Founding Documents Panel

Historical Society of Pennsylvania

1300 Locust Street

Philadelphia, PA 19107

All of the SUSI scholar cohorts visited the Historical Society of Pennsylvania for panel presentations on important American documents. Scholars also had the opportunity to view several historical documents from their collection. Below are notes from various panelists over the years.

“Constitution, Amendments and Religious Freedom”

(2019) Ms. Beth Twiss Houting, Senior Director of Programs and Services at HSP.

Slide 2: Citizen Rights and the Constitution

The beauty and wonder of the US Constitution has been its ability to withstand change over time. Short document means fewer details for every circumstance, which allows for different interpretations over time.

Article 3 – Supreme Court can make decisions on legislation and lower court ruling – are they Constitutional? Strict constitutionalism – doc does not change, should consider what framers meant vs. interpret for our time However, it can be changed through amendment...

Article 5 - Requires Congress (House and Senate) to pass an amendment by 2/3 vote; then to each state for vote; need ¾ of states (38) to vote for it to change Constitution

Slide 3: Amendment Examples

Today will look at 2 issues of citizen rights and the amendments that led to certain legislative and judicial interpretation:

Amendment 1: Freedom of religion

Amendment 19: Women’s suffrage

Slide 4: Articles of Confederation - John Dickinson (June 1776)

The main document from our HSP collection that I will discuss actually predates the US Constitution. The Articles of Confederation were the first framework of government for the US passed by Congress after independence was declared, ratified 1781. It was found to be a weak system, and by 1787, a convention was called to amend them. Instead they were abandoned and our current Constitution written. At HSP we have the first draft of these Articles, written in June 1776 by John Dickinson, a landowner, lawyer, and politician. He was born a Quaker and, while he did not practice as an adult, he had Quaker attitudes about religion, like William Penn.

Slide 5: Reference to Religion in Articles of Confederation Draft

Included a section that referenced William Penn’s Charter of Privileges saying that all should be allowed to worship as they wish without prosecution and without having to pay support to a state church.

“No person in any Colony living peaceably under the Civil Government, shall be molested or prejudiced in his or her person or Estate for his or her religious persuasion Profession or practise, nor be compelled to frequent or maintain or contribute to maintain any religious Worship, Place of Worship or Ministry, contrary to his or her Mind, by Virtue or Virtue Force of any Law or Ordinance hereafter to be made in any Colony different.”

It is notable that the language is gender neutral – highlighted here. This phrase was struck in the next go-around with the committee and would await. The 1 st amendment to the constitution.

Slide 6: Bill of Rights

There was a disagreement in the constitutional convention as whether rights needed to be spelled out. It was finally ratified in 1791. Its inclusion was a condition for some to approve the Constitution. The original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3). The First Amendment was short and terse:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Note what does and does not say:

No state religion to be established = establishment clause
No law to discriminate based upon religion = free exercise clause

Tension between the two clauses has been interpreted and referenced in various ways by courts throughout U.S. history.

The central question is: does the Free Exercise clause give Americans whose religions conflict with government practices the right to ask for special accommodation? Or by doing so, does the government then favor or sanction a particular religious practice?
Another question is: should a law treat religious organizations differently from other types of institutions because they are religious?

Both still debated today and two recent Supreme Court cases illustrate these points.

Slide 7: Trinity Lutheran v. Comer (2017)

In June 2017, the Supreme Court in Trinity Lutheran v. Comer ruled that a state could give funds to a religious organization. The Missouri Department of Natural Resources express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. While the Court ruled that under Free Exercise the Church could not be discriminated against for non-religious activities just because they happened in church, other legal experts say that this ruling veers close to negating the Establishment clause that says the government cannot support religion.

Slide 8: Masterpiece Cakeshop v. Colorado Civil Rights Commission

In June 2018, another case in the Supreme Court also seemed to indicate that Free Exercise stumps Establishment. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the court ruled that the Baker/Owner could refuse to decorate a wedding cake for a same-sex couple because his religion did not support such marriages – that as an artist, the use of his talents were covered under the First Amendment clause about free speech. The ruling, however, is seen as being narrow, because it was referred to the fact that members of the Colorado Civil Rights Commission, which had held the first hearing on the matter, had said derogatory things about the man’s religious beliefs. But there are others who claim the gay couple’s rights were squashed and that again the Court has supported a religious organization.

Slide 9: Religious Displays

This year the Supreme Court took up a perennial issue of holidays decorations on the grounds of public property. There have been - and continue to be - many discussions, arguments, and legal cases at local through federal level about whether one can display Xmas symbols outside or in government buildings - things such as crèche or nativity scenes, Xmas trees, etc. In 1984, in a Supreme Court case, it was somewhat resolved that it depended upon how people interpreted the display. Was it the government supporting a specific religious tenet, or was it more just for the season? Some places resolve this dilemma by having multiple celebrations noted such as a Star of David next to a nativity scene next to candles of Kwanzaa.

This year the discussion was around a cross-shaped monument built as Bladensburg World War I Memorial between 1917 and 1925 and now owned by the state of Maryland. It has become to be called the Peace Cross. The Court ruled that having a cross here was not a government endorsement of religion (establishment clause) because the cross had come to symbolize something else too. Justices felt that its use and history as a place to honor fallen war heroes had added to or mitigated the religious interpretation. They cautioned though that something built new in a cross shape might not be okay.

Slide 10: Interpreting the Trend in Recent Supreme Court Cases

So we continue to interpret the words of the First Amendment. Trends in interpretation tend to follow the general political climate - right now leaning towards worries that the US government is preventing free expression. But stay tuned. . .

Further Thoughts by Ms. Houting

As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate “religious exemptions” that would excuse believers from complying with neutral and general laws that constrain the rest of society.

None of these provisions found their way into the version of the Articles that was ratified in 1781. The first casualty was the article on religious toleration, which did not even make it into Dickinson’s next draft, the so-called committee draft, to be presented to Congress. In its stead, there is only a query from Dickinson,

“Should not the first Article provide for a Toleration and ag[ains]t Establishments hereafter to be made?”

Three provisions, each exemplifying Dickinson’s Quaker leanings, would not be adopted by Americans for years or centuries. Two were protections for vulnerable minority groups, religious dissenters and Native Americans. The religious toleration clause is particularly noteworthy, as it contains the first known use of gender-inclusive language in an Anglo-American constitution, something that would not make its way into some American state constitutions until the late-twentieth century. Moreover, the article anticipates the 14th Amendment to the Federal Constitution when it empowers the central government to secure religious liberty for the inhabitants of the states.

In 1765 John Dickinson wrote the resolutions of the Stamp Act Congress, insisting that Britain had no right to tax the colonies. In 1767 he took up his pen to compose his most celebrated tract, the Letters from a Farmer in Pennsylvania, written in opposition to the Quartering Act, the Townshend Duties, and the Declaratory Act.

Believed Americans were following ancient British ways For centuries, Englishmen had justified espousal or opposition to changes in the political order by insisting that they were seeking only to restore or preserve the traditional scheme of things. Now, in the imperial crisis of 1765-76, Americans needed a spokesman who could justify resistance to British authority in the same manner. They needed someone who could demonstrate that king and Parliament were making radical innovations and that the Americans were defending ancient traditions and rights

While he never became a member of the Society of Friends, citing his belief in the “lawfulness of defensive war;” as his reason, his personal and political priorities and behavior were strongly shaped by Quakerism.

Dickinson opposed the move, arguing that the adoption of a royal charter would undermine traditional Quaker liberties—liberty of conscience and unfettered political participation by dissenters—granted in the Charter of Privileges. Dickinson’s stand in this controversy foreshadowed his role in the conflict with Britain as a champion of civil rights and constitutional perpetuity.

On June 7, 1776, Richard Henry Lee motioned in Congress that a committee be formed to construct an American constitution and central government. Although John Dickinson was opposed to independence, he was the logical person to take the lead. To date he had written many of the official issuances of Congress and was recognized as one of the foremost legal minds in the colonies. Very little record remains of what transpired in the last two weeks of June when the committee worked. Dickinson’s draft and a few pages of his notes are all that survive from their sessions.

Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the “free exercise of religion.” This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.

The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds v. United States (1878).

Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clause—which by its terms constrains only the federal government—to limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not “unduly infringe” religious exercise, the Court reiterated that “[c]conduct remains subject to regulation for the protection of society,” As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of

religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate “religious exemptions” that would excuse believers from complying with neutral and general laws that constrain the rest of society.

The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline.

This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?

“Woman Suffrage and the Constitution”

(2019) Dr. Christina Larocco, Editor of PMHP and Scholarly Programs at HSP

Today I’m going to talk about what the effort to extend voting rights to women reveals about the possibilities and limitations of the US Constitution, especially the 1st, 14th, 15th, and 19th Amendments.

Women Left Out of the 15th Amendment

The suffrage movement grew in the 1840s and 1850s, but was put aside during the Civil War. Many women hoped to be rewarded afterwards. The 15th Amendment (1870) (the right to vote for African Americans/formerly enslaved) led to split in movement and organization of national groups:

NWSA (Stanton and Anthony, opposed ratification of 15th Amendment,supported federal amendment for suffrage) and AWSA (Stone and Blackwell,supported ratification of 15th Amendment, supported state by state approach to suffrage)

14th Amendment offered possibilities

Both equal protection and due process clause suggested women couldn’t be deprived of right to vote
Susan B. Anthony and hundreds of other women voted in 1872 election in Minor v. Happersett (1875), Supreme Court ruled that women were citizens,but voting was not a federally-guaranteed right of citizenship – it lay with the state
This decision suggested that the federal government was not interested in protecting women’s voting rights

When suffrage movement reunited in 1890 with formation of NAWSA

They pursued a state-by-state approach
They had some success with this strategy, especially in the western states in the 1890s, but by around 1900 this progress ground to a halt
In 1915, there were hugely disappointing referenda losses in NY, NJ, OH, and PA
A new generation of suffragists led by the NWP was determined to renew campaign for federal amendment
Federalism is a system not without its benefits
- In 1914 and 1916, suffragists urged enfranchised women in western states to pressure their members of Congress to support federal amendment
However, it leads to a patchwork of laws and rights across the country
- Women could vote in some states but not others
- This was similar to gay marriage before the Obergefell decision
- It is also similar to the way it still is regarding workplace and public accommodations protections for gender identity and sexual orientation
Moreover, issues of federalism (“states’ rights” vs. a strong central gov’t) have been inseparable from issues of race
- This is part of why there was so little support for suffrage in the South
- White suffragists tried to assuage these fears, reassuring southerners that they would not have to abandon their restrictions on black voting rights
- Indeed, when the 19th amendment was passed and ratified, it did nothing to protect the rights of black women in the South

Suffrage and the 1st Amendment

Suffrage also helps us understand how 1st Amendment has been interpreted over time
Philadelphia Dora Kelly Lewis was a member of the NWP, which began picketing the White House in January 1917
When US entered WWI, dissent was seen as unpatriotic
Many people were punished for expressing sentiments against war, like Eugene V. Debs
Suffragists insisted what they were doing was not illegal and that they were political prisoners, something that is not supposed to exist in US

Women’s equality and the limits of the 19th Amendment

19th Amendment, when it was passed and ratified, only addressed voting rights
Suffragists hoped to remedy this, drafting in 1923 what came to be called the Equal Rights Amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex”
It passed Congress in 1972 but failed to be ratified, so to this day there is no explicit constitutional guarantee of gender equality
In the decades since, the courts have become increasingly likely to apply the equal protection clause to matters of gender equality, and legislation has filled in some of the gaps
Question: Why does it matter that there is no ERA (or similar amendment that also includes gender identity and sexual orientation)?
- People disagree on what the 14th Amendment means and whether it should apply to gender
- The late Supreme Court justice Antonin Scalia, for example, argued in 2011 that the equal protection clause does not protect women from discrimination
- The kinds of protections we do or do not continue to have will be determined by the views of the people on the court, which is something that could change significantly in the next few to several years

“Compromise and the Constitution and Emancipation Proclamation”

Mr. Howard Cohen, DI/JES Board Member.

Notes forthcoming.

“What Makes a Constitution Valuable and Effective”

Mr. Majid Alsayegh, DI/JES Chair of the Board. Presentation: “What Makes a Constitution Valuable and Effective”

Notes forthcoming.

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