The Constitutional Principle: Separation of Church and State
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Establishment, Part III

Continued from Establishment, Part II

Researched, edited and assembled by Jim Allison

1785

Excerpts from James Madison's Memorial and Remonstrance (The complete text of this document may be found at James Madison's Memorial and Remonstrance

To the Honorable the General Assembly of the Commonwealth of Virginia

Memorial and Remonstrance

We the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled "A Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State to remonstrate against it, and to declare the reasons by which we are determined.

We remonstrate against the said Bill,

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects?

that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion.

Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy.

7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation.

During almost fifteen centuries has the legal establishment of Christianity been on trial.

8. Because the establishment in question is not necessary for the support of Civil Government.

If Religion be not within the cognizance of Civil Government how can its legal establishment be necessary to Civil Government?

What influence in fact have ecclesiastical establishments had on Civil Society?

Rulers who wished to subvert the public liberty, may have found an established Clergy convenient auxiliaries.

9. Because the proposed establishment is a departure from the generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a luster to our country, and an accession to the number of its citizens.

and on the other, guide them into every measure which may be worthy of his [blessing, may re]bound to their own praise, and may establish more firmly the liberties, the prosperity and the happiness of the Commonwealth.


Virginia Statute of Religious Liberty, January 16, 1786:

I,. that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, have established and maintained false religions over the greatest part of the world, and through all time; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical ...

Source of Information:
[Code of Virginia 1950 Volume 8 p 690.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 670


Tench Coxe, An Examination of the Constitution for the United States of America, No. 1, September 26, 1787:

The British king is the great bishop or supreme head of an established church, with an immense patronage annexed. In this capacity he commands a number of votes in the house of lords, by creating bishops, who, besides their great incomes, have votes in that assembly, and are judges in the last resort. These prelates have also many honorable and lucrative places to bestow, and thus from their wealth, learning, dignities, powers, and patronage, give a great lustre and an enormous influence to the crown.

Source of Information:
[Pamphlets on the Constitution, Paul L. Ford, ed. (Brooklyn, N Y , 1888) p 137.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 670


Richard Henry Lee [?], "The Federal Farmer," [?], No. 4, October 12, 1787:

It is true, we are not disposed to differ much, at present, about religion; but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact....

Source of Information:
[Pamphlets on the Constitution, Paul L. Ford, ed. Brooklyn, N Y , 1888) p 315.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 670


Noah Webster, An Examination of the Leading Principles of the Federal Constitution, October 17, 1787:

[1] ... In the same manner, the principles and habits, as well as the power of the Americans are directly opposed to standing armies: and there is as little necessity to guard against them by positive constitutions, as to prohibit the establishment of the Mahometan religion....

Source of Information:
[Pamphlets on the Constitution Paul L. Ford, ed. (Brooklyn, N Y , 1888) p 52] The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 670


[21 ... And the kings and senate [in Rome] could not have held the reigns of government in their hands so long as they did, had they not artfully contrived to manage the established religion, and play off the superstitious credulity of the people against their own power....

Source of Information:
[Pamphlets on the Constitution, Paul L. Ford, ed. (Brooklyn, N Y , 1888) p 57.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 670


Tench Coxe, An Examination of the Constitution for the United States of America, No. 4, October 21, 1787:

... In Italy, Spain, and Portugal, no Protestant can hold a public trust. In England every Presbyterian, and other person not of their established church, is incapable of holding an office. No such impious deprivation of the rights of men can take place under the new federal constitution. The convention has the honour of proposing the first public act, by which any nation has ever divested itself of a power, every exercise of which is a trespass on the Majesty of Heaven.

Source of Information:
[Pamphlets on the Constitution, Paul L. Ford, ed. (Brooklyn, N Y , 1888) p 146.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 671


John Hancock, Speech to the Massachusetts Legislature, February 27, 1788:

... I hope and pray, that the gratitude of their [the people's] Hearts may be expressed by a proper use of those inestimable blessings,- by the greatest exertions of Patriotism,-by forming and supporting Institutions for cultivating the human Understanding, and for the greatest Progress of the Arts and Sciences,--by establishing Laws for the support of Piety, Religion and Morality, as well as for punishing Vice and Wickedness,-and by exhibiting in the great Theatre of the World, those social, public and private Virtues, which give more Dignity to a People, possessing their own Sovereignty, than Crowns and Diadems afford to Sovereign Princes....

Source of Information:
[The Documentary History of the Ratification of the Constitution. Merrill Jensen, John P. Kaminski, Gaspare J. Saladino, et al., eds. (Madison, Wis. : State Historical Society of Wisconsin, 1976 to present. Volume 16, p 226.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 671


Alexander Hamilton, The Federalist, No. 71, March 18, 1788:

... If a British House of Commons, from the most feeble beginnings, from the mere power of assenting or disagreeing to the imposition of a new tax, have, by rapid strides, reduced the prerogatives of the crown and the privileges of the nobility within the limits they conceived to be compatible with the principles of a free government, while they raised themselves to the rank and consequence of co-equal branch of the legislature; if they have been able, in one instance, to abolish both the royalty and the aristocracy, and to overturn all the ancient establishments, as well in the Church as State; if they have been able, on a recent occasion, to make the monarch tremble at the prospect of an innovation attempted by them, what would be to be feared from an elective magistrate of four years' duration, with the confined authorities of a President of the United States? ...

Source of Information:
[The Federalist, Hamilton, Madison, Jay. Ed. Benjamin F. Wright (Cambridge, Mass. Harvard University Press 1961) p 462.] Thurston Greene. The Language of the Constitution, A Source Book and Guide to the Ideas, Terms and Vocabulary Used by the Framers of the U S Constitution. Greenwood Press. (1991) p 671


*Edmund Randolph of Virginia pointed out that the multiplicity of sects would prevent "The establishment of any one sect, in prejudice to the rest."

*Oliver Ellsworth replying to criticisms of the Constitution said at his state's Convention that the United States would never "be disposed to establish one religious sect, and lay all others under legal disabilities."


*July 30, 1788 North Carolina Ratifying Convention

[This quote shows that while Mr. Lancaster was expressing his concerns, others on that same day were expressing thoughts quite different from his]

MR. LANCASTER. As to a religious test, had the article which excludes it provided none but what had been in the states heretofore, I would not have objected to it. It would secure religion. Religious liberty ought to be provided for. I acquiesce with the Gentleman, who spoke, on this point, my sentiments better than I could have done myself. For my part, in reviewing the qualifications necessary for a president, I did not suppose that the pope could occupy the President's chair. But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the case of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it. There is a disqualification, I believe, in every state in the Union - it ought to be so in this system.

Source of Information:
Wed. July 30, 1788. North Carolina State Constitutional Ratifying Convention Debates--The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, Vol. IV, by Jonathan Elliot J. B. Lippincott Company 1888. Pages 215.

[Mr. Lancaster was farsighted enough to understand that as time passed there would be other religions present in this nation and that at some future time a Catholic or Non-Christian might very well be president of this nation.]


June 8, 1789

Fourthly, That in article 1st, section (5) between clauses 3 and 4, be inserted these clauses, to wit:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

James Madison at the debates of the proposed Amendments to the Constitution, Sat Aug 15, 1789. Found in the Annals of Congress page 434


August 15, 1789 First Federal Congress (Amendments)

The House again went into a Committee of the Whole on the proposed amendments to the Constitution. Mr. Boudinot in the chair.

The fourth proposition being under consideration, as follows:

Article 1. Section 9. Between paragraphs two and three insert 'no religion shall be established by law, nor shall the equal rights of conscience be infringed.

Mr. SYLVESTER had some doubts of the propriety of the mode of expression used

in this paragraph. He apprehended that it was liable to a construction different from what had been made by the committee. he feared it might be thought to abolish religion altogether.

Mr. VINING suggested the propriety of transposing the two members of the sentence.

Mr. GERRY said it would read better if it was no religious doctrine shall be established by law.

Mr. SHERMAN thought the amendment altogether unnecessary, inasmuch as Congress had 'no authority whatever delegated to them by the Constitution to make religious establishments; he would, therefore, move to have it struck out.'

Mr. CARROLL As the rights of conscience are, in their nature, a peculiar delicacy, and will little bear the gentlest touch of governmental hand; and as many sects have concurred in opinion that they are not well secured under the present constitution, he said he was much in favor of adopting the words. He thought it would tend more towards conciliating the minds of the people to the government than almost any other opinion he heard proposed. He would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community.

Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.

Mr. HUNTINGTON said that he feared, with the gentleman first up on this subject, that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction on it. The ministers of their congregations to the eastward were maintained by contributions of those who belong to their society; the expense of building meeting houses was contributed in the same manner. These things were regulated by bylaws. If an action was brought before a federal court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a support of ministers or buildings of places of worship might be construed into a religious establishment.

By the charter of Rhode Island, no religion could be established by law; he could give a history of the effects of such a regulation; indeed the people were now enjoying the blessed fruits of it. He hoped, therefore, the amendment would be made in such a way as to secure the rights of conscience, and the free exercise of religion, but not to patronize those who professed no religion at all.

Mr. MADISON thought, if the word 'National' was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform. He thought if the word 'National' was introduced, it would point the amendment directly to the object it was intended to prevent.

Mr. LIVERMORE was not satisfied with the amendment; but he did not wish them to dwell long on the subject. He thought it would be better if it were altered, and made to read in this manner, that Congress shall make no laws touching religion, or infringing the rights of conscience.

Mr. GERRY did not like the term National, proposed by the gentleman from Virginia, and he hoped it would not be adopted by the House. It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; the honorable gentleman's motion shows that he considers it in the same light. Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.

Mr. MADISON withdrew his motion but observed that the words single 'no National religion shall be established by law', did not apply that the government was a national one; the question was then taken on MR. LIVERMORE's motion, and passed in the affirmative 31 for it, and 20 against it.

Source of Information:
The Debates and Proceedings in the Congress of the United States (Annals of Congress) August 15, 1789, Vol. I, Joseph Gales, published by Gales and Seaton, Washington, 1834, pp 729-749.

For the entire recorded debate on the religious amendments, including the evolution of the wording from beginning to end in both Houses of Congress, SEE: Congressional Debates: Religious Amendments, 1789


For those who might want to place a great deal of importance on Madison's use of the word national, thus claiming the sole purpose of the Establishment clause was to prevent a national church such as existed in places in Europe, do bear in mind that Madison proposed two amendments on June 8, 1789, and the House of Rep. Eventually Passed both.

They were:

First

Fourthly, That in article 1st, section (5) between clauses 3 and 4, be inserted these clauses, to wit:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The above would have reinforced the negative on the general (national) government.

Second

Fifthly, That in article Ist, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

The above would have placed the negative of some selective amendments against the states. Thus his full package addressed both the general govt and state govts. Keeping that in mind, his use of the word national with regards religion and the general government is not so unusual.


This examination of the meaning of Establishment is continued in Establishment, Part IV


 
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