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

Continued from Establishment, Part IV

Researched, edited and assembled by Jim Allison

September 1789

*" Nicholas Collin, a Lutheran clergyman, did not think the time propitious for a debate over amendments to the Constitution. Furthermore, he shared the views of Federalists that the Constitution itself included guarantees enough for civil and religious rights. In commenting he discussed the First Amendment particularly. It would be very "unjust and pernicious to establish any religious system in the united states." This possibility was slight at the national level because Congress did not have by construction or inclination any such power. Moreover, denominations would perform themselves the office of a censor morum over each other and on the encroachments of Congress upon the rights of conscience. (34) It was advisable that Congress guarantee liberty of conscience in each state, since it was "much more probable that superstition, mingled with political faction, might corrupt a single state, than that bigotry should infect a majority of states in congress." (35) This Congress refused to do. Collin was strongly of the opinion in his interpretation of the amendment that certain conduct based on religious belief should be stopped by the civil magistrate. Religion may be a transaction between a man and his maker; but when any person claims "from religious principle, the right of injuring his fellow-citizens, or the community at large, he must be restrained, and, in atrocious cases, punished. If he is a fool, or a madman, he must not be a tyrant. It is impossible that God could order him to be unjust, because he commands us all to be just and good." (36) No bold and artful prophet pretending a commission from heaven ought, "from his tender conscience, cut our throats and plunder our property." Although he lived in a "civilized era," Collin was ready to admit that "the human heart, is very wandering, and the fancy of mortals very whimsical ." (37)
34. Nicholas Collin in American Museum, September 1789, pp. 235-36.
Cf. Thomas Jefferson, Notes on the State of Virginia (Paris, 1784-85), p.
293.
35. Collin, in American Museum, pp. 235-36.
36. Ibid.
37. Ibid.

Source of Information:
The Religion of The Republic, edited by Elwyn A. Smith, Fortress press, Philadelphia (1971) pages 124-125.


September 27, 1789 (Amendments)

My third letter to you on the 14th. inst. will satisfy you how little is to be expected from Congress that shall be any ways satisfactory on the subject of Amendments. Your observation is perfectly just, that right without power to protect it, Is of little avail. Yet small as it is, how wonderfully scrupulous have they been in stating Rights! The English language has been carefully culled to find words feeble in their Nature or doubtful in their meaning! .

Source of Information:
Excerpt from Letter, Richard Henry Lee to Patrick Henry, September 27, 1789, Miscellaneous Manuscripts, DLC. Creating The Bill of Rights: The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University Press, Baltimore & London, (1991), pp 296-97.


September 29, 1789 (Amendments)

With respect to amendments matters have turned out exactly as I apprehended from the extraordy doctrine of playing the after game: the lower house sent up amendments which held out a safeguard to personal liberty in a great many instances, but this disgusted the Senate, and though we made every exertion to save them, they are so mutilated & gutted that in fact they are good for nothing, & I believe as many others do, that they will do more harm than benefit.

Source of Information:
Excerpt of letter from William Grayson to Patrick Henry, September 29, 1789, Patrick Henry Papers, DLC. Creating The Bill of Rights: The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University Press, Baltimore & London, (1991), pp 300.


October 2, 1789 (Amendments)

You will find our Amendments to the Constitution calculated merely to amuse, or rather to deceive.

Source of Information:
Thomas Tudor Tucker to St. George Tucker, October 2, 1789, Roberts Autograph Collection, Haverford College, Haverford, Pennsylvania, Creating The Bill of Rights: The Documentary Record from the First Federal Congress, Helen E. Veit, Kenneth R. Bowling, Charlene Bangs, Bickford, eds. The John Hopkins University Press, Baltimore & London, (1991), pp 300.


Pennsylvania Constitution, September 2, 1790:

[Article IX, Section 3:] That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent; that no human authority can, in any case whatever, control or interfere with the fights of conscience; and that no preference shall ever be given, by law, to any religious establishments or modes of worship.

Source of Information:
[The Federal And State Constitutions, Colonial Charters, and Other Organic Laws, Francis Newton Thorpe. Ed. p 3100] 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 671-72.


1791

Religion, Establishment Of

(Established Church)

United States Constitution, Bill of Rights, December 15, 1791:

[Article I] 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 a redress of grievances.


1811

February 21, 1811

Veto Messages.

February 21, 1811.

To the House of Representatives of the United States:

Having examined and considered the bill entitled "An act incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia," I now return the bill to the House of Representatives, in which it originated, with the following objections:

Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares that "Congress shall make no law respecting a religious establishment." The bill enacts into and establishes by law sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the minister of the same, so that no change could be made therein by the particular society or by the general church of which it is a member, and whose authority it recognizes. this particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration. Nor can it be considered that the articles thus established are to be taken as the descriptive criteria only of the corporate identity of the society, inasmuch as this identity must depend on other characteristics, as the regulations established are generally unessential and alterable according to the principles and canons by which churches of that denomination govern themselves, and as the injunctions and prohibitions contained in the regulations would be enforced by the penal consequences applicable to a violation of them according to the local law.

Because the bill vests in the said incorporated church an authority to provide for the support of the poor and the education of poor children of the same, an authority which, being altogether superfluous if the provision is to be the result of pious charity, would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty.

James Madison.

Source of Information:
A Compilation of The Messages And Papers of The Presidents, Vol. II, Bureau of National Literature, N Y, pp 474-475.


February 28, 1811

Veto Message

February 28, 1811.

To the House of Representatives of the United States.

Having examined and considered the bill entitled "An act for the relief of Richard Tervin, William Coleman, Edwin Lewis, Samuel Mims, Joseph Wilson, and the Baptist Church at Salem Meeting House, in the Mississippi Territory, " I now return the same to the House of Representatives, in which it originated, with the following objection:

Because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."

James Madison.

Source of Information:
A Compilation of The Messages And Papers of The Presidents, Vol. II, Bureau of National Literature, N Y, Pp 474-475.


It is interesting to study the arguments in Congress as the legislators attempted to override his veto, since those arguments shed light on early understandings. By the way, Congress failed to muster the votes needed to override his vetoes.

SEE: Madison's vetoes: Some of The First Official Meanings Assigned to The Establishment Clause


b. The Semantic Argument

In support of the narrow interpretation it is argued that the "establishment of religion" as used in the First Amendment had a well-defined meaning:

A single Church or religion, enjoying formal, legal, official monopolistic privilege though a union with the Government of the State.(102)

The definition of "establishment " as appearing in the Encyclopedia Britannica is cited, as follows:

Establishment, a word applied to certain religious bodies in their relation to the State. Perhaps the best definition which can be given and which will cover all cases, is that establishment implies the existence of some definite and distinctive relation between the State and a religious society (or conceivably more than one) other than that which is shared in by other societies of the same general character. it denotes any special connection with the State, or privileges and responsibilities before the law, possessed by one religious society to the exclusion of others; in a word, establishment is of the nature of a monopoly.

It is argued that if the framers of the First Amendment had wished to bar nonpreferential aid to religion they would have done so in express language and would not have used the well-defined term "establishment."

The argument is subject to a number of basic difficulties. In the first place, it would appear to prove too much. It would permit an outright grant of public funds, property, or other aid to a single sectarian group as long as the assistance given falls short of the grant of formal dominant status contemplated by the quoted definitions. Yet, as we have seen, those urging the narrow interpretation agree that such a grant is forbidden by the First Amendment. In the second place, it ignores the word "respecting." The Amendment does not say "Congress shall make no law establishing religion," but "no law respecting anestablishment of religion." It may reasonably be argued that the latter phraseology imposes a broader prohibition than the former.(103)

Third: The term "establishment" or "establish" was used much more frequently and loosely in 1791 than it is today. The short preamble to the Constitution itself uses the word "establish" twice ("establish justice" and "establish this Constitution"). It was used by Jefferson in the title of his Statute for Establishing Religious Freedom. It was used in describing a measure as closely approximating nonpreferential aid to religion as could practicably be conceived - the Virginia Bill Establishing a Provision for Teachers of the Christian Religion. (There were, as we have seen, no teachers of non-Christian religion in Virginia in 1784. and taxpayers not desiring that their money go to any Christian sect could direct that it be used for general educational purposes.) Justice Story spoke of "establishing funds for the support of ministers."(104) Madison used the term "establishment" to denote chaplaincy in Congress and chaplaincy in the armed forces, stating:

The establishment of the chaplainship in Congress] is a palpable violation of equal rights, as well as of Constitutional principles . . . Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality? Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable.(105)

In 1817 Jefferson drafted a "Bill for the Establishment of District Colleges and University," (106) and the Regulations of the University of Virginia of 1824 provided that the students "will be free and expected to attend religious worship at the establishment of their respective sects."(107)

Moreover, during the debates preceding the adoption of the First Amendment and after its adoption, the term "establishment of religion" was used synonymously with "religious establishment." Roger Sherman argued that the First Amendment was unnecessary because "Congress had no authority whatever delegated to them by the Constitution to make religious establishments."(108) Later, in vetoing two separate measures, Madison twice referred to the First Amendment as prohibiting any law respecting "a religious establishment."

In Vetoing a bill to incorporate the Episcopal Church in the District of Columbia, Madison said:

. . .the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and violates in particular the article of the Constitution of the United States which declares that "Congress shall make no law respecting a religious establishment ..." This particular church, therefore, would so far be a religious establishment by law, a legal force and sanction being given to certain articles in its constitution and administration.

A week later he vetoed a bill giving certain land to a Baptist church, because the bill in reserving a certain parcel of land of the United States for the use of said Baptist Church comprises a principle and a precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the article of the Constitution which declares that "Congress shall make no law respecting a religious establishment."(109)

A constitutional prohibition against laws "respecting religious establishments" is obviously not far removed from a prohibition of laws supporting or aiding religious establishments. More important, Presidents Jefferson, Madison[*], and Jackson interpreted the First Amendment ban on laws respecting an establishment of religion "as prohibiting" such nonpreferential and nonmonetary aid as Presidential proclamations of thanksgiving to GOD.(110)

Fourth: It is true that Congress did not expressly bar nonpreferential aid to religion, but it is also true that it did not expressly limit the bar to preferential establishment. It had two occasions to do so, and refused both times. When the First Amendment as adopted by the House was debated in the Senate, the following proceedings took place:

The resolve of the House of Representatives ... was read, as followeth:

"Art. III. Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed."

The Senate resumed the consideration of the resolve of the House of Representatives on the amendments to the Constitution of the United States.

On motion to amend Article the third, and to strike out these words: "Religion, or prohibiting the free exercise thereof," and insert "No religious sect or society in preference to others:"

It passed in the negative.

On motion for reconsideration:

It passed in the affirmative.

On motion that Article the third be stricken out:

It passed in the negative.

On motion to adopt the following, in lieu of the third Article: "Congress shall not make any law infringing the rights of conscience, or establishing any religious sect or society":

It passed in the negative.

On motion to amend the third Article, to read thus: "Congress shall make no law establishing any particular denomination or religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed ":

It passed in the negative.

On the question upon the third Article as it came from the House of Representatives:

It passed in the negative.

On motion to adopt the third Article proposed in the resolve of the House of Representatives, amended by striking out these words, "Nor shall the rights of conscience be infringed."

It passed in the affirmative.(111)

It can be seen that the purpose of the proposed changes was to have the Amendment read:

Congress shall make no law establishing one Religious Sect or society in preference to others, or prohibiting the free exercise thereof nor shall the rights of conscience be infringed; [and:] Congress shall make no law establishing any particular denomination or religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.

The rejection of these versions, each of which expressly and unambiguously spells out the narrow interpretation of the First Amendment, would seem to indicate clearly that Congress did not intend such narrow interpretation.

FOOTNOTES:

(102). Religion and Education under the Constitution, James M. O'Neil, New York, Harper and brothers, 1949 p. 204. Substantially similar definitions are found Ibid., p. 56; Corwin, p. 104, Catholic bishops' statement; Parsons, p. 46; McCollum brief, p. 57; Fahy, p. 80

(103). Morrison, Charles C., The Separation of Church and State in America (pamphlet), p. 4.

(104). Terrett vs. Tyler, 9 Cranch (U.S.) 43 (1815).

(105). Fleet, Elizabeth, "Madison's 'Detached Memoranda,' " William and Mary Quarterly, October, 1996, Third Series, 3, p. 559.

(106). Butts, pp. 121-123.

(107). See infra, p. 421-

(108). Annals, I, p. 731.

(109). Richardson, J. D. Messages and Papers of the Presidents, New York, Bureau of National Literature, 1900, I, pp. 489, 490 (italics added). Note plural "societies."

(110). Fleet, pp. 560-562; Stokes, I, p. 697; Butts, p. 94. A fuller discussion appears below, pp. 223 ff.

(111). Journal of the Proceedings of the First Session of the United States Senate, pp. 63, 67

(August 25, September 3, 1791).

(112). Story, Joseph, Commentaries on the Constitution of the United States, Boston, Hillard, Gray (1833), III, pp. 724-726

(113). 9 Cranch (U.S.) 43 (1815).

(114). Ibid., p. 49. Note use of word "establishing."

Source of Information:
Church, State, and Freedom, Leo Pfeffer, The Beacon Press, Boston, (1953) p. 139-142.

[*] Madison did issue four Proclamations, at the urging of Congress, during the war of 1812. Later in his life he stated that he felt they were unconstitutional.


In a nutshell, "establishment" entails some element of state coercion. Prayer in public school is indeed "establishment" because there is no option given: students have to attend that school, and thus have no choice in exposure to the prayer. .

Damien Falgoust, Esq. UT Law '99


Well, I would suggest that the early history of this country suggests that reading "establishment" as prohibiting certain acts of government as well as prohibiting actual government-built brick-and-mortar houses of worship. I mean, it just seems sensible that the amendment forbids the government from commanding all to worship at an Episcopalian service held out of doors as well as from preventing them from actually building an Episcopal church. Indeed, given that the rest of the first amendment is also concerned with restrictions on individual liberty, the above construction seems to me to be an inescapable conclusion.

Damien Falgoust, Esq. UT Law '99


An "establishment" is not simply a "place." It is the act of establishing, and "to establish" includes intalling or settling in a position, to show to be valid or true, or to cause to be accepted, to enact, appoint or ordain for permanence, etc. (Random House Compact Unabridged.)

Prayer is, in its essence, a religious activity. To include prayer in public schools is to "establish" a religious activity. It's irrelevant whether the activity "establishes" the particular views of the Presbyterians (or whomever), or Judeo-Christianity in general: it's still an unconstitutional "establishment of religion."


Religion: An Overview
Madison's original proposal for a bill of rights provision concerning religion read: ''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 pretence, infringed.'' The language was altered in the House to read: ''Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.'' In the Senate, the section adopted read: ''Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . .'' It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its some what more indefinite ''respecting '' phraseology. Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson who influenced him, is fairly clear, but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

http://caselaw.findlaw.com/data/constitution/amendment01/01.html


"ESTABLISH."
This word occurs frequently in the Constitution of the United States, and it is there used in different meanings: (1) TO SETTLE FIRMLY, TO FIX UNALTERABLY; as to establish justice, which is the avowed object of the Constitution. (2) TO MAKE OR FORM; as to establish uniform laws governing naturalization or bankruptcy. (3) To FOUND, TO CREATE, to regulate; as: "Congress shall have power to establish post-offices." (4) To FOUND, RECOGNIZE, confirm, or admit; as: "Congress shall make no law respecting an establishment of religion." (5) To create, to ratify, or confirm, as: "We, the people . . . do ordain and establish this Constitution." See also Establishment clause.

To settle, make or fix firmly; place on a permanent footing; FOUND; create; put beyond doubt or dispute; prove; convince. To enact permanently. TO BRING ABOUT OR INTO EXISTENCE.

ESTABLISHMENT. An institution or place of business, with its fixtures and organized staff. State of being established.

Establishment clause. That provision of the First Amendment to U.S. Constitution which provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .". Such language prohibits a state or the federal government from setting up a church, or passing laws which aid one, or all, religions, or giving preference to one religion, or forcing belief or disbelief in any religion."

Black's Law Dictionary, Abridged Sixth edition, Centennial Edition (1891-1991) West Publishing Company, St. Paul, (1991) p 379


The 1st Amendment clause, "Congress shall make no law respecting an establishment of religion," means what it says. The word "respecting" means concerning or touching upon, or in relation to, or with regard to. The word "establishment" had at least two meanings at the time the First Amendment was adopted and has those meanings today. One was a technical reference to monopoly status, such as the Roman Catholic church had for many years in Spain; or to government patronage and control of a church, such as the Church of England; or government regulation and financial support of one or more churches, as in some colonies and states in early America.

The other meaning of the word "establishment" is institution. The two meanings are used interchangeably today as they were then. A religious establishment is an institution of religion. Madison spoke of "the establishment of the chaplainship" in Congress.' He vetoed a bill to give a parcel of land to a Baptist church with the statement that "Congress shall make no law respecting a religious establishment.". Jefferson, in drafting a "Bill for the Establishment of District Colleges and University" and in the Regulations of the University of Virginia, provided that the students "will be free and expected to attend religious worship at the establishment of their respective sects."

(Religious Liberty And The Secular State, the Constitutional Context, by John Swomley, pages 48-49)


Some Thoughts on Religion and Law, Susan Batte, Esq. http://members.tripod.com/~candst/bthot-lr.htm

1.The Constitution did not provide any mechanism for the establishment of religion or for the support of religion.

2.Religious tests were the primary mechanism for perpetuating an established church within the political structure.

3.The Constitution specifically prohibits religious tests or oaths for office.

THEREFORE, the Constitution created the concept of Separation of Church and State by providing nothing in the constitution that supports the idea that Government as Government is allowed to support any religion for any reason and by specifically prohibiting the primary political mechanism for supporting religion.

The 1st Amendment may only be interpreted, as being consistent with the Constitution and the views expressed in the Constitution concerning religion because:

1.The 1st Amendment was drafted after the Constitution was ratified and was not designated as repealing any provision in the Constitution.

2.The 1st Amendment does not provide any mechanism for establishing religion.

3.The 1st Amendment does provide the mechanism to allow an individual as an individual and not as government to exercise the religion of his or her choice.

THEREFORE, the 1st Amendment cannot be interpreted to mean that some governmental entities may support religion in some ways (i.e., vouchers, welfare programs, etc.).

Once the 1st Amendment prohibited Congress from establishing religion by prohibiting it from making any law respecting an establishment of religion - Congress was thereby precluded from passing any kind of appropriation bill to fund any religious enterprise.

In order for the above to be true, the interpretation of "establishment" would have to be broad, and in fact the broad interpretation of "establishment" is supported. First, the O.E.D. (Oxford English Dictionary) sets out a 1561 definition of establishment as "a means of establishing; something that strengthens, supports or corroborates." Into the 1700s - 1800s, "establishment" could be defined as "the establishing by law (a church, religion, form of worship.)" As an example, the O.E.D. sets out the following: 1886 Earl Selborne Def Ch. Eng. I. iv. 77 All such relations of the Church to the State as those which are summed up in the term 'Establishment'.

Second, a broad interpretation of "establishment" is consistent with the indefinite article that proceeds it. "An" establishment of religion' refers to all or any religious establishment --- not to one or some establishments. In the absence of definiteness, the inclusion of "of one Christian sect over another" after "Congress shall make no law respecting an establishment" would be necessary if, as Mr. Barton argues, the 1st Amendment was all about stamping out competing rivalries between Christian sects.

In addition, the operative word in the Establishment Clause is RESPECTING. Respecting an establishment of religion. Any religious institution, be it a 20 member country church or a huge multimillion member international religion, is an establishment of religion. The government is forbidden from making any laws, positive or negative that would pertain to an establishment of religion.

The narrow definition of establishment is that the 1st Amendment meant only to prevent a "State Church" from being officially sanctioned by the Government. (In this way, some people have tried to argue that supporting religious schools doesn't establish anything.) However, such a narrow reading of "Establishment" would need specific language added to the Amendment to support it since a plain language reading of the Constitution clearly shows no bias for (or against) Christianity as opposed to any other religion or even irreligion. And neither does the 1st Amendment.


Differentiating the Free Exercise and Establishment Clauses

CARL, H. ESBECK

Carl H. Esbeck, JB.S., Iowa State University; J.D., Cornell University School of Law is the Isabella Wade and Paul C. Lyda Professor of Law at the University of Missouri, Columbia, Missouri.

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion."(1) The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in civil government) await elaboration below.

Rights and Restraints

The United States Constitution consists of individual rights and institutional structure. People (including organized groups of people) have rights. Governments do not have rights.(2) Rather, governments have powers and duties. The powers of the federal government are enumerated and limited, an original understanding later made explicit in the Tenth Amendment. Federal powers are delegated to one of three branches, shared by specified branches, denied to all three, or shared with the several states. These delegations and denials of power constitute the institutional structure or architecture of the federal government.

The difference between rights and structure within the overall Constitution is commonplace.(3) For government to avoid violating an individual right is a matter of constitutional duty owed to each person within its jurisdiction. This duty is personal, running in favor of each rights holder. On the other hand, for government to avoid exceeding a structural restraint is a matter of confining legislation and the actions of its officials to the scope of its delegated powers. These restraints are impersonal, running in favor of the entire body politic.(4) Although individual rights can be waived because they are personal, institutional structure cannot.(5) The difference between rights and structure manifests itself in additional but often subtle ways that can prove definitive.(6)

A structural clause, to be sure, often has a laudable effect on individual liberty by compelling various branches of the government (legislative, executive, and judicial) to stay within their authority. (7) Nevertheless, the immediate object of constitutional structure is the management of power: a dividing, dispersing, and balancing of the various prerogatives of sovereignty. "Separation of powers" and "federalism" are mere shorthand for familiar forms of constitutional structure running horizontally and vertically, respectively, within tile three-branch federal government and the multi-layered system of national, state, and local governments. Structural clauses are helpfully thought of as power conferring and power limiting, so long as it is understood that many such clauses serve both functions.(8)

A "Negative" on the Government's Power

The Bill of Rights did not confer new powers on Congress.(9) The fears of the Anti-federalists, who were prominent in the First Congress. drove them to just the opposite objective. to deny ("negative") power to interfere with liberties that might otherwise be implied from the more open-ended delegations in the original Constitution. (10) The Federalists gave little resistance to this enterprise because their position all along had been that the new central government had never been delegated such powers.(11) Indeed, James Madison, a Federalist and principal drafter of the Constitution proper, led the cause for a Bill of Rights. So Congress settled on the exact text of the proposed articles of amendment in late September 1789 with relative ease.(12) Twelve articles were submitted to the states, but only ten were ratified.(13) The ratified amendments were thought to change little, but they did calm the fears of citizens while serving as a useful hedge against possible future encroachments. Moreover, the Bill of Rights as a "negative" on congressional power was not altered when the Fourteenth Amendment was ratified in 1868.(14) Nor was this "negative" on power turned into a grant of new power by the Supreme Court's incorporation of selected provisions of the Bill of Rights through the Fourteenth Amendment's Due Process Clause.(15)

A Structuralist Establishment Clause

In the hands of the U.S. Supreme Court the Establishment Clause has not been regarded as a personal right, one that protects against coercion of religiously informed conscience. Even in archetypal no establishment eases such as those concerning religion in public schools, for example Engel v. Vitale (16) and McCollum v. Board of Education. (17) the Court applied the Establishment Clause not to relieve individual students of` religious coercion or harm. but to keep two centers of' authority--government and religion--in their proper relationship.(18) This is why in popular discourse it is said that the Establishment Clause is about "church-state relations" or the "separation of church and state." It is in this structuralist role--when invoked to keep civil government in the right relationship with religion--that the EstablishmentClause broke with older European patterns (19) and made its most unique and celebrated contribution to the American constitutional settlement. (20)

The Establishment Clause can be a means of redress for individual harms, but only when the injury is other than religious in nature, such as economic harm or loss of' property,(21) constraints on academic inquiry by teachers and students, or restraints on free-thinking atheists.(23) Even in these situations, however, the no-establishment principle is not transformed into an individual-rights clause with the assigned task of protecting, respectively, property, academic freedom, and freedom from religion. Rather, these injuries are remedied only consequentially to the operation of the Establishment Clause: as it fulfills its structuralist role.(24) In such a paradigm the no-establishment principle orders, even in the absence of individual harm, the respective competencies of government and religion. Legal historian Mark DeWolfe Howe concludes:

"The First Amendment . . . would impose a disability upon the national government to adopt laws with respect to establishments whether or not their consequence would be to infringe individual rights of conscience.

"To find this .. . purpose in the First Amendment involves, necessarily I think, the admission that the amendment is something more than a charter of individual liberties."(25)

From time to time religious claimants have sought to enlist the Establishment Clause into serving as a rights-protecting clause, but the Supreme Court has rarely followed that course. In Larson v. Valente, (26) the Court did apply the no-establishment principle to entertain a claim involving discrimination among religious groups and thus to redressed allegations of religious harm." But this was highly unusual(28) and probably wrongheaded, for Larson could just as easily--and more sensibly-have been grounded in the Free Exercise Clause.(29) Unlike the Establishment Clause, the Free Exercise Clause protects against personal religious harm and thus safeguards individual religious rights.

Source of Information:
Differentiating the free Exercise and Establishment Clauses, by Carl H. Esbeck. Journal of Church and State, Volume 42, Number 2, Spring 2000, pp 311-334.

[Editor's note: This particular excerpt is found on pp 311-320. The footnotes --which actually make up the bulk of those 8 pages-- are not included in this excerpt. They can be found in the actual article.] )