them. Cord in no way implies that these other two treaties contained religious provisions. In fact, he mentions them specifically because they did not contain religious provisions. What they did contain were provisions for money that wasn't designated for a particular purpose. Cord uses these provisions to argue that Jefferson, if he had wanted to avoid provisions for religious purposes in the Kaskaskia treaty, could have done so with a similar provision that did not specify what the money was for.

The following is Cord's argument:

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.

Cord's words were first twisted by John Eidsmoe in his 1987 book Christianity and the Constitution, as follows:.

In 1803 President Jefferson recommended that Congress pass a treaty with the Kaskaskia Indians which provided, among other things, a stipend of $100 annually for seven years from the Federal Treasury for the support of a Catholic priest to minister to the Kaskaskia Indians. This and two similar treaties were enacted during Jefferson's administration -- one with the Wyandotte Indians and other tribes in 1806, and one with the Cherokees in 1807.

Then, David Barton, in his 1991 book The Myth of Separation, copies Eidsmoe's version of the story word for word, presenting it as a quote. He does not, however, cite Eidsmoe as the source of this quote. Barton cites Daniel Dreisbach's 1987 book Real Threat and Mere Shadow: Religious Liberty and the First Amendment. But, Dreisbach's book contains nothing even close to Eidsmoe's lie. Dreisbach, like Cord, does not in any way imply that these other two treaties contained religious provisions. Dreisbach doesn't even mention these treaties in the text of his book. He uses Cord's argument that the Kaskaskia could have been given money for an unspecified purpose, but names the other two treaties only in a footnote.

This story is a good example of how the religious right lies evolve, and, by being copied from book to book, eventually lose any connection to their original sources. Robert Cord, whose book was published in 1982, mentions the other two treaties, but does not imply that they contained religious provisions. Daniel Dreisbach, whose book was published in 1987, uses these treaties for the same reason as Cord. John Eidsmoe, whose book was also published in 1987, twists Cord's words and creates the lie. David Barton, in 1991, copies Eidsmoe's lie, but cites Dreisbach as his source. In 2000, William Federer, whose version of the lie appears at the beginning of this chapter, cites both Dreisbach and Barton. In 2003, the lie appears in D. James Kennedy's book What If America Were A Christian Nation Again?, with no source except William Federer's book. And, now we have Mansfield's version.

As already mentioned, neither Robert Cord nor Daniel Dreisbach lie about the 1806 Wyandot or 1807 Cherokee treaties. These two authors go on to take a different, but equally deceptive, approach to the story, which is extremely creative, but is not relevant here. All that is relevant about the Cord/Dreisbach version is that it includes the 1806 Wyandot and 1807 Cherokee treaties specifically because they did not contain religious provisions. Why is this relevant to Mansfield? Because he lists both Cord's and Dreisbach's books in his bibliography, yet obviously either didn't bother to read them, or, more likely, did read them but decided to go with the contradictory, but more popular, version of the story anyway, leaving in the erroneous claim found in the Barton/Federer/Eidsmoe version that the 1806 and 1807 treaties provided money for a clergyman.

So, what about the 1803 Kaskaskia treaty, the one that actually did include a provision to build a church and pay a priest? Did Jefferson contradict his wall of separation as Mansfield claims? Well, not according to the Congress of 1796, a number of whose members had been delegates to the Constitutional Convention. A motion made by Edward Livingston in March 1796 to petition President Washington for the papers related to the Jay Treaty sparked a debate that would continue for several weeks, and address virtually every aspect of the treaty making process. Two things came up in this debate that are relevant to the 1803 treaty with the Kaskaskia.

The first was that Indian treaties were unquestionably treaties with foreign nations. These treaties could not be considered anything else because a treaty could not be made with any entity other than a sovereign power. While the Constitution made a distinction between foreign nations and Indian tribes in regard to the power of Congress to regulate commerce, this distinction did not exist in making treaties.

The second is found in the following statement made by Abraham Baldwin, a delegate from Georgia at the Constitutional Convention.

If it were allowed that there might be any possible or extraordinary cases on the subject of Treaty-making in which it might ever be proper for that House to deliberate -- as, for instance, offensive Treaties which might bring the country into a war -- subsidies and support of foreign armies -- introduction of an established religion from another country, or any other of those acts which are by the Constitution prohibited to Congress, but not prohibited to the makers of Treaties; if it were allowed that there might possibly exist any such case, in which it might ever be proper for Congress to deliberate, it would seem to be giving up the ground on which the discussion of the present question has been placed; what agency the House should take, and when would be other questions. Whether a case would probably occur once in a hundred years that would warrant the House in touching the subject, is of no consequence to the debate.(2)

Jefferson knew that the Kaskaskia treaty didn't violate anything. Its religious provisions clearly fell into the category of "those acts which are by the Constitution prohibited to Congress, but not prohibited to the makers of Treaties," as Abraham Baldwin put it in the Jay Treaty debate. There was no danger of these provision having any effect on a single American citizen, let alone even coming close to an "introduction of an established religion from another country," as Baldwin put it in the Jay Treaty debate.

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."

May it not be as well to omit the detail of the stipulated considerations, and particularly that of the Roman Catholic Pastor. The jealousy of some may see in it a principle, not according with the exemption of Religion from Civil power. In the Indian Treaty it will be less noticed than in a President's speech.(3)

Did Madison think the provisions violated the separation between church and state "the exemption of Religion from Civil power?" No. But he was obviously concerned that there were people who might not understand the difference between what was permissible in a treaty with a foreign nation and what was permissible in laws made for the American people. So much for the religious right assertion that nobody in America would have even blinked at their government supporting religion before the 1947 Everson decision.

Mansfield continues:

...Another act that originated in 1787 ordained special lands "for the sole use of Christian Indians" and reserved land for the Moravian Brethren "for civilizing the Indians and promoting Christianity." When this act was renewed, it bore the title "An Act regulating the grants of land appropriated for military services and for the Society of the United Brethren for propagating the Gospel among the Heathen." Three times during his administration, Congress extended this act and Jefferson signed it into law. Not once did he even consider vetoing it on the basis that it violated the First Amendment or his own "wall of separation" metaphor.

Because the real story of the Moravian land grant spans four decades, it is sometimes used to create lies about the Continental Congress, but is also used for lies about later Congresses and several presidents. In the majority of religious right American history books, including Mansfield's. it is used for a lie about Thomas Jefferson, and almost always follows the story about the Kaskaskia Indian treaty. This lie is based solely on the titles of certain acts signed by Jefferson. Besides the fact that none of the acts signed by Jefferson actually had anything to do with this land grant, the grant didn't even have anything to do with religion in the first place.

The first thing that needs to be understood about any mention of The Society of the United Brethren for Propagating the Gospel Among the Heathen in any act of Congress or other official document is that this was the legal name of an incorporated society. Every act of Congress referring to this society, whatever its purpose, contains the words "propagating the Gospel among the Heathen" because it was part of the society's name, not because the government was propagating the Gospel. Although the United Brethren were a religious society, and their purpose was to propagate the Gospel, Congress's reason for putting a land grant in their name had nothing to do with religion. It was done to protect the land granted to a group of Indians.

At the beginning of the Revolutionary War, a declaration of Congress promised that any Indians who did not aid the British would have "all the lands they held confirmed and secured to them"(4) when the war was over. In the years following the war, the United Brethren, concerned that a particular group of Indians, who not only remained neutral throughout the war, but had been both displaced by the British and attacked by American militiamen, might lose the lands they were entitled to. Because these Indians were unable to return at this time to claim the land themselves, the United Brethren petitioned the Continental Congress on their behalf. Congress agreed that these Indians had a right to the land, but, in order to secure their claim, the land had to be put in someone's name. The solution that Congress agreed to was that the United Brethren form an incorporated society to hold the land in trust.

The Indians involved in this story, who, for reasons explained later, were referred to by Congress as the "Christian Indians," were permanently settled in 1772 by the great council of the Delaware nation on land along the Muskingum River, in what is now Ohio. With the help of Moravian missionaries, these Indians, numbering about three hundred and seventy at that time, built three settlements, Gnadenhutten, Schoenbrun, and Salem, which became thriving agricultural communities.

Shortly after settling on the Muskingum, the Christian Indians adopted a constitution of sorts, laying down the rules that everyone had to follow in order to live at their settlements. In 1778, although the Delaware nation was still officially neutral in the war, many Delawares were attaching themselves to other tribes, joining the fight on the British side. That year, at their annual public meeting, the mostly Delaware Christian Indians voted to add the following articles to their constitution.

19. No man inclining to go to war -- which is the shedding of blood -- can remain among us.

20. Whosoever purchases goods or articles of warriors, knowing at the time that such have been stolen or plundered, must leave us. We look upon this as giving encouragement to murder and theft.(5)

Throughout the war, the Christian Indians and their Moravian missionaries, suspected of spying for the Americans, were harassed by British Indian allies. In August 1781, a group of British Indians, led by a British Indian agent, broke up their settlements. The Christian Indians were forcibly moved to Sandusky, more than a hundred miles from their settlements, and left there with no food or supplies. The Moravians were taken to Detroit for questioning. The following spring, nearly a third of the Christian Indians were murdered -- not by the British, but by Pennsylvania militiamen.

When the British heard about the 1782 massacre, they were appalled by the actions of the Pennsylvania militiamen. The British had driven the Christian Indians from their settlements the year before because they were suspected of spying for the Americans, and their settlements were in a strategic location to do this. Their Indian agent had been instructed only to move the Indians, but not to physically harm them. After the massacre, Major Arent Schuyler DePeyster, the British commander at Detroit, decided to protect the remaining Christian Indians. DePeyster, the same officer who had questioned and released the Moravians in 1781, helped David Zeisberger, one of the missionaries he had questioned, set up a temporary settlement for the remaining Indians. An empty British army barracks was turned over to Zeisberger while DePeyster negotiated with the Chippewa to lease some of their land north of Detroit to the Moravians. Zeisberger gathered as many of the remaining Christian Indians as he could find, and built the town of New Gnadenhutten on the leased land, where they stayed from 1782 until 1786. It was during this time that the United Brethren, represented by Bishop John Ettwein, first petitioned Congress on the Indians' behalf.

In October 1783, six months after the end of hostilities with Great Britain was officially declared, Bishop Ettwein personally delivered a memorial to Charles Thomson, the Secretary of Congress.(6) Ettwein made two requests in this memorial. First, he wanted an investigation of the 1782 massacre by the militiamen. This had been promised by Congress, as well as the assemblies of both Pennsylvania and Virginia, but, as far as he knew, had never been carried out. Second, he wanted to ensure that the remaining Christian Indians, although temporarily displaced, would not lose the legal right to their land. This memorial was referred to a committee, but no immediate action was taken on it.

In March 1784, Bishop Ettwein wrote to Thomas Mifflin, the President of Congress, to see if anything was being done.(7) On March 31, 1784, Bishop Ettwein's 1783 memorial was favorably reported on by the committee.

The next year, in the land ordinance of May 20, 1785, Congress included, among the various reservations in the Northwest Territory for military service and other purposes, a provision reserving the Christian Indians' land. Congress had no way of knowing at this time that it would later become necessary to put the Indians' land in someone else's name, so the United Brethren were not mentioned in the 1785 ordinance. At this point, the society's only involvement was that of petitioning Congress on the Indians' behalf. In the ordinance, however, Congress did need to designate in some way who the land was being reserved for. Having nothing more specific than Bishop Ettwein's description -- "the Christian Indians now on Huron River or such trustees as they shall appoint"(8) -- Congress, in the ordinance and subsequent documents, just called them the Christian Indians. The following was the provision in the 1785 ordinance reserving the Christian Indians' land.

And be it further Ordained, That the towns of Gnadenhutten, Schoenbrun and Salem, on the Muskingum, and so much of the lands adjoining to the said towns, with the buildings and improvements thereon, shall be reserved for the sole use of the Christian Indians, who were formerly settled there, or the remains of that society, as may, in the judgment of the Geographer, be sufficient for them to cultivate.(9)

All this 1785 provision did was reserve the Christian Indians' land from the lands that could be sold under the ordinance. This alone did not reserve the land forever. It only meant that Congress, for the time being, was promising not to sell it to anyone else. If the Indians did not take the steps necessary to legally take possession their land, Congress, after a reasonable amount of time, might assume they didn't want it and extinguish their claim. In fact, this almost happened a few years later, when Secretary of State Thomas Jefferson, having information that the remaining Christian Indians had moved to Canada, listed their reservation in a report as unclaimed land that could be sold.

The July 27, 1787 resolution of Congress is often quoted in religious right American history books, chosen because it contains the words "for civilizing the Indians and promoting Christianity." John Eidsmoe, in his book Christianity and the Constitution, not only quotes this resolution, but implies that there were two separate land grants, one for the use of Christian Indians, and another for the Moravians. He also omits the word "the" before Christian Indians, and all other words indicating that Congress was referring to a specific group known as "the Christian Indians," giving the impression that land was granted to Christian Indians in general. Stephen Mansfield does the same thing, apparently copying Eidsmoe for his version of this story.

The reason for this particular wording in the 1787 resolution was simply that Congress did not yet know what the Moravians were going to call their society. In order for Congress to convey the Indians' land to them, the Moravians, or a society of them, had to be incorporated. While Bishop Ettwein was in Pennsylvania taking care of this, Congress had to proceed with the Ohio Company contract. Congress assumed that the Moravians were going to name their society something similar to the names of the many other Indian missionary societies of the time, which were all called something to the effect of societies "for civilizing the Indians and promoting Christianity." This, along with the description of the Indians, was specific enough to leave no question as to who they were referring to in the 1787 resolution. In the September 3, 1788 act conveying the land to the society, it was clarified in two places that the society described in the 1787 resolution and "The Society of the United Brethren for propagating the Gospel among the Heathen" were one and the same.(10)

As mentioned at the beginning of the chapter, most religious right authors attribute the United Brethren land trust to Thomas Jefferson, in an attempt to turn the president who was least likely to grant land to a religious society into the one who did. There is no truth whatsoever to this claim. It is a lie based on a 1796 act for creating the United States Military District, and locating and surveying the military land grants within this district. Because of a 1795 decision to confirm the trust created by the Continental Congress, the surveying of the Christian Indians' land was tagged onto this act. This was just a matter of expediency, due to the fact that the Christian Indian's land grant fell within the boundaries of the Military District, and needed to be reserved from it. By confirming that this land had been appropriated by the Continental Congress in one section of the act, and then excluding from the military district any lands previously appropriated in another section of the same act, Congress killed two birds with one stone.

This act of 1796 was, of course, signed by George Washington, not Thomas Jefferson. The lie about Jefferson is created by using the titles of the later acts amending this act that were signed by him. According to the act of 1796, the deadline to register and locate military land grants was January 1, 1800. This time limit was extended once by John Adams, and three times by Thomas Jefferson. By the time of these extensions, however, the section in the original act regarding the Christian Indians' land grant was a dead letter. Not only had everything ordered to be done in this section had been carried out by 1798, but the parts of the original act that were later extended hadn't even applied to this land grant in the first place.

The following is the section regarding the Christian Indians' land from the act of 1796.

Sec. 5. And be it further enacted, That the said surveyor general be, and he is hereby, required to cause to be surveyed three several tracts of land, containing four thousand acres each, at Schoenbrun, Gnadenhutten, and Salem; being the tracts formerly set apart, by an ordinance of Congress of the third of September, one thousand seven hundred and eighty-eight, for the society of United Brethren for propagating the gospel among the heathen; and to issue a patent or patents for the said three tracts to the said society, in trust, for the uses and purposes in the ordinance set forth.(11)

Because this section was tagged onto the military land grant act, the name of the United Brethren's society appeared in the act's title. The original 1796 act was called An Act regulating the grants of land appropriated for Military services, and for the Society of the United Brethren, for propagating the Gospel among the Heathen.(12) The extensions of this act, although containing absolutely nothing that applied to the United Brethren's trust, still had the name of the society in their titles. This is simply because they were acts amending the original act. In April 1802, the act extending Adams's 1799 extension of the act of 1796 was called An Act in addition to an act, intituled "An act, in addition to an act regulating the grants of land appropriated for military services, and for the society of the United Brethren for Propagating the gospel Among the Heathen."(13) The next extension, in March 1803, was called An act to revive and continue in force an Act in addition to an act, intituled "An act, in addition to an act regulating the grants of land appropriated for military services, and for the Society of the United Brethren for Propagating the Gospel among the Heathen," and for other purposes.(14) The titles of these acts are the sole basis of the religious right claim that Thomas Jefferson granted land to religious societies, and saw no constitutional conflict in doing so, leading to meaningless statements like Mansfield's, "Not once did he even consider vetoing it on the basis that it violated the First Amendment or his own 'wall of separation' metaphor."

Mansfield begins his next paragraph:

This was Jefferson in the years of Deism. Then a change came over him. As Yale historian and chief of the Manuscript Division at the Library of Congress, James H. Hutson has explained:
Scholars believe that, as a result of reading, sometime around 1793, Joseph Priestley's An History of the Corruptions of Christianity, Jefferson experienced a "conversion" to Unitarian Christianity. ...

This reaffirms what Mansfield's errors in part one of this review indicated. This man is clearly chronologically challenged -- not a good quality in an historian. Didn't he just get through explaining that Jefferson's "deistic phase" lasted through his presidency? How, then, does Mansfield not notice while quoting Hutson, on the very next page of his book, that Hutson is saying that Jefferson's "conversion" occurred around 1793 -- seven years before he was elected president?

Mansfield then backs up Hutson's theory about Jefferson's conversion with a few Jefferson misquotes:

From the time of this "conversion" on, Jefferson spoke differently of his faith. "I am a Christian," he wrote a friend, "in the only sense in which he [Jesus] wished anyone to be." "I am a real Christian," he wrote another, "a disciple of the doctrines of Jesus."

What does Mansfield chop off of the first quote? The part where Jefferson clarified his statement by saying that he did not believe that Jesus was anything more than a great, but perfectly human philosopher, and that jesus himself had never claimed to be anything more than human.

I am a Christian, in the only sense he wished any one to be; sincerely attached to his doctrines, in preference to all others; ascribing to himself every human excellence; & believing he never claimed any other.(15)

And, here's the second quote with the part chopped off by Mansfield restored:

A more beautiful or precious morsel of ethics I have never seen. It is a document in proof that I am a real Christian, that is to say, a disciple of the doctrines of Jesus, very different from the Platonists, who call me infidel and themselves Christians and preachers of the gospel, while they draw all their characteristic dogmas from what its Author never said nor saw. They have compounded from the heathen mysteries a system beyond the comprehension of man, of which the great reformer of the vicious ethics and deism of the Jews, were he to return on earth, would not recognize one feature. ...(16)

Mansfield follows these misquote with:

The tale of Jefferson's subsequent journey of faith is fascinating and warrants further study than it has received. For our purposes in understanding how Jefferson viewed the role of religion and government, though, the entire tale is not relevant. ...

Well, maybe "the entire tale is not relevant" for Mansfield's "purposes in understanding how Jefferson viewed the role of religion and government," but it certainly is to those of us who want to preserve the true history of our republic!

1. Richard Peters, ed., The Public Statutes at Large of the United States of America, vol. 7, (Boston: Charles C. Little and James Brown, 1846), 79.
2. The Debates and Proceedings in the Congress of the United States, vol. 5, 4th Cong., 1st Sess., (Washington D.C.: Gales and Seaton, 1855), 535-536.
3. James Madison to Thomas Jefferson, October 1, 1803, James Morton Smith, ed., The Republic of Letters: The Correspondence Between Thomas Jefferson and James Madison 1776-1826, vol. 2, (New York and London: W.W. Norton & Company, 1995), 1298.
4. Walter Lowrie, ed., American State Papers: Indian Affairs, vol. 2, (Washington D.C.: Gales and Seaton, 1834), 373.
5. James W. Taylor, History of the State of Ohio, First Period, 1650-1787, (Cincinnati: H.W. Derby & Co., 1854), 234-235.
6. Papers of the Continental Congress, National Archives Microfilm Publication M247, r49, i41, v3, p73.
7. ibid., M247, r94, i78, v8, p409.
8. ibid., M247, r49, i41, v3, p73.
9. John C. Fitzpatrick, ed., Journals of the Continental Congress, 1774-1789, vol. 28, (Washington D.C.: Government Printing Office, 1933), 381.
10. ibid., vol. 34, (Washington D.C.: Government Printing Office, 1937), 485-486.
11. Richard Peters, ed., The Public Statutes at Large of the United States of America, vol. 1, (Boston: Charles C. Little and James Brown, 1845), 491.
12. ibid., 490.
13. ibid., vol. 2, 155.
14. ibid., 236.
15. Thomas Jefferson to Benjamin Rush, April 21, 1803, Andrew A. Lipscomb and Albert Ellery Bergh, eds., The Writings of Thomas Jefferson, vol. 10, (Washington D.C.: Thomas Jefferson Memorial Association, 1907), 380.
16. Thomas Jefferson to to Charles Thompson, January 9, 1816, ibid., vol. 14, 385-386.

You wrote of the religious provision of the Kaskaskia Indian treaty,
. . . . 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,
Furthermore, not only did the treaty mention religion, but the treaty used federal funds to promote religion! What do you 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?

by Larry Fafarman on Thu Aug 23, 2007 at 03:45:35 PM EST
The flaw in what you're saying about Congress having a hand in the treaty-making process is that the Senate, when ratifying a treaty, is acting in its executive, not its legislative capacity, so a treaty, although the supreme law of the land, is not a law made by Congress.

This was among the many aspects of what was permissible in treaty-making that were hashed out in the House of Representatives in 1796 that I mentioned in my post. It was decided in that debate that Congress funding a treaty provision that would not be permissible in a law made for the American people was permissible for such a provision in a treaty. The sense of the House was, however, to reserve to itself a limited right to object to funding a provision in the event that any future president, with the consent of the Senate, ever ratified a treaty provision that would do great harm to the American people. This was one of the most important separation of powers debates in our early congresses. I include a thorough explanation of this in my book, along with the relevant excerpts from the debate, but this is just too long to post here. The volume that the debate appears in is also available on the Library of Congress website at the following link. It was the debate on the treaty with Great Britain, and took place in March and April. /llac005.db&recNum=59

I also want to give you a hypothetical example that doesn't involve religion. I find that taking religion out of the equation sometimes make it easier to see the basic issue more clearly.

Imagine it's the 1920s, and the prohibition amendment is still in effect, and the United States is making a treaty with a nation in Europe. This European nation just had a drought that ruined their grape crop, so they have a wine shortage.  The treaty negotiators for this European nation ask, as one of the provisions, that the United States government give them a certain amount of money to import wine from another country.  Now, because of a constitutional amendment, buying wine is illegal for American citizens in the United States.  But, the citizens and government of this foreign nation are not subject to our Constitution or laws, so there is no constitutional issue with our government giving this foreign nation money to buy wine.  Now, substitute a sovereign Indian nation for the hypothetical European nation, the establishment clause for prohibition, and a church and priest's salary for the wine.

by Chris Rodda on Thu Aug 23, 2007 at 08:46:14 PM EST

The flaw in what you're saying about Congress having a hand in the treaty-making process is that the Senate, when ratifying a treaty, is acting in its executive, not its legislative capacity, so a treaty, although the supreme law of the land, is not a law made by Congress.
Your distinction between "legislative" and "executive" capacities is arbitrary. I see no essential difference between a Senate vote on a treaty and a Senate vote on a bill or bill amendment introduced by a Senator.
This was among the many aspects of what was permissible in treaty-making that were hashed out in the House of Representatives in 1796 that I mentioned in my post. It was decided in that debate that Congress funding a treaty provision that would not be permissible in a law made for the American people was permissible for such a provision in a treaty.
The Supreme Court is supposed to have the last word on the constitutionality of acts of Congress and the President.

The religious provision of the Kaskaskia treaty was of such questionable constitutionality that Jefferson -- acting on the advice of Madison -- decided to not expressly mention it in a speech, as you pointed out.
The sense of the House was, however, to reserve to itself a limited right to object to funding a provision in the event that any future president, with the consent of the Senate, ever ratified a treaty provision that would do great harm to the American people.
Something can violate the establishment clause without doing "great harm to the American people."
. . . .the citizens and government of this foreign nation are not subject to our Constitution or laws, so there is no constitutional issue with our government giving this foreign nation money to buy wine. Now, substitute a sovereign Indian nation for the hypothetical European nation, the establishment clause for prohibition, and a church and priest's salary for the wine.
The prohibition amendment is a bad comparison because this amendment applied only to the USA and its territories --
After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
In contrast, the establishment clause is not expressly restricted to the USA. The establishment clause does not say that Congress may use federal funds to help establish religions in places outside the jurisdiction of the USA.

BTW, I also think that the grant of land to the "Christian" Indians was also unconstitutional -- it discriminated on the basis of religion.

Anyway, I am strongly opposed to originalism because (1) I see no reason why we should be bound by the thoughts of the Founders and (2) originalism impairs objectivity in the study of history.

by Larry Fafarman on Fri Aug 24, 2007 at 11:56:27 AM EST

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